State v. Highsmith ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-560
No. COA21-593
Filed 16 August 2022
Duplin County, Nos. 17 CRS 52069, 19 CRS 235
STATE OF NORTH CAROLINA
v.
DEREK EDWIN HIGHSMITH, Defendant.
Appeal by Defendant from judgments entered 16 March 2021 by Judge Henry
L. Stevens, IV, in Duplin County Superior Court. Heard in the Court of Appeals 10
May 2022.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Scott
Stroud, for the State.
Joseph P. Lattimore for Defendant-Appellant.
INMAN, Judge.
¶1 On 23 July 2018, Defendant Derek Edwin Highsmith (“Defendant”) was
charged with one count each of felony possession of marijuana, possession with intent
to manufacture, sell and deliver marijuana, and possession of marijuana
paraphernalia.
¶2 The recent emergence of hemp—another plant that looks and smells the same
as illegal marijuana but is legal in North Carolina—to the North Carolina market
has brought about speculation and discussion surrounding the ability of law
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2022-NCCOA-560
Opinion of the Court
enforcement to use the sight and scent traditionally associated with marijuana as a
basis to establish probable cause for a warrantless search or seizure.1 Defendant
argues that given the shared appearance and scent of marijuana and hemp, the sight
or scent alone cannot support a finding of probable cause to seize a substance that
appears to be marijuana.
¶3 For the following reasons, we conclude Defendant has failed to demonstrate
reversible error.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶4 On 31 August 2017, Detective Mobley and Lieutenant Smith of the Duplin
County Sheriff’s Office witnessed a vehicle leave a residence after receiving numerous
complaints of narcotics being sold there. The officers followed the vehicle, noted it
had a broken brake light, and observed the vehicle illegally cross a yellow line. The
officers initiated a stop of the vehicle.
¶5 Defendant was sitting in the vehicle’s front passenger seat. The officers quickly
1 See, e.g., Omar Al-Hendy, Smokable Hemp in North Carolina: Gone for Good? An
Analysis of the Constitutionality of the North Carolina Farm Act of 2019, 10 Wake Forest J.L.
& Pol’y 371, 371-72 (2020) (“Law enforcement must now satisfy a stronger burden to establish
probable cause because both hemp and marijuana look and smell the same.”); Robert M.
Bloom & Dana L. Walsh, The Fourth Amendment Fetches Fido: New Approaches to Dog
Sniffs, 48 Wake Forest L. Rev. 1271, 1285 (2013) (“[S]tudies indicate that drug-detection dogs
do not alert to the illegal substances themselves, but to byproducts of the drug. . . . Thus, a
dog merely detects what it has been conditioned to detect, which could be a lawful scent. This
is noticeable in the case of discerning marijuana and hashish from objects that have similar
smells, such as hemp products[.]”).
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recognized Defendant from past encounters and arrests involving marijuana, and at
that point contacted a nearby K-9 unit to investigate the vehicle.
¶6 Meanwhile, Detective Mobley approached Defendant’s side of the vehicle and
immediately noticed a box of ammunition sitting behind Defendant in the rear
passenger seat. The officers spoke separately with Defendant and the driver of the
vehicle, who gave inconsistent stories about where they were headed and from where
they were coming. The officers further noted the vehicle was not registered to any
occupant of the vehicle, which Lieutenant Smith testified at Defendant’s suppression
hearing was “part of the criminal indicators that we observe as to a third-party
vehicle.”
¶7 When the K-9 unit arrived, the dog sniffed the exterior of the vehicle and
alerted to the possible presence of drugs. Defendant was removed from the vehicle
and the officers searched the vehicle. The officers located what they believed to be
marijuana in a vacuum-sealed bag underneath the passenger seat. Officers also found
on Defendant’s person cash totaling $1,200.00, along with “a digital scale commonly
used to weigh out narcotics or drug paraphernalia” and a flip cellphone.
¶8 Detective Mobley testified Defendant “stated that the marijuana and the other
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items found inside of the vehicle were his[.]”2 Defendant did not mention anything
about hemp or otherwise lead the detectives to believe he was referring to legal hemp
instead of illicit marijuana. The officers seized the items, which were sent to the State
Crime Lab for analysis. Lab results subsequently confirmed the officers’ suspicions
that the seized substance consisted of 211.28 grams of illicit marijuana.
¶9 Defendant was indicted for felony possession with intent to sell, manufacture,
or deliver a controlled substance, felony possession of a controlled substance,
possession of marijuana and drug paraphernalia, manufacture of a controlled
substance, and attaining the status of habitual felon.
¶ 10 Defendant filed a motion to suppress, challenging the lawfulness of the search
and subsequent seizure of the marijuana. Defendant premised his argument on the
emerging industry of legal hemp, indistinguishable by either sight or smell from
marijuana. Defendant argued at the hearing that a K-9 alert standing alone cannot
support probable cause when legalized hemp is widely available. Because marijuana
and hemp are indistinguishable, Defendant argued, an unlawful seizure would first
be needed in order to perform testing to confirm the substance was marijuana. The
K-9 alert therefore could not support the warrantless search, and the ensuing
2 It is unclear from the record whether Defendant had himself used the term
“marijuana” when speaking with the officers or whether the officer was summarizing
Defendant’s statement regarding what later was confirmed to be marijuana.
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evidence recovered should be suppressed, as the result of both an illegal search and
an illegal seizure following the search.3
¶ 11 The State argued the existence of legal hemp does not change the analysis that
a K-9 alert can support probable cause. The prosecutor explained that because the K-
9 alert was not the only factor giving rise to the officers’ probable cause to believe
Defendant was engaged in criminal activity, this is “a K-9 sniff plus” case. (Emphasis
added). Other factors cited by the prosecutor were the inconsistent statements made
to officers by Defendant and the driver of the vehicle, the fact that neither the driver
nor Defendant was the registered owner of the vehicle, and the officers’ knowledge of
Defendant’s prior arrests related to marijuana.
¶ 12 The trial court denied Defendant’s motion to suppress by order entered 8
February 2021. The trial court concluded that “K-9 Mindy’s positive alert for narcotics
at the SUV, along with other factors in evidence, provided the officers on the scene
with sufficient facts to find probable cause to conduct a warrantless search of the
inside of the vehicle.”
¶ 13 Defendant’s case came on for jury trial on 15 March 2021. The jury returned a
guilty verdict against Defendant on one count of felony possession of marijuana in
3On appeal Defendant does not argue that the search of the vehicle was unsupported
by probable cause but limits his argument to the seizure of the marijuana found during the
search.
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excess of one-and-one-half ounces. Defendant subsequently pled guilty to attaining
habitual felon status. The trial court sentenced Defendant to 33 to 52 months in
prison. Defendant gave proper oral notice of appeal to this Court.
¶ 14 On appeal, Defendant “specifically and distinctly” contends that the trial court
denying his motion to suppress and subsequently admitting the contraband into
evidence amounted to plain error. N.C. R. App. P. 10(a)(4) (2022).
II. ANALYSIS
¶ 15 On appeal, Defendant argues that the trial court erred by failing to make
adequate findings of fact and conclusions of law regarding the seizure of the
marijuana. He also argues the trial court committed plain error in failing to instruct
the jury that the State must prove Defendant had actual knowledge that the plastic
bag contained marijuana and not hemp. Finally, Defendant argues he received
ineffective assistance of counsel because his trial counsel did not request the
instruction on actual knowledge.
A. Defendant’s Motion to Suppress
¶ 16 Defendant does not argue on appeal that the search of the vehicle was
unconstitutional. Instead, he argues the trial court failed to make adequate findings
of fact and conclusions of law regarding the seizure of the marijuana found during
the search, given the difficulty of distinguishing legal hemp from illegal marijuana.
We disagree.
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¶ 17 The Fourth Amendment to the United States Constitution and Article I,
Section 20 of the North Carolina Constitution prohibit unreasonable searches and
seizures and apply to “brief investigatory detentions such as those involved in the
stopping of a vehicle.” State v. Downing, 169 N.C. App. 790, 794, 613 S.E.2d 35, 38
(2005) (citation and quotation marks omitted). However, “[i]t is a well-established
rule that a search warrant is not required before a lawful search based on probable
cause of a motor vehicle in a public roadway . . . may take place.” Id. at 795-96, 613
S.E.2d at 39. This probable cause standard is met where the totality of “the facts and
circumstances within the officers’ knowledge and of which they had reasonable
trustworthy information are sufficient in themselves to warrant a man of reasonable
caution in the belief that an offense has been or is being committed.” State v. Zuniga,
312 N.C. 251, 261, 322 S.E.2d 140, 146 (1984) (brackets and quotation marks omitted)
¶ 18 “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.” State v. Faulk, 256 N.C. App. 255,
263, 807 S.E.2d 623, 628-29 (2017). Findings of fact are upheld if supported by
competent evidence, and conclusions of law are reviewed de novo. Id. at 262, 807
S.E.2d at 629. “Under a de novo review, the court considers the matter anew and
freely substitutes its own judgment for that of the lower tribunal.” Id.
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When ruling on a motion to suppress following a hearing,
the judge must set forth in the record his findings of facts
and conclusions of law. While [the] statute has been
interpreted by the North Carolina Supreme Court to
require findings of fact only when there is a material
conflict in the evidence, our Court has explained that it is
still the trial court’s responsibility to make the conclusions
of law.
Id. at 262-63, 807 S.E.2d at 629 (cleaned up); see also N.C. Gen. Stat. § 15A-977(f)
(2021).
¶ 19 Defendant argues that the trial court’s conclusions address only the legality of
the search of the vehicle, and not the legality of the seizure of the marijuana found
during the search. Defendant overlooks Conclusion of Law 7, which explicitly states
that Defendant’s “rights against unreasonable detentions, searches and seizures . . .
have not been violated.” Defendant also argues that the trial court’s findings of fact
were insufficient to support its holding that the seizure of the marijuana was
constitutional. When ruling on a motion to suppress, the trial court must “make the
findings of fact necessary to decide the motion.” State v. Bartlett, 368 N.C. 309, 314,
776 S.E.2d 672, 675 (2015).
¶ 20 The trial court found that the officer’s search revealed not only marijuana, but
also additional items including a digital scale, over one thousand dollars in folds of
money, ammunition, and a flip cellphone. Under the totality of the circumstances: a
vacuum-sealed bag of what appeared to be marijuana, hidden under the seat and
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found with these items, without any evidence that Defendant claimed to the officers
the substance was legal hemp, the officers’ suspicions were bolstered, amounting to
probable cause to believe the substance at issue was in fact illicit marijuana and not
hemp. The trial court therefore did not err in concluding that Defendant’s Fourth
Amendment rights were not violated.
B. Jury Instructions
¶ 21 We also reject Defendant’s argument that the trial court plainly erred in failing
to provide a jury instruction on actual knowledge. Plain error exists when the
defendant demonstrates “that a fundamental error occurred at trial.” Id. at 518, 723
S.E.2d at 334. “To show that an error was fundamental, a defendant must establish
prejudice—that, after examination of the entire record, the error had a probable
impact on the jury’s finding that the defendant was guilty.” Id. (quotation marks
omitted). “In the absence of such impact, relief is unavailable to a defendant who has
not objected.” State v. Inman, 174 N.C. App. 567, 573, 621 S.E.2d 306, 311 (2005).
¶ 22 “Felonious possession of a controlled substance has two essential elements.
The substance must be possessed and the substance must be knowingly possessed.”
State v. Galaviz-Torres, 368 N.C. 44, 48, 772 S.E.2d 434, 437 (2015) (citation omitted).
“[W]hen the defendant denies having knowledge of the controlled substance that he
has been charged with possessing . . . , the existence of the requisite guilty knowledge
becomes a determinative issue of fact about which the trial court must instruct the
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jury.” Id. at 49, 772 S.E.2d at 437 (quotation marks omitted).
¶ 23 Here, the same facts supporting the trial court’s denial of Defendant’s motion
to suppress also reveal there is no support in the record for his argument that the
trial court erred—much less plainly erred—in failing to instruct the jury ex mero motu
on actual knowledge. Given the above circumstances under which the contraband was
found—e.g., its location and packaging with the scale, ammunition, and cash, all of
which were before the jury—we cannot conclude that the absence of an actual
knowledge instruction had a probable impact on the jury’s verdict. See Lawrence, 365
N.C. at 518, 723 S.E.2d at 334.
C. Ineffective Assistance of Counsel
¶ 24 Finally, Defendant maintains he also received ineffective assistance of counsel
because his trial counsel failed to request an actual knowledge instruction. See State
v. Lane, 271 N.C. App. 307, 314, 844 S.E.2d 32, 39 (2020) (explaining that the
prejudice prong of the ineffective assistance of counsel claim “is something less than
that required under plain error”). Even assuming deficient performance in failing to
request the instruction, and for the same reasoning based on the totality of the
evidence stated above, we hold Defendant cannot show a “reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 313-14, 844 S.E.2d at 39 (explaining that “under the reasonable
probability standard the likelihood of a different result must be substantial, not just
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conceivable”) (cleaned up).
III. CONCLUSION
¶ 25 We conclude the trial court did not err in denying Defendant’s motion to
suppress or failing to instruct the jury on actual knowledge, and Defendant has failed
to establish that he received ineffective assistance of counsel.
NO ERROR.
Judges ARROWOOD and WOOD concur.