State v. Schiene

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-682

Filed 1 October 2024

Mecklenburg County, Nos. 20CRS232458-59, 21CRS10389

STATE OF NORTH CAROLINA

v.

CODIE BRUCE SCHIENE

Appeal by defendant from judgment entered 30 January 2023 by Judge Matt

Osman in Mecklenburg County Superior Court. Heard in the Court of Appeals 21

February 2024.

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

K. Dunn, and Scott T. Stroud, for the State.

BJK Legal, by Benjamin J. Kull, for Defendant.

PER CURIAM.

Codie Bruce Schiene (“Defendant”) appeals from his convictions and judgment

entered pursuant to a guilty plea for possession of a firearm by a felon, felonious

possession of a stolen firearm, and attaining habitual felon status. Defendant argues

the trial court erroneously denied his motion to suppress physical evidence seized

from an automobile search. Defendant’s argument is based upon the purported

similarities between legal hemp and illegal marijuana, particularly the asserted

indistinguishable odor when identifying the two substances. We hold the trial court

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Opinion of the Court

correctly denied Defendant’s motion to suppress and affirm the order.

I. Facts and Procedural History

On 22 September 2020, Charlotte Mecklenburg Police Sergeant William Buie

(“Sgt. Buie”) and Officer Zachary Pegram (“Officer Pegram”) were on routine patrol.

Around 9:00 p.m., the officers inspected the parking lot of Baymont Inn in the area

of Scott Futrell Drive near the airport. Sgt. Buie had previously conducted drug

investigations at the Baymont Inn.

The majority of the vehicles in the parking lot were parked in the main parking

lot in front of the Baymont Inn. An additional overflow parking lot is located on the

side of the hotel. The officers observed two occupants inside a GMC Acadia, which

was backed into a parking spot in the far corner of the overflow parking lot on the

side of the hotel. Sgt. Buie testified the vehicle was parked in a space that gave the

occupants a good view of activity in the parking lot and provided a quick avenue of

escape for someone committing criminal acts or activity.

Sgt. Buie parked his marked patrol car about fifteen to twenty feet away from

the Acadia, and he and Officer Pegram approached the vehicle on foot. As Sgt. Buie

approached the vehicle, he detected an odor of unburned marijuana. Officer Pegram

did not initially smell marijuana.

Sgt. Buie approached the passenger side of the Acadia, while Officer Pegram

approached the driver’s side. Defendant was in the driver’s seat of the vehicle. His

nephew, Daquon Luckey (“Luckey”), was present in the passenger seat. Sgt. Buie

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Opinion of the Court

initiated a conversation with Luckey through the passenger side window. As Luckey

rolled the window down to speak with Sgt. Buie, Sgt. Buie identified the odor he had

smelled earlier was stronger and coming from inside the Acadia.

Sgt. Buie asked Luckey to exit the vehicle. When Luckey opened the door, the

smell became stronger. Within ten seconds of when the officers first approached, Sgt.

Buie detained Luckey, and he requested Officer Pegram to go over to the passenger

side to detain Defendant. Sgt. Buie then conducted a search of the Acadia and found

a firearm, unburned marijuana, digital scales, and an identification of Defendant.

The marijuana found was unburned and described as a “leafy green substance in

nuggets, in Mason jars, as well as one nugget on the floorboard on the driver’s side.”

There was one Mason jar present on the driver’s seat and another inside of a book

bag, which dropped out when Defendant exited the vehicle. The Mason jar inside the

book bag had a top on it, but the one located on the vehicle’s driver’s side did not.

Thirty-five minutes after the initial encounter, Sgt. Buie read Miranda

warnings to Defendant. During those thirty-five minutes, Defendant had made

several statements to the officers.

On 12 July 2021, Defendant was indicted on possession of a firearm by a felon,

felonious possession of a stolen firearm, and attaining habitual felon status. On 19

August 2022, Defendant filed a motion to suppress the physical evidence seized and

all pre-Miranda warning statements he a had made during the encounter. On 8

September 2022, Defendant filed an Amended Motion to Suppress. A hearing on the

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Opinion of the Court

motion was held on 23 September 2022.

The trial court made the following findings of fact:

4. Both Sgt. Buie and Officer Pegram had received training

at the CMPD Policy Academy regarding drug

identification, including learning to detect the order of both

burnt and unburnt marijuana. Sgt. Buie has encountered

suspected marijuana in the filed hundreds of times. Officer

Pegram has encountered suspected marijuana in the field

at least a hundred times.

5. Neither Sgt. Buie not Officer Pegram have received

training to differentiate the odor or appearance of hemp

from that of marijuana. Nor do they have field tests to

determine the content of THC contained in suspected

marijuana while on scene. . . .

9. In the officers’ training and experience, the location and

positioning of the GMC Acadia could be indicative of illegal

activity because the car was positioned in a way that

provided a quick escape, that was distant from the majority

of other vehicles in the lot, and that was positioned so that

the occupants had full view of anyone, including police, who

approached. . . .

11. As Sgt. Buie approached the car, he smelled an odor of

unburned marijuana. The passenger rolled down his

window to speak with Sgt. Buie. Upon rolling down the

window, Sgt. Buie identified the odor of unburned

marijuana as coming from [ ] inside the car. He requested

the passenger step out. When the passenger opened the

door, the odor of unburned marijuana became stronger.

On 30 September 2022, the trial court denied the motion in part, as to the

physical evidence seized, and granted the motion to suppress in part, concerning

statements Defendant had made in response to police questioning while in custody,

but prior to Miranda warnings.

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Opinion of the Court

On 30 January 2023, Defendant pled guilty to all three charges. After

finding multiple mitigating factors, the court sentenced Defendant to a mitigated

active incarceration term of 76 to 104 months. Defendant gave notice of appeal that

day.

II. Issues

Defendant raises three issues regarding the trial court’s denial of his motion

to suppress. He first argues the trial court’s factual basis for its denial, that Sgt. Buie

“smelled an odor of unburned marijuana” or “identified the odor of unburned

marijuana”, is unsupported by competent evidence because “such feats of sensory-

based deductions are humanly impossible.” He further asserts, even if the trial court

had found that Sgt. Buie smelled an odor of marijuana, reversal is required due to

the advent of legalized hemp, as the “odor alone” doctrine is no longer valid. Finally,

Defendant argues the trial court erred when it based its ruling on a misapprehension

of law, specifically, when it found that State v. Teague stands for the proposition that

the so-called “odor alone” doctrine has survived the advent of legalized hemp in North

Carolina. See State v. Teague, 286 N.C. App. 160, 179, 879 S.E.2d 881, 896 (2022).

We address each in turn.

III. Analysis

The trial court concluded probable cause justified the warrantless search of

Defendant’s vehicle because Sgt. Buie had “smelled an odor of unburned marijuana.”

Defendant contends no competent evidence supports any finding of fact that Sgt. Buie

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Opinion of the Court

had smelled marijuana, because identifying marijuana by smell alone is impossible.

Sgt. Buie himself acknowledged that he cannot differentiate between the odor of legal

hemp and illegal marijuana. Defendant argues, because the warrantless search of

Defendant’s vehicle was unsupported by probable cause, the trial court’s order

denying his motion to suppress must be reversed and the judgment vacated.

A. Standard of Review

In evaluating the denial of a motion to suppress, appellate review “is strictly

limited to determining whether the trial judge’s underlying findings of fact are

supported by competent evidence, in which event they are conclusively binding on

appeal, and whether those factual findings in turn support the judge’s ultimate

conclusions of law.” State v. Brown, 248 N.C. App. 72, 74, 787 S.E.2d 81, 84 (2016)

(citation omitted). Conclusions of law “are reviewed de novo and are subject to full

review.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). Additionally,

there is “great deference [given] to the trial court’s ruling on a motion to suppress[.]”

State v. Parker, 277 N.C. App. 531, 538-39, 860 S.E.2d 21, 28 (2021) (citation and

quotation marks omitted).

B. Motion to Suppress

“The Fourth Amendment proscribes all unreasonable searches and seizures,

and it is a cardinal principle that searches conducted outside the judicial process,

without prior approval by judge or magistrate, are pe se unreasonable . . . subject only

to a few specifically established and well-delineated exceptions.” State v.

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Opinion of the Court

Degraphenreed, 261 N.C. App. 235, 241, 820 S.E.2d 331, 336 (2018) (citation and

internal quotation marks omitted).

One exception is the motor vehicle exception, which states the “search of a

motor vehicle which is on a public roadway or in a public vehicular area is not in

violation of the [F]ourth [A]mendment if it is based on probable cause, even though a

warrant has not been obtained.” State v. Isleib, 319 N.C. 634, 638, 356 S.E.2d 573,

576 (1987) (emphasis supplied).

Under the motor vehicle exception, “a police officer in the exercise of his duties

may search an automobile without a search warrant when the existing facts and

circumstances are sufficient to support a reasonable belief that the automobile carries

contraband materials.” Parker, 277 N.C. App. at 539, 860 S.E.2d at 28 (citation

omitted). Further, if probable cause justified the search of a vehicle, it justifies the

search of every part of the vehicle and its contents. Id. A probable cause analysis is

based upon the “totality of the circumstances.” See Maryland v. Pringle, 540 U.S.

366, 371, 157 L. Ed. 2d 769, 775 (2003) (“The probable-cause standard is incapable of

precise definition or quantification into percentages because it deals with

probabilities and depends on the totality of the circumstances.” (citations omitted)).

The State put forth other facts supporting probable cause to search the vehicle

aside from the alleged odor of marijuana standing alone. First, the location of

Defendant’s vehicle within the parking lot and the manner it was parked and

positioned could indicate illegal activity, particularly at night. Defendant’s car was

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Opinion of the Court

positioned to provide a quick escape, was distant from most other vehicles in the far

corner of the side overflow parking lot, and the occupants had a full view of anyone,

including police, who approached. Second, both Sgt. Buie and Officer Pegram had

received drug identification training, including learning to detect the odor of both

burnt and unburnt marijuana.

As Sgt. Buie approached the car, he smelled an odor of unburned marijuana.

Upon Luckey rolling his window down to speak to Sgt. Buie, Sgt. Buie identified the

odor of unburned marijuana as coming from inside the car. After requesting Luckey

to step out of the vehicle and opening the door, the odor of unburned marijuana

became stronger.

These factors are sufficient to support a “reasonable belief” the automobile

contained contraband materials. See Parker, 277 N.C. App. at 539, 860 S.E.2d at 28.

Like the facts in Parker, the odor of marijuana and the totality of circumstances gave

rise to probable cause. All factors, as observed and detected by the officers, support

Sgt. Buie’s and Officer Pegram’s reasonable suspicions of illegal activity occurring

inside of Defendant’s car.

Defendant’s assertion that the odor of unburned marijuana was the only

factual basis to support the denial of the motion to suppress is unsupported by the

evidence and findings. Under the totality of the circumstances, the officers had

probable cause to perform a warrantless search of Defendant’s vehicle. See Pringle,

540 U.S. at 371, 157 L. Ed. 2d at 775. The trial court correctly denied Defendant’s

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Opinion of the Court

motion to suppress in part. Although this holding is sufficient to affirm, we address

Defendant’s remaining arguments as an alternative basis.

C. The Validity of the “Odor Alone” Doctrine

Defendant alternatively argues that even if the trial court had found that Sgt.

Buie smelled an odor of illegal marijuana, the motion to suppress must be reversed

following the advent of legalized hemp. In support, Defendant contends the so-called

“odor alone” doctrine is no longer valid, challenging the holding in State v. Greenwood.

47 N.C. App. 731, 268 S.E.2d 835 (1980), aff’d in part and rev’d in part, 301 N.C. 705,

273 S.E.2d 438 (1981).

In Greenwood, this Court mentioned two factors for concluding the odor of

marijuana gives rise to probable cause for a warrantless search: (1) evidence properly

established that the officer believed she smelled marijuana; and, (2) evidence properly

established the officer in question was qualified to identify marijuana by its “distinct

odor” alone. Id. at 741-42, 268 S.E.2d at 841.

This Court reasoned an “officer, trained in the identification of marijuana by

its odor, detected the distinct odor of marijuana emanating from defendant’s

automobile,” so there was a sufficient determination of probable cause. Id. However,

on another issue, it held “even if the further search after defendant’s arrest for

possession of marijuana was proper, evidence concerning the pocketbook obtained by

a search of its contents should have been suppressed.” Id. at 742-43, 268 S.E.2d at

842.

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Opinion of the Court

When Greenwood reached our Supreme Court, it reversed this Court’s holding

on the latter issue, stating that “defendant failed to show that the seizure and search

of the pocketbook infringed upon his own personal rights under the Fourth

Amendment.” State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441 (1981).

Following its holding, our Supreme Court stated that this Court “correctly concluded

that the smell of marijuana gave the officer probable cause to search the automobile

for the contraband drug.” Id. Defendant argues this statement by the Supreme Court

was obiter dictum.

Defendant contends the Supreme Court in Greenwood made a “passing

reference” to this Court’s decision regarding the “odor alone” issue, and since the issue

was never adjudicated, it is not binding authority. Defendant argues the Supreme

Court’s holding in Greenwood was based upon the understanding law enforcement

officers, with sufficient expertise, could reliably detect the distinct odor of marijuana,

but this is no longer true. Defendant maintains odor alone cannot justify probable

cause, because even if Sgt. Buie had smelled what could have been unburned

marijuana, it could have just as easily been unburned hemp.

Defendant’s argument that odor alone cannot justify probable cause is not

rooted in any federal or state authority, as no binding authority has upheld any such

argument. This Court has repeatedly held “[w]hen an officer detects the odor of

marijuana emanating from a vehicle, probable cause exists for a warrantless search

of the vehicle for marijuana.” State v. Smith, 192 N.C. App. 690, 694, 666 S.E.2d 191,

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194 (2008) (citation omitted). It can hardly be true that our Supreme Court only

made a “passing reference” in Greenwood regarding the “odor alone” issue, as it

explicitly stated that this Court “correctly concluded that the smell of marijuana gave

the officer probable cause to search the automobile for the contraband drug.”

Greenwood, 301 N.C. at 708, 273 S.E.2d at 441. It is clear our Supreme Court agrees

the odor of marijuana is sufficient for probable cause. Id.

More recently this Court addressed and rejected this specific argument in State

v. Little, No. COA23-410, 2024 N.C. App. LEXIS 680, 2024 WL 4019033, at *9 (N.C.

Ct. App. Sept. 3, 2024). This Court held:

[D]espite 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.

Id.

This holding is also consistent with multiple federal courts in North Carolina,

who also examined the impact of the legalization of industrial hemp and the

determination of probable cause. “[T]he 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.” United States v.

Harris, No. 4:18-CR-57-FL-1, 2019 U.S. Dist. LEXIS 211633, 2019 WL 6704996, at

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*3 (E.D.N.C. Dec. 9, 2019) (emphasis supplied) (citation and quotation marks

omitted).

The United States District Court for the Western District of North Carolina in

United States v. Brooks also examined a defendant’s arguments asserting the alleged

smell of marijuana cannot supply probable cause because it could have been from a

legal source, reasoning:

[Pre]suming, arguendo, hemp and marijuana smell

“identical,” then the presence of hemp does not make all

police probable cause searches based on the odor

unreasonable. The law, and the legal landscape on

marijuana as a whole, is ever changing but one thing is still

true: marijuana is illegal. To date, even with the social

acceptance of marijuana seeming to grow daily, precedent

on the plain odor of marijuana giving law enforcement

probable cause to search has not been overturned.

United States v. Brooks, No. 3:19-cr-00211-FDW-DCK, 2021 U.S. Dist. LEXIS 81027,

2021 WL 1668048, at *4 (W.D.N.C. Apr. 28, 2021) (footnotes omitted).

In Teague, this Court found the reasoning of both Brooks and Harris

persuasive and held: “The passage of the Industrial Hemp Act, in and of itself, did

not modify the State’s burden of proof at the various stages of our criminal

proceeding.” Teague, 286 N.C. App. at 179, 879 S.E.2d at 896.

Here, as in Teague, the smell of marijuana was not the only basis to provide

the officers with probable cause. Id. at 179 n.6, 879 S.E.2d at 896 n.6 “[T]his is not

a case where the detectable odor of marijuana was the only suspicious fact concerning

the package. . . . as the totality of the circumstances here was sufficient to give rise

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to probable cause. Accordingly, this argument is overruled.” Id. Defendant has not

shown error or prejudice under this argument. See also State v. Johnson, 288 N.C.

App. 441, 443, 886 S.E.2d 620, 631-32 (2023); Little, No. COA23-410, 2024 N.C. App.

LEXIS 680, 2024 WL 4019033, at *9.

IV. Conclusion

We hold the trial court properly denied Defendant’s motion to suppress

evidence recovered from the search of Defendant’s vehicle. Id. Under the totality of

the circumstances, sufficient evidence supports probable cause. The trial court’s

denial of Defendant’s motion to suppress is affirmed.

AFFIRMED.

Panel consisting of Judges TYSON, MURPHY and WOOD.

Judge MURPHY concurs in the result only by separate opinion.

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No. COA23-682 – State v. Schiene

MURPHY, Judge, concurring in result only.

Though not considered by the Majority, the trial court made unchallenged,

binding findings of fact that law enforcement located Defendant’s vehicle in the lot of

a hotel “known to be high in violent crime, drug crime, and prostitution” and that

“[t]he manner in which the [vehicle] was parked combined with the high crime nature

of the area and the late hour prompted [Sergeant] Buie to make the decision to

approach the car[,]” at which time he detected the odor of marijuana emanating from

Defendant’s vehicle. See Teague, 286 N.C. App. at 167 (“Findings of fact that are not

challenged on appeal are deemed to be supported by competent evidence and are

binding upon this Court.”).

I am bound by the jurisprudential maypole throughout our caselaw that a

“high crime area” is a legitimate factor in determining probable cause and not just a

legal fiction created to subject the poor and urban areas of our state to an unequal

application of the Fourth Amendment. Furthermore, I am bound by our recent

decision in State v. Little and its application of decisions from our Supreme Court and

the Supreme Court of the United States. As a result, when considering the totality

of the circumstances in this case, including the high crime area, I would hold the trial

court did not err in denying Defendant’s motion to suppress. As such, I reluctantly

concur in result only.