State v. George

• Court: Court of Appeals of North Carolina
• Decided: March 5, 2024
• Docket: 22-958
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-958

Filed 5 March 2024

Sampson County, Nos. 17 CRS 52091, 52092, 52094

STATE OF NORTH CAROLINA

v.

MARCUS D. GEORGE, Defendant.

Appeal by defendant from judgment entered 23 April 2021 by Judge Henry L.

Stevens in Sampson County Superior Court. Heard in the Court of Appeals 10 May

2023.

Attorney General Joshua H. Stein, by Assistant Attorney General Jessica Macari, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine Jane Allen, for the defendant-appellant.

STADING, Judge.

Marcus D. George (“defendant”) appeals from a judgment entered after a jury

found him guilty of trafficking heroin by possession, trafficking heroin by transport,

possession with intent to sell or deliver heroin, possession with intent to sell or deliver

cocaine, and resisting a public officer. At sentencing, defendant admitted his habitual

felon status. For the reasons below, we hold no error. STATE V. GEORGE

Opinion of the Court

I. Background

On 27 July 2017, Lieutenant Bass (“Lt. Bass”) of the Sampson County Sheriff’s

Office observed a vehicle speeding seventy miles per hour in a fifty-five mile per hour

zone. Lt. Bass initiated a traffic stop and approached to find defendant in the driver’s

seat with a passenger in his vehicle. Lt. Bass requested defendant for his license and

registration. As defendant searched for his registration, Lt. Bass noticed him

“moving around a lot inside the vehicle” and “shaking very nervously.” According to

Lt. Bass, defendant “would never make eye contact” or “look [his] way.” While at the

vehicle, Lt. Bass saw “what appeared to be marijuana residue” on the passenger side

floorboard and could smell “a faint odor of marijuana coming from the vehicle.”

Eventually, the passenger found defendant’s registration in the glovebox, a

location defendant had previously checked. Lt. Bass returned to his patrol car and

called for backup. Deputy Wilkes arrived on the scene while Lt. Bass completed the

“registration check.” To ensure officer safety, Deputy Wilkes asked defendant to exit

the vehicle and conducted a pat-down to check for weapons. During the pat-down,

defendant “was moving around” and “kept trying to turn around.” Meanwhile, Lt.

Bass attempted to produce a printed citation, but his computer and printer lost

power. Consequently, defendant received a verbal warning for speeding. Defendant

responded to the verbal warning by disputing Lt. Bass’s description of the events

leading up to the traffic stop.

Upon returning defendant’s driver’s license and registration, Lt. Bass asked

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defendant if there were “any illegal drugs inside the vehicle,” to which defendant

responded, “no.” Lt. Bass asked for consent to search the vehicle, but defendant

refused. “At that time,” Lt. Bass informed defendant that he “would be conducting a

free-air sniff with [his canine] around the vehicle” and instructed the passenger to

exit the vehicle before performing the search. When the passenger door was opened,

Lt. Bass verified the substance on the floorboard was “marijuana stems, residue.”

Then, the canine alerted to the presence of narcotics at the driver’s door. A search of

the vehicle led to the discovery of, among other things, marijuana and “a small plastic

baggy containing a white powder.” During the search, defendant “seemed . . . agitated

. . . and . . . was pacing back and forth[.]” Thereafter, Lt. Bass attempted to arrest

defendant, but he pulled away, fought, and reached for his waistband. Then,

defendant put something in his mouth, which turned out to be a baggie containing an

“off-white rock substance.” Once defendant was handcuffed, another baggie, which

contained a brown powder, was located on the ground nearby.

Defendant was indicted for numerous drug offenses, among them trafficking

heroin, possession with intent to sell or deliver heroin, possession with intent to sell

or deliver cocaine, maintaining a vehicle for the purpose of keeping or selling cocaine

and heroin, and possession of testosterone and marijuana. He also faced charges of

destroying evidence and resisting a public officer. Additionally, defendant was

indicted for the status offense of habitual felon. On 31 August 2018, defendant filed

a pretrial motion to suppress evidence obtained from the traffic stop. His motion

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alleged that the search was “without a search warrant, probable cause, consent,

exigent circumstances or any other exception to the warrant requirement.” The trial

court conducted a suppression hearing and accepted evidence in the form of testimony

from Lt. Bass, a video tendered by the State, and two photographs tendered by

defendant. At the conclusion of the hearing, the trial court denied defendant’s

motion.

Defendant’s trial began on 19 April 2021 in Sampson County Superior Court.

The State chose not to prosecute defendant for the charges of possession of

testosterone, possession of marijuana, possession of marijuana paraphernalia, and

destroying evidence. At the close of all evidence, the trial court dismissed the charge

of maintaining a vehicle to keep or sell a controlled substance. Following

deliberations, the jury found defendant guilty of trafficking heroin, possession with

intent to sell or deliver heroin, possession with intent to sell or deliver cocaine, and

resisting a public officer. Defendant admitted to his habitual felon status and was

sentenced by the trial court. Thereafter, defendant entered his notice of appeal in

open court.

II. Jurisdiction

This Court has jurisdiction over this appeal pursuant to N.C. Gen. Stat. §§ 7A-

27(b) and 15A-1444(a) (2023).

III. Analysis

Defendant presents two issues on appeal: (1) whether the trial court made

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findings of fact to support its conclusion of law that the stop was lawfully extended,

and (2) whether the trial court erred in denying defendant’s motion to suppress.

Below, we address each of defendant’s arguments.

A. Standard of Review

“A trial court’s ruling on a motion to suppress is afforded great deference upon

appellate review as it has the duty to hear testimony and weigh the evidence.” State

v. Cobb, 381 N.C. 161, 164, 872 S.E.2d 21, 25 (2022) (citations omitted). Our review

of the trial court’s order is “strictly limited to determining whether the trial judge’s

underlying findings of fact are supported by competent evidence, in which event they

are conclusively binding on appeal, and whether those factual findings in turn

support the judge’s ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134,

291 S.E.2d 618, 619 (1982). Left unchallenged on appeal, findings of fact are “deemed

to be supported by competent evidence and are binding on appeal.” State v. Biber, 365

N.C. 162, 168, 712 S.E.2d 874, 878 (2011). Conclusions of law are reviewed de novo.

See Cobb, 381 N.C. at 164, 872 S.E.2d at 25; see also State v. Faulk, 256 N.C. App.

255, 262, 807 S.E.2d 623, 628–29 (2017).

B. The Trial Court’s Order

Defendant argues that the trial court failed to make sufficient findings of fact

to support its conclusion of law that the traffic stop was not unconstitutionally

prolonged. He erroneously contends that only four findings of fact contained in the

trial court’s order address the contested conclusion of law:

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[D]efendant stood at the window of [Lt.] Bass’s patrol car. [Lt.] Bass told [ ] defendant he would issue a speeding citation and defendant said he was going down a hill and [Lt.] Bass told him he was not.

The power failed on [Lt.] Bass’s computer and he returned defendant’s license and registration.

[Lt.] Bass requested consent to search and defendant said no.

[Lt.] Bass utilized his [canine] to conduct a free air sniff of defendant’s vehicle and the [canine] gave a positive alert for the odor of narcotics to the seam of the driver’s door near the handle.

Furthermore, defendant maintains that these findings are incomplete and do not

support the challenged conclusion of law.

Defendant does not clearly contest the findings of fact but claims they are

incomplete. In an abundance of caution, we first carefully review the record to

evaluate those findings of fact. During the suppression hearing, Lt. Bass testified

that after returning to his patrol car, he planned to issue defendant a citation for

speeding, but the power failed for his computer and printer. Hence, Lt. Bass gave

defendant a verbal warning instead, and defendant took this opportunity to explain

that he was traveling downhill. In disagreement, Lt. Bass retorted that defendant

was not going downhill when clocked on the radar. As he returned the driver’s license

and registration, Lt. Bass asked about the presence of illegal drugs and requested to

search the vehicle. Defendant denied the presence of illegal drugs and declined the

request to search his vehicle. Then the canine, already present on the scene with Lt.

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Bass, performed a “free-air sniff” around defendant’s vehicle. The canine “alerted to

the odor of narcotics” at the driver’s door. To the extent defendant challenges these

findings of fact, we hold that they are sufficiently supported by competent evidence.

Defendant contends that the foregoing findings of fact fail to support the

challenged conclusion of law for the reasons that (1) they imply that the stop was not

over because Lt. Bass was still taking action related to the purpose of the stop, and

(2) they omit the bulk of the events which occurred when the stop was

unconstitutionally extended. Therefore, defendant claims that this matter must be

remanded for the trial court to clarify its findings of fact and conclusion of law

regarding the extension of the traffic stop. As a preliminary matter, we note that

since the challenged findings of fact are adequately supported by competent evidence,

all of the findings contained in the trial court’s order are conclusively binding on

appeal. See State v. Biber, 365 N.C. at 168, 712 S.E.2d at 878; see also State v. Byrd,

287 N.C. App. 276, 279, 882 S.E.2d 438, 440 (2022) (holding that unchallenged

findings of fact are binding on appeal). Significant here and discussed in greater

detail below, defendant overlooks the unchallenged finding contained in the trial

court’s order that “[Lt.] Bass observed marijuana residue on the passenger floorboard

and could smell the faint odor of marijuana.” This observation was made while the

mission of the traffic stop was ongoing, during Lt. Bass’s initial approach of

defendant’s vehicle and before returning to his patrol car with defendant’s

registration. The trial court’s order also included an unchallenged finding that Lt.

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Bass had worked in crime interdiction since 2003. Moreover, several unchallenged

findings in the trial court’s order described defendant’s nervous behavior and peculiar

movements. As explained in the following section, our de novo review examining the

constitutionality of the traffic stop’s extension shows that the challenged legal

conclusion is adequately supported by the findings of fact.

C. Extension of the Traffic Stop

Defendant maintains that the trial court erred in both denying his motion to

suppress and determining that the traffic stop was not unconstitutionally prolonged.

Specifically, defendant challenges the legal sufficiency of the trial court’s conclusion

“that the stop was not prolonged and [Lt.] Bass had probable cause to search the

defendant’s vehicle based on his observation of marijuana residue on the passenger

floorboard and faint odor of marijuana.” Citing Rodriguez v. United States, defendant

maintains that the traffic stop ended when his license and registration were returned,

and the required reasonable suspicion to extend the stop did not exist. 575 U.S. 348,

135 S. Ct. 1609 (2015).

“Under Rodriguez, the duration of a traffic stop must be limited to the length

of time that is reasonably necessary to accomplish the mission of the stop . . . unless

reasonable suspicion of another crime arose before that mission was completed[.]”

State v. Bullock, 370 N.C. 256, 257, 805 S.E.2d 671, 673 (2017) (emphasis added)

(citing Illinois v. Caballes, 543 U.S. 405, 407, 125 S. Ct. 834, 836 (2005)). And

“investigations into unrelated crimes during a traffic stop, even when conducted

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without reasonable suspicion, are permitted if those investigations do not extend the

duration of the stop.” Id. at 258, 805 S.E.2d 674. In any event, extending a traffic

stop is permissible if law enforcement finds a reasonable articulable suspicion of

criminal activity that justifies further delay of the stop’s conclusion. See id. at 257,

805 S.E.2d 673; see also State v. Heien, 226 N.C. App. 280, 286, 741 S.E.2d 1, 5 (2013)

(“Once the purpose of the stop has been addressed, there must be grounds which

provide a reasonable and articulable suspicion in order to justify further delay.”). The

threshold for reasonable articulable suspicion of criminal activity requires only “a

minimal level of objective justification, something more than an unparticularized

suspicion or hunch.” State v. Campbell, 359 N.C. 644, 664, 617 S.E.2d 1, 14 (2005)

(internal quotation marks and citation omitted). “A court must consider the totality

of the circumstances—the whole picture in determining whether a reasonable

suspicion . . . exists.” Id. at 664, 617 S.E.2d at 14 (internal quotation marks and

citation omitted).

While waiting for defendant to produce his registration, Lt. Bass smelled a

faint odor of marijuana and saw what he believed to be marijuana residue on the

floorboard of the vehicle. Defendant disputes the veracity of this evidence, but upon

“examining the trial court’s order, we do not ‘reweigh the evidence and make our own

factual findings on appeal, a task for which an appellate court like this one is not well

suited.’” State v. Rodriguez, 371 N.C. 295, 319, 814 S.E.2d 11 (2018) (quoting State

v. Corbett, 376 N.C. 799, 822, 855 S.E.2d 228, 245 (2021)). Invoking this Court’s

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ruling in State v. Parker, defendant argues that the scent of marijuana alone cannot

“establish criminal activity of another substance” since it smells “indistinguishable”

from hemp, which is legal in North Carolina. 277 N.C. App. 531, 540, 860 S.E.2d 21,

28 (2021); see also N.C. Gen. Stat. § 106-568.50 (2023) (The Industrial Hemp Act).

While this case is not wholly inapplicable, it does not support defendant’s position.

In State v. Parker, this Court was called on to assess “whether the trial court’s order

correctly determined that the search of Defendant’s vehicle was supported by

probable cause.” 277 N.C. App. at 538, 860 S.E.2d at 27. In any event, no decision

was made as to “whether the scent or visual identification of marijuana alone remains

sufficient to grant an officer probable cause to search a vehicle” since law enforcement

“had more than just the scent of marijuana to indicate that illegal drugs might be

present in the car.” Id. at 541, 860 S.E.2d at 29. Even under the probable cause

standard, the United States Supreme Court has noted that it “requires only a

probability or substantial chance of criminal activity, not an actual showing of such

activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct. 2317, 2335 (1983).

Here, the question before us requires not a determination of probable cause

but consideration of whether the sight or smell of this substance meets the less

demanding standard of reasonable suspicion, required to extend the traffic stop

beyond the length of time that is reasonably necessary to accomplish its mission. See

Rodriguez v. United States, 575 U.S. 348, 135 S. Ct. 1609; see also State v. Bullock,

370 N.C. 256, 258, 805 S.E.2d 671, 674 (2017) (“The reasonable suspicion standard is

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“a less demanding standard than probable cause” and a “considerably less

[demanding standard] than preponderance of the evidence.” (quoting Illinois v.

Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673 (2000)). Extension of the stop must be

supported by reasonable suspicion, a determination which “need not rule out the

possibility of innocent conduct.” United States v. Arvizu, 534 U.S. 266, 277, 122 S.

Ct. 744, 753 (2002). And even where “the conduct justifying the stop [is] ambiguous

and susceptible of an innocent explanation,” “officers [may] detain the individuals to

resolve the ambiguity.” Illinois v. Wardlow, 528 U.S. at 125, 120 S. Ct. at 677.

Defendant posits that the sight or smell of marijuana does not permit the

extension of a traffic stop and seeks to analogize this matter with this Court’s decision

in State v. Cabbagestalk, 266 N.C. App. 106, 113-14, 830 S.E.2d 5, 10-11 (2019)

(holding that an officer lacked reasonable suspicion to stop the defendant for driving

while impaired, in violation of N.C. Gen. Stat. 20-138.1 (2023), after observing the

defendant drinking a beer and driving a car two hours later without any evidence of

impairment). However, a comparison of the facts and alleged crimes of each case

reveal that defendant’s position is untenable. The driving while impaired statute

states, in relevant part: “A person commits the offense of impaired driving if he drives

any vehicle upon any highway, any street, or any public vehicular area within this

State: (1) While under the influence of an impairing substance; or (2) After having

consumed sufficient alcohol that he has, at any relevant time after the driving, an

alcohol concentration of 0.08 or more. . . .” N.C. Gen. Stat. § 20-138.1. The facts of

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Cabbagestalk displayed insufficient reasonable suspicion as to one element of the

alleged crime. The applicable drug statute states, in relevant part: “Except as

authorized . . . it is unlawful for any person . . . [t]o possess a controlled substance.”

N.C. Gen. Stat. § 90-95 (2023). And marijuana remains a controlled substance under

N.C. Gen. Stat. § 90-94 (2023). In contrast to the impaired driving case, the trial

court’s order contains findings of fact that address all elements of the alleged crime.

Thus, we next consider whether the contested conclusion, undergirded by the trial

court’s findings, survives constitutional demands.

Similar to this Court’s decision in State v. Teague, we find the analyses of the

federal courts of North Carolina instructive. 286 N.C. App. 160, 179, 879 S.E.2d 881,

896 (2022) (discretionary review denied State v. Teague, 385 N.C. 311, 891 S.E.2d 281

(2023)). When addressing the higher standard of probable cause, the United States

District Court for the Eastern District of North Carolina noted that “the smell of

marijuana alone . . . supports a determination of probable cause, even if some use of

industrial hemp products is legal under North Carolina law. This is because ‘only

the probability, and not a prima facie showing, of criminal activity is the standard of

probable cause.’” United States v. Harris, No. 4:18-CR-57-FL-1, 2019 U.S. Dist.

LEXIS 211633, at *9 (E.D.N.C. Dec. 9, 2019) (quoting Illinois v. Gates, 462 U.S. 213,

103 S. Ct. 2317 (1983)). The United States District Court for the Western District of

North Carolina has taken a similar approach when addressing the defendant’s claim

that “the alleged contraband found in his vehicle could have been legal hemp not

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marijuana. . . .” United States v. Brooks, No. 3:19-CR-00211-FDW-DCK, 2021 U.S.

Dist. LEXIS 81027, at *10 (W.D.N.C. Apr. 28, 2021). There, the court concluded that

“even with the social acceptance of marijuana seeming to grow daily, precedent on

the plain odor of marijuana giving law enforcement probable cause to search has not

been overturned.” Id. at *13. Moreover, when considering an analogous issue, the

United States Court of Appeals for the Fourth Circuit held that a glass stem pipe in

plain view, which “may be put to innocent uses” provided sufficient probable cause to

search a vehicle. United States v. Runner, 43 F.4th 417, 423 (4th Cir. 2022). The

court held that “[d]espite the increased use of glass pipes to ingest legal substances

such as CBD oil, it is still reasonable that a police officer would reach the belief that

a glass pipe was evidence of a crime supporting probable cause.” Id. at 422.

As this Court determined in State v. Teague, “[t]he passage of the Industrial

Hemp Act, in and of itself, did not modify the State’s burden of proof at the various

stages of our criminal proceedings.” 286 N.C. App. at 179, 879 S.E.2d at 896. Thus,

our de novo review of this matter leads us to conclude that the traffic stop was not

unlawfully extended, and the trial court did not err in concluding the same.

Considering the totality of the circumstances, there was at least “a minimal level of

objective justification, something more than an unparticularized suspicion or hunch”

of completed criminal activity—possession of marijuana. State v. Campbell, 359 N.C.

at 664, 617 S.E.2d at 14. We hold that the stop of defendant was not extended in

contravention of his constitutional rights. Therefore, the trial court did not err in

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denying defendant’s motion to suppress, and this assignment of error is overruled.

IV. Conclusion

The trial court properly denied defendant’s motion to suppress. For the

reasons set forth above, we hold that (1) to the extent defendant challenges the trial

court’s findings of fact, they are adequately supported by competent evidence, (2) the

trial court made sufficient findings of fact to support the challenged conclusion of law,

and (3) the trial court did not err in denying defendant’s motion to suppress and

determining that the traffic stop was not unconstitutionally prolonged.

NO ERROR.

Chief Judge DILLON and Judge COLLINS concur.

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