Appeal by defendant from an order entered 29 August 2005 by
Judge Ronald E. Spivey and a judgment entered 23 March 2006 by
Judge John O. Craig, III in Guilford County Superior Court. Heard
in the Court of Appeals 26 April 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Martin T. McCracken, for the State.
Glover & Petersen, P.A., by James R. Glover, for defendant.
BRYANT, Judge.
Vinicio Veloz Espinoza (defendant) appeals from an order
entered 29 August 2005, denying his motion to suppress, and a
subsequent judgment entered 23 March 2006, pursuant to his guilty
plea to the offenses of trafficking in cocaine by possession,
conspiring to traffic in cocaine by possession, and trafficking in
cocaine by transportation. For the reasons stated herein, we
affirm the order of the trial court.
Facts
On 4 January 2005, Highway Patrol Sergeant Timothy Cardwell
observed a blue Ford Expedition traveling south on Interstate 85 in
Guilford County at a speed of seventy-five miles per hour. Sgt.Cardwell activated his blue lights and siren and the Ford pulled
over on the right shoulder. State Trooper Gregory Strader pulled
his patrol car to a stop behind Sgt. Cardwell's patrol car shortly
thereafter.
Defendant was the driver and sole occupant of the Ford. Sgt.
Cardwell asked defendant for his driver's license and vehicle
registration. Defendant produced a North Carolina driver's
license, showing his address in Salisbury, and an insurance card
showing the Ford was insured in the name of Christian Lopez.
Defendant, who spoke only broken English, admitted he was traveling
at seventy-five miles per hour. Sgt. Cardwell asked defendant to
get out of the Ford and come back to his patrol car.
Sgt. Cardwell had defendant sit in the front passenger seat
of his patrol car. Trooper Strader, who spoke some Spanish, sat in
the back seat and assisted Sgt. Cardwell in questioning defendant.
After discovering that defendant's driver's license was valid and
that the Ford's registration was proper, Sgt. Cardwell prepared a
warning citation for the speeding violation and gave it to
defendant. Trooper Strader explained that the citation was just a
warning and that there would be no fine or penalty. Sgt. Cardwell
also returned defendant's driver's license and the insurance card
for the Ford.
Defendant was not told that he was free to leave after his
documents were returned and he was given the warning citation. The
officers continued to ask defendant questions, and Sgt. Cardwell
subsequently asked defendant for consent to search the Ford. Defendant gave oral consent, and also signed a Spanish language
consent to search form. Defendant's Ford was then searched with
the assistance of a K-9 police dog, certified in narcotics
detection, handled by State Trooper William Allison. The dog
indicated narcotics were present in the Ford and Sgt. Cardwell
found a total of six square packages wrapped in cellophane, later
determined to contain approximately six kilograms of cocaine.
Trooper Allison placed defendant under arrest and advised him of
his
Miranda rights in Spanish.
Procedural History
On 7 March 2005, the Guilford County Grand Jury returned
indictments charging defendant with three offenses: (1)
trafficking in cocaine by possessing 400 grams or more; (2)
conspiring with Christian or “Christovo” Lopez to traffic in
cocaine by possessing 400 grams or more; and (3) trafficking in
cocaine by transporting 400 grams or more. On 18 August 2005,
defendant filed a motion to suppress the evidence obtained as the
result of a search of the Ford Expedition. An evidentiary hearing
was held on the motion to suppress at the 22 August 2005 Criminal
Term of the Guilford County Superior Court, the Honorable Ronald E.
Spivey, Superior Court Judge, presiding. The motion was denied by
written order entered on 29 August 2005.
Defendant subsequently entered a plea of guilty to all three
charges, reserving the right to appeal the denial of his motion to
suppress. The three charges were consolidated for judgment, and
defendant was sentenced to an active term of imprisonment for aminimum of 175 months and a maximum of 219 months. Defendant
appeals.
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Defendant's sole issue on appeal is whether the trial court
erred in denying his motion to suppress the evidence obtained from
the search of his vehicle. Defendant does not challenge the
initial stop of his vehicle, or his detention for the period of
time necessary to complete the issuance of a warning ticket for
exceeding the posted speed limit. Defendant does contend his
consent to search his vehicle was obtained while he was illegally
detained after the original purpose of the stop had been addressed
and without a reasonable and articulable suspicion that he was
engaged in criminal activity. We disagree.
“The scope of review of the denial of a motion to suppress is
'strictly limited to determining whether the trial judge's
underlying findings of fact are supported by competent evidence, in
which event they are conclusively binding on appeal, and whether
those factual findings in turn support the judge's ultimate
conclusions of law.'”
State v. Bone, 354 N.C. 1, 7, 550 S.E.2d
482, 486 (2001) (quoting
State v. Cooke, 306 N.C. 132, 134, 291
S.E.2d 618, 619 (1982)),
cert. denied, 535 U.S. 940, 152 L. Ed. 2d
231 (2002). Where a 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). “The trial court's conclusions of law,however, are fully reviewable on appeal.”
State v. Hughes, 353
N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
When based upon probable cause, a temporary detention of a
motorist for a violation of a traffic law does not violate the
Fourth Amendment's prohibition against unreasonable seizures.
State v. McClendon, 350 N.C. 630, 635, 517 S.E.2d 128, 131 (1999)
(adopting the reasoning of
Whren v. United States, 517 U.S. 806,
135 L. Ed. 2d 89 (1996)). “'An investigative detention must be
temporary and last no longer than is necessary to effectuate the
purpose of the stop.'”
State v. Allison, 148 N.C. App. 702, 706,
559 S.E.2d 828, 831 (2002) (quoting
Florida v. Royer, 460 U.S. 491,
500, 75 L. Ed. 2d 229, 238 (1983)). However, to further detain a
person after lawfully stopping him, an officer must have, in light
of the totality of the circumstances, a reasonable suspicion based
on specific and articulable facts that criminal activity is afoot.
Id. at 636, 517 S.E.2d 132.
In denying defendant's motion to suppress, the trial court
made the following findings of fact:
The Court will note that the defendant
was allowed to sit in the front passenger seat
of the Highway Patrol car, that he was not
restrained, nor was any physical force shown
toward the defendant at this time.
At this point, Trooper Strader came up to
the car and sat in the back of the Highway
Patrol car, because he knows Spanish better,
and he sat in the right rear passenger seat.
The defendant was asked, “Who is the owner?”
to which he replied, “My friend, Cristovo
Lopez.”
At this point, the sergeant noticed that
the defendant's carotid artery was pounding,
and his chest was moving rapidly, indicating
to this officer, based on his training andexperience, a nervousness that's beyond the
norm.
At this point, the sergeant advised the
defendant why he'd been stopped, that he had
proceeded at approximately 75 miles per hour
in a 70 mile an hour zone, to which the
defendant admitted he was going 75.
The defendant was then asked a series of
questions, with the assistance of Trooper
Strader, as the sergeant did a status check of
the driver's license and registration of this
particular vehicle. The defendant told Trooper
Strader that he'd been to Raleigh to visit
Maria Jiminez, his alleged girlfriend. When
asked where in Raleigh, the defendant did not
know the address or street name or area.
During this period, Sergeant Cardwell was
preparing and issuing a warning ticket for the
speeding [of] the defendant. That during this
entire process, the sergeant testified that he
noticed that the defendant hesitated with
answers and seemed very unsure, and did not
seem to even know addresses of the places he
had been or where he was going. He further
noted that his level of nervousness continued
throughout the contact between the two.
That at that time, the driver's license
checked out as valid, and the defendant was
presented a warning citation for speeding.
This citation was explained to him in Spanish.
After receiving the warning ticket, the
defendant indicated, pursuant to a question,
that he had been arrested for a driving while
impaired in Georgia at a previous time. At
which point, all the documents were returned
to the defendant.
That at this point, the sergeant, based
on his training and experience, indicated that
he was suspicious, because of numerous
matters, that there was criminal activity
afoot. The defendant was asked if there was
anything illegal in his vehicle, to which he
answered, “No.” The sergeant then asked,
through Trooper Strader, in Spanish, “Can I
search the vehicle?” At which point, the
defendant consented to a search of the
vehicle. This oral consent was witnessed by
Sergeant Cardwell and Trooper Strader.
At this point, the sergeant asked Trooper
Strader if he would get the defendant to sign
a written consent form, printed in Spanish. At
the point of this request, the witnesstestified, that being Sergeant Cardwell, that
he was concerned about the uncertainty as to
the owner and his whereabouts in Salisbury,
the nervousness of the defendant, which was
beyond the normal, the fact that that
nervousness had never subsided at any time
during the procedure of giving the warning
ticket, that the defendant's hands had been
trembling, that his carotid artery was
pounding, that his chest was moving rapidly,
and his uncertainty about numerous matters,
and the fact that the car had the strong odor
of air freshener, that he decided to make this
request for a consent search.
Further, that there was no indication
that the defendant did not understand the
request to consent to the search, in that it
was translated into Spanish, and he gave
verbal permission to the sergeant in the car,
again in the presence of Trooper Strader. That
at this point, Trooper Strader took him back
to his car, because there were no Spanish
language waivers in the first cruiser, to get
a Spanish form written consent. At this point,
it was presented to the defendant, in Spanish,
and he signed the written consent form at 2:20
p.m., a mere 14 minutes after the original
stop.
Defendant does not challenge these findings of fact and they
are thus binding on this Court on appeal.
Jacobs, 162 N.C. App. at
254, 590 S.E.2d at 440. These facts are supported by competent
evidence in the record before this Court and in turn support the
trial court's conclusion that Sgt. Cardwell developed a reasonable
and articulable suspicion that defendant was involved in some
illegal activity.
See McClendon, 350 N.C. at 637, 517 S.E.2d at
133 (initial confusion as to owner of the vehicle, extreme
nervousness, refusal to make eye contact and other circumstances
supported reasonable suspicion);
see also State v. Hernandez, 170
N.C. App. 299, 309, 612 S.E.2d 420, 426-27 (2005) (reasonable
suspicion supported by nervousness and strong odor of air freshenerin vehicle). Therefore, Sgt. Cardwell's further questioning of
defendant and subsequent request to search the vehicle was not in
violation of defendant's rights under the Fourth Amendment to the
United State's Constitution and the trial court did not err in
denying defendant's motion to dismiss. These assignments of error
are overruled.
Affirmed.
Judges McCULLOUGH and STROUD concur.
Report per Rule 30(e).
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