Search and Seizure_-investigatory stop--drugs--motion to suppress--pat down
The trial court did not err in a trafficking in cocaine by possession and transportation case
by denying defendant's motion to suppress evidence obtained from the search of his motor
vehicle, because: (1) officers had a reasonable articulable suspicion that defendant was involved
in illegal activity at the time they made the investigatory vehicle stop;
(2) the police lawfully stopped a vehicle fitting a description given by a reliable confidential
informant, lawfully entered and moved the vehicle with defendant's consent, and smelled cocaine
upon entering the vehicle; (3) an officer does not need to obtain a warrant or have probable cause
to enter a vehicle if the owner of the vehicle gives consent; (4) a search warrant is not required
before a lawful search based on probable cause of a motor vehicle in a public roadway or in a
public vehicular area may take place; (5) plain smell of drugs by an officer is evidence to
conclude there is probable cause for a search; and (6) although defendant contends the pat down
of his person violated his constitutional rights, this argument is irrelevant when neither the pat
down nor the evidence of marijuana found on defendant's person factored into the legality of the
vehicular stop, entry and movement of the vehicle, and search of the vehicle leading to the
cocaine charges.
Attorney General Roy Cooper, by Assistant Attorney General
Rudy Renfer, for the State.
McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and
Terri W. Sharp, for defendant-appellant.
WYNN, Judge.
Under North Carolina law, a search warrant is not required to
conduct a lawful search based on probable cause of a motor vehicle
in a public roadway or in a public vehicular area. State v.
Isleib, 319 N.C. 634, 638, 356 S.E.2d 573, 576 (1987). In this
case, the record shows that the police lawfully stopped a vehicle
fitting a description given by a reliable confidential informant,lawfully entered and moved the vehicle with Defendant's consent,
and smelled cocaine upon entering and moving the vehicle. Because
we hold that these facts show that probable cause existed to search
the vehicle, we affirm the order of the trial court denying
Defendant's motion to suppress evidence obtained from the search.
At trial, Defendant pled no contest to the charges of
trafficking cocaine by possession and trafficking in cocaine by
transporation. This appeal arises from his reservation of the
right to appeal from the denial of his motion to suppress evidence
obtained by police officers from the search of his vehicle.
The evidence at the motion to suppress hearing tended to show
the following: On 1 March 2003, Sergeant Norman Johnson,
supervisor of the Dare County narcotics unit, received a phone call
from a confidential informant concerning Defendant William Downing.
The confidential informant had previously provided reliable
information in three other narcotics-related cases; Sergeant
Johnson had spoken with the informant several times before;
Sergeant Johnson had corroborated the informant's prior
information, and each time it proved accurate; and the confidential
informant was not receiving any compensation for this information.
In December 2002, the confidential informant told Sergeant
Johnson that Defendant and another man, Jamie, were picking up
cocaine from the Petersburg/Richmond, Virginia area and bringing it
to Dare County. Investigator Kevin Duprey, a member of the Dare
County narcotics unit, had an open narcotics investigation
concerning Jamie and his residence on Loblolly Court. On aprevious occasion, the informant told Sergeant Johnson that he had
seen Defendant bring cocaine and marijuana to Jamie's house on
Loblolly Court.
Before 1 March 2003, Sergeant Johnson had observed a white
Ford Aerostar van at Defendant's residence in Kill Devil Hills,
North Carolina. After running the license plate number, Sergeant
Johnson learned the van was registered to Defendant. The informant
also gave a physical description of Defendant that matched his
photograph from the Department of Motor Vehicles.
On 1 March 2003 at around 4:30 p.m., the informant called
Sergeant Johnson and informed him that he had been in the Loblolly
Court residence earlier that day and overheard a conversation
between Defendant and Jamie. The informant stated that Defendant
was leaving for the Petersburg/Richmond, Virginia area at
approximately 3:00 p.m. that day to pick up cocaine and would be
returning to Dare County at approximately 8:00 p.m. The informant
stated that Defendant would be alone, driving a white Ford Aerostar
van.
Investigator Duprey drove by Defendant's residence and
observed that the white Ford Aerostar van was not parked at the
residence. Sergeant Johnson knew the direct route of travel from
Peterburg/Richmond to Dare County would be to cross the Currituck
Sound using Highway 158. At approximately 6:30 p.m., Sergeant
Johnson and Investigator Duprey sat in a vehicle on the side of
Highway 158 just as the highway comes off the Currituck Sound
Bridge into Dare County. About two hours later, a white FordAerostar van passed the officers' location heading south into Dare
County on Highway 158. The officers pulled behind the van and
confirmed that the license plate number on the van matched that of
the vehicle registered to Defendant. It appeared to the officers
that there was only one person in the van.
The officers activated their blue lights, and the van pulled
into the main two-lane entrance for a complex of stores. Deputy
Ethridge pulled in front of the van, and Investigator Duprey parked
behind the van. Defendant, who was alone in the van, produced his
driver's license confirming that he was in fact the person they
were looking for.
The officers asked Defendant to step out of the vehicle.
Defendant said he had just come from Petersburg. Deputy Etheridge
patted Defendant down for weapons and found a small amount of
marijuana and a pipe in one of his pockets. Investigator Duprey
informed Defendant that the officers needed to move the van because
it was creating a traffic hazard and for investigative purposes.
Defendant told officers that he would move the van. But the
officers explained he could not get in the van unless he rode with
an officer and told them “where the drugs were[.]” At this point,
Defendant was not under arrest or “Mirandized.” Defendant was
handcuffed for officer safety reasons and Sergeant Johnson moved
the van after Defendant consented.
While moving the van, Sergeant Johnson “smelled a strong odor
of what smelled like cocaine.” Officers then searched the vehicle,
although Defendant did not consent, and located a Wendy'srestaurant food bag between the driver's seat and front passenger
seat. Inside the food bag was a plastic bag containing
approximately six ounces of cocaine. The officers then placed
Defendant under arrest.
Following the trial court's denial of his Motion to Suppress
all evidence seized from the stop of the van, Defendant reserved
his right to appeal the ruling and pled no contest to the charges.
Defendant was sentenced to two consecutive sentences of thirty-five
to forty-two months imprisonment and a $100,000 fine. Defendant
appealed the denial of the motion to suppress.
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Defendant argues that the trial court erred in denying his
motion to suppress because his constitutional rights were violated
by the illegal (1) stopping of his vehicle; (2) movement and search
of his vehicle; and (3) pat down of his person. We disagree.
“The standard of review in evaluating a trial court's ruling
on a motion to suppress is that the trial court's findings of fact
'are conclusive on appeal if supported by competent evidence, even
if the evidence is conflicting.'” State v. Smith, 160 N.C. App.
107, 114, 584 S.E.2d 830, 835 (2003) (citation omitted). If the
trial court's conclusions of law are supported by its factual
findings, we will not disturb those conclusions on appeal. State
v. Logner, 148 N.C. App. 135, 138, 557 S.E.2d 191, 193-94 (2001).
Where an appellant fails to assign error to the trial court's
findings of fact, the findings are “presumed to be correct.”
Inspirational Network, Inc. v. Combs, 131 N.C. App. 231, 235, 506S.E.2d 754, 758 (1998). As Defendant failed to assign error to any
findings of fact, our review is limited to the question of whether
the trial court's findings of fact, which are presumed to be
supported by competent evidence, support its conclusions of law and
judgment. Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587
591-92, 525 S.E.2d 481, 484 (2000).
Defendant argues that the stop of his vehicle violated his
constitutional rights under the Fourth, Fifth, and Sixth Amendments
of the United States Constitution and Article I, Section 20 of the
North Carolina Constitution. We disagree.
The Fourth Amendment of the United States Constitution and
Article I, Section 20 of the North Carolina Constitution prohibit
unreasonable searches and seizures. These constitutional
provisions apply to “brief investigatory detentions such as those
involved in the stopping of a vehicle.” State v. Watkins, 337 N.C.
437, 441, 446 S.E.2d 67, 70 (1994) (citation omitted). An
investigatory stop must be based upon a reasonable articulable
suspicion the person is, was, or will be involved in criminal
activity. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct.
1868 (1968); State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert.
denied, 444 U.S. 907, 62 L. Ed. 2d 143, 100 S. Ct. 220 (1979). In
determining the validity of the stop, the reviewing court must
consider the totality of the circumstances known to the officer at
the time of the stop, and determine whether a “reasonable and
cautious” police officer would have had a reasonable articulablesuspicion that criminal activity was afoot. State v. Jones, 96
N.C. App. 389, 395, 386 S.E.2d 217, 221 (1989).
Here, officers had a reasonable articulable suspicion that
Defendant was involved in illegal activity at the time they made
the investigatory vehicle stop. The uncontested findings of fact
show: (1) a confidential informant told police that Defendant would
be transporting cocaine that day; (2) Defendant was driving a
vehicle that matched the description given by the informant; (3)
the tag numbers on the vehicle matched that of the vehicle
registered to Defendant; (4) Defendant was driving on the suspected
route for drug transportation; and (5) Defendant crossed into Dare
County at the approximate time indicated by the informant. The
totality of the circumstances gave police a reasonable articulable
suspicion that Defendant was transporting drugs. Jones, 96 N.C.
App. at 395, 386 S.E.2d at 221. Therefore, the vehicle stop did
not violate Defendant's federal or state constitutional rights.
Defendant next argues that the subsequent entry and movement
of his vehicle violated his constitutional rights under the Fourth,
Fifth, and Sixth Amendments of the United States Constitution and
Article I, Section 20 of the North Carolina Constitution. We
disagree.
An officer does not need to obtain a warrant or have probable
cause to enter a vehicle if the owner of the vehicle gives consent.
State v. Barden, 356 N.C. 316, 340-41, 572 S.E.2d 108, 125 (2002);
State v. Jones, 161 N.C. App. 615, 618-19, 589 S.E.2d 374, 376
(2003). The findings of fact explicitly state “. . . [Defendant]gave Sgt. Johnson permission to move the van . . ..” As Defendant
did not assign error to this finding of fact, it is presumed
correct. Inspirational Network, Inc., 131 N.C. App. at 235, 506
S.E.2d at 758. As consent was given, Defendant's federal and state
constitutional rights were not violated when Sergeant Johnson
entered and moved the vehicle.
Defendant next argues that the officers searched Defendant's
vehicle without a search warrant and without probable cause to
search the vehicle in violation of his constitutional rights under
the Fourth, Fifth, and Sixth Amendments of the United States
Constitution and Article I, Section 20 of the North Carolina
Constitution. We disagree.
It is a well-established rule that a search warrant is not
required before a lawful search based on probable cause of a motor
vehicle in a public roadway or in a public vehicular area may take
place. United States v. Ross, 456 U.S. 798, 809, 72 L. Ed. 2d 572,
583-84 (1982); Isleib, 319 N.C. at 638, 356 S.E.2d at 576.
“'Probable cause exists where 'the facts and circumstances within
their [the officers'] knowledge and of which they had reasonable
trustworthy information [are] sufficient in themselves to warrant
a man of reasonable caution in the belief that' an offense has been
or is being committed.'” State v. Earhart, 134 N.C. App. 130, 133,
516 S.E.2d 883, 886 (1999) (quoting State v. Zuniga, 312 N.C. 251,
261, 322 S.E.2d 140, 146 (1984)). “In utilizing an informant's
tip, probable cause is determined using a
'totality-of-the-circumstances' analysis which 'permits a balancedassessment of the relative weights of all the various indicia of
reliability (and unreliability) attending an informant's tip.'”
Earhart, 134 N.C. App. at 133, 516 S.E.2d at 886 (quoting Illinois
v. Gates, 462 U.S. 213, 234, 76 L. Ed. 2d 527, 545, rehearing
denied, 463 U.S. 1237, 77 L. Ed. 2d 1453 (1983)).
As stated earlier, the uncontested findings of fact show: (1)
a confidential informant told police that Defendant would be
transporting cocaine that day; (2) Defendant was driving a vehicle
that matched the description given by the informant; (3) the tag
numbers on the vehicle matched that of the vehicle registered to
Defendant; (4) Defendant was driving on the suspected route for
drug transportation; and (5) Defendant crossed into Dare County at
the approximate time indicated by the informant. Also, the
informant had provided accurate narcotics information to Sergeant
Johnson on three prior occasions.
Moreover, upon lawfully entering and moving the vehicle,
Sergeant Johnson “smelled a strong odor of what smelled like
cocaine.” Plain smell of drugs by an officer is evidence to
conclude there is probable cause for a search. State v. Trapper,
48 N.C. App. 481, 484-85, 269 S.E.2d 680, 682, appeal dismissed,
301 N.C. 405, 273 S.E.2d 450 (1980), cert. denied, 451 U.S. 997, 68
L. Ed. 2d 856 (1981) (affidavit containing a statement that a
strong odor of marijuana was noticed was evidence from which a
magistrate could conclude there was probable cause to issue a
search warrant). In sum, the totality of the circumstances of Defendant's
vehicle and identity match to the informant's tip along with the
odor of cocaine gave the officers probable cause that an offense
was being committed. Earhart, 134 N.C. App. at 133, 516 S.E.2d at
886. Therefore, the officers did not violate Defendant's federal
or state constitutional rights when searching the vehicle. Isleib,
319 N.C. at 638, 356 S.E.2d at 576.
Finally, Defendant argues that the pat down of his person
violated his constitutional rights under the Fourth, Fifth, and
Sixth Amendments of the United States Constitution and Article I,
Section 20 of the North Carolina Constitution. Regardless of
whether the pat down was illegal, this argument is irrelevant.
Neither the pat down nor the evidence of marijuana found on
Defendant's person factored in our analysis of the legality of the
vehicular stop, entry and movement of the vehicle, and search of
the vehicle leading to the cocaine charges against Defendant.
Indeed, the officers found only marijuana on Defendant's person
during the pat down search. Defendant was never charged with any
drug offense for the possession of marijuana. Therefore, even if
the marijuana should have been excluded from evidence, it would
have been harmless error for the transportation of cocaine charges.
The trial court's denial of the motion to suppress was proper
and we therefore affirm the order of the trial court.
Affirmed.
Judges TYSON and ELMORE concur.
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