State v. Munoz, COA99-1338.

• Decision Date: 16 January 2001
• Docket Number: No. COA99-1338.,COA99-1338.
• Citation: 141 NC App. 675,541 S.E.2d 218
• Parties: STATE of North Carolina v. Victor Manuel MUNOZ a/k/a Victor Manuel Munoz-Bedoya.
• Court: North Carolina Court of Appeals

541 S.E.2d 218

141 NC App. 675

STATE of North Carolina v. Victor Manuel MUNOZ a/k/a Victor Manuel Munoz-Bedoya.

No. COA99-1338.

Court of Appeals of North Carolina.

January 16, 2001.

Attorney General Michael F. Easley, by Special Deputy Attorney General Douglas A. Johnston, for the State.

Polly D. Sizemore, Greensboro, for defendant-appellant.

MARTIN, Judge.

Defendant was convicted on 1 September 1995 of trafficking in cocaine by possession and trafficking in cocaine by transportation. He appeals from judgments imposing concurrent terms of imprisonment.

The State offered evidence tending to show that defendant was driving his tractor trailer truck with a car carrier north on 1-85 on 31 December 1994, and was transporting a Ford Aerostar and a Nissan Sentra at the time. He was spotted by Sergeant L.E. Lowry of the North Carolina Highway Patrol, who determined that defendant was traveling in excess of seventy-five miles per hour. When Sergeant Lowry turned his vehicle around and caught up to defendant, defendant had already been pulled over by Trooper William Gray of the Highway Patrol. Trooper Gray stopped defendant because the tractor trailer was "drifting back and forth in its lane of travel and at times driving over the divided lines to the left," did not have its headlights on, and had only the driver's side windshield wiper in operation despite steady rain. Trooper Gray requested that defendant produce his license and registration. Defendant handed the trooper his license, his registration, a notebook containing his log book, and a clipboard holding shipping documents and bills of lading.

Defendant sat in the front seat of the patrol car while Trooper Gray checked his Texas driver's license. Shortly thereafter, Trooper Lowry joined defendant and Trooper Gray in the car. Despite defendant's strong accent, the troopers determined that he could understand them because he was answering their questions appropriately. Defendant stated that he was sleepy and that he forgot to turn his headlights back on after an earlier stop.

Upon inspection of the documents provided by defendant, the troopers found inconsistencies in defendant's log book and in the shipping documentation. The clipboard contained documents entitled "bill of lading" for the Aerostar and for other vehicles that were no longer on the carrier. The bills of lading included an inspection checklist done on the vehicles. There was no bill of lading for the Sentra. Defendant produced a FAX that listed the Sentra's destination as Junior City, New Jersey, a contact number, and Miguel Angel as the contact person; there was no other documentation regarding the Sentra. Defendant told the officers that he did not know Mr. Angel.

The troopers also noted that defendant smelled strongly of grease or fuel. Defendant told the troopers that he was receiving $200 per vehicle to transport the van to Delaware and the Sentra to New Jersey. Trooper Gray sent defendant back to his truck while checking the tags of the cars on the carrier and clipboard.

Defendant returned to the patrol vehicle and sat in the back seat while the checks were completed and the trooper received notice that the license and registration were valid. Trooper Gray issued defendant a warning citation for driving out of his lanes and for operating a vehicle without headlights, and returned all of the documentation. About forty-five minutes elapsed between the time defendant was stopped until he was issued this citation.

As defendant was leaving the patrol car, Trooper Gray asked him whether there were any weapons or drugs in the truck. Defendant responded "no" to both questions. Trooper Gray then asked defendant if he could search the truck; defendant agreed and signed a consent form. Trooper Gray searched the Aerostar and found nothing. Trooper Gray noted the rear tags and the rear trunk lock mechanism were missing on the Sentra. He smelled the same grease or fuel-like odor he had detected on defendant in the interior of the car and noticed that the back seat on the passenger's side had been pulled out. He found two kilo bundles of cocaine behind the seat.

Sergeant Lowry handcuffed defendant and seated him in the back seat of the patrol car. When he was later asked to step out of the car, he was holding his beeper with the bottom off and the batteries removed. Trooper Gray took the beeper and replaced the batteries, but the memory had been cleared. The next day defendant's beeper went off; the number recorded on the beeper was the contact number listed on the FAX.

Agents from the State Bureau of Investigation questioned defendant. He stated that he did not inspect the Sentra because it was raining in Houston, Texas when he picked it up. Upon further investigation, however, the officers determined there had been no rain in the Houston area on the day defendant said he had picked up the car. In addition, the officers determined there is no such town as Junior City, New Jersey, and that the area code of the contact number shown on defendant's documentation was in New York City. A subsequent inspection of the Sentra revealed additional packages of cocaine hidden under the floor; the cocaine located in the car was estimated to have a "street value" of approximately ten million dollars.

Defendant offered evidence tending to show that he was an automobile transporter and was leased to Freight Shakers. Ruth Ontevaras testified that she is employed with AAA Auto Trucking in Las Vegas, Nevada, and that she received an order on 27 December 1994 from a person who identified himself as Miguel Angel of Houston, Texas, requesting that a 1989 Sentra be transported from Houston Auto Auction to himself at 1001 74th Street, Junior City, New Jersey. He gave her a pager number as a contact number. Angel wired Ms. Ontevaras a partial payment, and she faxed the contract to defendant on 28 December and asked him if he could pick up the car. She also instructed him to call her when he got to Virginia or New Jersey for instructions as to how much to collect for the balance. There was also evidence tending to show that defendant was dependable and had a good reputation in the transport business. Finally, defendant's former employer testified a grease or fuel-like smell is consistent with an old truck such as the one owned by defendant.

I.

Defendant first assigns error to the trial court's denial of his motion to suppress the evidence obtained in the search because he was unlawfully detained or, in the alternative, because the search was illegal. Defendant assigns error to both the court's findings of fact and conclusions of law made after a voir dire hearing.

A trial court's findings of fact made after a suppression hearing are conclusive and binding on the appellate courts if supported by competent evidence. State v. Brooks, 337 N.C. 132, 446 S.E.2d 579 (1994). Defendant argues the following finding of fact is not supported by competent evidence:

That the officer had a suspicion once he talked with the defendant about the two used cars on a big rig coming from Houston, Texas going to Delaware, and the defendant had told him he was receiving $200 per car for the transportation. A reasonable officer would have a reasonable suspicion that the economics of the situation did not match the situation as he observed it.

Defendant argues that because neither officer was knowledgeable about the auto transport business, the circumstances were not such as to raise a reasonable suspicion, especially since there was evidence that an additional vehicle had been carried earlier in the trip. We disagree. At issue is whether a reasonable officer would be suspicious based upon the information known to him, not whether those circumstances would raise the suspicions of someone knowledgeable about the trucking industry. Trooper Gray testified at the voir dire hearing that given fuel prices and the distance traveled, the $200 flat fee amount per vehicle seemed suspicious; he also acknowledged that he knew a third vehicle had been transported. The trial court's finding is supported by competent evidence.

Defendant also argues that the trial court should have included a finding that defendant cooperated with the police. "When conflicting evidence is offered at a voir dire hearing held to determine the admissibility of evidence, the trial judge must make findings of fact to show the basis of his rulings on the admissibility of the evidence offered." State v. Basden, 8 N.C.App. 401, 407, 174 S.E.2d 613, 617 (1970)

(emphasis added). A judge does not have to make findings summarizing all of the evidence before him in a voir dire hearing. State v. Dunlap, 298 N.C. 725, 259 S.E.2d 893 (1979). Therefore, we find no error in this omission.

Defendant also contends the trial court should have found that it took only a few minutes to check his driver's license, and that neither officer was able to explain the reason for the forty-five minute delay. We note that the trial court found that "[Trooper Gray] did take a few minutes to check [the] out-of-state license", and that the court's findings also described actions taken by the officers during the 45 minute period; i.e., they checked the license, the fuel stickers, and the EPIC system to see if there were any previous violations, and also reviewed defendant's log books. These findings are sufficient to explain the time involved in the stop.

Defendant next argues that the trial court's findings of fact do not support its conclusion of law that the officers had a reasonable suspicion to detain defendant. This assignment of error is reviewable de novo. Brooks, 337 N.C. at 141,

446 S.E.2d at 585. "In order to further detain a person after lawfully stopping him, an officer must have reasonable suspicion, based on specific and articulable facts, that criminal activity is afoot." State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999). In its analysis, the court must "view the facts...