Appeal by defendant from judgment entered 7 October 2003 by
Judge Paul L. Jones in Superior Court, Pamlico County. Heard in
the Court of Appeals 14 June 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Martin T. McCracken, for the State.
Daniel F. Read for defendant-appellant.
McGEE, Judge.
Leon George Baublitz, Jr. (defendant) was convicted on 7
October 2003 of possession of a controlled substance. He was placed
on supervised probation for twenty-four months. Defendant appeals.
The State's evidence at trial tended to show that Investigator
Scott Houston (Investigator Houston) of the Pamlico County Sheriff's
Department was conducting surveillance at the residence of Gloria
Midgette (Midgette), a suspected crack cocaine dealer, on 22
November 2002. Around 8:00 or 8:30 p.m., Investigator Houston saw
defendant pull his vehicle into Midgette's driveway. Investigator
Houston saw Milton Cornell Davis (Davis), whom Houston knew as a
drug runner for Midgette, approach defendant's vehicle from
Midgette's home. Davis talked briefly with defendant and then
walked back to Midgette's home. Davis soon returned to defendant'svehicle, and Davis and defendant drove off together.
Investigator Houston followed defendant's vehicle and observed
the vehicle cross the center line of the highway twice.
Investigator Houston stopped defendant's vehicle. When he looked
inside the vehicle, Investigator Houston saw a piece of plastic on
the floor between defendant's feet. The piece of plastic was the
corner of a plastic bag that had been cut and knotted at the top.
Investigator Houston noticed that the bag contained an off-white
residue and, based on his six-year history of over 300 arrests,
believed it to be cocaine. Investigator Houston asked defendant to
step out of the vehicle, and defendant complied. Investigator
Houston asked defendant if defendant had any contraband in the
vehicle. Defendant replied that he did not. Investigator Houston
explicitly asked for defendant's permission to search the vehicle.
Defendant agreed to the search.
Investigator Houston performed a pat-down search of defendant
and Davis, and a quick search of defendant's vehicle to retrieve the
plastic bag. Defendant stood at the trunk of his vehicle during
this time. Probation Officer Larry Collins (Officer Collins) was
passing by and witnessed the traffic stop. Officer Collins stopped
to offer his assistance and informed Investigator Houston that Davis
was on probation and subject to warrantless searches. Officer
Collins searched Davis and found a crack-smoking device in Davis's
shoe. Investigator Houston asked defendant to sit in Investigator
Houston's vehicle.
Officer Collins informed Investigator Houston that Davis wishedto cooperate with law enforcement by showing them where contraband
was located in the vehicle. Davis informed Investigator Houston and
Officer Collins that cocaine was located between the driver's seat
and the console. Investigator Houston then retrieved what appeared
to be crack cocaine from the location in defendant's vehicle as
specified by Davis. Investigator Houston arrested defendant and
charged him with possession of cocaine.
The State Bureau of Investigation examined the substance found
in defendant's vehicle and determined that the substance was 1.1
grams of cocaine.
Defendant filed a motion to suppress evidence gathered as a
result of the traffic stop on 1 October 2003. The motion was heard
and denied prior to trial. A jury convicted defendant on 7 October
2003 for possession of a controlled substance, cocaine. Defendant
moved for a judgment notwithstanding the verdict. The trial court
denied the motion. Defendant appeals.
I.
[1] Defendant argues that the trial court erred when it denied
his motion to suppress the evidence obtained from his vehicle during
the search. The State counters that because defendant did not
object to the admission of the evidence at trial, he has failed to
preserve for appellate review all issues related to the evidence
found in the search of his vehicle. Our Court has held that a
pretrial motion to suppress is a type of motion
in limine, and that
"a motion
in limine is not sufficient to preserve for appeal the
question of admissibility of evidence if [a] defendant does notobject to that evidence at the time it is offered at trial."
State
v. Grooms, 353 N.C. 50, 65-66, 540 S.E.2d 713, 723 (2000),
cert.
denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001).
The General Assembly recently amended Rule 103 of the Rules of
Evidence to provide: "Once the [trial] court makes a definitive
ruling on the record admitting or excluding evidence, either at or
before trial, a party need not renew an objection or offer of proof
to preserve a claim of error for appeal." N.C.R. Evid. 103(a)(2).
The amendment became effective on 1 October 2003 and was meant to be
applicable to rulings made on or after that date. Since the trial
court heard and ruled on the motion to suppress in defendant's case
on 7 October 2003, the amendment is applicable to this case.
The interpretation of the recent amendment to Rule 103 is an
unsettled issue, and disagreement exists over whether the amendment
to Rule 103 is constitutional. In
State v. Tutt, 171 N.C. App. 518,
___, ___ S.E.2d ___, ___ (July 19, 2005) (No. COA04-821), the
majority opinion held that the amendment to Rule 103 was
unconstitutional. The majority opinion stated that "[t]he
Constitution of North Carolina vests the Supreme Court of North
Carolina with exclusive authority to make rules of practice and
procedure for the appellate division of the courts[,]"
and found
that the amendment was unconstitutional because it is inconsistent
with N.C.R. App. P. 10(b)(1).
Tutt, 171 N.C. App. at 524, ___
S.E.2d at ___.
The dissent in
Tutt argued that the amendment to Rule 103 was
a rule of evidence and not of procedure, and thus our Court mustdefer to the General Assembly.
Tutt, 171 N.C. App. at 527, ___
S.E.2d at ___ (Tyson, J., dissenting). The dissent pointed out that
our Court has previously made rulings consistent with the amendment
to Rule 103.
Tutt, 171 N.C. App. at 532-33, ___ S.E.2d at ___
(Tyson, J., dissenting). In
State v. Rose, 170 N.C. App. 284, 612
S.E.2d 336 (2005),
disc. review denied, 359 N.C. 641, ___ S.E.2d ___
(June 30, 2005) (No. 296PO5), our Court held that, under the
amendment to Rule 103, once the trial court denied the defendant's
motion to suppress, the defendant was not also required to object at
trial to preserve the argument for appeal.
Rose, 170 N.C. App. at
288, 612 S.E.2d at 339. Similarly, in
In re S.W., 171 N.C. App.
335, 337 614 S.E.2d 424, 426 (2005), our Court held that the
defendant "properly preserved his assignment of error by objecting
when the trial court denied his motion to suppress in conformity
with the amended North Carolina Rule[] of Evidence 103."
The dissent in
Tutt argued that this Court is bound by the
precedent of
Rose and
In re S.W., citing
In the Matter of Appeal
from Civil Penalty,
324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)
("Where a panel of the Court of Appeals has decided the same issue,
albeit in a different case, a subsequent panel of the same court is
bound by that precedent, unless it has been overturned by a higher
court."). However, we do not find
Rose and
In re S.W. controlling
because these decisions did not consider nor address the
constitutionality of the amendment to Rule 103. We are therefore
bound by the holding in
Tutt that, because the amendment to Rule 103
is inconsistent with N.C.R. App. P. 10(b)(1), the amendment isunconstitutional.
See Civil Penalty,
324 N.C. at 384, 379 S.E.2d at
37. D
espite the holding in
Tutt, in our discretion we review
defendant's assignments of error on the merits, as the amendment to
Rule 103 went into effect before the present case went to trial.
The amendment was thus under a presumption of constitutionality at
the time of trial.
A trial court's findings of fact when ruling on a motion to
suppress evidence are binding on appeal when the findings of fact
are supported by competent evidence.
State v. Barden, 356 N.C. 316,
332, 572 S.E.2d 108, 120-21 (2002),
cert. denied, 538 U.S. 1040, 155
L. Ed. 2d 1074 (2003). However, a trial court's conclusions of law
as to whether law enforcement had reasonable suspicion or probable
cause to detain a defendant are reviewable
de novo.
State v. Young,
148 N.C. App. 462, 466, 559 S.E.2d 814, 818,
disc. review denied,
355 N.C. 500, 564 S.E.2d 233 (2002).
A.
[2] Defendant first contends that his motion to suppress should
have been granted because Investigator Houston lacked sufficient
reasonable and articulable suspicion to stop defendant's vehicle.
We first note that defendant cites an incorrect justification for
the traffic stop. This Court has held that "[w]here an officer
makes a traffic stop based on a readily observed traffic violation,
such as speeding or running a red light, such a stop will be valid
if it was supported by
probable cause."
State v. Barnhill, 166 N.C.
App. 228, 231, 601 S.E.2d 215, 217,
disc. review denied, 359 N.C.
191, 607 S.E.2d 646 (2004) (emphasis added). In contrast,reasonable and articulable suspicion is required for "'a traffic
stop based on an officer's [reasonable]
suspicion that a traffic
violation is being committed, but which can only be verified by
stopping the vehicle, such as drunk driving or driving with a
revoked license[.]'"
State v. Wilson, 155 N.C. App. 89, 94, 574
S.E.2d 93, 98 (2002),
disc. review denied, 356 N.C. 693, 579 S.E.2d
98,
cert. denied, 540 U.S. 843, 157 L. Ed. 2d 78 (2003) (alteration
in original) (quoting
Young, 148 N.C. App. at 471, 559 S.E.2d at 820
(Greene, J., concurring)). In the present case, Investigator
Houston stopped defendant's vehicle when Investigator Houston
observed defendant's vehicle twice cross the center line of the
highway, in violation of N.C. Gen. Stat. § 20-146(a). Defendant's
traffic violation was readily observable, and therefore the probable
cause standard applies.
Probable cause is "suspicion produced by such facts as indicate
a fair probability that the person seized has engaged in or is
engaged in criminal activity."
State v. Schiffer, 132 N.C. App. 22,
26, 510 S.E.2d 165, 167,
disc. review denied, 350 N.C. 847, 539
S.E.2d 5 (1999). Investigator Houston's observation of defendant's
vehicle twice crossing the center line furnished sufficient
circumstances to provide Investigator Houston with probable cause to
stop defendant's vehicle for a violation of N.C. Gen. Stat. § 20-
146(a).
See Barnhill, 166 N.C. App. at 233, 601 S.E.2d at 218;
Wilson, 155 N.C. App. at 95, 574 S.E.2d at 98.
Defendant argues that since Investigator Houston never gave
defendant a traffic ticket, Investigator Houston was not acting onprobable cause when he stopped defendant's vehicle. Rather,
defendant argues, Investigator Houston was acting upon "generalized,
unparticularized suspicions that defendant was involved in a drug
transaction[.]" We reject this argument. Our Supreme Court has
stated that, "[p]rovided objective circumstances justify the action
taken, any 'ulterior motive' of the officer is immaterial."
State
v. McClendon, 350 N.C. 630, 635, 517 S.E.2d 128, 131 (1999).
Therefore, "an officer's subjective motivation for stopping a
vehicle is irrelevant as to whether there are other objective
criteria justifying the stop."
Barnhill, 166 N.C. App. at 233-34,
601 S.E.2d at 219. Investigator Houston's objective observation of
defendant's vehicle twice crossing the center line provided
Investigator Houston with probable cause for the stop, regardless of
his subjective motivation. The fact that Investigator Houston did
not issue defendant a ticket is irrelevant.
B.
[3] Defendant next argues that the trial court erred in denying
his motion to suppress because the search of defendant's vehicle
that yielded the cocaine exceeded the scope of defendant's consent
to a search. We have held
that "[g]enerally, the Fourth Amendment
and article I, § 20 of the North Carolina Constitution require
issuance of a warrant based on probable cause for searches.
However, our courts recognize an exception to this rule when the
search is based on the consent of the detainee."
State v. Jones, 96
N.C. App. 389, 397, 386 S.E.2d 217, 222 (1989) (citing
Schneckloth
v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858 (1973); and
State v. Belk, 268 N.C. 320, 322, 150 S.E.2d 481, 483 (1966)). When
a defendant's consent is given "freely, intelligently, and
voluntarily,"
State v. Aubin, 100 N.C. App. 628, 633, 397 S.E.2d
653, 656 (1990),
disc. review denied, 328 N.C. 334, 402 S.E.2d 433
(1991), and a defendant is not subject to coercion, a defendant's
consent to search a vehicle for contraband entitles the officer to
"'conduct a reasonable search anywhere inside the [vehicle] which
reasonably might contain contraband[.]'"
Aubin, 100 N.C. App. at
634, 397 S.E.2d at 656 (quoting
State v. Morocco, 99 N.C. App. 421,
430, 393 S.E.2d 545, 550 (1990)).
A warrantless search supported by consent is lawful only to the
extent that it is conducted within the spatial and temporal scope of
the consent. Absent an express limit to the duration of the
consent,
[t]he temporal scope of a consent to search is
a question of fact to be determined in light of
all the circumstances. A brief lapse of time
between the consent and the search does not
require a reaffirmation of the consent as a
condition precedent to a lawful search. The
length of time a consent lasts depends upon the
reasonableness of the lapse of time between the
consent and the search in relation to the scope
and breadth of the consent given.
State v. Williams, 67 N.C. App. 519, 521, 313 S.E.2d 236, 237,
cert.
denied, 311 N.C. 308, 317 S.E.2d 909 (1984) (internal citations and
quotations omitted)
.
Defendant argues that he only consented to the initial search,
and that Investigator Houston's more thorough search after receiving
information from Davis exceeded the scope of defendant's consent.
We find that the undisputed evidence before the trial court supportsa finding that Investigator Houston's second search of the vehicle
did not exceed the scope of defendant's consent. Defendant placed
no explicit time limit on his consent to the search, nor did he
attempt to revoke his consent at any time.
Id. at 521, 313 S.E.2d
at 237. Only a few minutes lapsed between the time Investigator
Houston conducted the initial search and when he recovered the
cocaine. Investigator Houston was not prohibited from momentarily
interrupting his search of defendant's vehicle. Accordingly, we
find that the cocaine was admissible evidence found as a result of
a consensual search of defendant's vehicle.
Furthermore, even if defendant had not consented to the search,
Investigator Houston would have been authorized to search
defendant's vehicle because of the "'automobile exception' to the
warrant requirement[.]"
See State v. Isleib, 319 N.C. 634, 637, 356
S.E.2d 573, 575 (1987). A warrant is not required to perform a
lawful search of a vehicle on a public road when there is probable
cause for the search.
State v. Earhart, 134 N.C. App. 130, 133, 516
S.E.2d 883, 886 (1999). "'Probable cause exists where "the facts
and circumstances within . . . [the officers'] knowledge and of
which [the officers] 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.'"
Id.
at 133, 516 S.E.2d at 886 (citations omitted). In this case,
Investigator Houston observed defendant drive up to Midgette's home,
a location that was known for its drug activity. Investigator
Houston also observed Davis, a known drug runner, approachdefendant's vehicle from Midgette's home, speak with defendant, go
back inside Midgette's home, return to defendant's vehicle, and
leave with defendant. Investigator Houston testified that this
behavior was consistent with drug sales that he had previously
observed take place at Midgette's home. After pulling defendant's
vehicle over, Investigator Houston saw a piece of plastic that
resembled drug paraphernalia in defendant's vehicle. Davis also
told Investigator Houston that Davis knew where cocaine was located
in defendant's vehicle. These circumstances provided Investigator
Houston with probable cause that justified a warrantless search of
defendant's vehicle under the automobile exception to the warrant
requirement. The trial court did not err by denying defendant's
motion to suppress or by admitting evidence obtained as a result of
the search of defendant's vehicle.
II.
[4] Defendant argues that the trial court erred in denying
defendant's motion to dismiss on the grounds that the evidence
presented was insufficient to submit the charge to the jury.
Defendant contends that he did not have actual or constructive
possession of the cocaine, and thus the evidence related to the
essential element of possession was insufficient to submit to the
jury. We disagree.
When considering a motion to dismiss, the trial court must view
the evidence in the light most favorable to the State, and the State
is entitled to every reasonable inference that can be drawn. State
v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). "If thereis substantial evidence - whether direct, circumstantial, or both -
to support a finding that the offense charged has been committed and
that the defendant committed it, the case is for the jury and the
motion to dismiss should be denied." State v. Locklear, 322 N.C.
349, 358, 368 S.E.2d 377, 383 (citing State v. Williams, 319 N.C.
73, 79, 352 S.E.2d 428, 432 (1987)).
The possession element of the offense charged in the present
case "can be proven by showing either actual possession or
constructive possession." State v. Siriguanico, 151 N.C. App. 107,
110, 564 S.E.2d 301, 304 (2002). "[C]onstructive possession depends
on the totality of the circumstances in each case. No single factor
controls, but ordinarily the question will be for the jury." State
v. James, 81 N.C. App. 91, 93, 344 S.E.2d 77, 79 (1986). In
determining whether a defendant had constructive possession of
contraband, this Court has held that:
[w]here such materials are found on the premises
under the control of an accused, this fact, in
and of itself, gives rise to an inference of
knowledge and possession which may be sufficient
to carry the case to the jury on a charge of
unlawful possession. It is not necessary to
show that an accused has exclusive control of
the premises where [drug] paraphernalia are
found, but where possession . . . is
nonexclusive, constructive possession . . . may
not be inferred without other incriminating
circumstances.
State v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987)
(internal quotations and citations omitted). Our Court has also
held that constructive possession can be inferred when there is
evidence that a defendant had the power to control the vehicle where
a controlled substance was found. State v. Dow, 70 N.C. App. 82,85, 318 S.E.2d 883, 886 (1984). A situation where a passenger in a
vehicle could have moved or hidden the contraband within the vehicle
does not contradict a defendant's control of the vehicle. State v.
Rogers, 32 N.C. App. 274, 277, 231 S.E.2d 919, 921 (1977). In
Rogers, where a passenger could have had time to hide the contraband
in the vehicle, our Court held that when "the driver is in control
of the car . . . and the controlled substance is found in the car
. . . such evidence is sufficient to withstand motion for
dismissal." Id.
Moreover, although defendant was not alone in the vehicle, the
location of the crack cocaine between his seat and the center
console and the presence of additional suspicious packaging material
between his feet on the vehicle's floorboard were sufficient
additional circumstances to support a reasonable inference of his
constructive possession of the drug. See State v. Harvey, 281 N.C.
1, 12-13, 187 S.E.2d 706, 714 (1972), State v. Tisdale, 153 N.C.
App. 294, 297-98, 569 S.E.2d 680, 682-83 (2002); State v. Searcy, 37
N.C. App. 68, 70, 245 S.E.2d 412, 414 (1978).
When viewed in the light most favorable to the State, there is
substantial evidence that defendant had constructive possession of
the cocaine. It is clear from the record that defendant was the
driver of the vehicle where the cocaine was found. Prior to
stopping defendant for a traffic violation, Investigator Houston
witnessed defendant arrive at the residence of a known drug dealer
and then drive off with a known drug runner. When all reasonable
inferences are made in favor of the State, the totality of thecircumstances in the present case supports a submission of the
charge to the jury. The trial court did not err in denying
defendant's motion to dismiss.
III.
