State v. Scott
| Decision Date | 07 February 2023 |
| Docket Number | COA22-326 |
| Parties | STATE OF NORTH CAROLINA v. DARYL SPENCER SCOTT |
| Court | North Carolina Court of Appeals |
Heard in the Court of Appeals 21 September 2022.
Appeal by Defendant from a judgment entered 21 September 2021 by Judge William W. Bland in New Hanover County Superior Court No. 20 CRS 51367
Attorney General Joshua H. Stein, by Assistant Attorney General T. Hill Davis, III, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for Defendant.
Defendant appeals from a conviction of possessing a firearm as a felon alleging the trial court erred when it denied his motion to suppress evidence of a firearm found during a search he contends was unconstitutional and increased his prior record level at sentencing. We disagree.
Wilmington Police Officer Pagan was surveilling the parking lot of Sam's Minimart in Wilmington on 14 February 2020. The parking lot was located in an area of the city where drug sales and shootings were not uncommon. He observed Defendant's Honda Accord park on the lot next to a silver sedan whose owner Officer Pagan knew had a history of drug dealing. Defendant and a passenger exited the Honda and approached the silver sedan. Shortly thereafter, Defendant and his passenger returned to the Honda and drove away. Officer Pagan followed them a short distance in his patrol car and noticed the Honda's license plate appeared expired. He then activated the blue lights on his patrol car to conduct a traffic stop of Defendant's vehicle. Defendant promptly pulled over.
Officer Pagan approached Defendant and informed him that he was stopped because of the expired license plate. Defendant did not appear nervous and responded that the registration should not be expired. Upon request, Defendant produced his driver's license but was unable to locate the car's registration. Officer Pagan returned to his patrol vehicle with Defendant's license where he learned from his car's computer system that Defendant was designated as a "validated gang member" and had previously been charged with murder. Relevant to this case, Officer Pagan was aware of a local gang war between two prominent gangs at the time. Officer Pagan retrieved a clip board from his trunk and briefed an arriving officer of the situation before re-approaching Defendant.
Upon returning to Defendant's vehicle, Officer Pagan asked Defendant to step out of the vehicle so that he could perform a weapons frisk. Defendant complied, and Officer Pagan frisked him at the rear of the Honda. Officer Pagan did not find a weapon on Defendant's person. He then asked the three passengers to exit the vehicle as backup officers arrived. After Officer Pagan performed a non-intrusive pat down of Defendant, Defendant informed him that a pocketknife was present in the front, driver-side door compartment. With this information, Officer Pagan returned to the vehicle to retrieve the pocketknife, and Defendant asked Officer Pagan if he would retrieve Defendant's phone near the center console. Officer Pagan obliged Defendant and found an open beer can in the center console. He then rummaged through the front, driver-side door compartment but did not initially find a pocketknife, so he next peered under the driver's seat where he discovered a pistol.
After securing the pistol, Officer Pagan ordered Defendant and all passengers be detained and placed in handcuffs. A further search of the passenger compartment revealed a scale and bags consistent with heroin paraphernalia. On 24 August 2020, Defendant was indicted for possessing a firearm as a felon in violation of N.C. Gen. Stat. § 14-415.1 (2021) and possessing drug paraphernalia in violation of N.C. Gen. Stat. § 90-113.22(A) (2021).
On 21 September 2021, in a pretrial motion, Defendant moved to suppress evidence of the firearm. Defendant argued that Officer Pagan's frisk of Defendant's vehicle was constitutionally impermissible and therefore produced unlawfully acquired evidence. Defendant did not argue that the traffic stop was impermissibly extended beyond the scope of Officer Pagan's original mission. The trial court denied Defendant's motion.
During his trial, which took place on 23 September 2021, Defendant generally objected to the evidence obtained during the frisk of his vehicle, specifically the firearm. The trial court overruled Defendant's objection. On the same day, the jury found Defendant guilty of possession of a firearm by a felon and not guilty of possession of drug paraphernalia.
During the sentencing hearing, the trial court calculated Defendant's sentence by using a prior record level worksheet for structured sentencing. The worksheet listed a subtotal of nine points from the prior crimes of second-degree murder and three misdemeanor convictions. The court then added one point for committing a crime "while the offender was on probation, parole, or post-release supervision." Thus, Defendant's prior record points totaled ten points, and he was sentenced as a prior record level IV offender. Absent the additional point, Defendant would have been sentenced as a prior record level III offender.
The trial court sentenced Defendant to an active term of a minimum of nineteen and a maximum of thirty-two months imprisonment.
Defendant appeals as of right pursuant to N.C. Gen. Stat. § 15A-1444(a) (2021). He contests the trial court's denial of his motion to suppress evidence and contends he did not receive notice of the additional point for committing a crime while on probation, parole, or post-release supervision and was, therefore, sentenced improperly.
We review the denial of a motion to suppress to determine "whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law." State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citing State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994)). We review conclusions of law de novo. State v. Johnson, 225 N.C.App. 440, 443-44 (2013). "Under a de novo standard of review, this Court considers the matter anew and freely substitutes its own judgment for that of the trial court." Reese v. Mecklenburg Cnty., 200 N.C.App. 491, 497, 685 S.E.2d 34, 38 (2009) (citations omitted).
We review "[t]he determination of an offender's prior record level [as] a conclusion of law that is subject to de novo review on appeal." State v. Bohler, 198 N.C.App. 631, 633, 681 S.E.2d 801, 804 (2009) (citing State v. Fraley, 182 N.C.App. 683, 691, 643 S.E.2d 39, 44 (2007)).
Defendant first alleges error with the trial court's denial of his motion to suppress evidence of the firearm. Defendant argues that the evidence should have been suppressed because it was obtained in violation of Defendant's right to be free from an unreasonable search and seizure and challenges the trial court's conclusion of law holding otherwise. Specifically, Defendant argues that Officer Pagan improperly frisked Defendant and his vehicle and impermissibly extended the duration of the traffic stop. We are not persuaded.
During the motion to suppress, the trial court concluded:
But up to that point of seeing the firearm under the driver's seat in which the defendant had been driving, the court does not find any constitutional violation of the defendant's rights. The officer has conducted a legitimate stop and taken appropriate actions for his safety and for the safety of the defendant as well as the passengers in the defendant's vehicle; and therefore the motion to suppress is respectfully denied.
We review this conclusion of law de novo to determine if Officer Pagan overstepped his constitutional limits.
The State may not unreasonably seize or search people. N.C. Const. art. I, § 20; U.S. Const. amend. IV. If it does, evidence obtained from that illegal conduct must be suppressed at trial. State v. Pope, 333 N.C. 106, 113-14, 423 S.E.2d 740, 744 (1992). "[S]earches 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." State v. Fizovic, 240 N.C.App. 448, 452, 770 S.E.2d 717, 720 (2015) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967)).
Defendant concedes, and we agree, that Officer Pagan's initial traffic stop was proper. "[A] traffic stop is considered a 'seizure'" for our purposes. State v. Otto, 366 N.C. 134, 136, 726 S.E.2d 824, 827 (2012). Officer Pagan observed Defendant's vehicle bearing an expired license plate, and we have held that this observation alone supports a seizure. State v. Edwards, 164 N.C.App. 130, 136, 595 S.E.2d 213, 218 (2004). We therefore next evaluate Defendant's claims that the frisk and time extension were unjustified and, therefore, unconstitutional.
If during a lawful stop, an officer "reasonably believes that the person is armed and dangerous, the officer may frisk the person to discover a weapon or weapons." State v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998). (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). An officer may also frisk a vehicle to include even the passenger compartment and other such places where a "suspect may gain immediate control of weapons" but "limited to those areas in which a weapon may be placed or hidden." State v. Johnson, 378 N.C. 236, 2021-NCSC-85, ¶ 16 (quoting Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3481, 77 L.Ed.2d 1201, 1220 (1983)). This is a limited search and may only be justified if "the officer...
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