STATE OF NORTH CAROLINA
v
.
Durham County
No. 01 CRS 53766
ERIC LINWOOD TAYLOR,
Defendant.
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).
*** Converted from WordPerfect ***