{ "id": 4160203, "name": "STATE OF NORTH CAROLINA v. CARLOS FITZGERALD SMITH", "name_abbreviation": "State v. Smith", "decision_date": "2008-09-16", "docket_number": "No. COA08-21", "first_page": "690", "last_page": "696", "citations": [ { "type": "official", "cite": "192 N.C. App. 690" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "622 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634478 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "123", "parenthetical": "internal citations and quotations omitted" }, { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0120-01" ] }, { "cite": "656 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640334, 12640335 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0281-01", "/se2d/656/0281-02" ] }, { "cite": "362 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640330, 12640331, 12640332, 12640333, 12640334, 12640211, 12640351 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0279-02", "/se2d/656/0280-01", "/se2d/656/0280-02", "/se2d/656/0280-03", "/se2d/656/0281-01", "/se2d/655/0406-01", "/se2d/656/0592-02" ] }, { "cite": "649 S.E.2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639267 ], "weight": 2, "pin_cites": [ { "page": "648" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0646-01" ] }, { "cite": "261 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "117" } ], "opinion_index": 0 }, { "cite": "299 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573434 ], "year": 1980, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0095-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "346 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "479" } ], "opinion_index": 0 }, { "cite": "317 N.C. 643", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4777645 ], "year": 1986, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0643-01" ] }, { "cite": "589 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491655, 491400, 491788, 491695, 491634, 491828, 491637, 491894, 491546 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0580-06", "/nc/357/0580-05", "/nc/357/0580-08", "/nc/357/0580-09", "/nc/357/0580-04", "/nc/357/0580-02", "/nc/357/0580-03", "/nc/357/0580-01", "/nc/357/0580-07" ] }, { "cite": "585 S.E.2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "262" }, { "page": "262", "parenthetical": "citations and quotations omitted" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8954749 ], "pin_cites": [ { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0150-01" ] }, { "cite": "174 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353318 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "795", "parenthetical": "internal citations and quotations omitted" }, { "page": "795" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0790-01" ] }, { "cite": "273 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "441", "parenthetical": "\"[The Court of Appeals] correctly concluded that the smell of marijuana gave the officer probable cause to search the automobile for the contraband drug.\"" }, { "page": "441" } ], "opinion_index": 0 }, { "cite": "301 N.C. 705", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570282 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "708", "parenthetical": "\"[The Court of Appeals] correctly concluded that the smell of marijuana gave the officer probable cause to search the automobile for the contraband drug.\"" }, { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0705-01" ] }, { "cite": "342 F.3d 1271", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 9102262 ], "year": 2003, "pin_cites": [ { "page": "1276", "parenthetical": "\"A traffic stop based on an officer's incorrect but reasonable assessment of facts does not violate the Fourth Amendment.\" (Citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/f3d/342/1271-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-176", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-79.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "pin_cites": [ { "page": "(e)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-50", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2007, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "362 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150881 ], "year": 2008, "pin_cites": [ { "page": "415", "parenthetical": "citations and footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0412-01" ] }, { "cite": "185 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212517 ], "weight": 2, "pin_cites": [ { "page": "702" }, { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0701-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-7.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "and (2)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 648, "char_count": 13749, "ocr_confidence": 0.751, "pagerank": { "raw": 2.2269389344706595e-07, "percentile": 0.7784449981446795 }, "sha256": "9a8781e730b11a2537cddf8ef8579998ca5fcbebe4271fbc4f0c2d0d311249c4", "simhash": "1:211b55acd61f9442", "word_count": 2180 }, "last_updated": "2023-07-14T14:54:33.452279+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and JACKSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CARLOS FITZGERALD SMITH" ], "opinions": [ { "text": "HUNTER, Judge.\nCarlos Fitzgerald Smith (\u201cdefendant\u201d) appeals from judgments entered after: (1) a jury found him to be guilty of possession of a firearm by a felon pursuant to N.C. Gen. Stat. \u00a7 14-415.1 and (2) he pleaded guilty to habitual felon status pursuant to N.C. Gen. Stat. \u00a7 14-7.1. We affirm in part and hold there is no error in part.\nI. Background\nOn 13 January 2007, at approximately 1:50 a.m., Officer Nathan Anderson (\u201cOfficer Anderson\u201d) of the Asheville Police Department observed that \u201cthe registration plate on [a blue Ford F-150 pick-up truck] wasn\u2019t to the standards of North Carolina.\u201d Officer Anderson stopped the vehicle, approached the driver\u2019s side window, received defendant\u2019s license and registration, and returned to his cruiser to verify the information. After Officer Anderson reviewed defendant\u2019s documentation, he returned to defendant\u2019s vehicle and issued him a warning ticket for failing to display a proper registration tag. The tag was a temporary tag, issued by the State of Georgia. The warning ticket stated that defendant\u2019s tag was improper and that \u201che needed to get it taken care of as soon as he could.\u201d\nTwo additional officers arrived on the scene and Officer Anderson informed defendant that he had smelled an odor of marijuana coming from the vehicle. Officer Anderson requested and defendant denied consent to search defendant\u2019s vehicle. Officer Anderson informed defendant that probable cause existed to search his vehicle without consent. The other two officers conducted a search and recovered a handgun in the bed of defendant\u2019s vehicle. The bed was fitted with a lift-up cover. The officers did not locate any marijuana. At this point, defendant, who had prior felony convictions, was arrested for possession of a firearm by a convicted felon. Defendant was indicted for possession of a firearm by a convicted felon and also for having attained habitual felon status.\nAt a 4 September 2007 suppression hearing, defendant argued the initial stop of his vehicle was improper and all evidence obtained as a result of that stop should be suppressed. The trial court denied defendant\u2019s motion to suppress. On 6 September 2007, the jury found defendant to be guilty of possession of a firearm by a felon. Defendant pleaded guilty to attaining habitual felon status, reserving his right to appeal the underlying conviction. Defendant was sentenced to a minimum term of 70 and a maximum term of 183 months imprisonment. Defendant appeals.\nII. Issues\nDefendant argues the trial court erred when it denied his motions to suppress and to dismiss.\nIII. Motion to Suppress\nDefendant argues the trial court should have granted his motion to suppress evidence \u201cobtained following an unlawful stop of . . . defendant\u2019s vehicle.\u201d We disagree.\nA. Standard of Review\nThe trial court\u2019s findings of fact regarding a motion to suppress are conclusive and binding on appeal if supported by competent evidence. This Court determines if the trial court\u2019s findings of fact support its conclusions of law. Our review of a trial court\u2019s conclusions of law on a motion to suppress is de novo.\nState v. Edwards, 185 N.C. App. 701, 702, 649 S.E.2d 646, 648 (internal citations and quotation omitted), disc. rev. denied, 362 N.C. 89, 656 S.E.2d 281 (2007).\nB. Validity of the Traffic Stop\nDefendant argues the validity of Officer Anderson\u2019s traffic stop is governed by a probable cause standard. Recently however, our Supreme Court, in State v. Styles, held that \u201creasonable suspicion is the necessary standard for traffic stops, regardless of whether the traffic violation was readily observed or merely suspected.\u201d 362 N.C. 412, 415, - S.E.2d -, \u2014 (2008) (citations and footnote omitted). Our Supreme Court stated: The Fourth Amendment protects individuals against unreasonable searches and seizures and the North Carolina Constitution provides similar protection. A traffic stop is a seizure even though the purpose of the stop is limited and the resulting detention quite brief. Traffic stops have been historically reviewed under the investigatory detention framework first articulated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Under Terry and subsequent cases, a traffic stop is permitted if the officer has a reasonable, articulable suspicion that criminal activity is afoot.\nReasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence. The standard is satisfied by some minimal level of objective justification. This Court requires that the stop be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training. Moreover, a court must consider the totality of the circumstances \u2014 the whole picture in determining whether a reasonable suspicion exists.\nId. at 414, - S.E.2d at - (internal citations and quotations omitted).\nTo determine whether Officer Anderson had a reasonable suspicion to stop defendant, this Court must review the alleged violations of North Carolina traffic laws. N.C. Gen. Stat. \u00a7 20-50(a) (2007) requires \u201c[a] vehicle intended to be operated upon any highway of this State [to] be registered with the Division [of Motor Vehicles of the Department of Transportation] . . . .\u201d N.C. Gen. Stat. \u00a7 20-79.1(e) (2007) requires the face of a temporary registration plate to state \u201cclearly and indelibly ...[:] (1) [t]he dates of issuance and expiration; (2) [t]he make, motor number, and serial numbers of the vehicle; and (3) [a]ny other information that the Division may require.\u201d A violation of either N.C. Gen. Stat. \u00a7 20-50 or N.C. Gen. Stat. \u00a7 20-79.1 is a misdemeanor offense. N.C. Gen. Stat. \u00a7 20-176(a) (2007).\nHere, the objective facts establish: (1) it was 1:50 a.m. and dark when Officer Anderson noticed defendant\u2019s \u201cregistration tag[;]\u201d (2) defendant\u2019s registration tag \u201cwas just a piece of paper with \u2018February \u201807\u2019 written on it[;]\u201d and (3) the tag \u201cwasn\u2019t a piece of cardboard that North Carolina [automobile] dealers normally hand out when a vehicle is purchased[.]\u201d Based on the objective facts and the \u201ctotality of the circumstancesf,]\u201d Officer Anderson possessed reasonable suspicion to believe that defendant was operating his vehicle with an improper registration tag. Styles, 362 N.C. at 414, - S.E.2d at -; see also United States v. Chanthasouxat, 342 F.3d 1271, 1276 (11th Cir. 2003) (\u201cA traffic stop based on an officer\u2019s incorrect but reasonable assessment of facts does not violate the Fourth Amendment.\u201d (Citations omitted)).\nC. Validity of Search\nHaving determined that Officer Anderson\u2019s traffic stop was justified, we must determine whether the warrantless search of defendant\u2019s vehicle after the stop was supported by probable cause.\nWhen an officer detects the odor of marijuana emanating from a vehicle, probable cause exists for a warrantless search of the vehicle for marijuana. See State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441 (1981) (\u201c[The Court of Appeals] correctly concluded that the smell of marijuana gave the officer probable cause to search the automobile for the contraband drug.\u201d).\nHere, Officer Anderson testified that \u201c[w]hen I made my initial approach to the vehicle I got an odor of marijuana coming from the interior of the vehicle.\u201d Based on our Supreme Court\u2019s holding in Greenwood, once Officer Anderson detected the \u201codor of marijuana\u201d as he approached defendant\u2019s vehicle, probable cause existed for Officer Anderson and the other officers to conduct a warrantless search of defendant\u2019s vehicle. 301 N.C. at 708, 273 S.E.2d at 441. The trial court properly denied defendant\u2019s motion to suppress.\nIV Motion to Dismiss\nDefendant argues the trial court erred when it failed to grant defendant\u2019s motion to dismiss \u201cwhere the State failed to present substantial evidence of . . . defendant\u2019s constructive possession^\u201d of the handgun. We disagree.\nA. Standard of Review\nThe standard for ruling on a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense. Substantial evidence is relevant evidence which a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must consider all of the evidence in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal.\nState v. Wood, 174 N.C. App. 790, 795, 622 S.E.2d 120, 123 (2005) (internal citations and quotations omitted).\nB. Analysis\n\u201cPossession may either be actual or constructive. When the defendant, while not having actual possession,... has the intent and capability to maintain control and dominion over the property, he has constructive possession of the item.\u201d State v. Glasco, 160 N.C. App. 150, 156, 585 S.E.2d 257, 262 (internal quotation omitted), disc. rev. denied, 357 N.C. 580, 589 S.E.2d 356 (2003). \u201cThis Court has previously emphasized that constructive possession depends on the totality of the circumstances in each case. No single factor controls, but ordinarily the questions will be for the jury.\u201d Id. at 156-57, 585 S.E.2d at 262 (citations and quotations omitted).\n\u201cAs with other questions of intent, proof of constructive possession usually involves proof by circumstantial evidence.\u201d State v. Beaver, 317 N.C. 643, 648, 346 S.E.2d 476, 479 (1986). In testing the sufficiency of the evidence, the test to be used \u201cis the same whether the evidence is direct, circumstantial or both.\u201d State v. Earnhardt, 307 N.C. 62, 68, 296 S.E.2d 649, 653 (1982). Evidence favorable to the State is to be considered as a whole in determining its sufficiency. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).\nHere, the State presented evidence which tended to show: (1) defendant was the owner and driver of the vehicle; (2) defendant had exclusive control of the vehicle; (3) the cargo area of the vehicle contained other objects owned by defendant; (4) defendant stated everything in the cargo area belonged to him; and (5) the handgun was found in the cargo area wrapped in a man\u2019s jacket.\nThe State presented sufficient evidence for the jury to determine whether defendant possessed the handgun. Wood, 174 N.C. App. at 795, 622 S.E.2d at 123. The trial court properly denied defendant\u2019s motion to dismiss. Id. This assignment of error is overruled.\nV. Conclusion\nBased on the \u201ctotality of the circumstances[,]\u201d Officer Anderson possessed \u201ca reasonable, articulable suspicion that\u201d defendant was operating his vehicle with an improper registration tag. Styles, 362 N.C. at 414, - S.E.2d at -. Officer Anderson\u2019s traffic stop was justified and the seizure of the handgun discovered during the search was lawful. Id. Competent evidence supports the trial court\u2019s findings of fact, which support its conclusions of law. Edwards, 185 N.C. App. at 702, 649 S.E.2d at 648. The trial court\u2019s denial of defendant\u2019s motion to suppress is affirmed.\nThe State presented sufficient evidence for the jury to determine whether defendant had actual or .constructive possession of the handgun found in the cargo area of defendant\u2019s vehicle. The trial court properly denied defendant\u2019s motion to dismiss. Defendant received a fair trial, free from, prejudicial errors he preserved, assigned, and argued. We hold there is no error in the jury\u2019s verdict or the judgment entered thereon.\nAffirmed in part and no error in part.\nJudges TYSON and JACKSON concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State.", "Devereux & Banzhoff, P.L.L.C., by Andrew B. Banzhoff, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CARLOS FITZGERALD SMITH\nNo. COA08-21\n(Filed 16 September 2008)\n1. Search and Seizure\u2014 traffic stop \u2014 warrantless search\u2014 motion to suppress \u2014 sufficiency of evidence \u2014 odor of marijuana\nThe trial court did not err in a possession of a firearm by a felon case by denying defendant\u2019s motion to suppress evidence obtained following a stop of his vehicle because: (1) reasonable suspicion is the necessary standard for traffic stops regardless of whether the traffic violation was readily observed or merely suspected; (2) based on the objective facts and the totality of circumstances, an officer possessed reasonable suspicion to believe that defendant was operating his vehicle with an improper registration tag; and (3) probable cause existed for a warrantless search of the vehicle when the officer detected the odor of marijuana emanating from defendant\u2019s vehicle as he approached it.\n2. Firearms and Other Weapons\u2014 possession of firearm by felon \u2014 sufficiency of evidence \u2014 constructive possession\nThe trial court did not err by denying defendant\u2019s motion to dismiss the charge of possession of a firearm by a felon, even though defendant contends there was insufficient evidence of defendant\u2019s constructive possession of the handgun, because the State presented sufficient evidence tending to show that: (1) the handgun was found wrapped in a man\u2019s jacket in the cargo area of a truck driven and owned by defendant; (2) defendant had exclusive control of the vehicle; (3) the cargo area of the vehicle contained other objects owned by defendant; and (4) defendant stated everything in the cargo area belonged to him.\nAppeal by defendant from judgments entered on or after 6 September 2007 by Judge James U. Downs in Buncombe County Superior Court. Heard in the Court of Appeals 21 May 2008.\nAttorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State.\nDevereux & Banzhoff, P.L.L.C., by Andrew B. Banzhoff, for defendant-appellant." }, "file_name": "0690-01", "first_page_order": 718, "last_page_order": 724 }