State v. Kincaid, COA00-1210.

• Decision Date: 06 November 2001
• Docket Number: No. COA00-1210.,COA00-1210.
• Citation: 147 NC App. 94,555 S.E.2d 294
• Parties: STATE of North Carolina v. Alvin Lewis KINCAID, Sr.
• Court: North Carolina Court of Appeals

555 S.E.2d 294

147 NC App. 94

STATE of North Carolina v. Alvin Lewis KINCAID, Sr.

No. COA00-1210.

Court of Appeals of North Carolina.

November 6, 2001.

Attorney General Roy Cooper, by Assistant Attorney General William B. Crumpler and Agency Legal Specialist, Kathy Jean Moore, for the State.

Howard C. McGlohon, Asheville, for defendant-appellant.

McGEE, Judge.

Alvin Lewis Kincaid, Sr. (defendant) was indicted on 7 February 2000 for possession with intent to sell or deliver a controlled substance Schedule IV, maintaining a place to keep controlled substances, and two counts of being a habitual felon. Defendant filed a motion to suppress the evidence against him on 21 February 2000, stating he reserved the right to appeal if the motion was denied and he subsequently entered a guilty plea. At a hearing held on 20 March 2000, defendant's motion to suppress was denied. Defendant pled guilty to the charges and was sentenced to seventy to ninety-three months in prison. Defendant appeals from the denial of his motion to suppress.

The State presented as evidence the testimony of Sergeant Timothy B. Splain of the Asheville Police Department, the arresting officer, and his written statement prepared the night of defendant's arrest. This evidence tended to show that Sergeant Splain was driving on Montford Avenue in Asheville, North Carolina on 17 September 1999, when defendant drove past him. When defendant passed Sergeant Splain, defendant quickly looked away and raised his hand in an apparent attempt to conceal his face. Sergeant Splain testified he knew defendant's license had been revoked for two to three years. In the time Sergeant Splain had known defendant, he had seen defendant travel either as a passenger in a car or riding a moped, but never driving a car. Sergeant Splain followed defendant for a short distance. The officer stopped defendant and told him he had been stopped because Sergeant Splain suspected defendant had a revoked license. Defendant produced a license and gave it to the officer. Sergeant Splain allowed defendant to enter a convenience store while Sergeant Splain ran a check on the license. The license check showed the license was valid, and Sergeant Splain returned the license and registration to defendant.

Sergeant Splain then asked if he could question defendant concerning another matter. Defendant consented. Sergeant Splain explained that he had heard defendant routinely sold marijuana. He asked, "Alvin, I am going to ask you for consent to search your vehicle for drugs, do you have anything on you or in the car that I need to be concerned with?" Defendant looked down at the front seat and answered that there was marijuana under the front seat. Sergeant Splain retrieved a small bag containing marijuana from under the front seat of defendant's car. Sergeant Splain then radioed for a K-9 unit to search for more drugs, but defendant answered, "you don't need the dog, there is more under the other seat." After Sergeant Splain recovered more marijuana under the other seat, he placed defendant under arrest.

Defendant testified and substantiated Sergeant Splain's testimony up to the point where Sergeant Splain asked defendant if he had anything the officer should know about. Defendant testified he answered no, and that Sergeant Splain patted him down. Defendant testified that Sergeant Splain searched his vehicle without his consent, radioed for a K-9 unit, was told they did not have one available, and then returned and continued searching the car without defendant's consent. Defendant denies ever saying there was marijuana under the seat.

At the suppression hearing, the trial court adopted Sergeant Splain's statement in the trial court's findings of fact and made the following conclusions of law: the officer had reasonable suspicion to stop defendant, even though the suspicion proved to be wrong; although the officer never told defendant he was free to leave, under the Fourth Amendment defendant was free to leave after the officer returned the license and registration; and even though the officer did not receive consent to search the vehicle, defendant's responses gave the officer probable cause to believe a crime had been committed. Therefore, the trial court concluded the stop and search were reasonable.

I.

Defendant first argues the trial court erred in denying his motion to suppress evidence because Sergeant Splain made an illegal stop of defendant's vehicle.

A "trial court's findings of fact following a suppression hearing concerning the search of the defendant's vehicle are conclusive and binding on the appellate courts when supported by competent evidence." State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994). However, a trial court's conclusions of law regarding whether the officer had reasonable suspicion to detain a defendant is reviewable de novo. State v. Munoz, 141 N.C.App. 675, 682, 541 S.E.2d 218, 222,

cert. denied,

353 N.C. 454, 548 S.E.2d 534 (2001) (citing Brooks at 141, 446 S.E.2d at 585).

The "Fourth Amendment's protection against `unreasonable ... seizures' includes seizure of the person." California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 1549, 113 L.Ed.2d 690, 696 (1991). These seizures include "brief investigatory detentions such as those involved in the stopping of a vehicle." State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). An "investigatory stop must be justified by `a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'" Id. (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 362 (1979)). To determine whether this reasonable suspicion exists, a court "must consider `the totality of the circumstances—the whole picture.'" Watkins at 441, 446 S.E.2d at 70 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981)).

The stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training. The only requirement is a minimal level of objective justification, something more than an "unparticularized suspicion or hunch."

Watkins at 441-42, 446 S.E.2d at 70 (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989))(other citations omitted).

In the case before us, Sergeant Splain testified that "[i]t was [his] understanding that [defendant's] licenses were revoked. And in the two or three years that [he] had known [defendant] [he] had never seen him drive an automobile." He further testified that he had only seen defendant ride in a car as a passenger or ride a moped. He also testified that defendant attempted to conceal his identity when he saw Sergeant Splain. Although the officer's suspicion turned out to be incorrect, we nonetheless hold that under this combination of circumstances, Sergeant Splain had a reasonable suspicion to stop defendant based on articulated and specific facts; therefore, the stop by Sergeant Splain was legal. We overrule this assignment of error.

II.

Defendant next argues the trial court erred in dismissing his motion to suppress evidence because Sergeant Splain no longer had grounds to detain defendant after the officer returned defendant's license and registration. Defendant contends any reasonable suspicion the officer may have had evaporated after Sergeant Splain learned defendant had a valid license. He also contends he was still being detained after the officer returned the license and registration but did not tell defendant he was free to leave.

The "`scope of the detention must be carefully tailored to its underlying justification.'" State v. Morocco, 99 N.C.App. 421, 427-28, 393 S.E.2d 545, 549 (1990)(quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229, 238 (1983)). In the case before us, the officer's underlying justification was to determine if defendant was driving with a valid license. His scope of detention must be tailored to ascertaining whether the license was in fact revoked. Defendant is correct in asserting the reasonable suspicion the officer had in order to stop defendant for a possible revoked license would not be sufficient to detain defendant any longer than necessary to dispel the officer's suspicion. However, once Sergeant Splain determined defendant had a valid license, he returned the license and registration to defendant.

Although there is no North Carolina case law which specifically states a stop is over when an officer returns a person's license and registration, there is federal case law which suggests, subject to a totality of the circumstances test, that once an officer returns the license and registration, the stop is over and the person is free to leave. In United States v. Elliott, 107 F.3d 810 (10th Cir.1997), the Tenth Circuit Court of Appeals stated that our federal courts

have consistently concluded that an officer must return a driver's documentation before a detention can end. However, ... this is not always sufficient to demonstrate that an encounter has become consensual.... [T]he return of a driver's documents would not end the detention if there was evidence of a "coercive show of authority, such as the presence of more than one officer, the display of a weapon, physical touching by the officer, or his use of a commanding tone of voice indicating that compliance might be compelled."

Id. at 814 (quoting United States v. Turner, 928 F.2d 956, 959 (10th Cir.),cert. denied, 502 U.S. 881, 112 S.Ct. 230, 116 L.Ed.2d 187 (1991)). Furthermore, "the return of documentation would render a subsequent encounter consensual only if `a reasonable person under the circumstances would believe he was free to leave or disregard the officer's request for information.'" Elliott at 814 (quoting United States v. McKneely, 6 F.3d 1447, 1451 (10th...