State v. Mitchell

• Decision Date: 04 December 2012
• Docket Number: No. COA12–499.,COA12–499.
• Citation: 735 S.E.2d 438
• Parties: STATE of North Carolina v. Garland Christopher MITCHELL, Defendant.
• Court: North Carolina Court of Appeals

735 S.E.2d 438

STATE of North Carolina

v.Garland Christopher MITCHELL, Defendant.

No. COA12–499.

Court of Appeals of North Carolina.

Dec. 4, 2012.

Appeal by defendant from judgments entered 4 October 2011 and order entered 14 October 2011 by Judge J.B. Allen, Jr. in Superior Court, Alamance County. Heard in the Court of Appeals 14 November 2012.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Amanda P. Little, for the State.

James N. Freeman, Jr., Elkin, for defendant-appellant.

STROUD, Judge.

I. Factual Background

On 31 May 2011, Garland Mitchell (“defendant”) was indicted for felonious possession of marijuana, possession of a firearm by a felon, being a habitual felon, and misdemeanor possession of drug paraphernalia. Defendant pleaded guilty to possession of drug paraphernalia, but took the remaining charges to a jury trial. The trial court bifurcated the trial, separating the habitual felon charge from the other two. The jury returned verdicts of guilty as to both the felonious marijuana possession charge and possession of a firearm by a felon.

The evidence presented by the state showed that on 26 March 2011, defendant and Ms. Harris, his girlfriend, were traveling in a rental car along Interstate 85/40 near Graham. Officer Lovett, a K–9 Officer of the Graham Police Department, stopped defendant for speeding. When he asked defendant for his license, defendant produced an identification card, not a driver's license. After looking up defendant's information, Officer Lovett discovered that defendant's license was revoked. At that point, Officer Lovett asked defendant and Ms. Harris to step out of the car. Officer Lovett informed them that he intended to write defendant a ticket for driving with a revoked license and let them go, but would walk his K–9 around the car first to verify that they had no contraband. Defendant then told Ms. Harris to take the “blunt” out of her pants, which Officer Lovett identified as a burnt marijuana cigarette.

After retrieving the blunt, Officer Lovett began to search the defendant's vehicle. Officer Edwards, who had responded to the scene, kept watch over defendant and Ms. Harris. Defendant indicated to him that there was a gun in the glove compartment of the vehicle and then Officer Edwards informed Officer Lovett of that fact. Officer Lovett discovered a handgun in a purse in the passenger-side glove compartment and discovered 79.3 grams of marijuana inside a piece of luggage filled with men's clothing located in the trunk.

While Officer Lovett searched the car, Officer Edwards received defendant's consent to search his person. During that search, Officer Edwards found a small black scale with flakes of marijuana on it in defendant's vest pocket and approximately $2,320 in U.S. currency in his pants pocket.

Defendant moved to suppress the marijuana found in the car's trunk and exclude any opinion testimony identifying the substance found in the car and in Ms. Harris' “blunt” as marijuana. The trial court denied defendant's motion to suppress by an order entered 14 October 2011 and, at trial, denied defendant's motion to exclude testimony identifying the substance as marijuana. Defendant's trial counsel renewed her objections to each piece of evidence when the State moved to admit it at trial. After the jury returned verdicts of guilty to both felonious possession of marijuana and possession of a firearm by a felon, defendant pleaded guilty to being a habitual felon and was sentenced to 58–79 months in the Department of Correction. Defendant gave timely notice of appeal in open court.

II. Search of Defendant's Vehicle

Defendant first challenges the police officers' search of the rental car's trunk, claiming that because defendant and Ms. Harris were not under arrest and not threatening the officers, there was no “exigency” to justify the warrantless search. As the State notes in its brief and the trial court noted in its suppression hearing, this search was not a search incident to arrest, to which defendant's arguments might be better suited, but rather was a warrantless search of a motor vehicle for which the State claims the officers had probable cause.

A. Standard of Review

It is well established that the standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. In addition, findings of fact to which defendant failed to assign error are binding on appeal. Once this Court concludes that the trial court's findings of fact are supported by the evidence, then this Court's next task is to determine whether the trial court's conclusions of law are supported by the findings. The trial court's conclusions of law are reviewed de novo and must be legally correct.

State v. Eaton, ––– N.C.App. ––––, ––––, 707 S.E.2d 642, 644–45 (quotation marks and citation omitted), disc. rev. denied,365 N.C. 202, 710 S.E.2d 25 (2011).

B. Analysis

Defendant does not challenge any of the trial court's factual findings, so they are binding on appeal. Id. The only question before us on this issue is whether the trial court's conclusion that the officers' search of the rental car did not violate defendant's Fourth Amendment rights was correct.

The trial court found the following as fact: Officer Lovett stopped defendant for speeding.¹ When Officer Lovett told defendant and Ms. Harris that his dog would walk around the vehicle quickly to ensure that they were not transporting drugs defendant indicated to police that Ms. Harris had a “blunt”, i.e. a marijuana cigarette rolled in tobacco, which she then removed from her pants. After discovering the marijuana, Officer Lovett searched the rental car and found 79.3 grams of marijuana in the trunk. The trial court concluded that the above gave Officer Lovett probable cause to search the car. We agree.

“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 per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572, 594 (1982) (quotation marks and citation omitted). One such exception is the automobile exception. See State v. Isleib, 319 N.C. 634, 638–39, 356 S.E.2d 573, 576–77 (1987) (laying out the automobile exception to the normal warrant requirement). “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.” State v. Holmes, 109 N.C.App. 615, 621, 428 S.E.2d 277, 280 (quotation marks, citation, and ellipses omitted), disc. rev. denied,334 N.C. 166, 432 S.E.2d 367 (1993). “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.” Ross, 456 U.S. at 825, 102 S.Ct. at 2173, 72 L.Ed.2d at 594.

Here, the discovery of marijuana on Ms. Harris, a passenger in the vehicle, “support[s] a reasonable belief that the automobile carries contraband materials.” Holmes, 109 N.C.App. at 621, 428 S.E.2d at 280. We have held that the mere odor of marijuana or presence of clearly identified paraphernalia constitutes probable cause to search a vehicle. State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441 (1981) (holding that the Court of Appeals properly concluded that the odor of marijuana emanating from defendant's vehicle constituted probable cause to search the vehicle); State v. Martin, 97 N.C.App. 19, 28, 387 S.E.2d 211, 216 (1990) (finding probable cause based on apparent drug paraphernalia seen between the front seats). Clearly if the odor of marijuana alone is sufficient to constitute probable cause, seeing marijuana constitutes probable cause as well. Therefore, Officer Lovett could legally search wherever marijuana might reasonably be found, including the trunk and the luggage therein. See Ross, 456 U.S. at 825, 102 S.Ct. at 2173, 72 L.Ed.2d at 594;Martin, 97 N.C.App. at 28, 387 S.E.2d at 216 (finding probable cause as to drug offense based only on paraphernalia “justified the search of defendant's car trunk and its contents.”). Defendant's argument is therefore without merit.

III. Ineffective Assistance of Counsel

Defendant next argues that he received ineffective assistance of counsel when his trial counsel failed to make a motion to dismiss at the close of all evidence. He contends that he was prejudiced by this error because there was insufficient evidence of possession to go to the jury on the charge of possession of a firearm by a felon. We disagree.

The United States Supreme Court has set forth the test for determining whether a defendant received constitutionally ineffective assistance of counsel, which our Supreme Court expressly adopted in State v. Braswell, 312 N.C. 553, 562–63, 324 S.E.2d 241, 248 (1985). Pursuant to the two part test,

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).

State v. Blackmon, 208 N.C.App. 397, 400, 702 S.E.2d 833, 836 (2010).

To show that he was prejudiced by trial counsel's failure to move for dismissal at the close of all evidence, defendant...