Appeal by defendant from judgment dated 27 March 2000 by Judge
Dennis J. Winner in Superior Court, Buncombe County. Heard in the
Court of Appeals 12 September 2001.
Attorney General Roy Cooper, by Assistant Attorney General
William B. Crumpler and Agency Legal Specialist Kathy Jean
Moore, for the State.
Howard C. McGlohon for defendant-appellant.
McGEE, Judge.
Alvin Lewis Kincaid, Sr. (defendant) was indicted on 7
February 2000 for possession with intent to sell or deliver a
controlled substance Schedule IV, maintaining a place to keep
controlled substances, and two counts of being a habitual felon.
Defendant filed a motion to suppress the evidence against him on 21
February 2000, stating he reserved the right to appeal if the
motion was denied and he subsequently entered a guilty plea. At a
hearing held on 20 March 2000, defendant's motion to suppress was
denied. Defendant pled guilty to the charges and was sentenced to
seventy to ninety-three months in prison. Defendant appeals from
the denial of his motion to suppress.
The State presented as evidence the testimony of Sergeant
Timothy B. Splain of the Asheville Police Department, the arresting
officer, and his written statement prepared the night ofdefendant's arrest. This evidence tended to show that Sergeant
Splain was driving on Montford Avenue in Asheville, North Carolina
on 17 September 1999, when defendant drove past him. When
defendant passed Sergeant Splain, defendant quickly looked away and
raised his hand in an apparent attempt to conceal his face.
Sergeant Splain testified he knew defendant's license had been
revoked for two to three years. In the time Sergeant Splain had
known defendant, he had seen defendant travel either as a passenger
in a car or riding a moped, but never driving a car. Sergeant
Splain followed defendant for a short distance. The officer
stopped defendant and told him he had been stopped because Sergeant
Splain suspected defendant had a revoked license. Defendant
produced a license and gave it to the officer. Sergeant Splain
allowed defendant to enter a convenience store while Sergeant
Splain ran a check on the license. The license check showed the
license was valid, and Sergeant Splain returned the license and
registration to defendant.
Sergeant Splain then asked if he could question defendant
concerning another matter. Defendant consented. Sergeant Splain
explained that he had heard defendant routinely sold marijuana. He
asked, "Alvin, I am going to ask you for consent to search your
vehicle for drugs, do you have anything on you or in the car that
I need to be concerned with?" Defendant looked down at the front
seat and answered that there was marijuana under the front seat.
Sergeant Splain retrieved a small bag containing marijuana from
under the front seat of defendant's car. Sergeant Splain then
radioed for a K-9 unit to search for more drugs, but defendantanswered, "you don't need the dog, there is more under the other
seat." After Sergeant Splain recovered more marijuana under the
other seat, he placed defendant under arrest.
Defendant testified and substantiated Sergeant Splain's
testimony up to the point where Sergeant Splain asked defendant if
he had anything the officer should know about. Defendant testified
he answered no, and that Sergeant Splain patted him down.
Defendant testified that Sergeant Splain searched his vehicle
without his consent, radioed for a K-9 unit, was told they did not
have one available, and then returned and continued searching the
car without defendant's consent. Defendant denies ever saying
there was marijuana under the seat.
At the suppression hearing, the trial court adopted Sergeant
Splain's statement in the trial court's findings of fact and made
the following conclusions of law: the officer had reasonable
suspicion to stop defendant, even though the suspicion proved to be
wrong; although the officer never told defendant he was free to
leave, under the Fourth Amendment defendant was free to leave after
the officer returned the license and registration; and even though
the officer did not receive consent to search the vehicle,
defendant's responses gave the officer probable cause to believe a
crime had been committed. Therefore, the trial court concluded the
stop and search were reasonable.
I.
[1]Defendant first argues the trial court erred in denying
his motion to suppress evidence because Sergeant Splain made an
illegal stop of defendant's vehicle. A "trial court's findings of fact following a suppression
hearing concerning the search of the defendant's vehicle are
conclusive and binding on the appellate courts when supported by
competent evidence."
State v. Brooks, 337 N.C. 132, 140-41, 446
S.E.2d 579, 585 (1994). However, a trial court's conclusions of
law regarding whether the officer had reasonable suspicion to
detain a defendant is reviewable
de novo.
State v. Munoz, 141 N.C.
App. 675, 682, 541 S.E.2d 218, 222,
cert. denied, 353 N.C. 454, 548
S.E.2d 534 (2001) (citing
Brooks at 141, 446 S.E.2d at 585).
The "Fourth Amendment's protection against 'unreasonable
. . . seizures' includes seizure of the person."
California v.
Hodari D., 499 U.S. 621, 624, 113 L. Ed. 2d 690, 696 (1991). These
seizures include "brief investigatory detentions such as those
involved in the stopping of a vehicle."
State v. Watkins, 337 N.C.
437, 441, 446 S.E.2d 67, 70 (1994). An "investigatory stop must be
justified by 'a reasonable suspicion, based on objective facts,
that the individual is involved in criminal activity.'"
Id.
(quoting
Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362
(1979)). To determine whether this reasonable suspicion exists, a
court "must consider 'the totality of the circumstances - the whole
picture.'"
Watkins at 441, 446 S.E.2d at 70 (quoting
United States
v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981)).
The stop must be based on specific and
articulable facts, as well as the rational
inferences from those facts, as viewed through
the eyes of a reasonable, cautious officer,
guided by his experience and training. The
only requirement is a minimal level ofobjective justification, something more than
an "unparticularized suspicion or hunch."
Watkins at 441-42, 446 S.E.2d at 70 (quoting
United States v.
Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989))(other citations
omitted).
In the case before us, Sergeant Splain testified that "[i]t
was [his] understanding that [defendant's] licenses were revoked.
And in the two or three years that [he] had known [defendant] [he]
had never seen him drive an automobile." He further testified that
he had only seen defendant ride in a car as a passenger or ride a
moped. He also testified that defendant attempted to conceal his
identity when he saw Sergeant Splain. Although the officer's
suspicion turned out to be incorrect, we nonetheless hold that
under this combination of circumstances, Sergeant Splain had a
reasonable suspicion to stop defendant based on articulated and
specific facts; therefore, the stop by Sergeant Splain was legal.
We overrule this assignment of error.
II.
[2]Defendant next argues the trial court erred in dismissing
his motion to suppress evidence because Sergeant Splain no longer
had grounds to detain defendant after the officer returned
defendant's license and registration. Defendant contends any
reasonable suspicion the officer may have had evaporated after
Sergeant Splain learned defendant had a valid license. He also
contends he was still being detained after the officer returned the
license and registration but did not tell defendant he was free to
leave. The "'scope of the detention must be carefully tailored to its
underlying justification.'"
State v. Morocco, 99 N.C. App. 421,
427-28, 393 S.E.2d 545, 549 (1990)(quoting
Florida v. Royer, 460
U.S. 491, 500, 75 L. Ed. 2d 229, 238 (1983)). In the case before
us, the officer's underlying justification was to determine if
defendant was driving with a valid license. His scope of detention
must be tailored to ascertaining whether the license was in fact
revoked. Defendant is correct in asserting the reasonable
suspicion the officer had in order to stop defendant for a possible
revoked license would not be sufficient to detain defendant any
longer than necessary to dispel the officer's suspicion. However,
once Sergeant Splain determined defendant had a valid license, he
returned the license and registration to defendant.
Although there is no North Carolina case law which
specifically states a stop is over when an officer returns a
person's license and registration, there is federal case law which
suggests, subject to a totality of the circumstances test, that
once an officer returns the license and registration, the stop is
over and the person is free to leave. In
United States v. Elliott,
107 F.3d 810 (10th Cir. 1997), the Tenth Circuit Court of Appeals
stated that our federal courts
have consistently concluded that an officer
must return a driver's documentation before a
detention can end. However, . . . this is not
always sufficient to demonstrate that an
encounter has become consensual. . . . [T]he
return of a driver's documents would not end
the detention if there was evidence of a
"coercive show of authority, such as the
presence of more than one officer, the display
of a weapon, physical touching by the officer,or his use of a commanding tone of voice
indicating that compliance might be
compelled."
Id. at 814 (quoting
United States v. Turner, 928 F.2d 956, 959
(10th Cir.),
cert. denied, 502 U.S. 881, 116 L. Ed. 2d 187 (1991)).
Furthermore, "the return of documentation would render a subsequent
encounter consensual only if 'a reasonable person under the
circumstances would believe he was free to leave or disregard the
officer's request for information.'"
Elliott at 814 (quoting
United States v. McKneely, 6 F.3d 1447, 1451 (10th Cir. 1993)).
In the case before us, Sergeant Splain returned defendant's
documentation. There is no evidence of any coercive action on the
part of the officer. While defendant was being "detained," he was
allowed by Sergeant Splain to enter the convenience store and buy
a soft drink. Sergeant Splain was the only officer present, and he
spoke to defendant in a regular tone of voice, even addressing him
on a first-name basis. He asked defendant if he could question
defendant about another matter, and defendant consented.
These facts are similar to
Morocco, where after "returning to
the defendant his driver's license and vehicle identification
papers as well as the citation, [the officer] requested permission
to search the defendant's vehicle for contraband."
Morocco at 428,
393 S.E.2d at 549. The defendant in
Morocco consented. Our Court
then moved to the next stage of the analysis to determine whether
the defendant's consent was valid or the product of coercion.
Implied in
Morocco is that the initial seizure concluded upon the
return of the license. While in the case before us the trial courtfound defendant did not consent to the search, he did consent to
additional questioning by the officer. A reasonable person, under
the circumstances, would have felt free to leave when the documents
were returned. Therefore, the first seizure concluded when
Sergeant Splain returned the documents to defendant. While it is
true the initial reasonable suspicion evaporated, Sergeant Splain
was neither prohibited from simply asking if defendant would
consent to additional questioning, nor was the officer prohibited
from questioning defendant after receiving his consent.
[3]Next, we must determine whether there was a second Fourth
Amendment seizure. Our Supreme Court has held
police officers may approach individuals in
public to ask them questions and even request
consent to search their belongings, so long as
a reasonable person would understand that he
or she could refuse to cooperate. "A seizure
does not occur simply because a police officer
approaches an individual and asks a few
questions." Such encounters are consensual
and no reasonable suspicion is necessary. The
test for determining whether a seizure has
occurred is whether under the totality of the
circumstances a reasonable person would feel
that he was not free to decline the officer's
request or otherwise terminate the encounter.
Brooks at 142, 446 S.E.2d at 585-86 (quoting
Florida v. Bostick,
501 U.S. 429, 434, 115 L. Ed. 2d 389, 398 (1991))(other citations
omitted). In the case before us, Sergeant Splain asked defendant
to consent to questioning, and defendant agreed. We analyze the
situation under a totality of the circumstances standard. Again,
the initial stop was over, and defendant did not have to agree to
additional questioning. From the time when defendant consented to
additional questioning until Sergeant Splain began searching thecar, there was no seizure for Fourth Amendment purposes, only a
consensual encounter.
Defendant relies on
State v. Falana, 129 N.C. App. 813, 501
S.E.2d 358 (1998), which, although factually similar to the case
before us, is distinguishable. In
Falana, the officer issued a
warning citation to the defendant and asked for consent to search
the vehicle, but the defendant expressly refused. The defendant
also did not consent to any additional questioning. Instead of
ending the detention, the officer continued to detain the defendant
while allowing a police dog to sniff the exterior of the car. Our
Court determined the officer's continued detention of the defendant
was an illegal seizure.
In the case before us, defendant consented to additional
questioning. While defendant did not expressly consent to a
search, upon being asked for consent to search, he volunteered to
the officer that there was marijuana in the front seat. "A search
of a vehicle on a public roadway or public vehicular area is
properly conducted without a warrant as long as probable cause
exists for the search."
State v. Earhart, 134 N.C. App. 130, 133,
516 S.E.2d 883, 886 (1999). "'Probable cause exists where "the
facts and circumstances within their [the officers'] knowledge and
of which they had reasonable trustworthy information [are]
sufficient in themselves to warrant a man of reasonable caution in
the belief that" an offense has been or is being committed.'"
State v. Zuniga, 312 N.C. 251, 261, 322 S.E.2d 140, 146 (1984)
(quoting
Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed.1879, 1890 (1949)). A second seizure did occur when Sergeant
Splain searched defendant's car. Although defendant did not
consent to a search, consent was not needed once defendant
volunteered that there was marijuana in the car. The information
he volunteered led the officer to have probable cause to search the
vehicle; consequently, defendant was not "illegally seized."
Morocco at 429, 393 S.E.2d at 549. We overrule this assignment of
error.
III.
[4]Defendant next argues the trial court erred in denying his
motion to suppress based on the officer's failure to advise
defendant of his
Miranda rights before questioning him concerning
a criminal offense.
"The
Miranda warnings and waiver of counsel are required only
when an individual is being subjected to custodial interrogation.
'Custodial interrogation' means questioning initiated by law
enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant
way."
State v. Clay, 297 N.C. 555, 559, 256 S.E.2d 176, 180
(1979),
rev'd on other grounds by State v. Davis, 305 N.C. 400, 290
S.E.2d 574 (1982) (quoting
Miranda v. Arizona, 384 U.S. 436, 444,
16 L. Ed. 2d 694, 706 (1966)). In the present case, defendant had
not been arrested, nor was he being arrested at the time Sergeant
Splain asked if he could question defendant. Furthermore, the
officer did not deprive defendant of freedom of action in any
significant way. After Sergeant Splain handed back defendant'slicense and registration, defendant was free to leave and free to
refuse to answer questions. Sergeant Splain was simply conducting
a consensual questioning. "Neither
Miranda warnings nor waiver of
counsel is required when police activity is limited to general on-
the-scene investigation."
Clay at 559, 256 S.E.2d at 180.
"Ordinarily, when a suspect is not in custody at the time he is
questioned, any admissions or confessions made by him are
admissible so long as they are made knowingly and voluntarily."
Brooks at 143, 446 S.E.2d at 586. Defendant knowingly volunteered
his statements. We overrule this assignment of error.
No error.
Judges WALKER and HUDSON concur.
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