State v. Brooks

• Citation: 432 S.E.2d 900,111 N.C.App. 558
• Decision Date: 17 August 1993
• Docket Number: No. 924SC342,924SC342
• Court: Court of Appeal of North Carolina (US)
• Parties: STATE of North Carolina v. Robert Earl BROOKS.

Page 900

432 S.E.2d 900

111 N.C.App. 558

STATE of North Carolina v. Robert Earl BROOKS.

No. 924SC342.

Court of Appeals of North Carolina.

Aug. 17, 1993.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. James Peeler Smith, Raleigh, for the State.

Nora Henry Hargrove, Wilmington, for defendant-appellant.

WYNN, Judge.

Defendant was initially indicted by a Federal Grand Jury on 11 December 1990 for Possession With Intent to Distribute Crack Cocaine in violation of 21 U.S.C. Sections 841(a)(1) and (b)(1)(B) and Possession of a Firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. Section 924(c). Defendant made a Motion to Suppress Evidence. Following a hearing on the matter, the Honorable James C. Fox, United States District Court Judge for the Eastern District of North Carolina granted defendant's motion, finding that the defendant was unlawfully arrested and detained and that both he and his vehicle were searched without probable cause and thus, the "fruits" of the search as well as any incriminating statements that defendant allegedly made should be suppressed. The charges against the defendant in United States District Court were subsequently dismissed voluntarily by the United State's Attorney's office.

On 1 April 1991, defendant was indicted by the Grand Jury of Duplin County for possession of cocaine with the intent to manufacture, sell and deliver, trafficking in cocaine by possession, carrying a concealed weapon, and maintaining a vehicle for sale of controlled substances. Defendant again moved to suppress the physical evidence and his statements to the police. The State and the defendant offered evidence at the suppression hearing. From that evidence the trial court made the following pertinent findings of fact in its Order:

1. That on July 27, 1991, SBI Agent Bruce Kennedy accompanied members of the Duplin County Sheriff's Department to a place called Hezekiah Carter's Nightclub, located outside of the city limits of Magnolia, Duplin County to execute a search warrant for the purposes of locating illegal controlled substances.

2. That Special Agent Kennedy wore a marked "raid" jacket with a badge on the front, and "POLICE" written in big letters across the back. Moreover, Special Agent Kennedy was wearing a baseball cap with the letters SBI across the top of the cap. That three law enforcement vehicles arrived at the same time and that one or more of the vehicles were marked police cars.

3. That upon arriving at the location to be searched, S/A Kennedy observed a green Volkswagon car backed in the parking lot with a man in it sitting on the driver's seat. Also S/A Kennedy saw another black male standing in front of the car. The time was approximately 9:40 p.m.

4. S/A Kennedy exited the vehicle he was riding and walked down across the ditch and over to the driver's side of the vehicle, in question, where the defendant was sitting on the driver's seat. The other black male that had been standing next to the vehicle walked away before S/A Kennedy was able to arrive at the car.

5. S/A Kennedy shined his flashlight on the defendant in the car. S/A Kennedy observed on the passenger side of the bucket seats of the Volkswagon an empty unsnapped holster within reach of the defendant who was sitting in the driver's seat.

6. S/A Kennedy asked the defendant, "where is your gun?" The defendant replied, "I'm sitting on it." S/A Kennedy was still unable to see the gun although he shined has light all about the vehicle.

7. S/A Kennedy then requested the defendant to "ease it out real slow." The defendant reached under his right thigh and handed the officer his gun by the grips. S/A Kennedy took the gun from the defendant and put it on top of the defendant's car and then received the holster from the defendant. The Defendant told S/A Kennedy, "be careful, it's got a round in the chamber; it's loaded and there is a round in the chamber." At the very moment S/A Kennedy asked the defendant to hand out his gun, S/A Kennedy put his hand on his gun, but just for a second. After retrieving the gun from the defendant, S/A Kennedy did not stand holding his gun or towering over him. The gun was a .32 calibre semi-automatic gun made by Davidson.

8. The defendant then volunteered that he had got the permit for said gun from the Sheriff of Lenior County, Billy Smith.

9. The defendant then asked S/A Kennedy if he needed to see some identification. S/A Kennedy replied, "yes sir", at which time, the defendant handed his North Carolina Driver's License to S/A Kennedy along with the registration for the said Volkswagon. The defendant was permitted to exit his vehicle on several occasions including getting outside the vehicle and assisting Officer Jones to open the hood of said vehicle.

10. That S/A Kennedy did not place the defendant under arrest for carrying a concealed weapon; instead he asked the defendant, "Robert Earl, do you have any dope in this car?" The defendant replied, "no, do you want to look?" The defendant further stated that the officer could look if he wanted to.

11. The defendant then proceeded to search his own car. The defendant showed S/A Kennedy where there was a compartment in the back seat of the vehicle where the defendant had built some speakers in the car and he showed the officer how the front part would lay down. There was nothing found in said compartment.

The trial judge further found that defendant removed the board and laid it on top of two nylon bags which were in the back floor board behind the driver's seat. Agent Kennedy asked if he could see the bags and defendant placed them on the ground beside the car. When Agent Kennedy could not find the zipper on the first bag, defendant opened it for him. The first bag contained digital scales of the type frequently used for measuring narcotics. Defendant stated that he used the scales to measure his medicine. The second bag contained two small bags filled with white powder and a number of small plastic bags with ziplocks.

Agent Kennedy asked, "Robert Earl, is this your dope?" Defendant replied, "yes." Agent Kennedy also asked, "how much you reckon you have got here" and defendant replied, "about an ounce." At that point, Agent Kennedy advised defendant that he was under arrest for possession of drugs. Defendant was not handcuffed during the search and Agent Kennedy did not have his gun drawn. Defendant was charged with drug possession and taken to the Sheriff's Department where he went through formal processing. At the time of the arrest, defendant had $3,300 in cash on his person. The S.B.I. laboratory later determined the white powder to be 70 grams of cocaine.

According to defendant's testimony, he was not sitting on the firearm, rather it was in plain view. Further, he did not consent to the search of the car nor admit that the drugs found were his. Defendant testified that he did not know the drugs were in his car and he did not know who owned them. The trial judge found as fact however that "in so far as there are conflicts in the testimony of S/A Kennedy and the defendant, the Court resolves the issues of credibility in favor of S/A Kennedy."

Defendant's motion to suppress was denied as to the evidence seized from defendant's person and automobile and all statements prior to the seizure of the scales and drugs. The motion was granted as to the incriminating statements made by defendant subsequent to the discovery and seizure of the scales and drugs. Defendant was subsequently charged with perjury for allegedly false testimony given during the voir dire hearing on his motion to suppress. Defendant, reserving his right to appeal denial of his motions, tendered pleas of no contest to the charges of possession, trafficking, carrying a concealed weapon and perjury. The felonies were consolidated for judgment and defendant was sentenced to seven years imprisonment. From the trial court's denial of his motion to suppress, defendant appeals.

I.

By defendant-appellant's first assignment of error he contends that the trial court erred in denying his motion to suppress the physical evidence seized from the warrantless search of his vehicle and his inculpatory statements, because 1) the officer did not have a reasonable suspicion to approach defendant's car; 2) the officer did not give the proper Miranda warnings prior to questioning; and 3) Agent Kennedy did not have probable cause to search the vehicle.

The scope of appellate review for the denial of a motion to suppress is 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 whether those findings of fact in turn support the conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). The conclusions of law are, however, reviewable. State v. Simpson, 320 N.C. 313, 325, 357 S.E.2d 332, 339 (1987), cert. denied, 485 U.S. 963, 108 S.Ct. 1230, 99 L.Ed.2d 430 (1988).

Based upon his findings of fact, the judge concluded as a matter of law:

1. That S/A Kennedy had a reasonable suspicion of criminal activity that justified his action in order to confirm or to dispel his suspicion when he exited his patrol car and walked over to the defendant's vehicle to investigate. That S/A Kennedy was authorized to shine his flashlight into the defendant's vehicle for his own protection and to conduct an initial inquiry.

2. That defendant was not under arrest or in custody when S/A Kennedy asked the defendant where the gun was.

Having thoroughly reviewed the evidence introduced at the voir dire hearing and the trial court's findings and conclusions, we conclude that the trial court's findings are supported by competent evidence. Defendant argues, and we agree however, that the trial court's findings of fact were insufficient to support the trial court's conclusion that Agent Kennedy had a "reasonable suspicion of criminal activity that justified his action...