STATE OF NORTH CAROLINA
v. New Hanover County
Nos. 03CRS001598, 001601
HAROLD BOYD, JR.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Robert T. Hargett, for the State.
Jeffrey Evan Noecker for defendant-appellant.
HUNTER, Judge.
Harold Boyd, Jr. (“defendant”) pled guilty to trafficking in
cocaine by possession and trafficking in opium or heroin by
possession, while reserving the right to appeal the denial of his
motion to suppress. See N.C. Gen. Stat. § 15A-979(b) (2003). The
trial court consolidated defendant's sentences to an active prison
term of seventy to eighty-four months. See N.C. Gen. Stat. § 90-
95(h)(3)(a), (4)(a) (2003). For reasons stated herein we affirm
that the trial court's ultimate conclusions were supported by the
findings.
The following pertinent facts were undisputed at the
suppression hearing: On the afternoon of 31 January 2003,Wilmington Police Officer Ted Godwin (“Officer Godwin”) was on
patrol with Sergeant Scott West (“Sergeant West”) in an unmarked
vehicle when he observed defendant standing at the corner of a
house at 514 Harnett Street. Officer Godwin, who worked in the
department's Vice and Narcotics Office, knew that arrest warrants
had recently been issued against defendant on charges of
“trafficking in heroin, possession with intent to sell and deliver
cocaine, and other drug offenses.” After confirming that the
warrants remained active, Officer Godwin contacted fellow Vice and
Narcotics Officer Tim Weevil (“Officer Weevil”) and asked him to
respond to defendant's location via an alley behind Harnett Street.
Officer Weevil and New Hanover County Detectives Mark Click, Jeanie
Anderson, and Ronnie Kennedy proceeded in an unmarked minivan to
Bellamy Alley, an unpaved, one-lane road located behind Harnett
Street between Fifth and Sixth Streets. Upon their arrival in
Bellamy Alley behind 514 Harnett Street, they observed defendant
coming around the house into the fenced back yard. Defendant “was
walking back and forth from one corner of the house to the other”
as though pacing. As Officer Weevil exited the van and went into
the yard, defendant began to walk back around the east side of the
house. Officer Weevil announced to defendant that he had warrants
for his arrest and placed him in custody. Detectives Click and
Anderson searched the area in the yard where defendant had been
pacing back and forth. Lying in the dirt next to a set of stairs,
they found a small, purple Ziploc bag containing what appeared to
be “a piece of crack cocaine[.]” Detective Anderson gave the bagto Officer Godwin. A search of defendant's pockets yielded
$1,200.00 in cash and a key to a Ford automobile. Defendant told
“Godwin that the key belonged to a tan or brown Ford Explorer that
was parked around the corner” and pointed to the north. Defendant
also gave Officer Godwin verbal consent to search the vehicle.
Officer Godwin and Sergeant West drove around the location
indicated by defendant for several minutes but were unable to
locate a tan or brown Explorer. When they returned to the scene,
Officer Godwin noticed a silver Ford Taurus parked in a vacant dirt
lot across the alley from 514 Harnett Street. The Taurus was
approximately twenty-five to thirty yards from the fenced yard
where defendant was arrested. No other persons were in the
vicinity of the car, and no other cars were in the lot. Officer
Godwin approached the Taurus, which was locked, and saw a keychain
with a Rent-a-Wreck tag resting on the floorboard between the front
seats. Officer Godwin opened the door to the Taurus with
defendant's key. In the car's ashtray, he found a bindle of 100
glassine packets of heroin and another “small purple Ziploc bag”
containing an “off-white rock-like substance.”
In moving to suppress the drugs found in the vehicle,
defendant argued that he did not consent to the search of the
silver Taurus by consenting to the search of a tan or brown
Explorer located in the opposite direction. He also challenged the
voluntariness of his consent on the grounds that he was in custody
but was not advised of his Miranda rights or of his right to refuse
consent. The State argued that defendant voluntarily consented toa search of the vehicle to which his key belonged. The trial court
agreed with the State and denied defendant's motion to suppress,
concluding that the evidence was found pursuant to a consensual
search of defendant's car. Approximately three weeks after its
entry of judgment, the court filed a written order with findings
and conclusions to support its ruling.
On appeal, defendant claims the State failed to show grounds
for admitting the fruits of the warrantless search of the Ford
Taurus. He asserts that he did not voluntarily consent to a search
of this vehicle but expressly limited his consent “to a tan or
brown Ford Explorer that did not exist.” Defendant further asserts
the State is estopped to assert any legal justification for the
search other than consent, which was the only ground raised in the
trial court.
Generally, “[o]ur review of a ruling on a motion to suppress
is limited to whether the trial court's findings are supported by
competent evidence and whether those findings support its ultimate
conclusions.” State v. McHone, 158 N.C. App. 117, 120, 580 S.E.2d
80, 83 (2003). However, another principle of appellate review
provides that “a trial court's 'ruling must be upheld if it is
correct upon any theory of law[.]'” Opsahl v. Pinehurst Inc., 81
N.C. App. 56, 63, 344 S.E.2d 68, 73 (1986) (citation omitted); see
also State v. Coffey, 326 N.C. 268, 285, 389 S.E.2d 48, 58 (1990)
(“conclud[ing] that the trial court correctly admitted testimony
concerning the victim's statements, but based its ruling upon the
wrong rule of evidence”). Moreover, the trial court is notrequired to make findings of fact and conclusions of law when
ruling upon a motion to suppress “'[w]here there is no material
conflict in the evidence'” at the suppression hearing. State v.
Johnston, 115 N.C. App. 711, 714, 446 S.E.2d 135, 137 (1994)
(citation omitted). Therefore, absent any material conflict in the
evidence, our task is to determine whether the undisputed facts
adduced at the hearing support the court's ultimate conclusion that
the evidence found by police during the warrantless search of the
Taurus was admissible against defendant at trial.
We find no merit to defendant's assertion that we are bound by
the theory of admissibility proffered by the State at the
suppression hearing. In State v. Phifer, 297 N.C. 216, 225-26, 254
S.E.2d 586, 590-91 (1979), the State argued that the contested
evidence was admissible as the product of a lawful inventory search
of the glove compartment of the defendant's car. The prosecutor
affirmatively stipulated in the trial court to the absence of
probable cause to support a warrantless search of the glove
compartment. Nevertheless, our Supreme Court, after concluding
that the warrantless search “cannot be justified as an inventory
search,” id. at 224, 254 S.E.2d at 590, upheld the legality of the
search based upon its finding of probable cause. Regarding the
State's stipulation at trial, the Court said:
We are cognizant of the fact that at the
suppression hearing the District Attorney
stipulated that the officers had no probable
cause to suspect that the glove compartment of
defendant's car contained contraband. This
Court, however, is not bound by the State's
concession. . . . “[W]here a particular legal
conclusion follows from a given state offacts, no stipulation of counsel can prevent
the court from so declaring.”
Id. at 226, 254 S.E.2d at 591 (citations omitted).
Consistent with the constitutional prohibition against
unreasonable searches and seizures, see U.S. Const. amend. IV; N.C.
Const. art. I, § 20,
[a]n officer may search an automobile without
a warrant if he has probable cause to believe
the vehicle contains contraband[;] and he has
probable cause if based upon the totality of
the circumstances known to him “he believes
there is a 'fair probability that contraband
or evidence of a crime will be found'
therein.”
State v. Poczontek, 90 N.C. App. 455, 457, 368 S.E.2d 659, 660-61
(1988) (citations omitted). “The existence of probable cause
depends upon 'whether at that moment the facts and circumstances
within [the officers'] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in
believing that the [suspect] had committed or was committing an
offense.'” State v. Milien, 144 N.C. App. 335, 341, 548 S.E.2d
768, 772 (2001) (citations omitted).
While aware that the trial court admitted the evidence based
on its conclusion that defendant consented to the search of the
Taurus, we believe the circumstances confronted by the officers
were sufficient to establish probable cause for the search. The
facts of this case are remarkably similar to those in Phifer. In
Phifer, police arrested the defendant pursuant to an outstanding
arrest warrant. Phifer, 297 N.C. at 224, 254 S.E.2d at 590. The
officers were aware of the defendant's reputation as a drug dealer. In searching the defendant incident to his arrest, they found
$1,099.00 in cash in his sock and a key in his shoe. When police
discovered the key, the defendant “attempted, unsuccessfully, to
throw [it] away.” Id. at 225, 254 S.E.2d at 590. Police then used
the key to open the locked glove compartment of the defendant's car
and discovered drugs inside. Notwithstanding the State's
stipulation to the contrary in the trial court, our Supreme Court
concluded that the warrantless search of the glove compartment was
supported by probable cause. The Court first noted that the
defendant “was lawfully arrested on the basis of an outstanding
warrant,” and was thus subject to a “contemporaneous, warrantless
search of the person” incident thereto. Id. at 224, 254 S.E.2d at
590. The results of the search of the defendant, when combined
with the information known to the officers, were sufficient to
establish probable cause to search the locked glove compartment, as
follows:
[T]he totality of the circumstances would lead
a man of prudence and caution to believe that
the glove compartment of defendant's car
contained contraband of some sort. The
officer's knowledge of defendant's reputation
as a drug dealer, the substantial sum of money
found rolled in defendant's sock, and
defendant's attempt to throw away a key hidden
in one of his shoes would alert any officer to
the fact that defendant had something to hide.
Given this probable cause, the warrantless
search of the glove compartment was reasonable
by Fourth Amendment standards and the fruits
of the search were properly admitted into
evidence.
Id. at 225-26, 254 S.E.2d at 591 (citations omitted). In this case, the officers were aware that defendant was
subject to recently-issued, active arrest warrants for heroin
trafficking, possession with intent to sell or deliver cocaine, and
other drug-related charges. In undertaking a lawful arrest based
upon the outstanding warrants, they were entitled to search the
defendant's person, which led to the discovery of $1,200.00 in cash
in his jacket pocket and a key to a Ford automobile. Rather than
attempt to dispose of the key, as did the defendant in Phifer,
defendant diverted the officers away from the Taurus by directing
them to a fictitious tan or brown Explorer parked in the opposite
direction. Moreover, in an incriminating circumstance not present
in Phifer, the officers further found a plastic bag of crack
cocaine on the ground in the area where defendant was pacing
immediately before his arrest. After his futile attempt to find
the vehicle described by defendant, Officer Godwin discovered the
silver Taurus and determined that defendant's key belonged to it.
The Taurus was the lone vehicle in a vacant lot directly across an
alley from defendant's location. As in Phifer, we conclude that
“the totality of the circumstances would lead a man of prudence and
caution to believe that . . . defendant's car contained contraband
of some sort.” Id. at 225, 254 S.E.2d at 591. “The vehicle was
[parked in a lot] close to a public street which meets the exigent
circumstances requirement[]” for a warrantless search. State v.
Rogers, 56 N.C. App. 457, 459, 289 S.E.2d 54, 55 (1982). “The fact
that defendant was not at the vehicle at the time of his arrest
makes no difference.” Id. For the reasons set forth above, we affirm the trial court's
ultimate conclusion that the evidence was admissible as the fruits
of a lawful search. We note that the record on appeal contains
additional assignments of error which are not addressed by
defendant in his appellant's brief and are deemed abandoned
pursuant to N.C.R. App. P. 28(b)(6).
Affirmed.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e).
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