State v. Fisher, No. COA99-1222.

• Decision Date: 29 December 2000
• Docket Number: No. COA99-1222.
• Citation: 539 S.E.2d 677,141 NC App. 448
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Felix FISHER.

539 S.E.2d 677

141 NC App. 448

STATE of North Carolina v. Felix FISHER.

No. COA99-1222.

Court of Appeals of North Carolina.

December 29, 2000.

Attorney General Michael F. Easley, by Assistant Attorney General T. Brooks Skinner, Jr., for the State.

Joshua W. Willey, Jr., New Bern, for defendant-appellee.

TIMMONS-GOODSON, Judge.

The State, pursuant to section 15A-979(c) of the North Carolina General Statutes, appeals from the trial court's pre-trial order granting Felix Fisher's ("defendant") motion to suppress evidence. Having reviewed the arguments and materials submitted on appeal, we affirm.

The facts, as found by the trial court, are as follows: On 29 November 1998, Investigator John Smith ("Investigator Smith") of the New Bern Police Department's narcotics unit observed a White Chevrolet Blazer, belonging to defendant, parked in an area of New Bern, North Carolina, known for its drug trade. The investigator knew defendant had a reputation for dealing drugs. Investigator Smith did not see defendant at the time, but suspecting that defendant was in the area, he ran a "record check" on defendant, which revealed that his driver's license had been revoked.

On the night of 1 December 1998, while patrolling an area known for its drug trade, Investigator Smith observed defendant driving his Blazer, accompanied by a passenger. Investigator Smith immediately radioed uniformed patrol Officer Ernest Tripp ("Officer Tripp"), also of the New Bern Police Department, requesting that Officer Tripp stop defendant for operating his vehicle while his driver's license was revoked.

Following Investigator Smith's directive, Officer Tripp effectuated the stop. Investigator Smith approached defendant and requested that defendant produce his driver's license. Defendant provided the investigator with a "limited driving privilege," which allowed defendant to operate a motor vehicle until 8:00 p.m. When asked where he was going, defendant responded that he was transporting his passenger to obtain kerosene.

The court specifically found that the time of the stop was approximately 8:20 p.m. The court further found the following facts in relation to the stop:

[Investigator Smith] instructed the defendant to exit the vehicle and turned him over to [Officer Tripp] and directed [Officer Tripp] to cite the defendant for operating a motor vehicle while his driver[`]s license was revoked and placed the defendant under arrest for such charge.

... [T]he defendant was taken by [Officer Tripp] back to his patrol car. [Officer Tripp] proceeded to write out the citation charging the defendant with operating his motor vehicle while his driver[`]s license was revoked. That there was no indication that the defendant was anything but cooperative with the officers during this encounter. He displayed no act of violence or force of violence and did not attempt to retrieve any firearm or other deadly weapon from his person. There is no evidence before the Court that the defendant was personally searched at this time.... [N]or were there any observations by any other law enforcement officers at the scene that anything was observed openly exposed in the automobile to indicate the presence of any contraband, stolen goods, deadly weapons, firearms, or any other matters which would have alerted the officers that any violation of the law other than the one for which the defendant was stopped had occurred.

While Officer Tripp issued defendant a citation for driving while license revoked, Investigator Smith radioed a dispatcher and requested the assistance of "a K-9 unit." "[S]hortly thereafter," Officer John Carlstead ("Officer Carlstead") and his canine, Kiko, arrived. The court found that Kiko was "properly trained and utilized by the New Bern Police Department in the detection of controlled or illegal drugs[.]" Under the direction of Officer Carlstead, Kiko "`sniff[ed]' the automobile" and "alerted on" the vehicle's front end.

The officers noticed a spring devise attached to the front bumper, and upon the officer's inquiry, defendant stated that the devise was used to secure the hood. Without obtaining defendant's consent or informing him of their intent to search the Blazer, the officers searched under the hood, where they located 135 grams of marijuana inside the vehicle's firewall.

The court found the following additional facts in connection with the encounter:

That other than such suspicion as [Investigator Smith] might have held based upon his personal knowledge of the defendant's past, there is nothing before the Court to indicate that upon the stop of the defendant for driving while his license was revoked, there was any indication in the officer's mind, nor is there anything in which the Court can discern, that he saw any evidence of any illegal drugs or controlled substances located in or about the defendant's vehicle, and that other than the fact that the defendant was operating his vehicle at a time after the expiration of the limited license, there is nothing to indicate any illegal conduct on behalf of the defendant.

... There was no indication that there was any need to disarm the defendant in order to take him into custody nor any need to preserve evidence for later use at trial. Since after stopping the defendant and determining that he was outside the scope of his limited driving privilege, no further evidence would have been necessary.

Defendant was charged with possession of marijuana with intent to sell and deliver, maintaining a vehicle for the purpose of keeping controlled substances, and possession of drug paraphernalia. Bond was set, and defendant was released from custody on the drug-related charge. However, defendant's citation for driving while license revoked was never "sworn to before a magistrate." Nor, was a release order issued or a bond set on that charge.

Based on the aforementioned factual findings, the trial court granted defendant's motion to suppress.

The State appeals the order of the trial court granting defendant's motion to suppress. Our review of an order suppressing evidence is strictly limited. State v. Cooke, 306 N.C. 132, 291 S.E.2d 618 (1982). In evaluating such an order, this Court must determine whether competent evidence supports the trial court's findings of fact. Id. Findings of fact supported by competent evidence are binding on appeal. Id. "Inconsistencies or conflicts in the testimony do not necessarily undermine the trial court's findings, since such contradictions in the evidence are for the finder of fact to resolve." State v. Bromfield, 332 N.C. 24, 36, 418 S.E.2d 491, 497 (1992) (emphasis added) (citation omitted). "If there is a conflict between the [S]tate's evidence and defendant's evidence on material facts, it is the duty of the trial court to resolve the conflict[,] and such resolution will not be disturbed on appeal." State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982) (citation omitted). Although the trial court's findings of fact may be binding on appeal, we review its conclusions of law de novo. State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992)

. We must not disturb the court's conclusions if they are supported by the court's factual findings. Cooke, 306 N.C. 132,

291 S.E.2d 618.

The State does not challenge the court's findings of fact on appeal, but assigns as error the court's conclusions of law concerning the propriety of the search of defendant's vehicle. Based on the State's assignments of error and defendant's responses on appeal, we discern two dispositive issues: (I) whether defendant was actually arrested; and (II) whether the canine sniff of the perimeter of defendant's vehicle in a public place during a traffic stop was proper in light of the circumstances surrounding that traffic stop.

(I)

We first address whether defendant was actually arrested. In its factual findings, the trial court found the following:

[Investigator] Smith instructed the defendant to exit the vehicle and turned him over to [Officer Tripp] and directed [Officer Tripp] to cite the defendant for operating a motor vehicle while his driver[`]s license was revoked and placed the defendant under arrest for such charge. (Emphasis added.)

Although not specifically asserting that the aforementioned finding was erroneous, defendant contends on appeal that he was not arrested. Given the court's specific finding that Investigator Smith "placed" defendant under arrest, we find that defendant is in essence arguing that the above cited factual finding was not supported by competent evidence. We must agree.

The testimony of Investigator Smith and Officer Tripp at the suppression hearing was replete with internal contradictions concerning whether defendant was actually arrested. Investigator Smith testified that he informed defendant that he was under arrest for driving while license revoked at 8:54 p.m., the time written on the uniform citation. Investigator Smith further testified, "We placed him under arrest. We wrote him a citation. The arrest was written on the citation, a Magistrate's Order we'll call it.... It's written on a uniform ticket, but the magistrate signs off on it." Investigator Smith also stated that "Officer Tripp wrote the ticket, wrote the charge on an uniform ticket, that's true, but we took [defendant] to the magistrate's office where she signed off on the ticket, making it a Magistrate's Order, not the uniform ticket."

Investigator Smith later acknowledged, contrary to his own testimony, that although the officers procured a magistrate's order for the drug-related charges, the citation for driving while license revoked was never signed by a magistrate. See N.C. Gen.Stat. § 15A-511(c) (1999) ("If the person has been arrested, for a crime, without a warrant [the] magistrate must determine whether there is probable cause...."). Nor, was there a release order signed or bond set pursuant to defendant's alleged warrantless arrest for driving while license...