In State of North Carolina v. Johnathan Terrille Jordan (COA25-1032), an unpublished opinion of the North Carolina Court of Appeals, the Court addresses a number of interesting issues in a case that arouse out of a Columbus County traffic stop that ultimately resulted in a number of convictions on some serious narcotics offenses.
In June of 2022, a detective with the Columbus County Sheriff's Department observed the car driven by Mr. Jordan cross the center line several times. The windows of the vehicle were also tinted. The detective initiated a traffic stop. When the detective approached the vehicle, Mr. Jordan had the driver’s side window rolled down. The detective observed a green leafy substance in the center console of the vehicle and he also smelled an odor of marijuana. Mr. Jordan complied with the detective’s request for him to step out of the vehicle. While conducting a pat-down search of Mr. Jordan, a whiskey bottle bag fell out of his clothing. Mr. Jordan admitted that the bag contained cocaine, heroin, pills, and fentanyl. The detective also found other various items generally associated with narcotics selling. Later, laboratory analysis confirmed that the substances seized contained more than 4 grams of heroin and more than 28 grams of oxycodone.
Mr. Jordan filed a motion to suppress the items seized during the stop. At the pretrial hearing on Mr. Jordan’s motion to suppress, he asserted that there was no reasonable suspicion for the stop. During the suppression hearing, the detective testified about his observations of Mr. Jordan’s vehicle crossing the center line and the tint of the vehicle’s windows. The State did not question the detective on anything that occurred after the stop because Mr. Jordan’s motion only questioned the reasonableness of the stop. Mr. Jordan’s motion to suppress was denied and the trial court made no explicit findings of fact or conclusions of law.
At trial, without objection, the State introduced the evidence seized during the traffic stop. Mr. Jordan was convicted by a jury of trafficking heroin by possession, trafficking heroin by transportation, trafficking opioid by possession, trafficking opioid by transportation, and possession of drug paraphernalia. Judgments on the trafficking heroin by possession and trafficking heroin by transportation convictions were arrested. Mr. Jordan gave notice of appeal.
On appeal, Mr. Jordan argued that the trial court erred by denying his motion to suppress and failing to make findings of fact and conclusions of law that support that denial. He also argued that he received ineffective assistance of counsel (IAC) when his trial attorney failed to object to the evidence that he sought to suppress. Unfortunately for Mr. Jordan, his failure to renew his objection to the evidence obtained and the statements made during the traffic stop did not preserve these issues for appellate review. In other words, the denial of his motion to suppress was not preserved for appellate review.
When an issue is not preserved for appellate review, the appellate court may still review it, however the standard of review in this circumstance is plain error. Under plain error review, a defendant is required to show that the error had a probable impact on the outcome of the case. That is, had the error not occurred, the jury probably would have returned a different verdict. Furthermore, the error must be such that it effects the overall public perception of the fairness of judicial proceedings.
Here, the appellate Court found that Mr. Jordan’s motion to suppress was properly denied by the trial court. Reasonable suspicion to stop did exist based on the detective’s observations and his testimony of Mr. Jordan’s vehicle crossing the center line several times.
Also on appeal, Mr. Jordan raised an issue that he did not raise in his motion to suppress. Mr. Jordan asserted that his motion to suppress was improperly denied because the detective did not distinguish legal hemp from illegal marijuana with respect to the odor that he smelled during the stop. This issue was not raised during the suppression hearing and was not properly before the appellate court. Nevertheless, the court did address it perhaps because it was such a novel argument. The court noted that the detective observed and smelled the marijuana that was in plain view. When justified by a totality of the circumstances, the North Carolina Supreme Court has found that a warrantless search based on an odor of marijuana is lawful. During the stop, Mr. Jordan did not identify the green leafy substance as hemp. Given the odor detected by the detective and that the substance was in plain view, the Court found that there was reasonable suspicion to search the car.
Mr. Jordan also requested that the appellate court suspend the rules of Appellate Procedure by invoking Rule 2 in order to review the trial court's denial of his motion to suppress. However, Rule 2 is only utilized under “exceptional circumstances” and Mr. Jordan did not identify an circumstances that would justify its implementation. The Court again reiterated its position that the trial court correctly concluded that there was reasonable suspicion for the stop.
Mr. Jordan also argued that the trial court had a statutory duty under N.C.G.S. §15A-977(f) to set out findings of fact and conclusions of law in its ruling on his motion to suppress. The court pointed out that the North Carolina Supreme Court has not always required explicit conclusions of law from trial courts in its rulings on motions to suppress. In the instant case, the record did not indicate any material conflicts in the evidence. Although the trial court’s ruling did not spell out any conclusions of law, it was apparent that its conclusion was that reasonable suspicion existed for the stop. The Court felt that it would be unnecessary to remand the case for the purpose of explicitly spelling out this finding especially since it was not preserved by Mr. Jordan.
Finally, in examining Mr. Jordan’s IAC claim, the Court noted that the applicable standard of review consisted of a two-pronged test. First, there must be a showing that counsel’s performance was deficient. Second, there must be a showing that the defendant was prejudiced by the deficient performance. When reviewing IAC claims, the Court presumes that the attorney’s performance was in line with acceptable professional conduct. Furthermore, appellate courts are hesitant to enter the realm of second guessing the trial strategy of counsel. Here Mr. Jordan asserted that he received Ineffective assistance of counsel due to his attorney’s failure to object to the admission of the evidence that he sought to suppress. The appellate Court found that the evidence that Mr. Jordan sought to suppress was in fact admissible and his counsel’s failure to object to the admissible evidence did not constitute ineffective assistance of counsel.
In spite of his efforts on appeal, the North Carolina Court of Appeals found that the trial court’s ruling on his motion to suppress was proper. The Court did suggest that it Is probably a better practice of the trial court to make findings of fact and conclusions of law in its rulings on motions to suppress.
From the standpoint of the criminal trial practitioner, this case illustrates the importance of timely objections during the trial in order to preserve issues for appellate review. Even if a court has made a ruling unfavorable to your client in a prior hearing on an issue, it does not prejudice your client to object again should that issue or even an ancillary issued be raised in a subsequent hearing. Failing to do so may result in an appellate court not considering the issue at all or considering but applying a much less favorable standard of review on appeal.
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