STATE OF NORTH CAROLINA
v
.
Cabarrus County
No. 02 CRS 51770
MONICA DINET ADAMS
Attorney General Roy Cooper, by Special Deputy Attorney
General Richard E. Slipsky, for the State.
J. Clark Fischer for defendant.
TIMMONS-GOODSON, Judge.
On 15 July 2002, defendant was indicted for possession of
cocaine with intent to sell and deliver, and maintaining a vehicle
used for keeping and selling cocaine. Defendant filed a motion to
suppress evidence of cocaine found on her person and the court
denied said motion. Thereafter, defendant entered a plea of guilty
to felony possession of cocaine, reserving the right to appeal
denial of her motion to suppress. By judgment entered 16 January
2003, defendant was sentenced to a suspended sentence of 6-8 months
imprisonment, and placed on supervised probation for 24 months.
Defendant gave notice of appeal in open court.
On 25 June 2002, defendant was driving her vehicle on Highway
29 in Concord. Officer Brian Kelly (“Officer Kelly”) of theConcord Police Department was driving two cars behind defendant,
when he noticed that defendant was driving without the use of her
seatbelt. He stopped defendant and asked for her license and
registration within three to five minutes.
Officer Kelly noticed that defendant seemed overly nervous
during the stop. After he had issued the citation and returned her
documents, Officer Kelly asked if she had any drugs or guns in the
vehicle, to which she replied she had two children in the vehicle.
Officer Kelly then asked for permission to search the vehicle.
Defendant specifically gave Officer Kelly permission to search the
vehicle. Before Officer Kelly searched the vehicle, defendant
removed a can from the glove compartment, and during the search
stood at the back of her vehicle.
Upon searching the vehicle, Officer Kelly found marijuana.
Officer Kelly then searched defendant and found cocaine and a razor
in the can she previously removed from the vehicle and was holding
in her hand. Defendant was placed under arrest. Approximately ten
minutes had elapsed from the time the vehicle was stopped until the
vehicle was searched.
On appeal, defendant argues that the trial court erred in
denying her motion to suppress evidence of cocaine found during the
search. Specifically, defendant argues that the officer had no
justifiable reason to detain her after issuing her citation, and
that her consent to search the vehicle was coerced. We disagree.
A defendant may appeal the denial of a motion to suppress,
notwithstanding entry of a guilty plea. N.C.G.S. § 15A-979(b)(2003). This Court's review of denial of a motion to suppress is
strictly limited. State v. Pulliam, 139 N.C. App. 437, 439-40, 533
S.E.2d 280, 282 (2000). Competent evidence must support the trial
court's findings. Id. If competent evidence exists, the findings
are binding on appeal. Id. The court's conclusions of law,
however, are reviewed de novo. State v. Chadwick, 149 N.C. App.
200, 202, 560 S.E.2d 207, 209, disc. rev. denied, 355 N.C. 752, 565
S.E.2d 672 (2002).
Our Supreme Court has held that warrantless searches and
seizures are per se unreasonable unless “the search falls within a
well-delineated exception to the warrant requirement[.]” State v.
Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982) (citations
omitted). “Hence, when the State seeks to admit evidence
discovered by way of a warrantless search in a criminal
prosecution, it must first show how the former intrusion was
exempted from the general constitutional demand for a warrant.”
Id.
The warrantless search of a vehicle and seizure of evidence
obtained therefrom are justified where a police officer receives
consent to execute the search. State v. Smith, 346 N.C. 794, 798,
488 S.E.2d 210, 213 (1997). This Court has held that an officer
may ask for consent to search a vehicle even after the traffic stop
has terminated. See State v. Morocco, 99 N.C. App. 421, 428, 393
S.E.2d 545, 549 (1990).
In the instant case, Kelly's detention of defendant ended when
he returned her license and registration to her because areasonable person, under the circumstances, would have felt free to
leave once the documents were returned. See State v. Kincaid, 147
N.C. App. 94, 100, 555 S.E.2d 294, 299 (2001) (reasoning that the
Court in Morocco implied in its analysis that the seizure of a
traffic stop ceases once the license and registration are
returned). Defendant contends that by asking for her consent to
search her car, Officer Kelly further detained defendant. However,
“a person has been 'seized' within the meaning of the Fourth
Amendment only if, in view of all of the circumstances surrounding
the incident, a reasonable person would have believed that he was
not free to leave.” United States v. Mendenhall, 446 U.S. 544,
554, 100 S. Ct. 1870, 1877 (1980).
In the instant case, the only evidence offered at trial to
suggest that defendant was further detained or seized by Officer
Kelly was that another police officer may have been present and
that Officer Kelly asked for consent to search her car. However,
these two factors alone do not create an atmosphere where a
reasonable person would not have believed she was free to leave.
Officer Kelly questioned defendant briefly and returned her license
and registration. Officer Kelly did not threaten defendant nor
show any force. In view of all the circumstances, we conclude
defendant had not been seized within the meaning of the Fourth
Amendment.
Defendant alternatively argues that her consent was coerced.
We disagree. “In determining whether a consent to search is 'voluntary' or
a product of duress or coercion, express or implied, the trial
court looks to the totality of the circumstances.” State v.
McDowell, 329 N.C. 363, 376, 407 S.E.2d 200, 207 (1991). This
Court has held that consent searches are valid where the consent is
given voluntarily and a reasonable person would have understood
that she had the right to withhold consent. Kincaid, 147 N.C.
App. at 100, 555 S.E.2d at 299. The Supreme Court of the United
States has held that the Fourth Amendment does not require that a
suspect be told she is free to go in order for her consent to a car
search to be considered voluntary. Ohio v. Robinette, 519 U.S. 33,
39-40, 117 S. Ct. 417, 421 (1996).
In the instant case, defendant has not shown that her consent
was coerced or otherwise involuntarily obtained. There is no
evidence that defendant was so intimidated that she felt she could
not reasonably leave. Nor is there any evidence defendant was
restrained or threatened by Officer Kelly. Officer Kelly did not
withhold defendant's license and registration, nor did he ask her
to exit her vehicle. None of defendant's personal property was
withheld and the entire stop lasted approximately ten minutes.
Defendant relies on the possibility that another officer was
present as her only grounds that here consent was coerced.
However, defendant offers no case law that suggests that the
presence of another officer is sufficient to show that a reasonable
person would not feel as though she was free to go. The trial court did not err in denying defendant's motion to
suppress evidence of cocaine found. This assignment of error is
overruled.
Affirmed.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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