An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.

NO. COA05-223


Filed: 4 October 2005


         v.                        New Hanover County
                                Nos.    03CRS001598, 001601

    Appeal by defendant from judgments entered 16 March 2004 by Judge Paul L. Jones in New Hanover County Superior Court. Heard in the Court of Appeals 19 September 2005.

    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).
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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