224 N.C. App. 171
N.C. Ct. App.2012Background
- Defendant Garland Mitchell was indicted on felonious possession of marijuana, possession of a firearm by a felon, habitual felon, and misdemeanor possession of drug paraphernalia; he pled guilty to paraphernalia and proceeded to a jury trial on the other charges, with the habitual felon charge bifurcated.
- The jury convicted Mitchell of felonious marijuana possession and possession of a firearm by a felon; Mitchell later pled guilty to habitual felon status and received a 58–79 month sentence.
- On 26 March 2011, Mitchell and his girlfriend were stopped by a K-9 unit for speeding on I-85/40 near Graham after his license was found revoked; the dog was used to screen for contraband.
- Ms. Harris handed the responders a burnt marijuana cigarette (a “blunt”); a handgun was found in a purse in the passenger glove compartment, and 79.3 grams of marijuana were located in luggage in the trunk.
- During the stop and search, officers also found a small scale with marijuana residue and about $2,320 on Mitchell’s person; suppression motions were denied, and the evidence was admitted at trial; Mitchell timely appealed.
- The trial court ultimately denied suppression and the verdicts stood, with the order affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the warrantless car search had probable cause under the automobile exception | Mitchell; no arrest or exigency justifies search | Mitchell; no exigent circumstances to justify search | Probable cause existed; automobile exception applied |
| Whether trial counsel was ineffective for not moving to dismiss for insufficient evidence | State; evidence supported guilt | Mitchell; insufficient evidence to sustain firearm possession | No prejudicial error; evidence supported reasonable inference of possession |
| Whether visual identification of marijuana without lab testing was improper | State; lay testimony identifying marijuana is admissible | Mitchell; need for scientific testing | Admissible; Ferguson controls; no abuse of discretion |
| Whether mentioning Mitchell’s prior misdemeanors amounted to plain error | State; prior convictions properly admitted | Mitchell; prejudicial error | Not plain error; evidence of greater crimes supported the verdict |
Key Cases Cited
- State v. Ross, 456 U.S. 798 (U.S. 1982) (automobile exception to warrant requirement; probable cause searches of vehicles)
- State v. Holmes, 109 N.C. App. 615 (N.C. App. 1993) (probable cause may justify search of vehicle; odor/paraphernalia can establish probable cause)
- State v. Greenwood, 301 N.C. 705 (N.C. 1981) (odor of marijuana sufficient for probable cause to search)
- State v. Martin, 97 N.C. App. 19 (N.C. App. 1990) (paraphernalia observed between seats supports probable cause)
- State v. Alston, 131 N.C. App. 514 (N.C. App. 1998) (driver of vehicle can have constructive possession based on control of vehicle)
- State v. Best, 713 S.E.2d 556 (N.C. App. 2011) (possession elements; driver may be deemed to control contents)
- State v. Ferguson, 204 N.C. App. 451 (N.C. App. 2010) (testimony identifying marijuana without chemical analysis upheld; relevance of marijuana identification)
- State v. Ward, 199 N.C. App. 1 (N.C. App. 2009) (prescription pills require chemical analysis per Ward; preparedness for Llamas-Hernandez context)