NO. COA14-162
NORTH CAROLINA COURT OF APPEALS
Filed: 2 September 2014
STATE OF NORTH CAROLINA
v. Gaston County
Nos. 12 CRS 52075-78
THOMAS ARMSTRONG
Appeal by the State from order entered 4 December 2013 by
Judge Jesse B. Caldwell, III, in Gaston County Superior Court.
Heard in the Court of Appeals 4 June 2014.
Attorney General Roy Cooper, by Assistant Attorney General
Joseph L. Hyde, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Barbara S. Blackman, for defendant-appellee.
CALABRIA, Judge.
The State appeals, pursuant to N.C. Gen. Stat. § 15A-979
and § 15A-1445(b), an order granting Thomas Armstrong’s
(“defendant”) motion to suppress evidence seized by virtue of a
search without a search warrant. We reverse and remand.
About 1:45 a.m. on 13 February 2012, Officers Jonathan
Scher (“Officer Scher”) and Bryce Carr (“Officer Carr”)
(collectively “the officers”) of the Gastonia Police Department
observed a black Chevrolet Impala (“the Impala”) execute a
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three-point turn in the middle of an intersection, strike a
parked vehicle, and continue traveling on the left side of the
road. The officers activated their blue lights to initiate a
traffic stop. Before the driver stopped the Impala, the
officers observed a brown beer bottle thrown from the driver’s
side window.
The officers approached the Impala. Defendant, the driver,
and his passenger complied with the officers’ order to exit the
Impala. When the officers checked the vacant Impala, they
detected an odor of alcohol and marijuana emanating from inside
the Impala and discovered a partially consumed bottle of beer
was located in the center console. Officer Carr also detected
an odor of alcohol on defendant’s breath, and observed
defendant’s eyes, which he described as “red, glassy bloodshot
eyes.”
Defendant was arrested for hit and run and possession of an
open container of an alcoholic beverage. Both defendant and his
passenger were restrained in handcuffs and secured in the back
of the officers’ patrol vehicle. Officer Carr then retrieved
the beer bottle that had been thrown from the Impala while
Officer Scher searched the vehicle. Officer Scher found the
beer bottle in the center console and a grocery bag with three
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unopened beers on the floorboard of the passenger area. He also
found a “plastic baggie containing several white rocks” in the
glove compartment of the Impala.
Defendant was subsequently charged with felony possession
of cocaine, hit and run with failure to stop when property
damage occurred, reckless driving to endanger, driving while
license revoked, possession of an open container of an alcoholic
beverage in the passenger area of a vehicle while consuming
alcohol, and drinking beer while driving. On 7 November 2013,
defendant filed a pretrial motion to suppress all the evidence
that was obtained as the fruit of an illegal search of
defendant’s vehicle. After a hearing, the trial court entered
an order on 4 December 2013 granting defendant’s motion to
suppress. The State appeals.
The State argues the trial court erred by granting
defendant’s motion to suppress. Specifically, the State
contends the search of defendant’s vehicle was based upon
probable cause, therefore the trial court mistakenly concluded
that the extensive search went beyond a valid and lawful search
incident to arrest, and “is distinguishable from other cases
where the vehicles are stopped lawfully but no one is placed
under arrest such that the vehicle is not secured, and also from
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cases in which law enforcement actually observed the occupants
of the vehicle engaging in drug transactions and subsequently
secured the vehicle.” We agree with the State.
The standard of review regarding a trial court’s decision
with respect to a motion to suppress “is whether competent
evidence supports the trial court’s findings of fact and whether
the findings of fact support the conclusions of law.” State v.
Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011). “[T]he
trial court’s findings of fact are conclusive on appeal if
supported by competent evidence, even if the evidence is
conflicting.” State v. Allen, 197 N.C. App. 208, 210, 676
S.E.2d 519, 521 (2009) (citation omitted). Findings not
challenged on appeal are deemed supported by competent evidence
and are binding on appeal. Biber, 365 N.C. at 168, 712 S.E.2d
at 878. “Conclusions of law are reviewed de novo[.]” Id.
Since the State does not challenge the trial court’s
findings, they are binding on appeal. Id. Rather, the State
contends that the trial court erred in its conclusion of law
that the officers’ extensive search of the Impala went beyond a
valid and lawful search incident to arrest because a search
warrant was required to execute a lawful search of the interior
portion of the Impala without violating defendant’s Fourth
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Amendment rights. Therefore, the issue for our determination is
whether the officers had probable cause to justify the
warrantless search.
The Fourth Amendment protects individuals “against
unreasonable searches and seizures.” U.S. Const. Amend. IV.
Generally, a warrant is required for every search and seizure,
with particular exceptions. State v. Trull, 153 N.C. App. 630,
638-39, 571 S.E.2d 592, 598 (2002). Two specific exceptions
include a search incident to a lawful arrest and the “automobile
exception.” The United States Supreme Court has held that law
enforcement may search a vehicle incident to a suspect’s arrest
“only when the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of the search”
or “when it is reasonable to believe evidence relevant to the
crime of arrest might be found in the vehicle.” Arizona v. Gant,
556 U.S. 332, 343, 173 L. Ed. 2d 485, 496 (2009) (citation and
internal quotations omitted). “[W]hen investigators have a
reasonable and articulable basis to believe that evidence of the
offense of arrest might be found in a suspect’s vehicle after
the occupants have been removed and secured, the investigators
are permitted to conduct a search of that vehicle.” State v.
Mbacke, 365 N.C. 403, 409-10, 721 S.E.2d 218, 222 (2012).
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“It is a well-established rule that a search warrant is not
required before a lawful search based on probable cause of a
motor vehicle in a public roadway or in a public vehicular area
may take place.” State v. Downing, 169 N.C. App. 790, 795, 613
S.E.2d 35, 39 (2005) (citing United States v. Ross, 456 U.S.
798, 809, 72 L. Ed. 2d 572, 583-84 (1982)); see also State v.
Isleib, 319 N.C. 634, 638-39, 356 S.E.2d 573, 576-77 (1987)
(discussing the automobile exception to the warrant
requirement). “If probable cause justifies the search of a
lawfully stopped vehicle, it justifies the search of every part
of the vehicle and its contents that may conceal the object of
the search.” State v. Mitchell, ___ N.C. App. ___, ___, 735
S.E.2d 438, 441 (2012), appeal dismissed, disc. review denied,
___ N.C. ___, 740 S.E.2d 466 (2013). “Probable cause exists
where the facts and circumstances within their [the officers’]
knowledge and of which they had reasonable trustworthy
information [are] sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense has been or is
being committed.” Downing, 169 N.C. App. at 795, 613 S.E.2d at
39 (citations and internal quotations omitted) (alterations in
original). “[T]he mere odor of marijuana or presence of clearly
identified paraphernalia constitutes probable cause to search a
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vehicle.” Mitchell, ___ N.C. App. at ___, 735 S.E.2d at 442;
see State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441
(1981) (odor of marijuana “gave the officer probable cause to
search . . . for the contraband drug.”); see also State v.
Corpening, 200 N.C. App. 311, 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.”).
In the instant case, the trial court found that defendant
and his passenger were restrained with handcuffs and secured
inside the officers’ patrol vehicle before the officers searched
the Impala, and that the officers did not see any contraband in
plain view before the search. The trial court was correct in
concluding that since defendant was restrained in handcuffs and
secured in the officers’ patrol vehicle before Officer Scher
began searching the Impala, Gant did not permit a search of the
Impala because defendant was neither unsecured nor within
reaching distance of the passenger compartment of the vehicle at
the time of the search.
However, Gant also recognized that there are other
exceptions to the warrant requirement that would permit a
vehicle search, including the automobile exception. Gant, 556
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U.S. at 346-47, 173 L. Ed. 2d at 498 (“If there is probable
cause to believe a vehicle contains evidence of criminal
activity, United States v. Ross . . . authorizes a search of any
area of the vehicle in which the evidence might be found.”).
The officers testified, and the trial court found, that the
officers detected the odor of both alcohol and burning marijuana
emanating from within the passenger compartment of the Impala.
At the hearing, Officer Carr testified that he could “smell a
strong odor of marijuana coming from inside the vehicle.”
Officer Scher testified that after detecting the odor of alcohol
and marijuana in the Impala and placing defendant and his
passenger in the back of the patrol vehicle, he “proceeded to
conduct a probable cause search of the [Impala].” Since the
officers had probable cause to search the Impala based upon the
odor of marijuana, the officers could lawfully search every part
of the Impala where marijuana might reasonably be found,
including the glove compartment. Mitchell, ___ N.C. App. at
___, 735 S.E.2d at 441.
The trial court misinterpreted Gant as requiring the
officers to obtain a search warrant in order to execute a lawful
search of the interior portion of the vehicle. However, the
officers had probable cause to search the Impala based upon the
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odor of marijuana emanating from the vehicle, after defendant
was restrained in handcuffs and secured in the officers’ patrol
vehicle, that justified the search of every part of the vehicle
and its contents. See Mitchell, ___ N.C. App. at ___, 735
S.E.2d at 441. Therefore, the trial court was mistaken because
it failed to take into account the officers’ probable cause to
search for contraband. We reverse the trial court’s order
granting defendant’s motion to suppress and remand to the trial
court.
Reversed and remanded.
Judges BRYANT and GEER concur.