Episode 3: Jackson, Reber, and Shiene

[00:00:05.870] [SPEAKER_00] The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Several cases decided by the North Carolina Court of Appeals at the beginning of October explore the parameters of that fundamental guarantee when it comes to automobiles and cell phones. We'll be discussing three of those cases today. I'm Joseph Hyde with the University of North Carolina School of Government. And I'm Jonathan Holbrook with the North Carolina Conference of DAs. And this is Turning States, a podcast for North Carolina prosecutors and others interested in the criminal justice system in North Carolina. John, our first case today is State v. Jackson. This case involved a warrantless search of a car when the driver had steered down a privately owned unpaved logging trail. Tell us a little bit about that case.
[00:00:58.262] [SPEAKER_01] Well, Joe, the reference to the logging trail probably gives this away, but this case is from out west. This happened in Mitchell County, and the incident happened back in March of 2020. But deputies with the Mitchell County Sheriff's Office responded to a call about a vehicle that They had been told that several individuals had seen a car going up this unpaved private logging road and said they were concerned about it. So a lieutenant with the Sheriff's Department responded to that call, spoke with the caller, and the others told him about this Volkswagen bug that had gone up the road and not come down. Lieutenant Beam is in a four-wheel drive truck, so he's able to head up that same unpaved logging road, and he does find this Volkswagen bug up at the end of the trail. The defendant is the driver. There's a female companion with him as the passenger. The bug is covered in mud and dirt. So he starts speaking with the two of them. And he testified later on in court that the way that both the defendant and the passenger were acting just made him really nervous. He said that they were moving around a lot and that he simply couldn't get them to be still. So he's continuing his investigation, but he asks the defendant and the passenger to move their car back down the logging road, back out to the main road. A backup deputy had arrived, but he's in a regular car. He can't get up the logging road, and so the first responding officer wants them to move back down. They agree to do that, but of course that first officer is holding on to the defendant and the passenger's driver's licenses. While driving back down to the bottom of the trail, Lieutenant Beam, the first officer, discovers that the passenger has outstanding warrants for her arrest. When he gets back down to the end of the road, or rather I should say the beginning of that logging road, asks the defendant to step out of the car, asks if he has anything illegal in the car, and the defendant shrugs his shoulders and says, you're welcome to look. So they do look in the car and they find what appeared to be methamphetamines. The defendant's motion to suppress in the case is denied on the search, and he is ultimately found guilty of possessing methamphetamine, possessing drug paraphernalia. So, of course, what we're discussing in this case is his appeal of the denial of the motion to suppress regarding the search of the car. The defendant makes a number of challenges to the findings of fact that were made about, Were they, in fact, acting nervous and so forth? And the Court of Appeals dispenses with most of those. There's testimony from the deputy about what happened out there. That's a sufficient basis in the record for them to find that those findings of fact were supported. But the legal issue really is about this question of his consent to search of the car. Was it valid consent given to search the car? And the court says, well, that really depends on primarily was this a legal, lawful seizure that's going on when he gives this purported consent to search the car?
[00:03:33.651] [SPEAKER_00] I think what the defendant says is that his consent was obtained involuntarily. Isn't that what he said?
[00:03:37.600] [SPEAKER_01] Right, because his argument would be that it's an unlawful seizure, that he's been improperly detained here at this traffic stop.
[00:03:45.578] [SPEAKER_00] I think the analysis they do is really more a question of whether the consent was tainted by that
[00:03:49.707] [SPEAKER_01] prior illegality. Exactly. They don't disagree. Yes, you were seized, right? He's got your driver's license. He's told you to move down to the end of the road. There's a second officer. They go through some of those facts and pretty easily reach the conclusion that he was indeed seized at the time. So then the question is, all right, was that a lawful and a proper seizure? And here they say, yes, it was, that the officer had reasonable suspicion of criminal activity to wit this possible trespassing on this private logging road where he's found that vehicle. So that's sort of their starting point of their analysis is that, yes, the officer did have reasonable suspicion about this car and after speaking with the owners of the vehicles and so forth. But as the court says towards the end of the opinion that the crux of the case, however, is whether Lieutenant Beam confirmed or dismissed his suspicion before defendant consented to a search of the car. In other words, he's speaking with them at the end of this logging road, and the defendant's statement to him is, I didn't know that I was trespassing on a private road. And the court sort of says, that could be enough to dispel your reasonable suspicion of criminal activity. Oh, it's an innocent mistake. Well, please get off the private property and we all move on with our lives. That could be enough to dispel the reasonable suspicion, but they also say, It may not. I mean, the officer may not believe him, or as in this case where they're acting a little bit odd and can't sit still and seem very nervous, and one of them's got a warrant for her arrest anyway. There may be other factors going on that if he simply doesn't believe in, the reasonable suspicion may not be dispelled. And so that's how they resolve sort of that first question of, had that dissipated by this point? It may have, but in this case, it did not.
[00:05:26.427] [SPEAKER_00] What do you make of the fact that, so they talk a little bit about trespassing, right? Criminal trespassing. And I think what they said was it requires some indication that the property is private property. I mean, for first degree trespassing, it has to be enclosed in some way. For second degree trespassing, there has to be, at least for one form of second degree trespassing, there has to be notices. I didn't see any indication, the evidence here that this property was posted or enclosed to indicate that it was private property. And yet the Court of Appeals didn't have any problem in saying the officer had reasonable suspicion that there was some kind of trespassing going on.
[00:05:57.576] [SPEAKER_01] No, I don't recall seeing anything talking about a clear, explicit notice that, you know, that no one's allowed up here. But it may have also been a factor that this is a somewhat inaccessible area, right? I mean, you know, that one of the officers can't even get up there in his regular patrol car. It's only this four-wheel drive truck that can get all the way up to the end of this private logging road. So you're right. I didn't see a whole lot of discussion about that, but I think that may have been what's going on in the background is that this is kind of an inaccessible private area that he's come some distance into.
[00:06:26.047] [SPEAKER_00] And there's also that point about we know, for example, that officers can ask people to step out of the car once they've conducted a lawful stop. But this seems to take it a step further when the officer asks the driver actually to move his car back down this trail. And the Court of Appeals had no problem in saying that is not an unlawful extension of the stop.
[00:06:45.014] [SPEAKER_01] I thought that was a really interesting detail, too. Yes, we know all the time they might ask them to step out of their vehicle or perhaps even sit in the back of the patrol car, that we can do those things when they are necessary for officer safety. And here they say this is kind of the same thing. The court actually says, Instead of investigating defendant and passenger alone at the top of a mountain trail, Lieutenant Beam opted to finish his investigation with his backup officer at the bottom of the trail. And so then they go on to say that the time required to drive to the bottom of the trail was negligible, and the time devoted to the officer's safety is time that is reasonably required to complete the mission of the stop. So, you know, I don't know that I've seen a case like this before that— it almost seems counterintuitive that for the sake of officer safety, I'm gonna tell a suspect to get back into his car and drive away.
[00:07:37.062] [SPEAKER_00] It seems like something that couldn't happen in a downtown area because the suspect might drive off into another direction. Right, but
[00:07:42.838] [SPEAKER_01] here, Here, I think that's kind of, as always, when we're talking about things like reasonable suspicion, the facts are critical. And I think this is kind of a unique situation. He's all alone at the tail end of an inaccessible road. And if something went wrong, his backup literally cannot get there in the vehicle that he's driving. And so one of these unique facts, it does make sense that for officer safety, I need to move the entire scene, including your car, to this other location. I don't know that I've seen that before, but I think it does make sense. So yeah, not an improper extension of the stop. And I think that's just a good one for the state to keep in mind, that when these kind of unique situations come up, No, I don't think we have to ask law enforcement officers to essentially choose between their own safety and then risking suppression of the evidence at the stop. So here this was valid. And so the consent was not invalid or improperly obtained because we were still reasonably investigating that stop. So a somewhat unique set of facts, but also interesting. And I think probably a good one to keep in mind when we're dealing with those
[00:08:43.008] [SPEAKER_00] kind of Rodriguez analyses. So the takeaway here is when you've got the circumstances that might justify an investigation into trespassing, that's certainly something will support the seizure and also maybe a brief extension of that stop. But also where the circumstances support maybe moving, I think what you call the scene of the stop to a safer location, the court of appeals here is authorizing the police to do that.
[00:09:05.278] [SPEAKER_01] And, you know, this happens to be a private logging road sort of way up in the mountains. But I could imagine the same thing applying. And what if we're on the side of I-40 in a construction zone at rush hour? I mean, I could imagine a situation where they might say, you know what, for the sake of officer safety or even the other people in the car. Yes, it does make sense for us to move this to the gas station at the next exit. You know, whatever it may be, if the officer is deciding that that's the safer way to proceed with what we need to do. So Joe, I think the next one we wanted to talk about was
[00:09:32.094] [SPEAKER_00] State v. Reber. Staphy Reber. This is a case decided by the Court of Appeals. It has kind of a long, interesting procedural history, so I'm going to spend just a minute going through that. But the facts of the case were, in Ashe County around 2012, defendant, who's I think about in his 20s, began abusing an eight-year-old girl designated in the subsequent opinions as KW. Defendant sexually abused KW for about three years. That abuse included vaginal sex, digital penetration, and oral sex. Apparently, that abuse stopped before KW's 11th birthday. In the fall of 2015, KW told a boyfriend who encouraged KW to tell her mother that this abuse had happened. KW told her mother and her mother ultimately reported that to the police. The defendant was arrested in November of 2015, charged with rape of a child and sex offense with a child. In November of 2015, so later that same month, the SBI obtained a search warrant and conducted a forensic exam on the defendant's cell phone. That forensic examination extracted information indicating that the particular phone that they had seized was not activated until May of 2015, which is after the alleged abuse had already stopped. Of course, they didn't know that when they seized the phone. The SBI found no exchanges between defendant and KW on the phone. KW had said they had exchanged thousands of text messages, nude photographs, that kind of things. But they did find on the defendant's cell phone thousands of messages between defendant and an adult girlfriend named Danielle. At trial, KW, who was 17 at the time, testified against defendant. Defendant denied sexually abusing KW. He described this normal adult relationship that he had with Danielle. He denied that he had purchased a new cell phone in order to hide any messages that had occurred between him and KW. Defendant was convicted of four counts of rape of a child, six counts of sex offense with a child. This goes up on appeal and the issue in Reber 1, which went to the Court of Appeals, was the admission at trial of these text messages between defendant and his adult girlfriend and some of the content of that message describing sexual interaction that happened between them. Defendant argued that there was error in the admission of text messages, and the Court of Appeals held that the trial court prejudicially erred by admitting those text messages and also that there was an error in the trial court's not intervening in the prosecutor's closing argument when the prosecutor also referred to those text messages with the adult girlfriend. There was a dissent in the Court of Appeals. It goes up to the North Carolina Supreme Court, and the North Carolina Supreme Court reversed the Court of Appeals opinion, finding that the Court of Appeals had improperly applied the plain error standard. Apparently, defendant had not properly objected to this evidence or to the prosecutor's argument at trial. So the North Carolina Supreme Court sent it back to the Court of Appeals to consider the other issues that defendant had raised. And that's where we get into these Fourth Amendment issues. So it's back down at the Court of Appeals for the second time. I'm calling it Reber II. And the issue there was whether he received ineffective assistance of counsel when counsel failed to make a motion to suppress the evidence that was derived from his cell phone. Remember, that evidence had no information about interactions with KW, the alleged victim in this case, but it did include those thousands of text messages with the adult girlfriend and some sort of untoward behavior that he had engaged in with his adult girlfriend. So the defendant argued that the search warrant was not supported by probable cause because one, it was not clear how or when the phone came into the officer's possession. There was no timeframe provided for the alleged abuse in the search warrant application. And also based on the search warrant affidavit that it was impossible to confirm that the phone that the police seized from the defendant was in fact the same phone that he used to talk with the child victim. The search warrant identified defendant's phone. It claimed to seek electronic stored information, including calls, text messages, contacts. The law enforcement officer averred that it is common practice for trial predators to store on a phone nude photographs, text messages. In addition, the victim had given statements to the officer indicating that there had been these exchanges. And really the rule that the Court of Appeals relied most heavily on here is that the magistrate is permitted to rely on reasonable inferences that can be drawn for a search warrant application. And so the Court of Appeals opinion includes that phrase again and again, that the magistrate could reasonably infer that the cell phone was seized at the time of the defendant's arrest, even though it didn't actually say that's when they got the phone.
[00:13:47.850] [SPEAKER_01] And Joe, I feel like that's getting right now into the heart of the issue of to what extent are we doing our job of deferring to the magistrate, being allowed to draw these common sense conclusions. But then the flip side is sort of when they say, but of course, we can't just allow purely conclusory speculation and guesswork. And sometimes that is a hard line to draw or find. I think this case is a good example of that.
[00:14:10.716] [SPEAKER_00] Yeah, yeah, that's right. I think the arguments that the defendant made here were not particularly compelling. I mean, when it was exactly that the officers got the phone, obviously it's going to be after the time that the alleged abuse occurred. And then same for the argument that there was no timeframe provided for when the illegal activity took place. The court of appeals concluded that the magistrate could reasonably infer that the timeframe would be established by whatever evidence they were able to get from the phone. So for example, if the phone did contain evidence of these exchanges of nude photographs or text messages with the victim, it would then be possible to say that the abuse happened on or about that time. So again, the court of appeals concluded that the magistrate could reasonably infer that information from whatever evidence was derived. And finally, the magistrate could reasonably infer that the phone in defendant's possession was the phone that he used to contact the victim. Now, it turns out that there was some evidence that that was not the case. Like I said, the information extracted from the phone indicated that this particular phone wasn't activated until after that abuse had allegedly ended. What the Court of Appeal said was the magistrate could reasonably infer, particularly where you've got a law enforcement officer who testifies to his training and experience, and there are certainly a lot of other cases where phones seized from these child predators contain evidence of that, nude photographs, text messages, that kind of thing. The magistrate could reasonably infer that the phone that the defendant had was the same phone that he used to communicate with his victim. The Court of Appeals said an affidavit is not conclusory if it details a connection or nexus between the property to be searched and the illegality, and here the affidavit was sufficient to establish that connection, linking the defendant's cell phone to the alleged illegal activity, sexual activity with KW.
[00:15:47.241] [SPEAKER_01] That's a good point. You know, we talked about sort of the difference between drawing the reasonable inferences versus these unsupported conclusory allegations. But then there's also that nexus element about are we tying it closely enough with the time factor or that this is, in fact, the same property? You know, you and I were talking the other day about this case and sort of drawing that line or comparing it to other cases. In thinking about this case, I went to pull back up one that I remembered from a couple of years ago, State versus Eddings from 2021, because I remember that had some of these similar issues. And that one happened to be a drug investigation and getting a search warrant for the house that they had seen this suspect just leaving. And in fact, they even talk about in the affidavit, following the suspect from the house, going down this street and right on this street and stopping at the BP. And in that case, the court reviewed it and found that it was not sufficiently supported, that it did not establish probable cause. And they deal with some of these same issues about, okay, they followed him and they say they stopped him immediately, but what does immediately mean? And how much time really would have elapsed between those two things? And that was a two-to-one decision. Judge Stroud dissented in that opinion and made... points that I think sound similar to what we're hearing in this opinion of, well, you can apply common sense. We can draw reasonable inferences and so forth. And so Judge Stroud would have, she dissented in that and said she would have found that it was sufficient. But what I found particularly interesting about that opinion is that the two judges who found that affidavit insufficient were Judge Wood and Judge Collins, who are two of the three judges in this case saying, we can draw these reasonable inferences, we can make these common sense conclusions, and so this affidavit is sufficient. Now, I'm not saying that anybody's flip-flopping or anything like that. I mean, every one of these cases, it's always about the particular facts. What exactly was said? What exactly did we know? But I just think sort of setting those up as contrasting examples, to me, is sort of the big takeaway for the prosecutors, is this is why it is so critical to articulate as much as possible, to encourage your officers to articulate as much as possible in these affidavits. If we did three control-bys over the last couple of days, don't just say, we did a few control-bys in recent days. We want to say we did three control-bys. This one was on Tuesday at 3 p.m. This one was on Wednesday. That level of specificity, I think, will make it a lot easier for your trial judge and for your appellate judges to say, we've got the timeframe, we've got the nexus, we've got the appropriately supported inferences being drawn.
[00:18:14.105] [SPEAKER_00] Yeah, and the two points I would make, that's a good point about the judges kind of making these determinations based on the specific facts of the case, right? Two things there. One, with that prior case you talked about, the Fourth Amendment specifically includes as a protected space, the home, whereas it doesn't mention a cell phone. Now, it's certainly true that the United States Supreme Court has applied the warrant requirement to cell phones, but this illustrates kind of the difficulty in the new world we're facing in applying those old search and seizure principles to kind of a digital space. The other thing I think is particularly important to note that this case, Reber, involved sexual abuse of a child. And at least with regard to the admission of evidence, there's North Carolina Supreme Court, North Carolina Court of Appeals opinion that have recognized they're going to be a little more liberal in allowing the admission of evidence when it goes to show sexual abuse of a child. And that may be what we're seeing here as a reflection of that same reflected back into the warrant requirement to say, when we don't know precisely when the alleged abuse occurred, and maybe that's because the child simply can't remember or doesn't have a very good recollection of when that occurred, we're not going to apply quite as strict a measure to determine if probable cause is established by
[00:19:22.042] [SPEAKER_01] that affidavit. I agree, but I think you're exactly right, too, that there is some tension there. I mean, on the one hand, they know what's at stake in this case. There may be some, you know, I don't know, pressure or desire to find a way for this to be admissible for this to be supported. But at the same time, absolutely. Like you said, look at Carpenter, look at Riley v. California. I think our courts have recognized that the contents of your phone, it can be your entire life. I mean, it could potentially be more invasive than searching your home for paper records, for example. So I think the best way to help the court resolve that tension in the way we want them to resolve it is to make sure these affidavits are as specific as possible and they've got all that detail and they lay out those connections and those timings. So I know that was sort of the central issue, but there was also this somewhat interesting issue with some of the jurors involved.
[00:20:08.638] [SPEAKER_00] Yeah, very briefly, just there was a second issue. The defendant argued the trial court erred by allowing jurors to serve on the jury who are not qualified by statute. It seems that from August 2nd and 3rd, the Ashe County Superior Court conducted a jury trial in a different case. It was a stalking case, I think. After the verdict, the judge asked that jury to stay. Defense counsel in this case knew that six jurors had rendered a verdict that morning and did not object to those jurors sitting in the jury pool for his own trial. Four of those six ended up being impaneled at defendant's trial. Now, under General Statute 9-3, the qualifications for jury service include that a person has not served as a juror during the preceding two years. But then that statute goes on to say that a person who's not qualified for any one of those reasons included may be challenged for cause. And what the Court of Appeals noted here was, The defendant raised a number of challenges. This was a violation of the statutory mandate. It involved what's called structural error, where the defendant ultimately is not required to show prejudice. And then finally, he argued that if this had not been properly preserved, that the Court of Appeals should apply Rule 2, which allows an appellate court to deviate from the rules of appellate procedure and address an issue that might not have been preserved below. Ultimately, the Court of Appeals rejected all this. said defense counsel knew that these jurors had been jurors in another case and chose not to challenge them even though he had these peremptories remaining. It chose not to invoke rule two to reach an issue where the defendant had the opportunity to exclude these jurors and then chose not to.
[00:21:40.317] [SPEAKER_01] So if this had simply been a, I don't know, a jury of only nine jurors instead of a jury of 12 or something like that, then they might have said, sure, that's a structural error. That's just, you know, it's fundamentally impossible for us to believe you had a fair and proper trial. But to say that they've served already within the last X number of years, that's something that you would have to actually show the prejudice for that to invalidate the verdict.
[00:22:02.321] [SPEAKER_00] I think that's right. And I think it goes to the fact that this is, at least the Court of Appeals treated it primarily as a statutory violation, not a constitutional violation. Those cases that find a problem with seating fewer than the constitutionally requisite number of jurors are going to go to a more fundamental issue than just the fact that jurors were seated in a different case, particularly where the defense counsel was aware of that fact and chose not to challenge the jurors on that basis.
[00:22:26.065] [SPEAKER_01] And I think with our final minutes, one final case that we wanted to talk about briefly was State v. Shine. This is a case out of Mecklenburg County, and the incident itself happened back in September of 2020. Officers are patrolling a parking lot in the area of the Baymont Inn. This is an area where they say they've conducted drug investigations before, so they know it is something of a high crime or a drug-prone area. They see a GMC Acadia that's backed into a parking spot in the far corner of the overflow parking lot of this Baymont Inn. I should also mention that they specifically talk about how the vehicle seems to be parked in a space that would give the occupants a good view of all activity in the parking lot and also provide a quick avenue of escape. So with all of that set up, the two officers approach the vehicle. They say they immediately detected an odor of unburned marijuana. The defendant is in the driver's seat of the vehicle. He's got one passenger with him, turns out to be the person's nephew. When the nephew passenger rolls down the window, the officers would say that the odor of marijuana that they had smelled earlier got even stronger and was clearly coming from the inside of the vehicle. So, as we've seen in a number of these cases recently, based on that odor of marijuana giving them probable cause, the officers conduct a search of the vehicle and they find a firearm, unburned marijuana, digital scales, and identification of the defendant, along with what they describe as a leafy green substance in nuggets in mason jars. With all of that evidence, the defendant is charged, as you mentioned in a prior episode, Joe, not so much concerned about the marijuana, but the defendant is ultimately indicted for possession of a firearm by a felon, felony possession of a stolen firearm, and attaining habitual felon status. His motion to suppress is denied, and he ultimately pleads guilty to all those charges, and then is appealing and is essentially arguing against what we've seen in some other cases recently, this idea that the odor of marijuana alone would continue to support probable cause to do a search of the vehicle under this motor vehicle exception. And so the court walks through this and they talk about the fact that, yes, if there's probable cause to justify the search, it would justify the search of every part of the vehicle. We look at totality of the circumstances and they go through and talk about what those factors were. And they do mention these other things, like the location in which the car was parked and these other sort of details and conclusions the officer can draw, but primarily are talking about the fact that the officers have had this drug identification training, including learning to detect the odor of marijuana. And so looking at the totality of the circumstances, the court concludes, yes, there was probable cause that would support the vehicle search in this case. fundamentally, they are rejecting, again, this odor alone challenge. You know, we saw this just recently. We talked about it in a prior episode, the State v. Little case, and they referenced that case along with sort of the longer history of cases that we've had backing this up. I think we're gonna continue to see a few more of these. I mean, we had Little, and you heard my argument in a prior episode. I think that was established in a number of prior cases that came out after Parker, like Teague and Johnson and a number of others. But nevertheless, Little recently was about as clear as it could be, I think. And this case cites back to Little for that same point. along with pointing out that there is no contrary case law being offered by the defendant to back up the idea that in North Carolina, it would not be enough to establish probable cause. And so they say, yes, we continue to hold to our longstanding doctrine that that fairly unique odor and appearance of marijuana does support probable cause for the search, as it has for a number of years, notwithstanding the recent changes in our law for hemp. Well, then they go on to say,
[00:26:04.099] [SPEAKER_00] right, that this was a smell-plus case, right? That they reject this argument and then say, oh, and by the way, this wasn't just a case that would depend on the odor of marijuana alone.
[00:26:13.050] [SPEAKER_01] I agree. They do. And I would recommend that to all prosecutors. I think we said that before. Even if odor or appearance alone should be enough to give you probable cause, every one of these opinions always talks about the fact that nevertheless, it is a totality of the circumstances analysis that we're making. So if there is more to this totality, then for goodness sake, let's make sure we present that to the judge when we have the motion to suppress. you know, they try to list out the factors in this case. One of them being the location where it occurs, you know, this sort of being in a high crime area is one that has been recognized as a factor that could contribute to that. The other stuff the court mentions, like the training that the officers have had about recognizing the odor and so forth, it certainly helps. But I think that obviously kind of depends a little bit on the odor still being or not being an incriminating factor. So setting that aside, it's sort of, to me, the plus if we had needed it, you know, if Parker had ended up being the controlling doctrine in North Carolina. There's not a whole lot here maybe other than that location, you know, that maybe a little bit about the way that it's parked and it's way off in the corner. But it seems to be that it's in this area where they've done prior drug investigations. So, you know, arguably sort of a high crime area. And on that point, Judge Murphy sort of makes an interesting observation in the concurring opinion. And it says, I am bound by the jurisprudential maypole throughout our case law that a high crime area is a legitimate factor in determining probable cause and not just a legal fiction created to subject the poor and urban areas of our state to an unequal application of the Fourth Amendment.
[00:27:50.452] [SPEAKER_00] Jonathan, I want to ask you, it's a little curious, right? Because it's a per curiam opinion. And sometimes the Court of Appeals does a per curiam opinion to kind of cloak the judges involved and say, this is really the opinion of the court sitting as a whole. But then you get Judge Murphy concurring in the result only. What did you make of the fact that it's a per curiam opinion with a separate opinion from Judge Murphy?
[00:28:12.678] [SPEAKER_01] The best I could offer, I'm certainly no mind reader, but looking at those comments, I think it may just sort of be to express that opinion of, yes, this is our precedent on things like a high crime area, or yes, this is our precedent on things like odor and appearance of marijuana, but perhaps to express less than a ringing endorsement.
[00:28:29.736] [SPEAKER_00] Yeah, I detected a bit of hesitation there. Concurring in the result typically means that that judge doesn't entirely endorse the reasoning of the majority. I think you're right. He finds himself bound by those prior cases and says, this is the result we have to come to, but he's not happy about
[00:28:45.742] [SPEAKER_01] it. That may well be, but I think what we can tell prosecutors is that unless and until our supreme court says something different i think these case this case little some of these others along with pretty healthy body of other federal case law and out of jurisdiction cases that they've been approvingly citing to should finally now be putting to bed this argument about whether the legalization of hemp changes that long-standing doctrine about odor and appearance of marijuana and uh you know whether it is uh appealing to everybody on the bench or not, that seems to be the state of the law for now. So I think that's what we could tell officers or what we could argue in court is that it should indeed continue to be enough for probable cause.
[00:29:25.054] [SPEAKER_00] That's all folks for this episode. Today we discussed State v. Jackson involving a car that was potentially trespassing, State v. Reber where the Court of Appeals found probable cause to search the defendant's cell phone, and State v. Shine, another case where there was probable cause based on the odor of marijuana. Turning States is a collaboration between the University of North Carolina School of Government and the North Carolina Conference of District Attorneys. We are coming to you from the recording studio at the School of Government in Chapel Hill. Special thanks to our producer, Paul Bonner, and to Gustav Holst for our music. If you liked what you heard today, if you have questions, comments, concerns, if there's a topic you'd like for us to cover, please contact us. My name is Joseph Hyde. I can be reached at jhyde at sog.unc.edu. That's jhyde at sog.unc.edu.
[00:30:19.627] [SPEAKER_01] And I'm Jonathan Holbrook, and I can be reached at jonathan.p.holbrook at nccourts.org. That's j-o-n-a-t-h-a-n dot p dot h-o-l-b-r-o-o-k at n-c-c-o-u-r-t-s dot org. Thank you very much, John. Good night and good luck. Thank you very much, Joe. Good night, and I hope it helped.