State v. Parker
| Decision Date | 04 October 2022 |
| Docket Number | COA21-519 |
| Citation | 878 S.E.2d 661 |
| Parties | STATE of North Carolina v. Kyle Earl PARKER, Defendant. |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Assistant Attorney General Neal T. McHenry, for the State.
Shawn R. Evans, Wilmington, for defendant-appellant.
¶ 1 Defendant Kyle Earl Parker appeals from two judgments for attempted heroin trafficking by possession, possession of a firearm by a felon, and other charges entered following guilty pleas, one of which was an "Alford guilty plea," that preserved his right to appeal an order denying his Motion to Suppress. Pursuant to his plea arrangement, Defendant also appeals the order denying his Motion to Suppress. Because (1) the trial court's Findings of Fact are supported by competent evidence, (2) the area adjacent to a gas pump at a service station is a public vehicular area under North Carolina General Statute § 20-4.01(32) (eff. 12 July 2017 to 20 June 2019) and (3) the trial court's Findings of Fact support its Conclusions of Law finding probable cause, we affirm the trial court's order denying the Motion to Suppress.
¶ 2 As to the drug and firearm possession charges at issue in this appeal,1 the State's evidence from the suppression hearing tended to show Detective King and Master Corporal R.S. Cole of the Guilford County Sheriff's Office were part of a narcotics investigation into "several folks" including Defendant and Ms. Dalya Van. The investigation began at the start of May 2019 and initially focused on Ms. Van and others because a "confidential and reliable informant" made a series of "controlled purchases of illegal narcotics," including heroin, "from Ms. Van and possibly others."
¶ 3 As part of this investigation, on 28 May 2019 the informant contacted Ms. Van about purchasing a kilogram of heroin, with Corporal Cole listening on speaker phone. During this conversation, the informant arranged to meet Ms. Van at a hotel to get a sample of the drugs. At the hotel, Ms. Van joined the informant in their car, and they traveled, with police officers including Detective King following, to apartments where a black SUV pulled up to meet them. After other officers told Detective King that Ms. Van had gotten out of her vehicle and into a "black SUV," specifically a 2019 Chevrolet Tahoe, Detective King drove past the black SUV to get its license plate number and reported it to Corporal Cole. Corporal Cole then "ran the registration plate through the system" and connected the black SUV to Defendant. He also had previously received information about Defendant during this drug investigation. Corporal Cole then informed the other officers, including Detective King, of the connection between the black SUV and Defendant as well as the information Corporal Cole had received about Defendant as part of the drug investigation. Ms. Van then got out of the black SUV and into the car she came in, and both vehicles left.
¶ 4 After Ms. Van and the informant got back to the hotel, Ms. Van left, and the police met with the informant to get the sample Ms. Van had given them. Corporal Cole tested the sample and confirmed it was heroin. The informant then arranged with Ms. Van to purchase two kilograms of heroin at the same hotel. At this point, Corporal Cole told the police officers conducting surveillance, including Detective King, to look out for the black SUV. Detective King then set up on the "one main road" leading to the hotel.
¶ 5 During this surveillance, Detective King's car ran low on gas, so he drove across the street from his lookout position to a gas station. At the gas station, Detective King saw Defendant and the black SUV, which he confirmed had the same license plate number, "at or about the same time that the source" with the larger supply of heroin was supposed to arrive at the hotel across the street. Detective King then alerted Corporal Cole, who told Detective King that the police "Special Emergency Response Team" ("SERT") would be there soon to detain Defendant.
¶ 6 Once SERT arrived and detained Defendant, Detective King walked around to the passenger side of Defendant's vehicle because the police "were specifically interested" in the larger supply of heroin they "had ordered" and that they "assum[ed] [Defendant] was bringing." Once there, Detective King smelled vinegar—which in his "training and experience" is what heroin smells like—through the open window and saw "what appeared to be ... two kilograms of heroin" in a cereal box based on his training and experience about how drugs are packaged. Detective King notified Corporal Cole of the suspected heroin, and Corporal Cole joined him at the gas station. Corporal Cole also observed what appeared to be heroin in a cereal box in the front seat and smelled through the open window "a distinct odor" that "in [his] training and experience ... smelled like heroin." After taking pictures at the scene, Corporal Cole searched the vehicle and recovered a little more than two kilograms of heroin from the cereal box as well as a loaded gun, cell phones, and paperwork with Defendant's name on it. The police then arrested Defendant based on the items recovered from the search.
¶ 7 On 5 August 2019, Defendant was indicted for possession of a firearm by a felon, possession of a stolen firearm, two counts of trafficking opium or heroin by possession and by transportation, maintaining a vehicle used for keeping and selling a controlled substance, and conspiracy to traffic opium or heroin.
¶ 8 Following his indictment, Defendant filed a Motion to Suppress on 25 November 2020. Specifically, Defendant challenged the search of his vehicle and seizure of property therefrom on the grounds the search was without a warrant or any "other lawful justification" and therefore violated the Fourth Amendment of the United States Constitution as well as the North Carolina Constitution.
¶ 9 On 3 December 2020, the trial court held a hearing on Defendant's Motion to Suppress. At the hearing, the State's two witnesses were Corporal Cole and Detective King. They testified to the events recounted above.
¶ 10 Following this testimony, the trial court heard arguments from Defendant's counsel and from the State. Defendant's attorney argued the officers’ testimony conflicted on whether Ms. Van arrived on her own or with the confidential informant, and the police did not have sufficient evidence to link the black SUV to Defendant. Specifically regarding the suppression motion, counsel argued officers did not have probable cause to arrest Defendant for drug trafficking immediately upon seeing him at the gas station—although she conceded the officers could properly arrest Defendant on outstanding warrants—such that the officers could not search the vehicle for evidence related to an arrest on drug trafficking charges. Defendant's counsel then argued the contraband was not in plain view following Defendant's arrest. Finally, Defendant's attorney argued there were no exigent circumstances so the police could have obtained a search warrant first. Based on these arguments, Defendant contended "the contraband discovered in the vehicle should be suppressed in this case."
¶ 11 The State argued based on the totality of the circumstances, the officers had probable cause to detain Defendant and search the vehicle. The prosecutor also clarified the search was valid under the automobile exception, instead of as a search incident to arrest, so the officers only needed probable cause.
¶ 12 On 19 January 2021, the trial court entered an order denying the Motion to Suppress. Defendant challenges the trial court's Findings of Fact 1, 7–10, and 13–14. In Finding 1, the trial court found the testimony of both officers "to be credible." Findings 7–14 recount Ms. Van meeting with the informant, arranging for a sample that later tested positive as heroin, and the police observing the black SUV associated with Defendant when Ms. Van got in it to retrieve the sample. Defendant does not challenge the remaining Findings of Facts. The unchallenged Findings recount the background of the investigation, the informant ordering the larger quantity of heroin and associated surveillance, Detective King identifying Defendant and the black SUV at the gas station as well as Defendant's subsequent detention, and the smell of vinegar and sight of heroin in the car by both officers leading to the search of the car and recovery of the heroin and other items listed above.
¶ 13 From all the Findings of Fact, the trial court concluded "[t]he search of the vehicle that ultimately led to recovery of the contraband was supported by probable cause." Specifically, the trial court concluded police had probable cause "to conduct a search of the vehicle being driven by the Defendant, including the passenger seat area of the vehicle, the console and other areas where the contraband including the heroin and firearm were found" because of:
the time and location of the encounter with the Defendant; the Defendant's connection with the Tahoe; the officers’ observation of the Tahoe being involved in a heroin transaction earlier in the day; observation of the Defendant driving the Tahoe alone; an odor consistent with heroin emanating from the vehicle; and a substance consistent with heroin observed by the officers in plain view inside the vehicle ....
On those grounds, the trial court denied Defendant's Motion to Suppress.
¶ 14 Following the trial court's denial of his Motion to Suppress, Defendant accepted a plea deal to reduced charges of: two counts of attempting to traffic by possession of 28 or more grams of heroin, and one count each of possession of a firearm by a felon, conspiracy to possess heroin, and malicious conduct by a prisoner. The prosecutor summarized the facts to support Defendant's guilty plea in a manner that aligned with the testimony at the suppression hearing and the trial court's order denying Defendant's Motion to Suppress....
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