State v. Simmons

• Decision Date: 05 January 2010
• Docket Number: No. COA09-268.,COA09-268.
• Citation: 688 S.E.2d 28
• Parties: STATE of North Carolina v. Maurice SIMMONS, Defendant.
• Court: North Carolina Court of Appeals

688 S.E.2d 28

STATE of North Carolina v. Maurice SIMMONS, Defendant.

No. COA09-268.

Court of Appeals of North Carolina.

January 5, 2010.

Appeal by Defendant from judgment entered 15 September 2008 by Judge William Z. Wood in Forsyth County Superior Court. Heard in the Court of Appeals 2 September 2009.

Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for State.

Glenn Gerding, Chapel Hill, for defendant.

ERVIN, Judge.

Defendant Maurice Simmons appeals from a judgment imposed by the trial court based upon his pleas of guilty to possession of marijuana with the intent to sell and deliver and felonious possession of marijuana and sentencing him to 24 months of supervised probation. On appeal, Defendant contends that the trial court erred by denying his motion to suppress evidence obtained during a search of his vehicle on the grounds that the investigating officer lacked probable cause to search a plastic bag contained in his vehicle. After careful consideration of the record in light of the applicable law, we are constrained to agree with Defendant's contention and award Defendant a new trial.

Factual Background

On 21 July 2007, Defendant was driving a 1978 Pontiac on Silas Creek Parkway in Winston-Salem when he was stopped by North Carolina State Highway Patrol Officer J.M. Byrd (Trooper Byrd) for failing to wear a seat belt. In the course of checking the status of Defendant's license, Trooper Byrd discovered that it had been revoked. As a result, Trooper Byrd cited Defendant for failing to wear a seatbelt and driving while license revoked.

While issuing the citations, Trooper Byrd noticed a white plastic grocery bag sticking out of the storage holder on the passenger-side door of Defendant's vehicle. Trooper Byrd testified that the "[grocery bag] was sticking out in plain view from my vantage point. . . ." He further stated that he immediately became suspicious that the bag contained contraband because he had found contraband in that sort of container on at least three prior occasions. Since he was unable to see the contents of the bag, Trooper Byrd asked Defendant what the bag contained. Defendant responded that the bag contained "cigar guts."

After hearing Defendant's reference to "cigar guts," Trooper Byrd concluded that he had probable cause to search the bag for contraband. As a result, Trooper Byrd placed Defendant into his police vehicle for safety and contacted other troopers for assistance. Two troopers arrived and assisted Trooper Byrd in searching the vehicle. During the search, Trooper Byrd discovered that the white plastic bag contained marijuana.

On 21 July 2007, a Magistrate's Order was issued charging Defendant with felonious possession of marijuana and possession of marijuana with the intent to sell or deliver. On 24 March 2008, the Forsyth County grand jury returned a bill of indictment alleging that Defendant "unlawfully, willfully and feloniously did possess a controlled substance to wit: more than one and one-half ounces of marijuana" and "unlawfully, willfully and feloniously did possess with intent to sell and deliver a controlled substance, namely approximately 118 grams of marijuana." On 14 July 2008, Defendant filed a Motion to Suppress in which he sought the suppression of any evidence seized as a result of the search of his vehicle on the grounds that his vehicle "was unlawfully searched and property was seized by officers in violation of the Fourth Amendment to the United States Constitution and in violation of the North Carolina Constitution. . . ."

On 15 September 2008, Defendant's suppression motion came on for hearing before the trial court. After hearing the testimony of Trooper Byrd and the argument of counsel for Defendant and the State, the trial court denied the motion on the grounds that, "once the defendant said `cigar guts,' I think the officer did have probable cause to see if there was any contraband associated with the cigar guts." After reserving his right to appeal the denial of his suppression motion as authorized by N.C. Gen.Stat. § 15A-979(b), Defendant entered pleas of guilty to felonious possession of marijuana and possession of marijuana with the intent to sell and deliver. Based upon Defendant's guilty pleas, the trial court consolidated the offenses in question for judgment and sentenced Defendant to a minimum of six and a maximum of eight months imprisonment in the custody of the North Carolina Department of Correction, and then suspended this sentence and placed Defendant on supervised probation for 24 months. Defendant noted an appeal to this Court from the trial court's judgment.

Discussion

In evaluating the correctness of a trial court's decision granting or denying a motion to suppress, its findings of fact are treated as conclusive on appeal in the event that they are supported by competent evidence, even if the record contains evidence that would support a different finding. State v. Downing, 169 N.C.App. 790, 794, 613 S.E.2d 35, 38 (2005). In the event that the trial court's factual findings have adequate evidentiary support, the relevant question on appeal becomes whether the trial court's conclusions of law embody a correct legal standard and are supported by its factual findings. State v. Coplen, 138 N.C.App. 48, 52, 530 S.E.2d 313, 317, cert. denied, 352 N.C. 677, 545 S.E.2d 438 (2000). The trial court's conclusions of law are subject to de novo review on appeal. State v. Mahaley, 332 N.C. 583, 423 S.E.2d 58 (1992), cert. denied, 513 U.S. 1089, 115 S.Ct. 749, 130 L.Ed.2d 649 (1995). Given that Defendant has failed to challenge any of the trial courts findings of fact as lacking sufficient record support, they are binding on appeal,¹ so that our review of the trial court's order denying Defendant's suppression motion is limited to determining whether the trial court's conclusion of law reflects a correct understanding of the applicable law and is supported by the trial court's findings of fact. State v. Allison, 148 N.C.App. 702, 704, 559 S.E.2d 828, 829 (2002).

In denying Defendant's suppression motion, the trial court found as a fact that:

Trooper J.M. Byrd stopped a two-tone 1978 Pontiac, a big car—it was, I think, blue and white—on Silas Creek Parkway here in Winston-Salem near the Hayworth-Miller Funeral Home. The reason he stopped the car was the driver-operator, who was the defendant, did not have a seatbelt or safety belt on.

He did find that the defendant was the operator or driver. He went to the driver's side of the vehicle, told the defendant that he was citing him for not wearing a seatbelt. The defendant gave him his driver's license and registration. The defendant did not appear nervous.

That the trooper went back to the patrol car and used his computer to check the— used either his computer or radio to check the status of the defendant's driver's licen[s]e and found that the defendant's driver's license was revoked.

Thereafter, he prepared a citation charging the defendant with a seatbelt violation and driving with license revoked. He went back to the driver's side of the defendant's vehicle. Defendant was still behind the steering wheel on that side.

He gave the citations to the defendant. Sometime during the second visit to the driver's side of the defendant's vehicle he looked at—it might have been before he gave the defendant the citations or it might have been after he gave him the citation, but he observed a white grocery bag—or white plastic grocery bag in the door on the passenger's side of the vehicle in a slot that was approximately 18 inches wide, going down the door from front to back, and about three to four inches from the inside of the car to the outside of the slot.

He asked—it was a white plastic grocery bag that, based on his experience, three prior arrests at least—or three prior seizures of marijuana, he had seen marijuana contained in similar grocery bags.

He asked the defendant what was in the bag because he was suspicious that the bag contained contraband, that—he'd found contraband, not marijuana, but contraband in that sort of bag or container on at least three prior occasions.

He asked again the defendant, "what's in the bag?" The answer from the defendant was "cigar guts." The officer took this to mean tobacco that had been removed from a cigar.

He had in the past seized marijuana with cigars. And based on his training he had heard—or learned that marijuana was sometimes placed inside cigars for the purpose of smoking the cigars. He mentioned Philly blunts as being what these were called. He could not think of any other reason to gut a cigar.

Thereafter, he felt that he had probable cause to search the bag. He detained [Defendant] in handcuffs and searched the bag. Once two other patrol officers got there, he placed the defendant in the patrol vehicle and called for two other—or other troopers. Two of them arrived. He searched the vehicle and found marijuana in it.

Based on this, the first—let me see if there's anything else on cross. He could not see in the bag, noticed no smell of contraband. The bag was stuck down in the passenger's-side door console.

And marijuana and cigars are sometimes associated, but not all times, based on the officer's training and experience. The bag was in plain view, but its contents were not in plain view. The contents of the bag, from what the officer said, could not be more than three to four inches wide, because that was the width of the slot that it was placed in.

He was suspicious of the bag, and then he felt that the statement, "cigar guts," was the—gave him probable cause to search the bag. Although he was suspicious and pretty much knew what was in the bag when he first saw it, he did not feel that he had grounds to search until he heard the words "cigar guts."

Based upon these findings of fact, the trial court made the following conclusion of law:

And, [Defense counsel], if the officer had searched the first...