Appeal by defendant from judgment entered 10 January 2006 by
Judge J. Marlene Hyatt in Macon County Superior Court. Heard in
the Court of Appeals 19 February 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Douglas A. Johnston, for the State.
Rudolf, Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for
defendant-appellant.
MARTIN, Chief Judge.
Defendant was charged in true bills of indictment with
multiple counts of trafficking in cocaine, possession of marijuana
with intent to sell and deliver, possession of drug paraphernalia,
and maintaining a vehicle for keeping and selling controlled
substances. He moved to suppress evidence seized as a result of an
allegedly unconstitutional search of his vehicle. After a hearing,
the motion to suppress was denied and defendant pled guilty to one
count of trafficking in cocaine, reserving his right to appeal the
denial of the motion to suppress. The State dismissed the
remaining charges. Defendant appeals from the judgment entered on
his plea. At the hearing on defendant's motion to suppress, the State's
evidence tended to show that on 24 January 2004, Deputy Brent
Holbrooks (“Holbrooks”) observed a blue and white Corvette
automobile driven by defendant traveling at a high rate of speed
and crossing over the road's centerline. Holbrooks pulled the
vehicle over. Holbrooks described defendant as shaking, sweating
and visibly nervous. There were several brown bags with bottles in
the car. From one of those bags, defendant handed Holbrooks an
open bottle of vodka. In addition, Holbrooks noticed an odor of
marijuana about defendant's person. Because defendant's driver's
license had a restriction limiting defendant's blood alcohol level
to .04, Holbrooks administered an alco-sensor test, which yielded
a reading of .00. Holbrooks testified that he asked defendant for
permission to search the car and that defendant responded “Go right
ahead.” Holbrooks testified further that he did not recall
defendant's exact words, but that defendant gave him consent to
search the entire vehicle. Defendant did not withdraw his consent
during the search. In the car, Holbrooks found a white powder
substance in a black zippered case as well as other plastic bags
and a locked briefcase. At this point, defendant was standing
directly behind Holbrooks in a threatening manner. Holbrooks drew
his sidearm, read defendant his Miranda rights and placed defendant
in his patrol car. When asked about the white powder substance,
defendant identified it as cocaine.
Officer Brian Leopard (“Leopard”) arrived on the scene and he
spoke with defendant. Leopard asked to search the lockedbriefcase. Defendant gave his consent and provided the
combination. Leopard found marijuana in the briefcase. After he
was transported to the sheriff's department, defendant signed a
written consent form to search his residence.
Defendant testified that when he was asked for consent to
search his car, he responded by saying “I guess I don't have any
choice, do I?,” after which Holbrooks began searching the car.
Defendant also claimed that he was put under arrest as soon as his
black zippered case was found with a white powder substance on the
outside.
Defendant contends the trial court erred in denying his motion
to suppress. Defendant did not assign error to any of the trial
court's findings of fact. As a result, the findings of fact are
binding on appeal and our Court's review of the motion to suppress
is “limited to whether the trial court's findings of fact support
its conclusions of law.”
State v. Cheek, 351 N.C. 48, 63, 520
S.E.2d 545, 554 (1999). The trial court made the following
findings:
That in this matter there were grounds
for the traffic stop, speeding and erratic
driving. That on the stop the officer
observed the defendant, that he had large
beads of sweat, was shaking, had a restriction
code on his driver's license that would
indicate blood alcohol content must be less
than .04. He observed alcohol in the vehicle
and an odor of marijuana.
The defendant was asked if he would
consent to a search of the vehicle. The
defendant, aware that he could refuse to let
the officers search the vehicle, attempted to be equivocal and said, “Do I have a choice?”
He never refused the officer's request to
search the vehicle; moreover, he provided the
combination to the safe - or the briefcase
that was in the vehicle and provided that at
the scene.
The officers have testified that the
defendant gave consent and that the officers
searched the vehicle and the defendant's
person.
As to the search of the house the
defendant signed the permission to search.
The trial court's conclusions of law are reviewed
de novo.
See
State v. Hernandez, 170 N.C. App. 299, 304, 612 S.E.2d 420, 423
(2005) (citations omitted).
First, defendant argues that he did not voluntarily give
consent for his vehicle to be searched. “Evidence seized during a
warrantless search is admissible if the State proves that the
defendant freely and voluntarily, without coercion, duress or
fraud, consented to the search.”
State v. Williams, 314 N.C. 337,
344, 333 S.E.2d 708, 714 (1985). In determining whether the
consent was voluntary, the court must look at the totality of the
circumstances.
State v. Steen, 352 N.C. 227, 240, 536 S.E.2d 1, 9
(2000). In a case where there are no material conflicts in the
evidence, the trial court need not make a specific finding that a
consent was voluntarily given.
State v. Cobb, 295 N.C. 1, 18-19,
243 S.E.2d 759, 769 (1978).
In the present case, there were no material conflicts in the
evidence as it related to the search of defendant's vehicle.
Though the trial court found that defendant “attempted to be
equivocal” in his response to Holbrooks' request, the court'sfurther findings that the officer testified that defendant gave
consent for the search, did not refuse, and provided the
combination for the locked briefcase in response to the officer's
request, support a finding, which is implicit in the denial of the
motion, that defendant gave voluntary consent to the search. Thus,
considering the totality of the circumstances described within the
trial court's findings as well as the superior position of the
trial judge to evaluate the credibility of the evidence, we uphold
the trial court's determination that defendant consented to the
search.
See State v. Little, 270 N.C. 234, 239-40, 154 S.E.2d 61,
65-66 (1967) (upholding the denial of a motion to suppress and
noting that the “trial judge is in a better position to weigh the
significance of the pertinent factors than is an appellate
tribunal.”)
Defendant also argues the search was constitutionally invalid
because he was detained longer than was necessary to effectuate the
purposes of the initial stop. We disagree. “A law enforcement
officer who observes a traffic law violation has probable cause to
detain the motorist, and the scope of that detention may be
expanded where the officer has a reasonable suspicion, based on
specific and articulable facts, that criminal activity is afoot.”
State v. Hernandez, 170 N.C. App. 299, 301, 612 S.E.2d 420, 422
(2005). The court must look to the totality of the circumstances
to determine if a reasonable suspicion exists to allow further
delay.
State v. Wilson, 155 N.C. App. 89, 96, 574 S.E.2d 93, 98
(2002). Here, the trial court found that both speeding and erratic
driving served as grounds for the traffic stop. After stopping
defendant, Holbrooks encountered several articulable facts
supporting a reasonable suspicion of criminal activity. Defendant
was sweating and shaking. Defendant had a restriction code on his
driver's license mandating that his blood alcohol content be less
than .04. Further, Holbrooks observed alcohol in the vehicle and
an odor of marijuana. Holbrooks had reasonable and articulable
suspicion sufficient to justify further detention and delay.
The order denying defendant's motion to suppress is affirmed.
Affirmed.
Judges HUNTER and STROUD concur.
Report per Rule 30(e).
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