STATE OF NORTH CAROLINA
v. Guilford County
Nos. 94 CRS 74930-31,
GLENN EDWARD GRIFFITH 95 CRS 20497
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.
Affirmed.
Chief Judge EAGLES and Judge HUDSON concur.
Report per Rule 30(e).
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