IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA23-682
Filed 1 October 2024
Mecklenburg County, Nos. 20CRS232458-59, 21CRS10389
STATE OF NORTH CAROLINA
v.
CODIE BRUCE SCHIENE
Appeal by defendant from judgment entered 30 January 2023 by Judge Matt
Osman in Mecklenburg County Superior Court. Heard in the Court of Appeals 21
February 2024.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Zachary K. Dunn, and Scott T. Stroud, for the State.
BJK Legal, by Benjamin J. Kull, for Defendant.
PER CURIAM.
Codie Bruce Schiene (“Defendant”) appeals from his convictions and judgment
entered pursuant to a guilty plea for possession of a firearm by a felon, felonious
possession of a stolen firearm, and attaining habitual felon status. Defendant argues
the trial court erroneously denied his motion to suppress physical evidence seized
from an automobile search. Defendant’s argument is based upon the purported
similarities between legal hemp and illegal marijuana, particularly the asserted
indistinguishable odor when identifying the two substances. We hold the trial court STATE V. SCHIENE
Opinion of the Court
correctly denied Defendant’s motion to suppress and affirm the order.
I. Facts and Procedural History
On 22 September 2020, Charlotte Mecklenburg Police Sergeant William Buie
(“Sgt. Buie”) and Officer Zachary Pegram (“Officer Pegram”) were on routine patrol.
Around 9:00 p.m., the officers inspected the parking lot of Baymont Inn in the area
of Scott Futrell Drive near the airport. Sgt. Buie had previously conducted drug
investigations at the Baymont Inn.
The majority of the vehicles in the parking lot were parked in the main parking
lot in front of the Baymont Inn. An additional overflow parking lot is located on the
side of the hotel. The officers observed two occupants inside a GMC Acadia, which
was backed into a parking spot in the far corner of the overflow parking lot on the
side of the hotel. Sgt. Buie testified the vehicle was parked in a space that gave the
occupants a good view of activity in the parking lot and provided a quick avenue of
escape for someone committing criminal acts or activity.
Sgt. Buie parked his marked patrol car about fifteen to twenty feet away from
the Acadia, and he and Officer Pegram approached the vehicle on foot. As Sgt. Buie
approached the vehicle, he detected an odor of unburned marijuana. Officer Pegram
did not initially smell marijuana.
Sgt. Buie approached the passenger side of the Acadia, while Officer Pegram
approached the driver’s side. Defendant was in the driver’s seat of the vehicle. His
nephew, Daquon Luckey (“Luckey”), was present in the passenger seat. Sgt. Buie
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initiated a conversation with Luckey through the passenger side window. As Luckey
rolled the window down to speak with Sgt. Buie, Sgt. Buie identified the odor he had
smelled earlier was stronger and coming from inside the Acadia.
Sgt. Buie asked Luckey to exit the vehicle. When Luckey opened the door, the
smell became stronger. Within ten seconds of when the officers first approached, Sgt.
Buie detained Luckey, and he requested Officer Pegram to go over to the passenger
side to detain Defendant. Sgt. Buie then conducted a search of the Acadia and found
a firearm, unburned marijuana, digital scales, and an identification of Defendant.
The marijuana found was unburned and described as a “leafy green substance in
nuggets, in Mason jars, as well as one nugget on the floorboard on the driver’s side.”
There was one Mason jar present on the driver’s seat and another inside of a book
bag, which dropped out when Defendant exited the vehicle. The Mason jar inside the
book bag had a top on it, but the one located on the vehicle’s driver’s side did not.
Thirty-five minutes after the initial encounter, Sgt. Buie read Miranda
warnings to Defendant. During those thirty-five minutes, Defendant had made
several statements to the officers.
On 12 July 2021, Defendant was indicted on possession of a firearm by a felon,
felonious possession of a stolen firearm, and attaining habitual felon status. On 19
August 2022, Defendant filed a motion to suppress the physical evidence seized and
all pre-Miranda warning statements he a had made during the encounter. On 8
September 2022, Defendant filed an Amended Motion to Suppress. A hearing on the
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motion was held on 23 September 2022.
The trial court made the following findings of fact:
4. Both Sgt. Buie and Officer Pegram had received training at the CMPD Policy Academy regarding drug identification, including learning to detect the order of both burnt and unburnt marijuana. Sgt. Buie has encountered suspected marijuana in the filed hundreds of times. Officer Pegram has encountered suspected marijuana in the field at least a hundred times.
5. Neither Sgt. Buie not Officer Pegram have received training to differentiate the odor or appearance of hemp from that of marijuana. Nor do they have field tests to determine the content of THC contained in suspected marijuana while on scene. . . .
9. In the officers’ training and experience, the location and positioning of the GMC Acadia could be indicative of illegal activity because the car was positioned in a way that provided a quick escape, that was distant from the majority of other vehicles in the lot, and that was positioned so that the occupants had full view of anyone, including police, who approached. . . .
11. As Sgt. Buie approached the car, he smelled an odor of unburned marijuana. The passenger rolled down his window to speak with Sgt. Buie. Upon rolling down the window, Sgt. Buie identified the odor of unburned marijuana as coming from [ ] inside the car. He requested the passenger step out. When the passenger opened the door, the odor of unburned marijuana became stronger.
On 30 September 2022, the trial court denied the motion in part, as to the
physical evidence seized, and granted the motion to suppress in part, concerning
statements Defendant had made in response to police questioning while in custody,
but prior to Miranda warnings.
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On 30 January 2023, Defendant pled guilty to all three charges. After
finding multiple mitigating factors, the court sentenced Defendant to a mitigated
active incarceration term of 76 to 104 months. Defendant gave notice of appeal that
day.
II. Issues
Defendant raises three issues regarding the trial court’s denial of his motion
to suppress. He first argues the trial court’s factual basis for its denial, that Sgt. Buie
“smelled an odor of unburned marijuana” or “identified the odor of unburned
marijuana”, is unsupported by competent evidence because “such feats of sensory-
based deductions are humanly impossible.” He further asserts, even if the trial court
had found that Sgt. Buie smelled an odor of marijuana, reversal is required due to
the advent of legalized hemp, as the “odor alone” doctrine is no longer valid. Finally,
Defendant argues the trial court erred when it based its ruling on a misapprehension
of law, specifically, when it found that State v. Teague stands for the proposition that
the so-called “odor alone” doctrine has survived the advent of legalized hemp in North
Carolina. See State v. Teague, 286 N.C. App. 160, 179, 879 S.E.2d 881, 896 (2022).
We address each in turn.
III. Analysis
The trial court concluded probable cause justified the warrantless search of
Defendant’s vehicle because Sgt. Buie had “smelled an odor of unburned marijuana.”
Defendant contends no competent evidence supports any finding of fact that Sgt. Buie
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had smelled marijuana, because identifying marijuana by smell alone is impossible.
Sgt. Buie himself acknowledged that he cannot differentiate between the odor of legal
hemp and illegal marijuana. Defendant argues, because the warrantless search of
Defendant’s vehicle was unsupported by probable cause, the trial court’s order
denying his motion to suppress must be reversed and the judgment vacated.
A. Standard of Review
In evaluating the denial of a motion to suppress, appellate review “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. Brown, 248 N.C. App. 72, 74, 787 S.E.2d 81, 84 (2016)
(citation omitted). Conclusions of law “are reviewed de novo and are subject to full
review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). Additionally,
there is “great deference [given] to the trial court’s ruling on a motion to suppress[.]”
State v. Parker, 277 N.C. App. 531, 538-39, 860 S.E.2d 21, 28 (2021) (citation and
quotation marks omitted).
B. Motion to Suppress
“The Fourth Amendment proscribes all unreasonable searches and seizures,
and it is a cardinal principle that searches conducted outside the judicial process,
without prior approval by judge or magistrate, are pe se unreasonable . . . subject only
to a few specifically established and well-delineated exceptions.” State v.
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Degraphenreed, 261 N.C. App. 235, 241, 820 S.E.2d 331, 336 (2018) (citation and
internal quotation marks omitted).
One exception is the motor vehicle exception, which states the “search of a
motor vehicle which is on a public roadway or in a public vehicular area is not in
violation of the [F]ourth [A]mendment if it is based on probable cause, even though a
warrant has not been obtained.” State v. Isleib, 319 N.C. 634, 638, 356 S.E.2d 573,
576 (1987) (emphasis supplied).
Under the motor vehicle exception, “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.” Parker, 277 N.C. App. at 539, 860 S.E.2d at 28 (citation
omitted). Further, if probable cause justified the search of a vehicle, it justifies the
search of every part of the vehicle and its contents. Id. A probable cause analysis is
based upon the “totality of the circumstances.” See Maryland v. Pringle, 540 U.S.
366, 371, 157 L. Ed. 2d 769, 775 (2003) (“The probable-cause standard is incapable of
precise definition or quantification into percentages because it deals with
probabilities and depends on the totality of the circumstances.” (citations omitted)).
The State put forth other facts supporting probable cause to search the vehicle
aside from the alleged odor of marijuana standing alone. First, the location of
Defendant’s vehicle within the parking lot and the manner it was parked and
positioned could indicate illegal activity, particularly at night. Defendant’s car was
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positioned to provide a quick escape, was distant from most other vehicles in the far
corner of the side overflow parking lot, and the occupants had a full view of anyone,
including police, who approached. Second, both Sgt. Buie and Officer Pegram had
received drug identification training, including learning to detect the odor of both
burnt and unburnt marijuana.
As Sgt. Buie approached the car, he smelled an odor of unburned marijuana.
Upon Luckey rolling his window down to speak to Sgt. Buie, Sgt. Buie identified the
odor of unburned marijuana as coming from inside the car. After requesting Luckey
to step out of the vehicle and opening the door, the odor of unburned marijuana
became stronger.
These factors are sufficient to support a “reasonable belief” the automobile
contained contraband materials. See Parker, 277 N.C. App. at 539, 860 S.E.2d at 28.
Like the facts in Parker, the odor of marijuana and the totality of circumstances gave
rise to probable cause. All factors, as observed and detected by the officers, support
Sgt. Buie’s and Officer Pegram’s reasonable suspicions of illegal activity occurring
inside of Defendant’s car.
Defendant’s assertion that the odor of unburned marijuana was the only
factual basis to support the denial of the motion to suppress is unsupported by the
evidence and findings. Under the totality of the circumstances, the officers had
probable cause to perform a warrantless search of Defendant’s vehicle. See Pringle,
540 U.S. at 371, 157 L. Ed. 2d at 775. The trial court correctly denied Defendant’s
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motion to suppress in part. Although this holding is sufficient to affirm, we address
Defendant’s remaining arguments as an alternative basis.
C. The Validity of the “Odor Alone” Doctrine
Defendant alternatively argues that even if the trial court had found that Sgt.
Buie smelled an odor of illegal marijuana, the motion to suppress must be reversed
following the advent of legalized hemp. In support, Defendant contends the so-called
“odor alone” doctrine is no longer valid, challenging the holding in State v. Greenwood.
47 N.C. App. 731, 268 S.E.2d 835 (1980), aff’d in part and rev’d in part, 301 N.C. 705,
273 S.E.2d 438 (1981).
In Greenwood, this Court mentioned two factors for concluding the odor of
marijuana gives rise to probable cause for a warrantless search: (1) evidence properly
established that the officer believed she smelled marijuana; and, (2) evidence properly
established the officer in question was qualified to identify marijuana by its “distinct
odor” alone. Id. at 741-42, 268 S.E.2d at 841.
This Court reasoned an “officer, trained in the identification of marijuana by
its odor, detected the distinct odor of marijuana emanating from defendant’s
automobile,” so there was a sufficient determination of probable cause. Id. However,
on another issue, it held “even if the further search after defendant’s arrest for
possession of marijuana was proper, evidence concerning the pocketbook obtained by
a search of its contents should have been suppressed.” Id. at 742-43, 268 S.E.2d at
842.
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When Greenwood reached our Supreme Court, it reversed this Court’s holding
on the latter issue, stating that “defendant failed to show that the seizure and search
of the pocketbook infringed upon his own personal rights under the Fourth
Amendment.” State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441 (1981).
Following its holding, our Supreme Court stated that this Court “correctly concluded
that the smell of marijuana gave the officer probable cause to search the automobile
for the contraband drug.” Id. Defendant argues this statement by the Supreme Court
was obiter dictum.
Defendant contends the Supreme Court in Greenwood made a “passing
reference” to this Court’s decision regarding the “odor alone” issue, and since the issue
was never adjudicated, it is not binding authority. Defendant argues the Supreme
Court’s holding in Greenwood was based upon the understanding law enforcement
officers, with sufficient expertise, could reliably detect the distinct odor of marijuana,
but this is no longer true. Defendant maintains odor alone cannot justify probable
cause, because even if Sgt. Buie had smelled what could have been unburned
marijuana, it could have just as easily been unburned hemp.
Defendant’s argument that odor alone cannot justify probable cause is not
rooted in any federal or state authority, as no binding authority has upheld any such
argument. This Court has repeatedly held “[w]hen an officer detects the odor of
marijuana emanating from a vehicle, probable cause exists for a warrantless search
of the vehicle for marijuana.” State v. Smith, 192 N.C. App. 690, 694, 666 S.E.2d 191,
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194 (2008) (citation omitted). It can hardly be true that our Supreme Court only
made a “passing reference” in Greenwood regarding the “odor alone” issue, as it
explicitly stated that this Court “correctly concluded that the smell of marijuana gave
the officer probable cause to search the automobile for the contraband drug.”
Greenwood, 301 N.C. at 708, 273 S.E.2d at 441. It is clear our Supreme Court agrees
the odor of marijuana is sufficient for probable cause. Id.
More recently this Court addressed and rejected this specific argument in State
v. Little, No. COA23-410, 2024 N.C. App. LEXIS 680, 2024 WL 4019033, at *9 (N.C.
Ct. App. Sept. 3, 2024). This Court held:
[D]espite the liberalization of laws regarding possession of industrial hemp, and even if marijuana and industrial hemp smell and look the same, the trial court did not err in concluding there was probable cause for the search of Defendant’s vehicle based upon the officer’s reasonable belief that the substance he smelled and saw in the vehicle was marijuana.
Id.
This holding is also consistent with multiple federal courts in North Carolina,
who also examined the impact of the legalization of industrial hemp and the
determination of probable cause. “[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.” United States v.
Harris, No. 4:18-CR-57-FL-1, 2019 U.S. Dist. LEXIS 211633, 2019 WL 6704996, at
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*3 (E.D.N.C. Dec. 9, 2019) (emphasis supplied) (citation and quotation marks
omitted).
The United States District Court for the Western District of North Carolina in
United States v. Brooks also examined a defendant’s arguments asserting the alleged
smell of marijuana cannot supply probable cause because it could have been from a
legal source, reasoning:
[Pre]suming, arguendo, hemp and marijuana smell “identical,” then the 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. To date, 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.
United States v. Brooks, No. 3:19-cr-00211-FDW-DCK, 2021 U.S. Dist. LEXIS 81027,
2021 WL 1668048, at *4 (W.D.N.C. Apr. 28, 2021) (footnotes omitted).
In Teague, this Court found the reasoning of both Brooks and Harris
persuasive and held: “The 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
proceeding.” Teague, 286 N.C. App. at 179, 879 S.E.2d at 896.
Here, as in Teague, the smell of marijuana was not the only basis to provide
the officers with probable cause. Id. at 179 n.6, 879 S.E.2d at 896 n.6 “[T]his is not
a case where the detectable odor of marijuana was the only suspicious fact concerning
the package. . . . as the totality of the circumstances here was sufficient to give rise
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to probable cause. Accordingly, this argument is overruled.” Id. Defendant has not
shown error or prejudice under this argument. See also State v. Johnson, 288 N.C.
App. 441, 443, 886 S.E.2d 620, 631-32 (2023); Little, No. COA23-410, 2024 N.C. App.
LEXIS 680, 2024 WL 4019033, at *9.
IV. Conclusion
We hold the trial court properly denied Defendant’s motion to suppress
evidence recovered from the search of Defendant’s vehicle. Id. Under the totality of
the circumstances, sufficient evidence supports probable cause. The trial court’s
denial of Defendant’s motion to suppress is affirmed.
AFFIRMED.
Panel consisting of Judges TYSON, MURPHY and WOOD.
Judge MURPHY concurs in the result only by separate opinion.
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MURPHY, Judge, concurring in result only.
Though not considered by the Majority, the trial court made unchallenged,
binding findings of fact that law enforcement located Defendant’s vehicle in the lot of
a hotel “known to be high in violent crime, drug crime, and prostitution” and that
“[t]he manner in which the [vehicle] was parked combined with the high crime nature
of the area and the late hour prompted [Sergeant] Buie to make the decision to
approach the car[,]” at which time he detected the odor of marijuana emanating from
Defendant’s vehicle. See Teague, 286 N.C. App. at 167 (“Findings of fact that are not
challenged on appeal are deemed to be supported by competent evidence and are
binding upon this Court.”).
I am bound by the jurisprudential maypole throughout our caselaw that a
“high crime area” is a legitimate factor in determining probable cause and not just a
legal fiction created to subject the poor and urban areas of our state to an unequal
application of the Fourth Amendment. Furthermore, I am bound by our recent
decision in State v. Little and its application of decisions from our Supreme Court and
the Supreme Court of the United States. As a result, when considering the totality
of the circumstances in this case, including the high crime area, I would hold the trial
court did not err in denying Defendant’s motion to suppress. As such, I reluctantly
concur in result only.