STATE OF NORTH CAROLINA
No. 03 CRS 753
ROY D. TEASTER,
Attorney General Roy Cooper, by Assistant Attorney General
John P. Barkley, for the State.
Matthew D. Wunsche and Staples Hughes, for defendant- appellant.
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, Defendant argues that his constitutional rights were violated by the illegal search of his vehicle. Because the record indicates facts which show that probable cause existed to search the vehicle, we affirm the trial court's denial of Defendant's motion to suppress evidence obtained from the search.
The evidence at the motion to suppress hearing tended to show that: On 2 July 2003, Kevin Hodges, a police officer with theSugar Mountain Police Department, responded to a call at Lowe's Food in Invershield, North Carolina. An employee for Lowe's Food told Officer Hodges that an individual inside the store was buying large quantities of nasal decongestant and inquiring to buy drain cleaner. The employee pointed out the individual who was later identified as Defendant Roy Teaster. Officer Hodges followed Defendant out of the store and into the parking lot to a vehicle, but then lost sight of the vehicle.
In the meantime, Officer Mike Darcy, who had been waiting in the parking lot, had been directed to Defendant's vehicle by an unidentified Lowe's Food employee. Officer Darcy followed the vehicle, a black Dodge pickup truck, to McDonald's in Invershield. Defendant and Harold Russell went into the McDonald's. A check on the vehicle revealed that the license tag of the truck was registered to a different vehicle. Detective Derek Roberts arrived and went into McDonald's to develop a conversation with Defendant. Defendant and Mr. Russell appeared extremely nervous to Detective Roberts.
The three officers approached the truck and, from the outside, observed a three to four gallon glass container on the front seat, a couple of cellophane bags with Actifed and Sudafed boxes in them, a couple of gallons of mineral spirits laying in the bed of the truck, and some Citronella lantern fuel. Detective Roberts testified as to his knowledge of the use of these items in manufacturing methamphetamine. Detective Roberts asked Defendant about the truck's ownership. Defendant was extremely wishy washy[,] and first stated that the vehicle belonged to someone else before admitting ownership. Defendant did not consent to a search of his vehicle.
Officer Darcy arrested Defendant for driving with a fictitious tag. The three officers then conducted a complete search of the vehicle, including a toolbox in the back of the truck. Prohibited items were found in the toolbox, although not separately listed by any officer.
Defendant was indicted on the charge of possession of precursor chemical knowing manufacture. Following a hearing, the trial court denied Defendant's motion to suppress the items seized from the truck. Defendant was found guilty by a jury of possession of precursor chemical knowing manufacture and sentenced to six to eight months imprisonment. Defendant appeals.
Defendant's sole argument on appeal is that the trial court erroneously denied his motion to suppress because his constitutional rights were violated by the illegal search of his vehicle. 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 factualfindings, 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, 506 S.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. State v. Downing, __ N.C. App. __, __, 613 S.E.2d 35, 38 (2005); Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587 591-92, 525 S.E.2d 481, 484 (2000).
Defendant contends that the search of his vehicle by the police violated his constitutional rights as it was conducted without a warrant and without probable cause.
The Fourth Amendment of the United States Constitution and Article I, Section 20 of the North Carolina Constitution prohibit unreasonable searches and seizures. 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 576-77 ([N]o 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 evidencepertaining to a crime and the vehicle is in a public place.). '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)). It is not required that there be proof beyond a reasonable doubt or even prima facie evidence of guilt, rather it is enough if based upon the factual and practical considerations of everyday life, the evidence would actuate a reasonable person acting in good faith. State v. Corpening, 109 N.C. App. 586, 589, 427 S.E.2d 892, 894 (1993).
Here, the trial court found the following facts supported probable cause: (1) a large glass container, mineral spirits, and Actifed or Sudafed were in the vehicle in plain view; (2) Detective Roberts testified, based on his training and experience, that all three of the items found in plain view in the vehicle are used in the production of methamphetamine; and (3) Defendant had been making inquires in a store about purchasing large quantities of items containing pseudoephedrine and drain cleaner, which are also used in the production of methamphetamine. The trial court concluded that given the totality of the circumstance[s] probable cause existed to search Defendant's vehicle. We agree with the trial court's conclusion. The totality of the circumstances of the items observed in plain view in the vehicle, as well as Detective Roberts' training and experience that the items in the vehicle were commonly used in the production of methamphetamine, support the conclusion that the officers believed that an offense was being committed. Earhart, 134 N.C. App. at 133, 516 S.E.2d at 886; see also Corpening, 109 N.C. App. at 589-90, 427 S.E.2d at 894-95 (probable cause existed when a police officer observed that the defendant was very nervous and also the officer smelled illegal contraband which he recognized from his experience). Accordingly, 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.
Defendant failed to argue his remaining assignments of error; they are therefore deemed abandoned. N.C. R. App. P. 28(b)(6).
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***