State Carolina v. Williams, COA09–1656.

• Decision Date: 18 January 2011
• Docket Number: No. COA09–1656.,COA09–1656.
• Citation: 703 S.E.2d 905
• Parties: STATE of North Carolinav.Reginald McKinley WILLIAMS, Defendant.
• Court: North Carolina Court of Appeals

703 S.E.2d 905

STATE of North Carolina

v.Reginald McKinley WILLIAMS, Defendant.

No. COA09–1656.

Court of Appeals of North Carolina.

Jan. 18, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from an order entered on or about 7 July 2009 by Judge Quentin T. Sumner in Superior Court, Martin County. Heard in the Court of Appeals 26 May 2010.

Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Douglas A. Johnston, for the State.

Michael J. Reece, Smithfield, for defendant-appellant.

STROUD, Judge.

Reginald McKinley Williams (“defendant”) appeals from the trial court's denial of his motion to suppress. We conclude that the trial court had adequate grounds for its denial of defendant's motion to suppress and affirm the trial court's ruling.

I. Background

On or about 23 September 2008, defendant was indicted for possession with the intent to sell or deliver cocaine; maintaining a vehicle for keeping, selling, or delivering cocaine; and attaining the status of habitual felon. On 14 May 2009, defendant moved to suppress certain evidence obtained as a result of a stop and search of defendant conducted by police on 18 March 2008.

Following a hearing on defendant's motion, the trial court denied defendant's motion and issued a written order on or about 7 July 2009. After preserving his right to appeal the trial court's denial of his motion to suppress, defendant pled guilty to possession with the intent to sell or deliver cocaine and attaining the status of habitual felon. The trial court sentenced defendant to a consolidated term of 133 to 169 months imprisonment.

II. Reasonable suspicion to stop defendant's vehicle

Defendant first contends that the trial court's conclusion that officers had a reasonable and articulable suspicion for stopping the vehicle in which defendant was a passenger was not supported by the trial court's findings of fact.

It is well established that “[t]he standard of review to determine whether a trial court properly denied a motion to suppress is whether the trial court's findings of fact are supported by the evidence and whether the findings of fact support the conclusions of law.” State v. Tadeja, 191 N.C.App. 439, 443, 664 S.E.2d 402, 406–07 (2008). “The trial court's conclusions of law are reviewed de novo and must be legally correct.” State v. Campbell, 188 N.C.App. 701, 704, 656 S.E.2d 721, 724, (citations, brackets, and quotation marks omitted), appeal dismissed, 362 N.C. 364, 664 S.E.2d 311–12 (2008). Additionally, “findings of fact to which defendant failed to assign error are binding on appeal.” Id. Here, defendant “failed to assign error” to any of the trial court's findings of fact in the order denying his motion to suppress. Therefore, the trial court's findings of fact are binding on appeal. See id. In its written motion, the trial court made the following uncontested findings of fact:

1. Investigator Charles Brown (hereinafter “Brown”) testified he is employed with the Martin County Sheriff's Department as a narcotics investigator. Brown has an extensive background in narcotics investigation, including over 200 arrests for such offenses, and annually attends various trainings in narcotics. Brown has been in law enforcement since 1994, and worked with the Williamston Police Department prior to working with the Sheriff's office.

2. On or about March 18, 2008, Brown was on duty and working along with Martin County Investigator John Nicholson and Williamston Police Detective Chris Garrett. On said date, these officers were conducting surveillance of the Holiday Inn parking lot located in Williamston, North Carolina.

3. Prior to March 18, 2008, Brown received information from three different confidential sources that the defendant engaged in the sale of illegal narcotics in both the Holiday Inn Lounge area and Wings and Things, another local establishment located approximately .2 of a mile from the Holiday Inn.

4. Brown testified that two of the three confidential sources were long time informants who had supplied reliable information to Brown for six or seven years. Brown indicated that information supplied by these two informants had led to numerous arrests and served as the basis for numerous search warrants.

5. Approximately 30 days prior to March 18, 2008, these two confidential informants told Brown that the defendant, Reginald Williams, used both the Holiday Inn Lounge and Wings and Things in Williamston for the sale of narcotics. Said informants also told Brown that the defendant often traveled in a late model Jeep Cherokee. Since defendant's license was revoked, defendant often had another individual named Derrick Smith to drive the said Jeep Cherokee for him.

6. Brown further testified that a third confidential source contacted Brown to complain about the defendant selling narcotics in the open air market of the Holiday Inn Lounge. Brown testified this third source was not an informant, but simply a regular patron of the lounge who considered the lounge to be a family type atmosphere. This third confidential source did not approve of defendant's activities in the lounge.

7. Within a few days of March 18, 2008, Brown spoke by telephone with this third confidential source, and also met with him face to face, concerning defendant's activities in the Holiday Inn Lounge. In addition, on the night of March 18, 2008, this source contacted Brown by telephone and said that the defendant was currently in the Holiday Inn Lounge.

8. Shortly after receiving the telephone call from this third confidential source on March 18, 2008, Brown and other officers set up surveillance of the Holiday Inn parking lot. Brown conducted surveillance from his moving vehicle while Investigator Nicholson parked his stationary vehicle near a used car lot located across the street from the Holiday Inn. Nicholson used binoculars to conduct surveillance.

9. Brown testified he was familiar with defendant, having either arrested him or assisted other officers in arresting defendant. Prior to March 18, 2008, Brown was also aware of defendant's numerous felony convictions for drug offenses, including multiple counts of Possession with Intent to Sell and the Sale of Cocaine. Brown also knew prior to said date of Derrick Smith's involvement with illegal narcotics.

10. Nicholson testified he was positioned approximately 175–200 yards from the main entrance. Nicholson testified that visibility was clear, and the parking lot was well lit.

11. While conducting surveillance of the Holiday Inn parking lot, Nicholson observed two known drug users enter the side entrance of the Holiday Inn. Nicholson testified that this entrance also leads to the lounge area. Nicholson observed these same two individuals exit the Holiday Inn within one to two minutes after entering, which in his training and experience is consistent with the purchase of illegal narcotics. Nicholson has worked in narcotics since 2003 with both the Williamston Police Department and the Martin County Sheriff's Office.

12. After conducting surveillance of the Holiday Inn for approximately 30 minutes, (and within minutes of observing the known drug users leave the Holiday Inn), Nicholson observed the defendant exit the side entrance of the Holiday Inn along with another black male believed to be Derrick Smith. Nicholson did not personally observe the defendant inside the Holiday Inn. Nicholson indicated he had grown up and attended school with the defendant; he was also familiar with Derrick Smith, and had known him for approximately six years.

13. Nicholson observed the defendant enter the passenger side of the late model gray Jeep Cherokee, and the other person believed to be Derrick Smith enter the driver's side. Nicholson stated he believed the driver to be Derrick Smith, although he did not get a clear view of his face prior to entering the vehicle. Nicholson notified Brown that the said individuals were leaving the Holiday Inn parking lot in the gray Jeep Cherokee, with Smith driving, and headed towards Wings and Things. The officers knew Smith's license to be revoked as well.

14. Officers observed the Jeep Cherokee exit the parking lot of the Holiday Inn onto Highway 13/17 and drive towards Wings and Things. As a result, Brown activated his blue lights and initiated a traffic stop of the Jeep Cherokee prior to reaching Wings and Things. Brown testified he initiated the stop based on several factors: 1) the belief of Derrick Smith driving the vehicle with a revoked license; 2) the information they had received from the 3 confidential sources prior to and including March 18, 2008, and corroborated by the actions of the known drug users, Smith and defendant on this occasion.

15. After stopping the Jeep Cherokee, Brown approached the driver of the Jeep Cherokee. After requesting identification, Brown determined the driver to be Vicky Tyrone Spruill, and not Derrick Smith. Spruill appeared to possess a valid license with certain restrictions. Brown testified that both Derrick Smith and Vicky Tyrone Spruill were black males, over six feet tall, medium complexion, and a close hair cut.

16. Brown conducted a pat down “Terry Frisk” search of Spruill for officer safety, as did Nicholson of the defendant. No weapons or illegal contraband were located. Brown testified that defendant encouraged them to search the Jeep Cherokee, and did so based upon defendant's consent.

17. Shortly thereafter, Officer Brandon McKinney arrived with his trained canine, and McKinney walked the dog around the vehicle. McKinney indicated that the dog alerted to several areas of interest, but no direct hits.

18. Brown testified that a search of the interior of the Jeep Cherokee did not reveal any weapons or illegal contraband, although he noticed what appeared to be talcum powder spread all over the interior of the vehicle. Brown testified in his training and experience this powder was used to mask the odor of illegal drugs.

19. At this time, defendant was standing in...