Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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The automobile exception to the Fourth Amendment does not permit an officer, uninvited and without a warrant, to enter the curtilage of a home to search a vehicle parked there. Officer McCall saw the driver of an orange and black motorcycle with an extended frame commit a traffic infraction. The driver eluded McCall’s attempt to stop the motorcycle. A few weeks later, Officer Rhodes saw an orange and black motorcycle traveling well over the speed limit, but the driver got away from him, too. The officers compared notes, determined that the two incidents involved the same motorcyclist, and that the motorcycle likely was stolen and in the possession of Ryan Collins. After discovering photographs on Collins’ Facebook page showing an orange and black motorcycle parked at the top of the driveway of a house, Rhodes tracked down the address of the house, drove there, and parked on the street. It was later established that Collins’ girlfriend lived in the house and that Collins stayed there a few nights per week. From the street, Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photo. Rhodes, who did not have a warrant, walked toward the house. He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. Rhodes removed the tarp, revealing a motorcycle that looked like the one from the speeding incident. He ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen. Rhodes photographed the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins. When Collins returned, Rhodes approached the door and knocked. Collins answered, agreed to speak with Rhodes, and admitted that the motorcycle was his and that he had bought it without title. Collins was charged with receiving stolen property. He unsuccessfully sought to suppress the evidence that Rhodes obtained as a result of the warrantless search of the motorcycle. He was convicted and his conviction was affirmed on appeal. The U.S. Supreme Court granted certiorari and reversed. The Court characterized the case as arising “at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.” After reviewing the law on these doctrines, the Court turned to whether the location in question is curtilage. It noted that according to photographs in the record, the driveway runs alongside the front lawn and up a few yards past the front perimeter of the house. The top portion of the driveway that sits behind the front perimeter of the house is enclosed on two sides by a brick wall about the height of a car and on a third side by the house. A side door provides direct access between this partially enclosed section of the driveway and the house. A visitor endeavoring to reach the front door would have to walk partway up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch. When Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house. The Court concluded that the driveway enclosure here is properly considered curtilage. The Court continued, noting that by physically intruding on the curtilage, the officer not only invaded the defendant’s fourth amendment interest in the item searched—the motorcycle—but also his fourth amendment interest in the curtilage of his home. Finding the case an “easy” one, the Court concluded that the automobile exception did not justify an invasion of the curtilage. It clarified: “the scope of the automobile exception extends no further than the automobile itself.” The Court rejected Virginia’s request that it expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. It continued:
Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.
It also rejected Virginia’s argument that the Court’s precedent indicates that the automobile exception is a categorical one that permits the warrantless search of a vehicle anytime, anywhere, including in a home or curtilage. For these and other reasons discussed in the Court’s opinion, the Court held that “the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.” It left for resolution on remand whether Rhodes’ warrantless intrusion on the curtilage may have been reasonable on a different basis, such as the exigent circumstances exception to the warrant requirement.
In this McDowell County case, the Supreme Court reversed the Court of Appeals decision affirming the denial of defendant’s motion to suppress the results of a warrantless vehicle search. The Supreme Court held that the search and seizure were not justified under any applicable warrantless search exception and remanded the case to the trial court.
In May of 2018, sheriff’s deputies responded to the scene of a hit-and-run where a vehicle was partially submerged in a ditch. The driver fled the scene before deputies arrived due to outstanding warrants against him, but defendant was present and spoke to the deputies about the accident, explaining that it was her parents’ car but she was not the driver. Because defendant could identify the driver only by his first name, one of the deputies began searching the vehicle for his identification without consent from defendant. Eventually the deputy discovered a box that contained methamphetamine and drug paraphernalia, defendant was arrested, and a search of her backpack found additional contraband. At trial, defendant moved to suppress the results of the search, arguing it violated the Fourth Amendment; the trial court denied the motion and she was convicted of possession and trafficking in methamphetamine. On appeal, the Court of Appeals majority affirmed the denial of defendant’s motion, finding that the warrantless search was incident to arrest and permitted. The dissent disagreed, noting the driver was not arrested, and pointed out the automobile was immobile meaning the automobile exception also did not apply. Defendant appealed based upon this dissent, leading to the current case.
The Supreme Court noted that “the Court of Appeals held that the search incident to arrest exception justified the warrantless search and merely noted without further explanation that the search still could have been justified as ‘an inventory [search] or for officer safety.’” Slip Op. at 8. For (A) search incident to arrest, the Court explained that this exception is motivated by officer safety and preservation of evidence. Under applicable precedent, officers may search the area of a vehicle within reaching distance of a suspect being arrested, and may conduct a search before an arrest, if the arrest occurs contemporaneous with the search and probable cause existed. Here, the driver fled the scene and could not reach any part of the vehicle. Additionally, “the State presented no evidence at the suppression hearing that [the driver] was ever arrested, let alone arrested contemporaneously with the search of the vehicle.” Id. at 11. Moving to defendant, who was a bystander outside the vehicle, “[t]here was no evidence presented at the suppression hearing that the interior of the vehicle was accessible to defendant or that there were any safety concerns for the officers.” Id. Under these circumstances, the Court held that the search incident to arrest exception was inapplicable.
The Court then turned to (B) the automobile exception, and explained “[m]obility of the vehicle is a fundamental prerequisite to the application of the automobile exception.” Id. at 12, quoting State v. Isleib, 319 N.C. 634, 637 (1987). Here, this essential principle was missing, as the vehicle was stuck in a ditch. The Court observed that “[i]n fact, [a deputy] testified that he called a tow truck to remove the vehicle from the ditch.” Id. at 13. The Court held this exception was also inapplicable to the case, and no other exceptions plausibly applied.
After determining the evidence was gathered in violation of the Fourth Amendment, the Court moved to whether the exclusionary rule, which would exclude the results of the search, should apply. Because the trial court previously concluded a valid search occurred, it never considered whether the exclusionary rule was an appropriate remedy. As a result, the Court remanded the matter for consideration of whether to exclude the evidence.
Chief Justice Newby concurred in part and dissented in part by separate opinion, and would have held that the deputies acted reasonably and did not violate the Fourth Amendment while searching the vehicle for the driver’s identification. He concurred that the appropriate resolution if the defendant’s Fourth Amendment rights were violated was to remand to the trial court. Id. at 18.
Justice Riggs did not participate in the consideration or decision of the case.
In this Forsyth County case, defendant appealed his conviction for carrying a concealed weapon, arguing error in denying his motion to suppress a search of his vehicle because the officers lacked probable cause. The Court of Appeals disagreed, finding no error.
In July of 2020, a Forsyth County sheriff’s deputy observed defendant commit a traffic violation by driving into the oncoming traffic lane to go around another car waiting in a left turn lane. The deputy followed defendant and activated his lights and siren, but defendant did not immediately pull over. Defendant eventually stopped in an apartment complex known to be a high crime area, and the deputy initiated a traffic stop. During the stop, the deputy, along with another deputy who arrived to assist, smelled marijuana coming from defendant’s vehicle, and they asked defendant to step out of the vehicle. The deputies began questioning defendant about the smell of marijuana, and defendant “bladed” his body away from the officers and eventually stopped answering questions, at which point the deputies detained defendant. One of the deputies conducted a Terry frisk of defendant and felt an object in his pocket that turned out to be a blunt. After discovering the blunt, the deputies searched the vehicle and found the firearm giving rise to the charge. Before trial, defendant filed a motion to suppress, arguing that due to the legalization of hemp, the deputies did not have probable cause to frisk him or search his vehicle. The trial court denied the motion, and defendant was subsequently convicted.
The Court of Appeals approached the issue by first considering defendant’s challenged findings of fact, which all related to the odor of marijuana and the blunt discovered after the frisk. Defendant argued that there was no evidence the substance was marijuana, but the court noted his argument “[was] 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.” Slip Op. at 8. The court turned to two recent decisions, State v. Little, COA23-410 (N.C. App. Sept. 3, 2024), and State v. Dobson, COA23-568 (N.C. App. April 16, 2024), to support the conclusion that the odor of marijuana could still support probable cause for a search, especially where the defendant did not claim he possessed legal hemp such as the current case. Additionally, the court noted defendant’s arguments were focused on “policy” and did not question the competency of the evidence before the court. Slip Op. at 10-11.
The court moved next to the Terry frisk of defendant and rejected defendant’s argument that the deputies lacked reasonable suspicion he was armed and dangerous. Here, the court considered the different factors identified by the trial court to find reasonable suspicion: (i) defendant failed to pull over when the deputy first activated his lights and siren and pulled into an apartment complex known as a high crime area; (ii) defendant had previous convictions for narcotics and carrying a concealed gun; and (iii) defendant’s body language when “blading” away from deputies. Under the “totality of the circumstances” standard, the court determined the factors were sufficient to support reasonable suspicion. Id. at 16.
Finally the court rejected defendant’s argument that the deputies lacked probable cause for the search of his vehicle after finding the blunt, explaining the search “was lawful and supported by probable cause without the discovery of the blunt[] [because the] odor of marijuana emanating from the vehicle provided probable cause.” Id. at 17. Similar to the analysis above, the court “follow[ed] well-established precedent” supporting the position that “the odor of marijuana, alone, is sufficient to establish probable cause to search a vehicle.” Id. at 19. Here, the deputies smelling marijuana represented sufficient evidence for probable cause, regardless of whether the substance was actually hemp or marijuana.
Judge Arrowood concurred by separate opinion to urge the Supreme Court of North Carolina to consider and address the issues presented by the legalization of hemp.
In this Mecklenburg County case, defendant appealed after entering a guilty plea to possession of a firearm by a felon and felonious possession of a stolen firearm, arguing error in denying his motion to suppress evidence seized from his vehicle due to the indistinguishable odor of legal hemp and marijuana. In a per curiam opinion, the Court of Appeals affirmed the denial of defendant’s motion.
In September of 2020, police officers were on routine patrol around an inn known for drug investigations near the airport in Charlotte. The officers saw two people inside an SUV and approached the vehicle; as they approached, they smelled marijuana. When the officers approached, defendant was in the driver’s seat, and his nephew was in the passenger seat. As defendant’s nephew rolled down the window to speak to the officers, they noticed the smell of marijuana became stronger. The officers detained both men while searching the SUV, where they discovered a firearm, unburned marijuana in mason jars, digital scales, and defendant’s ID. At trial, defendant moved to suppress the physical evidence seized from the vehicle and statements he made prior to receiving a Miranda warning; the trial court denied the motion to suppress in part for the physical evidence but granted it in part as to the statements. After the trial court’s ruling, defendant pleaded guilty and gave notice of appeal.
Defendant’s argument on appeal was that the warrantless search of his vehicle was not supported by probable cause because the officer approaching the vehicle could not differentiate between the smell of illegal marijuana and legal hemp. The Court of Appeals first noted the applicable Fourth Amendment standard and the motor vehicle exception that permits a search if an officer has “reasonable belief” based on the circumstances that a vehicle contains contraband. Slip Op. at 7. The court explained that for the motor vehicle exception, the “probable cause analysis is based upon the ‘totality of the circumstances.’” Id. Here, the State offered other facts beyond the odor of marijuana supporting the search of the vehicle. The vehicle was parked in a manner that “could indicate illegal activity, particularly at night” and also “was positioned to provide a quick escape [and] was distant from most other vehicles in the far corner” of the parking lot. Id. at 7-8. When combined with the officers’ drug identification training and the odor of marijuana near the vehicle, the court concluded that “[t]hese factors are sufficient to support a ‘reasonable belief’ the automobile contained contraband materials.” Id. at 8. In turn, this supported the conclusion that “[u]nder the totality of the circumstances” the officers had probable cause to search defendant’s vehicle. Id.
The court then moved on to consider defendant’s argument against the validity of the “odor alone” doctrine from State v. Greenwood, 301 N.C. 705 (1981). Defendant’s argument focused on the precedential value of the opinion, arguing that the odor of marijuana alone supporting probable cause to search a vehicle was “not binding authority” from the opinion. Slip Op. at 10. The court disagreed, first noting 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.” Id. The court examined relevant portions of Greenwood and noted “[i]t is clear our Supreme Court agrees the odor of marijuana is sufficient for probable cause.” Id. at 11. Moving to more recent precedent, the court pointed to State v. Little, COA23-410, ___ N.C. App. ___ (Sept. 3, 2024), and other recent cases supporting the odor of marijuana giving probable cause to search a vehicle. The court concluded defendant could not show error or prejudice under this argument.
Judge Murphy concurred in the result only, and wrote separately to discuss the use of “high crime area” as a legitimate factor for probable cause. Id. at 14.
In this Hoke County case, defendant appealed the denial of his motion to suppress the evidence seized after a traffic stop, arguing the odor and appearance of marijuana did not support probable cause to search his vehicle. The Court of Appeals disagreed, affirming the denial.
In May of 2020, a Hoke County deputy sheriff stopped defendant after seeing defendant’s truck cross the centerline of the road at least three times. When the deputy approached defendant’s window, he smelled marijuana and saw marijuana residue on the passenger side floorboard. When asked about the marijuana, defendant said it was from his cousin, but did not claim that it was legal hemp. Officers from the sheriff’s office searched the vehicle and found a firearm, bullets, sandwich bags, and $10,000 in cash. Defendant was subsequently indicted for possession of a stolen firearm, possession of a firearm by a felon, and carrying a concealed firearm. Defendant filed a motion to suppress, arguing “the odor or appearance of marijuana, standing alone, after the legalization of hemp was insufficient to establish probable cause.” Slip Op. at 3. The trial court denied the motion and defendant pleaded guilty to the charges, reserving his right to appeal the denial.
The Court of Appeals first noted defendant’s argument leaned heavily on the State Bureau of Investigation (SBI) memo considering the Industrial Hemp Act and the “impossibility” of distinguishing legal hemp from illegal marijuana by sight or smell. Id. at 5. The court then gave a brief overview of the Industrial Hemp Act and the SBI memo. Defendant argued that the Court of Appeals considered the SBI memo in State v. Parker, 277 N.C. App. 531 (2021), and State v. Teague, 286 N.C. App. 160 (2022), but the court noted that “neither Parker nor Teague accorded the Memo the status of binding law.” Slip Op. at 11.
To establish applicable probable cause requirements for a search of defendant’s vehicle, the court looked to the Fourth Amendment and the plain view doctrine, noting the requirement that it be “immediately apparent” a substance was contraband to justify a search. Id. at 13. Applicable precedent provides that the plain view doctrine also includes the plain smell of marijuana, and the N.C. Supreme Court held (prior to the Industrial Hemp Act) that “the smell of marijuana gives officers the probable cause to search an automobile.” Id. at 14. The court took pains to explain the requirement that contraband be “immediately apparent” under the plain view doctrine, looking to Texas v. Brown, 460 U.S. 730 (1983), for the concept that it was “no different than in other cases dealing with probable cause,” despite the phrase’s implication of a higher degree of certainty. Slip Op. at 15.
Having established the applicable law, the court moved to the facts of defendant’s appeal, noting again that defendant did not claim the substance in his vehicle was legal hemp or that he was transporting or producing hemp. The court likened the situation to prescription medication, where “[i]t is legal for a person to possess certain controlled substances with a valid prescription . . . [but a] law enforcement officer may have probable cause to seize a bottle of pills in plain view if he reasonably believes the pills to be contraband or illegally possessed.” Id. at 19. Emphasizing that the issue at hand was not proving beyond a reasonable doubt that the substance was illegal marijuana, the court focused instead on “whether the officer, based upon his training and experience, had reasonable basis to believe there was a ‘practical, nontechnical’ probability that incriminating evidence would be found in the vehicle.” Id. at 21 (cleaned up). The court then summarized its reasoning:
Even 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. The issue is not whether the substance was marijuana or even whether the officer had a high degree of certainty that it was marijuana, but “whether the discovery under the circumstances would warrant a man of reasonable 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.” In addition, even if the substance was hemp, the officer could still have probable cause based upon a reasonable belief that the hemp was illegally produced or possessed by Defendant without a license . . . . Either way, the odor and sight of what the officers reasonably believed to be marijuana gave them probable cause for the search. Probable cause did not require their belief that the substance was illegal marijuana be “correct or more likely true than false. A ‘practical, nontechnical’ probability that incriminating evidence is involved is all that is required.”
Id. at 21-22 (cleaned up). This conclusion led the court to affirm the denial of defendant’s motion to suppress.
In this Watauga County case, defendant appealed his conviction for possession of methamphetamine, arguing error in the denial of his motion to suppress the results of a search of his vehicle. The Court of Appeals affirmed the trial court’s denial.
In October of 2020, a Watauga County Sheriff’s Deputy saw defendant driving a black truck through an intersection in Boone. The deputy was familiar with defendant and knew defendant had outstanding warrants for possession of methamphetamine, so he initiated a traffic stop. A canine unit was called to the scene and conducted a walk-around of the vehicle; after the dog alerted, the deputies searched the vehicle and found a bag with methamphetamine and a substance that appeared to be marijuana. However, after defendant was arrested and indicted for possession of these substances, it was determined that the marijuana was actually hemp, and charges for possession of marijuana were dismissed.
The court summarized defendant’s issue on appeal as whether officers “need probable cause to use a drug-detection dog to sniff a vehicle for narcotics when the dog is unable to distinguish between contraband and noncontraband.” Slip Op. at 10. Defendant argued Fourth Amendment precedent holding the use of a drug-sniffing dog does not constitute a search must be reexamined now that a dog might alert to hemp, as the person may have a legitimate privacy interest in noncontraband. The court found that the privacy interest did not apply as the “drug-sniffing dog was trained and certified to alert on methamphetamine, and [d]efendant did not create a ‘legitimate privacy interest’ as to the methamphetamine simply by storing it in the same bag with the hemp,” and concluded “the Fourth Amendment does not protect against the discovery of contraband, detectable by the drug-sniffing dog, because [d]efendant decided to package noncontraband beside it.” Id. at 18. Applying the motor vehicle exception, the court found probable cause to search the vehicle based on the positive alert by the dog, and the deputies’ knowledge of defendant’s outstanding warrants and previous seizures from defendant of methamphetamine.
In this Guilford County case, defendant appealed his attempted heroin trafficking and possession of a firearm convictions pursuant to a plea agreement that preserved his right to appeal the denial of his motion to suppress. The Court of Appeals affirmed the denial of defendant’s motion.
The Guilford County Sheriff’s Office conducted a narcotics investigation in May of 2019. As part of the investigation, a confidential informant made several purchases of heroin from a person who was associated with defendant. During a purchase set up by the confidential informant, the seller was observed getting into a black SUV, a vehicle later spotted by an officer at a fuel pump near the arranged buy. After spotting the black SUV officers detained defendant, who was operating the SUV, and searched the vehicle, finding heroin and a loaded firearm. At trial, defendant moved to suppress the warrantless search and seizure, which the trial court denied after finding probable cause for the search.
Reviewing defendant’s appeal, the Court of Appeals first examined the challenged findings of fact related to the officers’ testimony. Defendant argued that inconsistences between the testimony of the two officers meant that both could not be considered credible, and certain other findings of fact were inconsistent with the evidence presented. The court explained that slight inconsistencies between the testimony of two witnesses did not prevent both from being credible, and the trial court is tasked with evaluating the evidence and resolving inconsistencies. Because competent evidence supported the findings of fact even with the slight inconsistences, the court rejected defendant’s challenges.
The court then reviewed the probable cause for a search of defendant’s SUV and the seizure of heroin and a firearm found inside the vehicle. The court explained that the “automobile exception” to the Fourth Amendment requires that the “vehicle be in a public vehicular area and the police have probable cause.” Slip Op. at 16. The first issue was whether defendant’s SUV was in a “public vehicular area” when searched; defendant argued that the area next to a fuel pump did not fall under the definition provided by G.S. § 20-4.01(32). The court explained that a “service station” is gas station for purposes of the statute, and although the fuel pump area may not be a “driveway, road, alley, or parking lot” as listed by the statute, this list is intended to be illustrative and not limiting. Slip Op. at 19. After examining applicable precedent, the court held that “the driving or parking area adjacent to a fuel pump at a service station is a ‘public vehicular area’” for purposes of G.S. § 20-4.01(32).
After determining that defendant’s SUV was in a public vehicular area, the court turned to the probable cause for searching the vehicle. Defendant argued that the plain view and plain smell doctrines could not support the search of the vehicle. Regarding the plain view doctrine, the court pointed out that the vehicle was in a public vehicular area and near the location of the drug buy the officers were observing. For the plain smell doctrine, the court noted that there was no applicable precedent regarding the smell of heroin supporting a search, but ample precedent used the smell of other narcotics, such as marijuana and cocaine, to support probable cause for a search. The court saw “no reason to treat the plain smell of heroin any differently than the plain smell of marijuana or cocaine” for purposes of the plain smell doctrine, and affirmed the trial court’s determination of probable cause for the search. Slip Op. at 29.
In this case in which the defendant was convicted of drug trafficking and related charges, the court held that although the trial court erred by finding that a vehicle was within the curtilage of the defendant’s residence, it properly found that officers had probable cause to search the vehicle. Officers conducted a drug investigation of the defendant, including surveillance of his residence. During the investigation, a confidential police informant arranged and engaged in a controlled purchase of heroin from the defendant’s residence. A couple of months later the same confidential informant conducted another controlled purchase of heroin at the defendant’s residence. Officers saw the confidential informant purchase the drugs from the defendant at the trunk of a black 1985 Mercury Grand Marquis parked on the other side of the road from the defendant’s residence. Officers saw the vehicle regularly parked in this location during their investigation. As a result of the investigation, Officer Kimel got a search warrant for the defendant’s residence; the warrant did not mention the Grand Marquis. When the officers arrived to execute the search warrant, Kimel saw the vehicle parked across the street. The back and sides of the residence were surrounded by a 7- or 8-foot-high chain link fence; a short wooden fence was in the front of the residence. Kimel asked another officer have his K-9 sniff the vehicle. The dog gave a positive alert for drugs. Kimel obtained the keys to the vehicle from the defendant’s pocket and searched the car. In the trunk, officers found the defendant’s wallet, guns, ammunition, a digital scale, and drugs. After the defendant unsuccessfully moved to suppress evidence obtained from the search of the vehicle, the defendant pled guilty to multiple drug charges, reserving the right to appeal the denial of his suppression motion. On appeal the defendant argued that the officers searched the vehicle without either a search warrant or probable cause.
The court began by holding that the trial court erred by concluding that the vehicle was within the curtilage of the residence while parked on the side of a public street opposite the home and outside the home’s fenced-in area. The State had conceded this issue at oral argument.
The court went on to find however that the officers had probable cause to search the vehicle based on: the controlled purchases by the informant, during which times the Grand Marquis was always present; the officers’ observation of a drug transaction taking place at the trunk of the Grand Marquis; the Grand Marquis parked on a public street near the defendant’s residence during the officers’ investigation; the defendant’s possession of the keys to the Grand Marquis; and the K-9’s positive alert outside of the vehicle for the potential presence of narcotics. It concluded: “Based upon the automobile being located on a public road exception to the Fourth Amendment warrant requirement, probable cause justified the officers in conducting the warrantless search of the Grand Marquis.”
In so holding, the court declined to consider the defendant’s argument, raised for the first time on appeal, that the reliability of the K-9 was not sufficiently established under Florida v. Harris, 568 U.S. 237 (2013), noting that a party may not assert on appeal a theory that was not raised at the trial court. It further noted that the K-9 sniff was not a search and the dog’s positive alert provided support for the trial court’s determination that officers had probable cause to conduct a warrantless search of the vehicle. The court did however note that officers had probable cause to search the vehicle even without the sniff.
The court rejected the defendant’s claim that counsel was ineffective by failing to object to the admission of cocaine found during an officer’s warrantless search of the defendant’s vehicle; the court rejected the defendant’s argument that the State was required to prove that the defendant’s car was “readily mobile” in order for the automobile exception to the warrant requirement to apply. An officer searched the vehicle after smelling a strong odor of marijuana and seeing an individual sitting in the passenger seat with marijuana on his lap. The cocaine was found during a subsequent search of the vehicle. The vehicle was parked on the street when the search occurred and no evidence suggested that it was incapable of movement.
Although a search of the defendant’s vehicle was not proper under Gant, it was authorized under the automobile exception where officers had probable cause that the vehicle contained marijuana. After officers saw a vehicle execute a three-point turn in the middle of an intersection, strike a parked vehicle, and continue traveling on the left side of the road, they activated their blue lights to initiate a traffic stop. Before the vehicle stopped, they saw a brown beer bottle thrown from the driver’s side window. After the driver and passenger exited the vehicle, the officers detected an odor of alcohol and marijuana from the inside of the car and discovered a partially consumed bottle of beer in the center console. The defendant was arrested for hit and run and possession of an open container, put in handcuffs, and placed in the back of the officers’ cruiser. One of the officers searched the vehicle and retrieved the beer bottle from the center console, a grocery bag containing more beer, and a plastic baggie containing several white rocks, which turned out to be cocaine, in car’s glove compartment. After the defendant was charged with possession of cocaine and other offenses, he moved to suppress the evidence found pursuant to the search of his car. The court concluded that although a search of the car was not proper under Gant, it was proper under the automobile exception. Specifically, the fact that the officers smelled a strong odor of marijuana inside the vehicle provided probable cause to search.