{ "id": 4131683, "name": "STATE OF NORTH CAROLINA v. DAVID HAROLD JOHNSON, Defendant", "name_abbreviation": "State v. Johnson", "decision_date": "2013-02-05", "docket_number": "No. COA12-827", "first_page": "440", "last_page": "456", "citations": [ { "type": "official", "cite": "225 N.C. App. 440" } ], "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": "202 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4174496 ], "opinion_index": -1, "case_paths": [ "/nc-app/202/0376-01" ] }, { "cite": "646 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638825 ], "year": 2007, "pin_cites": [ { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/se2d/646/0526-01" ] }, { "cite": "653 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639957 ], "year": 2007, "pin_cites": [ { "page": "417", "parenthetical": "describing our Supreme Court's per curiam opinion in State v. Smith, 342 N.C. 407, 407, 464 S.E.2d 45, 46 (1995) as upholding the validity of a strip search \"where the officers had specific information that cocaine was hidden in the defendant's crotch.\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/653/0414-01" ] }, { "cite": "733 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "593", "parenthetical": "\"an indictment for possession of marijuana tracking the language of N.C. GeruStat. \u00a7 90-95(a)(3), without more, alleges only a Class 3 misdemeanor.\"" } ], "opinion_index": 0 }, { "cite": "597 S.E.2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491901 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0572-01" ] }, { "cite": "579 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "400" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 568", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188076 ], "year": 2003, "pin_cites": [ { "page": "571" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0568-01" ] }, { "cite": "327 S.E.2d 888", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "313 N.C. 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4724761 ], "year": 1986, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0324-01" ] }, { "cite": "340 S.E.2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "316 N.C. 87", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4701428 ], "year": 1986, "pin_cites": [ { "page": "103-04" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0087-01" ] }, { "cite": "373 S.E.2d 681", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "686", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 50", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526338 ], "year": 1988, "pin_cites": [ { "page": "57", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0050-01" ] }, { "cite": "694 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "475-76" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176674 ], "year": 2010, "pin_cites": [ { "page": "456-57" } ], "opinion_index": 0, "case_paths": [ "/nc-app/204/0451-01" ] }, { "cite": "361 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3741573 ], "year": 2007, "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0400-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(3)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 90-113.21", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)(10)" } ], "opinion_index": 0 }, { "cite": "693 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "148", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176301 ], "year": 2010, "pin_cites": [ { "page": "724", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0718-01" ] }, { "cite": "718 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "page": "178", "parenthetical": "citation, quotation marks, and brackets omitted" } ], "opinion_index": 0 }, { "cite": "727 S.E.2d 712", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2012, "pin_cites": [ { "page": "722" }, { "page": "722" }, { "page": "723" } ], "opinion_index": 0 }, { "cite": "464 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "46" } ], "opinion_index": 0 }, { "cite": "342 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796061 ], "year": 1995, "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0407-01" ] }, { "cite": "362 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150658 ], "year": 2007, "pin_cites": [ { "page": "54", "parenthetical": "describing our Supreme Court's per curiam opinion in State v. Smith, 342 N.C. 407, 407, 464 S.E.2d 45, 46 (1995) as upholding the validity of a strip search \"where the officers had specific information that cocaine was hidden in the defendant's crotch.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0050-01" ] }, { "cite": "107 F.3d 248", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7636999 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "256" }, { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/f3d/107/-1328-01" ] }, { "cite": "182 L.Ed. 2d 566", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12189139 ], "year": 2012, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/us/566/0318-01" ] }, { "cite": "557 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3657901 ], "weight": 8, "year": 2009, "pin_cites": [ { "page": "374" }, { "page": "364", "parenthetical": "\"Although Romero and Schwallier stated that they did not see anything when Savana followed their instructions ... we would not define strip search and its Fourth Amendment consequences in a way that would guarantee litigation about who was looking and how much was seen.\"" }, { "page": "374" }, { "page": "364" }, { "page": "376-77" }, { "page": "365", "parenthetical": "\"In sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear.\" (emphasis added)" }, { "page": "375" }, { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/us/557/0364-01" ] }, { "cite": "688 S.E.2d 805", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2005, "pin_cites": [ { "page": "811", "parenthetical": "observing that \"neither the United States Supreme Court nor the appellate courts of this State have clearly defined the term 'strip search.' \"" }, { "page": "814", "parenthetical": "officer unbuttoned and lowered defendant's pants, examined defendant's buttocks and reached into defendant's underwear at the level of defendant's pubic hair" }, { "page": "815" }, { "page": "824", "parenthetical": "\"Most importantly, the confidential informant provided no information that Defendant would have drugs on her person, much less hidden in her underwear.\"" }, { "page": "821" } ], "opinion_index": 0 }, { "cite": "725 S.E.2d 624", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2012, "pin_cites": [ { "page": "627-28", "parenthetical": "citations and quotations marks omitted" }, { "parenthetical": "citations and quotation marks omitted" }, { "page": "627-28", "parenthetical": "search exposed bare buttocks and genitals" } ], "opinion_index": 0 }, { "cite": "589 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "904", "parenthetical": "citations, quotation marks, and ellipses omitted" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 118", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8915126 ], "year": 2004, "pin_cites": [ { "page": "122", "parenthetical": "citations, quotation marks, and ellipses omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0118-01" ] }, { "cite": "710 S.E.2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "opinion_index": 0 }, { "cite": "365 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "year": 2011, "opinion_index": 0 }, { "cite": "707 S.E.2d 642", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "644-45" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4174496 ], "weight": 5, "pin_cites": [ { "page": "381" }, { "page": "385-86" }, { "page": "402" }, { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/nc-app/202/0376-01" ] } ], "analysis": { "cardinality": 1257, "char_count": 36353, "ocr_confidence": 0.743, "pagerank": { "raw": 6.467264156461886e-08, "percentile": 0.3985106853720043 }, "sha256": "3517236cfdfe24acbd150a7e83aaa4bd26d1d68247b07f8d05dd9721fc249940", "simhash": "1:3b7c50c077bc01d3", "word_count": 5827 }, "last_updated": "2023-07-14T19:12:03.865649+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and HUNTER, JR., Robert N. concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID HAROLD JOHNSON, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDavid Harold Johnson (\u201cdefendant\u201d) appeals from the trial court\u2019s denial of his motion to suppress evidence seized from his person and subsequent convictions for trafficking in cocaine by possession and transportation, trafficking in heroin by possession and transportation, possession of marijuana, and possession of drug paraphernalia. For the following reasons, we affirm the trial court\u2019s denial of defendant\u2019s motion to suppress and find no error in his trial.\nI. Background\nOn 1 August 2011, defendant was indicted for trafficking in cocaine by possession and transportation, trafficking in heroin by possession and transportation, possession of marijuana, possession of drug paraphernalia, driving without a license, resisting, delaying, or obstructing a public officer, and assault on a government officer. Defendant moved to suppress evidence seized from his person as fruits of an illegal search. The trial court denied defendant\u2019s motion by order entered 16 February 2012. Defendant pleaded not guilty and proceeded to jury trial. The evidence at trial showed that:\nOn 15 June 2011, defendant was travelling south on 1-95 in Johnston County. Trooper Michael Hicks with the North Carolina Highway Patrol observed defendant\u2019s car following the car in front of him too closely and saw defendant hold up a cell phone without putting it to his ear. Trooper Hicks pulled defendant over for following too closely and texting while driving. When he approached defendant\u2019s vehicle he noticed the strong odor of marijuana coming from defendant\u2019s vehicle. Trooper Hicks asked defendant to step out and sit in the front passenger seat of his patrol car.\nTrooper Hicks asked if he could frisk defendant for weapons and defendant agreed. In the course of his frisk, Trooper Hicks did not find anything that appeared to be a weapon, though he felt a blunt object in the inseam of defendant\u2019s pants. After the frisk, defendant sat in the front seat of Trooper Hicks\u2019s patrol car while Trooper Hicks ran defendant\u2019s license information. While in the patrol car, Trooper Hicks still smelled a strong odor of marijuana coming from defendant.\nTrooper Hicks advised defendant that he had noticed the strong odor of marijuana both on defendant and in defendant\u2019s car. Defendant gave Trooper Hicks permission to search his pockets and his car. In his initial search, Trooper Hicks found nothing in defendant\u2019s pockets and found only some receipts, a parking ticket, a scale of the type typically used by drug dealers, and an open package of boxer briefs in the trunk. A K-9 unit arrived with a dog trained in drug detection. The troopers ran the dog through the car and he alerted to the odor of contraband in the car\u2019s trunk and on the driver\u2019s seat.\nTrooper Hicks proceeded to search defendant\u2019s person, but found nothing in defendant\u2019s outer clothing. Trooper Hicks then placed defendant on the side of his vehicle, so that the vehicle was between defendant and the travelled portion of the highway. Other troopers stood around defendant to prevent passers-by from seeing him. Trooper Hicks then pulled the front waistband of defendant\u2019s pants away from his body and looked inside. Defendant was wearing two pairs of underwear \u2014 an outer pair of boxer briefs and an inner pair of athletic compression shorts. Between the two pairs of underwear Trooper Hicks discovered a cellophane package containing several smaller packages. When Trooper Hicks saw the package, defendant turned, hit another trooper in the face and fled for the nearby woods. The troopers quickly apprehended defendant. Trooper Hicks cut open the package and found that the smaller packages contained a green, leafy substance that, in his opinion, was marijuana; a tan, rock-like substance, later identified by chemical testing to be heroin; and a white powdery substance later identified by chemical testing to be cocaine.\nDefendant moved to dismiss all charges against him. The trial court granted defendant\u2019s motion as to driving without a license, but denied his motion as to all other charges. The jury found defendant not guilty of assaulting a government officer and guilty of the remaining offenses. Defendant was sentenced to 225-279 months confinement in the Division of Adult Correction for trafficking in heroin, and a consecutive sentence of 35-42 months confinement for trafficking in cocaine, possession of marijuana, resisting a public officer, and possession of drug paraphernalia. Defendant gave notice of appeal in open court.\nII. Motion to Suppress\nDefendant first argues that the trial court should have granted his motion to suppress the cocaine, heroin, and marijuana found in his boxers because the search was neither incident to arrest nor pursuant to exigent circumstances justifying a strip search.\nA. Standard of Review\nIt is well established that the standard of review in evaluating a trial court\u2019s ruling on a motion to suppress is that the trial court\u2019s 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\u2019s findings of fact are supported by the evidence, then this Court\u2019s next task is to determine whether the trial court\u2019s conclusions of law are supported by the findings. The trial court\u2019s conclusions of law are reviewed de novo and must be legally correct.\nState 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).\nB. Search Based on Probable Cause and Exigent Circumstances\nDefendant does not challenge any of the trial court\u2019s findings of facts and only challenges conclusions of law 6, 7, and 8. Therefore, the findings of fact are binding on appeal, id., and we consider any challenge to the other conclusions abandoned, N.C.R. App. P. 28(a).\nThe trial court made the following relevant findings of fact and conclusions of law:\n7. Trooper Hicks immediately detected the strong odor of green or raw marijuana coming from defendant\u2019s vehicle.....\n9. Trooper Hicks asked defendant to sit in the front passenger seat of the patrol car and defendant complied. Before defendant got in the patrol car, Trooper asked defendant if he could frisk defendant for any weapons and defendant agreed. While frisking defendant, Trooper Hicks felt a blunt object in the inseam of defendant\u2019s pants, but he did not believe the object to be a weapon.\n11. Trooper Hicks had not told defendant he was under arrest and defendant in fact was not under arrest while seated in the patrol vehicle.\n13. Defendant stated that he had been in Virginia visiting his girlfriend, the mother of his child. Defendant said he could not recall the name of the place he had visited in Virginia.\n14. Trooper Hicks asked defendant about the marijuana odor and defendant replied that marijuana had been used in his vehicle the day before. Defendant said that he had been eating chicken in the car before Trooper Hicks stopped him. Trooper Hicks asked defendant if he had ever been arrested, and defendant stated that he had been arrested for traffic violations, for fighting, and for marijuana use.\n16.While Trooper Hicks was talking with the defendant in his patrol car, another member of the Asheville crime interdiction unit, Trooper Harold Stines, who also was working in the area, arrived on the scene with a canine. Trooper Stines and the dog named A-Rod had been trained and certified together in drug detection by the U.S. Customs and Border Protection Agency.\n17. Trooper Hicks asked Trooper Stines to walk around defendant\u2019s vehicle with the dog. A-Rod exhibited a change in behavior in the area of the vehicle\u2019s trunk, indicating the presence of a controlled substance there. Trooper Stine opened the trunk, placed A-Rod inside, and the dog assumed a \u201cfinal response\u201d position, confirming the presence of some controlled substance. Trooper Stine then place [sic] A-Rod inside the passenger area of the vehicle, and A-Rod alerted in the driver\u2019s seat. Trooper Stines himself could smell the odor of raw marijuana coming from the vehicle.\n18. Other troopers with the Asheville crime interdiction unit also arrived on the scene. The troopers searched defendant\u2019s vehicle. They found no controlled substances, but they found in the passenger compartment an opened package of boxer-briefs underwear, a parking citation issued by the City of New York on 12 June 2011 at 5:40 p.m., and a receipt from a McDonald\u2019s restaurant in the Bronx, New York, reflecting a purchase made on 11 June 2011 at 11:58 p.m. They also found in the trunk a digital scale of the type commonly used by drug dealers for the weighing of illegal drugs.\n20. After the troopers had completed their search of defendant\u2019s vehicle, Trooper Hicks told defendant that he still smelled marijuana about defendant\u2019s person and that he was going to search his person. At that time, Trooper Hicks had decided to issue a citation to defendant for possession of drug paraphernalia, but he did not disclose that intent to defendant.\n21. Trooper Hicks asked defendant to remove his shoes, but the trooper found nothing in them. Trooper Hicks then asked the defendant to get out of the patrol vehicle and Trooper Hicks and the other troopers, a total of six, formed a semicircle around him.\n22. Other than telling Trooper Hicks in the patrol car that he could search defendant\u2019s pockets, defendant did not consent to a search of his person.\n23. The troopers stationed themselves and the defendant on the passenger side of a patrol car, and they positioned themselves around the defendant in such a manner as to block a view of the defendant by any passersby travelling on the interstate.\n24. Trooper Hicks began to search defendant\u2019s outer clothing and again felt the blunt object in the inseam of defendant\u2019s pants. As Trooper Hicks frisked the area around defendant\u2019s groin and inner thighs, defendant turned his body away from the trooper.\n25. Trooper Hicks pulled the front waistband of defendant\u2019s pants forward and looked inside. He could see that defendant was wearing two pairs of underwear. The outer pair was a pair of boxer-briefs like those found in the passenger compartment of defendant\u2019s vehicle. The inner pair was a pair of compression type athletic shorts with the protective cup missing. In between the two pairs of underwear, outside the place of the missing protective cup, Trooper Hicks observed a softball sized mound of cellophane.\n26. Trooper Hicks reached inside defendant\u2019s waistband and removed the cellophane wrapped package. It appeared to be layers of cellophane wrapped around coffee grounds and smaller packages of controlled substances.\n27. As Trooper Hicks removed the package from defendant\u2019s pants, defendant suddenly wheeled, struck one of the troopers, and ran toward the woods by the highway. The troopers immediately overtook defendant, subdued him, and arrested him.\n28. The troopers did not remove or pull down defendant\u2019s pants while searching him. Defendant was wearing his pants with the waist of the pants low around his buttocks. Defendant\u2019s private areas were never exposed during the search.\nCONCLUSIONS OF LAW:\n4. Trooper Hicks also had the right to search defendant\u2019s vehicle without a warrant under exigent circumstances based on probable cause to believe that such a search would yield evidence of controlled substances because of the strong odor of marijuana coming from the vehicle, the alerts or indications of the presence of controlled substances exhibited by the dog specially trained in drug detection, and defendant\u2019s apparent deceptive and misleading statements as to his itinerary.\n5. Following the troopers\u2019 discovery of the digital scaled inside defendant\u2019s vehicle, Trooper Hicks had probable cause to arrest defendant for a violation of NCGS 90-113.22(possession of drug paraphernalia) committed in the trooper\u2019s presence.\n7. Assuming arguendo that Trooper Hicks could not search defendant incident to arrest, the trooper had probable cause to conduct a warrantless search of defendant\u2019s person under exigent circumstances based on the strong odor of marijuana about his person, the alerts exhibited by the drug dog in the driver\u2019s seat of \u25a0defendant\u2019s vehicle, the discovery of the digital scales during the search of defendant\u2019s vehicle, and defendant\u2019s apparent deceptive and misleading statements as to his itinerary.\n8. The troopers took necessary and reasonable precautions to guard against public exposure of defendant\u2019s private areas during the search of his person, and the search of his private areas was not constitutionally intolerable in its intensity or scope.\n9. None of defendant\u2019s federal or state constitutional rights were violated by the stop of his vehicle, the search of his vehicle or person, or the manner in which the search of his person was conducted.\nDefendant argues that he was subjected to a strip search requiring probable cause and exigent circumstances and that the trial court erred in concluding that the search was constitutional based on exigent circumstances. For the following reasons, we hold that the trial court correctly concluded that the troopers had probable cause to search defendant for contraband, exigent circumstances to search him without a warrant, and had conducted the search of defendant\u2019s person reasonably.\nThe governing premise of the Fourth Amendment is that a governmental search and seizure of private property unaccompanied by prior judicial approval in the form of a warrant is per se unreasonable unless the search falls within a well-delineated exception to the warrant requirement. One such exception exists when there are exigent circumstances justifying a warrantless search. Probable cause has been defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.\nState v. Yates, 162 N.C. App. 118, 122, 589 S.E.2d 902, 904 (2004) (citations, quotation marks, and ellipses omitted).\nIn Yates, we held that where the searching officer noticed a strong odor of marijuana about the defendant\u2019s person, that officer had probable cause to search the defendant. Id. at 123, 598 S.E.2d at 905. We further concluded that because \u201cnarcotics can be easily and quickly hidden or destroyed, especially after defendant received notice of [the officer\u2019s] intent to discover whether defendant was in possession of marijuana . . . there were sufficient exigent circumstances justifying an immediate warrantless search.\u201d Id.\nIn the present case, there was evidence not only that defendant smelled of marijuana, but that the troopers had discovered in his car a scale of the type used to measure drugs, a drug dog had alerted in his car, including on the driver\u2019s seat, and during a pat-down the troopers had noticed a blunt object in the inseam of defendant\u2019s pants. We hold that these facts, as found by the trial court, support conclusion 7 that the troopers searched defendant\u2019s person with probable cause and that, for the reasons stated in Yates, see id., the trial court did not err in concluding that the troopers did so in exigent circumstances sufficient to justify a warrantless search.\nHaving concluded that the initiation of the search was valid, we must consider whether the conduct of the search was reasonable.\nThe Fourth Amendment of the United States Constitution and Article 1 \u00a7 20 of the North Carolina Constitution preclude only those intrusions into the privacy of the body which are unreasonable under the circumstances. In determining whether an officer\u2019s conduct was reasonable in executing a search of the defendant\u2019s person, the trial court must balance the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.\nState v. Fowler,_N.C. App. _, _, 725 S.E.2d 624, 627-28 (2012) (citations and quotations marks omitted). This Court has\nemphasized that deeply imbedded in our culture is the belief that people have a reasonable expectation not to be unclothed involuntarily, to be observed unclothed or to have their \u2018private\u2019 parts observed or touched by others. Accordingly, in Battle, we noted that a valid search incident to arrest will not normally permit a law enforcement officer to conduct a roadside strip search. Rather, in order for a roadside strip search to pass constitutional muster, there must be both probable cause and exigent circumstances that show some significant government or public interest would be endangered were the police to wait until they could conduct the search in a more discreet location \u2014 usually at a private location within a police facility.\nId. (citations and quotation marks omitted).\nDefendant argues that we must reverse the trial court\u2019s order denying his motion to suppress because it failed to find that the troopers searched him under exigent circumstances justifying a strip search, as required by State v. Battle, 202 N.C. App. 376, 688 S.E.2d 805 (2005). We disagree.\nBoth the U.S. Supreme Court and the courts of this State have been loath to define in precise terms exactly what constitutes a strip search. See Safford Unified School Dist. No. 1 v. Redding, 557 U.S. 364, 374, 174 L.Ed. 2d 354, 364 (2009) (\u201cAlthough Romero and Schwallier stated that they did not see anything when Savana followed their instructions ... we would not define strip search and its Fourth Amendment consequences in a way that would guarantee litigation about who was looking and how much was seen.\u201d); Battle, 202 N.C. App. at 381, 688 S.E.2d at 811 (observing that \u201cneither the United States Supreme Court nor the appellate courts of this State have clearly defined the term \u2018strip search.\u2019 \u201d).\nDespite the absence of a precise definition of a strip search, it is true that the searches that this Court has considered \u201cstrip searches\u201d generally consist of direct observation of the private areas of a defendant or the exposure of those private areas. See, e.g., Fowler, _N.C. App. at_, 725 S.E.2d at 627-28 (search exposed bare buttocks and genitals), Battle, 202 N.C. App. at 385-86, 688 S.E.2d at 814 (officer unbuttoned and lowered defendant\u2019s pants, examined defendant\u2019s buttocks and reached into defendant\u2019s underwear at the level of defendant\u2019s pubic hair). Although defendant was able to avoid that level of exposure by wearing two pairs of underwear, our holding does not rely upon defendant\u2019s extra underwear, since a holding that turned on that fact \u201cwould guarantee litigation about who was looking and how much was seen.\u201d Redding, 557 U.S. at 374, 174 L.Ed. 2d at 364; see Florence v. Board of Chosen Freeholders of County of Burlington,_U.S._,_, 182 L.Ed. 2d 566, 574 (2012) (\u201cThe term [\u2018strip search\u2019] is imprecise. It may refer simply to the instruction to remove clothing while an officer observes from a distance of, say, five feet or more; it may mean a visual inspection from a closer, more uncomfortable distance; it may include directing detainees to shake their heads or to run their hands through their hair to dislodge what might be hidden there; or it may involve instructions to raise arms, to display foot insteps, to expose the back of the ears, to move or spread the buttocks or genital areas, or to cough in a squatting position. In the instant case, the term does not include any touching of unclothed areas by the inspecting officer.\u201d); see also, U.S. v. Dorlouis, 107 F.3d 248, 256 (4th Cir. 1997) (concluding that a search where the officers placed the defendant in a police van, removed the defendant\u2019s pants, but kept his boxer shorts on, was not an unconstitutional strip search because of the nature of the search without deciding the significance of the fact that defendant kept his boxer shorts on). The level of defendant\u2019s exposure is, nevertheless, relevant to the overall reasonableness of the search.\nAlthough Battle held that a roadside strip search must be pursuant to probable cause and exigent circumstances, id. at 388, 688 S.E.2d at 815, courts have generally focused on whether the content of the suspicion against the defendant specifically indicated that he was hiding contraband in his underwear or near his private areas. See Redding, 557 U.S. at 376-77, 174 L.Ed. 2d at 365 (\u201cIn sum, what was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs or their quantity, and any reason to suppose that Savana was carrying pills in her underwear.\u201d (emphasis added)); Battle, 202 N.C. App. at 402, 688 S.E.2d at 824 (\u201cMost importantly, the confidential informant provided no information that Defendant would have drugs on her person, much less hidden in her underwear.\u201d); State v. Stone, 362 N.C. 50, 54, 653 S.E.2d 414, 417 (2007) (describing our Supreme Court\u2019s per curiam opinion in State v. Smith, 342 N.C. 407, 407, 464 S.E.2d 45, 46 (1995) as upholding the validity of a strip search \u201cwhere the officers had specific information that cocaine was hidden in the defendant\u2019s crotch.\u201d). Given this emphasis, we held in State v. Robinson that \u201cthe mode of analysis outlined in Battle [requiring exigent circumstances justifying a roadside strip search] and adopted in Fowler only applies in the event that the investigating officers lack a specific basis for believing that \u00e1 weapon or contraband is present beneath the defendant\u2019s underclothing.\u201d State v. Robinson,_N.C. App._,_, 727 S.E.2d 712, 722 (2012).\nHere, even assuming that the search was indeed a \u201cstrip search,\u201d Battle does not apply because there was sufficient information to provide \u201ca sufficient basis for believing that\u201d contraband was present beneath defendant\u2019s underwear. Id.; see Battle, 202 N.C. App. at 398, 688 S.E.2d at 821 (noting that in Redding, the U.S. Supreme Court invalidated a strip search because \u201c \u2018the content of the suspicion failed to match the degree of intrusion.\u2019 \u201d (quoting Redding, 557 U.S. at 375, 174 L.Ed. 2d at 364)). The trial court found that a drug dog had alerted in the back of defendant\u2019s car and again in the driver\u2019s seat and troopers detected the odor of marijuana on defendant\u2019s person. The troopers searched the car and defendant\u2019s outer clothing without finding the source of the marijuana odor, which was still strong. Defendant turned his body away from the searching officer when he frisked the area around defendant\u2019s groin and inner thigh, and, most significantly, Trooper Hicks felt a blunt object in defendant\u2019s crotch area during the pat-down, directly impheating defendant\u2019s undergarments.\n. These circumstances are similar to those in Robinson, where we concluded that there was an \u201cample basis\u201d for believing that contraband would be found in the defendant\u2019s undergarments when \u201cvarious items of drug-related evidence were observed in the vehicle in which Defendant was riding, [] Defendant made furtive movements towards his pants, and [] Detective Tisdale felt a hard object between Defendant\u2019s buttocks.\u201d Robinson,_N.C. App. at_, 727 S.E.2d at 722. As in Robinson, we conclude that the facts in the case sub'judice provide an ample basis for believing that contraband would be found in defendant\u2019s undergarments.\nHaving concluded that there was a specific basis for believing that contraband was present in defendant\u2019s undergarments, the next question is whether the searching officers took reasonable steps to protect defendant\u2019s privacy. See Robinson,_N.C. App. at__, 727 S.E.2d at 723. Here, the troopers placed defendant on the side of Trooper Hicks\u2019s vehicle so that the vehicle blocked them from the travel lanes of the highway and formed a wall around defendant as he was being searched so that he could not be seen by passers-by. The troopers never actually removed or pulled down his pants and never examined any of his \u201cprivate parts\u201d. Defendant was wearing two layers of clothing underneath his pants. The first layer was a pair of boxer-briefs of the type found in the passenger compartment of his car. Underneath the boxer-briefs, defendant was wearing athletic-style compression shorts with a compartment for a protective cup. The only private areas subjected to search by the troopers remained covered by defendant\u2019s compression shorts and they did not remove his pants or outer underwear to retrieve the package from his pants.\nWe hold that these facts, as found by the trial court, support the trial court\u2019s conclusion that \u201c[t]he troopers took necessary and reasonable precautions to guard against any public exposure of defendant\u2019s private areas during the search of his person, and the search of his private areas was not constitutionally intolerable in its intensity or scope.\u201d Therefore, we affirm the trial comb\u2019s order denying defendant\u2019s motion to suppress the evidence seized from his person.\nIII. Opinion that Scales are Drug Paraphernalia\nDefendant contends that under N.C. Gen. Stat. \u00a7 8C-1, Rule 701, the trial court erred in admitting, over his objection, the testimony of Trooper Hicks that the scales found in his car were of the type often used to measure drugs, \u201cespecially marijuana.\u201d Defendant argues that it was prejudicial error to admit this opinion because he had been charged with possession of drug paraphernalia.\n\u201cDefendant objected during his trial, but even if the complaining party can show that the trial court erred in its ruling, relief will not ordinarily be granted absent a showing of prejudice.\u201d State v. Stokes, _N.C. App._,_, 718 S.E.2d 174, 178 (2011) (citation, quotation marks, and brackets omitted). The State did not indict defendant on the theory that the scales were drug paraphernalia, but that the wrapping used to contain the cocaine, heroin, and marijuana found in his boxers was drug paraphernalia. Even assuming that it was error for the trial court to admit the opinion evidence that the scales were of the type normally used to weigh marijuana, it is difficult to see how defendant was prejudiced, given that the item for which he was charged with possession of drug paraphernalia contained three types of controlled substances. Therefore, defendant\u2019s argument on this point is unavailing.\nIV. Motion to Dismiss\nDefendant next argues that the trial court erred in denying his motion to dismiss the misdemeanor charges of possession of drug paraphernalia and possession of marijuana because there was insufficient evidence to reach the jury on either charge.\nA. Standard of Review\nThe standard of review for a motion to dismiss is well known. A defendant\u2019s motion to dismiss should be denied if there is substantial evidence of: (1) each essential element of the offense charged, and (2) of defendant\u2019s being the perpetrator of the charged offense. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. The Court must consider the evidence in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn from that evidence. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.\nState v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 (2010) (citations and quotation marks omitted).\nB. Sufficiency of the Evidence of Possession of Drug Paraphernalia\nDefendant argues that there was insufficient evidence that the scales found in his car were used as drug paraphernalia and that therefore the trial court erred in denying his motion to dismiss as to that charge. As with his prior argument, defendant fails to recognize that the State indicted him for using the cellophane wrap found in his boxer shorts as a drug container, not for using the scales as drug paraphernalia. Therefore, defendant\u2019s arguments as to evidence relating to the scales are irrelevant.\nN.C. Gen. Stat. \u00a7 90-113.21 defines drug paraphernalia in part as \u201c[containers and other objects for storing or concealing controlled substances.\u201d N.C. Gen. Stat. \u00a7 90-113.21(a)(10) (2011). Defendant does not argue that the State failed to show that the cellophane wrapping of the drugs found on his person was used \u201cfor storing or concealing controlled substances.\u201d Id. Any arguments to that effect are, therefore, deemed abandoned. N.C.R. App. P. 28(a). We find no error in the trial court\u2019s denial of his motion to dismiss as to that charge.\nC. Sufficiency of the Evidence of Possession of Marijuana\nDefendant next argues that there \"was insufficient evidence to support his conviction for misdemeanor possession of marijuana because there was no independent testing of the green, leafy substance found in the cellophane wrapping.\nThe State indicted defendant for possession of marijuana under N.C. Gen. Stat. \u00a7 90-95(a)(3). To convict a defendant of Class 3 misdemeanor possession of marijuana, the State must prove (1) that the defendant knowingly possessed a controlled substance and (2) that the substance was marijuana. See State v. Harris, 361 N.C. 400, 403, 646 S.E.2d 526, 528 (2007). In this case, only the second element is contested.\nTrooper Hicks testified, without objection, that within the cellophane wrapper, they found \u201ctwo packages of green vegetable material that is \u2014 in my opinion and from my training is marijuana.\u201d It is well established that officers with proper training and experience may opine that a substance is marijuana. See State v. Ferguson, 204 N.C. App. 451, 456-57, 694 S.E.2d 470, 475-76 (2010) (\u201c[0]ur appellate courts have never held that an officer must be tendered as an expert before identifying a particular substance as marijuana. . . . [Furthermore,] it is not necessary, in the absence of an objection, for a witness to be formally tendered or accepted as an expert in order for that witness to be allowed to present expert testimony.\u201d). Trooper Hicks had nearly 20 years of experience with the Highway Patrol, including over 300 hours of drug interdiction training and special training in the identification of controlled substances. \u201cThough direct evidence may be entitled to much greater weight with the jury, the absence of such evidence does not render the opinion testimony insufficient to show the substance was marijuana.\u201d State v. Fletcher, 92 N.C. App. 50, 57, 373 S.E.2d 681, 686 (1988) (citation omitted). Trooper Hicks\u2019s testimony identifying the \u201cgreen vegetable substance\u201d introduced at trial as marijuana constitutes substantial evidence that the substance in question was, in fact, marijuana. Therefore, the trial court did not err in denying defendant\u2019s motion to dismiss as to this charge either.\nV. Possession and Transportation of Cocaine\nDefendant contends that the trial court erred in not arresting judgment on either possession or transportation of cocaine and heroin because punishing him for both violates the Double Jeopardy Clause, but concedes that there is case law directly contrary to his position. In State v. Perry, our Supreme Court held \u201cthat possessing, manufacturing, and transporting heroin are separate and distinct offenses\u201d and that a defendant may be convicted and punished for both. State v. Perry, 316 N.C. 87, 103-04, 340 S.E.2d 450, 461 (1986). Even if we were so inclined, we are without power to overrule a decision of our Supreme Court. Cannon v. Miller, 313 N.C. 324, 324, 327 S.E.2d 888, 888 (1986). Therefore, defendant\u2019s argument on this point is meritless.\nVI. Conclusion\nIn conclusion, we affirm the trial court\u2019s order denying defendant\u2019s motion to suppress the drugs seized from his person, find no prejudicial error in the trial court\u2019s denial of defendant\u2019s motion to exclude opinion testimony about the scales, find no error as to the trial court\u2019s denial of defendant\u2019s motions to dismiss, and no error in the trial court\u2019s imposition of judgment on both trafficking by possession and trafficking by transportation of heroin and cocaine.\nORDER AFFIRMED; NO ERROR.\nJudges ELMORE and HUNTER, JR., Robert N. concur.\n. Because we conclude that the troopers lawfully searched defendant without a warrant, pursuant to probable cause and under exigent circumstances, we need not reach the issue of whether the search was incident to arrest.\n. The indictment did not include any information as to weight, therefore, as conceded by the State at trial, the indictment charged defendant only with Class 3 misdemeanor possession of marijuana. See State v. Partridge, 157 N.C. App. 568, 571, 579 S.E.2d 398, 400, disc. rev. dismissed as improvidently granted, 357 N.C. 572, 597 S.E.2d 673 (2003); State v. Land,_N.C. App._,_, 733 S.E.2d 588, 593 (2012) (\u201can indictment for possession of marijuana tracking the language of N.C. GeruStat. \u00a7 90-95(a)(3), without more, alleges only a Class 3 misdemeanor.\u201d).", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III by Assistant Attorney General Marc X. Sneed, for the State.", "Parish & Cooke by James R. Parish, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID HAROLD JOHNSON, Defendant\nNo. COA12-827\nFiled 5 February 2013\n1. Search and Seizure \u2014 probable cause \u2014 roadside search\nThe trial court correctly concluded in a prosecution for multiple drug offenses, including trafficking, that officers had probable cause to search defendant where defendant smelled of marijuana, the troopers had discovered in defendant\u2019s car a scale of the type used to measure drugs, a drug dog had alerted in defendant\u2019s car, and during a pat-down the troopers had noticed a blunt object in the inseam of defendant\u2019s pants during a pat down.\n2. Search and Seizure \u2014 roadside search inside clothes \u2014 sufficient basis\nIn a prosecution involving drug trafficking, there was sufficient information to provide a basis for believing that contraband was present beneath defendant\u2019s underwear. Even assuming that what followed was a strip search, State v. Battle, 202 N.C. App. 376, did not apply and the trial court did not err by denying defendant\u2019s motion to suppress.\n3. Search and Seizure \u2014 roadside search inside clothes \u2014 steps to protect privacy\nOfficers doing a roadside search of defendant by pulling his pants away from his body took reasonable steps to protect defendant\u2019s privacy where the only private areas subjected to search by the troopers remained covered by defendant\u2019s compression shorts and they did not remove his pants or outer underwear to retrieve the package of drugs from his pants.\n4. Evidence \u2014 officer\u2019s opinion \u2014 scales of type used for drugs\nThe trial court did not err in a prosecution for multiple drug offenses by admitting an officer\u2019s testimony that the scales found in defendant\u2019s car were of the type often used to measure drugs, especially marijuana. The State did not indict defendant on the theory that the scales were drug paraphernalia, but that a wrapping used to contain the cocaine, heroin, and marijuana found in his boxers was drug paraphernalia.\n5. Drugs \u2014 paraphernalia\u2014scales\u2014indicted for cellophane wrap\nDefendant\u2019s argument that there was insufficient evidence that scales found in his car were used as drug paraphernalia was irrelevant where the State indicted him for using a cellophane wrap found in his boxer shorts as a drug container, not for using the scales as drug paraphernalia.\n6. Drugs \u2014 no independent testing of marijuana \u2014 trooper\u2019s opinion\nAlthough defendant argued there was insufficient evidence to support his conviction for misdemeanor possession of marijuana because there was no independent testing of the green, leafy substance found in the cellophane wrapping, Trooper Hicks\u2019s testimony identifying the \u201cgreen vegetable substance\u201d introduced at trial as marijuana constituted substantial evidence that the substance in question was, in fact, marijuana.\n7. Constitutional Law \u2014 double jeopardy \u2014 possession or transportation of cocaine or heroin\nDefendant conceded that there was case law directly contrary to his position that punishing him for possession or transportation of cocaine and heroin violated the Double Jeopardy Clause.\nAppeal by defendant from judgments entered 2 February 2012 by Judge Thomas H. Lock in Superior Court, Johnston County. Heard in the Court of Appeals 13 December 2012.\nAttorney General Roy A. Cooper, III by Assistant Attorney General Marc X. Sneed, for the State.\nParish & Cooke by James R. Parish, for defendant-appellant." }, "file_name": "0440-01", "first_page_order": 450, "last_page_order": 466 }