State v. Stone

• Decision Date: 05 September 2006
• Docket Number: No. COA05-1418.,COA05-1418.
• Citation: 634 S.E.2d 244
• Parties: STATE of North Carolina v. Timothy STONE.
• Court: North Carolina Court of Appeals

634 S.E.2d 244

STATE of North Carolina v. Timothy STONE.

No. COA05-1418.

Court of Appeals of North Carolina.

September 5, 2006.

Appeal by defendant from order on defendant's motion to suppress entered 16 December 2004 by Judge Albert Diaz and from judgment dated 22 March 2005 by Judge J. Gentry Caudill in Superior Court, Mecklenburg County. Heard in the Court of Appeals 7 June 2006.

Attorney General Roy Cooper, by Special Deputy Attorney General Douglas A. Johnston, for the State.

Jarvis John Edgerton, IV, Raleigh, for defendant-appellant.

McGEE, Judge.

Timothy Stone (defendant) was convicted of possession with intent to sell or deliver cocaine and of having attained the status of habitual felon. The trial court sentenced defendant to 130 months to 165 months in prison.

Defendant filed a motion to suppress evidence in August 2003, arguing he was entitled to "an order suppressing any and all evidence obtained during a search of the person of defendant on October 7, 2002, for the reason that such evidence was obtained as a result of the illegal search and seizure of defendant by Officer R.E. Correa of the Charlotte-Mecklenburg Police Department[ ]" (Officer Correa). The trial court conducted a suppression hearing on 8 December 2004 and in an order filed 16 December 2004, denied defendant's motion to suppress.

In its order denying defendant's motion to suppress, the trial court made the following uncontested findings of fact:

1. At approximately 3:30 a.m. on October 7, 2002, [Officer Correa] was on routine patrol in the Nations Ford area of Charlotte, North Carolina.

2. [Officer] Correa has been a CMPD officer for over six years. The Nations Ford area is part of the Steel Creek Division, where he has worked for three years. This particular area has a high incidence of drug and prostitution offenses.

3. On this date, [Officer] Correa noticed a burgundy Oldsmobile [ (the vehicle) ] leaving the Villager Lodge motel . . . .

4. [Officer] Correa began following the [vehicle]. The [vehicle] accelerated and turned right onto Farmhurst Drive. [Officer] Correa estimated that the [vehicle] was traveling at 50 mph, approximately 15 mph over the speed limit. [Officer] Correa, however, did not activate his blue lights or make any effort to stop the [vehicle].

5. The [vehicle] pulled into the parking lot of an apartment complex on Farmhurst Drive. [Officer] Correa pulled in directly behind the [vehicle] and shone his spot light on the vehicle.

6. [Officer] Correa saw two people in the [vehicle]. He also saw that the vehicle's license plate was displayed on the rear window instead of the bumper. Finally, he noticed that the passenger (in this case, . . . [d]efendant) was moving from side to side.

7. [Officer] Correa approached the driver's side window. The driver appeared very nervous, his hands were shaking, and he would not look at [Officer] Correa.

. . .

10. [Officer] Correa then turned his attention to . . . [d]efendant, who was not wearing a seatbelt. [Officer] Correa recognized . . . [d]efendant, having previously received an anonymous tip that [d]efendant was a drug dealer. He asked [d]efendant for identification, but he could not produce one.

11. [Officer] Correa asked [d]efendant to step to the back of the vehicle. Defendant complied. [Officer] Correa asked [d]efendant if he had any drugs or weapons on his person. Defendant said no, which prompted [Officer] Correa to ask for consent to search. Defendant gave consent.

12. Defendant was wearing a jacket and a pair of drawstring sweat pants.

13. During the initial search, [Officer] Correa found $552.00 in cash in the lower left pocket of [d]efendant's sweat pants. After advising [d]efendant that it was not safe to carry such a large amount of cash in that manner as it could easily fall out, [Officer] Correa again asked [d]efendant if he had anything on him. Once again, [d]efendant denied having drugs or weapons and authorized [Officer] Correa to continue the search. By this time, Officer Gerson Herrera [ (Officer Herrera) ] had arrived as the backup officer.

14. [Officer] Correa checked the rear of [d]efendant's sweat pants and then moved his hands to the front of [d]efendant's waistband. At that point, [Officer] Correa pulled [d]efendant's sweat pants away from his body and trained his flashlight on . . . [d]efendant's groin area. Defendant objected, but by that time, both [Officer] Correa and [Officer] Herrera had already seen the white cap of what appeared to be a pill bottle tucked in between [d]efendant's inner thigh and testicles.

15. [Officer] Correa has made several arrests in the past after finding drugs concealed in a suspect's groin area. He immediately suspected that the pill bottle contained contraband. As a result, he and [Officer] Herrera grabbed the protesting [d]efendant and handcuffed him. [Officer] Correa then retrieved the pill bottle from [d]efendant's groin area.

16. Inside the bottle were approximately 130 rocks of crack cocaine weighing 26 grams.

The trial court concluded that Officer Correa "`seized' the occupants of the [vehicle] when he pulled in behind them in the apartment parking lot[,]" and that Officer Correa's traffic stop of the vehicle "was based on a `reasonable suspicion' (if not probable cause) that the driver had been speeding (in violation of N.C. Gen.Stat. § 20-141(b)) and was not properly displaying the vehicle's license tag (in violation of N.C. Gen.Stat. § 20-63(d))." The trial court further concluded that Officer Correa "did not violate [d]efendant's constitutional rights by asking him to step out of the [vehicle]." The trial court also concluded that "[b]efore seeking [d]efendant's consent to search, [Officer] Correa asked [d]efendant whether he had any drugs or weapons on his person. Thus, [d]efendant was on notice as to what [Officer] Correa would be looking for during a search." The trial court concluded that "although [Officer] Correa's search was intrusive, in the absence of [d]efendant placing any particular limit on the scope of the search, the Court finds that it was reasonable." The trial court further concluded as follows:

13. Additionally, the relevant attendant circumstances, including [Officer] Correa's prior sighting of the [vehicle] in a high drug area, the anonymous tip that [d]efendant was a drug dealer, the time of night, the driver's evasive demeanor and responses, and the large wad of cash found on [d]efendant's person, gave [Officer] Correa sufficient reason to suspect that [d]efendant might be hiding contraband and/or weapons somewhere on his person, including his groin area.

14. The search itself was limited and focused (in that the police did not remove or lower [d]efendant's pants), and took place in a private apartment complex parking lot during the early morning hours, with no opportunity for onlookers (other than the police) to gawk at . . . [d]efendant. On these facts, the Court finds that [Officer] Correa did not unlawfully impinge on [d]efendant's privacy interests.

The evidence introduced at trial was substantially similar to the evidence introduced at the suppression hearing. Defendant appeals.

Where a defendant has "failed to assign error to any findings of fact, our review [of the denial of a motion to suppress] is limited to the question of whether the trial court's findings of fact, which are presumed to be supported by competent evidence, support its conclusions of law and judgment." State v. Pickard, ___ N.C.App. ___, ___, 631 S.E.2d 203, 206 (2006). We apply de novo review to a trial court's conclusions of law. State v. Hernandez, 170 N.C.App. 299, 304, 612 S.E.2d 420, 423 (2005).

I.

Defendant argues the trial court erred by concluding that (1) Officer Correa seized the occupants of the vehicle when he pulled behind the vehicle and (2) Officer Correa did not violate defendant's constitutional rights by asking defendant to step out of the vehicle. "The Fourth Amendment to the Constitution of the United States and Section 20 of Article I of the North Carolina Constitution prohibits unreasonable searches and seizures." State v. Sanchez, 147 N.C.App. 619, 623, 556 S.E.2d 602, 606 (2001), disc. review denied, 355 N.C. 220, 560 S.E.2d 358 (2002). The prohibition against unreasonable searches and seizures applies to "`seizures of the person, including brief investigatory detentions such as those involved in the stopping of a vehicle.'" Id. (quoting State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994)).

"An investigatory stop must be justified by `a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'" Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (quoting Brown v Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357, 362 (1979)). "Similarly, an officer may frisk a person where the officer reasonably suspects that `criminal activity may be afoot and that the [person] with whom he is dealing may be armed and presently dangerous[.]'" State v. Shearin, 170 N.C.App. 222, 226, 612 S.E.2d 371, 375 (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968)), disc. review denied, 360 N.C. 75, 624 S.E.2d 369 (2005). In determining whether reasonable suspicion existed for a stop or frisk, a trial court must consider the totality of the circumstances. Shearin, 170 N.C.App. at 226, 612 S.E.2d at 376. Police may order passengers from a vehicle when they have made a lawful traffic stop of the vehicle. State v. Pulliam, 139 N.C.App. 437, 440-41, 533 S.E.2d 280, 283 (2000) (citing Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)).

In the present case, the unchallenged findings of fact show that Officer Correa observed the vehicle driving in excess of the speed limit. Officer Correa pulled behind the vehicle and shined his spot light on the vehicle. He saw that the vehicle's license plate was displayed in the rear window, rather than on the bumper. Officer...