State Carolina v. Ford

• Decision Date: 21 December 2010
• Docket Number: No. COA10–470.,COA10–470.
• Citation: 703 S.E.2d 768
• Parties: STATE of North Carolinav.James Donovan FORD, Defendant.
• Court: North Carolina Court of Appeals

703 S.E.2d 768

STATE of North Carolina

v.James Donovan FORD, Defendant.

No. COA10–470.

Court of Appeals of North Carolina.

Dec. 21, 2010.

OPINION TEXT STARTS HERE

Appeal by defendant from judgment entered 25 January 2010 by Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 November 2010.

Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.

Mercedes O. Chut, Greensboro, for defendant-appellant.

HUNTER, ROBERT C., Judge.

Defendant James Donovan Ford appeals from the denial of his motion to suppress evidence seized during a traffic stop. Defendant contends that the police officers that stopped him lacked reasonable suspicion to conduct the stop, and thus the evidence seized was the product of an unconstitutional search and should have been suppressed. We conclude, based on the totality of the circumstances, that the officers had reasonable suspicion to believe that defendant committed a traffic violation supporting the traffic stop. The trial court, therefore, properly denied defendant's motion to suppress.

Facts

Officers Lance Fusco and Shane Strayer, with the Charlotte–Mecklenburg Police Department, were patrolling the Eastway area of Charlotte in a marked patrol car during the evening of 15 October 2008. Around 10:00 p.m. that night, the officers saw a gray Chrysler 300 sedan driving in the neighborhood, but did not notice anything unusual about the car. Later that evening, the officers saw the same car “circling around” in the neighborhood and “made a mental note of it.” At approximately 1:45 a.m. on 16 October 2008, they saw the car for the third time, going down Belmont Ave. toward Davidson St. The officers got within 50 feet behind the car to “run the tag[ ]” to identify the registered owner, but the car's license plate did not “appear to be lit” and they “had to get really close to read the tag.” Officer Fusco, who was driving the patrol car, turned off the car's headlights to “verify that [they] couldn't read the tag.” After determining that they “couldn't read the tag ... at fifty feet,” Officer Fusco turned on his blue lights and siren and stopped the gray Chrysler 300, which was driven by defendant.¹ Defendant was cited for failing to maintain a properly functioning tag light.

During the stop, defendant's car was searched and, as a result of what was found during the search, defendant was charged with possession of a firearm by a felon, carrying a concealed weapon, maintaining a vehicle for controlled substances, possession with intent to manufacture, sell, or deliver a controlled substance, possession with intent to sell or deliver cocaine, possession of marijuana, possession of drug paraphernalia, and having attained habitual felon status. Defendant filed a motion to suppress the evidence obtained as a result of the search, contending that the officers lacked reasonable suspicion to conduct the traffic stop. The trial court conducted a suppression hearing on 2 September 2009, at which both the State and defendant presented evidence. At the conclusion of the hearing, the trial court entered an order from the bench, concluding that the officers had “reasonable articulable suspicion to stop the vehicle” and denying defendant's motion to suppress. Defendant subsequently pled guilty to possession of a firearm by a felon and having attained habitual felon status in exchange for the State's dismissing the remainder of the charges. The trial court consolidated the two charges to which defendant pled guilty and sentenced defendant to a presumptive-range sentence of 110 to 141 months imprisonment. Defendant timely appealed to this Court.

Discussion

Defendant's only argument on appeal is that the trial court erred in denying his motion to suppress. In reviewing the denial of a motion to suppress, the appellate court determines whether the trial court's findings of fact are supported by competent evidence and whether those findings, in turn, support the court's conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). The court's findings of fact are binding on appeal if they are supported by competent evidence, even if the evidence is conflicting. State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001). The court's conclusions of law determining whether an officer had reasonable suspicion is reviewed de novo. State v. Kincaid, 147 N.C.App. 94, 97, 555 S.E.2d 294, 297 (2001).

The Fourth Amendment protects individuals “against unreasonable searches and seizures.” U.S. Const. amend. IV. Pertinent here, “a traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” United States v. Botero–Ospina, 71 F.3d 783, 787 (10th Cir.1995). Reasonable suspicion requires that “[t]he stop ... be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by [the officer's] experience and training.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (citing Terry v. Ohio, 392 U.S. 1, 21–22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)).

Reasonable suspicion is a less demanding standard than probable cause, State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645, cert. denied, ––– U.S. ––––, 129 S.Ct. 264, 172 L.Ed.2d 198 (2008), and only requires a “minimal level of objective justification, something more than an ‘unparticularized suspicion or hunch[,]’ ” State v. Steen, 352 N.C. 227, 239, 536 S.E.2d 1, 8 (2000) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989)), cert. denied, 531 U.S. 1167, 121 S.Ct. 1131, 148 L.Ed.2d 997 (2001). “A court must consider ‘the totality of the circumstances—the whole picture’ in determining whether a reasonable suspicion” exists. Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981)).

With respect to whether Officers Fusco and Strayer had reasonable suspicion to stop defendant's vehicle on 16 October 2008, the trial court found that: “normal evening and atmospheric conditions” existed at the time the officers pulled behind defendant's vehicle and attempted to read the vehicle's license plate; when Officer Fusco “pulled behind this Chrysler vehicle and turned off the lights on his marked patrol car,” there was “either no tail light or a tail light that was not functioning sufficiently [so] that the numbers or numerals on the Chrysler tag were not visible within the statutory requirement set forth in 20–129, subsection (d)”; and that “the officer[s] did ticket the defendant for the alleged violation” of N.C. Gen.Stat. § 20–129(d) (2009). Based on these findings, the court concluded that Officers Fusco and Strayer had “reasonable suspicion to stop this vehicle.”

The stop of defendant's vehicle was premised on his alleged violation of N.C. Gen.Stat. § 20–129(d), which provides, in pertinent part, that every motor vehicle is required to have “[o]ne rear lamp or a separate lamp ... so constructed and placed that the number plate carried on the rear of [the] vehicle shall under [normal atmospheric] conditions be illuminated by a white light as to be read from a distance of 50 feet to the rear of such vehicle.”

Defendant contends that there is insufficient evidence to support the trial court's finding that the rear lamp on defendant's vehicle was either not functioning or not functioning properly to illuminate the license plate so that it could be read from 50 feet. Both Officer Fusco and Officer Strayer testified that they pulled within 50 feet of the rear of defendant's vehicle around 1:45 a.m. and were unable to read defendant's license plate, despite having the patrol car's headlights on. Officer Fusco explained that he then turned off the patrol car's headlights to “verify” his suspicion that the “tag light [wa]s out[.]” Believing that defendant's vehicle's “tag light” was inoperable, the officer's initiated a traffic stop and cited defendant for failing to maintain a properly functioning tag light. This evidence is sufficient to support the trial court's finding that defendant's vehicle's tag light was not functioning properly, in violation of N.C. Gen.Stat. § 20–129(d). See Draper v. Reynolds, 369 F.3d 1270, 1275–76 (11th Cir.2004) (finding sufficient evidence of equipment violation justifying stop where, “[u]nder Georgia law, a tag must be illuminated with a white light so that it is legible from fifty feet to the rear” and sheriff's deputy “testified that he stopped [defendant] because he observed that [defendant]'s tag light was out”).

Defendant nevertheless points to the testimony of Tom Myrick, the operations manager for Triangle Rent–A–Car, who stated that the company's inspection records indicated that “everything was fine with the vehicle” when it was rented on 7 October 2009 and when it was returned on 16 October 2009 and that the company had “no records of a burned out taillight on the ... car[.]” On cross-examination, however, Mr. Myrick testified that although part of the company's inspection process is to inspect each rental car's tag...