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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1371


Filed: 5 June 2007


v .                         Guilford County
                            Nos. 05 CRS 65342-43

    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.


    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.

    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.
    Judges McCULLOUGH and STROUD concur.
    Report per Rule 30(e).

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