                                      NO. COA14-162

                          NORTH CAROLINA COURT OF APPEALS

                                Filed:     2 September 2014


STATE OF NORTH CAROLINA

      v.                                         Gaston County
                                                 Nos. 12 CRS 52075-78
THOMAS ARMSTRONG



      Appeal by the State from order entered 4 December 2013 by

Judge Jesse B. Caldwell, III, in Gaston County Superior Court.

Heard in the Court of Appeals 4 June 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Joseph L. Hyde, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Barbara S. Blackman, for defendant-appellee.


      CALABRIA, Judge.


      The State appeals, pursuant to N.C. Gen. Stat. § 15A-979

and     §    15A-1445(b),        an   order     granting       Thomas    Armstrong’s

(“defendant”) motion to suppress evidence seized by virtue of a

search without a search warrant.               We reverse and remand.

      About       1:45   a.m.    on   13   February    2012,    Officers    Jonathan

Scher       (“Officer     Scher”)        and   Bryce   Carr     (“Officer     Carr”)

(collectively “the officers”) of the Gastonia Police Department

observed      a   black    Chevrolet       Impala   (“the     Impala”)    execute   a
                                       -2-
three-point turn in the middle of an intersection, strike a

parked vehicle, and continue traveling on the left side of the

road.     The officers activated their blue lights to initiate a

traffic      stop.     Before    the   driver    stopped      the    Impala,    the

officers observed a brown beer bottle thrown from the driver’s

side window.

      The officers approached the Impala.               Defendant, the driver,

and his passenger complied with the officers’ order to exit the

Impala.       When    the   officers   checked    the    vacant     Impala,    they

detected an odor of alcohol and marijuana emanating from inside

the Impala and discovered a partially consumed bottle of beer

was located in the center console.               Officer Carr also detected

an    odor    of     alcohol    on   defendant’s       breath,      and   observed

defendant’s eyes, which he described as “red, glassy bloodshot

eyes.”

      Defendant was arrested for hit and run and possession of an

open container of an alcoholic beverage.                Both defendant and his

passenger were restrained in handcuffs and secured in the back

of the officers’ patrol vehicle.               Officer Carr then retrieved

the   beer    bottle   that    had   been    thrown    from   the   Impala    while

Officer Scher searched the vehicle.                   Officer Scher found the

beer bottle in the center console and a grocery bag with three
                                                -3-
unopened beers on the floorboard of the passenger area.                              He also

found a “plastic baggie containing several white rocks” in the

glove compartment of the Impala.

       Defendant was subsequently charged with felony possession

of   cocaine,        hit   and    run    with     failure      to   stop    when    property

damage    occurred,         reckless      driving       to    endanger,     driving    while

license revoked, possession of an open container of an alcoholic

beverage in the passenger area of a vehicle while consuming

alcohol, and drinking beer while driving.                           On 7 November 2013,

defendant filed a pretrial motion to suppress all the evidence

that     was    obtained         as    the   fruit      of     an   illegal       search     of

defendant’s vehicle.              After a hearing, the trial court entered

an   order     on     4    December      2013    granting       defendant’s       motion     to

suppress.       The State appeals.

       The     State       argues      the      trial    court      erred    by     granting

defendant’s          motion      to     suppress.            Specifically,     the     State

contends       the    search      of     defendant’s         vehicle   was    based        upon

probable cause, therefore the trial court mistakenly concluded

that the extensive search went beyond a valid and lawful search

incident to arrest, and “is distinguishable from other cases

where the vehicles are stopped lawfully but no one is placed

under arrest such that the vehicle is not secured, and also from
                                                  -4-
cases in which law enforcement actually observed the occupants

of the vehicle engaging in drug transactions and subsequently

secured the vehicle.”             We agree with the State.

       The standard of review regarding a trial court’s decision

with    respect      to    a    motion       to    suppress      “is       whether     competent

evidence supports the trial court’s findings of fact and whether

the findings of fact support the conclusions of law.”                                    State v.

Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011).                                     “[T]he

trial    court’s      findings         of    fact       are    conclusive        on    appeal    if

supported       by    competent         evidence,         even       if    the    evidence      is

conflicting.”           State     v.    Allen,          197   N.C.     App.     208,     210,   676

S.E.2d    519,       521       (2009)       (citation         omitted).          Findings       not

challenged on appeal are deemed supported by competent evidence

and are binding on appeal.                    Biber, 365 N.C. at 168, 712 S.E.2d

at 878.     “Conclusions of law are reviewed de novo[.]”                               Id.

       Since    the       State     does      not       challenge         the    trial    court’s

findings, they are binding on appeal.                            Id.       Rather, the State

contends that the trial court erred in its conclusion of law

that the officers’ extensive search of the Impala went beyond a

valid and lawful search incident to arrest because a search

warrant was required to execute a lawful search of the interior

portion    of     the      Impala       without         violating         defendant’s        Fourth
                                         -5-
Amendment rights.       Therefore, the issue for our determination is

whether     the    officers   had        probable    cause     to   justify   the

warrantless search.

     The     Fourth      Amendment        protects       individuals     “against

unreasonable searches and seizures.”                 U.S. Const. Amend. IV.

Generally, a warrant is required for every search and seizure,

with particular exceptions.          State v. Trull, 153 N.C. App. 630,

638-39, 571 S.E.2d 592, 598 (2002).                  Two specific exceptions

include a search incident to a lawful arrest and the “automobile

exception.”       The United States Supreme Court has held that law

enforcement may search a vehicle incident to a suspect’s arrest

“only     when    the   arrestee    is     unsecured     and   within    reaching

distance of the passenger compartment at the time of the search”

or   “when it is reasonable to believe evidence relevant to the

crime of arrest might be found in the vehicle.” Arizona v. Gant,

556 U.S. 332, 343, 173 L. Ed. 2d 485, 496 (2009) (citation and

internal    quotations     omitted).           “[W]hen   investigators    have   a

reasonable and articulable basis to believe that evidence of the

offense of arrest might be found in a suspect’s vehicle after

the occupants have been removed and secured, the investigators

are permitted to conduct a search of that vehicle.”                      State v.

Mbacke, 365 N.C. 403, 409-10, 721 S.E.2d 218, 222 (2012).
                                        -6-
    “It is a well-established rule that a search warrant is not

required before a lawful search based on probable cause of a

motor vehicle in a public roadway or in a public vehicular area

may take place.”       State v. Downing, 169 N.C. App. 790, 795, 613

S.E.2d 35, 39 (2005) (citing United States v. Ross, 456 U.S.

798, 809, 72 L. Ed. 2d 572, 583-84 (1982)); see also State v.

Isleib, 319 N.C. 634, 638-39, 356 S.E.2d 573, 576-77 (1987)

(discussing     the        automobile      exception    to       the   warrant

requirement).       “If probable cause justifies the search of a

lawfully stopped vehicle, it justifies the search of every part

of the vehicle and its contents that may conceal the object of

the search.”        State v. Mitchell, ___ N.C. App. ___, ___, 735

S.E.2d 438, 441 (2012), appeal dismissed, disc. review denied,

___ N.C. ___, 740 S.E.2d 466 (2013).                “Probable cause exists

where the facts and circumstances within their [the officers’]

knowledge     and    of     which   they      had   reasonable     trustworthy

information [are] sufficient in themselves to warrant a man of

reasonable caution in the belief that an offense has been or is

being committed.”         Downing, 169 N.C. App. at 795, 613 S.E.2d at

39 (citations and internal quotations omitted) (alterations in

original).    “[T]he mere odor of marijuana or presence of clearly

identified paraphernalia constitutes probable cause to search a
                                       -7-
vehicle.”    Mitchell, ___ N.C. App. at ___, 735 S.E.2d at 442;

see State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441

(1981) (odor of marijuana “gave the officer probable cause to

search . . . for the contraband drug.”); see also State v.

Corpening, 200 N.C. App. 311, 315, 683 S.E.2d 457, 460 (2009)

(“The    ‘plain     smell’    of    marijuana     by    the     officer       provided

sufficient probable cause to support a search and defendant’s

subsequent arrest.”).

    In the instant case, the trial court found that defendant

and his passenger were restrained with handcuffs and secured

inside the officers’ patrol vehicle before the officers searched

the Impala, and that the officers did not see any contraband in

plain view before the search.              The trial court was correct in

concluding that since defendant was restrained in handcuffs and

secured in the officers’ patrol vehicle before Officer Scher

began searching the Impala, Gant did not permit a search of the

Impala    because     defendant      was   neither      unsecured       nor     within

reaching distance of the passenger compartment of the vehicle at

the time of the search.

    However,        Gant     also    recognized        that     there    are     other

exceptions   to     the    warrant    requirement        that    would    permit     a

vehicle search, including the automobile exception.                       Gant, 556
                                             -8-
U.S. at 346-47, 173 L. Ed. 2d at 498 (“If there is probable

cause    to    believe        a    vehicle    contains      evidence     of        criminal

activity, United States v. Ross . . . authorizes a search of any

area of the vehicle in which the evidence might be found.”).

The officers testified, and the trial court found, that the

officers detected the odor of both alcohol and burning marijuana

emanating from within the passenger compartment of the Impala.

At the hearing, Officer Carr testified that he could “smell a

strong      odor   of       marijuana   coming       from   inside     the     vehicle.”

Officer Scher testified that after detecting the odor of alcohol

and   marijuana        in    the    Impala    and    placing   defendant           and   his

passenger in the back of the patrol vehicle, he “proceeded to

conduct a probable cause search of the [Impala].”                             Since the

officers had probable cause to search the Impala based upon the

odor of marijuana, the officers could lawfully search every part

of    the     Impala    where       marijuana       might   reasonably        be     found,

including the glove compartment.                     Mitchell, ___ N.C. App. at

___, 735 S.E.2d at 441.

      The     trial     court      misinterpreted       Gant    as     requiring         the

officers to obtain a search warrant in order to execute a lawful

search of the interior portion of the vehicle.                          However, the

officers had probable cause to search the Impala based upon the
                                  -9-
odor of marijuana emanating from the vehicle, after defendant

was restrained in handcuffs and secured in the officers’ patrol

vehicle, that justified the search of every part of the vehicle

and its contents.      See Mitchell, ___ N.C. App. at ___, 735

S.E.2d at 441.     Therefore, the trial court was mistaken because

it failed to take into account the officers’ probable cause to

search   for   contraband.   We   reverse   the   trial   court’s   order

granting defendant’s motion to suppress and remand to the trial

court.

    Reversed and remanded.

    Judges BRYANT and GEER concur.
