State v Bell, (05-315) 01/17/2006

Appeal by defendant from judgment entered 15 July 2004 by Judge James L. Baker, Jr., in Buncombe County Superior Court. Heard in the Court of Appeals 9 January 2006.

Attorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jernigan, for the State.

Brannon Strickland, PLLC, by Marlet M. Edwards, for defendant- appellant.

CALABRIA, Judge.

     On 17 November 2003, Officer Charles Robinson of the Woodfin Police Department was on patrol at approximately 5:45 a.m. It was still dark out, and Officer Robinson was stopped at a stop sign, when he noticed a gray vehicle traveling south on N.C. 251 with no headlights and no taillights on. Officer Robinson followed the vehicle for about a mile, paced the vehicle and estimated its speed as 45 to 50 miles per hour. Officer Robinson engaged his blue lights and stopped the vehicle.
    Officer Robinson approached the vehicle and advised the defendant that he had been stopped for driving without headlightsor taillights, and for speeding. Officer Robinson checked the defendant's license and registration, but did not charge defendant with any infraction. When he returned the license and registration to defendant, Officer Robinson noticed two police scanners permanently mounted on the dashboard of defendant's car, and thought it was unusual. Officer Robinson then asked for consent to search the defendant's vehicle. Defendant consented and Officer Robinson asked him to step out of his vehicle.
    Officer Robinson did a patdown search of the defendant, but did not find anything. He then started searching defendant's vehicle. Officer Robinson found a cane and noticed that the head was partially unscrewed and a gap existed between the head and the shaft. Upon inspecting it closer, Officer Robinson found that the cane twisted apart revealing a large knife. Officer Robinson became concerned that defendant might have other weapons concealed on his person, so he went back and searched the defendant again. After searching the defendant again, Officer Robinson went back and continued his search of the vehicle. In the console he found a spring-loaded knife and an eyeglass case. Upon opening the eyeglass case, Officer Robinson found “pieces of marijuana and some little white chips and a screen.” Officer Robinson testified that the screen is generally used to ingest marijuana or other drugs. The white chips later tested positive for crack cocaine. Officer Robinson also located a box of plastic bags, like that used for packaging controlled substances for sale. Officer Robinson returned to the defendant, told him what he had found, and told himto take off his shoes and socks. Defendant complied, and Officer Robinson noticed a small plastic bag sticking out from under the defendant's long johns. Officer Robinson pulled out the bag, and found it contained a white powder which field tested positive for cocaine.
    Prior to trial, defendant moved to suppress all of the evidence seized by Officer Robinson. Defendant argued that the stop was illegal because Officer Robinson did not have a reasonable articulable suspicion of criminal wrongdoing or probable cause to justify the stop. Furthermore, defendant argued that although consent was given, it was not freely and voluntarily given. The motion was denied.
    Following the denial of his motion to suppress, defendant pled guilty pursuant to a plea agreement to possession with intent to manufacture, sell, or deliver a schedule II controlled substance, possession of less than a ½ ounce of marijuana, two counts of carrying a concealed weapon , reckless driving to endanger, and possession of drug paraphernalia. The offenses were consolidated for judgment and defendant sentenced to a term of 90 to 117 months imprisonment. Defendant expressly reserved his right to appeal the denial of his motion to suppress in the agreement.
     Defendant's sole argument on appeal is that the trial court erred by denying his motion to suppress. Defendant renews his contention from his motion to suppress that the stop was unlawful. He contends that while he was not driving with his headlights on, he had fog lights activated and they were sufficient to comply withlaw. Defendant also argues again that he did not give consent to the search freely and voluntarily. Defendant claims that the traffic stop ended before Officer Robinson asked for permission to search the vehicle, and that he did not feel free to leave. A second officer then arrived on the scene to assist. Defendant argues that due to the coercive nature of the circumstances, a reasonable person would not have felt free to decline Officer Robinson's request to search the vehicle.
    After careful review of the record, briefs, and contentions of the parties, we affirm. “The scope of review on appeal of the denial of a defendant's motion to suppress is strictly limited to determining whether the trial court's findings of fact are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court's conclusions of law.” State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993).
    In the case sub judice, the trial court found that defendant was driving his vehicle while the headlights were not being operated. The trial court based this finding on Officer Robinson's testimony, as well as the fact that defendant did not dispute that the headlights were not on. G.S. 20-129 requires every vehicle to be equipped with lighted headlamps from the period of sunset to sunrise. Thus, the trial court could properly conclude that Officer Robinson had probable cause to stop the defendant. Because Officer Robinson had probable cause to stop the defendant for driving without his headlights on, we need not determine whetherOfficer Robinson had probable cause to stop defendant for speeding.
    The trial court further concluded that defendant gave consent to the search freely and voluntarily. The court found that there was no coercion or force, citing evidence that “the officer did not have guns drawn, did not have any articles of restraint out, such as handcuffs, had not made any threats to the Defendant, had not made any racial slurs or comments to the Defendant.” The court thus concluded that there was “nothing in this situation to indicate that there was any degree of force or coercion used by the officer beyond a uniformed officer being in that situation asking the question.” The trial court rejected testimony which suggested that defendant was handcuffed and under arrest before he was asked for consent to search the vehicle. Because the court's findings are supported by competent evidence in the record, namely Officer Robinson's testimony, the court's finding is binding on appeal. Thus, we conclude the trial court properly denied defendant's motion to suppress. Accordingly, we affirm.
    Affirmed.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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