State v. Fizovic

• Decision Date: 07 April 2015
• Docket Number: No. COA14–723.,COA14–723.
• Citation: 240 N.C.App. 448,770 S.E.2d 717
• Parties: STATE of North Carolina, v. Dario FIZOVIC, Defendant.
• Court: North Carolina Court of Appeals

240 N.C.App. 448

770 S.E.2d 717

STATE of North Carolina,

v.Dario FIZOVIC, Defendant.

No. COA14–723.

Court of Appeals of North Carolina.

April 7, 2015.

Attorney General Roy Cooper, by Associate Attorney General Laura Askins, for the State.

Willis Johnson & Nelson PLLC, Raleigh, by Drew Nelson, for defendant-appellant.

GEER, Judge.

Defendant Dario Fizovic appeals from a judgment entered on his Alford plea of guilty to possession of a firearm by a felon. On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence seized from defendant's vehicle after he was stopped for having an open container of alcohol in his vehicle. Defendant first argues that the search amounted to a "search incident to citation" and was invalid pursuant to Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), and State v. Fisher, 141 N.C.App. 448, 539 S.E.2d 677 (2000). However, because defendant was never issued a citation and was in fact arrested for the open container offense, Knowles and Fisher are inapplicable.

Alternatively, defendant argues that the search cannot be justified as a search incident to arrest because at the time of the search, the officer had already obtained sufficient evidence to prosecute the open container offense. Defendant misstates the standard. An officer may conduct a warrantless search of a suspect's vehicle incident to his arrest if he has a reasonable belief that evidence related to the offense of arrest may be found inside the vehicle. The trial court's unchallenged findings of fact (1) that it is common to find alcohol in vehicles of individuals who are stopped for alcohol violations and (2) that the center console in defendant's car was large enough to hold beer cans support the conclusion that the arresting officer had a reasonable belief that evidence related to the open container violation might be found in defendant's vehicle. Accordingly, we hold that the trial court properly concluded that the search was a valid search incident to defendant's arrest, and we affirm.

Facts

The trial court made the following undisputed findings of fact in its order denying defendant's motion to suppress. On 14 March 2012, Officer Billy Wyatt of Lankford Company Police was patrolling the Davie Street Parking Deck in Greensboro, North Carolina. Around 11:50 p.m., Officer Wyatt observed defendant driving a Jeep Grand Cherokee up the ramp in his direction. Officer Wyatt saw a passenger in the front seat and observed defendant raise a can of Modelo beer to his mouth and consume alcohol. He stopped defendant's vehicle and asked defendant for his driver's license. Defendant gave Officer Wyatt a resident alien card. Officer Wyatt asked again for a driver's license. Defendant told Officer Wyatt that his license was in the center console and started to reach for it. For officer safety reasons, Officer Wyatt stopped defendant and asked him to step out of the vehicle.

By this time, Officer Neff of Lankford Company Police and Officer Shaffer of the Greensboro Police Department had arrived to provide assistance. While Officer Neff got the passenger out of the car, Officer Wyatt patted defendant down for weapons and asked him if he had any drugs or weapons in the car. Defendant replied that he did not.

Officers Wyatt and Shafer then searched the center console for defendant's driver's license and for additional alcohol or alcohol containers. When Officer Shaffer lifted up the inner console, he found a loaded .357 Taurus revolver. The officers did not find a driver's license in the outer compartment of the console or in the inner console. When Officer Wyatt asked defendant why he did not tell him there was a weapon in the vehicle, defendant replied that it was because he was a convicted felon. Officer Wyatt then arrested defendant for possession of a firearm by a felon and for the open container violation.

The following day, a magistrate determined that there was probable cause to arrest defendant for both charges, and defendant was released on bond. On 23 April 2012, the trial court dismissed the open container violation, and on 21 May 2012, defendant was indicted for possession of a firearm by a felon. On 17 January 2014, defendant filed a motion to suppress the evidence obtained as a result of the search of his vehicle and his motion was heard before Judge Susan E. Bray on 21 January 2014.

In an order entered 22 January 2014, Judge Bray concluded based on her findings of fact that "Officer Wyatt had probable cause to arrest Defendant Fizovic for driving while consuming alcohol and/or open container" at the beginning of the stop and that Officer Wyatt had a reasonable belief that evidence relevant to the open container violation might be found in defendant's vehicle. Judge Bray therefore concluded that the search was a lawful search incident to defendant's arrest and denied defendant's motion to suppress.

On 10 March 2014, defendant entered an Alford plea of guilty to possession of a firearm by a felon. Judge Edgar B. Gregory sentenced defendant to a presumptive-range term of 12 to 24 months imprisonment, suspended the sentence, and placed defendant on supervised probation for 18 months. Defendant timely appealed to this Court.¹

Discussion

Our review of a trial court's denial of a motion to suppress is "strictly limited to determining whether the trial judge'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 judge's ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Unchallenged findings of fact are binding on appeal. State v. Lupek, 214 N.C.App. 146, 150, 712 S.E.2d 915, 918 (2011). The trial court's conclusions of law are, however, fully reviewable and "must be legally correct, reflecting a correct application of applicable legal principles to the facts found." State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997).

On appeal, defendant does not challenge the trial court's factual findings, but contends that the trial court erred in concluding that the warrantless search of defendant's vehicle was justified as a search incident to arrest. We disagree.

Generally, "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967) (internal footnote omitted). One such exception is a search incident to a lawful arrest. Pursuant to this exception, the police may "search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." Arizona v. Gant, 556 U.S. 332, 351, 129 S.Ct. 1710, 1723, 173 L.Ed.2d 485, 501 (2009).

Defendant, citing Knowles and Fisher, argues first that the search in this case was not a search incident to arrest, but rather a "search incident to citation." Pursuant to Knowles and Fisher, when a citation is issued for a traffic offense, and a search of the vehicle will not yield any additional evidence of that offense, a warrantless search of the vehicle is unconstitutional. In Knowles, the United States Supreme Court held that a search of the defendant's vehicle after he had been issued a citation for speeding violated the Fourth Amendment because neither of the historic rationales for a search incident to arrest—the concern for officer safety and the destruction or loss of evidence—was present. Specifically with respect to the loss of evidence rationale, the Court reasoned that "[n]o further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car." 525 U.S. at 118, 119 S.Ct. at 488, 142 L.Ed.2d. at 499.

In Fisher, the police stopped the defendant's vehicle and issued a citation for defendant's driving while his license was revoked. 141 N.C.App. at 450, 539 S.E.2d at 679. While one officer took defendant to his patrol car to issue the citation, a canine unit arrived to sniff the vehicle and "alerted" to the presence of drugs. Id., 539 S.E.2d at 679–80. The officers found marijuana in the hood of the vehicle and arrested defendant on several drug charges. Id. at 450, 451, 539 S.E.2d at 680. On appeal, this Court determined that there was not competent evidence to support the trial court's finding that defendant had been arrested for the offense of driving with a revoked license. Id. at 454, 539 S.E.2d at 682. It then concluded that "[b]ecause defendant was never arrested, the search of his vehicle was not justified as a search incident to a lawful arrest. Furthermore, in accordance with Knowles, the officers were not justified in searching defendant's car based upon the issuance of the citation. This is true even though the officers may have had probable cause to arrest defendant." Id. at 456, 539 S.E.2d at 683.

Here, unlike in Knowles and Fisher, defendant was not issued a citation, but was in fact arrested for the open container violation. Defendant cites no authority, and we have found none, suggesting that Knowles and Fisher apply where no citation is issued. We, therefore, hold that Knowles and Fisher are inapplicable to this case. See Virginia v. Moore, 553 U.S. 164, 177, 128 S.Ct. 1598, 1608, 170 L.Ed.2d 559, 571 (2008) (holding Knowles did not control where officers arrested the defendant instead of issuing him a citation).

Defendant argues, nonetheless, that we should treat the search as one incident to citation because Officer Wyatt testified that he originally...