An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-349

NORTH CAROLINA COURT OF APPEALS

Filed: 6 July 2004

STATE OF NORTH CAROLINA

v .                         Durham County
                            No. 01 CRS 53766
ERIC LINWOOD TAYLOR,

        Defendant.

    Appeal by defendant from order entered 23 May 2002 by Judge Orlando F. Hudson, Jr., and judgment entered 29 August 2002 by Judge David Q. LaBarre, in Durham County Superior Court. Heard in the Court of Appeals 14 January 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Fred C. Lamar, for the State.

    Poyner & Spruill L.L.P., by Joseph E. Zeszotarski, Jr., for defendant-appellant.

    ELMORE, Judge.

    Eric Linwood Taylor (defendant) appeals from judgment entered upon jury verdicts finding him guilty of trafficking in cocaine by possession, trafficking in cocaine by transportation, and possession of cocaine. Defendant also contends the trial court erred by denying his pretrial motion to suppress evidence, in the form of cocaine and cash, seized from a car in which defendant was a passenger following a traffic stop. For the reasons stated herein, we conclude defendant received a fair trial free from prejudicial error.     At trial, Deputy William Dodson (Deputy Dodson) of the Durham County Sheriff's Department testified that on 31 August 2001, he was working off duty as a security officer at a Durham apartment complex when he observed a gray four-door car enter the complex and then leave at a high rate of speed a few minutes later. Deputy Dodson, who was in uniform and driving a marked patrol car, followed the car out of the complex and onto Morreene Road. After observing the car swerve twice across the center line, Deputy Dodson suspected that the driver might be impaired, so he activated his blue lights and pulled the car over at approximately 7:04 p.m. Deputy Dodson approached the car, which contained four male occupants, and asked to see the driver's identification. At that point Deputy Dodson observed defendant, seated in the back seat behind the driver, reach towards his crotch area, where a plastic Ziploc bag rested in plain sight between defendant's legs. Deputy Dodson asked what the bag was for, and defendant replied that there had been a sandwich in the bag.
    Deputy Dodson then asked the three passengers to provide identification. As defendant reached for his identification, Deputy Dodson observed a large sum of money, later determined to be $200.00, between defendant's legs, “stuffed in deeper” than the plastic bag had been. When Deputy Dodson asked about the money, defendant replied that he had been laid off and it was his severance pay. Deputy Dodson took both the money and the plastic bag from defendant and placed the money inside the bag. Deputy Dodson then asked the driver for his consent to search the carbecause, based on his training and experience, illegal drugs are often associated with “large sums of money and plastic bags.” After the driver refused to consent to a search of the vehicle, Deputy Dodson returned to his patrol car and called for a K-9 unit to come to the scene “because [he] was suspicious of the large sum of money and the bag.” Deputy Dodson then began writing a warning ticket to the driver for driving left of center.
    At approximately 7:17 p.m., Deputy Steven Talley (Deputy Talley), an officer with the Durham County Sheriff's Department K-9 unit, arrived at the scene with his drug-detecting dog. Deputy Dodson had just finished writing the warning ticket when Deputy Talley arrived. Deputy Talley walked the dog around the car, and the dog “indicated” the presence of drugs inside the car by scratching and biting at the outside of the car in two locations, on the rear driver's-side door and on the front passenger door. After Deputy Dodson asked the vehicle's occupants to get out and move away from the car, Deputy Talley put the dog inside the car, and the dog again “indicated” at an area between the driver's seat and front passenger's seat. While Deputy Dodson watched the four men, Deputy Talley and Deputy Ron Christie searched the car's interior and discovered a brown paper bag under the driver's seat. Inside the bag was a large Ziploc bag containing a white powder substance, later determined to be 124.7 grams of cocaine, and a large sum of money wrapped in rubber bands, later determined to be in the amount of $4,500.00. Deputy Talley informed Deputy Dodson of the discovery, at which point Deputy Dodson advised the four men“for everybody's safety that we were going to place handcuffs on them, and I believe we placed them in the front, just to let them know they weren't under arrest, they were just being detained until we figured out what was going on.” Deputy Dodson then confiscated approximately $2,200.00 in additional currency from defendant's pocket. Deputy Dodson then called the department's on-call narcotics investigator, Detective Thomas Cote (Detective Cote), to the scene.
    After Detective Cote arrived shortly thereafter, he was briefed on the situation by Deputy Dodson and was shown the smaller plastic Ziploc bag and currency seized from defendant, as well as the brown paper bag containing the cocaine and large amount of currency discovered during the search of the car. When questioned by Detective Cote, none of the four men claimed ownership of the money found in the brown paper bag with the cocaine. Detective Cote then advised Deputy Christie that he needed two patrol vehicles to transport the four subjects to the police station for interviews and follow-up investigation. Three of the four subjects became agitated, and defendant then “stated the brown paper bag was his but he didn't know what was in it.”
    Detective Cote separated defendant from the other three subjects, advised him of his Miranda rights, and asked if defendant wished to make a statement. Defendant stated he did not wish to speak with Detective Cote, but then asked if everyone had to go to the police station now, to which Detective Cote answered in the affirmative. Detective Cote testified that defendant replied, “Itold you the bag was mine. The other guys didn't know -- didn't have anything to do with it.” After Detective Cote reminded defendant that defendant had invoked his right to remain silent, defendant nevertheless agreed to write a statement, which Detective Cote read into evidence as follows:
    To my knowledge, [defendant] states that the persons or the person in the car had no knowledge of what was in the bag and, I, Eric Taylor, had picked the bag up off the ground, no knowledge of what was in the bag. We was riding over to visit a passenger's sister and some guy dropped it and I just picked it up without looking inside. The guys in the car didn't know either. The amount of cash came from my severance pay that was in my possession and I have proof of currency.

Defendant was then arrested and taken to the police station for booking.
    Defendant took the stand at trial and testified that he had been a passenger in the car for only about twenty minutes before it was pulled over by Deputy Dodson. According to defendant's testimony, his car had broken down earlier that day and his friend William Simms had called another man, known to defendant only as “Cowboy,” to pick them up so Cowboy could work on defendant's car. Cowboy arrived in the gray vehicle, driven by a man defendant did not know, and picked up defendant and Simms. After stopping by Cowboy's sister's apartment, the four men were leaving the apartment complex when Deputy Dodson pulled in behind them, followed them onto Morreene Road, and pulled them over. Defendant denied that the car was speeding in the apartment complex. Defendant's account of the stop and search did not differ materially from the accounts presented by the State's witnesses. Defendant testified the approximately $2,400.00 in cash found on his person represented severance pay and proceeds from recently cashed paychecks, which he planned to use to make mortgage payments. Defendant denied placing the cocaine inside the car or even knowing that it was there. Defendant testified that he “rushed through the statement, because [he] wanted [his] money back,” but that what he wrote in the statement is true. Defendant initially testified that the “bag” referred to in his statement was not the brown bag containing the cocaine and $4,500.00, but rather the smaller plastic Ziploc bag Deputy Dodson first noticed between his legs in the car. However, on cross examination, defendant changed his story and testified that the bag referred to in his statement was neither the brown paper bag in the car nor the plastic Ziploc bag taken from him by Deputy Dodson, but instead a different bag that “wasn't in the car” at all but which someone had dropped next to defendant's broken-down car earlier in the day.
    Defendant filed a pretrial motion to suppress the physical evidence seized by the police following the traffic stop, which motion was heard on 23 May 2002. After hearing argument and witness testimony presented by defendant and the State, the trial court denied defendant's motion to suppress, concluding as follows:     1.    The Defendant in this matter does not have standing to object to the stop, search, or seizure of the vehicle or the cocaine found in the vehicle because he was not the owner of the vehicle and denied ownership of the cocaine or even knowledge of its presence in the vehicle. Therefore, the defendant did not have a legitimate expectation of privacy with regards to the vehicle or its contents.
    2.    Notwithstanding this, the Court finds that based upon the totality of the circumstances, the deputies had probable cause for the search, seizure, and arrest of the defendant.

    Following a jury trial, defendant was convicted of one count each of trafficking in cocaine by possession, trafficking in cocaine by transportation, and possession of cocaine. The trial court sentenced defendant to 35-42 months imprisonment on the trafficking by possession conviction and to 35-42 months on the trafficking by transportation conviction, with the sentences to run consecutively. The trial court consolidated the sentence on the possession conviction with the sentence on the trafficking by transportation conviction. Defendant appeals.
    By his first assignment of error, defendant contends the trial court erred by denying his motion to suppress the drugs and money seized after police stopped the car in which he was a passenger. We disagree, because defendant lacked standing to challenge the search of the vehicle or seizure of its contents, and even if defendant did have standing, his Fourth Amendment rights were not violated by the search and seizure.
    In a previous case affirming the denial of a motion to suppress illegal drugs seized from a car in which the defendant was a passenger, this Court noted “[t]he '[r]ights assured by the Fourth Amendment are personal rights, [which] . . . may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure.'” State v. VanCamp, 150 N.C. App. 347, 350, 562 S.E.2d 921, 924 (2002) (quoting Simmons v. United States, 390 U.S. 377, 389, 19 L. Ed. 2d1247, 1256 (1968)). Standing to invoke the protections guaranteed by the Fourth Amendment against unreasonable governmental searches and seizures is “based upon the legitimate expectations of privacy of the individual asserting that right in the place which has allegedly been unreasonably invaded.” VanCamp, 150 N.C. App. at 350, 562 S.E.2d at 924.
    This Court's review of a denial of a motion to suppress is limited to determining whether the trial court's 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 trial court's conclusions of law. State v. Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125 (2002), cert. denied, 155 L. Ed. 2d 1074, 123 S. Ct. 2087 (2003). In the present case, the evidence presented at the suppression hearing supported the trial court's findings that defendant did not own the car in which he was riding, nor was he driving the car when it was stopped by Deputy Dodson. The evidence also supported the trial court's finding that defendant “did not have knowledge that the bag containing the cocaine was in the vehicle.” As such, defendant was without standing to contest the search of the vehicle or its contents. VanCamp, 150 N.C. App. at 350, 562 S.E.2d at 925 (“[T]he trial court correctly concluded as a matter of law that defendant 'as a mere passenger in the 1989 Acura, claiming no ownership or possessory interest therein, had no legitimate expectation of privacy in the center console of the vehicle, andtherefore, has no standing to assert any alleged illegality of the search thereof.'”)
    Even assuming arguendo that defendant did have standing to challenge the search of the vehicle in which he was riding, the search was legal and in no way deprived defendant of any rights protected by the Fourth Amendment. Defendant asserts that there was no basis for his continued detention from the time of the initial traffic stop by Deputy Dodson until Deputy Talley arrived with the drug-detecting dog _ a period of approximately 13 minutes _ and that the subsequent search was therefore illegal. Our Supreme Court has stated “[i]n 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.” State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999). In evaluating whether reasonable suspicion exists, a reviewing court must take into account the totality of the circumstances. Id.; see also Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301, 309 (1990).
    In McClendon, the Court considered the totality of the circumstances and found the detention of the defendant following a traffic stop, and subsequent canine sniff of his vehicle, to be justified by a reasonable suspicion that criminal activity was afoot, where the defendant appeared nervous and gave inconsistent and vague answers to questions asked by police. McClendon, 350 N.C. at 634, 517 S.E.2d at 131. By contrast, in State v. Falana, 129 N.C. App. 813, 501 S.E.2d 358 (1998), this Court concluded apolice officer's detention of the defendant, based only upon the defendant's nervousness, beyond issuance of a warning ticket was not justified by a reasonable suspicion. Falana, 129 N.C. App. at 817, 501 S.E.2d at 360; see also State v. Fisher, 141 N.C. App. 448, 450-51, 539 S.E.2d 677, 680 (2000), disc. review denied, 353 N.C. 387, 547 S.E.2d 420 (2001) (no reasonable suspicion justifying detention of the defendant for canine sniff beyond issuance of traffic citation where trial court found that other than officer's personal knowledge of the defendant's past, there was no “evidence of any illegal drugs or controlled substances located in or about the defendant's vehicle.”)
    After reviewing the evidence and the trial court's findings in the present case, we conclude defendant's brief detention was justified by Deputy Dodson's reasonable suspicion that defendant was engaged in criminal activity. The totality of these circumstances clearly support a finding of “reasonable suspicion” as much, if not more, than the circumstances present in McClendon. Here, Deputy Dodson observed the car speeding, pulled it over, and while requesting identification from the driver, observed defendant with a plastic Ziploc bag and large quantity of currency, in plain sight. Deputy Dodson testified that he then “called in the K-9 because [he] was suspicious of the large sum of money and the bag[,]” which, based on his training and experience, are often associated with illegal drugs. The canine unit arrived 13 minutes after Deputy Dodson stopped the car and just as he finished writing a warning ticket to the car's driver for driving left of center. The canine unit then conducted a perimeter sniff of the car, where the dog indicated drugs in two locations. The resulting search of the car's interior revealed the drugs and large quantity of cash; the subsequent search of defendant's person revealed more cash, in addition to that already seized by Deputy Dodson from between defendant's legs while seated in the car. We conclude, based on the totality of the circumstances present here, that defendant's continued detention after the initial traffic stop was justified and did not violate defendant's constitutional rights.
    The trial court did not err in denying defendant's motion to suppress the physical evidence seized from the car in which defendant was a passenger. Accordingly, defendant's first assignment of error is overruled.
    By his second assignment of error, defendant contends the trial court committed plain error in its jury instruction on the trafficking in cocaine by transportation charge. The trial court gave the following instruction in this portion of its charge:
        In Count II, the defendant has been accused of trafficking in cocaine, which is the unlawful transportation of between 28 and 199 grams of cocaine. Now, I charge for you to find the defendant guilty of trafficking in cocaine, the State must prove two things beyond a reasonable doubt.

        First, that the defendant knowingly transported cocaine from one place to another. Second, that the amount of cocaine which the defendant transported was between 28 and 199 grams.

        So I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date of 8-31, 2001, the defendant knowingly transported cocaine from one place to another, and that the amount which he transported was between 28 and 199 grams, it would be your duty to return a verdict of guilty oftrafficking in cocaine by transportation. However, if you do not so find, or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.
    Initially we note that because defendant failed to make any objection to the instruction given at trial, our analysis of this issue is limited to a review for plain error. State v. Sexton, 357 N.C. 235, 238, 581 S.E.2d 57, 59 (2003). In order to rise to the level of plain error, the error in the instruction given by the trial court must be “so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.” State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988).
    Defendant asserts that because he never admitted to knowing the contents of the brown paper bag in which the cocaine was found, the instruction is erroneous because it fails “to instruct the jury that the defendant could be found guilty only if he knew what he transported was in fact cocaine.” Defendant correctly notes that footnote two to the North Carolina Pattern Jury Instruction 260.30, entitled “Drug Trafficking _ Transportation,” provides “[i]f the defendant contends that he did not know the true identity of what he transported, add this language to the [sentence stating the first element of the offense]: 'and the defendant knew what he transported was (name substance).'”
    The two essential elements of trafficking in cocaine by transportation are (1) the defendant must have transported the cocaine, and (2) the defendant must have transported the cocaineknowingly. State v. Outlaw, 96 N.C. App. 192, 385 S.E.2d 165 (1989), disc. review denied, 326 N.C. 266, 389 S.E.2d 118-19 (1990). In a prosecution for trafficking in marijuana by possession and transportation, our Supreme Court stated as follows regarding the “knowledge” element of those offenses:
    Knowledge is a mental state that may be proved by offering circumstantial evidence to prove a contemporaneous state of mind. Jurors may infer knowledge from all the circumstances presented by the evidence. It 'may be proved by the conduct and statements of the defendant, by statements made to him by others, by evidence of reputation which it may be inferred had come to his attention, and by [other] circumstantial evidence from which an inference of knowledge might reasonably be drawn.'

State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989) (quoting State v. Boone, 310 N.C. 284, 294-95, 311 S.E.2d 552, 559 (1984)).
    In the present case, we conclude that the jury may reasonably infer from the circumstances presented by the evidence that defendant, despite his protestations to the contrary, knew that the brown paper bag contained cocaine. Defendant was observed in the back seat of the vehicle with a plastic Ziploc bag and $200.00 in cash stuffed between his legs, and a subsequent search of defendant's person revealed approximately $2,200.00 in defendant's pocket. The brown paper bag containing 124.7 grams of cocaine was found, along with $4,500.00 in cash, under the driver's seat, directly in front of where defendant was seated. Defendant told the police “the brown paper bag was his but he didn't know what was in it” and gave a written statement that he “had picked the bag up off the ground, no knowledge of what was in the bag.” Defendantthen explained, for the first time, through his trial testimony that the “bag” referred to in his written statement was not the brown paper bag containing the cocaine, but rather the plastic Ziploc bag found between his legs. Defendant then changed his story yet again on cross examination, testifying that the “bag” referred to in his written statement was some other bag which was never, in fact, present in the vehicle.
    We conclude on these facts that the trial court's failure to give the additional part of the instruction regarding knowledge does not rise to the level of plain error because, absent the error, the jury probably would not have reached a different verdict, and the error would not constitute a miscarriage of justice if not corrected. State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993) (“[T]he term 'plain error' does not simply mean obvious or apparent error. . . . to reach the level of 'plain error' . . . the error in the trial court's jury instructions must be 'so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached.'”) Defendant's second assignment of error is without merit.
    By his final assignment of error, defendant asserts the trial court erred by failing to arrest judgment on defendant's conviction for possession of cocaine, given the trial court's entry of judgment on defendant's conviction for trafficking in cocaine by possession, where the same act of possession was the basis of each conviction. We disagree.    In State v. Harris, 157 N.C. App. 647, 580 S.E.2d 63 (2003), this Court recently addressed the issue of whether the trial court erred in consolidating possession of cocaine and trafficking in cocaine charges into one judgment. In rejecting the defendant's contention that the court should instead have arrested judgment as to the possession charge, the Court stated as follows:
    Under State v. Pipkins, 337 N.C. 431, 433-34, 446 S.E.2d 360, 362 (1994) . . . a court may impose multiple punishments in a single trial for the same conduct when the legislature has expressed a clear intent to proscribe and punish that same conduct under separate statutes. The Pipkins Court addressed the exact offenses that are at issue here _ possession of cocaine and trafficking in cocaine _ and “concluded that the legislature's intent was to proscribe and punish separately the offenses of felonious possession of cocaine and of trafficking in cocaine by possession.” Id. at 434, 446 S.E.2d at 363. Under Pipkins, the trial court in this case did not err in failing to arrest judgment as to the jury's verdict on the possession charge.

Harris, 157 N.C. App. at 656, 580 S.E.2d at 69. We hold that Pipkins and Harris control the outcome in the present case. Accordingly, the trial court did not err in failing to arrest judgment on the possession charge, and defendant's third assignment of error is without merit.
    No error.
    Judges BRYANT and CALABRIA concur.
    Report per Rule 30(e).

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