State v. Johnson, COA19-96

Docket NºNo. COA19-96
Citation837 S.E.2d 169, 269 N.C.App. 76
Case DateDecember 17, 2019
CourtCourt of Appeal of North Carolina (US)

269 N.C.App. 76
837 S.E.2d 169

STATE of North Carolina
Bryan Xavier JOHNSON, Defendant.

No. COA19-96

Court of Appeals of North Carolina.

Filed: December 17, 2019

Attorney General Joshua H. Stein, by Special Deputy Attorney General Douglas W. Corkhill, for the State.

Kimberly P. Hoppin, for Defendant-Appellant.

INMAN, Judge.

269 N.C.App. 76

Bryan Xavier Johnson ("Defendant") appeals his convictions following guilty pleas to felony cocaine possession and misdemeanor possession of drug paraphernalia. Defendant argues the trial court erred in denying a motion to suppress evidence supporting these convictions because the police officer who searched Defendant's vehicle (1) lacked reasonable suspicion to conduct the search and (2) unlawfully extended the duration of the traffic stop. After thorough review of the record and applicable law, we hold that Defendant has failed to demonstrate error.

269 N.C.App. 77


The record and the evidence introduced at the suppression hearing tend to show the following:

At about 12:45 am on 14 January 2017, Officer Elliot Whitley ("Officer Whitley") and Sergeant Visiano of the Charlotte-Mecklenburg Police Department were traveling on Central Avenue in Charlotte in a single patrol car. Officer Whitley described the location as a high-crime area, where he has been involved in numerous drug and firearm cases.

During their patrol, Officer Whitley observed Defendant's black Dodge Charger. Sergeant Visiano ran a computer database search of the license plate number and discovered that it was registered to a different vehicle. Officer Whitley then initiated a traffic stop of Defendant's vehicle. Defendant stopped "fairly immediately."

As Officer Whitley approached the driver's side of Defendant's vehicle, he noticed Defendant raising his hands in the air and holding them outside the window of the vehicle. Based on his seven years of experience, including almost five years with particular involvement in drug crimes, Officer Whitley took notice that Defendant was raising his

837 S.E.2d 172

hands because "sometimes it can mean [that the person has] a gun."

Officer Whitley asked Defendant for his license and registration and stated that he stopped him because his vehicle tag was registered to an Acura MDX. Officer Whitley also asked Defendant if he had a firearm; Defendant responded that he did not. As Defendant was looking for his license and the vehicle registration, he explained to Officer Whitley that he had just purchased the vehicle that day. Defendant handed Officer Whitley his license out of his wallet and then searched in the center console to retrieve the registration and the bill of sale. As Defendant was searching in the console, Officer Whitley noticed him "blading his body," as if he were "trying to conceal something that [was] to his right." Although Defendant was cooperative throughout this process, he appeared "very nervous ... like his heart [was] beating out of his chest a little bit." Defendant eventually provided the paperwork, including an apparent bill of sale. Officer Whitley returned to the patrol car to run Defendant's information through law enforcement databases. Defendant remained in his vehicle and Sergeant Visiano stood near the right passenger door during this time.

While reviewing Defendant's information on law enforcement databases, Officer Whitley learned that from 2003 to 2009, Defendant was charged with violent crimes of robbery with a dangerous weapon,

269 N.C.App. 78

conspiracy to commit robbery with a dangerous weapon, assault with a deadly weapon with the intent to kill, and discharging a weapon into occupied property. Officer Whitley testified that, of Defendant's criminal history, he recalled that there were two convictions, the most recent occurring in 2009. Considering the totality of the circumstances, including Defendant's placement of his hands, blading of his body, nervous behavior, and criminal history, Officer Whitley believed that Defendant "was armed and dangerous at that point."

Officer Whitley directed Defendant to step out of the vehicle and stand behind the vehicle on the driver's side. With Sergeant Visiano and two other officers who had arrived behind him, Officer Whitley conducted a consensual frisk of Defendant's person, which did not reveal a weapon. Officer Whitley then searched the "lungeable areas" of the vehicle, over the objection of Defendant. Although no weapon was discovered in the vehicle, Officer Whitley found cocaine in the center console and placed Defendant under arrest.

On 14 January 2017, Defendant was charged with felony possession with the intent to sell or deliver cocaine and misdemeanor possession of drug paraphernalia. On 25 September 2017, Defendant was indicted on a charge of felony possession of cocaine.

Defendant filed a motion to suppress the evidence seized as a result of the search, arguing that Officer Whitley lacked authority to search his vehicle. A hearing on the motion was held on 26 June 2018. Officer Whitley was the sole witness and the only other evidence presented was a video of the stop and search captured by Officer Whitley's audio-visual body camera. The trial court denied Defendant's motion, and Defendant then entered guilty pleas to felony possession of cocaine and misdemeanor possession of drug paraphernalia, reserving the right to appeal the denial of his motion to suppress. The trial court entered judgment, sentencing Defendant to 8 to 19 months’ imprisonment, but suspended that sentence and placed Defendant on supervised probation for 24 months.

Defendant appeals.1

269 N.C.App. 79


A. Standard of Review

"When reviewing a motion to suppress, the trial court's findings of fact are conclusive and binding on appeal if supported by competent evidence." State v. Fields , 195 N.C. App. 740, 742-43, 673 S.E.2d 765, 767 (2009). Unchallenged findings of fact are presumed

837 S.E.2d 173

to be supported by competent evidence. State v. Roberson , 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36 (2004). The trial court's conclusions of law are reviewed de novo . Fields , 195 N.C. App. at 743, 673 S.E.2d at 767.

Here, the trial court made the following relevant findings of fact:

1. That on January 14, 2017, Officer E. Whitley was licensed, sworn, and on duty, and was acting as a patrol officer conducting traffic control near Central Ave. and N. Sharon Amity Rd. in Charlotte, Mecklenburg County, North Carolina.

2. That based on his training and experience working in that area for 7 years, the above mentioned area is considered by Officer Whitley to be a high crime area.

3. That while Officer Whitley observed a black Dodge Charger on N. Sharon Amity Rd. his partner ran the license plate through Department of Motor Vehicle (DMV) on that particular vehicle.

4. That upon searching the vehicle in the DMV database, officers learned that the license plate displayed on the black Dodge Charger had been issued to an Acura MDX vehicle.

5. That when the tag appeared to be fictitious, Officer Whitley initiated a traffic stop to investigate further.

6. That when Officer Whitley initiated the traffic stop, the driver stopped fairly immediately and pulled into a Burger King parking lot.

7. That the Defendant was the driver and sole passenger of the black Dodge Charger.

8. That after the Defendant stopped, he raised both of his hands in the air upon the officer's approach.
269 N.C.App. 80
9. That Officer Whitley observed the Defendant's hands in the air, and based on Officer Whitley's training and experience, he believed that the gesture of raising one's hands in the car can indicate that a person has a gun inside the vehicle.

10. That based on his training and experience, Officer Whitley was on alert about the possible presence of a gun.

11. That when Officer Whitley explained that the stop was conducted for the fictitious tag, the Defendant immediately provided an explanation and told Officer Whitley that he had purchased the vehicle earlier that day.

12. That the Defendant presented Officer Whitley with documentation, one of which appeared to be a Bill of Sale.

13. That Officer Whitley asked the Defendant whether he had a gun and the Defendant indicated that he did not.

14. That Officer Whitley went to his patrol vehicle to check the Defendant's information in NCID, including his criminal history, and to run the VIN of the vehicle.

15. That Officer Whitley described that each step mentioned in finding 14 is part of Officer Whitley's routine practice during a traffic stop.

16. That when Officer Whitley observed the Defendant's record, there was an indication of a criminal history including: Robbery with a Dangerous Weapon, Conspiracy to Commit Robbery with a Dangerous Weapon, Assault with a Deadly Weapon with the Intent to Kill, and Discharging a Weapon into Occupied Property.

17. That Officer Whitley reasonably had concerns for his safety.

18. That when Officer

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