Appeal by defendant from judgment entered 31 August 2005
Judge V. Bradford Long in Montgomery County Superior Court. Heard
in the Court of Appeals 13 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General
William B. Crumpler, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, PLLC, by C. Scott
Holmes, for defendant-appellant.
On appeal, defendant Daniel Jaimes Trujillo challenges the
denial of his motion to suppress evidence discovered during a
roadside search of his vehicle. Because we find that the search
and seizure at issue was within constitutional bounds, we affirm
the trial court's denial of the motion to suppress.
Defendant was indicted for trafficking in cocaine by
possession, trafficking in cocaine by transportation, and
possession of cocaine with the intent to manufacture, sell ordeliver.
(See footnote 1)
Following his indictment on these charges, defendant
filed a pre-trial motion to suppress the evidence seized during the
search of his vehicle. The trial court held an evidentiary hearing
on the motion at which Officers Jeff Dorsett and Randy Binns of the
Montgomery County Sheriff's Department testified. Defendant
offered no evidence. In a written order filed 26 July 2005, Judge
Ripley E. Rand denied the motion.
"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). Because defendant has not assigned error to any of the
trial court's findings of fact, those findings are conclusive and
binding on appeal. State v. Jacobs, 162 N.C. App. 251, 254, 590
S.E.2d 437, 440 (2004). Nonetheless, "the trial court's
conclusions of law must be legally correct, reflecting a correct
application of applicable legal principles to the facts found."
State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997).
Based on the evidence presented at the suppression hearing,
the trial court made the following findings of fact. On 15 May
2004, Officers Dorsett and Binns, both narcotics detectives, wereengaged in criminal interdiction and traffic surveillance near
Biscoe, North Carolina. The officers were positioned along the
highway in separate cars and were in radio contact with each other.
Officer Binns was running radar on passing vehicles. If he noticed
activity warranting a stop, he would radio ahead to Officer
Dorsett, who would then stop the vehicle.
Officer Binns noticed a truck with dark windows that was
traveling less than 55 miles per hour in a 65 mile per hour zone.
Officer Dorsett also took note of the truck's darkly tinted
windows. Based on the possibility of a window tint violation,
Officer Dorsett decided to stop the truck, approached it, and asked
defendant, the truck's sole occupant, for his license. Defendant
presented his Mexican driver's license and indicated that he had
been in the United States for only a short time. Officer Dorsett
initially spoke to defendant in Spanish until learning that
defendant spoke some English. The officer and defendant then
communicated in English.
Officer Dorsett checked the window tint, found the percentage
of light transmission to be 35 percent, and thereby determined the
tinting to be in compliance with North Carolina law.
(See footnote 2)
window tint violation was detected, Officer Dorsett returned
defendant's driver's license and advised him to obtain a North
Carolina license. Officer Dorsett then initiated what the trial court found to
be a "casual" conversation with defendant about illegal drug
activity. He inquired whether defendant knew anybody involved with
cocaine. Defendant, in turn, responded that drugs were "a lot of
trouble." Officer Dorsett then asked defendant whether he had any
drugs, and defendant responded, "No. Do you want to check?" The
officer said, "Sure _ if you don't have any objections." Defendant
responded, "Go ahead." Officer Dorsett also presented defendant
with a consent to search form written in both English and Spanish
that defendant signed.
With defendant standing alongside Officer Binns, Officer
Dorsett then began to search the truck. In the center console area
of the truck, Officer Dorsett discovered four taped packages
containing a substance resembling cocaine. A field test was
performed on the substance, which was positive for cocaine.
Defendant apologized to Officer Dorsett for lying about the
presence of drugs in the truck.
Based on these findings, the trial court concluded that the
officers had reasonable suspicion to stop defendant for a suspected
violation of North Carolina's window tint law; that defendant gave
consent to the search of his truck for drugs; and that none of the
officers' actions had violated defendant's statutory or
constitutional rights. The trial court accordingly denied the
motion to suppress.
After defendant's motion to suppress was denied, defendant
pled guilty to one trafficking charge, while reserving his right toappeal the denial of his motion to suppress. He also pled guilty
to the charges of assault on a law enforcement officer and
misdemeanor escape from a local jail. The trial court sentenced
defendant to a term of 175 to 219 months imprisonment. Defendant
gave timely notice of appeal.
Although defendant argues that the trial court erred in
denying his motion to suppress, defendant does not challenge the
initial stop of his truck. Instead, he contends that, following
the initial stop, he was unreasonably detained, in violation of the
Fourth Amendment, when the officer continued to question him even
though the reason for the initial stop had been resolved. This
Court has recognized that "[o]nce the original purpose of the stop
has been addressed, there must be grounds which provide a
reasonable and articulable suspicion in order to justify further
delay." State v. Falana
, 129 N.C. App. 813, 816, 501 S.E.2d 358,
360 (1998) (citing Terry v. Ohio
, 392 U.S. 1, 20 L. Ed. 2d 889, 88
S. Ct. 1868 (1968)). Under the facts of this case, however, we
conclude that defendant was no longer seized for purposes of the
Fourth Amendment following the return of his driver's license.
This Court held in State v. Kincaid
, 147 N.C. App. 94, 99-100,
555 S.E.2d 294, 298-99 (2001), that an initial seizure is
terminated when the detaining officer returns the individual's
personal documentation, unless a reasonable person under the
circumstances would not feel free to leave or otherwise put an end
to the encounter. Furthermore, after the officer has returned theindividual's documentation, subsequent questioning and even
requests for consent to search will not rise to the level of a
constitutional seizure, "'so long as a reasonable person would
understand that he or she could refuse to cooperate.'" Id.
555 S.E.2d at 299 (quoting State v. Brooks
, 337 N.C. 132, 142, 446
S.E.2d 579, 586 (1994)). If the totality of the circumstances
reflects a consensual encounter, rather than a seizure, there is no
violation of the Fourth Amendment. Id.
In this case, the totality of the unchallenged facts found by
the trial court shows that the initial traffic stop was terminated
upon the officer's return of defendant's documentation and that the
conversation that followed was consensual. Notably, there are no
findings (or evidence) that would indicate any show of force or
coercion by the officers. To the contrary, the conversation was,
according to the trial court, "casual." Most telling is the fact
that defendant himself invited Officer Dorsett to search his
vehicle without any prior request by Officer Dorsett. Officer
Dorsett then gave defendant an opportunity to retract this
invitation when he indicated he would search the truck only if
defendant had no objections. Defendant responded simply by saying,
"Go ahead." Given these circumstances, it is evident that a
reasonable person in defendant's position would not have felt
compelled to cooperate and that this had become a consensual
encounter. See State v. Morocco
, 99 N.C. App. 421, 428-29, 393
S.E.2d 545, 549 (1990) (where defendant's documents had beenreturned, and defendant then gave consent to search of his car,
defendant "was not illegally seized").
Defendant relies heavily on Falana
to support his contention
that the additional questioning constituted an illegal seizure. In
, this Court held that the continued detention of a motorist
was illegal under circumstances very different from those in this
case. The Falana
defendant was detained in the officer's patrol
car following a traffic stop. After the defendant had twice
refused to grant consent for a search of his vehicle, the officer
decided to use a trained drug-sniffing dog to conduct a sweep of
the vehicle. In contrast to Falana
, the circumstances here do not
show any police behavior that would overbear a reasonable person's
ability to terminate the encounter. Rather, all the findings point
to the conclusion that defendant freely cooperated with the
officers. Accordingly, we hold that, after the officers resolved
the window tint issue and returned defendant's documentation,
defendant was not seized within the meaning of the Fourth
(See footnote 3)
Defendant further argues that, even assuming the validity of
his consent to the search, the search was unconstitutional because
it exceeded the reasonable scope of the consent provided. "'When
the State relies upon consent as a basis for a warrantless search,
the police have no more authority than they have been given by theconsent.'" Morocco
, 99 N.C. App. at 430, 393 S.E.2d at 550
(quoting State v. Jolley
, 68 N.C. App. 33, 38, 314 S.E.2d 134, 137,
rev'd on other grounds
, 312 N.C. 296, 321 S.E.2d 883 (1984), cert.
, 470 U.S. 1051, 84 L. Ed. 2d 816, 105 S. Ct. 1751 (1985)).
, we further observed that "[t]he defendant's consent to
search the automobile for contraband entitled [the officer] to
conduct a reasonable search anywhere inside the automobile which
reasonably might contain contraband . . . ." Id.
Here, defendant consented to a search of his truck. According
to the findings of the trial court, the officer located the cocaine
in "the center console" of the truck. Since it is reasonable to
assume that drugs could be stored in a truck's center console, the
officer was entitled to search there. See State v. Aubin
, 100 N.C.
App. 628, 634, 397 S.E.2d 653, 656 (1990) (scope of search for
contraband not exceeded because "[i]t was reasonable for [officer]
to lift up the corner of the back seat in the progress of his
search"), appeal dismissed and disc. review denied
, 328 N.C. 334,
402 S.E.2d 433, cert. denied
, 502 U.S. 842, 116 L. Ed. 2d 101, 112
S. Ct. 134 (1991). In his brief, defendant suggests that the
officer needed to dismantle the truck seat to uncover the cache of
cocaine. The unchallenged findings of the trial court, however, do
not support defendant's suggestion. Moreover, we find no support
for this contention in the transcript from the suppression hearing
either. We, therefore, hold that the officer's search did not
unreasonably exceed the scope of defendant's consent. Defendant next asserts that the search of his vehicle was
unconstitutional because it was carried out pursuant to "a traffic
highway drug interdiction program that uses reasonable suspicion as
a pretext to stop motorists and then continues the detention beyond
the purpose of the stop in order to investigate general controlled
substance crimes." Defendant attempts to analogize the
circumstances of his arrest to City of Indianapolis v. Edmond
U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000), in which the
United States Supreme Court held unconstitutional a highway
checkpoint program whose principal purpose was general crime
This contention was never presented to the trial court.
Accordingly, it has not been preserved for appellate review, and we
therefore do not address its merits. N.C.R. App. P. 10(b)(1);
State v. Smith
, __ N.C. App. __, __, 631 S.E.2d 34, 38 (2006)
(where party "impermissibly presents a different theory on appeal
than argued at trial, th[e] assignment of error was not properly
preserved for appellate review").
Finally, we address defendant's argument that the trial court
failed to make adequate findings of fact. Defendant contends that
there were no findings of fact that would support a determination
whether there was reasonable suspicion to justify the extended
questioning or whether this questioning was merely a consensual
encounter. This issue has already been resolved by our holding
that, based on the trial court's findings of fact, defendant was
not seized following the return of his documentation. Defendant also argues that the trial court made insufficient
findings to support a determination that defendant's consent was
voluntarily given. "When the State relies on a purported consent
to justify a warrantless search, it has the burden of proving that
the consent was voluntary and not the result of express or implied
coercion. Voluntariness is a question of fact to be determined
from all the surrounding circumstances." Aubin
, 100 N.C. App. at
633, 397 S.E.2d at 656 (internal citation omitted).
While defendant refers the Court's attention to the lack of
explicit findings regarding his familiarity with English and the
officer's failure to inform him of his right to refuse consent,
defendant does not cite any authority, and we know of none, that
would require a trial court to exhaustively catalogue the entire
universe of "surrounding circumstances" when the evidence is
uncontroverted, as it was here. As we stated in State v. Ghaffar
93 N.C. App. 281, 288, 377 S.E.2d 818, 822 (1989), a case must be
remanded for additional findings "[w]hen the trial court fails to
make sufficient factual findings to resolve the issues presented."
Here, the court's findings were sufficient to resolve the
issue whether defendant's consent was voluntary. The findings
specifically show that defendant not only "sp[o]ke a little
English," but also that he participated in a "casual conversation"
in English with Officer Dorsett. The officer did not need to
request consent to search because defendant, on his own initiative
asked, "Do you want to check?" Even when the officer offered him
an opportunity to object, defendant said, in English, "Go ahead." Defendant also signed a consent to search form prepared in both
English and Spanish. These findings are sufficient to establish
that defendant's consent was voluntary. Indeed, nothing in the
record suggests otherwise. See Aubin
, 100 N.C. App. at 633-34, 397
S.E.2d at 656 (conclusion of voluntary consent was proper where
"defendant responded three separate times with no apparent
reservations" that officer could search car, record did not
indicate that defendant "was subjected to any pressure from
[officer]," and "defendant displayed an educated and understanding
use of the English language").
With respect to defendant's argument that the trial court
erred in not making findings of fact or conclusions of law as to
the scope of defendant's consent, we believe the order adequately
addresses defendant's argument to the trial court that the search
unlawfully extended to the closed center console. The order
reflects that the officer secured valid consent to search for drugs
and that drugs were found in the center console, a location
reasonably encompassed within the scope of the consent provided.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).