An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-292


Filed: 7 January 2003


         v.                         Guilford County
                                 Nos. 94 CRS 74930-31,
GLENN EDWARD GRIFFITH                     95 CRS 20497

    On writ of certiorari to review order entered 19 June 1995 by Judge Thomas W. Ross in Guilford County Superior Court. Heard in the Court of Appeals 23 December 2002.

    Attorney General Roy Cooper, by Assistant Attorney General William McBlief, for the State.

    Nancy R. Gaines for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Glenn Edward Griffith was charged with trafficking in marijuana by transportation, trafficking in marijuana by possession, possession with intent to sell and deliver marijuana, and conspiracy to commit the felony of trafficking in marijuana. His case was heard at the 4 April 1995 Criminal Session of Guilford County Superior Court.
    The evidence at the hearing showed that on 23 November 1994, Trooper Tim Cardwell of the North Carolina Highway Patrol was driving on Interstate 85 in Guilford County, North Carolina. Joining Trooper Cardwell was his friend, Corporal Shawn Moore of the Missouri State Highway Patrol, who was in plain clothes and riding along with Trooper Cardwell during his visit for theThanksgiving holiday. While traveling north on Interstate 85, Trooper Cardwell observed a white Cadillac pass him; the vehicle was directly behind a “tractor/trailer tanker.” Trooper Cardwell pulled up beside the Cadillac and determined that it was following the tractor/trailer too closely. He then moved behind the Cadillac, activated his blue lights, and stopped the vehicle.
    As Trooper Cardwell exited his vehicle, he saw Timothy Duckworth exit the driver's side of the Cadillac and walk toward him. At that time, Trooper Cardwell noticed defendant sitting in the passenger seat of the Cadillac. As Duckworth gave Trooper Cardwell his driver's license, Trooper Cardwell noticed that Duckworth appeared nervous and had trouble pulling his license out of his billfold because his hands were trembling. Trooper Cardwell also testified that he detected an odor of marijuana while standing at the rear of the Cadillac. Trooper Cardwell asked Duckworth to have a seat in his patrol car, and asked Corporal Moore to go speak with defendant. When questioned, Duckworth told Trooper Cardwell that he and defendant had driven straight from Houston on their way to visit defendant's grandmother in Washington, D.C.
    Corporal Moore returned to the patrol car, and Duckworth went back to the Cadillac. Meanwhile, defendant told Corporal Moore that he had flown from Miami to Houston, where he met Duckworth. He further stated that the two made a stop in Atlanta, Georgia, while on their way to Washington, D.C. to visit his grandmother. Upon hearing this information, Trooper Cardwell noted the discrepancy between Duckworth's and defendant's stories regardingthe stop in Atlanta. Trooper Cardwell also found it “unusual” that a person would fly from Miami to Houston then drive to Washington, D.C., to visit a relative. Trooper Cardwell ran a criminal records check on both defendant and Duckworth, and discovered that both men had served time in federal prison for narcotics violations.
    Trooper Cardwell then issued a warning ticket to Duckworth for following too close, and asked for consent to search his vehicle. Duckworth refused. Based on his suspicions that there were drugs in the vehicle, Trooper Cardwell requested that a K-9 unit come to the scene to do an “exterior sniff” of the Cadillac. Defendant asked to call his attorney, and Trooper Cardwell accompanied defendant back to the Cadillac so he could retrieve his cellular phone. Trooper Cardwell stood next to defendant while he made his phone call, and again detected the odor of marijuana emanating from the Cadillac.
    A short time later, Officer Johnny Martin Ferrell of the High Point Police Department arrived with Shadow, a Labrador Retriever trained to locate controlled substances. Trooper Cardwell observed Shadow circle the vehicle and give an aggressive alert by the trunk of the car, indicating the presence of narcotics. When the dog was allowed inside the Cadillac, it gave an aggressive reaction to the rear of the vehicle. Trooper Cardwell then opened the trunk of the Cadillac and discovered 17 wrapped bundles of marijuana. Duckworth and defendant were arrested.
    Prior to trial, defendant moved to suppress the drug evidence, arguing that it was the product of an unlawful search and seizure. During the suppression hearing, defendant's counsel presented Trooper Cardwell with two bundles and asked him to smell them. Trooper Cardwell detected the odor of coffee from one of the bundles. The two bundles were in fact plastic bags filled with coffee which were wrapped in a manner identical to the wrapping of the bundles of marijuana found in defendant's car. The trial court allowed the demonstration for the purpose of showing the similarity in the way the bundles were wrapped, but would not admit it for the purposes of demonstrating what smells might have emanated from defendant's car.
    On 7 July 1997, defendant pled guilty pursuant to a plea agreement to trafficking in marijuana by transportation, trafficking in marijuana by possession, possession with intent to sell and deliver marijuana, and conspiracy to commit the felony of trafficking in marijuana. Defendant also gave notice of his intent to appeal the denial of his motion to suppress. On 14 July 1997, defendant was sentenced to two consecutive terms of thirty- five to forty-two months' imprisonment. Notice of appeal was entered, but defendant's appeal was never perfected. This Court allowed defendant's petition for writ of certiorari to allow review of his conviction.
    Defendant's sole argument on appeal is that the trial court erred by denying his motion to suppress. Specifically, defendant contends the trial court abused its discretion by refusing to consider his demonstration at trial that Trooper Cardwell could not have detected the odor of marijuana emanating from the trunkof his automobile. Defendant argues that the demonstration “clearly made the point that wrapping a pungent substance as the marijuana was wrapped, significantly reduces the odor released.” Defendant further asserts that “the point was well made that Trooper Cardwell's olfactory observations were questionable.” By refusing to consider the demonstration, defendant argues that the trial court failed to consider competent evidence that cast doubt upon the sole finding of fact used to support its denial of his motion to suppress; namely, that Trooper Cardwell smelled marijuana when standing next to defendant's vehicle.
    After careful review of the record, briefs and contentions of the parties, we affirm. The threshold question is whether this was a “demonstration” or an “experiment.” “A demonstration . . . is '“an illustration or explanation, as of a theory or product, by exemplification or practical application.”'” State v. Golphin, 352 N.C. 364, 434, 533 S.E.2d 168, 215 (2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001) (citations omitted). “An experiment is '“a test made to demonstrate a known truth, to examine the validity of a hypothesis, or to determine the efficacy of something previously untried.”'” Id. at 433, 533 S.E.2d at 215 (citations omitted).
    The evidence here was clearly an experiment, rather than a demonstration. Defendant's counsel was testing his hypothesis that Trooper Cardwell would not be able to smell marijuana wrapped in bundles like those found in the trunk of defendant's automobile. “'Experimental evidence is competent and admissibleif the experiment is carried out under substantially similar circumstances to those which surrounded the original occurrence.'” Id. at 433, 533 S.E.2d at 215 (citations omitted). “Generally, the trial court is given broad discretion to determine if the conditions are sufficiently similar.” Id. at 434, 533 S.E.2d at 215. Here, considering that the experiment included coffee, and not marijuana, in the bundles, the trial court properly determined that the experiment was not sufficiently similar and refused to consider the experiment for the purpose of showing that Trooper Cardwell did not detect the odor of marijuana during the stop of the Cadillac on 23 November 1994.
    We further conclude that the trial court did not err by denying the motion to suppress. “The scope of review on appeal of the denial of a defendant's motion to suppress is strictly limited to determining whether the trial court's findings of fact are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court's conclusions of law.” State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993). Here, the trial court found as fact that Trooper Cardwell twice detected the odor of marijuana emanating from defendant's car. The trial court further found that when stopped, Trooper Cardwell noticed that Duckworth appeared very nervous. He had difficulty completing sentences, he was breathing rapidly, and his hands were “trembling,” to the point that he had difficulty removing his driver's license from his billfold. The trial court also noted inconsistencies betweendefendant's and Duckworth's stories regarding whether they had stopped in Atlanta. Based on these findings of fact, the trial court concluded Trooper Cardwell had probable cause to search the vehicle, and at the very least, a reasonable suspicion existed to continue the investigation. There was competent evidence in the record to support the trial court's findings of fact, and the trial court's findings of fact supported its conclusions of law. Accordingly, the denial of defendant's motion to suppress is affirmed.
    Chief Judge EAGLES and Judge HUDSON concur.
    Report per Rule 30(e).

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