An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 04-51


Filed: 15 March 2005


v .                         Mecklenburg County
                            Nos. 02 CRS 207955-56

    Appeal by defendant from judgments entered 21 January 2003 by Judge Nathaniel J. Poovey in Superior Court in Mecklenburg County. Heard in the Court of Appeals 2 November 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General Robert T. Hargett, for the State.

    James P. Hill, Jr., for defendant-appellant.

    HUDSON, Judge.
    After the grand jury indicted defendant for felonious possession with intent to sell and deliver a controlled substance, he filed a motion to suppress evidence obtained by police during their warrantless search of his vehicle. On 21 January 2003, the trial court denied this motion and defendant entered a plea of guilty. Pursuant to N.C. Gen. Stat. § 15A-979 (b) (2002), defendant reserved the right to appeal the denial of his motion to suppress as predicate to entry of his guilty plea. The court entered judgment and imposed an active sentence of seven to nine months. Defendant appeals the denial of his motion to suppress, and for the reasons below, we affirm the ruling of the trial court.
    The evidence in this case comes from the testimony and notesof Officer Brian Sharf of the Charlotte-Mecklenberg Police Department. The evidence tends to show that a couple of days before defendant's arrest, an informant with whom Officer Sharf had been in regular contact for some time told him that defendant had been selling drugs in the Grier Heights neighborhood. Officer Sharf told the informant to contact him if he saw this again. A couple of days later, on 20 February 2002, Officer Sharf ran into the informant, who said that he had seen defendant in the neighborhood an hour or so earlier selling marijuana from his green Cadillac.
    About an hour later, while driving in the Grier Heights neighborhood in an unmarked police car with two other officers therein, Officer Sharf spotted a green Cadillac pulled over to the side of the road. Officer Sharf recognized the driver as defendant and ran the tags on the Cadillac to confirm that the car was registered to defendant. Officer Sharf testified that the driver was speaking to a man on the side of the road and that when he pulled up behind the Cadillac, the man speaking to the driver immediately walked away. The Cadillac then pulled onto the road and Officer Sharf followed it for at least three-quarters of a mile before pulling it over. Defendant stepped out of his vehicle as requested and, after Officer Sharf patted down defendant, he requested consent to search the vehicle. Defendant refused to consent and Officer Sharf searched the vehicle.
    During the search, Officer Sharf found nothing in the passenger area, glove compartment, or back seat of the vehicle. Hethen opened the trunk and began to remove the spare tire cover, when he found a small baggie containing approximately two ounces of marijuana. Officer Sharf arrested defendant.
    First, defendant argues that the trial court committed plain error by improperly shifting the burden of proof to the defendant during the hearing of his motion. We disagree. Defendant correctly asserts that when a defendant makes a motion to suppress evidence obtained by a warrantless search, the State bears the burden of proving the constitutionality of the search. Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L.Ed.2d 290, 299 (1978); State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982). Defendant contends that by granting the State's request that the defense put on its evidence first, the court improperly shifted the burden of proof to defendant, to his prejudice. Defendant did not preserve appellate review of this issue by objecting at trial, as required by N.C. R. App. P. 10(b)(1) (2004), and now asserts that it was plain error. N.C. R. App. P. 10 (c)(4) (2004). However, our Supreme Court has limited plain error review to errors in a trial court's jury instructions or rulings on admissibility of evidence. State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230-31 (2000). Our Courts have repeatedly declined to extend plain error review to other issues. See id; State v. Fleming, 350 N.C. 109, 133, 512 S.E.2d 720, 737 (1999). Accordingly, we overrule this assignment of error.
    Defendant also contends that the trial court erred in denying his motion to suppress. He argues that the trial court should haveexcluded the evidence against him because the search of his car did not comply with the requirements of the Fourth Amendment to the United States Constitution. We disagree. This Court's review of the denial of a motion to suppress is “limited to determining whether the trial judge's underlying findings 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. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). However, we review a trial court's conclusions of law determining whether an officer had reasonable suspicion or probable cause de novo. State v. Kincaid, 147 N.C. App. 94, 97, 555 S.E.2d 294, 297 (2001). Here, defendant does not assign error to the trial court's findings of fact.
    Defendant argues that Officer Sharf did not have reasonable suspicion or probable cause to stop his vehicle, to search him, or to conduct a warrantless search of his vehicle. Defendant asserts that the informant's tip received by Officer Sharf lacked sufficient indicia of reliability to support reasonable suspicion or probable cause and that there were no objective observations by Officer Sharf to corroborate the tip. As probable cause is the more stringent standard and the reliability of the informant's tip is central to defendant's argument, we address the issue of probable cause based on the informant's tip first.
    Generally, probable cause to conduct a search requires that there is a “fair probability that contraband or evidence of thecrime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 76 L. Ed. 2d 527, 548 (1983). Officer Sharf testified that he relied on the tip alone in determining probable cause. When probable cause is based on a tip, the tip must bear sufficient indicia of reliability, which may include whether the informant was known or anonymous, the informant's history of reliability, and whether the information provided could be and was corroborated. State v. Earhart, 134 N.C. App. 130, 133-34, 516 S.E.2d 883, 886 (1999). However, in determining whether there was probable cause, our Courts use a totality of the circumstances analysis and consider the “relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip.” Id. (internal citations and quotations omitted).
    [T]he need for independent indices or facts supporting the informant's basis of knowledge for his tip and the veracity or reliability of the tip . . . remain relevant to the determination of the value of the informant's report; however, the totality-of-the-circumstances test allows a less rigid evaluation.

Id. (internal citations and quotations omitted). “A known informant's information may establish probable cause based upon a reliable track record in assisting the police.” State v. Leach, ___ N.C. App. ___, 603 S.E.2d 831, 835 (2004) (citing Alabama v. White, 496 U.S. 325, 332, 110 L.Ed.2d 301, 310 (1990); State v. Riggs, 328 N.C. 213, 219, 400 S.E.2d 429, 433 (1991)).
    Here, the trial court found that: Officer Sharf had used the confidential informant in question for approximately one-and-one- half years, during which time he spoke with this informant on a daily basis; this informant had given Officer Sharf reliableinformation in the past, leading to at least six felony drug arrests; the informant was “very active in the neighborhood;” within 72 hours prior to defendant's arrest the informant told Officer Sharf that he had seen the defendant selling marijuana in the Grier Heights neighborhood from a green Cadillac; on the day of defendant's arrest, Officer Sharf ran into the informant, who told him that he had seen the defendant selling marijuana out of his green Cadillac in the Grier Heights neighborhood that day; and Officer Sharf spotted defendant in his Green Cadillac, pulled to the side of the road in the Grier Heights neighborhood, approximately one hour after speaking with the informant.
    Defendant contends that the information provided by the tip was not detailed enough, that Officer Sharf failed to verify the information, that the information was remote in time, and that the informant was reliable only fifty percent of the time. However, the informant said that he had personally observed the sale and that he told Officer Sharf where he had seen defendant, what kind of car he was driving, and what kind of drugs he was selling. Further, as Officer Sharf pulled defendant over approximately one hour after the tip, we can hardly conclude that the information was “stale” as defendant asserts. Nothing in the record supports defendant's contention that the informant was only “reliable” fifty percent of the time. Officer Sharf testified that he had only been “able to act” (to make an arrest) based on the informant's tips about one-half of the time, but explicitly stated that when he could not act on the tip, “[n]ever was it the informant's fault,”but rather was related to safety issues or inability to locate persons. Similarly, the record does not support defendant's inference that the informant's tips did not lead to convictions; nothing in the transcript indicates whether the arrests led to convictions or not. We conclude that the information provided by the informant, coupled with the informant's reliability, constitute probable cause under the totality-of-the-circumstances standard.
    As we conclude that Officer Sharf had probable cause based on the informant's tip, we necessarily conclude that he had reasonable suspicion to stop and detain defendant prior to the search. Reasonable suspicion must be based on specific and articulable facts. State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999). But it is well-established that reasonable suspicion is a less demanding standard than probable cause. See, e.g., Florida v. J.L., 529 U.S. 266, 272, 146 L.Ed.2d 254, 261 (2000); State v. Watkins, 120 N.C. App. 804, 809, 463 S.E.2d 802, 805 (1995). An officer may lawfully stop a vehicle and detain its occupant without a warrant only when he has reasonable suspicion that criminal activity may be occurring. State v. McArn, 159 N.C. App. 209, 582 S.E. 2d. 371 (2003). After a lawful stop, an officer may further detain the person stopped only if there is reasonable suspicion that criminal activity is afoot. McClendon, 350 N.C. at 636, 517 S.E.2d at 132. If, after detaining a suspect, the officer continues to believe that criminal activity may be afoot and that the person may be armed, he may then frisk him as a matter of self-protection. State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d502, 506-07 (1973) (citing Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (1968)). This Court has held that, based on their experience, officers may form “'common-sense conclusions . . .'” that “persons involved with drugs . . . often carry weapons.” State v. Willis, 125 N.C. App. 537, 543, 481 S.E.2d. 407, 411 (1997) (internal citations and quotation marks omitted). Here, we conclude that in light of the informant's tip discussed above, Officer Sharf possessed the requisite level of reasonable suspicion at each stage of the stop and frisk of defendant.
    Defendant also asserts that the police lacked probable cause to search his vehicle. The law in this area is well-settled: searches of vehicles are exempt from the warrant requirement of the Fourth Amendment if based on probable cause. See, e.g., U.S. v. Ross, 456 U.S. 798, 825, 72 L.Ed.2d 572, 594 (1982). The North Carolina Supreme Court explained that:
    no exigent circumstances other than the motor vehicle itself are required in order to justify a warrantless search of a motor vehicle if there is probable cause to believe that it contains the instrumentality of a crime or evidence pertaining to a crime and the vehicle is in a public place.

State v. Isleib
, 319 N.C. 634, 638, 356 S.E.2d 573, 576-77 (1987). We conclude that as probable cause existed here and defendant was in a vehicle in a public place, the automobile exception to the warrant requirement applies and thus the search was constitutional.
    Defendant also argues that even if the search of his vehicle was constitutional at its inception, the scope of the search was not. In particular, defendant objects to the search of his trunk. Even though a search may be reasonable at its inception, it mayviolate the Fourth Amendment by virtue of its intensity and scope. Terry, 392 U.S. at 17, 20 L.Ed.2d at 903. However, where probable cause justifies the warrantless search of a lawfully stopped vehicle, “it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.State v. Martin, 97 N.C. App. 19, 28, 387 S.E.2d 211, 216 (1990) (citing Ross, 456 U.S. at 825, 72 L.Ed.2d at 572 ) (emphasis added). Here, the probable cause which justified the search at its inception justified the search of the trunk, as the marijuana, the object of the search, could be concealed there. Thus, we conclude that the search of defendant's vehicle was not unconstitutional in its scope.
    The exclusionary rule dictates that evidence seized pursuant to an unlawful search or seizure may not be admitted into evidence against the defendant. State v. Wallace, 111 N.C. App. 581, 589, 433 S.E.2d 238, 243 (1993). As we conclude that the evidence introduced against defendant was obtained through lawful search and seizure, we hold that the trial court correctly denied defendant's motion to suppress. We affirm the judgment and sentence entered upon defendant's guilty plea.


    Judges WYNN and ELMORE concur.

    Report per Rule 30(e).

*** Converted from WordPerfect ***