STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 99 CRS 49897,
JOSEPH WILLIAMS, III, 99 CRS 49898
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Donald W. Laton, for the State.
Walter T. Johnson, Jr. for defendant-appellant.
WYNN, Judge.
By this appeal, defendant, Joseph Williams, III, asks this
court to review the trial court's denial of his motion to suppress
the evidence of crack cocaine found in a vehicle he was driving.
We affirm the trial court's order.
The pertinent facts tend to show the following: On the
evening of 15 November 1999, Officer Van Dusen observed a vehicle
being driven with only its parking lights on at the intersection of
Butler Street and Reynolds Park Road in Winston-Salem, North
Carolina. He followed and pulled the car over. Defendant was the
driver and sole occupant of the vehicle.
Officer Van Dusen obtained defendant's identication andnoticed that defendant was acting very nervous--shaking,
stuttering, and sweating. Upon inquiry, defendant admitted his
license had been revoked; told the officer that he did not have the
registration for the vehicle; and that he had borrowed the license
tag that was on the vehicle. Officer Van Dusen subsequently asked
defendant permission to pat down his clothing for weapons, and
defendant consented. Defendant explained to the officer that he
was “just nervous because he drank a little bit of alcohol” that
evening. The officer did not find any weapons or contraband on the
defendant's person, and next asked the defendant for permission to
search the vehicle that he was driving; again, defendant consented.
During his search of the vehicle, the officer found crack cocaine
under the right, front passenger seat, some razor blades on the
floorboard of the rear passenger compartment, and some “baggies” on
the backseat. As a consequence, Officer Van Dusen placed defendant
under arrest.
Defendant's testimony during the suppression hearing disputed
Officer Van Dusen's testimony that he agreed to a search of the
vehicle he was driving. According to defendant, Officer Van Dusen
never asked his permission to search the vehicle. After hearing
the evidence and arguments of counsel, the trial court denied
defendant's motion to suppress. Thereafter, defendant pled guilty
to trafficking in cocaine by possession, trafficking in cocaine by
transportation and possession of cocaine. Defendant now seeks
review of the trial court's denial of his suppression motion.
____________________________________________ At the outset, we deny the State's motion to dismiss the
defendant's appeal for failure to preserve the right to appeal from
the trial court's denial of his motion to suppress. The record on
appeal shows defendant excepted and objected to the court's ruling
on his motion to suppress prior to the finalization of his plea
bargain or entry of plea, State v. Brown, 142 N.C. App. 491, 492,
543 S.E.2d 192, 193 (2001)(citing State v. McBride, 120 N.C. App.
623, 625, 463 S.E.2d 403, 404 (1995)).
(See footnote 1)
It has long been recognized that the Fourth Amendment, made
applicable to the State through the Fourteenth Amendment, protects
the citizenry from unlawful searches and seizures. State v. Smith,
346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). However, consensual
searches present a “special situation excepted from the warrant
requirement, and a search is not unreasonable within the meaning of
the Fourth Amendment when lawful consent to the search is given.”
Id.; see also N.C. Gen. Stat. § 15A-221 (2001)(providing that a law
enforcement officer may conduct a search and seizure, without awarrant or other authorization, if consent to the search is given).
Consent to search must be freely and intelligently given to ensure
that the evidence obtained during that search is admissible. State
v. Graham, 149 N.C. App. 215, 218-19, 562 S.E.2d 286, 288 (2002).
“[T]he question whether a consent to a search was in fact
'voluntary' or was the product of duress or coercion, expressed or
implied, is a question of fact to be determined from the totality
of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S.
218, 227, 36 L. Ed. 2d 854, 862-63 (1973).
In reviewing a ruling on a motion to suppress, this Court is
generally limited to a determination of “whether the trial court's
findings of fact are supported by competent evidence, and whether
these findings of fact support the court's conclusions of law.”
State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282
(2000). Here, however, our review is further limited as the
defendant failed to specifically assign error to the trial court's
findings. The trial court's findings are, therefore, binding upon
this Court on appeal. See Okwara v. Dillard Dep't Stores, Inc.,
136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000)(“Where findings
of fact are challenged on appeal, each contested finding of fact
must be separately assigned as error, and the failure to do so
results in a waiver of the right to challenge the sufficiency of
the evidence to support the finding.”). Therefore, we review
whether the trial court's findings support its conclusions of law.
The trial court made the following pertinent findings of fact: 2. That on November 15, 1999, Winston-Salem
Police Officer R.J. Van Deusen [sic], was
on routine patrol and observed a vehicle
stopped on Reynolds Park Road, Winston-
Salem with just its parking lights on;
. . . .
4. That the vehicle then turned left onto
Butler Street and Officer Van Deusen
[sic] followed said vehicle and stopped
same on Butler Street as he had a lawful
and valid reason to do, at approximately
7:27 p.m.;
5. That Officer Van Deusen [sic] was in
uniform and was operating a marked patrol
vehicle;
6. That the driver, later identified as the
Defendant, began to exit the vehicle and
was instructed by Officer Van Deusen
[sic] to stay where he was;
7. That the Officer so instructed him
because the defendant might attempt to
flee or use a weapon;
8. That the Officer asked the defendant for
his driver's license and the defendant
presented either a license or a North
Carolina Identification Card;
9. That the Officer further noticed that the
defendant was acting very nervous, was
stuttering and beginning to sweat;
10. That Officer Van Deusen [sic] advised the
defendant to be truthful with him if his
license were revoked whereupon the
defendant admitted that his license was
revoked;
. . . .
12. That the defendant could not produce the
registration for the vehicle and advised
he had borrowed the tag for the car;
13. Officer Van Deusen [sic] had concerns for
his own safety based on the defendant's
actions and statements and asked the
defendant to step out of the vehicle;
14. That the defendant denied having any
weapons on his person.
15. That Officer Van Deusen [sic] asked the
defendant for consent to search the
defendant for weapons and the defendant
stated he could search him;
16. That during the search of the defendant
the defendant advised that he was nervous
because he had drunk some alcohol,
although Officer Van Deusen [sic] could
detect no odor of alcohol about the
defendant;
17. That no weapon was located during the
search of the defendant's person;
18. Officer Van Deusen [sic] advised the
defendant he was still concerned about
his safety due to the defendant's
continued nervous behavior, and the
officer then asked the defendant if he
could search the vehicle;
19. That the defendant stated Officer Van Deusen
[sic] could search the vehicle;
20. That during the entire incident the
defendant never withdrew his consent for
the officer to search his person and the
vehicle;
21. That the Officer searched the driver's
side and then searched the passenger
side;
22. That during the search, Officer Van
Deusen [sic] located a bag of crack
cocaine under the front passenger seat,
four razor blades in the rear floorboard
behind the passenger seat, and a box of
baggies on the back passenger seat;
23. That Officer Van Deusen [sic] arrested
the defendant for the drug violations and
placed him in the rear of his patrol
vehicle;
24. That the search began at 7:32 p.m. and
ended at 7:37 p.m.
Based upon those findings, the court concluded:
(1) that the defendant freely, knowingly and
voluntarily consented to a search of his
person; (2) that he freely, knowingly and
voluntarily consented to a search of the
vehicle he had been operating in which a bag
of crack cocaine, a Schedule II controlled
substance was located; and (3) [t]hat the
evidence seized by Officer Van Deusen [sic]
was seized as the result of a lawful search
and shall be admissible in the trial of these
actions.
On this record, we conclude that the court's findings, which are
presumed correct, support the trial court's conclusions that the
defendant “freely, knowingly and voluntarily” consented to the
search of his person and the vehicle that he was operating on the
evening in question. Accordingly, we affirm the trial court's
denial of defendant's motion to suppress the evidence in his trial.
Affirmed.
Judges TYSON and STEELMAN concur.
Report per Rule 30(e).
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