STATE OF NORTH CAROLINA v. LEWIS EDWARD JACOBS, III, Defendant
NO. COA02-1668
Appeal by defendant from order and judgment entered 30 July
2002 by Judge Orlando Hudson in Alamance County Superior Court.
Heard in the Court of Appeals 13 October 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Gary R. Govert, for the State.
Daniel H. Monroe, for the defendant-appellant.
GEER, Judge.
Defendant Lewis Edward Jacobs, III, who pled guilty to several
drug-related offenses, appeals from the trial court's denial of his
motion to suppress evidence obtained in a search of his car and his
person. Although defendant acknowledges that he consented to the
search of his car and does not dispute that the officer had
probable cause to search his person as a result of evidence
obtained in the car search, defendant contends that the officer
lacked reasonable suspicion to stop defendant's car and detain
defendant for five minutes of questioning. Based on the totality
of the circumstances, we disagree and affirm the trial court's
order.
Only the State offered evidence at the hearing on defendant's
motion to suppress. That evidence tended to show the following.
At approximately 1:43 a.m. on 8 November 2001, Officer Chris Smith
of the Burlington Police Department observed a car with a Tennessee
license plate continuously weaving back and forth in its lane over
a distance of three-quarters of a mile. There were several bars in
the area where the officer spotted the car. Officer Smith checked
the tags and learned that the vehicle was registered to Gary McCray
of Johnson City, Tennessee. That fact caused Officer Smith concern
for two reasons. First, the FBI and the Johnson City Police
Department had notified the Burlington Police Department that a
suspect in a Johnson City murder was now in Burlington. Second,
Officer Smith had been advised by vice officers that a substantialamount of drug-trafficking occurred between Burlington and Johnson
City. A week earlier, he had stopped another car with Johnson City
tags and arrested the driver for possession of marijuana.
Officer Smith stopped defendant's car and called for back-up.
He ordered defendant out of the car and conducted a pat-down search
to ensure defendant was not armed. Defendant appeared to be the
same age as the murder suspect. Officer Smith then asked defendant
for his driver's license, which listed defendant's address as
Durham, North Carolina. Officer Smith asked defendant who owned
the car and defendant replied that it belonged to his brother, Gary
McCray of Durham. Officer Smith then asked why the car was
registered in Johnson City and why defendant and his brother had
different last names. Defendant could not give the officer an
explanation for their different names and Officer Smith was never
able to confirm that defendant and McCray were in fact brothers.
Officer Smith explained to defendant why he had stopped him
and asked whether he knew the murder suspect. When defendant
denied any knowledge of the man, Officer Smith asked defendant why
he was in Burlington at that hour when he lived in Durham.
Defendant claimed he was going to see a woman named Monica who
lived on Maple Avenue near a particular apartment complex. He did
not know her last name.
Officer Smith testified that during the questioning defendant
"appeared to be nervous to me. . . . his hands wasn't [sic] shakingor his body wasn't shaking, but he just was kind of . . . antsy,
just kind of moving around." Officer Smith asked defendant whether
he had been arrested for or convicted of any charges and then
checked for active warrants. After determining that there were no
outstanding warrants against defendant, Officer Smith explained to
defendant that he had information regarding the transport of drugs
between Johnson City and Burlington and asked if defendant had any
illegal drugs in his car. When defendant said that he did not,
Officer Smith asked defendant for consent to search his car.
Defendant consented to the search and told Officer Smith that
he had a large amount of money in the car, which defendant claimed
was from the sale of a motorcycle. Officer Smith recovered a
bundle of bills in a rubber band. Officer Smith noticed an odor of
marijuana in the car and found loose tobacco. Based on his
training and experience, Officer Smith believed the tobacco came
from hollowed-out cigars used to smoke marijuana. When Officer
Smith asked defendant about the tobacco and the smell of marijuana,
defendant told him that someone had smoked marijuana in the car
earlier in the day.
Officer Smith then conducted a search of defendant's person
because, Officer Smith testified, "I had smelled the odor of
marijuana in the vehicle that he was in; and he also admitted
marijuana being inside the vehicle; and I was looking to see if he
had any marijuana on his person." Officer Smith searcheddefendant's shirt pockets, pants pockets, socks, and shoes, but did
not find anything. Officer Smith then instructed defendant to pull
down his pants so that he could inspect defendant's underwear and
crotch area. Officer Smith testified that defendant's hands
started shaking as he pulled the "front part of his breeches
out[.]" Officer Smith saw a plastic bag in defendant's crotch
area. He told defendant to pull his pants up and handcuffed
defendant.
When Officer Smith asked defendant to identify the object in
his crotch area, defendant claimed it was a bag of Viagra that he
had received as partial payment for the motorcycle. Officer Smith
retrieved the plastic bag, which contained pink pills, and located
a second bag, also in defendant's crotch area, containing blue
pills. Defendant claimed the blue pills were Viagra as well. All
the pills were stamped; from his training, Office Smith recognized
that the stamping likely indicated that the pills were
methylenedioxymethamphetamine (MDMA), also known as Ecstasy. The
officer also found a third bag containing marijuana. He then
arrested defendant for possession of marijuana and MDMA.
Defendant was charged with two counts of trafficking in a
controlled substance by possession of MDMA; one count of possession
of MDMA with intent to manufacture, sell and/or deliver a
controlled substance; misdemeanor possession of marijuana;
maintenance of a car for the use, storage and/or sale of acontrolled substance; and attaining the status of habitual felon.
Defendant moved to suppress the evidence gathered during the search
of the car and his person on the grounds that the search violated
his rights under the federal and state constitutions and under the
General Statutes. Following the trial court's denial of
defendant's motion, defendant pled guilty to all the charges,
including attaining the status of habitual felon, but reserved his
right to appeal the trial court's order on his motion to suppress.
The trial court sentenced defendant to 80 to 105 months in prison.
Review of a trial court's denial of a motion to suppress is
strictly limited to a determination whether the trial court's
findings of fact are supported by competent evidence and whether
those findings support the trial court's ultimate conclusion of
law. State v. Thompson, 154 N.C. App. 194, 196, 571 S.E.2d 673,
675 (2002). Defendant has not assigned error to any of the trial
court's findings of fact; those findings are therefore binding on
appeal. Static Control Components, Inc. v. Vogler, 152 N.C. App.
599, 603, 568 S.E.2d 305, 308 (2002).
[1] Defendant first challenges Officer Smith's stop of his
car. Before a police officer may stop a vehicle and detain its
occupants without a warrant, the officer must have a reasonable
suspicion that criminal activity may be occurring. State v. McArn,
159 N.C. App. 209, 582 S.E.2d 371, 374 (2003) (citing Terry v.Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911, 88 S. Ct. 1868, 1884
(1968)). "[R]easonable suspicion" requires that "[t]he stop . . .
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." State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70
(1994). All that is required is a "minimal level of objective
justification, something more than an 'unparticularized suspicion
or hunch.'" Id. at 442, 446 S.E.2d at 70 (quoting U.S. v. Sokolow,
490 U.S. 1, 7, 104 L. Ed. 2d 1, 10, 109 S. Ct. 1581 (1989)). A
court must consider the totality of the circumstances in
determining whether reasonable suspicion to make an investigatory
stop existed. Id. at 441, 446 S.E.2d at 70. This Court reviews
de novo the trial court's conclusion of law that a reasonable,
articulable suspicion existed to justify a stop.
The trial court found that the stop occurred at 1:43 a.m. and
that defendant's vehicle was "slowly weaving within its lane of
travel touching the designated lane markers on each side" prior to
the stop. Based on these findings, the court concluded that
Officer Smith "had a reasonable, articulable suspicion to believe
the operator of the vehicle was committing an implied consent
offense." An implied consent offense refers to an impaired driving
or alcohol-related offense. See N.C. Gen. Stat. § 20-16.2(a1)
(2003). This Court has previously concluded that facts comparableto those found by the trial court are sufficient to establish
reasonable suspicion.
In State v. Watson, 122 N.C. App. 596, 599, 472 S.E.2d 28, 30
(1996), a police officer observed the defendant driving on the
dividing line of a two-lane highway near a nightclub. After the
officer turned to follow the defendant's vehicle, the officer
noticed the vehicle weaving back and forth within its lane for
about 15 seconds. Id. at 598, 472 S.E.2d at 29. This Court held
"that this evidence is sufficient to form a suspicion of impaired
driving in the mind of a reasonable and cautious officer." Id. at
599-600, 472 S.E.2d at 30. Officer Smith's observation of
defendant's weaving within his lane for three-quarters of a mile at
1:43 a.m. in an area near bars was sufficient to establish a
reasonable suspicion of impaired driving. We find this case
indistinguishable from Watson in that, although defendant's weaving
within his lane was not a crime, that conduct combined with the
unusual hour and the location was sufficient to raise a reasonable
suspicion of impaired driving. See also State v. Jones, 96 N.C.
App. 389, 395, 386 S.E.2d 217, 221 (1989), disc. review denied, 326
N.C. 366, 389 S.E.2d 809 (1990) (stop justified when defendant was
driving 20 miles below speed limit and weaving within his lane);
State v. Bonds, 139 N.C. App. 627, 629, 533 S.E.2d 855, 857 (2000)
("[D]efendant correctly points out that most North Carolina cases
upholding investigatory stops in the context of driving whileimpaired have involved weaving within a lane or weaving between
lanes.").
[2] Defendant next argues that the search of his car was
unlawful despite his consent because the length of the
investigatory detention was unreasonable. Defendant contends the
detention should have ended when Officer Smith completed the pat-
down search and determined there were no outstanding warrants
against defendant.
Our Supreme Court has held that once an officer has lawfully
stopped a person, the officer may further detain the person only if
he has "reasonable suspicion, based on specific and articulable
facts, that criminal activity is afoot."
State v. McClendon, 350
N.C. 630, 636, 517 S.E.2d 128, 132 (1999). It is, however,
reasonable for an officer, following
a lawful stop, to "ask the
detainee questions in order to obtain information confirming or
dispelling the officer's suspicions" that led to the stop.
Id.
After reviewing the evidence and the trial court's findings,
we conclude that several factors gave rise to reasonable suspicion
that justified the brief further detention. First, prior to the
stop, Officer Smith was suspicious that defendant might be
impaired, that defendant might be a murder suspect or have
knowledge of the murder suspect, and that defendant could be
involved in drug trafficking. Prior to his request for permissionto search defendant's car, Officer Smith spent three to five
minutes asking defendant questions specifically focused on
alleviating those concerns, as he was permitted to do.
Id.
Defendant's responses to Officer Smith's questions did not
fully resolve the officer's suspicions. As a result of his
questions, Officer Smith learned that defendant was not the owner
of the car, but Officer Smith could not confirm that defendant was
authorized to drive the car because he could not verify that the
registered owner was, in fact, defendant's brother. Further,
Officer Smith could not resolve why defendant was driving a Johnson
City, Tennessee car in the early hours of the morning in
Burlington. Defendant could not even provide the last name or a
precise address for the woman he said he was visiting at 1:43 a.m.
Finally, as the trial court found, Officer Smith observed that,
during this brief questioning, defendant was "acting very nervous."
Other courts have found such circumstances sufficient to
support a reasonable further detention.
See McClendon, 350 N.C. at
637, 517 S.E.2d at 133 (defendant's extreme nervousness and failure
to provide credible identification of car's owner were among
factors giving rise to reasonable suspicion warranting detention of
15 to 20 minutes).
See also United States v. Purcell, 236 F.3d
1274, 1280 (11th
Cir.) (reasonable suspicion justified extending
detention to ask additional questions when car rental agreement was
not in driver's name and defendant was stopped in area where drugcouriers operated),
cert. denied, 534 U.S. 830, 151 L. Ed. 2d 38,
122 S. Ct. 73 (2001);
United States v. Perez, 37 F.3d 510, 514 (9th
Cir. 1994) (investigative detention warranted by defendant's
nervousness, the fact defendant was not van's registered owner, the
fact defendant was heading toward city known as a drug hub, and an
inconsistency in one of defendant's answers);
United States v.
Gonzalez-Lerma, 14 F.3d 1479, 1483-84 (10th
Cir.) ("[T]he inability
of a driver to offer proof that he is entitled to operate a
vehicle, combined with inconsistent or incomplete information about
ownership of the vehicle, his identity or his destination, will
generally give rise to a reasonable suspicion justifying further
questioning."),
cert. denied, 511 U.S. 1095, 128 L. Ed. 2d 484, 114
S. Ct. 1862 (1994).
Defendant argues, however, that his nervousness was "the
officer's primary stated reason [at trial] for continuing
investigative detention"
and that nervousness is "not sufficient to
justify further investigative detention[.]"
Although defendant
points to
State v. Pearson, 348 N.C. 272, 498 S.E.2d 599 (1998) as
support for his position, the Supreme Court, one year later,
clarified
Pearson:
[W]e did not mean to imply [in
Pearson] that
nervousness can never be significant in
determining whether an officer could form a
reasonable suspicion that criminal activity is
afoot. Nervousness, like all other facts,
must be taken in light of the totality of the
circumstances. It is true that many people dobecome nervous when stopped by an officer of
the law.
Nevertheless, nervousness is an
appropriate factor to consider when
determining whether a basis for a reasonable
suspicion exists.
McClendon, 350 N.C. at
638, 517 S.E.2d at 134 (emphasis added).
Defendant's nervousness was, therefore, properly considered as one
of several factors justifying further detention.
Even if further detention was justified, we must "examine
whether the duration of that detention was reasonable."
Id. at
639, 517 S.E.2d at 134. The trial court found that Officer Smith's
detention of defendant lasted "around three to five minutes."
Defendant did not assign error to this finding and it is,
therefore, binding on appeal. Under the circumstances, we believe
that such a brief detention was reasonable.
Id. (approving
detention for 15 to 20 minutes as "not unreasonable under the
circumstances").
See also United States v. Sharpe, 470 U.S. 675,
688, 84 L. Ed. 2d 605, 617, 105 S. Ct. 1568 (1985) (20-minute stop
not unreasonable when police acted diligently).
[3] Defendant argues alternatively that the State failed to
establish that Officer Smith had sufficient reasonable suspicion to
request defendant's consent for the search.
No such showing is
required. As this Court stated in
State v. Sanchez, 147 N.C. App.
619, 626, 556 S.E.2d 602, 608 (2001) (quoting
State v. Munoz, 141
N.C. App. 675, 683, 541 S.E.2d 218, 223,
cert. denied, 353 N.C.
454, 548 S.E.2d 534 (2001)), "[w]hen a defendant's detention islawful, the State need only show 'that defendant's consent to the
search was freely given, and was not the product of coercion'",
disc. review denied, 355 N.C. 220, 560 S.E.2d 358 (2002).
See also
Schneckcloth v. Bustamonte, 412 U.S. 218, 248, 36 L. Ed. 2d. 854,
875, 93 S. Ct. 2041 (1973) (State only required to show that
consent was voluntarily given). According to a leading
commentator, "[i]f a valid consent is obtained . . . there is no
additional requirement of probable cause for the search. Indeed,
there is no requirement of reasonable suspicion as a prerequisite
to seeking consent." 3 Wayne R. LaFave,
Search and Seizure: A
Treatise on the Fourth Amendment § 8.1, at 597 n.8 (3d ed. 1996).
Defendant has cited no authority that would require the State to
establish reasonable suspicion prior to requesting consent to
search.
As for the voluntariness of the consent, defendant's brief
only includes a bald assertion that the consent to search
defendant's car was involuntary. Defendant points to no facts and
makes no legal argument to support any contention that the consent
was involuntary. Nor did defendant claim at trial that his consent
was involuntary.
Since the search of defendant's car was admittedly consensual
and was not tainted by an unlawful detention and since defendant
has made no showing that the consent was involuntary, we hold that
the search of defendant's car was lawful. Defendant does notfurther challenge the search of his person. We therefore hold that
the trial court did not err in denying defendant's motion to
suppress.
Affirmed.
Chief Judge EAGLES and Judge HUNTER concur.
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