An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-665


Filed: 6 April 2004


         v.                         Stokes County
                                    Nos. 01 CRS 50848-54
BILLY JOE PENLAND                     01 CRS 2493    

    Appeal by defendant from judgments entered 25 July 2002 by Judge W. Douglas Albright in Stokes County Superior Court. Heard in the Court of Appeals 15 March 2004.

    Attorney General Roy Cooper, by Assistant Attorney General Lori A. Kroll, for the State.

    Michael E. Casterline for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Billy Joe Penland seeks review of the trial court's denial of his motion to suppress evidence obtained during a warrantless search of his vehicle. The evidence at the motion hearing tends to show that in the early morning hours of 4 July 2001, Deputy Eddie Justice of the Stokes County Sheriff's Department was on patrol checking on closed businesses in an area which had reports of frequent break-ins, when he observed an unfamiliar vehicle driving significantly below the posted speed limit. Deputy Justice became immediately suspicious and pulled behind the vehicle, noted to be a 1999 black Eclipse. The deputy then called in a code 1060--suspicious activity, and ran the license plate number. The plate came back as not being issued forthat particular vehicle, and after confirming this report with the dispatcher, Deputy Justice initiated a traffic stop.
    When the vehicle pulled to the shoulder, the driver identified himself as Billy Joe Penland (defendant). At Deputy Justice's request, defendant produced his driver's license. When asked about the license plate, defendant explained that he had just purchased the car and had not yet registered it. Deputy Justice noticed a passenger in the vehicle and the smell of marijuana wafting from the vehicle. At that time, the deputy asked defendant to accompany him back to the patrol car, which he did. The passenger remained seated in defendant's vehicle. Shortly thereafter Deputy Kelly Beard, of the Stokes County Sheriff's Department and the Town of Walnut Cove, arrived as backup.
    Once defendant was in his cruiser, Deputy Justice asked defendant if he was in possession of marijuana. In response, defendant voluntarily gave Deputy Justice a quantity of marijuana, and an apparatus for smoking marijuana. The deputy then began to issue a citation to defendant. While preparing the citation, Deputy Justice continued to converse with defendant, and further inquired as to whether there was anything else in his possession that he wanted to tell the deputy. Defendant said no, whereupon Deputy Justice asked if he could search defendant's vehicle. Defendant stated that he would rather the deputy not search the vehicle. The deputy continued, explaining to defendant that if he had nothing to hide, then he should let him search the vehicle. Though it was 2:50 a.m., defendant insisted that he needed to getgoing because he had a lot to do. The deputy then explained that he could arrest defendant for possession of marijuana and search the vehicle incident to that arrest, or defendant could simply consent to the search since he had nothing to hide. Defendant finally consented to the search. During a subsequent search of the vehicle, the deputy found a loaded .45 caliber handgun under the driver's floor mat and 50 rounds of ammunition, including two loaded magazine clips in other areas of the vehicle.
    After hearing the evidence, the trial court denied defendant's motion to suppress in open court. Specifically, the court found and concluded that Deputy Justice possessed articulable, reasonable suspicion when he initiated the 4 July 2001 traffic stop; and that the deputy had probable cause to arrest defendant at the time that the deputy detected the odor of marijuana emitting from defendant's vehicle, and in response to the deputy's inquiry, defendant gave the deputy a quantity of marijuana and a marijuana pipe. The court also found and concluded that defendant consented to the search of his vehicle, and after finding the firearm in defendant's possession, Deputy Justice possessed probable cause to arrest defendant for the offense of the possession of a firearm by a felon. Though instructed to do so, it does not appear that the district attorney drafted an order reflecting the trial court's ruling on the motion to suppress.
    This matter proceeded to trial on the charges of possession of a firearm by a felon, misdemeanor assault of a government official (2 counts), resisting a public officer, carrying a concealed gun,injury to personal property, misdemeanor larceny, possession of marijuana, and possession of drug paraphernalia. The jury found defendant guilty of all of the charges, with the exception of one of the counts of assault on a governmental official. The trial court sentenced defendant to both active and suspended sentences. Defendant appealed.
    On appeal, defendant argues that the trial court erred in denying his motion to suppress. We disagree.
    Without question, the Fourth Amendment, applied to the states through the Fourteenth Amendment, protects individuals from unreasonable searches and seizures. State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). “'Consent, however, has long been recognized as 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.'” Consent must, however, be voluntarily and knowingly given for the evidence seized during a search to be admissible at trial. State v. Barden, 356 N.C. 316, 341, 572 S.E.2d 108, 125 (2002), cert. denied, ___ U.S. ___, 155 L. Ed. 2d 1074 (2003). “[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express 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 motion to suppress, this Court “'is strictly limited to determining whether the trial judge's underlyingfindings 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 judge's ultimate conclusions of law.'” State v. Bell, 156 N.C. App. 350, 353, 576 S.E.2d 695, 697 (2003)(quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted)). The Court's review is further limited, where, as here, defendant fails to specifically assign error to the trial court's findings. In such cases, the trial court's findings are deemed proper and are 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.").
    In the instant case, the evidence tends to show that during the early morning hours of 4 July 2001, Deputy Eddie Justice observed defendant driving below the posted speed limit through a commercial area that had been plagued by recent break-ins. Deputy Justice subsequently ran defendant's license plate and found that it did not match the car driven by defendant. The deputy, therefore, decided to initiate a traffic stop. Once Deputy Justice stopped and approached the vehicle, he noticed that defendant was driving the vehicle, and that there was one passenger in the front seat. The deputy detected the odor of marijuana emanating from the interior of the vehicle. When he asked defendant about the odor,defendant voluntarily gave Deputy Justice a quantity of marijuana and a device for smoking marijuana. At this point, the deputy inquired of defendant whether he could search the vehicle. Initially, defendant told Deputy Justice that he rather the deputy not search the vehicle, and that he needed to leave because he had a lot to do. However, after the deputy explained that he could be arrested for possession of marijuana and the vehicle searched incident to that arrest, defendant consented to the search. A search of the vehicle yielded a loaded .45 caliber handgun under the driver's floor mat, in addition to ammunition elsewhere in the vehicle.
    As the trial court found and concluded, we now hold that when Deputy Justice stopped defendant-- with or without the dispatcher's confirmation that the license plate did not match defendant's vehicle--the deputy had reasonable, articulable suspicion to justify the stop. Moreover, when, after the initial stop, the deputy smelled the odor of marijuana and defendant gave the officer a quantity of marijuana and drug paraphernalia, the deputy had probable cause to arrest defendant. See State v. Earhart, 134 N.C. App. 130, 133, 516 S.E.2d 883, 886, appeal dismissed, 351 N.C. 112, 540 S.E.2d 372 (1999) (noting that “[a] search of a vehicle on a public roadway or public vehicular area is properly conducted without a warrant as long as probable cause exists for the search”; and specifying that “'[p]robable cause exists where “the facts and circumstances within their [an officer's] knowledge and of which [he] had reasonable trustworthy information . . . to warrant a manof reasonable caution in the belief that” an offense has been or is being committed.'” Id. (citations omitted). In addition, although defendant argues that his consent was coerced by Deputy Justice's statement that he could arrest him for possession of marijuana and then search the vehicle incident to his arrest, we disagree. See State v. Paschal, 35 N.C. App. 239, 241, 241 S.E.2d 92, 94 (1978)(“'As a general rule, it is not duress to threaten to do what one has a legal right to do. Nor is it duress to threaten to take any measure authorized by law and the circumstances of the case.'”) (quoting 25 Am. Jur. 2d Duress & Undue Influence, § 18, p. 375); State v. Davis, 26 N.C. App. 696, 699, 217 S.E.2d 131, 133 (1975) (holding that informing defendant that probable cause to obtain a search warrant existed did not invalidate defendant's voluntary consent to search defendant's vehicle because it was a true statement of fact). Finally, even assuming arguendo that defendant had not consented to a search of his vehicle, a search of defendant's vehicle, incident to his lawful arrest, was also permitted.
    We then uphold the trial court's findings and conclusions in this regard as proper. We, therefore, conclude that the trial court did not err in denying defendant's motion to dismiss.
    In sum, the trial court's denial of defendant's motion to suppress is affirmed.
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***