IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-997
Filed 19 September 2023
New Hanover County, Nos. 19CRS52567-68, 52570
STATE OF NORTH CAROLINA
v.
GERALD TELPHIA JACOBS, II, Defendant.
Appeal by defendant from judgments entered 30 June 2022 by Judge R. Kent
Harrell in the New Hanover County Superior Court. Heard in the Court of Appeals
22 August 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Lewis Lamar,
Jr., for the State.
Richard Croutharmel, for defendant-appellant.
FLOOD, Judge.
Gerald Telphia Jacobs, II (“Defendant”) appeals pursuant to N.C. Gen. Stat. §
15A-979(b) (2021) from an order denying his motion to suppress evidence. Defendant
argues the trial court improperly denied his motion because the arresting officer
lacked reasonable suspicion to stop his vehicle, in violation of his right to be free from
STATE V. JACOBS
Opinion of the Court
unreasonable searches and seizures. Defendant specifically contends the officer did
not witness a traffic violation, and his claims of smelling unburnt marijuana
emanating from Defendant’s vehicle were “inherently incredible.” Because the trial
court’s findings were supported by competent evidence, we hold the trial court did not
err in denying Defendant’s motion to suppress.
I. Factual & Procedural Background
The evidence tends to show the following: On 29 March 2019, Officer Benjamin
Galluppi (“Officer Galluppi”) of the Wilmington Police Department was traveling in
his patrol car on Market Street between 29th Street and Covil Avenue. Officer
Galluppi turned onto Covil Avenue and noticed Defendant’s car traveling in front of
him. There were no other cars on Covil Avenue, and Officer Galluppi, while following
Defendant, remained roughly two and a half car lengths behind him. The two cars
traveled roughly fifty feet down Covil Avenue when, according to Officer Galluppi, he
could “very strongly” smell the odor of marijuana emanating from Defendant’s
vehicle.
Officer Galluppi continued to follow Defendant for about five or six blocks down
Covil Avenue and eventually pulled Defendant over after he turned left onto Broad
Street. According to Officer Galluppi, he stopped Defendant solely because of the
unburned marijuana smell. Officer Galluppi walked up to the driver’s side of
Defendant’s car and noticed the driver’s side window was cracked open about three
inches. Defendant was holding his driver’s license and a piece of paper up against
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the window. Upon getting closer to Defendant’s car, Officer Galluppi continued to
detect the odor of marijuana and testified that, at that point, the odor was “even
stronger.” After a discussion of the ownership of the car, Officer Galluppi asked
Defendant to step out of the car.
Once Defendant was out of the car, Officer Galluppi noticed a small plastic bag
of white powder “at [Defendant’s] feet” and an open bottle of alcohol in the backseat.
Officer Galluppi then patted Defendant down and handcuffed him for safety while
Officer Galluppi waited for backup to arrive. Detective Javier Tapia (“Detective
Tapia”) of the Wilmington Police Department arrived at the scene roughly two
minutes after Officer Galluppi stopped Defendant. Upon arrival, Detective Tapia saw
Defendant sitting handcuffed on the tailgate of his car and could also smell a “very
strong” odor of unburned marijuana. By this time, Officer Galluppi had opened all of
Defendant’s car’s doors, and the driver’s side window was cracked open.
Officer Galluppi and Detective Tapia conducted a frisk of Defendant and a full
search of Defendant’s car. In the car they found heroin, a MDMA tablet, powder
cocaine, crack cocaine, and approximately sixteen grams of marijuana. The search of
Defendant’s person and car were captured on Officer Galluppi’s bodycam. Officer
Galluppi arrested Defendant for trafficking in cocaine; possession with intent to sell
or deliver cocaine; felony possession of cocaine; possession with intent to sell or deliver
heroin; possession with intent to sell or deliver MDMA; possession of MDMA; and
misdemeanor possession of more than one-half ounce, but less than one and one-half
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ounces of marijuana. The marijuana Officer Galluppi found in the car was in the
center console, wrapped in twelve separate plastic bags.
On 9 September 2019, the New Hanover County grand jury returned true bills
of indictment against Defendant on the following charges: trafficking in cocaine by
possession of 28 grams or more but less than 200 grams of cocaine; trafficking in
cocaine by transportation of 28 grams or more, but less than 200 grams of cocaine;
felony possession of a Schedule II controlled substance; possession with intent to sell
or deliver cocaine; possession with intent to sell or deliver heroin; possession with
intent to sell or deliver MDMA; felony possession of MDMA; and misdemeanor
possession of greater than one-half ounce, but less than one and one-half ounces of
marijuana.
On 24 October 2019, Defendant filed a motion to suppress the evidence
obtained from the search. He argued law enforcement violated his Constitutional
right to be protected from unreasonable searches and seizures under the Fourth
Amendment to the United States Constitution and the North Carolina Constitution.
On 27 May 2021, the trial court held a suppression hearing. At the hearing,
Defendant testified he was not smoking marijuana while driving, and all the windows
of the vehicle were closed before he was pulled over. He testified that, about an hour
before the traffic stop, he was smoking marijuana at a house on 10th Street and put
the narcotics in his car when he left the house. He also testified he had put marijuana
in the center console of the car.
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Opinion of the Court
Officer Galluppi testified he did not notice whether Defendant’s driver’s side
window was open until he pulled Defendant over, and the back rear-view window of
Defendant’s car was halfway open. He admitted, however, that he did not indicate in
his written police report that Defendant’s back rear-view window was halfway open.
Counsel for Defendant played the bodycam footage at the thirty-five-minute mark,
and Officer Galluppi admitted, after watching it, that it showed the rear-view window
of Defendant’s car was closed.
At the close of the hearing, the trial court denied Defendant’s motion to
suppress, and an order reflecting the same was filed on 27 May 2021.
On 30 June 2022, Defendant’s guilty plea to trafficking in cocaine, possessing
with intent to sell or deliver heroin, and possessing with intent to sell or deliver
MDMA was accepted. Defendant was determined to be a prior record level IV for
felony sentencing purposes. For his guilty plea to trafficking cocaine, Defendant
received an active sentence of thirty-five to fifty-one months. At the expiration of that
sentence, Defendant was ordered to serve another active sentence of nine to twenty
months for his guilty plea to possession with intent to sell or deliver heroin. And, at
the expiration of that sentence, Defendant was ordered to serve another active
sentence of eight to nineteen months for his guilty plea to possession with intent to
sell or deliver MDMA. Additionally, he was ordered to pay a $50,000 fine and
attorney’s fees. Defendant gave oral notice of appeal from the judgments following
their announcements in open court.
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II. Jurisdiction
This Court has jurisdiction to address Defendant’s appeal pursuant to
N.C. Gen. Stat. §§ 15A-144(a1)-(a2) (2022) and 15A-979(b) (2021).
III. Analysis
Defendant’s sole argument on appeal is that the trial court erred in
denying his motion to suppress the evidence obtained from the traffic stop. Defendant
specifically contends the arresting officer lacked reasonable suspicion to initiate the
stop, as his claim of smelling unburned marijuana emanating from Defendant’s
vehicle was “inherently incredible.” We disagree.
Our standard of review of a trial court’s denial of 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) (citation omitted). “Conclusions of law are reviewed
de novo and are subject to full review.” Id. at 168, 712 S.E.2d at 878. This Court,
“under a de novo review, [ ] considers the matter anew and freely substitutes its own
judgment for that of the lower tribunal.” Id. at 168, 712 S.E.2d at 878.
As an initial matter, we address the framework for evaluating the
constitutionality of an ordinary traffic stop. The Fourth Amendment of the United
States Constitution, applicable to the states through the Due Process Clause of the
Fourteenth Amendment, “protects private citizens against unreasonable searches
and seizures.” State v. Johnson, 378 N.C. 236, 244, 861 S.E.2d 474, 483 (2021); see
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N.C. Const. art. I, § 20; see U.S. Const. amend. IV. “Traffic stops are considered
seizures subject to the strictures of these provisions and are historically reviewed
under the investigatory detention framework first articulated in Terry v. Ohio.” Id.
at 244, 861 S.E.2d at 483 (citation omitted). When a law enforcement officer has a
“reasonable, articulable suspicion that criminal activity is afoot” he is justified in
initiating a traffic stop. Id. at 244, 861 S.E.2d at 483 (citation omitted). Reasonable
suspicion is a “less demanding standard than probable cause and requires a showing
considerably less than preponderance of the evidence.” State v. Maready, 362 N.C.
614, 618, 669 S.E.2d 564, 567 (2008) (citation and internal quotation marks omitted).
To satisfy the reasonable suspicion standard, only “some minimal level of objective
justification is required.” Id. at 618, 669 S.E.2d at 567 (citation omitted); see State v.
Watkins, 337 N.C. 437, 442, 446 S.E.2d 67, 70 (1994) (providing that a justified traffic
stop requires “something more than an unparticularized suspicion or hunch”).
Officer testimony can establish reasonable suspicion, and “[w]e defer to the
trial court’s assessment of the officer’s credibility . . . . Accordingly, we are bound by
the trial court’s finding based upon that credibility determination.” State v. Salinas,
214 N.C. App. 408, 411, 715 S.E.2d 262, 264 (2011) (cleaned up) (citation and internal
quotation marks omitted) (“[A]n appellate court affords great deference to the trial
court in this respect because it is entrusted with the duty to hear testimony, weigh
and resolve any conflicts in the evidence, find the facts, and, then based on those
findings, render a legal decision . . . as to whether or not a constitutional violation of
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some kind has occurred.”) (citation omitted). This Court, as opposed to the trial court,
“is much less favored [to make such decisions] because it sees only a cold, written
record . . . [and as such] the findings of the trial judge are, and properly should be,
conclusive on appeal if they are supported by the evidence.” Id. at 411, 715 S.E.2d at
265 (citation omitted).
Our Supreme Court, however, has provided that there are circumstances
where this Court does not defer to the trial court’s assessment of witness credibility.
In State v. Miller, for example, our Supreme Court held, “[t]his rule [of deference]
does not apply . . . where the only evidence identifying the defendant as the
perpetrator of the offense [was] inherently incredible because of undisputed facts,
clearly established by the State’s evidence, as to the physical conditions under which
the alleged observation occurred.” State v. Miller, 270 N.C. 726, 731, 154 S.E.2d 902,
905 (1967) (emphasis added) (holding that it was inherently incredible for one to
observe, from a great distance, details “which would enable him, six hours later, to
identify a complete stranger with the degree of certainty which would justify the
submission of guilty of such person to the jury”).
This Court has recognized that an officer’s smelling of unburned marijuana
can provide probable cause to conduct a warrantless search and seizure, and that an
officer’s smelling of such is not inherently incredible. Most notably, in State v. Stover,
officers testified they smelled a “strong odor of marijuana” when they arrived at the
defendant’s home to conduct a “knock and talk” after receiving a tip that the
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defendant’s residence was a place where marijuana could be purchased. 200 N.C.
App. 506, 507, 685 S.E.2d 127, 129 (2009). When the officers arrived at the residence,
they stepped out of their vehicles and immediately “perceived a ‘strong odor of
marijuana,’ which grew stronger as they approached the house.” Id. at 507, 685
S.E.2d at 129. The officers did not have a warrant to search the home, and their
smelling of the unburned marijuana provided probable cause to conduct a
warrantless entry into the defendant’s home. See id. at 513, 685 S.E.2d at 132.
The defendant’s argument on appeal in Stover “center[ed] on the trial court’s
denial of his motion to suppress the evidence seized.” Id. at 510, 685 S.E.2d at 131.
He contended “the trial court’s finding of fact that the officers ‘detected a strong odor
of marijuana in the air’ was inherently incredible, and therefore, cannot constitute
competent evidence[.]” Id. at 510, 685 S.E.2d at 131. He specifically reasoned this
finding of fact was inherently incredible because the marijuana at issue was not
burning, most of it was kept in sealed containers, and what was loose was too small
a quantity to be observable; therefore, the officers could not have been able to smell
the marijuana from outside his residence. Id. at 512, 685 S.E.2d at 132. This Court
held, “the simple fact that the majority of marijuana was in closed containers when
the officers found it does not make the officers’ smelling of the drug ‘inherently
incredible.’” Id. at 512, 685 S.E.2d at 132. Thus, “the officers’ testimony that they
smelled marijuana outside defendant’s residence was competent evidence upon which
the trial court could base its finding of fact that the officers ‘detected a strong odor of
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marijuana in the air.’” Id. at 513, 685 S.E.2d at 132.
Defendant, here, makes a similar argument to that of the defendant in Stover:
that Officer Galluppi’s smelling of the unburned marijuana in Defendant’s car was
“inherently incredible[,]” and therefore could not have supported the trial court’s
finding that Officer Galluppi had reasonable suspicion to stop Defendant’s car. We
do not find Defendant’s argument persuasive, and conclude Officer Galluppi’s
smelling of the unburned marijuana was not inherently incredible. In Stover, the
marijuana was unburned, wrapped in plastic, and located within a residence, which
the Stover officers testified they could smell from outside. See id. at 508, 685 S.E.2d
at 130. We held the officers’ smelling of the unburned marijuana not inherently
incredible, and that it provided probable cause for the officers to search the
defendant’s domicile. See id. at 508, 685 S.E.2d at130. Here, Officer Galluppi, like
the officers in Stover, testified he smelled the odor of marijuana emanating from
Defendant’s vehicle “very strongly[,]” and the marijuana at issue here was unburned,
wrapped in plastic, and located in the center console of Defendant’s car. Thus, Officer
Galluppi’s claim that he smelled unburned marijuana, for the purpose of satisfying
the reasonable suspicion standard—a “less demanding standard” than that for
probable cause—was not inherently incredible, and his testimony was competent
evidence to support the trial court’s findings of fact. See Maready, 362 N.C. at 618,
669 S.E.2d at 567; see Watkins, 337 N.C. at 442, 446 S.E.2d at 70; see Stover, 200 N.C.
App. at 508, 685 S.E.2d at 130.
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As Officer Galluppi’s smelling of unburned marijuana was not inherently
incredible, we defer to the trial court’s assessment of Officer Galluppi’s testimonial
credibility, which supported the factual finding that he smelled the marijuana “very
strongly.” See Salinas, 214 N.C. App. at 411, 715 S.E.2d at 265. This finding, in turn,
supported the trial court’s conclusion that Officer Galluppi had proper reasonable
suspicion—a “minimal level of justification”—to justify the traffic stop. See Watkins,
337 N.C. at 442, 446 S.E.2d at 70. We therefore conclude the trial court did not err
in denying Defendant’s motion to suppress.
IV. Conclusion
Defendant has failed to demonstrate Officer Galluppi lacked reasonable
suspicion to initiate the stop of his vehicle. Accordingly, the trial court did not commit
reversible error in denying Defendant’s motion to suppress evidence obtained from
the stop.
NO ERROR.
Chief Judge STROUD and Judge STADING concur.
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