Defendant Tayshon D. Davis appeals from a final judgment entered upon his guilty plea. Defendant argues certain evidence was inadmissible, and the trial court erred in denying his motions to suppress evidence. We conclude that Defendant has waived his first argument on appeal and affirm the trial courts denial of Defendants motions to suppress evidence.
I. Background
On 28 February 2022, Winston-Salem Police Sergeant Keltner was patrolling Silas Creek Parkway. He has over twenty years of law enforcement experience, including highway interdiction and narcotics training. Sergeant Keltner was traveling at the posted speed limit of forty-five miles per hour when Defendants vehicle passed him in the left lane. In response, Sergeant Keltner paced Defendants vehicle at fifty-five miles per hour and initiated a traffic stop.
Defendant pulled onto an off-ramp and parked his vehicle on the white fog line, leaving his left two tires to the left of the line. As Defendant was pulling over, Sergeant Keltner saw him moving around inside the vehicle and leaning over to the passenger side—tending to indicate Defendant might be grabbing a weapon or hiding contraband. Sergeant Keltner approached the vehicle on the right side and began speaking with Defendant. He observed Defendants hands “shaking uncontrollably,” that Defendant was “very tense,” and noted inconsistencies with Defendants statements regarding his point of origin and destination. After Sergeant Keltners line of questioning, Defendant handed him his North Carolina identification card.
Sergeant Keltner returned to his patrol vehicle to run the standard traffic stop checks. The checks revealed that Defendants drivers license was suspended, Defendant had prior arrests for possession of a firearm by a convicted felon, at least two prior drug offenses, and was a “validated gang member.” In response, Sergeant Keltner requested the dispatch of a canine unit and began writing a citation for Defendants revoked license. Sergeant Keltner took about eight minutes to commence the traffic stop checks and write the citation.
Officer Conrad, the canine unit, arrived around the time Sergeant Keltner finished writing the citation, and upon arrival, the canine began performing a sniff of the exterior of Defendants vehicle. During the canine sniff, Sergeant Keltner asked Defendant to step out of the vehicle. Defendant initially refused but ultimately agreed to exit his vehicle—not before rolling up the windows and locking the doors upon his exit. After Defendants exit from the vehicle, Officer Conrads trained drug detection canine alerted them to the presence of narcotics. In response to the canines alert, Sergeant Keltner attempted to retrieve the vehicles keys from Defendants person, but he resisted. Defendant was subsequently handcuffed, and Sergeant Keltner retrieved the keys and gave them to Officer Conrad.
Officer Conrads interior search of the vehicle revealed an odor of burnt marijuana, a Glock pistol, and a cellophane bag containing “a green, leafy substance” hidden within the vehicles center console. Officer Conrad recognized the cellophane bag as one commonly used to transport illegal drugs and recognized the bags contents as marijuana. Defendant was arrested and charged with possession of a firearm by a felon, possession of up to one-half ounce of marijuana, possession of a stolen firearm, carrying a concealed gun, and resisting a public officer.
On 2 May 2022, Defendant was indicted for the aforementioned charges and for attaining habitual felon status. Defendant filed two pretrial motions to suppress, asserting both Sergeant Keltner and Officer Conrad lacked probable cause to search his vehicle. The trial court orally denied both motions on 14 February 2023 and entered the written denial order three days later. On 15 February 2023, Defendant pleaded guilty to all offenses, admitted to attaining habitual felon status, and entered notice of appeal. In his transcript of plea, Defendant reserved his ability to appeal to the denial of his suppression motions.
II. Jurisdiction
This Court has jurisdiction to review this matter pursuant to N.C. Gen. Stat. § 15A-979(b) (2023).
III. Analysis
Defendant presents two questions for consideration on appeal: (1) whether the use of a drug-detection canine constitutes a search, and whether there was probable cause to support such search of Defendants vehicle; and, alternatively, (2) whether the drug-detection canines positive alert provided the requisite probable cause to search Defendants vehicle.
A. Standard of Review
“The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial courts 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). “Competent evidence is evidence that a reasonable mind might accept as adequate to support the finding.” State v. Chukwu, 230 N.C. App. 553, 561, 749 S.E.2d 910, 916 (2013) (citation and quotation marks omitted). When a trial courts findings of fact are unchallenged on appeal, they are deemed supported by competent evidence and binding. Biber, 365 N.C. at 168, 712 S.E.2d at 878. Conclusions of law are reviewed de novo. Id. at 171, 712 S.E.2d at 880.
B. Drug-Detection Canine
Upon review of the evidentiary record, Defendant has waived his first argument on appeal that the use of the drug-detection canine constituted a search and that the officers here did not possess probable cause to conduct this type of search. “[A] criminal defendant is not entitled to advance a particular theory in the course of challenging the denial of a suppression motion on appeal when the same theory was not advanced in the court below.” State v. Hernandez, 227 N.C. App. 601, 608, 742 S.E.2d 825, 829 (2013).
Within his motions to suppress, Defendant argues the legalization of hemp now prevents the establishment of probable cause through positive alerts from drug-detection canines. The argument he presents on appeal, however, is that using the drug-detection canine was a search requiring probable cause or a warrant before the canine could be used. These are separate and distinct arguments, and the law does not allow Defendant to “swap horses between courts” to “get a better mount [on appeal].” See State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (citations omitted). We, therefore, are without reason to disturb the lower courts denial of Defendants motion to suppress on this ground.
C. Search of Defendants vehicle.
In his alternative argument, Defendant contends the trial court erred in denying his motions to suppress by arguing probable cause had not been established to search the inside of his vehicle.
“The Fourth Amendment of the United States Constitution and Article 1, Section 20 of the North Carolina Constitution prohibit unreasonable searches and seizures.” State v. Downing, 169 N.C. App. 790, 794, 613 S.E.2d 35, 38 (2005). Evidence “obtained by unreasonable searches and seizures” is inadmissible. State v. McLamb, 186 N.C. App. 124, 125–26, 649 S.E.2d 902, 903 (2007). “Typically, a warrant is required to conduct a search unless a specific exception applies.” State v. Parker, 277 N.C. App. 531, 539, 860 S.E.2d 21, 28 (2021) (citing State v. Cline, 205 N.C. App. 676, 679, 696 S.E.2d 883, 886 (2010)). One such exception generally applies to motor vehicles and provides:
[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.
State v. Degraphenreed, 261 N.C. App. 235, 241, 820 S.E.2d 331, 336 (2018) (internal marks and citations omitted). Probable cause is established by applying a “ ‘totality of the circumstances’ test.” See State v. Benters, 367 N.C. 660, 664, 766 S.E.2d 593, 597 (2014) (citing Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328 (1983)). “Probable cause requires not certainty, but only a probability or substantial chance of criminal activity.” State v. McKinney, 368 N.C. 161, 165, 775 S.E.2d 821, 825 (2015) (internal quotation marks and citations omitted).
Here, considering the totality of the circumstances, the trial court properly found multiple factors sufficient to establish probable cause to search Defendants vehicle. As this Court held in State v. Walters, a positive alert from a drug-detection dog serves as a factor in establishing probable cause to conduct a warrantless vehicle search. 286 N.C. App. 746, 763, 881 S.E.2d 730, 741 (2022). Along with the positive alert from the drug-detection canine, Defendant appeared nervous upon being stopped and provided inconsistent statements as to his destination—all factors supporting the establishment of probable cause. See, e.g., State v. Watkins, 220 N.C. App. 384, 391, 725 S.E.2d 400, 405 (2012) (holding a defendants nervous behavior while driving and exiting a vehicle was a factor in supporting the establishment of probable cause). Moreover, Sergeant Keltner obtained information about Defendants prior criminal conduct and history of gang affiliation while running his routine checks. See, e.g., State v. Teague, 259 N.C. App. 904, 911, 817 S.E.2d 239, 244 (2018) (“[a] defendants past criminal conduct and reputation for criminal conduct is relevant to whether probable cause exists.”).
Under the totality of the circumstances, we agree with the trial courts determination that probable cause existed to search Defendants vehicle. The positive alert from the drug-detection canine, along with Defendants nervous demeanor, prior criminal conduct and gang affiliation, and inconsistent statements as to his traveling destination, all taken together support a finding of probable cause.
IV. Conclusion
We conclude Defendant waived the first issue presented to our Court as his argument does not align with those advanced to the trial court in his motions to suppress. As for Defendants second argument, upon review of the record, we conclude that the trial courts finding of probable cause to search his vehicle was proper. The trial courts order denying Defendants motions to suppress is affirmed.
AFFIRMED.
Report per Rule 30(e).
PER CURIAM