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.
Facts
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.
Affirmed.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***