[1] Preliminarily, we note that North Carolina General Statute
section 15A-979(b) provides that “[a]n order finally denying a
motion to suppress evidence may be reviewed upon an appeal from a
judgment of conviction, including a judgment entered upon a plea of
guilty.” N.C. Gen. Stat. § 15A-979(b) (2004). Our Supreme Court
has held that where a defendant intends to appeal from the denial
of a suppression motion pursuant to this section, he must
specifically give notice of his intention to the prosecutor and the
court before plea negotiations are finalized.
State v. Tew, 326
N.C. 732, 735, 392 S.E.2d 603, 605 (1990) (stating that “when a
defendant intends to appeal from the denial of a suppression motion
pursuant to this section, he must give notice of his intention to
the prosecutor and to the court before plea negotiations are
finalized; otherwise, he will waive the appeal of right provisions
of the statute[]”) (citing
State v. Reynolds, 298 N.C. 380, 259
S.E.2d 843 (1979),
cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795
(1980)).
Here, the State alleges that “[i]n this case, defendant failed
to notify the court, and arguably the prosecutor, that he was
purportedly reserving his right to appeal the results of the
suppression motion and has therefore waived his right to appeal
this issue.” We disagree.
Defendant's motion to suppress, one page of text, explicitlystated “[n]otice is given that defendant reserves the right to
appeal if this motion is denied and there is a subsequent plea of
guilty.” The hearing on this motion preceded the plea colloquy,
entry of judgment, and oral notice of appeal by only one day.
Moreover, when Defendant gave notice of appeal in open court
,
neither the trial court nor the State indicated that they had not
been notified of a potential appeal. Indeed, when the trial court
stated that, in light of Defendant's appeal, it would enter more
detailed written findings, the State responded “I think you were
thorough yesterday[,]” when oral findings were made. Additionally,
in its written order denying the suppression motion, the trial
court made no findings indicating that Defendant failed to give
notice of his reserving his right to appeal.
See State v. Atwell,
62 N.C. App. 643, 303 S.E.2d 402 (1983) (the trial court made
findings that the defendant had failed to give notice, but this
Court found the record to be ambiguous and granted review).
Because Defendant preserved the denial of his suppression motion
for appeal, we
now review this issue.
[2] “An appellate court accords great deference to the trial
court's ruling on a motion to suppress because the trial court is
entrusted with the duty to hear testimony (thereby observing the
demeanor of the witnesses) and to weigh and resolve any conflicts
in the evidence.”
State v. Johnston, 115 N.C. App. 711, 713, 446
S.E.2d 135, 137 (1994) (citing
State v. Cooke, 306 N.C. 132, 134,
291 S.E.2d 618, 619 (1982) and
State v. Smith, 278 N.C. 36, 41, 178
S.E.2d 597, 601,
cert. denied, 403 U.S. 934, 29 L. Ed. 2d 715(1971)). “'Our review of a trial court's denial of a motion to
suppress is strictly limited to a determination of whether it's
[sic] findings are supported by competent evidence, and in turn,
whether the findings support the trial court's ultimate
conclusion.'”
State v. Reynolds, 161 N.C. App. 144, 146-47, 587
S.E.2d 456, 458 (2003) (quoting
State v. Allison, 148 N.C. App.
702, 704, 559 S.E.2d 828, 829 (2002)). However, the trial court's
conclusions of law are reviewed
de novo and must be legally
correct.
State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357
(1997) (“[T]he trial court's conclusions of law must be legally
correct, reflecting a correct application of applicable legal
principles to the facts found.”) (citing
State v. Payne, 327 N.C.
194, 209, 394 S.E.2d 158, 166 (1990),
cert. denied, 498 U.S. 1092,
112 L. Ed. 2d 1062 (1991)).
[3] Defendant first argues that the portion of the trial
court's eighth finding of fact, stating “Trooper Whitley noticed a
strong odor of alcohol[,]” is not supported by any competent
evidence. We agree.
At the hearing on the suppression motion, Trooper
Whitley was
asked the following:
Q: And you didn't at any point smell any
alcohol on [Defendant]?
A: No.
Q: Or form any opinion that he was impaired
from alcohol?
A: No.
Q: And you didn't smell any marijuana on him
or form an opinion that he was impairedfrom marijuana?
A: No, sir.
Trooper Whitley neither retracted this testimony nor offered
conflicting testimony indicating that Defendant smelled of alcohol.
There is, therefore, no competent evidence to support the trial
court's finding that “Trooper Whitley noticed a strong odor of
alcohol.”
However, we disagree with Defendant's contention that because
the trial court's conclusions of law are based on the findings of
fact, including this finding that is not supported by competent
evidence, the “unsupported finding of fact taints the conclusions
of law and renders the judge's conclusions invalid.” Defendant
cites no authority for this contention, and this Court has
previously held that an order “will not be disturbed because of .
. . erroneous findings which do not affect the conclusions.”
Black
Horse Run Prop. Owners Assoc. v. Kaleel, 88 N.C. App. 83, 86, 362
S.E.2d 619, 622 (1987) (citations omitted). Moreover, “irrelevant
findings in a trial court's decision do not warrant a reversal of
the trial court.”
Goodson v. Goodson, 145 N.C. App. 356, 360, 551
S.E.2d 200, 204 (2001) (
citations omitted).
Here, as discussed in more detail below, the trial court's
finding that “Trooper Whitley noticed a strong odor of alcohol[]”
was not needed for the trial court to conclude, based on other
supported findings of fact, that:
1. That Trooper Whitley had probable cause to
stop the Defendant's vehicle.
2. That the Defendant understood Englishsufficiently well as to be able to knowingly,
freely and voluntarily consent to a search of
his vehicle.
3. That the Defendant did in fact knowingly,
freely and voluntarily consent both orally and
in writing to the search of his vehicle.
4. That the length of seizure was not too long
as to be unconstitutional.
5. That the Defendant does not set forth
grounds upon which relief can be granted in
accordance with the General Statutes of North
Carolina, the North Carolina Constitution, nor
the United States Constitution.
(See footnote 1)
Moreover, the unsupported finding does not affect these
conclusions. The trial court's order denying Defendant's
suppression motion will therefore not be overturned on the basis of
the unsupported finding.
[4]
Defendant next argues that the trial court's conclusion
that Defendant was not unconstitutionally seized is unsupported by
the evidence and is erroneous as a matter of law. We disagree.
“The Fourth Amendment of the United States Constitution . . .
protects 'the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.'”
State v. Mitchell, 358 N.C. 63, 72, 592 S.E.2d 543,
548-49 (2004) (quoting U.S. Const. amend. IV and citing N.C. Const.
art. I, § 20 (“General warrants, whereby any officer or otherperson may be commanded to search suspected places without evidence
of the act committed, or to seize any person or persons not named,
whose offense is not particularly described and supported by
evidence, are dangerous to liberty and shall not be granted.”)).
However, “[t]he United States Supreme Court has recently held
that the temporary detention of a motorist upon probable cause to
believe that he has violated a traffic law is not inconsistent with
the Fourth Amendment's prohibition against unreasonable seizures .
. ..”
Hamilton,
125 N.C. App. at 399, 481 S.E.2d at 100 (footnote
omitted) (citing
Whren v. U.S., 517 U.S. 806, 135 L. Ed. 2d 89
(1996)). “Probable cause exists if 'the facts and circumstances
within [the] knowledge [of the officer] were sufficient to warrant
a prudent man in believing that the (suspect) had committed or was
committing the offense.'”
Id. (quoting
State v. Streeter, 283 N.C.
203, 207, 195 S.E.2d 502, 505 (1973)). “In North Carolina an
officer may stop and issue a citation to any motorist who 'he has
probable cause to believe has committed a misdemeanor or
infraction.'”
Id. at
400, 481 S.E.2d at 100 (quoting
N.C. Gen.
Stat. § 15A-302(b)). Moreover, in North Carolina
Each front seat occupant who is 16 years of
age or older and each driver of a passenger
motor vehicle manufactured with seat belts
shall have a seat belt properly fastened about
his or her body at all times when the vehicle
is in forward motion on a street or highway in
this State.
N.C. Gen. Stat. § 20-135.2A(a) (2004).
“Any driver or passenger
who fails to wear a seat belt as required by this section shall
have committed an infraction . . ..”
N.C. Gen. Stat. §20-135.2A(e) (2004);
Hamilton, 125 N.C. App.
at 400, 481 S.E.2d at
100
.
Here, the trial court found, in its fifth written finding of
fact, that “Trooper Whitley observed [Defendant] remove his seat
belt while the vehicle was moving in a forward direction.
” This
finding is supported by competent evidence, particularly Trooper
Whitley's testimony that “[w]hen [Defendant's vehicle] made the
left turn on Daughtry, I was directly behind the vehicle . . . and
noticed that the driver removed his seat belt while on Daughtry
Street, and then I initiated a traffic stop for the seat belt.”
The finding that Trooper Whitley saw Defendant commit a seat belt
law infraction supported the trial court's conclusion of law
“[t]hat Trooper Whitley had probable cause to stop the Defendant's
vehicle.”
Hamilton,
125 N.C. App. at 399-400, 481 S.E.2d at 100.
In a case with similar facts,
State v. Wilson, 155 N.C. App.
89, 94-96, 574 S.E.2d 93, 97-99 (2002) ,
disc. review denied, 356
N.C. 693, 579 S.E.2d 98 (2003)
, a highway patrolman stopped the
defendants for speeding and tailgating, asked the driver defendant
to accompany him to his patrol car for issuance of the traffic
citation, received permission to search the defendant's vehicle,
and therein found cocaine. In
Wilson, the driver defendant alleged
that his detention was unconstitutional. This Court, however,
disagreed, finding:
Defendant Wilson's violation of Section
20-152(a) established the probable cause
needed to initially stop the vehicle . . ..
Once stopped, defendants were detained long
enough for Trooper Mountain to ask Defendant
Wilson questions about the vehicle and histravel plans, as well as check Defendant
Wilson's license and the vehicle registration,
both of which were out-of-state. While in the
patrol car, Trooper Mountain observed that
Defendant Wilson was extremely nervous. Once
Trooper Mountain completed the required
checks, he issued Defendant Wilson a warning
ticket, and Wilson was free to leave. This
process took approximately seven to eight
minutes. Thus, these questions and actions
were all reasonably related to Trooper
Mountain's underlying justification of issuing
a warning ticket.
Id. at 96, 574 S.E.2d at 98-99
;
see also State v. McClendon, 130
N.C. App. 368, 502 S.E.2d 902 (1998) (detention held constitutional
where the defendant was stopped for a traffic law violation, the
patrolman requested that the defendant accompany him to his patrol
car, and the patrolman asked the defendant a moderate number of
questions),
aff'd, 350 N.C. at 636, 517 S.E.2d at 132 (1999)
;
State
v. Morocco, 99 N.C. App. 421, 393 S.E.2d 545 (1990) (finding, in
the context of a traffic stop where the defendant claimed he was
illegally detained in a patrol car while an officer prepared a
consent-to-search form, that the defendant's detention was
voluntary and in the spirit of cooperation and that the officer's
polite conversation with the defendant during the stop was
permissible)
.
Here as in
Wilson, Trooper Whitley's detaining Defendant,
requesting that Defendant accompany him to his patrol car, running
checks on Defendant's license and registration,
issuing him a
citation, and questioning Defendant during that time about
his
travel plans were reasonably related to the stop based on the seat
belt infraction. Moreover, the length of Defendant's detention wasapproximately six minutes,
i.e., even shorter than the detention in
Wilson.
Further, the record reflects that, upon issuing the
citation, Defendant was free to leave: When Trooper Whitley was
asked “Did you, when he first sat down in the patrol car to have
the ticket written, did you consider that he was free to walk away
and leave at that point?” he responded “After I wrote him the
seatbelt ticket he was.” Moreover, in response to the question
“Did you feel that you could leave at any moment if you wanted to?”
Defendant testified “Yes, I felt free. I felt that way because my
plates were, because the ticket was just for the, [sic] I did not
felt [sic] I had any other problem.”
While Trooper Whitley expanded the scope of Defendant's
detention based on the seat belt law infraction, particularly by
asking Defendant if his vehicle contained any contraband or
weapons, the detention was still constitutional.
“Generally, 'the scope of the detention must be carefully
tailored to its underlying justification.'”
McClendon, 130 N.C.
App. at 375, 502 S.E.2d at 906 (quoting
Morocco, 99 N.C. App. at
427-28, 393 S.E.2d at 549). To expand the scope of a lawful
detention, “an officer must have reasonable suspicion, based on
specific and articulable facts, that criminal activity is afoot.”
McClendon, 350 N.C. at 636, 517 S.E.2d at 132 (citation omitted).
The specific and articuable facts, and
the rational inferences
drawn from them, are to be “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) (citations omitted). In determining whether the further
detention was reasonable, the court must consider the totality of
the circumstances.
State v. Munoz, 141 N.C. App. 675, 682, 541
S.E.2d 218, 222,
cert. denied, 353 N.C. 454, 548 S.E.2d 534 (2001).
Facts giving rise to a reasonable suspicion include nervousness,
sweating, failing to make eye contact, conflicting statements, and
strong odor of air freshener.
See, e.g., McClendon, 350 N.C. at
637, 517 S.E.2d at 133;
Wilson, 155 N.C. App. at 96-97, 574 S.E.2d
at 99
. “After a lawful stop, an officer may ask the detainee
questions in order to obtain information confirming or dispelling
the officer's suspicions.”
McClendon, 350 N.C. at 636, 517 S.E.2d
at 132-33 (citations omitted).
Here, specific articulable facts supporting a reasonable
suspicion of criminal activity existed.
(See footnote 2)
The trial court found
that “
Defendant was very nervous and Trooper Whitley could see the
Defendant's shirt move as his heart was beating.” This finding is
supported by competent evidence, particularly Trooper Whitley's
testimony that: [Defendant] was extremely nervous. He
appeared to me to [sic] very nervous. When we
talked he was looking around, his eyes
darting, shifting. He wouldn't look directly
at me. I also noticed his shirt was, his
heart was beating and his shirt was moving.
That seemed unusual to me, making a traffic
stop or a seat belt [sic], people are
generally not that nervous.
The trial court also found that “Trooper Whitley asked Defendant
where he was going and the Defendant stated that his tire needed
air. Based on Trooper Whitley's observations all tires looked
inflated.” This finding is supported by competent evidence, namely
Trooper Whitley's testimony, indicating that Defendant gave Trooper
Whitley conflicting statements:
I just asked him what he was doing, where he
was headed to. And he told me that his tires
needed some air so he pulled up to the gas
station. As I noticed his vehicle it didn't
appear to me that either [sic] one of the four
tires needed any air, they were all properly
inflated. I started writing the citation out
and asked him again where he was headed to.
He told me that he was going to meet a friend.
I said, 'Well, you just told me you were going
to get some air in your tires.' At this point
he just looked down at the floor and didn't
say anything else to me.
Moreover, the trial court found that Trooper Whitley noticed
Christmas tree air fresheners emanating a strong odor in
Defendant's vehicle. This finding is supported by competent
evidence: Trooper Whitley testified that “I noticed there were
several of these Christmas trees, air fresheners in the vehicle.
I noticed a strong odor coming from the vehicle.”
In sum, because both probable cause and a reasonable suspicion
existed here, the trial court did not err in concluding thatDefendant was not subject to an unlawful seizure and was not
entitled to relief under the North Carolina or United States
Constitutions.
[5] Defendant next contends that the trial court's conclusion
of law that Defendant consented to the search of his vehicle is not
supported by the evidence and is erroneous as a matter of law. We
disagree.
The consent needed to justify a [vehicle]
search may be given by the “person in apparent
control of [a vehicle's] operation and
contents at the time the consent is given.”
N.C. Gen. Stat. § 15A-222 (2001). When
seeking to rely on the consent given to
support the validity of a search, the State
has “the burden of proving that the consent
was voluntary.”
State v. Morocco, 99 N.C.
App. at 429, 393 S.E.2d at 549. In
determining whether this burden has been met,
the court must look at the totality of the
circumstances.
State v. Steen, 352 N.C. 227,
240, 536 S.E.2d 1, 9 (2000),
cert. denied, 531
U.S. 1167, 148 L. Ed. 2d 997 (2001).
Wilson, 155 N.C. App. at 97, 574 S.E.2d at 99
. “At a hearing to
determine the voluntariness of a defendant's consent to a search of
his property, the weight to be given the evidence is peculiarly a
determination for the trial court, and its findings are conclusive
when supported by competent evidence.”
State v. Aubin, 100 N.C.
App. 628, 633, 397 S.E.2d 653, 656 (1990) (citing
State v. Long,
293 N.C. 286, 237 S.E.2d 728 (1977) and
State v. Fincher, 309 N.C.
1, 305 S.E.2d 685 (1983)),
disc. review denied, 328 N.C. 334, 402
S.E.2d 433,
cert. denied, 502 U.S. 842, 116 L. Ed. 2d 101 (1991).
Here, the trial court found that “Defendant was read a
'consent to search' form. The Defendant understood English andgave verbal and written consent to search his vehicle.” The trial
court also found that
The Defendant gave a verbal and written
consent to search, after the Defendant was
read the consent to search by the State
Highway Patrolman. The Defendant then signed
the Consent to Search and it was the officer's
impression that Defendant understood English.
The Defendant testified and the Court finds
that the Defendant understood his rights not
to consent to the search and that the
Defendant felt that he was “free to leave”
after the citation had been written.”
. . . The Court finds that the consent to
search was given understandingly and
voluntarily and freely given [sic].
These findings are supported by competent evidence, particularly
Trooper Whitley's testimony that:
I then asked [Defendant]
for consent to search
his vehicle, and [Defendant] gave me verbal
and written consent to search his vehicle.
Q: Did you in fact get a written consent to
search?
A: I did.
* * *
Q: Did you tell Mr. Hernandez that you
wanted to search his vehicle?
A: Yes, ma'am. I asked him could I search
his vehicle.
Q: What did he say?
A: He said okay.
Q: And then you subsequently asked him to
sign this consent to search his vehicle,
is that correct?
A: Actually I read it to him out loud andthen I handed it to him. I said 'It is
okay now for me to look in your vehicle?'
He said 'That's okay.' I asked him,
'Will you sign?' and he did.
Q: And he appeared to understand what you
were saying to him?
A: Yes, ma'am.
Q: Did he ever tell you he didn't speak
English and that he needed an
interpreter?
A: He never told me that.
* * *
COURT: Were you speaking English?
A: Yes, sir.
COURT: He understood it?
A: Yes, sir.
There was also competent evidence that, upon the issuance of the
citation, Defendant was free to leave: When Trooper Whitley was
asked “Did you, when he first sat down in the patrol car to have
the ticket written, did you consider that he was free to walk away
and leave at that point?” he responded “After I wrote him the
seatbelt ticket he was.” In response to the question “Did you feel
that you could leave at any moment if you wanted to?” Defendant
testified “Yes, I felt free. I felt that way because my plates
were, because the ticket was just for the, [sic] I did not felt
[sic] I had any other problem.”
The trial court's findings, which are supported by competent
evidence, in turn support the trial court's conclusions that: “the
Defendant understood English sufficiently well as to be able toknowingly, freely and voluntarily consent to a search of his
vehicle[,]” and “the Defendant did in fact knowingly, freely and
voluntarily consent both orally and in writing to the search of his
vehicle.” The State therefore met its burden of proving that
Defendant's consent to the search of his vehicle was voluntary
under the totality of the circumstances.
For the reasons stated herein, we affirm the order of the
trial court.
Affirmed.
Judges TYSON and ELMORE concur.
Footnote: 1