State v. Little

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-410

Filed 3 September 2024

Hoke County, Nos. 20 CRS 368, 50657-58

STATE OF NORTH CAROLINA

v.

BRYANT R. LITTLE

Appeal by defendant from orders and judgments entered 13 July 2022 and 26

August 2022 by Judge Michael A. Stone in Superior Court, Hoke County. Heard in

the Court of Appeals 20 November 2023.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Martin

T. McCracken, for the State.

Jarvis John Edgerton, IV, for defendant-appellant.

STROUD, Judge.

Defendant appeals from the trial court’s denial of his motion to suppress

evidence of a firearm, bullets, alleged marijuana, and sandwich bags found during a

roadside vehicular search. Defendant contends that the law enforcement officer’s

grounds for probable cause, the odor and appearance of marijuana, was insufficient

to conduct a search of his vehicle. Thus, Defendant argues the evidence was obtained

through an unlawful warrantless search and all evidence obtained should have been

suppressed. We hold that the trial court did not err when it denied Defendant’s

motion to suppress, as probable cause existed to search Defendant’s vehicle without

a warrant.

STATE V. LITTLE

Opinion of the Court

I. Factual and Procedural Background

On 12 May 2020, Hoke County Sheriff’s Deputy Daniel Barron observed a Ford

F-150 truck “cross the center line and travel left of center at least on three separate

occasions.” Deputy Barron executed a traffic stop on the vehicle. The trial court made

the following findings of fact as to the traffic stop and search:

3. That Barron approached the driver’s side of the F-150

and the driver’s window was down. That Barron

immediately smelled a strong and distinct odor of

marijuana. Barron had over ten years of law enforcement

experience and was familiar with the properties and odor

of marijuana. That Barron requested the license of the

driver and registration of the vehicle. The driver and sole

occupant of the F-150 was the defendant, Bryant Little.

The defendant could not produce registration for the F-150

and indicated to Barron that the vehicle was a rental.

4. That backup officers, Corporal Kavanaugh

(“Kavanaugh”) and Deputy Schell (“Schell”) arrived to

assist Barron. That both Barron and Schell observed in

plain sight on the passenger floorboard of the F-150

extensive marijuana residue which almost completed [sic]

covered the area. That the passenger side window was not

tinted, nor had any obstructions to obstruct the plain view

of the officers.

5. That Kavanaugh specifically asked the defendant about

marijuana and defendant responded by accusing the

marijuana residue as being from a cousin. Upon further

conversation with the defendant, that Kavanaugh learned

that the defendant was on federal post release. The federal

criminal judgment includes as a condition that the

defendant be subject to warrantless searches. While this

may not be relevant to these proceedings, this will be noted

by the Court.

6. At no time did the defendant indicate that the substance

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Opinion of the Court

observed in plain view all over the front floorboard of the

F-150 was hemp or any other substance not under the

subject matter of the North Carolina Controlled

Substances Act or Chapter 90 of the North Carolina

General Statutes.

7. Additionally, at no time did the defendant claim the

substance was hemp or that he was legally entitled to

possess the substance. Furthermore, there was no

evidence that the controlled substance was hemp.

The officers conducted a full search of the vehicle while Corporal Kavanaugh

observed and stayed with Defendant. Ultimately, the officers recovered a firearm;

bullets; an open box of sandwich bags; a flip phone; a touch screen cell phone; and

$10,600.00 in cash from Defendant’s vehicle.

On or about 16 November 2020, Defendant was indicted for possession of a

stolen firearm, carrying a concealed firearm, and possession of a firearm by a felon.

On 16 May 2022, Defendant filed a motion to suppress all the evidence seized from

the search of his vehicle following the traffic stop. Defendant argued that the officers

conducted an unlawful search of his vehicle because the odor or appearance of

marijuana, standing alone, after the legalization of hemp was insufficient to establish

probable cause.

On 12 July 2022 the trial court conducted a hearing on Defendant’s motion to

suppress and denied the motion in open court that same day, giving a detailed

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Opinion of the Court

rendition of its findings of fact and conclusions on the record. On 13 July 2022 and 2

August 2022, the trial court reduced its ruling to written orders.1

After the trial court’s ruling on the motion to suppress, Defendant pled guilty

to possession of a stolen firearm, carrying a concealed firearm, possession of a firearm

by a felon, possession of marijuana paraphernalia, and driving left of center.

Defendant reserved his right to appeal the denial of his suppression motion. On 13

July 2022, the trial court entered judgment on the charges of possession of a firearm

by a felon, possession of a stolen firearm, carrying a concealed gun, and possession of

marijuana paraphernalia. Defendant gave oral notice of appeal in open court on 13

July 2022 and later filed written notice of appeal from the trial court’s order and

judgments on 19 July 2022.

1 We note that the trial court entered two orders denying Defendant’s motion to suppress. The hearing

was held on 12 July 2022. The trial court rendered a brief ruling denying the motion to suppress on

12 July 2022 and then rendered a detailed ruling on the record on 13 July 2022. The first written

order was filed on 13 July 2022; Defendant then filed notice of appeal on 19 July 2022. The second

order denying the motion to suppress was filed on 26 August 2022 but states it was “[e]ntered, this the

12th day of July 2022.” The second order has more detailed findings of fact than the first order and

was based directly upon the oral rendition of the ruling on 12 July 2022 except for the addition of the

sentence regarding federal probation. Defendant contends that “[t]he trial court also drafted a second

version of its suppression hearing Order, dated August 23, 2022, to which it added the following finding

of fact:

Upon further conversation with defendant, that Kavanaugh learned that the defendant was

on federal post release. The federal criminal judgment includes a condition that the defendant be

subject to warrantless searches. While this may not be relevant to these proceedings, this will be noted

by the Court.”

The only material difference between the two orders is the sentence regarding federal

probation. We agree with Defendant that the federal judgment did not provide part of the legal basis

for this search, as it was discovered during the course of the search and thus could not have been part

of the basis for probable cause to conduct the search.

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Opinion of the Court

II. Standard of Review

Defendant does not challenge any of the trial court’s findings of fact but argues

only that “the trial court in his case erred when it drew the following conclusion of

law from the facts presented at the suppression hearing: Under the totality of

circumstances, the officers’ smell and opinion regarding the substance being

marijuana, law enforcement had probable cause to search defendant’s vehicle.”

The standard of review in evaluating the denial of a motion

to suppress is whether competent evidence supports the

trial court’s findings of fact and whether the findings of fact

support the conclusions of law. However, when, as here, the

trial court’s findings of fact are not challenged on appeal,

they are deemed to be supported by competent evidence

and are binding on appeal. Conclusions of law are reviewed

de novo and are subject to full review. Under a de novo

review, the court considers the matter anew and freely

substitutes its own judgment for that of the lower tribunal.

State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citations and

quotation marks omitted).

III. Motion to Suppress

Defendant’s sole argument on appeal is that the trial court erred when it

denied his motion to suppress the evidence found in his vehicle. Defendant contends

that “[a]s our State Bureau of Investigation concluded in a memorandum addressing

the impact of the Industrial Hemp Act, it is simply ‘impossible’ to distinguish legal

hemp from illegal marijuana by sight and smell alone.” Thus, Defendant asserts that

the trial court in his case erred when it concluded “under the totality of the

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Opinion of the Court

circumstances, the Hoke County Sheriff’s Office deputies had probable cause to

search the defendant’s vehicle, based on the plain view doctrine and the strong odor

of marijuana.”

We first note that Defendant did not specifically challenge the trial court’s

findings of fact as unsupported by competent evidence, so they are binding on appeal.2

See id. Instead, Defendant contends the trial court should have made a finding of

fact that hemp and marijuana are indistinguishable by smell or appearance and that

this fact requires a conclusion that the officers did not have probable cause to conduct

the search. Defendant’s “Statement of Facts” section in his brief relies almost entirely

upon the transcript and not the trial court’s findings of fact. But as Defendant has

not challenged the trial court’s findings of fact as unsupported by competent evidence,

our analysis will rely primarily on those findings. In any event, there is no material

difference between the facts as discussed by Defendant and the trial court’s findings

of fact. Defendant’s main argument is that the trial court should have made findings

of fact specifically based upon the State Bureau of Investigation (“SBI”) memo,

particularly as to the inability of officers to distinguish between marijuana and hemp

based only upon sight or smell and based upon that finding, the trial court’s

2 As noted above, the trial court entered two orders denying Defendant’s motion to suppress. The

second order has more detailed findings of fact than the first order and appears to be based directly

upon the oral rendition of the ruling on 12 July 2022. The orders do not conflict in any material way.

Neither party has raised any issue regarding the two orders, and none of the trial court’s findings in

either order are challenged, so we have relied upon facts from either order as needed.

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Opinion of the Court

conclusion of law as to probable cause was error. We review the trial court’s

conclusion of law de novo. See id.

A. The Industrial Hemp Act

Defendant’s arguments and the trial court’s ruling require us to first address

the state of the law in May 2020 as to industrial hemp. Under the Industrial Hemp

Act adopted in 2015 and amended in part in 2016 and 2018, the General Assembly

established “an agricultural pilot program for the cultivation of industrial hemp in

the State” and “to provide for reporting on the program by growers and processors for

agricultural or other research, and to pursue any federal permits or waivers

necessary to allow industrial hemp to be grown in the State.” N.C. Gen. Stat. § 106-

568.50 (2019). “Industrial hemp” was defined as “[a]ll parts and varieties of the plant

Cannabis sativa (L.), cultivated or possessed by a grower licensed by the Commission,

whether growing or not, that contain a delta-9 tetrahydrocannabinol concentration of

not more than three-tenths of one percent (0.3%) on a dry weight basis.” N.C. Gen.

Stat. § 106-568.51(7) (2019). This legislation created a Commission “[t]o establish an

industrial hemp research program to grow or cultivate industrial hemp in the State,

to be directly managed and coordinated by State land grant universities.” N.C. Gen.

Stat. § 106-568.53(1) (2019). One of the duties of the commission was “[t]o issue

licenses allowing a person, firm, or corporation to cultivate industrial hemp for

research purposes to the extent allowed by federal law, upon proper application as

the Commission may specify, and in accordance with G.S. 106-568.53A.” N.C. Gen.

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Opinion of the Court

Stat. § 106-568.53(2) (2019) (emphasis added). The Commission also was required

to “adopt by reference or otherwise the federal regulations in effect regarding

industrial hemp and any subsequent amendments to those regulations. No North

Carolina rule, regulation, or statute shall be construed to authorize any person to

violate any federal law or regulation.” N.C. Gen. Stat. § 106-568.53 (2019). The

Industrial Hemp Act also established civil penalties and criminal offenses for certain

violations of the Act. See N.C. Gen. Stat. § 106-568.56 (2019) (“Civil penalty”); see

also N.C. Gen. Stat. § 106-568.57 (2019) (“Criminal penalties”).

In short, under North Carolina law in May 2020, the possession, cultivation,

or transportation of industrial hemp was legal under some circumstances, but it was

not entirely “legalized”; industrial hemp was still heavily regulated and required a

license. See generally N.C. Gen. Stat. Ch. 106, art. 50e (2015). To be legal, in addition

to having a “delta-9 tetrahydrocannabinol concentration of not more than three-

tenths of one percent (0.3%) on a dry weight basis,” the industrial hemp was required

to be grown or possessed by a person licensed by the Commission to grow industrial

hemp. N.C. Gen. Stat. § 106-568.51(7); see N.C. Gen. Stat. § 106-568.53(2) (discussing

licensing requirements). Therefore, possession of industrial hemp was possibly legal

in May 2020, but it was also possibly illegal, depending upon the circumstances. See

id.

B. The SBI Memo

Defendant’s main argument relies heavily upon an SBI memo (“Memo”) issued

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Opinion of the Court

in 2019. The Memo has been noted in prior cases of this Court and has been the

source of much argument in this case and others. Defendant here even asked the

trial court to take judicial notice of this Memo, which the trial court correctly refused

to do and Defendant has not challenged that ruling on appeal. Ultimately, the trial

court did allow Defendant to introduce the Memo as evidence. The Memo is undated

and unsigned but appears to be on letterhead of the North Carolina SBI. As described

in State v. Parker and discussed at the hearing in this case,

The memo was published by the SBI in 2019 in response to

then-pending Senate Bill 315—legislation which sought to

clarify whether the possession of hemp is also legal within

the state. S.B. 315 was eventually signed by the Governor

and enacted on 12 June 2020, though the final version of

the law did not clarify the legality of hemp possession.

277 N.C. App. 531, 540, 860 S.E.2d 21, 28 (2021). The purpose of the Memo was to

address various issues and questions for law enforcement raised by Senate Bill 315

which was filed on 20 March 2019 and to suggest “Possible Solutions” to some of those

issues. State Bureau of Investigation, Industrial Hemp/CBD Issues (2019). The

Memo stated a concern that “[t]he unintended consequence upon passage of this

bill is that marijuana will be legalized in NC because law enforcement

cannot distinguish between hemp and marijuana and prosecutors could not

prove the difference in court.” Id. (emphasis in original).

Defendant’s argument focuses on the portion of the Memo which states:

There is no easy way for law enforcement to distinguish

between industrial hemp and marijuana. There is

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Opinion of the Court

currently no field test which distinguishes the difference.

Hemp and marijuana look the same and have the same

odor, both unburned and burned. This makes it impossible

for law enforcement to use the appearance of marijuana or

the odor of marijuana to develop probable cause for arrest,

seizure of the item, or probable cause for a search warrant.

In order for a law enforcement officer to seize an item to

have it analyzed, the officer must have probable cause that

the item being seized is evidence of a crime. The proposed

legislation makes possession of hemp in any form legal.

Therefore, in the future when a law enforcement officer

encounters plant material that looks and smells like

marijuana, he/she will no longer have probable cause to

seize and analyze the item because the probable cause to

believe it is evidence of a crime will no longer exist since

the item could be legal hemp.

Id. (emphasis added).

Defendant also contends this Court addressed the Memo in Parker and State

v. Teague, 286 N.C. App. 160, 879 S.E.2d 881 (2022), stating “[i]n this case at trial,

Defendant offered an SBI Memorandum addressing the continued viability of

identifying marijuana by sight and smell in light of the Industrial Hemp Act. This is

the same SBI Memorandum presented to this Court in Parker and Teague.” Parker

did address the Memo, and Teague3 cited to Parker, but neither Parker nor Teague

3 In Teague, this Court did not address the Memo directly but noted the defendant’s arguments based

on Parker:

Defendant then makes several arguments that arise from our General

Assembly’s legalization of industrial hemp. See An Act to Recognize the

Importance and Legitimacy of Industrial Hemp Research, to Provide

for Compliance with Portions of the Federal Agricultural Act of 2014,

and to Promote Increased Agricultural Employment, S.L. 2015-299,

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Opinion of the Court

accorded the Memo the status of binding law. See Parker, 277 N.C. App. at 538, 860

S.E.2d at 27; see also Teague, 286 N.C. App. at 166, 879 S.E.2d at 888. In Parker, the

defendant argued that based on the Memo, there was a material conflict in the

evidence presented at the suppression hearing and the trial court was required to

make findings of fact resolving this conflict. See Parker, 277 N.C. App. at 538, 860

S.E.2d at 27. This Court disagreed:

Defendant appears to argue that a material conflict existed

because of the SBI memo that he introduced at the hearing

(which discussed the similarities between legal hemp and

marijuana), asserting that this memo introduced a conflict

regarding whether the odor of marijuana was sufficient to

support probable cause.

We disagree. Although the memo did perhaps call into

question the State’s legal theory regarding whether Officer

Peeler’s perception of the scent of marijuana provided

probable cause to search the vehicle, this conflict was not a

material issue of fact. Thus, because (1) Defendant

introduced no evidence creating a material conflict in the

evidence supporting the probable cause determination; and

(2) the trial court issued a ruling from the bench to explain

its rationale, we hold that the trial court was not required

to enter a written order when denying Defendant’s motion

to suppress.

Id. (emphasis in original).

2015 N.C. Sess. Laws 1483. The Industrial Hemp Act ‘legalized the

cultivation, processing, and sale of industrial hemp within the state,

subject to the oversight of the North Carolina Industrial Hemp

Commission.’ State v. Parker, 277 N.C. App. 531, . . . 860 S.E.2d 21,

disc. review denied, 378 N.C. 366, 860 S.E.2d 917 (2021).

State v. Teague, 286 N.C. App. 160, 166, 879 S.E.2d 881, 888 (2022).

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Opinion of the Court

Thus, Parker noted the existence and content of the Memo but concluded it did

not create a material conflict in the facts in that case. Id.

C. Plain View Doctrine

The Fourth Amendment of the United States Constitution, as well as Article

1, Section 20 of the North Carolina Constitution, prohibits unreasonable searches and

seizures. U.S. Const. amend. IV; N.C. Const. art. I, § 20. “Typically, a warrant is

required to conduct a search unless a specific exception applies.” Parker, 277 N.C.

App. at 539, 860 S.E.2d at 28 (citations omitted). One exception is the “motor vehicle

exception,” which states that the “search of a vehicle on a public roadway or public

vehicular area is properly conducted without a warrant as long as probable cause

exists for the search.” Id. (citation omitted). “Probable cause is generally defined as

a reasonable ground of suspicion, supported by circumstances sufficiently strong in

themselves to warrant a cautious man in believing the accused to be guilty of an

unlawful act.” Id. (citation omitted). Under the motor vehicle exception, probable

cause exists when

the existing facts and circumstances are sufficient to

support a reasonable belief that the automobile carries

contraband materials. If probable cause justifies the search

of a lawfully stopped vehicle, it justifies the search of every

part of the vehicle and its contents that may conceal the

object of the search.

Id. (citation omitted).

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Opinion of the Court

Under the plain view doctrine, if a law enforcement officer who has conducted

a legal stop of a vehicle or is in a location where he has a right to be observes

contraband or other incriminating evidence in plain view, he has probable cause to

proceed with a search and seize the item. See State v. Grice, 367 N.C. 753, 756-57,

767 S.E.2d 312, 316 (2015) (“While the general rule is that warrantless seizures are

unconstitutional, a warrantless seizure of an item may be justified as reasonable

under the plain view doctrine, so long as three elements are met: First, ‘that the

officer did not violate the Fourth Amendment in arriving at the place from which the

evidence could be plainly viewed’; second, that the evidence’s ‘incriminating character

was “immediately apparent”’; and third, that the officer had ‘a lawful right of access

to the object itself.’” (citations, quotation marks, ellipses, and brackets omitted)). In

the context of marijuana, the “plain view” doctrine is often referred to as the plain

smell doctrine, as an officer may smell the contraband even if he can’t see it. See

State v. Parker, 285 N.C. App. 610, 628, 878 S.E.2d 661, 675 (2022) (“[T]his Court has

previously explained plain smell of drugs by an officer is evidence to conclude there

is probable cause for a search. Downing, 169 N.C. App. at 796, 613 S.E.2d at 39

(emphasis added). In Downing, the drug the officers smelled was cocaine, not

marijuana. Id. And as Defendant recognizes, we have caselaw holding the smell of

marijuana alone provides probable cause.” (citation and brackets omitted)). Here, the

officers both saw and smelled what they believed to be marijuana in Defendant’s car.

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Opinion of the Court

The United States Supreme Court has held that “officers may rely on a

distinctive odor as a physical fact indicative of possible crime[.]” Taylor v. United

States, 286 U.S. 1, 6, 76 L. Ed. 951, 953 (1932). For an odor to establish probable

cause, the law enforcement officer must be qualified to recognize the odor and the

odor is “sufficiently distinctive to identify a forbidden substance.” Johnson v. United

States, 333 U.S. 10, 13, 92 L. Ed. 436, 440 (1948). Further, our Supreme Court held

that the smell of marijuana gives officers the probable cause to search an automobile.

See State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441 (1981) (“[The Court

of Appeals] further correctly concluded that the smell of marijuana gave the officer

probable cause to search the automobile for the contraband drug.”). But these cases

were all decided before the legalization of industrial hemp, so they were based upon

the distinctive odor and appearance of marijuana without any consideration of the

delta-9 tetrahydrocannabinol concentration in the substance. With the legalization

of industrial hemp, which according to the Memo smells and looks just like

marijuana, Defendant argues it could not be “immediately apparent” to the officers

that the substance in the car was marijuana, which is illegal, because it might be

hemp.

In Coolidge v. New Hampshire, the United States Supreme Court described the

plain view doctrine as applying when it is “immediately apparent” to the officers that

the item is contraband or incriminating to the accused based upon their knowledge

at the time of the search:

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Opinion of the Court

What the “plain view” cases have in common is that the

police officer in each of them had a prior justification for an

intrusion in the course of which he came inadvertently

across a piece of evidence incriminating the accused. The

doctrine serves to supplement the prior justification—

whether it be a warrant for another object, hot pursuit,

search incident to lawful arrest, or some other legitimate

reason for being present unconnected with a search

directed against the accused—and permits the warrantless

seizure. Of course, the extension of the original justification

is legitimate only where it is immediately apparent to the

police that they have evidence before them; the “plain view”

doctrine may not be used to extend a general exploratory

search from one object to another until something

incriminating at last emerges.

403 U.S. 443, 466, 29 L. Ed. 2d 564, 583 (1971) (emphasis added) (citations omitted).

In Texas v. Brown, 460 U.S. 730, 741, 75 L. Ed. 2d 502, 513 (1983), the United

States Supreme Court noted that courts have interpreted the words “immediately

apparent” to mean that “the officer must be possessed of near certainty as to the

seizable nature of the items.” However, the Court then noted the “use of the phrase

‘immediately apparent’ was very likely an unhappy choice of words, since it can be

taken to imply that an unduly high degree of certainty as to the incriminatory

character of evidence is necessary for an application of the ‘plain view’ doctrine.” Id.

But the standard of certainty in this instance is no different than in other cases

dealing with probable cause:

As the Court frequently has remarked, probable cause is a

flexible, common-sense standard. It merely requires that

the facts available to the officer would warrant a man of

reasonable caution in the belief, that certain items may be

contraband or stolen property or useful as evidence of a

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Opinion of the Court

crime; it does not demand any showing that such a belief

be correct or more likely true than false. A practical,

nontechnical probability that incriminating evidence is

involved is all that is required. Moreover, our observation

in United States v. Cortez, 449 U.S. 411, 418, (1981),

regarding particularized suspicion, is equally applicable to

the probable-cause requirement:

The process does not deal with hard certainties, but

with probabilities. Long before the law of

probabilities was articulated as such, practical

people formulated certain common-sense

conclusions about human behavior; jurors as

factfinders are permitted to do the same—and so are

law enforcement officers. Finally, the evidence thus

collected must be seen and weighed not in terms of

library analysis by scholars, but as understood by

those versed in the field of law enforcement.

Id. at 742, 75 L. Ed. 2d at 514 (citations omitted).

D. Discussion

Defendant argues that the law enforcement officers lacked probable cause to

perform the warrantless search of his car because after the legalization of industrial

hemp, the identification of marijuana by smell and plain view is not possible and

probable cause cannot rely only upon the officers’ beliefs based on sight and smell.

Defendant points to the recent cases, such as Parker, raising arguments regarding an

officer’s inability to differentiate between marijuana, an illegal substance, and

industrial hemp.

Here, the trial court’s order relied upon the “totality of the circumstances”

including the officers’ beliefs that they smelled or saw marijuana. Defendant

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contends that the trial court was required by the Memo to make a finding of fact that

the officers could not have the ability to distinguish between marijuana and

industrial hemp based on smell and appearance and therefore the trial court’s

conclusion cannot be supported as a matter of law. However, even if the trial court

did not consider the Memo, the evidence from the officers was consistent with the

Memo. At least two of the officers were aware that hemp and marijuana look and

smell the same, and the other had experience only with marijuana.

As to the smell and appearance of marijuana in the car, Deputy Barron

testified that he was familiar in his law enforcement career with marijuana, both

smoked or raw, and it has “a very distinct smell. It stinks real bad.” He testified he

did not have any experience with hemp and had “never had . . . any contact with

hemp” or training in detecting hemp. Corporal Kavanaugh testified that he asked

Defendant “multiple times about the odor of marijuana, the smell, and the marijuana

residue” and Defendant did not mention or “bring up the idea of hemp as being the

cause or source of the odor of marijuana[.]” Deputy Schell testified that he assisted

with the search of the car and the “raw marijuana [smell] was very present in the

vehicle.” He was aware at the time of the search that hemp and marijuana “have the

same appearance and the same odor” and he was aware of the SBI Memo although

he was not sure if he saw the Memo before or after this traffic stop. Corporal

Kavanaugh also testified that there was no way to distinguish between hemp and

marijuana in a “roadside” test but that would have to be done in a “scientific

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laboratory.” He was also aware that “an individual would have to have a license” to

“transport hemp” even if it is being done legally, and Defendant did not “produce some

license . . . in regards to hemp” and did not mention hemp or claim that he was

licensed to grow it or transport it.

Therefore, there was evidence before the trial court that all three officers

smelled and saw what they believed to be marijuana based upon their training and

experience. The trial court’s findings of fact adequately addressed this evidence as

it found that all three officers had smelled and seen what they believed to be

marijuana, and ultimately, they were correct. Corporal Kavanaugh asked Defendant

about the marijuana smell, and he did not claim it was hemp or that he was legally

entitled to possess hemp but instead claimed it was “from a cousin.” The trial court

did not make a specific finding that hemp and marijuana are indistinguishable by

smell or appearance, but even without the Memo, the evidence was not conflicting on

this fact. And based upon the trial court’s comments during the hearing, it is

apparent that the trial court was well aware of this fact. But this fact does not end

the inquiry as Defendant claims it should.

First, the trial court noted that “the 800-pound elephant in the room nobody’s

talking about” was the fact that “unless you are licensed and under the supervision

of the Industrial Hemp Commission, it’s still illegal.” As discussed above, industrial

hemp could be legally possessed and transported under the law in 2020, but not all

possession of industrial hemp was legal. See generally N.C. Gen. Stat. Ch. 106, art.

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50e (2019). Defendant did not claim the substance was hemp or that he had a permit

for producing or transporting hemp. In this regard, hemp could be compared to

medications for which a prescription is required. It is legal for a person to possess

certain controlled substances with a valid prescription, but it would be illegal for a

person to possess the same controlled substance without a valid prescription. A law

enforcement officer may have probable cause to seize a bottle of pills in plain view if

he reasonably believes the pills to be contraband or illegally possessed. For example,

in State v. Crews, our Supreme Court affirmed the trial court’s denial of the

defendant’s motion to suppress a bottle of amphetamines seized by police. 286 N.C.

41, 46, 209 S.E.2d 462, 465 (1974). In Crews, officers were legally in the defendant’s

home to serve an arrest warrant. Id. at 45, 209 S.E.2d at 465. The officers saw in

plain view

a clear, brown-tinted bottle about five inches high and two

to three inches in diameter located on the front of the shelf

above the clothes that were hanging in the closet. The

bottle had no writing or labels on it. It appeared to Officer

Spillman to contain pills of various colors. Officer Spillman

took [the defendant], and the bottle to the police station.

The bottle was found to contain several hundred

amphetamines.

Id. at 43, 209 S.E.2d at 463. The Supreme Court affirmed the trial court’s denial of

the motion to suppress, stating

Officer Spillman was legally in the apartment. He testified

that he had had some training in drug detection, that he

had seen amphetamine pills before, and that the pills in

the bottle looked like amphetamines. He further testified

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STATE V. LITTLE

Opinion of the Court

that the size of the bottle, the large number of pills, and the

fact that there [was] no prescription or label on the bottle,

all led him to believe that they were amphetamines.

When an officer’s presence at the scene is lawful, he may,

without a warrant, seize evidence which is in plain sight

and which he reasonably believes to be connected with the

commission of a crime[.]

Id. at 45, 209 S.E.2d at 465 (citations and ellipses omitted).

Although the Industrial Hemp Act made the possession of industrial hemp

legal under some circumstances, the Act still regulated hemp. The technical

difference between marijuana and industrial hemp is the tetrahydrocannabinol

(“THC”) content, which must be less than 0.3 percent in industrial hemp. N.C. Gen.

Stat. § 106-568.51(7) (2019). This technical difference between hemp and marijuana

is crucial for purposes of sufficient evidence for conviction of an offense:

In a criminal case, the State must prove every element of a

criminal offense beyond a reasonable doubt. In the context

of a controlled substance case, the burden is on the State to

establish the identity of any alleged controlled substance

that is the basis of the prosecution. The North Carolina

Supreme Court held in Ward that unless the State

establishes before the trial court that another method of

identification is sufficient to establish the identity of the

controlled substance beyond a reasonable doubt, some form

of scientifically valid chemical analysis is required.

State v. Carter, 255 N.C. App. 104, 106-07, 803 S.E.2d 464, 466 (2017) (citations,

quotation marks, and brackets omitted)

But the issue here is not whether the officers could identify the substance in

Defendant’s car as hemp or marijuana for purposes of proving the elements of a

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STATE V. LITTLE

Opinion of the Court

criminal offense beyond a reasonable doubt. The issue for purposes of probable cause

for the search is only whether the officer, based upon his training and experience, had

reasonable basis to believe there was a “‘practical, nontechnical’ probability that

incriminating evidence” would be found in the vehicle. Brown, 460 U.S. at 742, 75 L.

Ed. 2d at 514 (citations omitted).

The requirement of the plain view doctrine at issue here is whether it may be

“immediately apparent” that the item viewed – or smelled – is likely to be contraband.

Coolidge, 403 U.S. at 466-67, 29 L. Ed. 2d at 583. “Our courts have defined the term

‘immediately apparent’ as being satisfied where the police have probable cause to

believe that what they have come upon is evidence of criminal conduct.” State v.

Hunter, 286 N.C. App. 114, 117, 878 S.E.2d 676, 679 (2022) (citation omitted).

Even if industrial hemp and marijuana look and smell the same, the change in

the legal status of industrial hemp does not substantially change the law on the plain

view or plain smell doctrine as to marijuana. The issue is not whether the substance

was marijuana or even whether the officer had a high degree of certainty that it was

marijuana, but “whether the discovery under the circumstances would warrant a man

of reasonable caution in believing that an offense has been committed or is in the

process of being committed, and that the object is incriminating to the accused.” State

v. Peck, 54 N.C. App. 302, 307, 283 S.E.2d 383, 386 (1981) (citation omitted). In

addition, even if the substance was hemp, the officer could still have probable cause

based upon a reasonable belief that the hemp was illegally produced or possessed by

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Opinion of the Court

Defendant without a license, just as the officers in Crews believed the pills in the

unmarked bottle to be illegally possessed. See Crews, 286 N.C. at 45, 209 S.E.2d at

465. Either way, the odor and sight of what the officers reasonably believed to be

marijuana gave them probable cause for the search. Probable cause did not require

their belief that the substance was illegal marijuana be “correct or more likely true

than false. A ‘practical, nontechnical’ probability that incriminating evidence is

involved is all that is required.” Brown, 460 U.S. at 742, 75 L. Ed. 2d at 514; see also

Teague, 286 N.C. App. at 179, 879 S.E.2d at 896; State v. Johnson, 288 N.C. App. 441,

457-58, 886 S.E.2d 620, 632 (2023) (explaining that although smell alone was not the

basis of probable cause in the case, “The smell of marijuana alone supports a

determination of probable cause, even if some use of industrial hemp products is legal

under North Carolina law. This is because only the probability, and not a prima facie

showing, of criminal activity is the standard of probable cause” (emphasis in original)

(citations and ellipses omitted)).

We conclude that despite the liberalization of laws regarding possession of

industrial hemp, and even if marijuana and industrial hemp smell and look the same,

the trial court did not err in concluding there was probable cause for the search of

Defendant’s vehicle based upon the officer’s reasonable belief that the substance he

smelled and saw in the vehicle was marijuana.

IV. Conclusion

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Opinion of the Court

We hold the trial court did not err in denying Defendant’s motion to suppress

the evidence seized after a lawful traffic stop and search based upon probable cause.

AFFIRMED.

Judges STADING and THOMPSON concur.

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