State v. Wilson

• Decision Date: 31 December 2002
• Docket Number: No. COA01-1539.,COA01-1539.
• Citation: 155 NC App. 89,574 S.E.2d 93
• Parties: STATE of North Carolina v. Cedric WILSON, Jr. and Hayden Calvert.
• Court: North Carolina Court of Appeals

574 S.E.2d 93

155 NC App. 89

STATE of North Carolina v. Cedric WILSON, Jr. and Hayden Calvert.

No. COA01-1539.

Court of Appeals of North Carolina.

December 31, 2002.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Joan M. Cunningham, for the State.

Martin & Martin, P.A., by J. Matthew Martin and Harry C. Martin, Hillsborough, for defendant-appellant Cedric Wilson, Jr.

The Law Firm of Charles L. Alston, Jr., by Charles L. Alston, Jr., Charlotte, for defendant-appellant Hayden Calvert.

HUNTER, Judge.

Defendants, Cedric Wilson, Jr. ("Defendant Wilson") and Hayden Calvert ("Defendant Calvert"), appeal from their convictions of two counts of trafficking in cocaine, felonies under Section 90-95(h) of the North Carolina General Statutes. We find no error.

The State's evidence tended to show that on 8 October 1999, Trooper R.D. Mountain ("Trooper Mountain") of the North Carolina Highway Patrol observed a white Dodge following another vehicle too closely. The Dodge was less than one car length behind the vehicle and traveling approximately sixty-nine miles per hour. Trooper Mountain proceeded to follow the Dodge, which had slowed its speed to approximately fifty miles per hour in a seventy mile-per-hour zone.

The driver of the vehicle, Defendant Wilson, pulled over immediately when signaled by the officer. Defendant Calvert was the only passenger in the car. Upon request, Defendant Wilson produced his Ohio driver's license and a Florida vehicle registration in the name of Calvin Smith. During this time, Trooper Mountain observed a road atlas in the back seat and screws missing from the dashboard. There was also a strong odor of air freshener coming from inside the vehicle. Trooper Mountain asked Defendant Wilson to return with him to the patrol car so as to issue Defendant Wilson a warning ticket for following too closely, a violation under Section 20-152 of the North Carolina General Statutes.

Once in the patrol car, Trooper Mountain ran checks on Defendant Wilson's license and the vehicle registration. Trooper Mountain observed that Defendant Wilson was "extremely nervous" while in the patrol car. Trooper Mountain asked Defendant Wilson about his trip to Florida and about the vehicle. Defendant Wilson told Trooper Mountain he had accompanied Defendant Calvert to Florida for the purpose of visiting Defendant Calvert's grandmother. Defendant Wilson explained that he and Defendant Calvert traveled from Ohio to Florida in a white Plymouth Sundance. Once in Florida, that vehicle broke down and Defendant Calvert borrowed his friend's vehicle for their return trip. Defendant Wilson stated that the owner of the Dodge was planning to fly to Ohio and pick up the vehicle.

Meanwhile, Officer Rodney Crater ("Officer Crater") and Sergeant William Grey ("Sergeant Grey") arrived at the scene. Officer Crater asked Defendant Calvert to exit the Dodge while his police dog, Zero, performed an "exterior sniff." Officer Crater described Defendant Calvert also as being very nervous. Sergeant Grey asked Defendant Calvert a few questions about his trip to Florida. Defendant Calvert told Sergeant Grey defendants had gone to Florida to visit his grandmother. He said the vehicle they were driving broke down and a friend loaned them the Dodge to return home. When asked what type of car defendants had driven to Florida, Defendant Calvert said, "[i]t's a Camry—no, it's an Acura."

Trooper Mountain issued Defendant Wilson a warning ticket. As Defendant Wilson proceeded to exit the patrol car, Trooper Mountain asked Defendant Wilson if he could ask him additional questions. Defendant Wilson consented. The additional questions related to illegal weapons and drugs. Trooper Mountain then asked Defendant Wilson if he could search the Dodge. Defendant Wilson agreed and signed a consent form. Another officer arrived at the scene after Defendant Wilson gave his consent.

While searching the vehicle's engine compartment, Sergeant Grey noticed the battery looked like it had been re-sealed. The battery seemed lighter than normal, and upon testing the inside depth of the battery, a false bottom was discovered. At that point, the officers and defendants drove to the nearest gas station to further inspect the battery. When the battery was opened, the officers found cocaine inside that was later determined to have a weight of 1,995 grams. Trooper Mountain testified at trial that immediately after finding the cocaine, Defendant Calvert stated, "it's mine." Trooper Mountain asked Defendant Calvert "what" and Defendant Calvert said "cocaine."

On 19 and 20 July 2000 respectively, Defendant Wilson and Defendant Calvert filed separate motions to suppress the cocaine, each arguing that the search and seizure was unlawful. Both defendants' motions were denied. Thereafter, when the cocaine was admitted into evidence at trial, neither defendant objected. On 3 May 2001, Defendants Wilson and Calvert were found guilty of trafficking in cocaine. Both defendants appeal.

Prior to addressing both defendants' assignments of error, we note that they filed a joint record on appeal in this case which failed to include Defendant Calvert's (1) Verdict forms, (2) Judgment and Commitment, and (3) Appellate Entries. On our own initiative, this Court contacted Defendant Calvert's attorney and ordered these documents be "sent up and added to the record on appeal." N.C.R.App. P. 9(b)(5). Having received the necessary documents, we may now reach the merits of Defendant Calvert's assigned errors.

I.

Defendants first argue the trial court erred by denying their pre-trial motions to suppress all of the evidence obtained as a result of the search conducted by the officers. Specifically, defendants contend the evidence should have been suppressed because (1) Trooper Mountain's stop of their vehicle was pretextual, (2) their detainment by the officers was unreasonably long, and (3) Defendant Wilson's consent to the search was not given voluntarily. However, both defendants failed to renew their objection to the admission of this evidence at trial. Thus, we must review their argument using the "plain error" rule. State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983).

The "plain error" rule:

"[I]s always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a `fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or `where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has ` "resulted in a miscarriage of justice or in the denial to appellant of a fair trial[.]"`"

Id. (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)).

1. Pretextual Stop

In ruling on defendants' motions to suppress, the trial court in the present case concluded "Trooper Mountain had a reasonable, articulable suspicion to stop defendants' vehicle for a violation of NCGS 20-152." Defendants argue that since probable cause is the requisite standard under this statute and there were no objective facts from which the court could have concluded probable cause existed, Trooper Mountain's stopping their vehicle was a mere pretext for investigating them for illegal drug possession. We disagree.

"Although the trial court's findings of fact are generally deemed conclusive where supported by competent evidence, `a trial court's conclusions of law regarding whether the officer had reasonable suspicion [or probable cause] to detain a defendant is reviewable de novo.'" State v. Young, 148 N.C.App. 462, 466, 559 S.E.2d, 814, 818 (2002)

(alteration in original) (quoting State v. Kincaid, 147 N.C.App. 94, 97, 555 S.E.2d 294, 297 (2001)),

appeal dismissed and disc. review denied, 355 N.C. 500, 564 S.E.2d 233 (2002). After conducting such a review, we conclude probable cause was the requisite standard in this case and Trooper Mountain did have probable cause to stop defendants' vehicle.

In Young, Judge K. Edward Greene wrote a concurring opinion that addressed when reasonable suspicion or probable cause is required in the context of a traffic stop. His concurring opinion stated in pertinent part:

While there are instances in which a traffic stop is also an investigatory stop, warranting the use of the lower standard of reasonable suspicion, the two are not always synonymous. A traffic stop made on the basis of a readily observed traffic violation such as speeding or running a red light is governed by probable cause. See, e.g., State v. McClendon, 130 N.C.App. 368, 374, 502 S.E.2d 902, 906 (1998)

(officer had probable cause to stop vehicle and issue citation for speeding and following too closely), affirmed, 350 N.C. 630, 517 S.E.2d 128 (1999); State v. Hamilton, 125 N.C.App. 396, 399, 481 S.E.2d 98, 100 (officer had probable cause to stop the vehicle for the purpose of issuing seat belt citations because he had observed that both the driver and the defendant were not wearing seat belts), disc. review denied, 345 N.C. 757, 485 S.E.2d 302 (1997); see also N.C. Gen.Stat. § 15A-302(b) (1999) (an officer may issue a citation to any person who he has probable cause to believe has committed a misdemeanor or infraction). Probable cause is "a suspicion produced by such facts as indicate a fair probability that the person seized has engaged in or is engaged in criminal activity." State v. Schiffer, 132 N.C.App. 22, 26, 510 S.E.2d 165, 167,

disc. review denied, 350 N.C. 847, 539 S.E.2d 5 (1999). On the other hand, a traffic stop based on an officer's [reasonable] suspicion that a traffic violation is being committed, but which can only be verified by stopping the vehicle, such as drunk driving or driving with a revoked license, is classified as an investigatory stop, also known as a Terry stop. See, e.g., State v. Kincaid, , 555 S.E.2d 294, 297-98 (2001) (officer had reasonable suspicion...