Appeal by defendant from an order entered 11 January 2005 by
Judge Gary E. Trawick in Robeson County Superior Court. Heard in
the Court of Appeals 27 March 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General J. Allen Jernigan, for the State.
Miles & Montgomery, by Lisa Miles, for defendant.
Defendant Clegon Rose was indicted on charges of trafficking
in cocaine by possession, trafficking in cocaine by transportation,
conspiracy to traffic in cocaine
, possession with intent to sell or
deliver cocaine, possession of drug paraphernalia, and resisting a
The evidence presented tended to show the following:
August 2003, Detective Steven Ray Lovin of the Robeson County
Sheriff's Department stopped a vehicle being driven by Tony Johnson
because the license plate was partially obscured. Defendant was a
passenger in Johnson's vehicle. Detective Lovin wrote Johnson a
warning ticket and gave Johnson back his license and registration
and told him he was free to leave. However, after doing so,Detective Lovin asked Johnson if he could ask him a few questions.
Detective Lovin told Johnson that we had a lot of problems on
Interstate 95, people transporting illegal guns and drugs, large
sums of money exceeding $10,000, drugs like cocaine, marijuana,
things like that. Detective Lovin then asked Johnson if he had
anything like that in his vehicle. Johnson said no, and
Detective Lovin asked for consent to search his vehicle. Johnson
consented to the search and opened the rear hatch of the van he was
driving. Detective Lovin found ten kilograms of cocaine and placed
both Johnson and defendant under arrest.
Prior to trial, both Johnson and defendant moved to suppress
the evidence. The trial court denied Johnson's motion, concluding
that Johnson consented to the search of the vehicle. The trial
court summarily denied defendant's motion, concluding that he
lacked standing. Defendant then pled guilty, reserving his right
to appeal the denial of his motion to suppress.
Defendant's sole argument on appeal is that
the trial court
erred by denying his motion to suppress.
We are not persuaded.
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, defendant does not assign errorto the trial court's findings of fact, they are deemed to be
supported by competent evidence and are binding on appeal. State
, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36
State v. Baker
, 312 N.C. 34, 37, 320 S.E.2d 670, 673
(1984)). 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) defendant was a passenger in a vehicle driven
by Tony Johnson; (2) the vehicle was stopped by Detective Lovin on
13 August 2003; (3) Johnson gave consent to search the vehicle; and
(4) the detective found approximately ten kilograms of cocaine
pursuant to the consensual search. Defendant argues the continued
detention of defendant after the issuance of the warning ticket was
not based upon reasonable and articulable suspicion that criminal
activity was afoot, and thus the search and seizure was
unconstitutional. However, the trial court found that Johnson, the
driver of the vehicle, consented to the search. Thus, the trial
court concluded that defendant lacked standing to contest the
search and seizure. We agree. See State v. VanCamp
, 150 N.C. App.
347, 350, 562 S.E.2d 921, 924-25 (2002) (defendant, as a mere
passenger and claiming no ownership or possessory interest in the
vehicle, had no legitimate expectation of privacy and thus lacked
standing to assert any alleged illegality of the search of the
; State v. Swift
105 N.C. App. 550, 556, 414 S.E.2d 65, 69
(1992) (Standing requires both an ownership or possessory interest
and a reasonable expectation of privacy.);
see also Rakas v.Illinois
, 439 U.S. 128, 138, 58 L. Ed. 2d 387, 428 (1978).
Accordingly, we affirm.
Chief Judge MARTIN and Judge GEER concur.
Report per Rule 30(e).
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