In this Wake County case, a drug investigator was working at a local FedEx facility and noticed a package from California with the seams taped shut and with an apparently fake phone number for the recipient. The officer removed the package from the conveyor belt and searched law enforcement databases for information on the sender and the recipient. He discovered that the telephone number for the sender listed on the package was incorrect, that the telephone number for the recipient was fictitious, and that the package had been mailed from a location other than the listed shipping address. The package was placed alongside several other similar packages and was examined by a drug dog already present in the facility. Following an alert by the canine, officer obtained a search warrant for the package. Inside, officers discovered packages of around 15 pounds of suspected marijuana, along with a GPS tracker. Officers visited the address of the recipient, where they noticed the defendant in the driveway. They also noted the presence of a storage unit facility nearby and later learned the defendant rented a unit there. A man (apparently the sender) called the FedEx facility to inquire about the status of the package. An officer called him back, first verifying the intended address and recipient of the package and then identifying himself as law enforcement. The man on the phone cursed and ended the call. The next day, officers visited the storage facility near the defendant’s home with a canine unit, which alerted to a certain unit. While officers were obtaining a search warrant for the unit, the defendant arrived on scene holding a bag. Officers saw what they believed to be marijuana extract or “wax” inside the bag and placed the defendant under arrest. Once the search warrant for the storage unit was approved, officers discovered more apparent marijuana and marijuana extract inside. Search warrants for the defendant’s house were then obtained, leading to the discovery of marijuana paraphernalia and a substance used to produce marijuana extract. 

The defendant was charged with conspiracy to traffic marijuana, possession with intent to sell/deliver marijuana and possession with intent to sell/deliver THC (among other related offenses). The defendant moved to suppress, arguing that the seizure of the package at the FedEx facility was unconstitutional. The trial court denied the motion, and the defendant was convicted of trafficking and other offenses at trial. On appeal, the defendant challenged the denial of his suppression motion, the denial of his motion to dismiss for insufficient evidence, the admission of lay opinions identifying the substances in the case as marijuana, marijuana wax, and THC, and the admission of the phone call between the officer and the man who called the FedEx facility inquiring about the package. The Court of Appeals affirmed.

(1) The court rejected the argument that the defendant’s Fourth Amendment rights were violated by the seizure of the package and canine sniff at the FedEx facility. “[W]e do not accept Defendant’s initial contention that the mere removal of the target package from the conveyor belt for a drug dog sniff was a ‘seizure’ implicating his Fourth Amendment rights. Neither was the drug dog sniff a ‘search. . .’” Teague Slip op. at 13. While both the sender and recipient of a mailed package have a reasonable expectation of privacy in the contents of a package, the temporary detention and investigation of the package in a manner that does not significantly delay its delivery does not amount to a Fourth Amendment seizure. Officers here had reasonable suspicion to justify a brief investigation and dog sniff of the package. From there, officers properly obtained search warrants of the package, which led to additional search warrants supported by probable cause. Thus, the acts of removing the package for investigation and subjecting it to a canine sniff did not implicate the defendant’s Fourth Amendment rights and the motion to suppress was properly denied. 

(2) Assuming arguendo that the seizure and canine sniff of the package did implicate the defendant’s Fourth Amendment rights, he failed to preserve those arguments for appellate review. While the defendant filed a pretrial motion to suppress and fully litigated those issues (including objecting to the canine alert evidence at trial), he failed to object to testimony at trial about the removal of the package from the conveyor belt for additional investigation. Appellate review of that issue was therefore waived. The dog sniff on its own did not amount to a search, given it took place at the FedEx facility while the item was “still in the mail stream” and was completed within ten minutes. “…Defendant’s renewed objection at trial to the introduction of . . . the dog sniff was insufficient to resurrect any prior unpreserved Fourth Amendment argument for appellate review.” Id. at 25. The trial court also did not plainly err by denying the suppression. Because the defendant’s Fourth Amendment rights were not implicated, no error occurred, much less any plain error in the trial court’s denial of the suppression motion. 

Regarding the defendant’s other challenges, the court noted the continued ambiguity surrounding the impact of hemp legalization on marijuana prosecutions, citing State v. Parker, 277 N.C. App. 531 (2021). The court opined that the now-defunct Industrial Hemp Act did not impact the State’s burden of proof in criminal proceedings “to the degree the Defendant contends,” while also acknowledging that “our appellate courts have yet to fully address the effect of industrial hemp’s legalization on . . . the various stages of a criminal investigation and prosecution for acts involving marijuana.” Teague Slip op. at 28 (citation omitted). 

(3) The defendant argued that the indictment charging him with possession with intent to sell/deliver THC was fatally defective for failure to state a crime because the indictment failed to specify that the THC possessed by the defendant contained a delta-9 THC concentration of more than 0.3%. The court rejected this argument, finding that the concentration of delta-9 THC is not an element of the crime and that the then-applicable Industrial Hemp Act did not remove THC from the list of prohibited controlled substances under Chapter 90 of the North Carolina General Statues. Moreover, the defendant has the burden under G.S. 90-113.1 to prove lawful possession of a controlled substance, which is an exception to the prohibitions on controlled substances and (again) not an element of the offense. (The prohibition on possession of THC in G.S. 90-94 has since been amended to exclude all THC products containing no more than 0.3% delta-9 THC, which expressly removes delta-9 THC within the legal limit and all other hemp-derived THCs not exceeding the delta-9 THC limit from the list of prohibited controlled substances).

(4) The trial correctly denied the defendant’s motion to dismiss the charge of possession with intent to sell/deliver THC for insufficient evidence. The defendant pointed to the lack of any chemical analysis for the brown marijuana “wax” and argued that the State failed to present proof that the substance was an illegal controlled substance given the existence of legal hemp. The court found that the brown material did not qualify as industrial hemp under the then-existing definition but met the definition of THC in place at the time. “The brown material was neither a part nor a variety of the plant Cannabis sativa.” Teague Slip op. at 34 (emphasis in original). Moreover, even if the material did qualify as a part of the plant, “Defendant makes no argument that he was a ‘grower licensed by the Commission’, or that the brown material was cultivated by such a licensed grower, as the statutory definition of ‘industrial hemp’ requires.” Id. at 35. In the light most favorable to the State, there was therefore sufficient evidence that the brown material was THC, and the motion was properly denied. (Industrial hemp is no longer defined under state law and has been replaced by new state definitions for marijuana, hemp and hemp products, as discussed here. Under the new definitions, hemp is defined to include all extracts and derivatives of hemp, and hemp products are defined as anything made from hemp. There is no longer any requirement that hemp be grown by a licensed grower.)

(5) The defendant argued that the legalization of hemp in the state undercut the justifications in the decisions allowing the lay identification of marijuana without the need for a chemical analysis. See, e.g., State v. Mitchell, 224 N.C. App. 171, 179 (2013). He complained on appeal that the admission of lay opinion testimony identifying “marijuana wax,” “THC,” and marijuana as such without a valid chemical analysis violated N.C. Evid R. 702 and was reversible error. The Court of Appeals disagreed. Assuming without deciding that the trial court erred in admitting this testimony, the defendant could not show prejudice. The flower marijuana in the package was properly lab-tested and found to contain illegal levels of delta-9 THC. While the brown wax material was tested only for the presence of delta-9 THC and not for specific levels of THC, the material again did not qualify as industrial hemp under the then-existing definition. While other flower material found in the storage shed was likewise only tested for the presence of THC (and not for quantified THC levels), there was overwhelming evidence of the defendant’s guilt. Given the marijuana that was properly tested, along with the discovery of other drugs and drug paraphernalia at the defendant’s house, storage unit, and in the bag that the defendant was carrying when he encountered officers at the storage unit (among other evidence), there was no reasonable likelihood of a different result at trial had this identification testimony been excluded. 

(6) There was also sufficient evidence supporting the defendant’s conviction for conspiring to traffic marijuana by transportation, and the trial court did not err in admitting a recording of the phone call between the apparent sender of the package and the law enforcement officer. The shipping label accurately named the defendant and his address, and the sender acknowledged that information on the call with the officer. The sender was also upset upon learning that the package had been intercepted by law enforcement. Additionally, the drugs in the package were worth more than $150,00.00 and included a GPS tracking device. This was sufficient to show the defendant and co-conspirator’s “mutual concern for and interest in” the package, thus providing sufficient evidence of the conspiracy. Id. at 44. The phone call between the sender of the package and law enforcement was properly admitted under the hearsay exception for statements of co-conspirators under N.C. Evid. R. 801(d)(E). The court rejected the defendant’s argument that the statement at issue here did not qualify under that exception because it was not a statement made between the conspirators. The court observed:

[W]hen the State has introduced prima facie evidence of a conspiracy, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members regardless of their presence or absence at the time the acts and declarations were done or uttered. Teague Slip op. at 46 (citation omitted) (emphasis in original). 

There was therefore sufficient evidence of the conspiracy conviction and no error in admission of the phone call between law enforcement and the co-conspirator. 

In this Mecklenburg County case, the State appealed an order granting defendant’s motion to suppress evidence seized during a traffic stop. The Court of Appeals reversed the trial court’s order and remanded for additional proceedings. 

In May of 2021, defendant was pulled over by a Charlotte-Mecklenburg Police officer due to suspicion of a fictitious tag. When the officer approached the vehicle, he noticed defendant was fumbling with his paperwork and seemed very nervous, and the officer noted the smell of marijuana in the car. After the officer determined defendant was driving on a revoked license, he asked defendant about the marijuana smell, and defendant denied smoking in the car, but said he had just retrieved the car from his friend and speculated that was the source of the smell. The officer asked defendant to step out of the car and defendant did so, bringing cigarettes, a cellphone, and a crown royal bag with him. The officer put the belongings on the seat and patted defendant down for weapons. Finding no weapons, the officer then searched a crown royal bag and found a green leafy substance along with a digital scale, baggies of white powder, and baggies of colorful pills. Defendant was indicted for Possession of Drug Paraphernalia, Trafficking in Drugs, and Possession with Intent to Sell or Deliver a Controlled Substance, and he filed a motion to suppress the evidence from the bag, arguing the officer did not have probable cause for the search. The trial court orally granted defendant’s motion, referencing State v. Parker, 277 N.C. App. 531 (2021), and explaining “I just think in the totality here and given the new world that we live in, that odor plus is the standard and we didn’t get the plus here.” Slip Op. at 4. 

The Court of Appeals first reviewed its basis for appellate jurisdiction based on the State’s notice of appeal, explaining that the State’s appeal violated Rule of Appellate Procedure 4 by incorrectly identifying the motion to suppress as a “motion to dismiss,” failed to reference G.S. 15A-979(c) as support for its appeal of an interlocutory motion to suppress, and failed to include the statement of grounds for appellate review required by Rule of Appellate Procedure 28(b)(4). Id. at 6-7. Despite the defects with the State’s appeal, the majority determined that the appropriate outcome was to issue a writ of certiorari, but “given the substantial and gross violations of the Rules of Appellate Procedure, we tax the costs of this appeal to the State as a sanction.” Id. at 10. 

After establishing jurisdiction for the appeal, the court turned to the issue of probable cause for the warrantless search of the vehicle and ultimately the crown royal bag. The court declined to consider whether the odor of marijuana alone justified the search, as “[i]n this case, however, as in Parker, the Officer had several reasons in addition to the odor of marijuana to support probable cause to search the vehicle and, consequently, the Crown Royal bag.” Id. at 13. The court pointed to (1) the “acknowledgement, if not an admission” that marijuana was smoked in the car, and that defendant did not assert that it was hemp, (2) defendant was driving with a fictitious tag, and (3) defendant was driving with an invalid license. Id. at 14. Then the court established that the officer also had probable cause to search the Crown Royal bag, quoting State v. Mitchell, 224 N.C. App. 171 (2012), to support that probable cause authorizes a search of “every part of the vehicle and its contents that may conceal the object of the search.” Id. at 15. Although defendant tried to remove the bag as he left the vehicle, the court explained that was “immaterial because the bag was in the car at the time of the stop.” Id. Because the totality of the circumstances supported the officer’s probable cause in searching the vehicle, the trial court’s order granting the motion to suppress was error. 

Judge Murphy concurred in part and dissented in part by separate opinion, and would have found that the State did not adequately invoke the court’s jurisdiction. Id. at 17. 

In this Ashe County case, defendant appealed of his convictions for rape of a child and sex offense with a child, arguing (1) ineffective assistance of counsel by failing to move to suppress evidence obtained from defendant’s cell phone, and (2) structural constitutional error by allowing four disqualified jurors to serve on defendant’s trial. The Court of Appeals found no error.

This opinion represents the second time the Court of Appeals considered defendant’s appeal; in the first instance, State v. Reber, 289 N.C. App. 66 (2023), the court found error in admitting certain prejudicial testimony, ordering a new trial. The Supreme Court then took up the State’s appeal, and reversed and remanded in State v. Reber, 386 N.C. 153 (2024). The current opinion represents the remaining issues not disposed of by the Supreme Court’s opinion.

For (1), defendant argued that he received ineffective assistance of counsel because his attorney did not move to suppress the results of a search of his phone. The court noted the applicable two-part test under Strickland v. Washington, 466 U.S. 668 (1984), and determined defendant could not establish the second prong, prejudice from counsel’s deficient performance. The basis for defendant’s argument was the search warrant application, specifically that it lacked identifying details about the timeline of his communications with the victim and how the police came to possess the phone and connect it to his interactions with the victim. The court noted that a magistrate may draw reasonable inferences when considering an application for a search warrant, and after reviewing the application and affidavit in support of the warrant, concluded “the affidavit set out the underlying circumstances from which the issuing judge could find that probable cause existed” and “the issuance of the warrant was proper.” Slip Op. at 13.

Moving to (2), defendant argued that it was structural constitutional error for the trial judge to allow six jurors who had already served on a case that day to participate in voir dire for defendant’s case because they were disqualified under G.S. 9-3. One of the qualifications for jurors in G.S. 9-3 is that the person “has not served as a juror during the preceding two years,” which defendant argued was violated here by the jurors participating in an earlier trial that day. Id. at 15. Defendant’s case was called to trial on August 3, 2021; earlier that day the jurors in question had served on a misdemeanor stalking case, finding the defendant in that matter not guilty. Afterwards, the judge asked jurors to stay and participate in defendant’s trial. Defense counsel was aware these jurors had served earlier in the day, and four of the six jurors were empaneled for defendant’s jury. Defense counsel did not object to the inclusion of the jurors and used only two of his six peremptory strikes. The court first noted that defendant could not demonstrate prejudice in the jury selection process because “[t]o establish prejudice in jury selection, the defendant must have exhausted all peremptory challenges.” Id. at 17. The court then noted that defendant did not preserve the error for appeal, and this issue did not fall under the structural error framework identified by the U.S. Supreme Court. Regardless of whether defendant successfully preserved his error on appeal, defendant was “unable to show that he was prejudiced by the alleged error or that it deprived him of a fair trial.” Id. at 19.

The defendant was found guilty by a Cleveland County jury of impaired driving and resisting a public officer and was found responsible for possession of open container. He appealed, challenging the denial of his motion to dismiss, the denial of his mid-trial motion to suppress, an evidentiary ruling, and alleging constitutional violations for lost evidence. The Court of Appeals unanimously affirmed.

(1) The defendant claimed there was insufficient evidence that he operated the vehicle while impaired. As to operation, the defendant was found asleep behind the wheel with the car running in the middle of the road and had a bottle of vodka between his legs. No passengers were present, and the defendant asked the officer if he could move the car, revving the engine several times. He also used the driver side door to exit the vehicle. This was sufficient to establish operation. “An individual who is asleep behind the wheel of a car with the engine running is in actual physical control of the car, thus driving the car within the meaning of the statute.”  As to impairment, while the defendant’s blood alcohol content was only 0.07, the defendant’s blood revealed the presence of marijuana, amphetamine and methamphetamine. In addition to the blood test, the defendant “failed” horizontal and vertical gaze nystagmus tests, refused a breath test, had a strong odor of alcohol, was “confused and disoriented,” and exhibited other signs of impairment. This was sufficient evidence of impairment.

The defendant also claimed there was insufficient evidence to support his conviction for resisting a public officer. Specifically, he argued that he was merely confused and in pain at the time of his interactions with the officers, and that this was the cause of his “negative interactions” with the officers. The court rejected this argument, noting: “The conduct proscribed under [N.C. Gen. Stat. §] 14-223 is not limited to resisting an arrest but includes any resistance, delay, or obstruction of an officer in discharge of his duties.” Here, the defendant committed multiple acts that obstructed the officer’s duties. The defendant would not roll down his window when asked by the officer, he repeatedly tried to start his car after being commanded to stop, he refused a breath test at least 10 times, and repeatedly put his hands in his pockets during the nystagmus testing after being instructed not to do so. He also refused to get into the patrol car once arrested and refused to voluntarily allow his blood to be drawn after a search warrant for it was obtained. In the court’s words:

Through these actions and his inactions, Defendant directly opposed the officers in their efforts to discharge their investigative duties of identifying him, speaking with him, and performing field sobriety tests. Thus, Defendant resisted the officers within the meaning of the statute.

The motion to dismiss for insufficient evidence of resisting a public officer was therefore properly denied.

The defendant also claimed his motion to dismiss for insufficiency as to the possession of open container of alcohol should have been granted. He pointed out that the bottle found in his car was not missing much alcohol and the officer admitted to emptying the bottle on the side of the road. Rejecting this argument, the court observed:

[T]he amount of alcohol missing from the container is irrelevant for purposes of this offense, because a contained is opened ‘[i]f the seal on [the] container of alcoholic beverages has been broken.’ Additionally, the fact that [the officer] poured out the contents of the container goes to the weight of the evidence, not its sufficiency.

The trial court therefore did not err in denying the motion for insufficient evidence for this offense.

(2) As to the suppression motion, the issue was preserved despite the motion being untimely because the court considered and ruled on the motion. The defendant argued that the forcible blood draw violated his rights to be free to unreasonable force. He did not challenge the validity of the search warrant authorizing the blood draw. Claims of excessive force are evaluated under the Fourth Amendment reasonableness standard. Graham v. Conner, 490 U.S. 386 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 22 (citations omitted). Here, the officer had a valid warrant (obtained after the defendant’s repeated refusals to provide a breath sample), and the blood draw was performed by medical professionals at a hospital. Any acts of force by police to obtain the blood sample were the result of the defendant’s own resistance. The court observed:

Defendant had no right to resist the execution of a search warrant, and in fact, his actions rose to the level of criminal conduct under N.C. Gen. Stat. § 14-223, for resisting a public officer. . . Defendant ‘cannot resist a lawful warrant and be rewarded with the exclusion of the evidence.’

The force used to effectuate the blood draw was reasonable under the circumstances and did not violate the Fourth Amendment.

The defendant also argued that his motion to suppress should have been granted for failure of the State to show that his blood was drawn by a qualified professional. G.S. 20-139.1(c) provides that doctor, registered nurse, EMT, or other qualified person shall take the blood sample. “An officer’s trial testimony regarding the qualifications of the person who withdrew the blood is sufficient evidence of the person’s qualifications.” Here, the officer testified that a nurse drew the blood, although he could not identify her by name and no other proof of her qualifications was admitted.  This was sufficient evidence that the blood was drawn by qualified person, and this argument was rejected.

(3) The trial court admitted into evidence the bottle found between the defendant’s legs at the time of arrest. According to the defendant, this was an abuse of discretion because the officers admitted to destroying the content of the bottle (by pouring it out) before trial. The defendant argued this was prejudicial and required a new trial. Because the defendant offered no authority that admission of the bottle into evidence was error, this argument was treated as abandoned and not considered.

(4) During the arrest, the stopping officer forgot to turn on his body camera and only began recording the investigation mid-way through. The officer also failed to record interactions with the defendant during processing after arrest in violation of department policy. The trial court found no constitutional violation. The defendant complained on appeal that the “intentional suppression” of this camera footage violated his Sixth and Fourteenth Amendment rights and sought dismissal or a new trial. However, the defendant only argued the Fourteenth Amendment Brady violation on appeal. His Sixth Amendment argument was therefore abandoned and waived.

As to the alleged Brady violation, the defendant did not seek dismissal in the trial court. “We are therefore precluded from reviewing the denial of any such motion, and Defendant’s request that this Court ‘dismiss the prosecution against him’ is itself dismissed.” However, the defendant’s argument at suppression that the failure to record the blood draw violated due process and warranted suppression was preserved. Under Brady v. Maryland, 373 U.S. 83 (1963), suppression of material evidence relevant to guilt or punishment violates due process, regardless of the government’s good or bad faith. Here though, there was no evidence that the State suppressed anything—the video footage was simply not created. Brady rights apply to materials within the possession of the State. “Defendant essentially asks this Court to extend Brady’s holding to include evidence not collected by an officer, which we decline to do.” There was also no indication that the video footage would have been helpful to the defendant. The court therefore rejected this claim. “Although the officers’ failure to record the interaction violated departmental policy, such violation did not amount to a denial of Defendant’s due process rights under Brady in this case.”

In this Dare County case, defendant appealed his convictions for statutory rape, statutory sex offense, indecent liberties, and kidnapping, arguing (1) plain error in denying his motion to suppress evidence, (2) ineffective assistance of counsel for failing to object to the introduction of that evidence, and (3) double jeopardy for entering judgment on first-degree kidnapping and the underlying sexual offense charges. The Court of Appeals found no merit in (1)-(2), but vacated and remanded for resentencing regarding (3). 

In July of 2020, a law enforcement officer obtained a search warrant for defendant’s address after a thirteen-year-old girl reported that defendant took her from her parents’ home and raped her. After searching defendant’s home and seizing several digital storage devices, the officer obtained a second warrant in August of 2020 to access the contents of the devices. When reviewing the contents of the devices, the officer found videos of defendant engaging in sexual acts with two other minor girls. Defendant was subsequently indicted for offenses involving all three minor girls. Before trial, defendant moved to suppress the digital evidence, arguing seizure of the digital devices under the July warrant was overbroad, and the contents reviewed under the August warrant were fruit of the poisonous tree and not related to the crime being investigated. When the matter came to trial, the trial court eventually denied the motion to suppress, and defendant was convicted of all eight counts against him. 

Regarding (1), defendant argued that the affidavits supporting the search warrants “failed to allege any nexus between the items sought and the crime being investigated.” Slip Op. at 10. The Court of Appeals explored the applicable precedent on conclusory affidavits, determining that “[d]espite its failure to establish an explicit connection between [the officer’s] training and experience and his belief in the existence of probable cause,” the July affidavit was not conclusory and permitted the magistrate to reasonably find probable cause for the search. Id. at 23. Moving to the August affidavit, the court reached the same conclusion, and noted that the August affidavit contained an additional attestation regarding the officer’s training and experience related to sex crimes. 

Dismissing (2), the court explained that it had already established the adequacy of the affidavits and probable cause supporting the search warrants, and “[h]ad Defendant’s trial counsel objected to the introduction of the challenged evidence, the result of the proceeding would have been the same.” Id. at 28.  

Arriving at (3), the court explained that “the trial court’s instructions here were such that Defendant could only have been convicted of first-degree kidnapping on the basis of one of the sexual offense charges for which he was also convicted and sentenced.” Id. at 31. Imposing sentences for the underlying sexual offense charges and the first-degree kidnapping charge represented double jeopardy, requiring remand to the trial court for resentencing to second-degree kidnapping or arresting judgment on the underlying sexual offense charges. 

In this Edgecombe County case, defendant appealed his convictions for second-degree murder and aggravated serious injury by vehicle, arguing error in the denial of his motion to suppress a warrantless blood draw and motion to dismiss for insufficient evidence. The Court of Appeals found no error and affirmed. 

In June of 2015, defendant crossed the centerline of a highway and hit another vehicle head on, causing the death of one passenger. Officers responding to the scene interviewed defendant, and noted his responses seemed impaired and the presence of beer cans in his vehicle. A blood draw was performed at the hospital, although the officer ordering the draw did not read defendant his Chapter 20 implied consent rights or obtain a search warrant before the draw. The results of defendant’s blood draw showed a benzodiazepine, a cocaine metabolite, two anti-depressants, an aerosol propellant, and a blood-alcohol level of 0.02.  

Reviewing defendant’s argument that no exigent circumstances supported the warrantless draw of his blood, the Court of Appeals first noted that defense counsel failed to object to the admission of the drug analysis performed on defendant’s blood, meaning his arguments regarding that exhibit were overruled. The court then turned to the exigent circumstances exception to justify the warrantless search, noting that the investigation of the scene took significant time and defendant was not taken to the hospital until an hour and forty-five minutes afterwards. Acknowledging Supreme Court precedent “that the natural dissipation of alcohol in the bloodstream cannot, standing alone, create an exigency in a case of alleged impaired driving sufficient to justify conducting a blood test without a warrant,” the court looked for additional justification in the current case. Slip Op. at 11. Here the court found such justification in the shift change occurring that would prevent the officer from having assistance, and the delay in going to obtain a warrant from the magistrate’s office that would add an additional hour to the process. These circumstances supported the trial court’s finding of exigent circumstances. 

The court then turned to defendant’s argument that insufficient evidence was admitted to establish he was impaired at the time of the accident. The record contained evidence that defendant had beer cans in his truck along with an aerosol can of Ultra Duster, and several witnesses testified as to defendant’s demeanor and speech after the accident. The record also contained a blood analysis showing defendant had five separate impairing substances in his system at the time of the accident, “alcohol, benzyl ethylene (a cocaine metabolite), Diazepam (a benzodiazepine such as Valium), Citalopram (an anti-depressant) and Sertraline (another anti-depressant called “Zoloft”).” Id. at 16. The court found that based on this evidence there was sufficient support for denying defendant’s motion.

In this Randolph County case, the defendant appealed from his conviction for statutory rape, arguing that the trial court erred in (1) denying his motion to suppress evidence from his interrogation because he requested and did not receive counsel, and (2) denying his motion to dismiss because the dates alleged in the indictment varied from the victim’s testimony.

(1) The defendant came to the sheriff’s office for questioning at a detective’s request. Detectives told him about the victim’s allegations that they had vaginal intercourse over a two-year period beginning in 2016, when the victim was 14 and the defendant was 33. After the detectives played a recording of the defendant speaking to the victim, the defendant admitted he had engaged in vaginal intercourse with the victim multiple times in 2017 and 2018. A detective subsequently told the defendant he was under arrest and read the defendant Miranda rights. The defendant said, “I’ll talk to you but I want a lawyer with it and I don’t have the money for one.” The detectives asked additional questions about whether the defendant wanted to speak without a lawyer present. One detective told the defendant that speaking with the detectives “can’t hurt.” This exchange culminated in the defendant signing a waiver of his right to counsel and continuing to speak with the detectives.

The defendant moved to suppress any statements from the interrogation. The trial court denied the motion. The Court of Appeals found no error, concluding that the defendant was not in custody when he initially confessed and that a reasonable police officer would not have understood the defendant’s statement after he was arrested as an unambiguous request for counsel during interrogation. The Court determined that the trial court’s findings were supported by competent evidence that defendant’s request for counsel was ambiguous and the detectives’ statements were an attempt to clarify the defendant’s statements.

(2) The date of the vaginal intercourse listed on the indictment was 2017, but the victim testified at trial that the intercourse occurred in 2016. The defendant moved to dismiss based on this variance. The trial court denied the motion and the Court of Appeals found no error. The Court reasoned that the date given in an indictment for statutory rape is not an essential element of the crime, and noted that courts are lenient concerning dates in cases involving the sexual abuse of minors. The Court concluded that the victim’s testimony alleging vaginal intercourse in 2016 between her and Defendant—when she was 14 and the defendant was 19 years her elder—was sufficient to survive a motion to dismiss.

Judge Arrowood concurred in the result, but wrote separately to opine that once the defendant stated that he wanted a lawyer, the custodial interrogation should have ceased. Nevertheless, given that defendant’s initial confession was made voluntarily and prior to custodial interrogation, Judge Arrowood would have found the trial court’s denial of the suppression motion to be harmless error.

In this Wake County case, a drug investigator was working at a local FedEx facility and noticed a package from California with the seams taped shut and with an apparently fake phone number for the recipient. The officer removed the package from the conveyor belt and searched law enforcement databases for information on the sender and the recipient. He discovered that the telephone number for the sender listed on the package was incorrect, that the telephone number for the recipient was fictitious, and that the package had been mailed from a location other than the listed shipping address. The package was placed alongside several other similar packages and was examined by a drug dog already present in the facility. Following an alert by the canine, officer obtained a search warrant for the package. Inside, officers discovered packages of around 15 pounds of suspected marijuana, along with a GPS tracker. Officers visited the address of the recipient, where they noticed the defendant in the driveway. They also noted the presence of a storage unit facility nearby and later learned the defendant rented a unit there. A man (apparently the sender) called the FedEx facility to inquire about the status of the package. An officer called him back, first verifying the intended address and recipient of the package and then identifying himself as law enforcement. The man on the phone cursed and ended the call. The next day, officers visited the storage facility near the defendant’s home with a canine unit, which alerted to a certain unit. While officers were obtaining a search warrant for the unit, the defendant arrived on scene holding a bag. Officers saw what they believed to be marijuana extract or “wax” inside the bag and placed the defendant under arrest. Once the search warrant for the storage unit was approved, officers discovered more apparent marijuana and marijuana extract inside. Search warrants for the defendant’s house were then obtained, leading to the discovery of marijuana paraphernalia and a substance used to produce marijuana extract. 

The defendant was charged with conspiracy to traffic marijuana, possession with intent to sell/deliver marijuana and possession with intent to sell/deliver THC (among other related offenses). The defendant moved to suppress, arguing that the seizure of the package at the FedEx facility was unconstitutional. The trial court denied the motion, and the defendant was convicted of trafficking and other offenses at trial. On appeal, the defendant challenged the denial of his suppression motion, the denial of his motion to dismiss for insufficient evidence, the admission of lay opinions identifying the substances in the case as marijuana, marijuana wax, and THC, and the admission of the phone call between the officer and the man who called the FedEx facility inquiring about the package. The Court of Appeals affirmed.

(1) The court rejected the argument that the defendant’s Fourth Amendment rights were violated by the seizure of the package and canine sniff at the FedEx facility. “[W]e do not accept Defendant’s initial contention that the mere removal of the target package from the conveyor belt for a drug dog sniff was a ‘seizure’ implicating his Fourth Amendment rights. Neither was the drug dog sniff a ‘search. . .’” Teague Slip op. at 13. While both the sender and recipient of a mailed package have a reasonable expectation of privacy in the contents of a package, the temporary detention and investigation of the package in a manner that does not significantly delay its delivery does not amount to a Fourth Amendment seizure. Officers here had reasonable suspicion to justify a brief investigation and dog sniff of the package. From there, officers properly obtained search warrants of the package, which led to additional search warrants supported by probable cause. Thus, the acts of removing the package for investigation and subjecting it to a canine sniff did not implicate the defendant’s Fourth Amendment rights and the motion to suppress was properly denied. 

(2) Assuming arguendo that the seizure and canine sniff of the package did implicate the defendant’s Fourth Amendment rights, he failed to preserve those arguments for appellate review. While the defendant filed a pretrial motion to suppress and fully litigated those issues (including objecting to the canine alert evidence at trial), he failed to object to testimony at trial about the removal of the package from the conveyor belt for additional investigation. Appellate review of that issue was therefore waived. The dog sniff on its own did not amount to a search, given it took place at the FedEx facility while the item was “still in the mail stream” and was completed within ten minutes. “…Defendant’s renewed objection at trial to the introduction of . . . the dog sniff was insufficient to resurrect any prior unpreserved Fourth Amendment argument for appellate review.” Id. at 25. The trial court also did not plainly err by denying the suppression. Because the defendant’s Fourth Amendment rights were not implicated, no error occurred, much less any plain error in the trial court’s denial of the suppression motion. 

Regarding the defendant’s other challenges, the court noted the continued ambiguity surrounding the impact of hemp legalization on marijuana prosecutions, citing State v. Parker, 277 N.C. App. 531 (2021). The court opined that the now-defunct Industrial Hemp Act did not impact the State’s burden of proof in criminal proceedings “to the degree the Defendant contends,” while also acknowledging that “our appellate courts have yet to fully address the effect of industrial hemp’s legalization on . . . the various stages of a criminal investigation and prosecution for acts involving marijuana.” Teague Slip op. at 28 (citation omitted). 

(3) The defendant argued that the indictment charging him with possession with intent to sell/deliver THC was fatally defective for failure to state a crime because the indictment failed to specify that the THC possessed by the defendant contained a delta-9 THC concentration of more than 0.3%. The court rejected this argument, finding that the concentration of delta-9 THC is not an element of the crime and that the then-applicable Industrial Hemp Act did not remove THC from the list of prohibited controlled substances under Chapter 90 of the North Carolina General Statues. Moreover, the defendant has the burden under G.S. 90-113.1 to prove lawful possession of a controlled substance, which is an exception to the prohibitions on controlled substances and (again) not an element of the offense. (The prohibition on possession of THC in G.S. 90-94 has since been amended to exclude all THC products containing no more than 0.3% delta-9 THC, which expressly removes delta-9 THC within the legal limit and all other hemp-derived THCs not exceeding the delta-9 THC limit from the list of prohibited controlled substances).

(4) The trial correctly denied the defendant’s motion to dismiss the charge of possession with intent to sell/deliver THC for insufficient evidence. The defendant pointed to the lack of any chemical analysis for the brown marijuana “wax” and argued that the State failed to present proof that the substance was an illegal controlled substance given the existence of legal hemp. The court found that the brown material did not qualify as industrial hemp under the then-existing definition but met the definition of THC in place at the time. “The brown material was neither a part nor a variety of the plant Cannabis sativa.” Teague Slip op. at 34 (emphasis in original). Moreover, even if the material did qualify as a part of the plant, “Defendant makes no argument that he was a ‘grower licensed by the Commission’, or that the brown material was cultivated by such a licensed grower, as the statutory definition of ‘industrial hemp’ requires.” Id. at 35. In the light most favorable to the State, there was therefore sufficient evidence that the brown material was THC, and the motion was properly denied. (Industrial hemp is no longer defined under state law and has been replaced by new state definitions for marijuana, hemp and hemp products, as discussed here. Under the new definitions, hemp is defined to include all extracts and derivatives of hemp, and hemp products are defined as anything made from hemp. There is no longer any requirement that hemp be grown by a licensed grower.)

(5) The defendant argued that the legalization of hemp in the state undercut the justifications in the decisions allowing the lay identification of marijuana without the need for a chemical analysis. See, e.g., State v. Mitchell, 224 N.C. App. 171, 179 (2013). He complained on appeal that the admission of lay opinion testimony identifying “marijuana wax,” “THC,” and marijuana as such without a valid chemical analysis violated N.C. Evid R. 702 and was reversible error. The Court of Appeals disagreed. Assuming without deciding that the trial court erred in admitting this testimony, the defendant could not show prejudice. The flower marijuana in the package was properly lab-tested and found to contain illegal levels of delta-9 THC. While the brown wax material was tested only for the presence of delta-9 THC and not for specific levels of THC, the material again did not qualify as industrial hemp under the then-existing definition. While other flower material found in the storage shed was likewise only tested for the presence of THC (and not for quantified THC levels), there was overwhelming evidence of the defendant’s guilt. Given the marijuana that was properly tested, along with the discovery of other drugs and drug paraphernalia at the defendant’s house, storage unit, and in the bag that the defendant was carrying when he encountered officers at the storage unit (among other evidence), there was no reasonable likelihood of a different result at trial had this identification testimony been excluded. 

(6) There was also sufficient evidence supporting the defendant’s conviction for conspiring to traffic marijuana by transportation, and the trial court did not err in admitting a recording of the phone call between the apparent sender of the package and the law enforcement officer. The shipping label accurately named the defendant and his address, and the sender acknowledged that information on the call with the officer. The sender was also upset upon learning that the package had been intercepted by law enforcement. Additionally, the drugs in the package were worth more than $150,00.00 and included a GPS tracking device. This was sufficient to show the defendant and co-conspirator’s “mutual concern for and interest in” the package, thus providing sufficient evidence of the conspiracy. Id. at 44. The phone call between the sender of the package and law enforcement was properly admitted under the hearsay exception for statements of co-conspirators under N.C. Evid. R. 801(d)(E). The court rejected the defendant’s argument that the statement at issue here did not qualify under that exception because it was not a statement made between the conspirators. The court observed:

[W]hen the State has introduced prima facie evidence of a conspiracy, the acts and declarations of each party to it in furtherance of its objectives are admissible against the other members regardless of their presence or absence at the time the acts and declarations were done or uttered. Teague Slip op. at 46 (citation omitted) (emphasis in original). 

There was therefore sufficient evidence of the conspiracy conviction and no error in admission of the phone call between law enforcement and the co-conspirator. 

In this Ashe County case, defendant appealed of his convictions for rape of a child and sex offense with a child, arguing (1) ineffective assistance of counsel by failing to move to suppress evidence obtained from defendant’s cell phone, and (2) structural constitutional error by allowing four disqualified jurors to serve on defendant’s trial. The Court of Appeals found no error.

This opinion represents the second time the Court of Appeals considered defendant’s appeal; in the first instance, State v. Reber, 289 N.C. App. 66 (2023), the court found error in admitting certain prejudicial testimony, ordering a new trial. The Supreme Court then took up the State’s appeal, and reversed and remanded in State v. Reber, 386 N.C. 153 (2024). The current opinion represents the remaining issues not disposed of by the Supreme Court’s opinion.

For (1), defendant argued that he received ineffective assistance of counsel because his attorney did not move to suppress the results of a search of his phone. The court noted the applicable two-part test under Strickland v. Washington, 466 U.S. 668 (1984), and determined defendant could not establish the second prong, prejudice from counsel’s deficient performance. The basis for defendant’s argument was the search warrant application, specifically that it lacked identifying details about the timeline of his communications with the victim and how the police came to possess the phone and connect it to his interactions with the victim. The court noted that a magistrate may draw reasonable inferences when considering an application for a search warrant, and after reviewing the application and affidavit in support of the warrant, concluded “the affidavit set out the underlying circumstances from which the issuing judge could find that probable cause existed” and “the issuance of the warrant was proper.” Slip Op. at 13.

Moving to (2), defendant argued that it was structural constitutional error for the trial judge to allow six jurors who had already served on a case that day to participate in voir dire for defendant’s case because they were disqualified under G.S. 9-3. One of the qualifications for jurors in G.S. 9-3 is that the person “has not served as a juror during the preceding two years,” which defendant argued was violated here by the jurors participating in an earlier trial that day. Id. at 15. Defendant’s case was called to trial on August 3, 2021; earlier that day the jurors in question had served on a misdemeanor stalking case, finding the defendant in that matter not guilty. Afterwards, the judge asked jurors to stay and participate in defendant’s trial. Defense counsel was aware these jurors had served earlier in the day, and four of the six jurors were empaneled for defendant’s jury. Defense counsel did not object to the inclusion of the jurors and used only two of his six peremptory strikes. The court first noted that defendant could not demonstrate prejudice in the jury selection process because “[t]o establish prejudice in jury selection, the defendant must have exhausted all peremptory challenges.” Id. at 17. The court then noted that defendant did not preserve the error for appeal, and this issue did not fall under the structural error framework identified by the U.S. Supreme Court. Regardless of whether defendant successfully preserved his error on appeal, defendant was “unable to show that he was prejudiced by the alleged error or that it deprived him of a fair trial.” Id. at 19.

Two men attempted to rob the victim in a McDonald’s parking lot. One of the suspects fired a gun, and both suspects fled. The victim ran to a nearby parking lot, where he found a law enforcement officer. The victim told the officer what had occurred and described the suspects. Two suspects matching the description were located nearby a few minutes later. When officers approached, the defendant ran. He was apprehended a few minutes later. The victim was taken to the location where the defendant was apprehended, and the victim identified the defendant as the person with a gun who had tried to rob him earlier. The identification was recorded on one of the officer’s body cameras.

The defendant was indicted for attempted robbery with a dangerous weapon. He moved to suppress the victim’s show-up identification. The trial court denied the motion, and the defendant was convicted at trial. The defendant appealed, arguing that the trial court erred when it denied his motion to suppress evidence of the show-up identification and when it failed to instruct the jury about purported noncompliance with the North Carolina Eyewitness Identification Reform Act (“the Act”).

(1) G.S. 15A-284.52(c1) of the Act provides that

• A show-up may only be conducted when a suspect matching the description of the perpetrator is located in close proximity in time and place to the crime, or there is reasonable belief that the perpetrator has changed his or her appearance in close time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness;
• A show-up may only be performed using a live suspect; and
• Investigators must photograph a suspect at the time and place of the show-up to preserve a record of the suspect’s appearance at the time of the show-up.

The Court of Appeals determined that the trial court made findings that supported each of these requirements. The defendant, who matched the victim’s description, was detained less than a half-mile from the site of the attempted robbery. He was suspected of a violent crime that involved the discharge of a firearm and he fled when officers first attempted to detain him. These circumstances required an immediate display of the defendant. An armed suspect who is not detained poses an imminent threat to the public. And had the victim determined that the defendant was not the perpetrator, officers could have released the defendant and continued their search. Finally, the show-up involved a live suspect and was recorded on camera.

The Court of Appeals rejected the defendant’s argument that the Act requires law enforcement officers to obtain a confidence statement and information related to the victim’s vision. G.S. 15A-284.52(c2) requires the North Carolina Criminal Justice Education and Training Standards Commission to develop a policy regarding standard procedures for show-ups. The policy must address “[c]onfidence statements by the eyewitness, including information related to the eyewitness’ vision, the circumstances of the events witnessed, and communications with other eyewitnesses, if any.” The court reasoned that because G.S. 15A-284.52 does not place additional statutory requirements on law enforcement, but instead requires the North Carolina Criminal Justice Education and Training Standards Commission to develop nonbinding guidelines, only G.S. 15A-284.52(c1) sets forth the requirements for show-up identification compliance.

The court further determined that the show-up did not violate the defendant’s due process rights as it was not impermissibly suggestive and did not create a substantial likelihood of misidentification.

(2) G.S. 15A-284.52(d)(3) provides that when evidence of compliance or noncompliance with “this section” of the Act is presented at trial, the jury must be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications. The defendant argued on appeal that he was entitled to a jury instruction on noncompliance with the Act because the officer did not obtain an eyewitness confidence level under G.S. 15A-284.52(c2)(2). The Court of Appeals rejected that argument on the basis that G.S. 15A-284.52(c2) concerns policies and guidelines established by the North Carolina Criminal Justice Education and Training Standards Commission, not the requirements for show-up identifications. Because the officers complied with the show-up procedures in G.S. 15A-284.52(c1), the defendant was not entitled to a jury instruction on noncompliance with the Act.

In this Brunswick County case, defendant appealed his conviction for habitual impaired driving. The Court of Appeals found no error after examining the trial court’s denial of defendant’s motion to suppress and motion to dismiss, and the jury instruction provided regarding defendant’s flight from the scene.

Evidence admitted at trial showed that a witness heard a crash and ran outside to see defendant with a bloody nose sitting behind the wheel of his truck, which was crashed into a ditch. After talking with the witness for several minutes, defendant walked off down the highway and up a dirt road into the woods. Law enforcement arrived, received a description from the witness, and conducted a search, finding defendant behind a bush in the woods 15 minutes later. After handcuffing defendant, the law enforcement officer conducted a “show-up” identification by taking defendant back to the witness and allowing the witness to identify defendant through the rolled-down window of the police vehicle.

The court first examined defendant’s motion to suppress the eyewitness “show-up” identification on due process and Eyewitness Identification Reform Act grounds (“EIRA”) (N.C.G.S § 15A-284.52(c1)-(c2)). Following State v. Malone, 373 N.C. 134 (2019), the court performed a two-part test, finding that although the “show-up” was impermissibly suggestive, the procedures used by law enforcement did not create a likelihood of irreparable misidentification when examined through the five reliability factors articulated in Malone. Applying EIRA, the court found that all three of the requirements in subsection (c1) were followed, as law enforcement provided a live suspect found nearby a short time after the incident and took photographs at the time of the identification. The court also held that subsection (c2) imposes no duty on law enforcement, and instead imposes a duty to develop guidelines on the North Carolina Criminal Justice Education and Training Standards Commission.

The court then reviewed defendant’s motion to dismiss for insufficient evidence showing that he was driving the vehicle. Applying State v. Burris, 253 N.C. App. 525 (2017), and State v. Clowers, 217 N.C. App. 520 (2011), the court determined that circumstantial evidence was sufficient to support a conclusion that defendant was driving the vehicle. Because the circumstantial evidence was substantial and supported the inference that defendant was driving, the lack of direct evidence did not support a motion to dismiss.

Finally, the court examined the jury instruction given regarding defendant’s flight from the scene, Pattern Jury Instruction 104.35. Defendant argued that the evidence showed only that he was leaving the scene of the accident and walking towards his home, actions that did not represent evidence of consciousness of guilt. The court applied the extensive caselaw finding no error in a flight jury instruction when evidence shows the defendant left the scene and took steps to avoid apprehension. Because evidence in the record showed that defendant fled and hid behind a bush, the court found sufficient evidence to support the use of the jury instruction, despite defendant’s alternate explanation of his conduct.

In this Mecklenburg County case, defendant appealed his conviction for possession of a firearm by a felon, arguing error in (1) denying his request for a special instruction, (2) allowing a witness to testify regarding pretrial identification of defendant, and (3) failing to intervene ex mero motu during the prosecutor’s closing argument. The Court of Appeals found no prejudicial error. 

In February of 2020, a man was sitting in his apartment when he heard a loud noise and saw an intruder with a shotgun standing in his doorway. The intruder asked for money and jewelry, and the man complied. At that point, a struggle ensued, and the man was shot in the stomach while escaping with the shotgun. After an investigation, police arrested defendant as the likely intruder. During defendant’s bond hearing, the man was present, and approached the prosecutor to say he recognized defendant based on his appearance. The man gave a statement to the prosecutor confirming defendant was the intruder at his home that night. Defendant eventually came for trial on charges of robbery, burglary, assault, and possession of a firearm by a felon. The jury convicted defendant of possession of a firearm by a felon but acquitted him of the other charges. 

Taking up (1), the Court of Appeals explained that defendant’s requested instruction focused on the palm print from the shotgun. Defendant argued that the jury should be instructed that it could only consider “evidence about fingerprints” if the jury determined the fingerprints were found in the place the crime was committed and put there when the crime occurred. Slip Op. at 9. The court pointed out that defense counsel did not submit the requested instruction in writing as required by N.C. Rule of Civil Procedure 51(b). The court went on to conclude that even if the special instruction was properly submitted, it “was not a proper application of the law to the facts of this case,” as the instruction was not clearly targeted at the possession of a firearm charge and the nature of that offense did not require the jury to find that defendant possessed the firearm at the time of the other alleged offenses related to the home invasion. Id. at 18. 

Moving to (2), the court noted the substance of defendant’s argument dealt with the witness’s testimony that he identified defendant prior to the trial. Here, the court pointed out the required analysis under State v. Harris, 308 N.C. 159 (1983), regarding impermissibly suggestive pretrial identification procedures. The trial court identified several factors suggesting the information, specifically the name, provided by law enforcement to the witness set up a procedure improperly suggesting defendant was the perpetrator. Despite determining the pretrial identification procedure contained elements that were impermissibly suggestive, the trial court subsequently allowed the witness to testify. The court determined this was error, explaining that “the trial court’s factual findings did not support its conclusion of law that [the witness’s] testimony regarding pretrial identification was admissible.” Id. at 33. Despite the trial court’s attempts to separate the concept of an in-court identification from the pretrial identification, the court concluded “we are constrained to hold the trial court erred in prohibiting an in-court identification but thereafter allowing testimony about the pretrial identification.” Id. at 34. However, the court determined that this error was harmless beyond a reasonable doubt due to the evidence in the record, such as the palm print on the shotgun and other supporting circumstantial evidence.

Finally, in (3) the court rejected defendant’s argument that the trial court should have intervened in closing argument when the prosecutor mentioned photographs of defendant holding a firearm that the trial court had previously prevented the jury from viewing. The court noted that defense counsel did not object during the closing argument, and a detective had previously testified about the existence of the photographs, even though the trial court had ruled against admitting them due to their potential prejudicial effect. As a result, the court did not see grossly improper statements that would justify the trial court’s ex mero motu intervention. 

In this first-degree murder case, the defendant challenged (1) the validity of a search warrant for his home; (2) the trial court’s refusal to suppress electronic monitoring data from a GPS unit the defendant was wearing at the time of the offense; (3) the trial court’s refusal to allow him to cross examine a witness on a particular issue; (4) the admission of expert testimony concerning firearms identification and examination: (5) the trial court’s denial of his motion to dismiss the murder charge.  The Court of Appeals rejected each of the defendant’s arguments and upheld his conviction.

(1) The court rejected the defendant’s argument that a search warrant for his home address was defective because of an insufficient nexus between the murder, the evidence sought, and the defendant’s address.  The court noted, among other things, that the search warrant affidavit explained that officers looking through a window had seen bullets on a shelf inside a building at the defendant’s address, that firearms were found in the defendant’s truck when he was arrested, and that there were blood smears on the defendant’s truck and his hands when he was arrested.  The allegations in the warrant affidavit were sufficient for a magistrate to reasonably infer that the items sought under the warrant, such as weapons, ammunition, bloodstains, and DNA evidence, likely could be found at the defendant’s residence.  The court also determined that the trial court’s findings of fact related to the defendant’s motion to suppress supported the trial court’s conclusion that there was probable cause to support the issuance of the warrant.

(2) The Court of Appeals determined that no plain error occurred in connection with the trial court refusing to suppress electronic monitoring data from a GPS device the defendant was wearing at the time of the offense because was on post-release supervision.  Among other things, the court noted that the defendant moved to suppress the data under G.S. 15A-974(a)(2) as a substantial violation of Chapter 15A while alleging that the evidence was obtained in violation of G.S. 15-207.  The court explained that G.S. 15A-974(a)(2) “does not provide a mechanism by which [the defendant] could allege evidence was obtained as a result of a substantial violation of Chapter 15.” 

(3) The Court of Appeals rejected the defendant’s argument that he should have been allowed to cross-examine a witness a witness concerning a Facebook message that the victim sent his mother on the day of the murder suggesting that the victim, who was killed in his home, planned to go somewhere else to fight an unknown person.  The trial court properly excluded the testimony on hearsay grounds, and, given that the message did not point directly towards the guilt of another party, the Court of Appeals concluded that it was “too remote and speculative to be relevant.”

(4) The court next rejected the defendant’s challenge to expert firearm identification evidence, which it examined for plain error because of the defendant’s failure to object to the admission of the testimony at trial.  Conducting a detailed Rule 702 analysis and recounting significant portions of the expert’s testimony, which generally opined that casings and bullets collected from the crime scene were fired from a pistol seized from the defendant, the court determined that the testimony was based on sufficient facts or data and was the product of reliable principles and methods which the expert applied reliably to the facts of the case, as required under Rule 702.

(5) Finally, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the first-degree murder charge on the basis of insufficient evidence of malice, premeditation, and deliberation or that the defendant was the perpetrator.  The court found that the defendant had both the opportunity and the capability to commit the murder, as evidenced by GPS data placing him at the crime scene and witness testimony that on the day in question the defendant brandished a firearm matching the murder weapon.  Evidence tending to show that the defendant fired three shots into the victim’s head, two of which were from close range, was sufficient on the issues of malice and premeditation and deliberation.

The defendant was charged with impaired driving, was convicted in district court, appealed to superior court, and prevailed on a motion to suppress at a pretrial hearing in superior court. The State appealed. (1) The Court of Appeals rejected the State’s argument that the superior court judge lacked jurisdiction to enter a written order after the State gave oral notice of appeal at the conclusion of the hearing at which the judge granted the motion to suppress. At the hearing, the trial judge stated that the State could not establish a nexus between the person the officer saw driving and the defendant who later walked up to the officer. The Court found that the judge’s written order was a chronicle of the findings and conclusions he decided at the motion hearing and was not a new order affecting the merits of the case. (2) The Court rejected the State’s argument that certain findings of fact were not supported by the evidence. In regard to the green pickup truck that the defendant was allegedly driving, the trial judge found that the arresting officer testified that he did not see the truck park or anyone get in or out of the truck. The State asserted that the officer testified that he observed a video at the mini-mart where the truck was parked showing the defendant getting out of the truck. The Court found that the officer testified that the video was lost because he left the flash drive containing the video in his patrol car when he took the car to a mechanic. The Court held that the trial judge determines the credibility of witnesses, the weight to be given to testimony, and reasonable inferences. “The trial court was free to give no weight to [the officer’s] testimony regarding viewing the Mini-mart video.” (3) The Court rejected the State’s argument that probable cause existed to arrest the defendant for impaired driving. The Court found that the trial judge’s findings supported his conclusion that the State failed to show that the defendant was driving and, although the truck was registered to the defendant, failed to establish a connection between the driver of the truck and the defendant.

In this Duplin County case, defendant appealed his convictions for sale and delivery of cocaine, arguing error (1) in denying his motion to suppress certain eyewitness testimony for due process violations, (2) denying the same motion to suppress for Eyewitness Identification Reform Act (“EIRA”) violations, (3) in permitting the jury to examine evidence admitted for illustrative purposes only, and (4) in entering judgment for both selling and delivering cocaine. The Court of Appeals affirmed the denial of defendant’s motion and found no plain error with the jury examining illustrative evidence, but remanded for resentencing due to the error of sentencing defendant for both the sale and delivery of cocaine. 

In December of 2017, the Duplin County Sheriff’s Office had confidential informants performing drug buys from defendant in a trailer park. The informants purchased crack cocaine on two different days from defendant, coming within three to five feet of him on clear days. At a trial preparation meeting in October of 2020, the prosecutor and a detective met with the lead informant; at the meeting, the informant saw a DMV picture of defendant with his name written on it, and responded “yes” when asked if that was the person from whom the informant purchased cocaine. No other pictures were shown to the informant at this meeting. Defense counsel subsequently filed a motion to suppress the testimony of the informant based on this meeting, as well as motions in limine, all of which the trial court denied.  

The Court of Appeals first considered (1) the denial of defendant’s motion to suppress, where defendant argued that the identification procedure violated his due process rights. The due process inquiry consists of two parts: whether the identification procedure was “impermissibly suggestive,” and if the answer is yes, “whether the procedures create a substantial likelihood of irreparable misidentification” after a five-factor analysis. Slip Op. at 9-10, quoting State v. Rouse, 284 N.C. App. 473, 480-81 (2022). Applying the Rouseframework and similar circumstances in State v. Malone, 373 N.C. 134 (2019) and State v. Jones, 98 N.C. App. 342 (1990), the court determined that “[the informant] seeing the photo of Defendant in the file during the trial preparation meeting was impermissibly suggestive,” satisfying the first part. Id. at 18. However, when the court turned to the five-factor analysis, it determined that only the third factor (accuracy of the prior description of the accused) and the fifth factor (the time between the crime and the confrontation of the accused) supported finding of a due process violation. The court concluded that “[b]ecause there was not a substantial likelihood of irreparable misidentification, the identification did not violate due process.” Id. at 24. 

The court also considered (2) defendant’s argument that the EIRA applied and supported his motion to suppress. After reviewing the scope of the EIRA, the court applied State v. Macon, 236 N.C. App. 182 (2014), for the conclusion that a single-photo identification could not be a lineup for EIRA purposes. Slip Op. at 28. The court then considered whether the procedure was a show-up:

In contrast to our longstanding description of show-ups, the procedure here was not conducted in close proximity to the crime and, critically, it was not conducted to try to determine if a suspect was the perpetrator. The identification here took place during a meeting to prepare for [trial]. As a result, the State, both the police and the prosecution, had already concluded Defendant was the perpetrator. The identification acted to bolster their evidence in support of that conclusion since they would need to convince a jury of the same. Since the identification here did not seek the same purpose as a show-up, it was not a show-up under the EIRA.

Id. at 30. The court emphasized the limited nature of its holding regarding the scope of the EIRA, and that this opinion “[did] not address a situation where the police present a single photograph to a witness shortly after the crime and ask if that was the person who committed the crime or any other scenario.” Id. at 32. 

Moving to (3), the court rejected defendant’s argument of plain error in allowing the jury to review his DMV photograph as substantive evidence when it was admitted for illustrative purposes, pointing to the “overwhelming evidence” of defendant’s guilt in the record, including other photographs and recordings of defendant. Id. at 34. 

Finally, the court considered (4) the sentencing issues by the trial court. Here, the trial court improperly sentenced defendant for both selling and delivering cocaine. The court explained that while “a defendant can be tried for both the sale and delivery of a controlled substance, he cannot be sentenced for ‘both the sale and the delivery of a controlled substance arising from a single transfer.’” Id. at 35, quoting State v. Moore, 327 N.C. 378, 382-83 (1990). This error required remand to the trial court for resentencing in keeping with only one conviction for sale or delivery. 

In this New Hanover County case, defendant appealed his conviction for possessing a firearm as a felon, arguing error in the denial of his motion to suppress and improper sentencing. The Court of Appeals found no error.  

In February of 2020, a Wilmington police officer observed defendant enter a parking lot known for drug activity and confer with a known drug dealer. When defendant exited the parking lot, the officer followed, and eventually pulled defendant over for having an expired license plate. During the stop, the officer determined that defendant was a “validated gang member,” and had previously been charged with second-degree murder; the officer was also aware that a local gang war was underway at that time. Slip Op. at 2. The officer frisked defendant and did not find a weapon, but defendant told the officer there was a pocketknife in the driver’s door compartment. When the officer went to retrieve the pocketknife he did not find it, but while looking around the driver’s area he discovered a pistol under the seat. During sentencing for defendant, his prior record level was calculated with nine points for prior crimes and one additional point for committing a crime while on probation/parole/post-release supervision, leading to a level IV offender sentence. 

Reviewing defendant’s appeal, the court first noted that the initial traffic stop for an expired plate was proper. The frisk of defendant’s person and vehicle required the officer to have “a reasonable suspicion that the suspect of the traffic stop is armed and dangerous.” Id. at 7, quoting State v. Johnson, 378 N.C. 236 (2021). The court found the totality of the officer’s knowledge about defendant satisfied this standard, as defendant had just exited a parking lot known for drug transactions, had a history of being charged with murder, was a known gang member, and was in an area experiencing a local gang war. Because the officer had a reasonable suspicion that defendant might be armed and dangerous, the frisk of the vehicle leading to the discovery of the pistol was acceptable. 

Turning to defendant’s sentencing, the court explained that under G.S. 15A-1340.14(b)(7), the state was obligated to provide defendant with notice of its intent to add a prior record level point by proving his offense was committed while on probation, parole, or post-release supervision. While the record did not contain evidence that defendant received the required notice 30 days before trial, the court found that the exchange between defense counsel and the trial court represented waiver for purposes of the requirement. While the trial court did not confirm the receipt of notice through the colloquy required by G.S. 15A-1022.1, the exchange between the trial court and defense counsel fell into the exception outlined in State v. Marlow, 229 N.C. App 593, meaning “the trial court was not required to follow the precise procedures . . . as defendant acknowledged his status and violation by arrest in open court.” Slip Op. at 18. 

In this Chatham County case, defendant appealed after pleading guilty to trafficking in opium or heroin by possession with a plea agreement to preserve his right to appeal the denial of his motion to suppress. The Court of Appeals affirmed the judgment on the guilty plea, but vacated the judgment that revoked defendant’s probation, and remanded to the trial court for reconsideration. 

In July of 2021, defendant was sitting in the passenger seat of a car parked at a gas station when a law enforcement officer pulled up next to him. The officer was in uniform and in a marked car; while the officer pumped gas into his vehicle, he observed defendant move an orange pill bottle from the center console to under his seat. Defendant then exited the vehicle, and the officer questioned him about the pill bottle. Defendant denied having any pills, but after further questioning, produced a different pill bottle, and told the officer the pills were Vicodin he received from a friend. The officer then searched the vehicle, finding the orange pill bottle, and lab testing later confirmed the pills were opioids. Unbeknownst to the officer, defendant was on probation during the encounter. The trial court revoked this probation after defendant’s guilty plea, even though defendant’s probationary period had expired, but the trial court did not make any findings of good cause. 

Taking up the motion to suppress, the Court of Appeals first noted that the case presented an issue of first impression: “Is a search based on a standard less than probable cause (as authorized by the terms and conditions of probation) valid, where the officer performing the search is not aware that the target of his search is on probation?” Slip Op. at 3. However, the court declined to answer this question. Instead, the court concluded that “the evidence of the encounter up to just prior to the search of the vehicle was sufficient to give the officer probable cause to search the vehicle.” Id. at 8. Because defendant only pleaded guilty to the charge related to the orange pill bottle in the vehicle, the court avoided exploring the issues related to the Vicodin inside the other pill bottle that defendant offered after questioning. 

The court then considered the revocation of defendant's probation, noting that the State conceded the trial court’s error in not making a “good cause” finding. The court noted that “there was sufficient evidence before the trial court from which that court could make the required finding” and remanded for reconsideration. Id. at 10. 

In this Edgecombe County case, defendant appealed his convictions for second-degree murder and aggravated serious injury by vehicle, arguing error in the denial of his motion to suppress a warrantless blood draw and motion to dismiss for insufficient evidence. The Court of Appeals found no error and affirmed. 

In June of 2015, defendant crossed the centerline of a highway and hit another vehicle head on, causing the death of one passenger. Officers responding to the scene interviewed defendant, and noted his responses seemed impaired and the presence of beer cans in his vehicle. A blood draw was performed at the hospital, although the officer ordering the draw did not read defendant his Chapter 20 implied consent rights or obtain a search warrant before the draw. The results of defendant’s blood draw showed a benzodiazepine, a cocaine metabolite, two anti-depressants, an aerosol propellant, and a blood-alcohol level of 0.02.  

Reviewing defendant’s argument that no exigent circumstances supported the warrantless draw of his blood, the Court of Appeals first noted that defense counsel failed to object to the admission of the drug analysis performed on defendant’s blood, meaning his arguments regarding that exhibit were overruled. The court then turned to the exigent circumstances exception to justify the warrantless search, noting that the investigation of the scene took significant time and defendant was not taken to the hospital until an hour and forty-five minutes afterwards. Acknowledging Supreme Court precedent “that the natural dissipation of alcohol in the bloodstream cannot, standing alone, create an exigency in a case of alleged impaired driving sufficient to justify conducting a blood test without a warrant,” the court looked for additional justification in the current case. Slip Op. at 11. Here the court found such justification in the shift change occurring that would prevent the officer from having assistance, and the delay in going to obtain a warrant from the magistrate’s office that would add an additional hour to the process. These circumstances supported the trial court’s finding of exigent circumstances. 

The court then turned to defendant’s argument that insufficient evidence was admitted to establish he was impaired at the time of the accident. The record contained evidence that defendant had beer cans in his truck along with an aerosol can of Ultra Duster, and several witnesses testified as to defendant’s demeanor and speech after the accident. The record also contained a blood analysis showing defendant had five separate impairing substances in his system at the time of the accident, “alcohol, benzyl ethylene (a cocaine metabolite), Diazepam (a benzodiazepine such as Valium), Citalopram (an anti-depressant) and Sertraline (another anti-depressant called “Zoloft”).” Id. at 16. The court found that based on this evidence there was sufficient support for denying defendant’s motion.

In this Martin County case, the defendant was convicted of assault with a deadly weapon inflicting serious injury, felony serious injury by vehicle and driving while impaired for his driving of a vehicle after consuming prescription medications, crossing into oncoming traffic, hitting two other vehicles, and seriously injuring another driver.

(1) The defendant, who was seriously injured in the crash and was taken to the hospital, had a “few coherent moments” in which he agreed to allow his blood to be withdrawn and analyzed for evidence of impairment. The defendant subsequently moved to suppress evidence of the blood analysis on the basis that there was not probable cause to believe he was driving while impaired, the blood was withdrawn without a warrant, and there were no exigent circumstances. The trial court denied the motion, and the Court of Appeals found no error. The Court first determined that the following evidence established probable cause: (a) a witness called 911 to report erratic driving by the defendant before the defendant crashed his vehicle into two other vehicles; (b) there were no skid marks at the scene to indicate that the defendant attempted to stop his vehicle; (c) the defendant admitted to taking oxycodone, valium, and morphine earlier in the day; and (d) after the crash, the defendant was lethargic, had slurred speech, droopy eyelids, and a blank stare. The Court then concluded that exigent circumstances existed as the officer did not have time to obtain a search warrant given the extent of the defendant’s injuries; indeed, the hospital postponed administering necessary pain medication to the defendant until after the State withdrew his blood. After the blood draw, the defendant was air-lifted to another hospital for a higher level of care.

(2) The defendant argued that the trial court erred by failing to take judicial notice of the National Weather Station’s weather conditions (the “Weather Report”) on the date of the collision. The Court of Appeals disagreed, reasoning that the Weather Report was not a document of indisputable accuracy for purposes of Rule 201(b) of the North Carolina Rules of Evidence because it did not state the level of rain that was occurring at the time of the crash. Thus, the Court of Appeals reasoned, the trial court was not required to take judicial notice of the report under Rule 201(d), but was free to use its discretion pursuant to Rule 201(c). And, the Court of Appeals concluded, the trial court did not abuse its discretion by declining to take judicial notice of the Weather Report.

(3), (4) The defendant argued on appeal that the trial court erred in admitting testimony from an analyst regarding the analysis of defendant’s blood, the analyst’s report, and the accompanying chain of custody report. The Court of Appeals found no error. The Court determined that the analyst’s testimony and his report were admissible because, even though the analyst relied on data collected by and tests performed by others, the analyst himself analyzed and reviewed the data, forming his own independent expert opinion and writing his own report. The Court further held that the trial court did not err by admitting the chain of custody report because the State established an adequate chain of custody through testimony of the law enforcement officer who submitted the blood and the analyst who prepared the report.

(5) The Court of Appeals determined that the trial court did not err in denying defendant’s motion to dismiss for insufficient evidence. Defendant’s erratic driving, the severity of the crash, his admission to taking medications, his impaired behavior, and the results of the analysis of defendant’s blood provided substantial evidence of impaired driving. Defendant’s driving in an erratic and reckless manner while impaired and crashing into another vehicle without appearing to have braked, seriously injuring the other driver provided substantial evidence of assault with a deadly weapon inflicting serious injury. Finally, the serious injury to the other driver caused by defendant’s impaired driving provided substantial evidence of felony serious injury by vehicle.

Judge Dietz concurred in the judgment, writing separately to state that he would have resolved the suppression issue solely based on the evidence of impairment establishing probable cause and the exigency resulting from the need to draw blood before medical professionals administered additional medications.

The defendant was indicted for attempted first-degree murder, robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and other offenses. The State alleged that the defendant shot a man and his wife, Bruce and Joanne Parker, as they were getting into their car in a darkened Charlotte parking lot. After shooting Mr. Parker, the defendant, who was accompanied by a male and female companion, took Mr. Parker’s wallet and cell phone.

Off-duty officers arrived on the scene shortly after the couple was shot and saw the defendant and his two companions leaving the scene in the defendant’s car. Mr. Parker identified the defendant as the person who shot him. The officers gave chase, and the defendant’s male companion, who was driving, crashed the car. The defendant and his companions ran from the car. The driver was apprehended. The defendant and his female companion ran into a parking garage, where they were captured on surveillance footage, but were not apprehended by officers. On the driver’s seat floorboard of the crashed car, officers found the gun used to shoot the couple, the husband’s cell phone and wallet, and a purse and driver’s license belonging to the defendant’s female companion. Forty-five minutes later, the defendant called law enforcement officers to report that he had been carjacked earlier in the evening.

A few days after the shooting, an officer came to Mr. Parker’s hospital room and showed him a photographic lineup. The defendant’s picture was in the lineup, but Mr. Parker identified another person as the shooter. During trial, Mr. Parker testified that he was able to make out the shooter’s face during the attack. He then, without objection, identified the defendant in the courtroom, stating that the defendant was “pretty much the same man as he was that night,” only that he “appeared a little bit thinner.”

(1) On appeal, the defendant argued that the trial court erred by denying his motion to dismiss because there was insufficient evidence both that he was the perpetrator of the offenses and that there was a conspiracy to commit robbery with a dangerous weapon. The Court of Appeals rejected this argument, noting that Mr. Parker identified the car and the defendant as the shooter at the scene; that the officers saw the defendant leaving the scene and the car he was in; that Mr. Parker gave a description of the defendant that same night; that the description matched a person seen on surveillance after the car crashed; that the defendant was the owner of the car; and that Mr. Parker identified the defendant as the shooter in court. The Court also rejected the defendant’s insufficiency of the evidence argument regarding the conspiracy. The Court relied on State v. Lamb, 342 N.C. 151 (1995), and State v. Miles, 267 N.C. App. 78 (2019), in concluding that there was sufficient evidence from which a reasonable juror could conclude that the defendant acted in coordination with the other occupants of the vehicle to rob the Parkers with a dangerous weapon.

(2) The defendant next argued that the trial court erred by sustaining the State’s objection to the defendant’s question concerning a civil lawsuit filed by the Parkers against the owner of the parking lot alleging inadequate security. The defendant contended that the civil lawsuit was relevant because it showed that the Parkers had an interest in the outcome of the criminal prosecution. The Court has previously held that “where a witness for the prosecution has filed a civil suit for damages against the criminal defendant himself, the pendency of the suit is admissible to impeach the witness by showing the witness’s interest in the outcome of the criminal prosecution.” State v. Dixon, 77 N.C. App. 27, 31– 32 (1985); State v. Grant, 57 N.C. App. 589, 591 (1982). The Court concluded that because the civil suit was not filed against the defendant and because it was not necessary for the Parkers to prove in the civil suit that the defendant was the assailant, the pendency of the civil suit did not show Mr. Parker’s interest in the outcome of the criminal prosecution and was therefore not admissible to impeach the witness.

(3) The defendant’s final argument was that the trial court plainly erred by failing to exclude Mr. Parker’s in-court identification, which the defendant did not object to at trial. The defendant contended that the in-court identification was tainted by Mr. Parker’s exposure to media coverage of the case, his filing of a civil lawsuit that named the defendant as the assailant, the lapse of time, and his identification of someone other than the defendant in the photo lineup. The Court of Appeals concluded that these factors alone did not trigger due process concerns and that the alleged defects of the in-court identification were issues of credibility for the jury to resolve. The Court explained that absent any indication that the in-court identification was tainted by an impermissibly suggestive pre-trial identification procedure, there was no error, let alone plain error, in admitting Mr. Parker’s in-court identification.

In this first-degree murder case, the defendant challenged (1) the validity of a search warrant for his home; (2) the trial court’s refusal to suppress electronic monitoring data from a GPS unit the defendant was wearing at the time of the offense; (3) the trial court’s refusal to allow him to cross examine a witness on a particular issue; (4) the admission of expert testimony concerning firearms identification and examination: (5) the trial court’s denial of his motion to dismiss the murder charge.  The Court of Appeals rejected each of the defendant’s arguments and upheld his conviction.

(1) The court rejected the defendant’s argument that a search warrant for his home address was defective because of an insufficient nexus between the murder, the evidence sought, and the defendant’s address.  The court noted, among other things, that the search warrant affidavit explained that officers looking through a window had seen bullets on a shelf inside a building at the defendant’s address, that firearms were found in the defendant’s truck when he was arrested, and that there were blood smears on the defendant’s truck and his hands when he was arrested.  The allegations in the warrant affidavit were sufficient for a magistrate to reasonably infer that the items sought under the warrant, such as weapons, ammunition, bloodstains, and DNA evidence, likely could be found at the defendant’s residence.  The court also determined that the trial court’s findings of fact related to the defendant’s motion to suppress supported the trial court’s conclusion that there was probable cause to support the issuance of the warrant.

(2) The Court of Appeals determined that no plain error occurred in connection with the trial court refusing to suppress electronic monitoring data from a GPS device the defendant was wearing at the time of the offense because was on post-release supervision.  Among other things, the court noted that the defendant moved to suppress the data under G.S. 15A-974(a)(2) as a substantial violation of Chapter 15A while alleging that the evidence was obtained in violation of G.S. 15-207.  The court explained that G.S. 15A-974(a)(2) “does not provide a mechanism by which [the defendant] could allege evidence was obtained as a result of a substantial violation of Chapter 15.” 

(3) The Court of Appeals rejected the defendant’s argument that he should have been allowed to cross-examine a witness a witness concerning a Facebook message that the victim sent his mother on the day of the murder suggesting that the victim, who was killed in his home, planned to go somewhere else to fight an unknown person.  The trial court properly excluded the testimony on hearsay grounds, and, given that the message did not point directly towards the guilt of another party, the Court of Appeals concluded that it was “too remote and speculative to be relevant.”

(4) The court next rejected the defendant’s challenge to expert firearm identification evidence, which it examined for plain error because of the defendant’s failure to object to the admission of the testimony at trial.  Conducting a detailed Rule 702 analysis and recounting significant portions of the expert’s testimony, which generally opined that casings and bullets collected from the crime scene were fired from a pistol seized from the defendant, the court determined that the testimony was based on sufficient facts or data and was the product of reliable principles and methods which the expert applied reliably to the facts of the case, as required under Rule 702.

(5) Finally, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the first-degree murder charge on the basis of insufficient evidence of malice, premeditation, and deliberation or that the defendant was the perpetrator.  The court found that the defendant had both the opportunity and the capability to commit the murder, as evidenced by GPS data placing him at the crime scene and witness testimony that on the day in question the defendant brandished a firearm matching the murder weapon.  Evidence tending to show that the defendant fired three shots into the victim’s head, two of which were from close range, was sufficient on the issues of malice and premeditation and deliberation.

In this Buncombe County case, defendant appealed his convictions for driving while impaired and reckless driving, arguing (1) there was insufficient evidence that he was driving the vehicle, and (2) error in denying his motion to suppress the results of a warrantless blood draw. The Court of Appeals majority found no error. 

In November of 2014, a trooper responded to a single vehicle accident and found a heavily damaged pickup truck against a steel fence off the side of the road. Defendant was inside the vehicle, unconscious and seriously injured. The trooper noticed the smell of alcohol and open beer cans in the vehicle. Defendant was the owner of the wrecked vehicle and there were no other people at the scene of the accident. At the hospital, the trooper ordered a warrantless blood draw. The results of this blood draw were that defendant was intoxicated, and these results were admitted at trial. The jury subsequently convicted defendant of drunk driving solely on the grounds that his blood alcohol level was above the legal limit under G.S. 20-138.1(a)(2).  

The Court of Appeals first considered (1), noting that admitting opinion testimony from the trooper that defendant was operating the vehicle was improper, as the trooper did not observe defendant actually drive the pickup truck. The court explained this was not reversible error because the trial court provided a curative instruction to the jury, directing them to disregard the trooper’s testimony that defendant was the driver. The court found that sufficient evidence beyond the trooper’s testimony supported finding that defendant was the driver, justifying denial of defendant’s motion to dismiss. 

Considering (2), the court explained that exigent circumstances supporting a warrantless blood draw almost always exist where a defendant is unconscious and being taken to a hospital. In Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), the Supreme Court’s plurality held that normally law enforcement may order a warrantless blood draw when the suspect is unconscious and taken to a hospital for treatment, but that the defendant must have an opportunity to argue the lack of exigency and show an “unusual case” that would require a warrant. Slip Op. at 8. Here, the court found that defendant had such an opportunity, and found no error in admitting the results of the blood draw. 

Judge Tyson concurred in the judgment on (1), but dissented by separate opinion regarding (2), disagreeing with the majority’s application of Mitchell and the admission of the results obtained through the warrantless blood draw. 

In this possession of a firearm by a felon case, the trial court did not err by allowing evidence of a handgun a police officer removed from the defendant’s waistband during a lawful frisk that occurred after a lawful stop. Police received an anonymous 911 call stating that an African-American male wearing a red shirt and black pants had just placed a handgun in the waistband of his pants while at a specified gas station. Officer Clark responded to the scene and saw 6 to 8 people in the parking lot, including a person who matched the 911 call description, later identified as the defendant. As Clark got out of his car, the defendant looked directly at him, “bladed” away and started to walk away. Clark and a second officer grabbed the defendant. After Clark placed the defendant in handcuffs and told him that he was not under arrest, the second officer frisked the defendant and found a revolver in his waistband. The defendant unsuccessfully moved to suppress evidence of the gun at trial. The court held that the trial court did not err by denying the motion to suppress. It began by holding that the anonymous tip was insufficient by itself to provide reasonable suspicion for the stop. However, here there was additional evidence. Specifically, as Clark exited his car, the defendant turned his body in such a way as to prevent the officer from seeing a weapon. The officer testified that the type of turn the defendant executed was known as “blading,” which is “[w]hen you have a gun on your hip you tend to blade it away from an individual.” Additionally the defendant began to move away. And, as the officers approached the defendant, the defendant did not inform them that he was lawfully armed. Under the totality of the circumstances, these facts support reasonable suspicion.

            The court then held that the frisk was proper. In order for a frisk to be proper officers must have reasonable suspicion that the defendant was armed and dangerous. Based on the facts supporting a finding of reasonable suspicion with respect to the stop, the officers had reasonable suspicion to believe that the defendant was armed. This, coupled with his struggle during the stop and continued failure to inform officers that he was armed, supported a finding that there was reasonable suspicion that the defendant was armed and dangerous.

In this Orange County case, defendant appealed his conviction for possession of a firearm by a felon, arguing error in denying his motion to suppress the search of his vehicle. The Court of Appeals found no error in denying the motion to suppress.

In October of 2020, a sheriff’s deputy noticed a vehicle with an inoperable tag light at a gas station; after running the license plate, the deputy determined the registered owner had a suspended license. It was unclear to the deputy who was operating the vehicle. After the deputy initiated a traffic stop, defendant’s daughter turned out to be driving the vehicle, and she admitted to the sheriff’s deputies that she did not have a license. Defendant was in the front seat and deputies observed that he appeared intoxicated. The deputies prepared a citation for the driver of the vehicle and asked the occupants to step out while a K-9 sniffed the vehicle. The K-9 alerted on the passenger side, and defendant admitted that his friend had brought marijuana into his vehicle two days ago, but that it had been thrown out. After a search of the vehicle no narcotics were found, but a gun was found in the passenger side glovebox. At trial, defendant filed a motion to suppress the search, and the trial court denied this motion after a hearing. Defendant entered an Alford plea and reserved his right to appeal.

The Court of Appeals first examined defendant’s challenged findings of fact, walking through the seven written findings in turn. The court found competent evidence in the record, primarily from the body-worn cameras of the officers during the traffic stop. Noting that “[t]he trial court was in the best position to resolve any evidentiary conflict in its factual findings, even if a different conclusion could have been reached,” the court found each finding was supported by competent evidence and binding on appeal. Slip Op. at 8.

Moving to the challenged conclusions of law, the court noted defendant’s challenges raised three primary issues related to the stop: (i) reasonable suspicion for the original stop, (ii) reasonable suspicion to extend the stop, and (iii) the stop was illegally prolonged. Considering (i), the court found reasonable suspicion to stop the vehicle based on the inoperable tag light and suspended license of the registered owner, as the deputy did not know who was driving. Taking up (ii), the court explained that before the original purpose for the stop was completed, defendant’s daughter admitted she was driving without a license, which “provided the deputies with additional reasonable and articulable suspicion to justify further delay of the traffic stop.” Id. at 13 (cleaned up). Finally in (iii), the court explained that the K-9 was on the scene from the initial traffic stop, and was deployed while one deputy was still addressing the citation for driving without a license. The court concluded “the use of the K-9 did not unconstitutionally prolong the stop.” Id. at 15. 

In this possession of a firearm by a felon case, the trial court did not err by allowing evidence of a handgun a police officer removed from the defendant’s waistband during a lawful frisk that occurred after a lawful stop. Police received an anonymous 911 call stating that an African-American male wearing a red shirt and black pants had just placed a handgun in the waistband of his pants while at a specified gas station. Officer Clark responded to the scene and saw 6 to 8 people in the parking lot, including a person who matched the 911 call description, later identified as the defendant. As Clark got out of his car, the defendant looked directly at him, “bladed” away and started to walk away. Clark and a second officer grabbed the defendant. After Clark placed the defendant in handcuffs and told him that he was not under arrest, the second officer frisked the defendant and found a revolver in his waistband. The defendant unsuccessfully moved to suppress evidence of the gun at trial. The court held that the trial court did not err by denying the motion to suppress. It began by holding that the anonymous tip was insufficient by itself to provide reasonable suspicion for the stop. However, here there was additional evidence. Specifically, as Clark exited his car, the defendant turned his body in such a way as to prevent the officer from seeing a weapon. The officer testified that the type of turn the defendant executed was known as “blading,” which is “[w]hen you have a gun on your hip you tend to blade it away from an individual.” Additionally the defendant began to move away. And, as the officers approached the defendant, the defendant did not inform them that he was lawfully armed. Under the totality of the circumstances, these facts support reasonable suspicion.

            The court then held that the frisk was proper. In order for a frisk to be proper officers must have reasonable suspicion that the defendant was armed and dangerous. Based on the facts supporting a finding of reasonable suspicion with respect to the stop, the officers had reasonable suspicion to believe that the defendant was armed. This, coupled with his struggle during the stop and continued failure to inform officers that he was armed, supported a finding that there was reasonable suspicion that the defendant was armed and dangerous.

In this possession of a firearm by a felon case, the trial court did not err by allowing evidence of a handgun a police officer removed from the defendant’s waistband during a lawful frisk that occurred after a lawful stop. Police received an anonymous 911 call stating that an African-American male wearing a red shirt and black pants had just placed a handgun in the waistband of his pants while at a specified gas station. Officer Clark responded to the scene and saw 6 to 8 people in the parking lot, including a person who matched the 911 call description, later identified as the defendant. As Clark got out of his car, the defendant looked directly at him, “bladed” away and started to walk away. Clark and a second officer grabbed the defendant. After Clark placed the defendant in handcuffs and told him that he was not under arrest, the second officer frisked the defendant and found a revolver in his waistband. The defendant unsuccessfully moved to suppress evidence of the gun at trial. The court held that the trial court did not err by denying the motion to suppress. It began by holding that the anonymous tip was insufficient by itself to provide reasonable suspicion for the stop. However, here there was additional evidence. Specifically, as Clark exited his car, the defendant turned his body in such a way as to prevent the officer from seeing a weapon. The officer testified that the type of turn the defendant executed was known as “blading,” which is “[w]hen you have a gun on your hip you tend to blade it away from an individual.” Additionally the defendant began to move away. And, as the officers approached the defendant, the defendant did not inform them that he was lawfully armed. Under the totality of the circumstances, these facts support reasonable suspicion.

            The court then held that the frisk was proper. In order for a frisk to be proper officers must have reasonable suspicion that the defendant was armed and dangerous. Based on the facts supporting a finding of reasonable suspicion with respect to the stop, the officers had reasonable suspicion to believe that the defendant was armed. This, coupled with his struggle during the stop and continued failure to inform officers that he was armed, supported a finding that there was reasonable suspicion that the defendant was armed and dangerous.

In this Rowan County case, the Supreme Court reversed and remanded an unpublished Court of Appeals decision that officers did not have reasonable suspicion to stop defendant’s vehicle, concluding the officers had independent reasonable suspicion to stop defendant. 

In June of 2018, defendant drove towards traffic checkpoint operated by the Rowan County Sheriff’s Office; as defendant neared the checkpoint, his passenger-side wheels left the roadway and went into the grass. Based on the erratic driving along with defendant’s demeanor and glassy eyes, the deputies searched his vehicle, discovering cocaine, buprenorphine, marijuana, and drug paraphernalia. Defendant moved to suppress the search, and the trial court concluded that the sheriff’s office did not have a valid primary programmatic purpose for the checkpoint, granting the motion to suppress. The Court of Appeals agreed, affirming the order in an unpublished opinion issued July 20, 2021. The opinion did not address whether the officers had independent reasonable suspicion to stop defendant, although a concurrence to the opinion suggested the opinion should have considered that issue. 

Taking up the unpublished opinion on discretionary review, the Supreme Court explained that reasonable suspicion supported the deputies’ decision to stop defendant. The record showed “three officers testified that they observed defendant’s vehicle veer out of its lane and ‘basically run off the road.’” Slip Op. at 4-5. The Court further noted that no testimony “support[ed] the inference that placement of the checkpoint contributed to defendant’s failure to maintain lane control.” Id. at 5. Because the officers had independent reasonable suspicion to stop defendant, they did not violate his Fourth Amendment rights, and the Court did not need to reach the issue of the traffic checkpoint’s constitutionality. The Court disavowed the Court of Appeals’ “broad statements on traffic stop constitutionality” and remanded to the trial court for appropriate proceedings. Id. at 6. 

The Court reversed and remanded a decision by the Ninth Circuit, holding that because police officers had probable cause to arrest Respondent Bartlett, his First Amendment retaliatory arrest claim fails as a matter of law. Russell Bartlett sued petitioners—two police officers—alleging that they retaliated against him for his protected First Amendment speech by arresting him for disorderly conduct and resisting arrest. The Court held that probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment.