Return to nccourts.org
Return to the Opinions Page
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
STATE OF NORTH CAROLINA
No. 05 CRS 58338-40
GRACIANO M. SANCHEZ and
DIONICIO A. AGUIRRE
Appeal by Defendants from judgments entered 28 August 2006 by
Judge William Z. Wood, Jr., in Forsyth County Superior Court.
Heard in the Court of Appeals 10 September 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Daniel S. Johnson, Special Deputy Attorney General Ted
R. Williams, and Assistant Attorney General LaShawn L.
Strange, for the State.
J. Darren Byers and Teresa Stewart, for Defendant-Appellant
Graciano M. Sanchez.
J. Clark Fischer, for Defendant-Appellant Dionicio A. Aguirre.
On 22 August 2005, indictments were handed down charging
Defendants Graciano M. Sanchez (Sanchez) and Dionicio Aguire
Aguirre (Aguirre) (together, Defendants), each with counts of
trafficking in methamphetamine by possession, trafficking in
methamphetamine by transportation and possession with intent to
sell and deliver methamphetamine. Sanchez was also charged with
maintaining a motor vehicle for keeping and selling controlled
substances. On 28 August 2006, both Defendants pled guilty to allcharges, but pursuant to N.C. Gen. Stat. § 15A-979(b), expressly
reserved the right to appeal the denial of their motions to
suppress. The trial court entered judgments against Defendants on
28 August 2006, sentencing each Defendant to 225 to 279 months
incarceration. From this judgment, Defendants appeal. For the
reasons that follow, we conclude the trial court did not err by
denying Defendants' motions to suppress.
The relevant evidence is summarized as follows: On 7 July 2005
Officer Kim Jones (Jones), during a routine investigation, noticed
an automobile parked at a Motel 6 with a license plate registered
to Elgordo Cortez, Jr., of San Bernardino, California. The vehicle
was registered to Room 238, which was occupied by Aguirre and
Sanchez. Reports revealed that the vehicle had been stopped the
day before in Winston-Salem, driven by Sanchez. At that time, a
drug dog alerted the vehicle, but no contraband was found. As
Jones continued surveillance, she observed Defendants leave the
motel room holding clothes. Sanchez held tan clothes tightly
bundled under his arm, and Aguirre carried black and white clothes
in his left hand. Defendants got into the car and put the clothes
in the back seat.
Jones and Sergeant Tim Southern (Southern) proceeded to follow
Defendants. As time passed Defendants' route became confusing, and
Jones suspected that they were attempting to lose the officers and
escape. At one point, Defendants suddenly shifted lanes [a]cross
three lanes of travel and ran three red lights without stopping.
Jones testified that, as Defendants changed lanes, [p]eople had tostop, hit their brakes . . . to keep from . . . colliding into
After following Defendants for about an hour and one half, and
attempting to pull the car over numerous times, Sanchez and Aguirre
finally reached a stop sign behind several other vehicles. Jones
and Southern exited their police vehicle and approached Defendants.
They asked Defendants to step out of the vehicle. Jones patted
down Aguirre for weapons, and Southern took the keys from the
ignition of the vehicle.
A few minutes later, Officer Theresa Fish (Fish) arrived to
the scene, and Southern and Jones requested Fish to ask Sanchez in
Spanish whether he would consent to a search of his vehicle.
Sanchez consented to the search, and
the officers moved the vehicle
out of traffic and into a nearby parking lot. They searched the
car with a K-9 dog, which alerted to narcotics in the pile of
clothes lying in the backseat of the car.
Over 400 grams of
methamphetamine was hidden in the tan clothes. In the black and
white clothes, the officers found packaging materials.
Standard of Review
In reviewing the trial court's order on a motion to suppress,
the court's findings of fact 'are conclusive on appeal if
supported by competent evidence, even if the evidence is
conflicting.' State v. McArn, 159 N.C. App. 209, 211, 582 S.E.2d
371, 373 (2003) (quoting State v. Brewington, 352 N.C. 489, 498,
532 S.E.2d 496, 501 (2000)). However, the court's conclusions oflaw are fully reviewable on appeal. State v. Hughes, 353 N.C. 200,
208, 539 S.E.2d 625, 631 (2000).
First, we note that the Record submitted contains no written
order determining Defendants' motions to suppress. However, the
trial judge announced his ruling in open court. N.C. Gen. Stat. §
15A-977(f) (2005) states that [t]he [trial] judge must set forth
in the record his findings of facts and conclusions of law. Our
Courts have generally interpreted this statute to require a written
order, unless (1) the trial court did provide its rationale from
the bench and (2) there [was] no material conflict in the
evidence on voir dire[.] State v. Shelly, __ N.C. App. __, __,
638 S.E.2d 516, 523, disc. review denied, 361 N.C. 367, 646 S.E.2d
768 (2007). In that event, the necessary findings are implied
from the admission of the challenged evidence. Id. Here, because
the trial court provided its rationale from the bench and there was
no material conflict in the evidence, the court's failure to enter
a written order stating findings of fact and conclusions of law was
not error. We must therefore determine whether the trial court's
implied findings are supported by competent evidence, and whether
those findings support the legal conclusions.
I: Voluntariness of Consent
In his first argument, Sanchez contends that the trial judge
erred by denying his motion to suppress evidence because Sanchez'
consent to search the vehicle during the traffic stop was
involuntary. We disagree. N.C. Gen. Stat. § 15A-221(b) (2005) defines consent as a
statement to the officer, made voluntarily and in accordance with
the requirements of G.S. [§] 15A-222, giving the officer permission
to make a search. N.C. Gen. Stat. § 15A-222 (2005) provides:
The consent needed to justify a search and
seizure under G.S. [§] 15A-221 must be given:
(1) By the person to be searched;
(2) By the registered owner of a vehicle to
be searched or by the person in apparent
control of its operation and contents at
the time the consent is given;
(3) By a person who by ownership or otherwise
is reasonably apparently entitled to give
or withhold consent to a search of
When the State seeks to rely upon a defendant's consent to
support the validity of a search, it has the burden of proving
that the consent was voluntary. State v. Morocco, 99 N.C. App.
421, 429, 393 S.E.2d 545, 549 (1990) (citing State v. Hunt, 37 N.C.
App. 315, 321, 246 S.E.2d 159, 163 (1978)). Voluntariness is a
question of fact to be determined from all of the surrounding
circumstances. State v. Williams, 314 N.C. 337, 344, 333 S.E.2d
708, 714 (1985).
The trial court must determine whether, under the totality of
the circumstances, the consent to enter . . . was freely and
voluntarily given[,] or was the product of duress or coercion,
either express or implied. State v. Bogin, 66 N.C. App. 184, 186,
310 S.E.2d 640, 642, disc. review denied, 310 N.C. 478, 312 S.E.2d
886 (1984). [K]nowledge of the right to refuse consent is one
factor to be taken into account[.] Schneckloth v. Bustamonte, 412U.S. 218, 227, 36 L. Ed. 2d 854, 863 (1973). The trial court's
findings are conclusive when supported by competent evidence. Id.
In the instant case, Officers Jones and Southern had been
following Defendants and attempting to pull the car over for an
hour and one half. The police stopped Sanchez after he recklessly
crossed several lanes of traffic and ran several stop lights. When
the police stopped the vehicle, Southern drew his pistol from its
holster and approached the vehicle. Southern stated that he held
his gun as we [are] trained, in what is commonly called in police
training the low-ready position. In other words, . . . the weapon
is clear of the holster [and] pointed toward the ground[.]
Southern returned the gun to waistband once he ascertained that
Sanchez and Aguirre were not armed. When asked what was your tone
of voice when you . . . were giving commands to [Sanchez][,]
Southern stated, [i]t was firm, but not yelling, trying to speak
slowly so that I was understood and speak clearly. . . . Not
overly excited but firm so that he understood.
Southern then took the car keys out of the ignition, and
Officer Fish, who was fluent in Spanish, asked Sanchez if he would
consent to a search of his vehicle. Sanchez replied in Spanish
that he did not own the vehicle. Fish then told Sanchez that he
could nonetheless consent to a search since he was driving the
vehicle. Defendant gave consent. At that time, there were no
weapons being displayed and Sanchez was not handcuffed. During the
hearing on Defendants' motions to suppress, Officer Jones
testified: Q: . . . What did you ask Corporal Fish to
A: I asked her if she would ask the driver
for consent to search his vehicle.
Q: And what happened?
A: [Sanchez] first stated it wasn't his
vehicle. . . .
Q: What . . . did you explain to Corporal
Fish to tell [Sanchez]?
A: I had her to explain to him, since he was
in control of the vehicle, that he could
grant consent to search the vehicle.
Q: And what happened then?
A: He consented to searching[.]
In determining whether under these circumstances, Defendants'
consent was voluntarily, we find this Court's opinion of State v.
Sanchez, 147 N.C. App. 619, 556 S.E.2d 602 (2001), disc. review
denied, 355 N.C. 220, 560 S.E.2d 353 (2002), to be controlling
authority. In that case, officers conducted a felony traffic stop
for their safety where they placed the occupants of the vehicle in
handcuffs, placed them on the ground, searched them for weapons,
and then searched the vehicle for weapons. Id. at 621, 556 S.E.2d
at 605. Meanwhile, another officer stood back and covered the
occupants with his handgun. Id. at 625, 556 S.E.2d at 608. Once
the officers ensured their safety, they uncuffed the defendant and
the occupants of the vehicle and put away their own handguns. Id.
at 626, 556 S.E.2d at 608. Thereafter, officers asked the
defendant for consent to search his briefcase. This Court
determined that the defendant's consent to search his briefcasewas not the product of coercion. Id. Morever, federal courts
have found a defendant's consent to be voluntary where the
officers approached the defendant with guns drawn, but then
holstered them once the area was secured and before asking for
consent to search. United States v. Kimoana, 383 F.3d 1215, 1226
(10th Cir. 2004); See e.g., United States v. Mitchell, 209 F.3d
319, 324 (4th Cir. 2000).
Based upon the testimony presented, we conclude that the
court's implied findings of fact are supported by competent
evidence, and the findings in turn support the trial court's
conclusion that Sanchez knowingly and voluntarily consented to the
search of the vehicle.
There is no evidence that Sanchez was so intimidated that he
felt he could not reasonably refuse to consent. Nor is there any
evidence Sanchez was restrained or threatened by the officers at
the time he gave consent. The officers did not behave in a
coercive or intimidating manner, and the entire search lasted only
fifteen or twenty minutes. Considering the totality of the
circumstances of this case, we conclude that Sanchez' consent was
not a product of duress or coercion, either express or implied.
This assignment of error is overruled.
II: Scope of Consent
In his second argument, Sanchez contends that the trial court
erred by denying his motion to suppress because the police exceeded
the scope of Sanchez' consent when they searched the clothes in the
backseat of the car. We disagree. The standard for measuring the scope of a suspect's consent
under the Fourth Amendment is that of 'objective' reasonableness-
what would the typical reasonable person have understood by the
exchange between the officer and the suspect? Florida v. Jimeno
500 U.S. 248, 251, 114 L. Ed. 2d 297, 302 (1991). The test of
reasonableness . . . requires a balancing of the need for the
particular search against the invasion of personal rights that the
search entails. Bell v. Wolfish
, 441 U.S. 520, 559, 60 L. Ed. 2d
447, 481 (1979). Courts must consider the scope of the particular
intrusion, the manner in which it is conducted, the justification
for initiating it, and the place in which it is conducted. Id.
This Court has held that a defendant's consent to search an
automobile for contraband entitles police to conduct a reasonable
search anywhere inside the automobile which reasonably might
contain contraband. Morocco
, 99 N.C. App. 421, 393 S.E.2d 545
(holding that defendant's consent to a search of his automobile
included the trunk and the tote bag in the back seat, even though
defendant told police the bag contained nude photos of his wife);
see also State v. Aubin
, 100 N.C. App. 628, 634, 397 S.E.2d 653,
656 (1990) (holding that defendant's consent to a search of his car
reasonably allowed an officer to lift up the corner of the back
seat in the progress of his search), disc. review denied
, 328 N.C.
334, 402 S.E.2d 433 (1991).
In the instant case, Sanchez consented to the officers' search
of the vehicle, but stated that not all of the clothes in the back
seat belonged to him. Officer Fish testified: Q: Did the [D]efendants make any statements
to you about ownership of the clothing
inside the vehicle?
A: When I asked him for consent, after he
consented, he advised me that there _
there was some clothing that did not
belong to [Sanchez]. . . .
. . . .
Q: Did [Aquirre] . . . make any statements
about the clothing contained within the
A: He did. . . . [A]fter they did their
search, they asked me to ask him if he
can identify the clothing and he advised
that that was his . . . pants.
. . . .
Q: What exactly _ how did you ask him?
A: For consent to search the vehicle.
Q: And he said?
A: He said okay.
Q: And what else did he say?
A: After he gave me consent, he stated that
. . . there was some clothing that was
Based on State v. Aubin and State v. Morocco, we conclude that
Sanchez' statement, pertaining to whether the clothes in the back
seat belonged to him, was not a limitation on Sanchez' consent to
search the vehicle. A reasonable person may have understood that
his consent to search an automobile for contraband entitles police
to conduct a reasonable search of the clothes lying in the backseat
of a car. The police here did not exceed the scope of Sanchez'
consent. This assignment of error is overruled.
III: Reasonable Expectation of Privacy
In his only argument on appeal, Aguirre contends that because
none of the investigating officers attempted to seek consent from
Aguirre to search the car, the trial court erred by denying
Aguirre's motion to suppress. We disagree.
The Fourth Amendment protects the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures. State v. Wiley
, 355 N.C. 592,
602, 565 S.E.2d 22, 32 (2002) (citing U.S. Const. amend. IV and
N.C. Const. art. I, §§ 18, 19, 23). However, in order to challenge
the reasonableness of a search or seizure, a defendant must have
standing, which requires both an ownership or possessory interest
and a reasonable expectation of privacy. State v. Swift
, 105 N.C.
App. 550, 556, 414 S.E.2d 65, 68-69 (1992); see also Rakas v.
, 439 U.S. 128, 143, 58 L. Ed. 2d 387, 401 (1978) (holding
that the protection of the Fourth Amendment extends only to those
persons who have a reasonable expectation of privacy in the
premises searched); State v. Jones
, 299 N.C. 298, 306, 261 S.E.2d
860, 865 (1980).
A defendant's 'legitimate expectation of privacy . . . has
two components: (1) the person must have an actual expectation of
privacy, and (2) the person's subjective expectation must be one
that society deems to be reasonable.' State v. McNeil
, 165 N.C.
App. 777, 783, 600 S.E.2d 31, 35-36 (2004) (quoting Wiley
, 355 N.C.
at 602, 565 S.E.2d at 32), aff'd
, 359 N.C. 800, 617 S.E.2d 271
(2005). N.C. Gen. Stat. § 15A-222(2) (2005), requires that the consent
needed to justify a search and seizure under N.C. Gen. Stat. §
15A-221 must be given [b]y the registered owner of a vehicle to be
searched or by the person in apparent control of its operation and
contents at the time the consent is given[.] G.S. § 15A-22(2).
A driver is in apparent control of a car and its contents, whether
the vehicle or its contents belong to him or to others. State v.
, 103 N.C. App. 175, 187, 405 S.E.2d 358, 366 (1991),
, 331 N.C. 112, 413 S.E.2d 799 (1992) (internal quotations
Consent given by the owner or person lawfully in control of a
vehicle is sufficient to justify a search that yields evidence
used against a non-consenting passenger. State v. Mandina
N.C. App. 686, 695, 373 S.E.2d 155, 161 (1988). This is because a
defendant who has no ownership or possessory interest in the
vehicle searched has no 'legitimate expectation of privacy' in that
vehicle, and, accordingly, no standing to object to the search.
(quoting State v. Melvin
, 53 N.C. App. 421, 425, 281 S.E.2d 97,
In the instant case, Aguirre argues, generally and without any
citation to legal authority, that the back seat where the
contraband was located contained personal items, specifically
clothing, which was the property of Aguirre alone[,] and
therefore, Aguirre had a legitimate expectation of privacy in the
rear area of the vehicle in which his clothing was stored. We
find this argument unconvincing. Initially, we note that there is no evidence that Aguirre
objected to Sanchez' consent at the scene. Our North Carolina
Supreme Court has held that failure to speak and assert the
personal right of immunity from unreasonable search and seizure
'amount[s] to a voluntary consent to search,' where the person who
remains silent knows that the driver has given his verbal consent
to a search. McDaniels,
103 N.C. App. at 186, 405 S.E.2d at 365
(quoting State v. Coffey
, 255 N.C. 293, 297-98, 121 S.E.2d 736, 740
(1961)); see also State v. Foster
, 33 N.C. App. 145, 148, 234
S.E.2d 443, 446 (1977) (silence in face of consent by person in
apparent control of car permits court to infer consent by person
Moreover, the facts of State v. Jones
, 161 N.C. App. 615, 619,
589 S.E.2d 374, 376 (2003), disc. review denied
, 358 N.C. 379, 597
S.E.2d 770 (2004), are virtually identical to the instant case. In
, police officers saw the Defendant walk to a nearby Mustang,
get in the back seat of the car and place his jacket there. Then,
the Defendant got out of the car, wearing only a tee shirt despite
the freezing winter weather. The police asked the owner of the
Mustang for consent to search, and the owner gave consent. This
[Defendant] contends . . . that [the vehicle
owner] giving general consent to search the
vehicle did not entitle the officers to search
[Defendant's] coat on the back seat. Defendant
asserts that he retained a reasonable
expectation of privacy with respect to his
coat, even after leaving it in [the vehicle
owner's] car, and that [the owner] did not
have authority to consent to a search of his
jacket. On this basis, [D]efendant arguesthat without [D]efendant's consent, the search
of his jacket violated his rights under the
Fourth Amendment. We do not agree.
, this Court concluded that vehicle owner's general
consent to the search of his car reasonably included the search of
the Defendant's jacket lying in the back seat of the car.
is controlling authority in the instant case. Here,
after we imply the necessary findings from the admission of the
challenged evidence, we conclude that the trial court's findings of
fact were supported by the evidence, and that these findings
support its conclusion of law, that the police did not violate the
Aguirre's constitutional rights by searching his clothes in the
backseat of the vehicle after obtaining Sanchez' consent to search.
This assignment of error is overruled.
We conclude that the trial court did not err by denying
defendants' motions to suppress.
Chief Judge MARTIN and Judge STROUD concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***