An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1288


Filed: 1 July 2003


         v.                        Forsyth County
                                Nos. 99 CRS 49897,
JOSEPH WILLIAMS, III,                    99 CRS 49898

    Appeal by defendant from judgment entered 10 April 2002 by Judge William Z. Wood in Superior Court, Forsyth County. Heard in the Court of Appeals 30 June 2003.

    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 Upon inquiry, defendant admitted his license had been revoked; told the officer that he did not have the registration for the vehicle; and that he had borrowed the license tag that was on the vehicle.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).

Footnote: 1
        Before proceeding to the substantive issue of whether the trial court erred in denying the defendant's motion to suppress, we must, however, note that there are several deficiencies in the record before the Court. While the trial court's order denying the defendant's motion to dismiss lists three file numbers-- 99CRS49897, -49898, and 53219, the defendant has included in the record only the indictments and judgment in two cases (99CRS49897 and -49898). Further, the defendant has only included in the record the motion to suppress filed in file number 99CRS53219, while the transcript of hearing included in the record only lists file number 99CRS49897. While confusing, and arguably violates of N.C.R. App. P. 9(a)(3), these deficiencies do not prevent, but rather limit, the Court's review of the suppression motion. The Court only has jurisdiction to review those two cases for which the defendant has included indictments and a judgment--99CRS49897 and -49898.

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