An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-589


Filed: 21 March 2006


         v.                        Guilford County
                                Nos. 03 CRS 24459,
TODD EUGENE WILSON                     03 CRS 70228-29

    Appeal by defendant from a judgment dated 8 January 2004 by Judge Henry E. Frye, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 27 February 2006.

    Attorney General Roy Cooper, by Special Deputy Attorney General William P. Hart, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant.

    BRYANT, Judge.

    Todd Eugene Wilson (defendant) appeals from a judgment dated 8 January 2004 entered after his guilty plea to trafficking in cocaine by possession, trafficking in cocaine by transportation, conspiracy to traffic in cocaine and having attained the status of being an habitual felon. For the reasons stated herein, we find no error.


    In September 2002, Detective Dorothy Marshall of the Guilford County Sheriff's Department was working on an undercover drug operation. Detective Marshall had engaged in a series of cocaine purchases with Bradley Dearmon, and the two made arrangements foranother purchase on 12 September 2002. The purchase was supposed to be made at the Four Seasons Mall. However, the transaction was aborted.
    On 14 September 2002, Detective Marshall and Dearmon made arrangements to meet in the parking lot of B.G. McGee's at 6:00 in the evening. Detective Marshall had arranged to purchase two ounces of crack cocaine from Dearmon for $1,550. Detective Marshall arrived in the parking lot at 6:00 p.m., and Dearmon arrived a short time later in a white Toyota Camry. Dearmon remained in the car for approximately ten minutes, until a black Volvo pulled into the parking lot. Dearmon walked over to the Volvo and got in on the front passenger's side. The Volvo had heavily tinted windows, rendering it impossible to see inside the vehicle. However, the Volvo's license number indicated it was registered to defendant. Dearmon stayed in the vehicle less than two minutes, then exited carrying a small plastic bag that he had not previously had and walked over to Detective Marshall's vehicle. Dearmon gave Detective Marshall two packages, later determined to contain two ounces of crack cocaine, and she gave him $1,550, folded in $100 bundles. Dearmon then got out of Detective Marshall's vehicle, walked back to the Volvo, got in the vehicle, and stayed in a couple of minutes before walking back to his car. The Volvo then left the parking lot.
    Corporal R.H. Sizemore of the Greensboro Police Department, as well as other officers in unmarked vehicles, pursued the Volvo. Corporal Sizemore estimated that the Volvo was traveling at fiftyto fifty-five miles per hour in a thirty-five mile per hour zone, so the vehicle was stopped for speeding. Defendant, who was driving the Volvo, was removed from the vehicle. He was detained, handcuffed, placed on the ground, informed that the officers were conducting an investigation, told he was being stopped for speeding and the vehicle was searched. The officers located $1,400 in the center console bundled in hundred dollar increments with a rubber band around it.
Procedural History

    On 21 April 2003, defendant was indicted on charges of trafficking in cocaine by possession, trafficking in cocaine by transportation, and conspiracy to traffic in cocaine. On 18 August 2003, defendant was indicted as an habitual felon. The case was tried at the 5 January 2004 Criminal Session of Guilford County Superior Court.
    Prior to trial, defendant moved to suppress all evidence seized by police during the stop of his vehicle on 14 September 2002. Defendant argued the search was illegal because police did not have a reasonable articulable suspicion of criminal conduct, consent, probable cause, nor were there exigent circumstances to justify a warrantless search. The motion was denied. Defendant then pleaded guilty, reserving his right to appeal the denial of his motion to suppress. The convictions were consolidated for judgment and defendant was sentenced to a term of seventy-two to ninety-six months imprisonment. Defendant appeals.
    Defendant's sole argument on appeal is that the trial court erred by denying his motion to suppress. Defendant notes that the trial court concluded the search of his vehicle was justified because police had a reasonable articulable suspicion that some criminal activity was afoot. Defendant concedes that while police were justified in temporarily detaining him for a brief investigatory stop, the search of his vehicle was unauthorized. Defendant argues a full scale search of his vehicle required a finding of probable cause, and the police did not have probable cause to conduct a warrantless search of his vehicle.
    After careful review of the record, briefs and contentions of the parties, we affirm the trial court's denial of defendant's motion to suppress.
        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). However, where, as here, the defendant does not contest on appeal the trial court's findings of fact, they are deemed to be supported by competent evidence and are binding on appeal. State v. Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36 (citing State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984)), disc. review denied, 358 N.C. 240, 594 S.E.2d 199 (2004). Thus, the sole issue here is whether the trial court's findings support its conclusion of law.    In the case sub judice, the trial court made the following findings of fact: (1) Detective Marshall had arranged a controlled buy of two ounces of cocaine from Dearmon on 12 September 2002 at the Four Seasons Mall; (2) surveillance was set up at the mall for the purchase to take place; (3) the deal was called off, however, prior to the deal being called off, officers observed a black Volvo with dark tinted windows; (4) a license registration check was done on the car and it was registered to Todd Eugene Wilson, the defendant; (5) the cocaine sale was rescheduled for 14 September 2002 at the B.G. McGee's parking lot; (6) Dearmon arrived in the parking lot in a white Toyota Camry driven by an unknown white female; (7) at some point after that, a black Volvo also drove into the parking lot, which appeared to other officers to be the same black Volvo they had observed at the Four Seasons Mall on 12 September 2002; (8) Dearmon exited the Camry and proceeded to the passenger side of the Volvo; however, the windows were tinted and no one could see into the car; (9) Dearmon stayed in the Volvo for less than two minutes, and upon his exit from the vehicle, Detective Marshall observed him holding a plastic bag close to his waist; (10) Dearmon entered Detective Marshall's car and handed her one plastic bag of drugs which he retrieved from his pocket and another plastic bag of drugs which he was holding somewhat close to his waist; (11) Detective Marshall gave Dearmon the money, which had been folded into one hundred dollar increments, and he exited the car; (12) Dearmon left her car, went back to the Volvo, exited the Volvo, got back into the Camry and left; (13) officers followedthe black Volvo which was observed driving between fifty and fifty- five miles an hour in a thirty-five mile per hour zone; (14) the vehicle was stopped for speeding and defendant was pulled from the car, placed on the ground, and handcuffed, at which time a search of the vehicle was made in which fourteen hundred dollars in cash was recovered from the vehicle. Based on these findings, the trial court concluded that “the officers had probable cause to stop the vehicle” and “[t]he later warrantless search of the vehicle was justified because they had articulable suspicion that some criminal activity was afoot.”
    Defendant argues the trial court used an incorrect legal standard, citing the court's conclusion that reasonable articulable suspicion that criminal activity was afoot justified the search of the vehicle. However, despite the trial court's use of the reasonable articulable suspicion standard, the search was justified because the officers had probable cause. See State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650 (1987) (“A correct decision of a lower court will not be disturbed on review simply because an insufficient or superfluous reason is assigned. The question for review is whether the ruling of the trial court was correct and not whether the reason given therefor is sound or tenable.”) (citing State v. Blackwell, 246 N.C. 642, 644, 99 S.E.2d 867, 869 (1957)).
    This Court has stated that:
        An 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 orevidence 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 and quotations omitted); see also State v. Holmes, 142 N.C. App. 614, 621, 544 S.E.2d 18, 22 (2001) (”A search of a vehicle on a public roadway . . . is properly conducted without a warrant as long as probable cause exists for the search.”). “The existence of probable cause depends upon whether . . . 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 and quotations omitted).
    In the instant case, officers had witnessed defendant's vehicle twice, first at the mall before the first drug transaction was cancelled, the second time when the controlled buy was successful. At the successful buy attempt, the seller, Dearmon, was observed entering the defendant's vehicle with empty hands, and emerging carrying a plastic bag from which he produced one of the two packages of crack cocaine that he sold to Detective Marshall. After selling Detective Marshall the drugs, Dearmon then returned to defendant's vehicle for a short period of time before returning to his car. It was reasonable for the officers to believe defendant was a participant in the drug transaction, and that a search of his vehicle would yield some or all of the money from the transaction, as well as possibly additional drugs. Thus, weconclude the officers had probable cause to arrest defendant and search his vehicle. Accordingly, this assignment of error is overruled.
    Chief Judge MARTIN and Judge GEER concur.
    Report per Rule 30(e).

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