STATE OF NORTH CAROLINA
v
.
ROGELIO ALONZO CASTELLON,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Edwin L. Gavin II, for the State.
James R. Parish, for defendant-appellant.
HUDSON, Judge.
Defendant assigned error to the trial court's denial of his
motion to suppress. We affirm.
Following a hearing, the trial court made extensive findings
of fact in its order denying defendant's motion to suppress. The
evidence presented at the hearing tended to show that on 21 March
2000, defendant was stopped while driving on Interstate 95 by
Sergeant Mark Hart of the Cumberland County Sheriff's Office for
failure to wear his seatbelt. See N.C. Gen. Stat. § 20-135.2A(a)
(2001). Luz Ibarra, a passenger in the vehicle, also was not
wearing her seatbelt.
Before issuing a warning ticket, Sergeant Hart used his mobile
data computer to check defendant's driver's license and to
determine whether defendant “was a wanted person.” The computeroperated slowly. While Sergeant Hart was waiting for the computer
to respond with the information, Deputy Timothy Bailer of the
Cumberland County Sheriff's Office arrived at the scene. Sergeant
Hart and Deputy Bailer observed several indicators of criminal
activity. Thus, after ascertaining the validity of defendant's
driver's license and issuing a warning ticket, Sergeant Hart asked
for permission to search defendant's vehicle. Defendant gave his
consent, and during a search of the vehicle's trunk, Deputy Bailer
found cocaine in the back of a television set.
Defendant was convicted following his plea of guilty to one
count of trafficking in cocaine by possession and one count of
trafficking in cocaine by transportation. He preserved his right
to appeal the trial court's denial of his motion to suppress
evidence, and he now appeals that ruling. See N.C. Gen. Stat.
§ 15A-979(b) (2001); State v. Brown, 142 N.C. App. 491, 543 S.E.2d
192 (2001).
Defendant argues that the traffic stop constituted an illegal
seizure, and, as a result, the evidence seized, as well as any
inculpatory statements made during later questioning, must be
suppressed. “[T]he scope of appellate review of an order such as
this is strictly limited to determining whether the trial judge's
underlying findings of fact are supported by competent evidence, in
which event they are conclusively binding on appeal, and whether
those factual findings in turn support the judge's ultimate
conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d
618, 619 (1982). Further, “the trial court's ruling on a motion tosuppress is afforded great deference upon appellate review as it
has the duty to hear testimony and weigh the evidence.” State v.
McClendon, 130 N.C. App. 368, 377, 502 S.E.2d 902, 908 (1998),
aff'd, 350 N.C. 630, 517 S.E.2d 128 (1999).
Defendant has not assigned error to any of the findings of
fact made by the trial court, nor does he argue in his brief on
appeal that the facts are not supported by competent evidence.
Additionally, defendant does not contend that the initial traffic
stop was unlawful. Rather, he argues that his detention for over
twenty-five minutes for a minor traffic violation was unreasonable.
This is a conclusion of law, which we review de novo.
The trial court's findings of fact indicate that Sergeant Hart
performed the license check with his mobile data computer, which
functioned slowly on that day. Specifically, the trial court made
the following findings of fact:
10. Regarding his mobile data computer, there
is not a normal response time for the
information sought via the computer for
reasons outside the deputy's control,
such as the amount of use of the system
by others.
11. Sergeant Hart asked the Defendant in
English where he was coming from and his
length of stay. The Defendant responded
in English that he was coming from New
York and that he had been there for three
or four days. Sergeant Hart explained to
the Defendant in English that he was
intending to issue the Defendant a
warning ticket for the seat belt
violation. The Defendant indicated that
he understood what a warning ticket was.
The mobile data computer operated slowly
during the encounter, but ultimately
began to provide information to Sergeant
Hart regarding possible hits, that is,that people sharing the Defendant's name
or a variation thereof were wanted.
Particularly, one such “hit” indicated
that the wanted person had a tatoo on his
arm. Sergeant Hart asked the Defendant
in English to lift his shirt sleeve, and
the Defendant did so. Sergeant Hart did
not see the described tattoo. He
continued his investigation of the
Defendant's identity, status of his
driver's license, and status of being
wanted. Sergeant Hart called EPIC [the
El Paso Intelligence Center, a national
database for criminal activity, including
narcotic activity] to search their
records for the existence of warrants and
prior illegal activity. As with his
mobile data computer, the EPIC system
operated slowly during this encounter
through no fault of Sergeant Hart.
12. At about 1:29 p.m., Sergeant Hart
concluded his telephone call to EPIC, and
Deputy Timothy Bailer with the Cumberland
County Sheriff's Office arrived on the
scene to assist Sergeant Hart. Sergeant
Hart told the Defendant in English he
would be writing him a warning ticket,
but first he got out of the vehicle to
speak with Deputy Bailer, a deputy who
was also assigned to the interstate
criminal enforcement unit and who had
also been trained and had experience in
conducting interdiction along Interstate
95.
13. Within about one minute, Sergeant Hart
advised Deputy Bailer of the situation
and asked him to speak to Ms. Ibarra
concerning the indicators of criminal
activity. At about 1:30 p.m., Sergeant
Hart then got back into his patrol car
and began writing the warning ticket. At
this point, Sergeant Hart was receiving
the final information from his mobile
data computer regarding the Defendant's
driver's license. The information
verified that the Defendant's license was
valid.
14. As Sergeant Hart prepared the paperwork,
he and the Defendant engaged in politeconversation in English about the
Defendant's country of origin, Cuba, and
the events concerning the big news of the
day, Elian. Within about two minutes,
Deputy Bailer returned to Sergeant Hart's
patrol car, whereupon Sergeant Hart got
out to speak with him. Deputy Bailer
told Sergeant Hart that Ms. Ibarra had
told him that she and the Defendant were
just friends despite a previous statement
by the Defendant that they were married,
that they had flown to New York the
previous day, that they were only in New
York for one day despite a previous
statement by the Defendant that he had
been in New York for the past three or
four days, and that they were headed back
to Miami, Florida.
15. As Deputy Bailer provided this
information to Sergeant Hart, the audio
equipment within Sergeant Hart's patrol
car continued to function, and while the
Defendant was alone within the patrol
car, he twice said to himself in English,
“This is not good.”
16. At about 1:33 p.m., Sergeant Hart entered
his patrol car with the Defendant.
Within three minutes, Sergeant Hart
completed the warning ticket, returned to
the Defendant his driver's license and
the rental agreement, and asked the
Defendant in English if he understood
everything, to which the Defendant said
he did. At about 1:37 p.m., as the
Defendant began to exit the patrol
vehicle, Sergeant Hart asked him in
English if he had any weapons in the
vehicle, to which the Defendant said,
“No.” Sergeant Hart then asked the
Defendant in English if he had any
illegal narcotics, marijuana, in the
vehicle, and the Defendant again said,
“No.” Sergeant Hart then asked the
Defendant in English if he had any large
amounts of currency in the vehicle, and
the Defendant said, “No.” Sergeant Hart
then asked the Defendant in English for
permission to search the vehicle. The
Defendant said, “Huh?” or “What?”
Sergeant Hart asked, “Can I havepermission to search the car?” The
Defendant pointed at the rental vehicle
and asked, “The car?” Sergeant Hart
said, “Yes.” The Defendant said, “Yes.”
Sergeant Hart asked, “No problem?” The
Defendant said, “No problem.” Sergeant
Hart asked, “Are you sure?” The
Defendant said, “No problem.” The
Defendant gave Sergeant Hart general
consent to search the vehicle.
The detention for the purpose of determining the validity of
defendant's license was not unreasonable. See 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).
“Once the original purpose of the stop has been addressed,
there must be grounds which provide a reasonable and articulable
suspicion in order to justify further delay.” State v. Falana, 129
N.C. App. 813, 816, 501 S.E.2d 358, 360 (1998); see State v.
McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999) (“In order
to further detain a person after lawfully stopping him, an officer
must have reasonable suspicion, based on specific and articulable
facts, that criminal activity is afoot.”). In determining whether
further detention was reasonable, the trial court must consider the
totality of the circumstances. See Munoz, 141 N.C. at 682, 541
S.E.2d at 222. “In its analysis, the court must view the facts
through the eyes of a reasonable, cautious officer, guided by his
experience and training at the time he determined to detain
defendant.” Id. (internal quotation marks omitted).
During the time legitimately required for Sergeant Hart to
issue a warning ticket to defendant, he developed reasonable and
articulable suspicion that defendant was involved in illegal drugactivity. As the trial court found, Sergeant Hart noticed that
defendant's hands “were very shaky, trembling, and real sweaty.”
After examining the rental agreement, Sergeant Hart
immediately noticed several indicators of
criminal activity, particularly drug
interdiction, from his training and
experience. He noticed that the rental
agreement was in the name of a third person
allegedly not present at the scene, Fabian
Loaiza. The vehicle had been rented on a
short-term basis, having been rented on March
20, 2000 at La Guardia airport in New York,
New York with a return date of March 23, 2000
in Miami, Florida. These facts were
significant to Sergeant Hart because
(1) people transporting narcotics prefer to
distance themselves from the vehicle they are
using to transport narcotics by using third
party rentals, (2) Miami, Florida and New
York, New York are source cities for narcotics
to include cocaine, and (3) short-term rentals
tend to negate the possibility that the people
are on vacation or conducting regular business
activities.
The evidence supports this finding. Further, after Deputy Bailer
spoke with Ibarra, the officers determined that there were some
discrepancies in what defendant and Ibarra told the officers. For
example, defendant told Sergeant Hart that Ibarra was his wife and
that they had spent three or four days in New York. Ibarra told
Deputy Bailer that she and defendant were friends and that they had
been in New York for only a day.
We hold that, based on the above, the trial court did not err
in concluding that Sergeant Hart had reasonable suspicion that
criminal activity was afoot. Therefore, Sergeant Hart was
justified in asking for permission to search the vehicle, and
defendant's further detention was not unconstitutional. See Statev. Aubin, 100 N.C. App. 628, 632-33, 397 S.E.2d 653, 655-56 (1990),
disc. review denied, 328 N.C. 334, 402 S.E.2d 433, cert. denied sub
nom. Aubin v. North Carolina, 502 U.S. 842, 116 L. Ed. 2d 101
(1991); State v. Morocco, 99 N.C. App. 421, 427-29, 393 S.E.2d 545,
549 (1990).
Because defendant's original seizure was not unconstitutional,
we reject his assertion that his consent to the search was
“tainted” because it was “the result of the coercive effects of
this unreasonable detention.” In view of the fact that defendant's
initial detention was not unlawful, “the State was required to show
only that defendant's consent to the search was freely given, and
was not the product of coercion.” Munoz, 141 N.C. App. at 683, 541
S.E.2d at 223. Based on Sergeant Hart's testimony at the hearing,
the trial court found that defendant consented to the search. The
court concluded that “[u]nder the totality of the circumstances,
the Defendant voluntarily gave Sergeant Hart general consent to
search the vehicle. The consent was voluntary and not the product
of duress or coercion, express or implied.” The trial court's
conclusion of law is supported by appropriate findings of fact,
which are, in turn, supported by competent evidence. Therefore, we
reject defendant's assertion that his consent was tainted.
Finally, defendant argues that, even if his consent was
voluntary, the officers' search exceeded the scope of that consent.
In particular, defendant contends that the officers did not have
the right to unscrew the back of the television set. We disagree.
Under the plain view doctrine, “police may seize contraband orevidence if (1) the officer was in a place where he had a right to
be when the evidence was discovered; (2) the evidence was
discovered inadvertently; and (3) it was immediately apparent to
the police that the items observed were evidence of a crime or
contraband.” State v. Graves, 135 N.C. App. 216, 219, 519 S.E.2d
770, 772 (1999). Here, the trial court found that defendant gave
general consent to search the vehicle, which allowed the officers
to search the trunk of the car. See Aubin, 100 N.C. App. at 634,
397 S.E.2d at 656. The trial court made the following finding of
fact regarding the search of the trunk:
18. Sergeant Hart and Deputy Bailer began to
search the rental vehicle. Deputy Bailer
began his search in the trunk of the
vehicle, and within about two minutes, he
discovered what he believed to be illegal
narcotics in saran wrap packaging inside
a television set lying face down in the
trunk of the vehicle. Both Sergeant Hart
and Deputy Bailer observed the packaging
inside the television through openings in
the back of it. The packaging was
plainly visible inside the television
without the need to manipulate the
television. In both deputies' training
and experience, the packaging was
consistent with the packaging of
narcotics to include cocaine, heroin, and
marijuana. Deputy Bailer also noted that
the screws on the back of the television
had previously been scratched. Deputy
Bailer removed the back panel of the
television and discovered two packages
containing approximately 3,000 grams of
cocaine.
This finding is supported by the evidence. Deputy Bailer testified
at the suppression hearing regarding his search of the trunk as
follows:
Q. What did you do? Just tell the Court howyou proceeded to search the trunk of the
vehicle.
A. Okay. I released the trunk release on
the driver's side floorboard, walked back to
the trunk. It was fully opened. I fully
opened it to where I could look inside the
trunk of the vehicle. While I looked inside
the trunk of the vehicle, I noticed two
luggage bags and a plastic bag with a paper
bag inside of it containing two empty milk
jugs and then a T.V. set, the screen of the
television set face down to the trunk of the
vehicle. I looked at the back of the T.V. set
and saw a shiny glare coming off of the T.V.
set inside of the back panel where the vents
are on the television set. I looked into it
very closely, thought I saw a package in
the--inside of the back panel of the T.V. set.
At that time, I took my fingers and spread the
plastic vents a little further apart where I
could look a little easier and I did locate a
large package of saran wrap--a package wrapped
in saran wrap. I notified Sergeant Hart at
this time of what I located. . . .
. . . .
Q. When you saw that package in this
television set, had you ever seen anything
similar to that in your training and
experience as a law enforcement officer?
A. Yes.
Q. What types of packages would that be,
sir?
A. Cocaine, marijuana, heroin, all illegal
contraband are all commonly packaged with
saran wrap or duct tape with a masking agent
of some sort to deter the police canine dogs.
If they are stopped and a canine is utilized,
they do that specifically to try and draw the
dog's attention off of the packages.
Thus, the officers discovered the saran-wrapped packages
inadvertently and recognized immediately that they contained
contraband. The officers were, therefore, justified in opening theset and seizing the cocaine.
We conclude that the officers did not unreasonably detain
defendant, defendant voluntarily agreed to a search of his
automobile, and the officers did not exceed the scope of the
authorized search. Accordingly, the trial court's order denying
defendant's motion to suppress is affirmed.
Affirmed.
Judges GREENE and BIGGS concur.
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