IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-64
Filed 15 October 2024
Forsyth County, No. 20 CRS 057505
STATE OF NORTH CAROLINA
v.
TERREL DAWAYNE ROWDY
Appeal by Defendant from judgment entered 7 June 2023 by Judge Eric C.
Morgan in Forsyth County Superior Court. Heard in the Court of Appeals 28 August
2024.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Alan D. McInnes, for the State.
Stephen D. Fuller for the Defendant.
WOOD, Judge.
Terrel Dawayne Rowdy (“Defendant”) appeals from a jury conviction finding
him guilty of carrying a concealed weapon in violation of N.C. Gen. Stat. § 14-269(A1).
On appeal, Defendant argues the trial court erred when it denied his motion to
suppress evidence of the firearm seized pursuant to a vehicular search. Defendant
contends that the events following the law enforcement officer’s investigatory stop
due to a traffic violation were unlawful. Specifically, Defendant argues the officers
lacked sufficient grounds to conduct a Terry frisk and lacked probable cause to search STATE V. ROWDY
Opinion of the Court
his vehicle. For the reasons stated below, we affirm the trial court’s order denying
Defendant’s motion to suppress and hold Defendant received a trial free from error.
I. Factual and Procedural Background
On 26 July 2020, Forsyth County Sheriff Deputy Brandon Baugus was
patrolling the area of Rural Hall. At approximately 3:45 p.m., Deputy Baugus was
stationed at a parking lot observing the traffic on a nearby intersection. At this time,
he observed the following: two vehicles approached the intersection and entered the
left-hand turning lane; the vehicles were in the same lane of travel, with the front
vehicle waiting to make the turn; the car in the rear, a Blue Ford Mustang, moved
into the oncoming lane of traffic, accelerated past the other vehicle, and made a left
turn. Recognizing this traffic violation, Deputy Baugus activated his blue lights and
sirens and pursued the Mustang to conduct a traffic stop.
Despite Deputy Baugus’ lights and sirens, the operator of the Mustang
continued to drive and did not immediately heed to the officer’s show of authority.
The vehicle then entered the parking lot of the West Wall Street Apartments. Deputy
Baugus again activated his siren several times in the parking lot to get the vehicle to
stop, but the Mustang drove further into the parking lot. Eventually, the Mustang
went in reverse, as if it was backing into a parking space, and stopped; Deputy
Baugus parked his vehicle at the rear of the Mustang.
Deputy Baugus approached the Mustang and initiated conversation with the
driver, Defendant, through the open passenger side window. Deputy Baugus
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informed Defendant that he was pulled over for a traffic violation and Defendant
promptly provided his license and registration. During this short interaction, Deputy
Baugus smelled an odor of marijuana emitting from Defendant’s vehicle. Deputy
Baugus then returned to his patrol vehicle to verify Defendant’s information and
check for outstanding warrants. He learned Defendant had a prior record of narcotics
offenses and a prior conviction for carrying a concealed gun. As Deputy Baugus
reviewed the information, Deputy M.D. Mitchell was nearby and arrived to assist him
at the traffic stop.
Deputy Baugus briefed Deputy Mitchell on the situation, asked him to obtain
a current address from Defendant, and informed him that he detected an odor of
marijuana in Defendant’s vehicle. Upon Deputy Mitchell’s return, he confirmed the
odor. The officers went back to Defendant’s vehicle and asked him to step out of the
vehicle. Deputy Baugus asked Defendant why the odor was coming from his vehicle,
if he had been smoking, and if he had been around someone who had smoked
marijuana. Defendant responded “no” to each of the questions. As Deputy Baugus
continued his questioning regarding the odor, Defendant stopped answering his
questions and began speaking on his cell phone. Deputy Baugus told him he could
not answer questions and speak on his phone at the same time, to which Defendant
responded by “blading” his body away from Deputy Baugus at a 45-degree angle
toward the vehicle. According to Deputy Baugus “blading” is “a detection device of
someone who is getting confrontational or who is attempting to avoid conversation
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with you.”
After Defendant disengaged from the conversation, the officers detained him
but told him he was not under arrest. For the officer’s safety, Deputy Mitchell frisked
Defendant to ensure he did not have any weapons on him. According to Deputy
Baugus it is “common practice” to frisk anyone that was detained. As a result of the
frisk, Deputy Mitchell felt a “cylindrical object” in Defendant’s left front pants pocket,
which he discovered was a “blunt.” Due to the odor and the officers’ training and
experience, they suspected it was a marijuana blunt. Deputy Baugus then performed
a search of Defendant’s vehicle and found the gun at issue in this case.
On 30 November 2020, a grand jury indicted Defendant for carrying a
concealed weapon, pursuant to N.C. Gen. Stat. § 14-269(A1) and § 14-269(C), and
possession of a stolen firearm. Defendant filed a motion to suppress on 28 April 2023.
Defendant argues that the basis for the search, seizure, and arrest arose from the
officer’s opinion that the odor of marijuana was coming from Defendant’s vehicle.
However, Defendant contends, there is no factual way to differentiate between legal
hemp and illegal marijuana, so the basis of odor alone is insufficient to identify the
substance. Defendant asserts that because of the similarities between hemp and
marijuana in both odor and appearance, the officers lacked probable cause to search
him and the vehicle. Defendant further contends that without confirmation that odor
emanated from an illegal substance, the officers acted under the presumption that it
was marijuana resulting in an unlawful search. Defendant argues because the
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officers lacked probable cause, the search that led to the seizure of the gun was also
unlawful. In Defendant’s motion, he asked the trial court to suppress all evidence
obtained as a result of the illegal search, seizure, and detention of Defendant.
On 5 June 2023, the trial court held an evidentiary hearing on Defendant’s
motion to suppress. By written order, the court denied Defendant’s motion to
suppress. The court found as follows: Deputy Baugus lawfully stopped Defendant
after he observed a traffic violation; Defendant did not immediately pull over and
drove to the West Wall Apartment complex; Deputy Baugus knew the area was a high
crime area; Deputy Baugus detected an odor of marijuana in Defendant’s vehicle;
Deputy Baugus was informed Defendant had prior offenses for narcotics and carrying
a concealed gun; Mitchell also observed a “strong” odor of marijuana; and Defendant
stopped answering questions and turned his body away from the officers. The trial
court concluded that the officer’s decision to frisk Defendant was based on specific
and articulable facts. Moreover, following the frisk and discovery of the “blunt,” there
was probable cause to search the vehicle. Because the search of Defendant and his
vehicle was lawful, the trial court denied Defendant’s motion to suppress.
On 7 June 2023, a jury found Defendant guilty of carrying a concealed weapon
but not guilty of possession of a stolen firearm. He was sentenced to a term of eight
to nineteen months of imprisonment, suspended for thirty months of supervised
probation. Defendant gave oral notice of appeal at trial.
II. Analysis
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On appeal, Defendant argues the trial court erred by denying his motion to
suppress, specifically challenging certain findings of fact and conclusions of law
regarding: (1) the officer’s detection of marijuana based on odor; (2) the Terry frisk;
and (3) the establishment of probable cause to search Defendant’s vehicle. Defendant
further argues that, due to these errors, the trial court plainly erred by denying his
motion to suppress and by admitting the gun into evidence.
A. Motion to Suppress
The scope of review of a motion to suppress 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) (citations omitted). “We accord
great deference to a trial court’s findings of fact, as it is entrusted with the duty to
hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and
then based upon those findings, render a legal decision.” State v. Knudsen, 229 N.C.
App. 271, 275, 747 S.E.2d 641, 645 (2013) (cleaned up). When “the trial court’s
findings of fact are not challenged on appeal, they 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) (citation omitted). “Conclusions of law, however, are reviewed
de novo” meaning, “the court considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” State v. Faulk, 256 N.C. App. 255, 262, 807
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S.E.2d 623, 629 (2017) (cleaned up).
1. Challenged Findings of Fact
Defendant first argues the following findings of fact are not supported by
competent evidence:
9. As he received the license and registration from Defendant, Deputy Baugus was only at the window of the Blue Mustang for a very short time, and he observed a faint odor of marijuana coming from the interior of the Blue Mustang.
16. Deputy Mitchell approached the Defendant, and asked him to roll the window down. While he was speaking to the Defendant, Deputy Mitchell observed a strong odor of marijuana coming from the Blue Mustang.
22. Defendant was frisked by Deputy Mitchell, and, during that frisk, Deputy Mitchell pulled a “blunt” out of the Defendant’s left front pants pocket, and placed it on the spoiler of the Blue Mustang. When Deputy Mitchell pulled the “blunt” out, he informed the Defendant that it was “marijuana”. The Defendant did not, at any point, claim that he possessed industrial hemp.
23. The blunt removed from Defendant’s pocket appeared to be, in the training and experience of both Deputy Baugus and Deputy Mitchell, a marijuana “blunt.”
Each of the challenged findings relate to the odor of marijuana and the contents of
the “blunt.” Defendant argues there is insufficient evidence to support these findings
and directs us to: (1) an SBI Memo explaining the difficulties in differentiating
between legal hemp versus illegal marijuana due to the similarities in odor and
appearance, and (2) the officer’s testimony at the hearing that they could not identify
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that the odor or “blunt” was marijuana as opposed to legal hemp. Thus, Defendant
argues there is no evidence that the substance the officers smelled and recovered was
illegal marijuana, rather than legal hemp. Defendant’s argument is misplaced
because the legalization of hemp does not eliminate the significance of the officer’s
detection of an odor of marijuana for the purposes of determining probable cause.
Here, the trial court found that Deputy Baugus received training on marijuana
and on the identities, textures, and odor of marijuana; Mitchell received training to
identify drugs, including weekly training with K-9’s as to the detection of narcotics;
Mitchell has identified marijuana hundreds of times in his years on patrol; and
Mitchell investigated cases involving marijuana “blunts” hundreds of times.
Accordingly, both officers were trained and had experience in identifying marijuana
by sight and smell.
This Court analyzed similar challenged findings in State v. Dobson, ___ N.C.
App. ___, 900 S.E.2d 231 (2024). In that case, the defendant argued “in light of the
advent of legal hemp, it is now impossible for any law enforcement officer—whether
human or canine—to identify ‘the odor of marijuana’ with only her nose.” Id. at ___,
900 S.E.2d at 234. Like the present case, the defendant contended that the odor may
be marijuana, but it also could be legal hemp. The Court in Dobson overruled the
defendant’s argument and concluded:
[C]ontrary to Defendant’s arguments, the legalization of industrial hemp did not eliminate the significance of detecting “the odor of marijuana” for the purposes of a
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motion to suppress. The legalization of industrial hemp “has not changed the State’s burden of proof to overcome a motion to suppress.” Teague, 286 N.C. App. at 179 n.6, 879 S.E.2d at 896 n.6.
Indeed, to the extent that Defendant challenges these portions of the trial court’s findings of fact because of their potential to suggest, by implication, that the officers actually smelled marijuana, any such concern is irrelevant to the dispositive issue. Ultimately, the significance of these findings is that the officers smelled the odor of marijuana, an odor that we have previously concluded continues to implicate the probable cause determination despite the legalization of industrial hemp.
Id. at ___, 900 S.E.2d at 234.
Similarly, in Little, the defendant relied on the SBI memo and argued “the trial
court should have made a finding of fact that hemp and marijuana are
indistinguishable by smell or appearance and that this fact requires a conclusion that
the officers did not have probable cause to conduct the search.” State v. Little, No.
COA23-410, 2024 WL 4019033, at *3 (N.C. Ct. App. Sept. 3, 2024). There, the trial
court made findings that three law enforcement officers smelled and observed what
they believed to be marijuana, and the defendant did not claim it was hemp. Id. at
*7. The Court in Little stated, “[e]ven if industrial hemp and marijuana look and
smell the same, the change in the legal status of industrial hemp does not
substantially change the law on the plain view or plain smell doctrine as to
marijuana.” Id. at *9. This Court ultimately held that the trial court’s findings
supported its conclusion that there was probable cause to search the defendant’s
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vehicle, because the officer had a reasonable belief that the substance he smelled, and
saw was marijuana. Id. at *9.
Here, too, Defendant argues there was insufficient evidence that the recovered
substance was marijuana based on the smell and appearance. As in Little, there was
evidence presented to the trial court that, based on the officers’ training and
experience, the officers smelled and observed marijuana, and Defendant did not claim
he possessed legal hemp. Moreover, the officers had a reasonable belief that the
substance was marijuana. The trial courts findings of fact “adequately addressed this
evidence” and were supported. Little, 2024 WL 4019033, at *7. Thus, in view of Little,
we hold that Defendant’s challenged findings of fact are supported by competent
evidence.
We further note, Defendant’s arguments are grounded in policy, identifying
the future challenges of distinguishing between the two substances. However, the
duty of this Court when reviewing challenged findings of fact is to determine whether
those facts are supported by competent evidence, considering the evidence presented
to the trial court. Cooke, 306 N.C. at 134, 291 S.E.2d at 619. The role of this Court is
to make decisions based on the law not on policy. When viewing the record and
evidence presented at the hearing, the trial court heard testimony from the officers
that they detected an odor of marijuana; that both officers had experience and
training in identifying marijuana; that Defendant did not at any time claim to the
officers that he possessed or used legal hemp; and when Deputy Baugus asked
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Defendant about the odor, if he had any marijuana, and if he had been smoking
marijuana, Defendant responded, “No.” Defendant’s policy arguments do not call into
question the competency of this evidence. See Little, 2024 WL 4019033, at *4 (noting
the trial court correctly refused to take judicial notice of the SBI memo and that this
Court has not previously “accorded the [SBI] [m]emo the status of binding law.”
(citations omitted)). Thus, Defendant’s arguments, even if reasonable, do not alter
the scope of our review and we hold the challenged findings are supported by
competent evidence.
2. Terry Frisk
Defendant next argues that the trial court erred when it concluded the frisk of
Defendant was lawful, as the officers lacked reasonable suspicion that he was armed
and dangerous. Defendant does not challenge the lawfulness of the traffic stop or the
duration of the stop, thus those issues are deemed abandoned on appeal. N.C. R. App.
P. 28(a). Our review is therefore limited to whether the trial court’s findings support
its conclusions of law, under a de novo standard, that the frisk of Defendant was
lawful.
“During a lawful stop, ‘an officer may conduct a pat down search, for the
purpose of determining whether the person is carrying a weapon, when the officer is
justified in believing that the individual is armed and presently dangerous.’ ” State v.
Johnson, 246 N.C. App. 677, 692, 783 S.E.2d 753, 764 (2016) (citation omitted). The
purpose of a Terry frisk is for the “protection of the police officer” and it is “justified
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by the legitimate and weighty interest in officer safety.” Id. (cleaned up). This Court
has stated, in many circumstances, “once the defendant is outside the automobile, an
officer is permitted to conduct a limited pat down search for weapons if he has a
reasonable suspicion based on articulable facts under the circumstances that
defendant may be armed and dangerous.” State v. Briggs, 140 N.C. App. 484, 488,
536 S.E.2d 858, 860 (2000) (citation omitted). However, the search is limited to “the
person’s outer clothing and to [a] search for weapons that may be used against the
officer.” State v. Shearin, 170 N.C. App. 222, 226, 612 S.E.2d 371, 375–76 (2005)
(citation omitted). It is well-established that the key inquiry is “whether a reasonably
prudent man in the circumstances would be warranted in the belief that his safety or
that of others was in danger.” State v. King, 206 N.C. App. 585, 589, 696 S.E.2d 913,
915 (2010) (cleaned up). Moreover, “the officer need not be absolutely certain that
the individual is armed” and is “entitled to formulate common-sense conclusions . . .
in reasoning that an individual may be armed.” Id. (cleaned up).
Here, the trial court concluded that the frisk was lawful because Defendant
failed to immediately pull over and instead pulled into the West Wall Apartments
which in the officer’s experience, was known to be a high crime area; Deputy Baugus
was aware that Defendant had prior convictions for narcotics and carrying a
concealed gun; Defendant stopped answering questions and bladed, or turned, his
body away from the officers, while remaining on his cell phone; and the officers
smelled an odor of marijuana from Defendant’s car. Defendant argues that his
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“blading” may not be considered under this analysis because it was merely an attempt
to disengage from the officer’s incriminating questioning. Defendant also argues the
trial court’s finding that he pulled into a high crime area is irrelevant because the
record suggests no connection between Defendant and the criminal activity at the
West Wall Apartments. To the contrary, Defendant suggests it was merely a location
that he pulled into as a result of the traffic stop. We are unpersuaded.
In State v. Scott, this Court recognized that “each of these factors, standing
alone, might not be sufficient to justify a weapons frisk.” State v. Scott, 287 N.C. App.
600, 605-06, 883 S.E.2d 505, 510-11 (2023) (citations omitted). However, this Court
is instructed to “examine the totality of the circumstances surrounding [the officer’s]
interaction with [D]efendant in order to achieve a comprehensive analysis as to
whether the officer’s conclusion that [D]efendant may have been armed and
dangerous was reasonable.” Id. at 606, 883 S.E.2d at 511 (citation omitted). Thus,
we consider each of the trial court’s findings to determine whether there was a
reasonable suspicion that Defendant was armed and dangerous under the totality of
the circumstances.
First, our Supreme Court has noted the potential dangers of associating an
individual’s location with an assumption of criminal activity. It instructed that such
an association, in isolation, is not sufficient to “establish the existence of reasonable
suspicion.” State v. Jackson, 368 N.C. 75, 80, 772 S.E.2d 847, 850 (2015). However,
it also stated in that case “[the] defendant was walking in, and the stop occurred in,
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a ‘high crime area’ which is among the relevant contextual considerations in a Terry
analysis.” Id. (cleaned up). In the case sub judice, Defendant pulled into the West
Wall Apartments, which both officers knew, from training and experience, was a high
crime area. We acknowledge that Defendant’s decision to pull over into this complex,
by itself, does not establish a connection between his presence and criminal activity.
Notwithstanding, the trial court found the following unchallenged findings of fact:
Defendant did not immediately stop in response to the blue lights and sirens but
proceeded into the parking lot of the apartments; Defendant again did not
immediately stop when Deputy Baugus activated his siren several more times, and
Defendant put his car into reverse as if to back into a parking space. See State v.
Jordan, 120 N.C. App. 364, 367, 462 S.E.2d 234, 237 (1995) (considering the
defendant’s failure to immediately pull over in response to the officer’s lights in
reasonable suspicion analysis.).
As to Defendant’s convictions, our Supreme Court recognized, “[s]tanding
alone, defendant’s criminal record for which defendant has already paid his debt to
society does not constitute reasonable suspicion.” State v. Johnson, 378 N.C. 236, 245,
861 S.E.2d 474, 484 (2021). In the same regard, it acknowledged that it could be
considered under the totality of the circumstances test, by holding the court could
consider that the defendant “possessed a criminal history which depicted a trend in
violent crime.” Id. 378 N.C. at 246, 861 S.E.2d at 484 (cleaned up). Here, Defendant
had prior convictions for narcotics and carrying a concealed gun. Additionally, when
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Deputy Baugus learned of Defendant’s criminal record, he received information from
communications to “approach [Defendant] with caution.” See Scott, 287 N.C. App. at
606, 883 S.E.2d at 511 (This Court considered that the officer received “caution data
revealing [the defendant’s] prior charge of murder and gang involvement” when
analyzing the reasonableness of the weapons frisk.). In addition to Defendant’s
convictions, Deputy Baugus was aware that the West Wall Apartments was an area
with many police calls, high crime, and numerous reports of narcotics.
Next, Deputy Baugus testified “[blading] is a detection device of someone who
is getting confrontational or who is attempting to avoid conversation with you.”
Further, “[Defendant] had stopped answering all questions and informed [the
officers] that he was on the phone and then turned away from us.” In State v.
Malachi, this Court included “blading” when analyzing whether the officer had a
reasonable suspicion under the totality of the circumstances. State v. Malachi, 264
N.C. App. 233, 239, 825 S.E.2d 666, 671 (2019). There, this Court considered that the
defendant “turned his body in such a way as to prevent the officer from observing a
weapon.” Id. at 237, 825 S.E.2d at 670. Here too, Defendant turned his body away
from the officer’s and stopped answering their questions. Although Defendant was
not required to answer the officers’ questions, his posture of turning away from the
officers, “blading,” is relevant to our consideration of the fact before us. Moreover,
“an officer’s experience and training can create reasonable suspicion. Defendant’s
actions must be viewed through the officer’s eyes.” State v. Watson, 119 N.C. App.
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395, 398, 458 S.E.2d 519, 522 (1995) (citations omitted).
Looking at the totality of the circumstances, we conclude that the factors
identified by the trial court are sufficient for an officer to believe that Defendant was
armed and dangerous. Defendant failed to immediately pull over after Deputy
Baugus turned on his lights and siren; subsequently pulled into an area that the
officer knew was a high crime location; Deputy Baugus was notified of Defendant’s
prior convictions and was to “proceed with caution;” and Defendant turned his body
away from the officers, which Deputy Baugus testified is a sign that an individual
“may become confrontational.” While “reasonable suspicion demands more than a
mere ‘hunch’ on the part of the officer,” it “requires only some minimal level of
objective justification.” Scott, 287 N.C. App. at 605, 883 S.E.2d at 510 (cleaned up).
When viewing the evidence and the interaction between the officers and Defendant,
under the totality of the circumstances, we hold the officers had “objective
justification” when Deputy Mitchell frisked Defendant. Thus, the trial court did not
err when it concluded that the frisk was reasonable and lawful.
3. Probable Cause
Defendant next contends that the officers lacked probable cause to search his
vehicle despite finding a “blunt” in his pocket. Defendant makes similar assertions
as above, arguing that the officers could not have probable cause to seize the blunt
since the item could have been legal hemp. Likewise, it could not be “immediately
apparent” that the object was marijuana when there is no practicable way to tell the
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substance is marijuana as opposed to legal hemp. Defendant urges this Court to hold
that without the discovery of the blunt, the officers did not have probable cause to
search his vehicle, thus the evidence concerning the recovery of the gun should have
been suppressed. We do not deem it necessary to consider Defendant’s arguments
concerning the blunt, as the search of Defendant’s vehicle was lawful and supported
by probable cause without the discovery of the blunt. The odor of marijuana
emanating from the vehicle provided probable cause.
“A police officer in the exercise of his duties may search an automobile without
a search warrant when the existing facts and circumstances are sufficient to support
a reasonable belief that the automobile carries contraband materials.” State v.
Degraphenreed, 261 N.C. App. 235, 241, 820 S.E.2d 331, 336 (2018) (citation omitted).
“An officer has probable cause to believe that contraband is concealed within a vehicle
when given all the circumstances known to him, he believes there is a ‘fair probability
that contraband or evidence of a crime will be found’ therein.” State v. Ford, 70 N.C.
App. 244, 247, 318 S.E.2d 914, 916 (1984) (citation omitted). Importantly, “[t]his
Court and our Supreme Court have repeatedly held that the odor of marijuana alone
provides probable cause to search the object or area that is the source of that odor.”
State v. Springs, 292 N.C. App. 207, 215, 897 S.E.2d 30, 37 (2024) (citations omitted)
(emphasis added); see State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441
(1981) (“[T]he smell of marijuana gave the officer probable cause to search the
automobile for the contraband drug.”); see also State v. Corpening, 200 N.C. App. 311,
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315, 683 S.E.2d 457, 460 (2009) (“The ‘plain smell’ of marijuana by the officer provided
sufficient probable cause to support a search and defendant’s subsequent arrest.”
(citation omitted)).
More recently, in State v. Guerrero, this Court explained “our case law made it
clear the legalization of hemp has no bearing on our Fourth Amendment
jurisprudence[.]” State v. Guerrero, 292 N.C. App. 337, 342, 897 S.E.2d 534, 538
(2024). There, this Court cited to Johnson, when it stated, “[t]he 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.’
” State v. Johnson, 288 N.C. App. 441, 457-58, 886 S.E.2d 620, 632 (2023) (citation
omitted). Moreover, “we have repeatedly applied precedent established before the
legalization of hemp, even while acknowledging the difficulties in distinguishing
hemp and marijuana in situ.” State v. Walters, 286 N.C. App. 746, 758-59, 881 S.E.2d
730, 739 (2022) (citations omitted). This Court, again, addressed a similar issue in
Little, when an officer immediately smelled a strong odor of marijuana in the
defendant’s vehicle after conducting a traffic stop and observed marijuana residue on
the floorboard of the vehicle. Little, 2024 WL 4019033, at *1. The Court in Little
stated, “[t]he issue is not whether the substance was marijuana or even whether the
officer had a high degree of certainty that it was marijuana,” rather, the issue is
“whether the discovery under the circumstances would warrant a man of reasonable
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caution in believing that an offense has been committed or is in the process of being
committed, and that the object is incriminating to the accused.” Id. at *9. In any
event, “the odor and sight of what the officers reasonably believed to be marijuana
gave them probable cause for the search.” Id. at *9.
Thus, consistent with this Court’s holdings, we follow well-established
precedent. Despite the alleged, indistinguishable similarities between illegal
marijuana and legal hemp, the odor or smell of marijuana “would warrant a man of
reasonable caution” to believe that the substance is of an incriminating nature. That
belief, based on smell or appearance, provides grounds for probable cause. Thus, the
odor of marijuana, alone, is sufficient to establish probable cause to search a vehicle.
In the present case, Deputy Baugus observed an odor of marijuana coming
from Defendant’s vehicle. Mitchell confirmed he also detected a “strong odor” of
marijuana when he spoke with Defendant. Deputy Baugus and Deputy Mitchell
testified about their training and experience in identifying marijuana. When
Defendant was questioned about the odor, he denied any affiliation with the
possession or use of marijuana; notably, at no time did he indicate that the substance
was hemp. Because “the smell of marijuana gave the officer probable cause to search
the automobile for the contraband drug[,]” the trial court did not err when it
concluded that the search of Defendant’s vehicle was lawful and proper. Greenwood,
301 N.C. at 708, 273 S.E.2d at 441 (1981); see State v. Walton, 277 N.C. App. 154, 160,
857 S.E.2d 753, 759–60 (probable cause to search the defendant’s vehicle was
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established when the officer smelled marijuana with “increasing intensity throughout
the traffic stop,” the officer provided testimony of his training and expertise in the
recognition of the odor of marijuana, and the police dog alerted the vehicle.). As a
final note, even if Deputy Baugus confused legal hemp for illegal marijuana, that
issue must be resolved under the beyond a reasonable doubt standard. See Little,
2024 WL 4019033, at *8 (“the issue here is not whether the officers could identify the
substance in [the] [d]efendant’s car as hemp or marijuana for purposes of proving the
elements of a criminal offense beyond a reasonable doubt.”). Whereas, here, at a
suppression hearing, the issue that must be resolved is whether there was evidence
to support the probable cause determination. See Id. *8 (citation omitted) (“The issue
for purposes of probable cause for the search is only whether the officer . . . had
reasonable basis to believe . . . that incriminating evidence would be found in the
vehicle.” (citation omitted)).
B. Admission of the Evidence
Defendant further argues that the trial court plainly erred in failing to
suppress the evidence of the gun, which was the basis of Defendant’s carrying a
concealed firearm conviction, because it was gathered as a result of (1) an
unconstitutional Terry frisk; and (2) an unconstitutional search of Defendant’s
vehicle. Defendant argues that had the motion to suppress been granted, the jury
would not have considered any evidence concerning the recovery of the gun, and thus
would not have convicted Defendant for possession of the gun. Defendant motioned
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pretrial to suppress all evidence obtained because of what he contends is an unlawful
Terry frisk and search of his vehicle; however, Defendant did not renew his objection
to the admission of the evidence at trial. Thus, this issue is unpreserved due to the
absence of an objection at trial and is reviewed on appeal under a plain error
standard. See N.C. R. App. P. 10(a)(4).
Because we hold, as discussed supra, that the Terry frisk and search of
Defendant’s vehicle was lawful, it is unnecessary to consider Defendant’s plain error
analysis regarding the failure of the trial court to suppress the evidence of the gun.
We conclude the trial court neither erred nor plainly erred in allowing the evidence.
III. Conclusion
For the foregoing reasons, we hold that the trial court’s findings of fact are
supported by competent evidence and the findings support its ultimate conclusions of
law. The trial court did not err by denying Defendant’s motion to suppress and did
not plainly err by admitting the gun into evidence. We hold Defendant received a fair
trial free from error.
NO ERROR.
Judge COLLINS concurs.
Judge ARROWOOD concurs by separate opinion.
- 21 - No. COA24-64 – State v. Rowdy
ARROWOOD, Judge, concurring.
I concur in the outcome of this case as bound by our precedent and In re Civil
Penalty, 324 N.C. 373 (1989), but write separately to highlight the need for the
Supreme Court to clarify this issue.
As the majority correctly notes, this Court has addressed whether the
perceived odor of marijuana is sufficient to constitute probable cause, most recently
addressed in State v. Dobson, ___ N.C. App. ____, 900 S.E.2d 231 (2024), and State v.
Little, No. COA23-410, 2024 WL 4019033, at *3 (N.C. Ct. App. Sept. 3, 2024).
Similarly in State v. Parker, 277 N.C. App. 531, 541 (2021), this Court was not
required to “determine whether the scent or visual identification of marijuana alone
remains sufficient to grant an officer probable cause to search a vehicle[,]” because
the defendant in Parker admitted to law enforcement officers that he had just smoked
marijuana and produced a partially smoked marijuana cigarette. Id.
Likewise in State v. Teague, this Court noted that “our appellate courts have
yet to fully address the effect of industrial hemp’s legalization on the panoply of
standards and procedures applicable during the various stages of a criminal
investigation and prosecution for acts involving marijuana,” (citing Parker, 277 N.C.
App. at 541), but held that “[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.” State v. Teague, 286 N.C. App. 160, 179 (2022) writ denied, review
denied, 891 S.E.2d 281 (N.C. 2023). The Teague Court discussed two federal cases it STATE V. ROWDY
ARROWOOD, J., concurring.
found persuasive, including United States v. Harris, No. 4:18-CR-57-FL-1, 2019 WL
6704996, at *3 (E.D.N.C. Dec. 9, 2019) (explaining 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 . . . because ‘only the probability,
and not a prima facie showing, of criminal activity is the standard of probable
cause.’ ”) and United States v. Brooks, No. 3:19-CR-00211-FDW-DCK, 2021 WL
1668048, at *4 (W.D.N.C. Apr. 28, 2021) (“[T]he presence of hemp does not make all
police probable cause searches based on the odor unreasonable. The law, and the
legal landscape on marijuana as a whole, is ever changing but one thing is still true:
marijuana is illegal.”).
We are bound by these opinions in like circumstances where a law enforcement
officer detects the odor of marijuana, the possessor does not claim that the odor came
from legal hemp, and the odorous substance was in fact marijuana. However, as the
SBI memo cautions, legal hemp and illegal marijuana have become increasingly
difficult to distinguish between, in detecting by odor or testing for chemical
composition. In light of these challenges and questions that have occurred since the
changes in the law regarding hemp, I respectfully suggest that this issue presents an
emerging issue that is ripe for our Supreme Court to address to assist in clarifying
for courts and law enforcement in light of the new legal landscape after the legislation
pertaining to hemp.