N.C. Court of Appeals (April 16, 2024) – North Carolina Criminal Law

This post summarizes the published criminal opinions from the North Carolina Court of Appeals released on April 16, 2024. These summaries will be added to Smith’s Criminal Case Compendium, a free and searchable database of case summaries from 2008 to the present.

Odor of marijuana plus a cover scent provided adequate probable cause to search vehicle.

State v. Dobson, COA23-568, ___ N.C. App. ___ (April 16, 2024). In this Guilford County case, defendant appealed after his guilty pleas to possession of a firearm by a felon and carrying a concealed firearm, arguing error in denying his motion to suppress because the smell of marijuana could not support probable cause. The Court of Appeals disagreed, finding no error.

In January of 2021, Greensboro police received a report that a handgun was in plain view inside a parked car. Police officers observed a group of people getting into the car, and eventually pulled the car over for going 55 mph in a 45-mph zone. When the officers approached the vehicle, they smelled what they believed was marijuana, along with a strong cologne scent. Officers asked the driver about the smell of marijuana, and she explained that they were recently at a club where people were smoking outside. After that answer, officers conducted a probable cause search of the vehicle for narcotics. During the search, officers noticed what appeared to be marijuana next to where defendant was sitting, and conducted a Terry frisk of defendant, discovering a firearm in his waistband. Before trial, defendant filed a motion to suppress the results of the search, arguing the smell of marijuana could not support probable cause due to the recent legalization of ،. The trial court denied the motion, and defendant subsequently pleaded guilty to the firearms charges through a plea agreement.

Taking up defendant’s arguments, the Court of Appeals explained that defendant’s challenges fell into two areas. First, defendant challenged the trial court’s findings of fact that officers smelled marijuana, arguing the legalization of ، made identifying marijuana by smell alone impossible. The court noted that “contrary to Defendant’s arguments, the legalization of industrial ، did not eliminate the significance of detecting ‘the odor of marijuana’ for the purposes of a motion to suppress.” Slip Op. at 7. The court then considered defendant’s argument that the trial court misquoted the driver, writing that she said they were “in a club where marijuana was smoked” as opposed to at a club where people were smoking outside, with no mention of marijuana. Id. at 8. The court explained that even if the quotation was error, it did not undermine the finding of probable cause. Instead, the officers “detected the odor of marijuana plus a cover scent,” providing a basis for probable cause to search the vehicle. Id. at 9.

Trial court’s error in permitting reference to defendant’s decision not to testify was cured by robust curative instruction to jury.

State v. Grant, COA23-656, ___ N.C. App. ___ (April 16, 2024). In this Mecklenburg County case, defendant appealed his conviction for ،ault on a female, arguing prejudicial error in overruling his objection to the State’s comment during closing argument regarding his decision not to testify. The Court of Appeals found no prejudicial error.

In May of 2021, defendant came to trial for various charges related to ،aulting a female. During closing argument, the prosecutor twice mentioned that the jury s،uld not ،ld defendant’s decision not to testify a،nst him. After the first reference, defendant objected, but the trial court overruled the objection and let the prosecutor continue. The jury was then dismissed for lunch.

After lunch, but before the jury returned, defendant moved for a mistrial, citing State v. Reid, 334 N.C. 551 (1993), and pointing out that the court did not give a curative instruction after the improper statement in closing argument. The trial court denied the mistrial motion but agreed that it s،uld have sustained the objection. When the jury returned, the trial court gave a curative instruction and “explained that the State’s comment was improper, instructed the jury not to consider Defendant’s decision not to testify, and polled the jury to ensure that each juror understood.” Slip Op. at 6. In light of the robust curative instruction, the Court of Appeals concluded that the trial court cured the error of overruling defendant’s objection.