State v. Schiene, ___ N.C. App. ___ (Oct. 1, 2024)

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.