State v. Askew
| Decision Date | 17 March 2015 |
| Docket Number | No. COA14–411.,COA14–411. |
| Citation | 772 S.E.2d 14 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. William Earl ASKEW, Defendant. |
Attorney General Roy Cooper, by Special Deputy Attorney General John R. Green, Jr., for the State.
New Hanover County Public Defender Jennifer Harjo, by Assistant Public Defender Brendan O'Donnell, for defendant-appellant.
Defendant William Earl Askew appeals his judgment sentencing him for trafficking in heroin by possession, trafficking in heroin by delivery, and conspiracy to traffic heroin by delivery. Defendant primarily argues that the trial court erred in denying his motion to suppress. Defendant consented to an officer's checking defendant's wallet for his identification, but the officer also examined a $100 bill in the wallet to see whether its serial number matched a bill used in a drug purchase by a confidential informant. We need not address whether, as defendant argues, under Arizona v. Hicks,480 U.S. 321, 94 L.Ed.2d 347, 107 S.Ct. 1149 (1987), the examination of the bill was a search that exceeded the scope of defendant's consent because the trial court's findings establish that seizure of the bill was justified under the plain view doctrine. Consequently, we affirm.
Facts
On 6 June 2012, defendant was riding as a passenger in a Kia Soul being driven by Tammy Pettiford. Sergeant Jeff Malzahn of the Raleigh Police Department (“RPD”) stopped the vehicle, asked defendant to step out of the vehicle, and asked for defendant's identification. Defendant consented to Sergeant Malzahn's retrieving defendant's identification from his wallet, which was still in the car. In addition to opening the wallet to get defendant's identification, Sergeant Malzahn also checked a $100 bill in the wallet and determined that it was incriminating evidence of a controlled purchase of heroin, and he arrested defendant. Following defendant's arrest, defendant led officers to a stash of heroin.
Defendant was indicted on 29 October 2012 for trafficking in heroin by possession, trafficking in heroin by delivery, and conspiring to deliver heroin. On 21 August 2013, defendant filed a motion to suppress arguing that Sergeant Malzahn's examination of the $100 bill exceeded the scope of defendant's consent to a search of his wallet, and the bill was “not in plain sight.” Defendant further sought to suppress any evidence seized following defendant's arrest as fruit of the poisonous tree. On 7 February 2014—after a hearing at which defendant presented no evidence—the trial court entered an order denying defendant's motion to suppress.
The trial court made the following findings of fact. In January or February 2012, RPD Detective Daniel Jones had come to suspect defendant and Jennifer Robertson of trafficking in heroin. RPD officers began maintaining surveillance on defendant and Ms. Robertson, including on their residences and vehicles. Ultimately, a confidential informant (“CI”) agreed to participate in a controlled purchase of seven grams of heroin from defendant and Ms. Robertson at Ms. Robertson's residence on 6 June 2012.
On 6 June 2012, Detective Jones met with the CI and searched the CI and the CI's vehicle and found no contraband or money. Detective Jones equipped the CI with audio and video surveillance as well as $1,000.00 of RPD funds to make the purchase, including nine $100 bills and five $20 bills. Detective Jones had made photocopies of the bills and recorded the serial numbers for each bill. The CI telephoned Ms. Robertson and asked to buy seven grams of heroin. Ms. Robertson then called defendant whom the trial court found to be “her source” for heroin.
Defendant and Ms. Pettiford subsequently arrived at Ms. Robertson's house in the Kia Soul, and Ms. Robertson got into the back of the vehicle and made a phone call to the CI that was monitored. Ms. Robertson went back inside her residence, and the CI drove to meet Ms. Robertson. The CI went inside Ms. Robertson's house, completed the transaction, left the house, and met Detective Jones at a prearranged location to deliver to him the seven grams of heroin.
Ms. Robertson again left her residence, got into the back of the Kia Soul that was still parked in her driveway, and gave defendant the money from the drug transaction. Ms. Pettiford, Ms. Robertson, and defendant then drove in the Kia to a nearby Zaxby's Restaurant. Detective Jones began following the Kia hoping defendant would lead him to defendant's supplier. The Kia, however, returned to Ms. Robertson's residence, and after Ms. Robertson went back inside her residence, Ms. Pettiford and defendant went to a store where they stayed for a short time. Ms. Pettiford and defendant then went to defendant's residence and went inside. Shortly thereafter, Ms. Pettiford and defendant again drove away in the Kia.
About an hour or an hour and a half after the controlled purchase, it became clear that defendant was not going to contact his heroin supplier. Detective Jones requested over the radio that a patrol officer stop the Kia. While Detective Jones and others involved in the investigation were in plain clothes and driving unmarked RPD vehicles, Sergeant Malzahn was in uniform and driving a marked patrol car nearby.
Detective Jones, who was parked a short distance from where Sergeant Malzahn was located, asked Sergeant Malzahn to stop the Kia Soul. After pulling the Kia over, Sergeant Malzahn spoke with Ms. Pettiford and then returned to his patrol car. Detective Jones was able to maintain surveillance of the encounter. Sergeant Malzahn discovered that Ms. Pettiford had a revoked North Carolina driver's license and observed that defendant was acting “extremely nervous while speaking with him.” After Sergeant Malzahn relayed this information to Detective Jones, Detective Jones advised Sergeant Malzahn to try to obtain consent to search the vehicle and “to specifically look for $100 bills and to obtain the serial numbers if possible.” Sergeant Malzahn returned to the Kia and asked Ms. Pettiford and defendant for identification. Defendant told Sergeant Malzahn that his identification was in his wallet, which was located in defendant's suitcase in the back of the vehicle.
Sergeant Malzahn asked Ms. Pettiford and defendant to step out of the vehicle, and he “obtained limited consent to retrieve [defendant's] wallet for the ID.” After defendant and Ms. Pettiford complied, Sergeant Malzahn opened defendant's suitcase and retrieved defendant's wallet, “a billfold, which opened horizontally, with a pocket that runs the length of the billfold.” The trial court found that “as [Sergeant Malzahn] opened the wallet, he could see a $100 bill partially sticking out of the pocket that runs the length of the billfold[.]” Then, Sergeant Malzahn After returning to his patrol car, Sergeant Malzahn read the serial number to Detective Jones, who confirmed that the bill was used in the controlled purchase.
Detectives then arrested both Ms. Robertson and defendant for trafficking heroin. Subsequent to his arrest, defendant admitted that he had more heroin at Ms. Pettiford's home. Officers in fact found a large amount of heroin when they searched Ms. Pettiford's home.
Based on those findings of fact, the trial court made the following conclusions of law:
1. Sgt. [Malzahn] had reasonable suspicion to stop the vehicle. In reviewing the totality of the circumstances, Detective Jones “possessed a reasonable suspicion that criminal conduct had occurred, was occurring or was about to occur.” State v. Battle,109 N.C.App. 367 (1993). Detective Jones possessed that reasonable suspicion prior to his request that Sgt. [Malzahn] stop Askew's vehicle. Id.
2. Sgt. [Malzahn]'s search of Askew's wallet did not exceed the consent given. Askew gave Sgt. [Malzahn] consent to search the wallet for his identification. Sgt. [Malzahn] understood this to mean that he had limited consent to search the wallet and retrieve Askew's ID. Sgt. [Malzahn] followed that limited consent by opening the wallet and when he saw the $100 bill that was partially sticking out of the billfold, he recorded the serial number.1
3. The stop of the vehicle and subsequent search of the wallet do not violate the Defendants [sic] rights protected by the Fourth Amendment of the United States Constitution.
Following the denial of defendant's motion to suppress, defendant pled guilty to trafficking in heroin by possession, trafficking in heroin by delivery, and conspiracy to deliver heroin. Defendant conditioned his plea on preserving his right to appellate review of the trial court's denial of his motion to suppress. The trial court sentenced defendant to a term of 225 to 279 months imprisonment. Defendant timely appealed to this Court.
Discussion
“ ‘[T]he scope of appellate review of an order [regarding a motion to suppress] is strictly limited to determining whether the trial [court]'s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the [court]'s ultimate conclusions of law.” ’ State v. Salinas,366 N.C. 119, 123, 729 S.E.2d 63, 66 (2012) (quoting State v. Cooke,306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) ).
“Because the trial court, as the finder of fact, has the duty to pass upon the credibility of the evidence and to decide what weight to assign to it and which reasonable inferences to draw therefrom, ‘[t]he appellate court cannot substitute itself for the trial court in this task.’ “ State v. Villeda,165 N.C.App. 431, 438, 599 S.E.2d 62, 66 (2004) (quoting NationsBank of N.C. v. Baines,116 N.C.App. 263, 269, 447 S.E.2d 812, 815 (1994) ). “This deference is afforded the trial judge because he is in the best position to weigh the evidence....” State v. Hughes,353...
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