IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-796

No. COA22-291

Filed 6 December 2022

Watauga County, No. 20CRS51032

STATE OF NORTH CAROLINA 

v.

ROBERT MACDONALD WALTERS, Defendant.

Appeal by defendant from judgment entered 27 October 2021 by Judge R. 

Gregory Horne in Superior Court, Watauga County. Heard in the Court of Appeals

1 November 2022.

Attorney General Joshua H. Stein, by Assistant Attorney General Phyllis A. 

Turner, for the State. 

Assistant Public Defender Max E. Ashworth, III, for defendant-appellant. 

STROUD, Chief Judge.

¶ 1 Defendant appeals from a judgment entered upon a jury verdict finding him 

guilty of possession of methamphetamine. Defendant argues evidence regarding the 

methamphetamine was inadmissible because the police did not have probable cause 

to search his vehicle due to recent changes in North Carolina law involving marijuana 

and industrial hemp. Because Defendant had no legitimate expectation of privacy in 

the bag where he stored both his hemp and methamphetamine, and Defendant’s bag 
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was not protected by the federal Constitution or this State’s Constitution, we affirm 

the trial court’s denial of Defendant’s motion to suppress.

I. Background

¶ 2 Defendant contends the trial court erred by denying his motion to suppress

evidence found during a search of his vehicle. Defendant and the State agreed, on 

the record, upon the factual basis for purposes of deciding the motion to suppress.

They agreed the trial court should consider an affidavit by Defendant’s counsel in 

support of the motion to suppress and a “SYNOPSIS” written by the responding 

deputy on the night of Defendant’s arrest, which was attached to Defendant’s 

counsel’s affidavit as an exhibit. Defendant and the State did not formally introduce 

any additional evidence when the motion was heard before trial on 26 October 2021.

¶ 3 The synopsis indicates on 16 October 2020 Watauga County Sheriff’s Deputy 

Brian Lyall was driving and on duty when he “noticed a black Dodge diesel truck” at 

an intersection. Deputy Lyall recognized the driver as Defendant; Deputy Lyall also 

had information from another deputy, Deputy Norris, that Deputy Norris had “seized 

suspected Methamphetamine off of [Defendant] in the recent past.” Deputy Norris

had also taken out felony possession warrants on Defendant, which were still 
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outstanding.1 Deputy Lyall turned around to follow the truck and saw “a black in 

color Dodge sitting in the parking lot of” a car dealership. Deputy Lyall then turned 

on his lights and “initiate[d] a traffic stop.” 

¶ 4 Here, Defendant’s counsel’s affidavit and Deputy Lyall’s synopsis differ on 

some details of the exact sequence of events. According to Deputy Lyall’s synopsis, 

he asked for Defendant’s driver’s license, radioed dispatch, and confirmed Defendant 

still had an “outstanding warrant for his arrest.” Defendant’s counsel’s affidavit 

states, based upon his review of the body-cam video of the event, that “Upon arriving 

at the Dodge Ram, Dep. Lyall opened the driver’s side door of the Dodge Ram and 

ordered Defendant to exit the vehicle. . . . Defendant complied with Dep. Lyall’s 

request and immediately exited the Dodge Ram.” The affidavit continues, “[u]pon 

exiting the Dodge Ram, Dep. Lyall immediately placed the Defendant under arrest 

and handcuffed the Defendant.” The affidavit notes, “[d]espite what is noted in 

Exhibit ‘A,’ [the synopsis,] Dep. Lyall did not ask Defendant for license, registration, 

or any other documentation prior to placing him under arrest.” There was no further 

explanation of the discrepancy between the events contained in the body-cam video 

as asserted in Defendant’s counsel’s affidavit and Deputy Lyall’s synopsis.

 

1

 The outstanding warrants that were the original cause for Defendant’s arrest were not 

included in the Record on Appeal, but Defendant does not dispute that he was arrested upon 

the outstanding warrants.
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¶ 5 Deputy Lyall called “Canine Handler Watson to the scene,” arrested 

Defendant, searched him, placed him in handcuffs behind his back, and put him in 

Deputy Lyall’s patrol car. The affidavit states Deputy Lyall “retrieved the 

Defendant’s cell phone so that Defendant could make arrangements for the Dodge 

Ram[,]” but the synopsis does not. The affidavit also states that, due to Defendant’s 

discomfort and difficulty with having his hands handcuffed behind his back, Deputy 

Lyall allowed Defendant to exit the patrol car and Deputy Lyall moved Defendant’s 

handcuffs to the front of Defendant’s body. While Deputy Lyall was moving 

Defendant’s handcuffs, or shortly thereafter, Deputy Watson arrived. Deputy Lyall 

then placed Defendant back in the patrol car. 

¶ 6 The affidavit indicates Deputy Lyall asked Deputy Watson to “run his dog” 

around Defendant’s truck after Deputy Lyall placed Defendant back in the patrol car. 

The synopsis does not indicate Deputy Lyall asked Deputy Watson to run his dog 

around the truck, but only states that after Deputy Lyall placed Defendant in the 

patrol car “Deputy Watson advised [Deputy Lyall] that his Canine indicated on the 

vehicle.”2 Deputy Lyall searched the truck and “under the [driver’s side] seat [Deputy 

Lyall] located a black [C]rown [R]oyal bag. Inside the bag was a bag of Marijuana, a 

 

2 Deputy Watson confirmed during the State’s presentation of evidence that the “dog is 

certified in cocaine, heroin, meth[amphetamine], and marijuana.” The dog is annually 

recertified to detect these substances. Defendant did not object to Deputy Watson’s 

testimony. 
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Marijuana smoking device, a plastic tube of Marijuana and a plastic bag containing 

a white crystal like substance.” Deputy Watson stayed behind to coordinate the 

towing of the truck while Deputy Lyall took Defendant to a magistrate’s office where 

he was served the “outstanding warrant for possession of Methamphetamine.” 

Defendant was later indicted for possession of methamphetamine, possession of 

marijuana paraphernalia, and simple possession of marijuana, a Schedule VI 

controlled substance, based on the search on 16 October 2020. “The suspected 

Methamphetamine” from 16 October 2020 was “sent to the Western Regional 

Laboratory” for testing. The State presented expert testimony at trial identifying the 

substance as methamphetamine. The record is unclear on the timing, but at some 

point prior to trial the “Marijuana” located during the search of Defendant’s truck

was identified as hemp. The State voluntarily dismissed the charges for possession 

of marijuana paraphernalia and possession of marijuana on 28 October 2021. 

¶ 7 Defendant filed a pretrial motion to suppress “any and all evidence or potential 

evidence seized following an illegal search of [his] motor vehicle” on 16 October 2021. 

This motion was heard 26 October 2021, on the first day of Defendant’s trial, after 

jury selection but before the State began presenting evidence. After hearing counsels’ 

arguments on the motion, the trial court reconciled the differences between the 

synopsis and affidavit and made oral findings of fact:

The Court would find that Deputy Brian Lyall of 
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Watauga County Sheriff’s department was on patrol. And 

to be clear, I’m also relying upon the attached affidavit and 

the synopsis from Deputy Brian Lyall that’s included in the 

stipulation; . . .

. . .

THE COURT: On the 16th day of October 2020, that 

Deputy Lyall was operating his patrol car on 421 South in 

Boone, east side of Boone. That at the intersection of 421 

South and Old 421 South, he observed a Dodge diesel 

pickup truck and observed [Defendant] to be the operator 

of that vehicle. That based upon Deputy Lyall’s previous 

information, he knew that there was an outstanding order 

for arrest with regard to the driver, [Defendant]. 

Accordingly, he followed the vehicle and ended up finding 

the vehicle stopped in the PVA of the Chevrolet dealership 

on the east side of Boone. That upon seeing the vehicle he 

pulled up, activated his blue lights and initiated a formal 

stop of the vehicle.

He approached the vehicle, found [Defendant] to be 

the operator. That through communication with his 

dispatch, and verified that there was an outstanding order 

for arrest for [Defendant]. That he approached the vehicle, 

directed [Defendant] to exit the vehicle, and placed him in 

custody pursuant to the order for arrest. That he placed 

[Defendant] in his patrol vehicle. That he then at the 

request of [Defendant], approached the Dodge Pickup truck 

to retrieve [Defendant’s] cell phone so that he could make 

provision for disposition or care for the truck. That when 

Deputy Lyall returned with the cell phone, he noted that 

[Defendant] was uncomfortable, having been handcuffed 

with his hands behind his back; that he was fidgeting and 

was in an uncomfortable position. That Deputy Lyall then 

allowed [Defendant] to step from the vehicle and unlocked 

his handcuffs from behind [Defendant] and secured the 

handcuffs so [Defendant’s] hands were in front to relieve 

the discomfort. That is shown on the video.
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Deputy Watson pulled onto the scene at this time. 

That at this point, [Defendant] was in custody pursuant to 

the order for arrest. That Officer Watson was a K9 handler 

and had a K9 officer. . . . And that after placing 

[Defendant] back into his patrol car after adjusting his 

handcuffs, Deputy Lyall requested Deputy Watson to run 

his dog around the Dodge Ram. That Deputy Watson did 

that and that the K9 alerted as to the vehicle. And 

subsequent to that, the interior portion of the vehicle was 

searched, resulting in the discovery and seizure of 

contraband that is underlying the charge presently before 

the court.

The trial court then discussed case law argued by Defendant and the State, after 

which the trial court concluded:

That the parties having stipulated to the affidavit and 

attached arrest report, the Court has made the above 

findings of fact. The Court, therefore, would conclude that 

[Defendant] was in custody. It’s separate and apart from 

his arrest, yet contemporaneous with that, Deputy Watson 

walked the trained K9 around the exterior portion of the 

vehicle and the dog alerted.

The Court would conclude that the dog’s alert 

constituted probable cause, and therefore, there was a 

basis separate and apart from the arrest to search the 

interior of the vehicle. That the subsequent search found 

whatever the subsequent evidence shows. Therefore, the 

Court would find and conclude that walking the K9 around 

the vehicle did not delay the ongoing arrest at the scene. 

That there was probable cause to support that walking the 

K9 around did not constitute a search of the vehicle. That 

the subsequent alert created probable cause for a search of 

the interior of the vehicle, and any items seized as a result 

were lawfully, subsequent search was lawful and any items 

seized were lawfully obtained.

The trial court then disposed of other pretrial motions, and the State presented 
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evidence. 

¶ 8 During the State’s presentation of evidence, Defendant objected to Deputy 

Watson’s testimony on the search of his truck generally and to Deputy Watson’s 

testimony regarding the “Crown Royal bag with a container with a leafy green 

substance . . . .” Defendant did not object after either Deputy Watson or Deputy Lyall

testified about the “white crystal substance” found in Defendant’s truck. Defendant 

was ultimately convicted by a jury of possession of methamphetamine; the trial court 

entered a judgment on or about 27 October 2021. Defendant gave notice of appeal in 

open court.

II. Standard of Review

¶ 9 Defendant acknowledges he did not object when the State introduced Deputy 

Watson and Deputy Lyall’s testimony regarding the “white crystal substance” found 

in the truck or the State Crime Lab forensic scientist’s testimony that the substance 

found in Defendant’s truck was identified as methamphetamine. Therefore, the issue 

of whether the trial court erred in denying his motion to suppress is unpreserved and 

ordinarily would be precluded from appellate review. See State v. Grice, 367 N.C. 

753, 764, 767 S.E.2d 312, 320 (2015). But,

[i]n criminal cases, an issue that was not preserved by 

objection noted at trial and that is not deemed preserved 

by rule or law without any such action nevertheless may be 

made the basis of an issue presented on appeal when the 

judicial action questioned is specifically and distinctly 
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contended to amount to plain error.

N.C. R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610, 622, 651 S.E.2d 867, 875 

(2007), cert. denied, 555 U.S. 835, 172 L.Ed.2d 58 (2008). Here, Defendant 

“specifically and distinctly contend[s],” N.C. R. App. P. 10(a)(4), “[t]he trial court 

committed plain error when it denied [Defendant’s] motion to suppress . . . .” 

(Emphasis removed.) 

¶ 10 We therefore review Defendant’s appeal for plain error. 

For error to constitute plain error, a defendant must 

demonstrate that a fundamental error occurred at trial. 

See [State v.] Odom, 307 N.C. [655, ] 660, 300 S.E.2d [375, 

] 378 [1983]. To show that an error was fundamental, a 

defendant must establish prejudice—that, after 

examination of the entire record, the error “had a probable 

impact on the jury’s finding that the defendant was guilty.”

See id. (citations and quotation marks omitted); see 

also Walker, 316 N.C. at 39, 340 S.E.2d at 83 (stating “that 

absent the error the jury probably would have reached a 

different verdict” and concluding that although the 

evidentiary error affected a fundamental right, viewed in 

light of the entire record, the error was not plain error). 

Moreover, because plain error is to be “applied cautiously 

and only in the exceptional case,” Odom, 307 N.C. at 660, 

300 S.E.2d at 378, the error will often be one that “seriously 

affect[s] the fairness, integrity or public reputation of 

judicial proceedings,” Odom, 307 N.C. at 660, 300 S.E.2d at 

378 (quoting McCaskill, 676 F.2d at 1002).

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012). Defendant “bear[s] 

the heavier burden of showing that the error rises to the level of plain error.” Id. at 

516, 723 S.E.2d at 333.
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“In conducting our review for plain error, we must first 

determine whether the trial court did, in fact, err in 

denying Defendant’s motion to suppress.” State v. Powell, 

253 N.C. App. 590, 594–95, 800 S.E.2d 745, 748-49 

(2017) (noting that, in a plain error analysis regarding the 

denial of a motion to suppress, we apply the normal 

standard of review to determine whether error occurred).

“The standard of review in evaluating the denial of 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. 

Jackson, 368 N.C. 75, 78, 772 S.E.2d 847, 849 (2015). 

“Competent evidence is evidence that a reasonable mind 

might accept as adequate to support the finding.” State v. 

Ashworth, 248 N.C. App. 649, 651, 790 S.E.2d 173, 

176, disc. rev. denied, 369 N.C. 190, 793 S.E.2d 694 (2016).

State v. Newborn, 279 N.C. App. 42, 2021-NCCOA-426, ¶¶ 23-24. If the trial court 

erred, we then determine whether that error “had a probable impact on the jury’s 

finding that the defendant was guilty.” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334 

(quoting Odom, 307 N.C. at 660, 300 S.E.2d at 378).

III. Analysis

¶ 11 Defendant presents and argues a single issue on appeal: “Whether law 

enforcement officers need probable cause to use a drug-detection dog to sniff a vehicle 

for narcotics when the dog is unable to distinguish between contraband and 

noncontraband.” Because Defendant did not have a legitimate expectation of privacy 

in the bag where he stored his methamphetamine, which could be detected by the 

drug-sniffing dog used by the police, the trial court did not err by denying Defendant’s 
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motion to suppress. We affirm. 

¶ 12 Defendant did not challenge any of the trial court’s findings of fact.3 Instead, 

his arguments focus on the trial court’s conclusion the officers had probable cause to 

search his truck and whether the dog sniff also constituted a search. The question 

on appeal is therefore whether the trial court erred in determining the use of a drugsniffing dog and subsequent search of Defendant’s truck was lawful. If the trial court 

did err, we must then consider whether this error was so fundamental in that “after 

examination of the entire record, the error ‘had a probable impact on the jury’s finding 

that the defendant was guilty.’” Lawrence, 365 N.C. at 518, 723 S.E.2d at 334

(quoting Odom, 307 N.C. at 660, 300 S.E.2d at 378). Thus, we first focus our analysis 

on whether the deputies were constitutionally permitted to search Defendant’s 

vehicle and whether the deputies lawfully used the drug-sniffing dog.

¶ 13 Defendant argues the trial court erred by denying his motion to suppress 

because the deputies made a warrantless search of his vehicle without probable cause 

 

3 As a preliminary matter, we note the trial court did not reduce its ruling on Defendant’s motion to 

writing, and only made oral findings of fact and conclusions of law at Defendant’s trial. As to a motion 

to suppress, “[t]he judge must set forth in the record his findings of fact and conclusions of law.” N.C. 

Gen. Stat. § 15A-977(f) (2021). “A written determination setting forth the findings and conclusions is 

not necessary, but it is the better practice.” State v. Bartlett, 368 N.C. 309, 312, 776 S.E.2d 672, 674 

(2015) (citing State v. Oates, 366 N.C. 264, 268, 732 S.E.2d 571, 574 (2012)). Here, the trial court 

resolved any issues of fact in its oral findings of fact, and we can address Defendant’s arguments based 

upon the trial court’s oral findings of fact and conclusions of law. “Thus, our cases require findings of 

fact only when there is a material conflict in the evidence and allow the trial court to make these 

findings either orally or in writing.” Id. 
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when Deputy Watson ran his dog around the truck. Defendant does not argue, if the 

dog sniff is not a search, whether the dog sniff could assist in establishing probable 

cause for the subsequent search of his truck by Deputies Lyall and Watson. 

Defendant argues the dog sniff was a search because recent changes in North 

Carolina law–namely passage of the Industrial Hemp Act in 2015 legalizing the 

production, possession, and consumption of hemp–now renders drug-detecting dogs 

unable to differentiate between contraband and noncontraband items. Because the 

dogs signal to THC, which is present in both marijuana and hemp, and because 

Defendant now has a legitimate privacy interest in hemp, Defendant argues the use 

of drug-detecting dogs in this context “runs afoul of the holding in” Illinois v. Caballes, 

543 U.S. 405, 160 L.Ed.2d 842 (2005). Defendant argues the use of the dog is now a 

search, the deputies had no probable cause to search his truck, none of the exceptions 

to the warrant requirement for a search apply, the evidence of the methamphetamine 

should have been suppressed, and the trial court erred in denying his motion to 

suppress. Because Defendant does not challenge any of the trial court’s findings of 

fact, we interpret these arguments to address the trial court’s conclusion “there was 

probable cause to support that walking the K9 around did not constitute a search of 

the vehicle.” 

¶ 14 The State conversely argues “[t]he trial court properly denied Defendant’s 

motion to suppress based on well-settled law in North Carolina[,]” specifically that 
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“[t]he trial court relied on State v. Branch, 177 N.C. App. 104, 627 S.E.2d 506 (2006) 

and Illinois v. Caballes[,] 543 U.S. 405, 125 S.CT. 834, 160 L. Ed. 842 (2005).” The 

State argues these cases determine Defendant could not have had a privacy interest 

in any contraband he possessed, and since the dog sniff revealed the location of a 

substance Defendant had no right to possess, Caballes and Branch establish that the 

dog sniff did not violate the Fourth Amendment. Defendant’s arguments require us 

to begin with the basics of the constitutional protections afforded criminal defendants 

from unreasonable searches and seizures.

A. Search and Seizure

¶ 15 “The Fourth Amendment to the United States Constitution protects ‘[t]he right 

of the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures[.]’” State v. Teague, 2022-NCCOA-600, ¶ 26 

(quoting U.S. Const. amend. IV). “‘The North Carolina Constitution affords similar 

protection.’” Id. (quoting State v. Cabbagestalk, 266 N.C. App. 106, 111, 830 S.E.2d 

5, 9 (2019)) (citing N.C. Const. art. 1, § 20). Defendant contends (1) following the 

legalization of industrial hemp in North Carolina a dog sniff is a search, and (2) this 

particular dog sniff was an “unreasonable” search from which he was protected by 

the federal and State Constitutions. 

1. What is a Fourth Amendment “Search”

¶ 16 This Court has previously addressed what constitutes a Fourth Amendment 
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“search” and the implications of using drug-sniffing dogs to seek contraband in State 

v. Washburn:

The first clause of the Fourth Amendment protects the 

“right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and 

seizures.” U.S. Const. amend. IV. “[T]he touchstone of the 

Fourth Amendment analysis has been whether a person 

has a constitutionally protected reasonable expectation of 

privacy.” State v. Phillips, 132 N.C.App. 765, 770, 513 

S.E.2d 568, 572 (internal quotation marks omitted), disc. 

review denied and appeal dismissed, 350 N.C. 846, 539 

S.E.2d 3 (1999). Such an unreasonable search “occurs when 

an expectation of privacy that society is prepared to 

consider reasonable is infringed.” United States v. 

Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85, 

94 (1984).

Official conduct that does not compromise any legitimate 

interest in privacy is not a search subject to the Fourth 

Amendment. Id. at 123, 104 S.Ct. 1652, 80 L.Ed.2d at 

101. Any interest in possessing contraband cannot be 

deemed legitimate, and thus, governmental conduct that 

only reveals the possession of contraband does not 

compromise any legitimate privacy interest. Id. at 121–23, 

104 S.Ct. 1652, 80 L.Ed.2d at 99–101.

The United States Supreme Court discussed the Fourth 

Amendment implications of a canine sniff in United States 

v. Place. 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 

(1983). There, the Court treated the sniff of a well-trained 

narcotics dog as sui generis because the sniff “disclose[d] 

only the presence or absence of narcotics, a contraband 

item.” Id. at 707, 103 S.Ct. 2637, 77 L.Ed.2d at 121. As the 

United States Supreme Court explained in Illinois v. 

Caballes, since there is no legitimate interest in possessing 

contraband, a police officer’s use of a well-trained narcotics 

dog that reveals only the possession of narcotics does not 
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compromise any legitimate privacy interest and does not 

violate the Fourth Amendment. 543 U.S. 405, 408–09, 125 

S.Ct. 834, 160 L.Ed.2d 842, 847 (2005).

State v. Washburn, 201 N.C. App. 93, 96-97, 685 S.E.2d 555, 558 (2009). Because a 

dog sniff was not a search, at least prior to the legalization of industrial hemp in 

North Carolina, “probable cause was not a prerequisite for” the use of a dog to detect 

contraband. See id. at 99, 685 S.E.2d at 560; see also Branch, 177 N.C. App. at 108, 

627 S.E.2d at 509 (“[O]nce the lawfulness of a person’s detention is established, 

Caballes instructs us that officers need no additional assessment under the Fourth 

Amendment before walking a drug-sniffing dog around the exterior of that 

individual’s vehicle.”). As a result, the police were generally free to use drug-sniffing 

dogs during traffic stops to detect contraband without implicating the Fourth 

Amendment. Compare Rodriguez v. U.S., 575 U.S. 348, 350, 191 L. Ed. 2d 492, 496 

(2015) (expanding upon Caballes and holding “a police stop exceeding the time needed 

to handle the matter for which the stop was made violates the Constitution’s shield 

against unreasonable seizures. A seizure justified only by a police-observed traffic 

violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably 

required to complete th[e] mission’ of issuing a ticket for the violation.”).

¶ 17 Defendant contends the United States Supreme Court and North Carolina 

appellate court cases “must now be re-examined due to industrial hemp’s 

legalization.” Defendant notes that previously “the United States Supreme Court 
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and this Court held using a drug-detection dog to walk around a vehicle’s exterior to 

sniff for narcotics is not a search. City of Indianapolis v. Edmond, 531 U.S. 32, 40, 

121 S. Ct. 447, 453; State v. Fisher, 141 N.C. App. 448, 457, 539 S.E.2d 677, 684.” But 

given the legalization of hemp, Defendant argues that, because a drug-sniffing dog 

may now alert to noncontraband, the underlying rationale in Caballes now requires 

probable cause to use a drug-sniffing dog because the dog can alert to noncontraband. 

¶ 18 As discussed above, the Supreme Court of the United States explained the 

Fourth Amendment implications of dog sniffs in Caballes. See Caballes, 543 U.S. 405, 

160 L.Ed.2d 842. In Caballes, the defendant was stopped for speeding on the 

highway. Id. at 406, 160 L.Ed.2d at 845. A K-9 unit overheard the responding officer 

call dispatch to report the stop and also responded to the scene. Id. at 406, 160 

L.Ed.2d at 845-46. When the K-9 unit arrived, the K-9 officer walked the dog around 

the defendant’s vehicle while the responding officer wrote the defendant a citation. 

Id. The dog alerted; based on the alert the officers searched the trunk of the 

defendant’s vehicle; the officers found marijuana; and then the officers arrested the 

defendant. Id. 

¶ 19 The United States Supreme Court held 

[o]fficial conduct that does not “compromise any legitimate 

interest in privacy” is not a search subject to the Fourth 

Amendment. Jacobsen, 466 US, at 123, 80 L Ed 2d 85, 104 

S Ct 1652. We have held that any interest in possessing 

contraband cannot be deemed “legitimate,” and thus, 
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governmental conduct that only reveals the possession of 

contraband “compromises no legitimate privacy interest.” 

Ibid. This is because the expectation “that certain facts 

will not come to the attention of the authorities” is not the 

same as an interest in “privacy that society is prepared to 

consider reasonable.” Id., at 122, 80 L Ed 2d 85, 104 S Ct 

1652 (punctuation omitted). In United States v. Place, 462 

US 696, 77 L Ed 2d 110, 103 S Ct 2637 (1983), we treated 

a canine sniff by a well-trained narcotics-detection dog as

“sui generis” because “it discloses only the presence or 

absence of narcotics, a contraband item.” Id., at 707, 77 L 

Ed 2d 110, 103 S Ct 2637; see also Indianapolis v. Edmond, 

531 US 32, 40, 148 L Ed 2d 333, 121 S Ct 447 (2000). 

Id. at 408-09, 160 L.Ed.2d at 847 (emphasis added). The Supreme Court further held 

“the use of a well-trained narcotics-detecting dog–one that ‘does not expose 

noncontraband items that otherwise would remain hidden from public view,’ Place, 

462 US, at 707, 77 L Ed 2d 110, 103 S Ct 2637–during a lawful traffic stop, generally 

does not implicate legitimate privacy interests.” Id. at 409, 160 L.Ed.2d at 847. The 

Supreme Court noted this holding was consistent with recent precedent addressing 

searches that could detect both lawful and unlawful activity: 

The legitimate expectation that information about 

perfectly lawful activity will remain private is categorically 

distinguishable from respondent’s hopes or expectations 

concerning the nondetection of contraband in the trunk of 

his car. A dog sniff conducted during a concededly lawful 

traffic stop that reveals no information other than the 

location of a substance that no individual has any right to 

possess does not violate the Fourth Amendment.

Id. at 409-10, 160 L.Ed.2d at 847-48 (emphasis added).
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¶ 20 Here, Defendant did not have a “legitimate privacy interest” in his 

methamphetamine. The drug-sniffing dog was trained and certified to alert on 

methamphetamine, and Defendant did not create a “legitimate privacy interest” as 

to the methamphetamine simply by storing it in the same bag with the hemp. See id.

at 408, 160 L.Ed.2d at 847 (“We have held that any interest in possessing contraband 

cannot be deemed ‘legitimate[.]’”). Deputy Watson confirmed during the State’s 

presentation of evidence that the “dog is certified in cocaine, heroin, 

meth[amphetamine], and marijuana.” The dog was annually re-certified to detect 

these substances. The dog was trained to alert to the methamphetamine even in the 

absence of hemp. Thus, Defendant’s argument that Caballes “must be re-examined 

due to industrial hemp’s legalization” is simply not presented by the facts of this case, 

where the methamphetamine and hemp were in the same bag, and the canine was 

trained to detect both substances. 

¶ 21 The legalization of hemp has no bearing on the continued illegality of 

methamphetamine, and the Fourth Amendment does not protect against the 

discovery of contraband, detectable by the drug-sniffing dog, because Defendant 

decided to package noncontraband beside it. Additionally, we have repeatedly 

applied precedent established before the legalization of hemp, even while 

acknowledging the difficulties in distinguishing hemp and marijuana in situ. See 

Teague, ¶ 58 (finding decisions of the federal courts of North Carolina persuasive and 
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deciding “[t]he passage of the Industrial Hemp Act, in and of itself, did not modify the 

State’s burden of proof at the various stages of our criminal proceedings”); State v. 

Highsmith, 2022-NCCOA-560, ¶¶ 16-20 (determining the difficulties in 

distinguishing hemp and marijuana did not alter the traditional probable cause 

analysis, and the scent of marijuana or hemp in addition to other facts may grant an 

officer probable cause to search for or seize suspected contraband); State v. Parker, 

277 N.C. App. 531, 2021-NCCOA-217, ¶¶ 13, 31 (noting the defendant argued the 

trial court erred in denying his motion to suppress by “failing to address the material 

issue of the indistinguishable scents of marijuana and legal hemp[,]” this Court held 

“we need not determine whether the scent or visual identification of marijuana alone 

remains sufficient to grant an officer probable cause to search a vehicle” because the 

police had additional facts available to them, other than the scent of marijuana or 

hemp, sufficient to grant the police probable cause).

¶ 22 We need not re-examine the application of the Supreme Court’s holding in 

Caballes to a canine sniff based on the facts of this case. Defendant had no legitimate 

expectation of privacy in his contraband simply because it was stored together with 

non-contraband in his vehicle, the dog-sniff could detect the methamphetamine 

regardless of the presence of hemp, and the dog-sniff of Defendant’s truck did not 

constitute a search.
STATE V. WALTERS

2022-NCCOA-796

Opinion of the Court

B. Probable Cause

¶ 23 Next, we address the trial court’s conclusion that the dog’s “alert created 

probable cause for a search of the interior of [Defendant’s] vehicle.” We have, so far, 

only determined that the use of the drug-sniffing dog did not constitute a search 

prohibited by the Fourth Amendment. We must still determine whether the police 

had probable cause for the subsequent search of Defendant’s vehicle.

¶ 24 This Court recently published an opinion in Highsmith where the defendant 

made a similar argument. See Highsmith, ¶ 10. In Highsmith, the police received 

multiple complaints of a house being used to sell narcotics. Id. ¶ 4. Two officers 

followed a vehicle after it left the residence, then pulled the vehicle over after noticing 

it “had a broken brake light” and it “illegally cross[ed] a yellow line.” Id. The 

defendant “was sitting in the vehicle’s front passenger seat.” Id. ¶ 5. The police 

recognized the defendant from “past encounters and arrests,” noticed ammunition in 

a rear passenger seat, and the defendant and the driver of the vehicle “gave 

inconsistent stories about where they were headed and from where they were 

coming.” Id. ¶¶ 5-6. The police called a K-9 unit, and after the K-9 unit arrived the 

dog “sniffed the exterior of the vehicle and alerted to the possible presence of drugs.” 

Id. ¶ 7. The defendant was removed from the vehicle; the police searched the vehicle;

and the officers found evidence of marijuana and paraphernalia for the sale of 

marijuana. Id. ¶ 7. The defendant was indicted and filed a motion to suppress. Id.
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2022-NCCOA-796

Opinion of the Court

¶¶ 9-10. The defendant and the State in Highsmith made similar arguments to 

Defendant and the State in this case:

Defendant filed a motion to suppress, challenging the 

lawfulness of the search and subsequent seizure of the 

marijuana. Defendant premised his argument on the 

emerging industry of legal hemp, indistinguishable by 

either sight or smell from marijuana. Defendant argued at 

the hearing that a K-9 alert standing alone cannot support 

probable cause when legalized hemp is widely available. 

Because marijuana and hemp are indistinguishable, 

Defendant argued, an unlawful seizure would first be 

needed in order to perform testing to confirm the substance 

was marijuana. The K-9 alert therefore could not support 

the warrantless search, and the ensuing evidence 

recovered should be suppressed, as the result of both an 

illegal search and an illegal seizure following the search.

The State argued the existence of legal hemp does not 

change the analysis that a K-9 alert can support probable 

cause. The prosecutor explained that because the K-9 alert 

was not the only factor giving rise to the officers’ probable 

cause to believe Defendant was engaged in criminal 

activity, this is “a K-9 sniff plus” case. (Emphasis added). 

Other factors cited by the prosecutor were the inconsistent 

statements made to officers by Defendant and the driver of 

the vehicle, the fact that neither the driver nor Defendant 

was the registered owner of the vehicle, and the officers’ 

knowledge of Defendant's prior arrests related to 

marijuana.

The trial court denied Defendant’s motion to suppress by 

order entered 8 February 2021. The trial court concluded 

that “K-9 Mindy’s positive alert for narcotics at the SUV, 

along with other factors in evidence, provided the officers 

on the scene with sufficient facts to find probable cause to 

conduct a warrantless search of the inside of the vehicle.”

Id. ¶¶ 10-12 (emphasis added).
STATE V. WALTERS

2022-NCCOA-796

Opinion of the Court

¶ 25 On appeal, the defendant in Highsmith narrowed his argument compared to 

the Defendant in the present case. The defendant did “not argue on appeal that the 

search of the vehicle was unconstitutional. Instead, he argue[d] the trial court failed

to make adequate findings of fact and conclusions of law regarding the seizure of the 

marijuana found during the search, given the difficulty of distinguishing legal hemp 

from illegal marijuana.” Id. ¶ 16 (emphasis in original). This Court engaged in the 

traditional totality of the circumstances test to determine whether the police had 

probable cause to conduct a warrantless search and seizure of the marijuana:

The Fourth Amendment to the United States Constitution 

and Article I, Section 20 of the North Carolina 

Constitution prohibit unreasonable searches and seizures 

and apply to “brief investigatory detentions such as those 

involved in the stopping of a vehicle.” State v. Downing, 169 

N.C. App. 790, 794, 613 S.E.2d 35, 38 (2005) (citation and 

quotation marks omitted). However, “[i]t is a wellestablished rule that a search warrant is not required 

before a lawful search based on probable cause of a motor 

vehicle in a public roadway . . . may take place.” Id. at 795-

96, 613 S.E.2d at 39. This probable cause standard is met 

where the totality of “the facts and circumstances within 

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.” State v. Zuniga, 

312 N.C. 251, 261, 322 S.E.2d 140, 146 (1984) (brackets 

and quotation marks omitted)[.]

. . . .

The trial court found that the officer’s search revealed not 

only marijuana, but also additional items including a 
STATE V. WALTERS

2022-NCCOA-796

Opinion of the Court

digital scale, over one thousand dollars in folds of money, 

ammunition, and a flip cellphone. Under the totality of the 

circumstances: a vacuum-sealed bag of what appeared to 

be marijuana, hidden under the seat and found with these 

items, without any evidence that Defendant claimed to the 

officers the substance was legal hemp, the officers’ 

suspicions were bolstered, amounting to probable cause to 

believe the substance at issue was in fact illicit marijuana 

and not hemp. The trial court therefore did not err in 

concluding that Defendant’s Fourth Amendment rights 

were not violated.

Id. ¶¶ 17, 20. This Court then concluded “the trial court did not err in denying 

Defendant’s motion to suppress . . . .” Id. ¶ 25. However, Highsmith does not answer 

the question on appeal; the defendant in Highsmith specifically did not challenge the 

legality of the search of his vehicle. See id. ¶ 16. But Highsmith does instruct us 

that, although the law regarding marijuana and hemp has recently changed, we still 

follow a traditional probable cause analysis in determining whether a defendant’s 

Fourth Amendment rights have been violated by a warrantless search or seizure. See 

U.S. Const. amend. IV, § 1; see also N.C. Const. art. I, § 20. 

¶ 26 “Typically, a warrant is required to conduct a search unless a specific exception 

applies.” Parker, ¶ 25 (citation omitted). Here, the only applicable warrant exception 

is the motor vehicle exception. See id. The State conceded during the suppression 

hearing that “the search of the vehicle was not a search incident to arrest, per se.” 

The trial court later concluded “there was a basis separate and apart from the arrest 

to search the interior of the vehicle.” 
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2022-NCCOA-796

Opinion of the Court

In the context of the motor vehicle exception,

[a] police officer in the exercise of his duties 

may search an automobile without a search 

warrant when the existing facts and 

circumstances are sufficient to support a 

reasonable belief that the automobile carries 

contraband materials. 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.

Id. ¶ 25 (quoting State v. Degraphenreed, 261 N.C. App. 235, 241, 820 S.E.2d 331, 336 

(2018)). 

¶ 27 Here, the “facts and circumstances” available to Deputies Lyall and Watson 

established probable cause to search Defendant’s truck, including the bag in which 

the methamphetamine and hemp were found, and the trial court did not err by so 

concluding. As established above, the use of Deputy Watson’s K-9 did not constitute 

a Fourth Amendment search. But the canine’s alert was a factor contributing to a 

probable cause determination that supports Deputies Lyall and Watson’s decision to 

search Defendant’s truck. In addition to the positive indication by the dog, Deputy 

Lyall was aware of (1) Defendant’s outstanding warrants for possession of 

methamphetamine, and (2) that Deputy Norris had previously seized 

methamphetamine from Defendant. Defendant’s outstanding warrants, the fact that 

Deputy Norris had already seized methamphetamine from Defendant, and the 
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2022-NCCOA-796

Opinion of the Court

positive drug-sniffing dog alert by a dog certified to detect methamphetamine is a 

sufficient basis for probable cause for Deputies Lyall and Watson to search 

Defendant’s truck. The trial court did not err by concluding the deputies had probable 

cause to search the truck.

IV. Conclusion

¶ 28 Because the State’s use of a drug-sniffing dog did not constitute a Fourth 

Amendment “search” and because Deputies Lyall and Watson had probable cause to 

search Defendant’s truck, the trial court committed no plain error in denying 

Defendant’s motion to dismiss. We affirm the decision of the trial court.

AFFIRMED AND NO ERROR.

Judges HAMPSON and JACKSON concur.