Opinion
No. COA12–643.
2013-02-5
STATE of North Carolina v. Tanya Loletha CAVINESS.
Attorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for the State. Michael J. Reece, for defendant.
Appeal by defendant from order entered 7 December 2011 by Judge Edgar B. Gregory in Randolph County Superior Court. Heard in the Court of Appeals 27 November 2012. Attorney General Roy Cooper, by Assistant Attorney General Martin T. McCracken, for the State. Michael J. Reece, for defendant.
HUNTER, ROBERT C., Judge.
Defendant Tanya Caviness appeals from judgment entered 7 December 2011 after a jury found her guilty of possession with the intent to manufacture, sell, or deliver cocaine and of driving her vehicle on the left side of the highway. On appeal, defendant argues that the trial court erred by: (1) finding defendant “intended to consent to the search,” and (2) concluding that defendant consented to the search. After careful review, we find no error.
Background
On 21 July 2008, defendant was indicted for: (1) possession with intent to manufacture, sell and deliver cocaine, and (2) driving left of center. On 14 October 2010, defendant filed a motion to suppress all evidence seized as a result of the warrantless search of her vehicle. The evidence presented at the suppression hearing on 30 June 2011 tended to establish the following: On 1 February 2008, Detective Sergeant Brian Arrington (“Detective Arrington”) and Edwin Carter (“Detective Carter”), both vice/narcotics officers in the Randolph County Sheriff's Office, executed a search warrant on a residence in Liberty, North Carolina. The execution of that search warrant is not the subject of this appeal.
After clearing the residence, they “set up” on a house in the area where there had been reports of drug activity. After a few minutes, they saw a blue Datsun pickup truck backing out of the driveway. After following the vehicle for several blocks, Detective Arrington and Detective Carter saw it cross over the yellow center line after making a right turn onto Kirkman Street. Detective Arrington, who was driving the patrol vehicle, activated his blue lights and pulled the truck over. Defendant was driving the truck, and Detective Arrington stated that he recognized defendant based on previous interactions in the community and past calls at her residence. Also in the truck was Harvey Nettles (“Mr.Nettles”) and a young female child.
Detective Carter approached the passenger side of the truck and asked Mr. Nettles to step out of the vehicle. He performed a Terry frisk on Mr. Nettles based on the fact that he was wearing heavy clothing and had been in a high-drug area. Detective Carter found a smoking device on Mr. Nettles. Mr. Nettles was placed under arrest.
Detective Arrington asked defendant to step out of the vehicle. Defendant's son arrived on the scene. Detective Arrington testified that he observed defendant trying to exchange something with her son, but he prevented the exchange. After moving defendant's son away from the car, Detective Arrington asked defendant if she had “any contraband, weapons, grenades, or dead bodies in the vehicle.” Defendant replied, “no.” Detective Arrington testified that he then asked defendant, “[d]o you mind if I search your vehicle?” to which defendant said, “no.” Detective Carter reported that he overheard this exchange between Detective Arrington and defendant.
Detective Arrington and Detective Carter began searching defendant's car. They moved the truck's cab seat forward, and Detective Arrington found a purse, “gapped open[,]” with a plastic bag containing a white substance sitting on top of the purse's contents. Detective Arrington placed the purse in the trunk of his car and arrested defendant. During the search, Detective Arrington stated that defendant asked him, “[w]hy are you doing this to me?” and “why are you searching me?” However, he testified that he did not believe defendant revoked her consent. Moreover, Detective Arrington claimed that had defendant wanted to revoke her consent, she “would have made it plainly clear to stop searching or ‘get out of [her] car’ “ because they knew each other.
In contrast, defendant testified at the suppression hearing that she never consented to the search. She claimed that after Detective Arrington asked if he could search her car, she explicitly told him, several times, “no, you cannot.” However, defendant stated that, during the search, she did not say anything to Detective Carter or Detective Arrington.
On 21 July 2011, the trial court issued an order denying defendant's motion to suppress. Specifically, the trial court found that:
6. Arrington knew the [d] efendant from the community and was comfortable with her, and the [d] efendant, in past exchanges with Arrington, had shown herself to be comfortable with Arrington.
7. Arrington asked the [d] efendant if she had any contraband in the vehicle and then asked “Do you mind if I search your vehicle” to which the [d] efendant replied “no”.
9. Arrington began searching the vehicle with the [d] efendant standing by. The [d]efendant did not withdraw consent as the search proceeded. The [d]efendant did begin questioning Arrington, making statements like: Why are you doing this to me, Arrington? The [d]efendant's testimony as well as that of Arrington showed both to be addressing each other by name.
...
13. The [d]efendant denies ever giving consent to the search. The [d]efendant argues first she withheld her consent, and second her answer was not clear and unambiguous, either rendering the search invalid.
14. The Court finds the believable evidence is the [d]efendant did reply “no” to the request for consent.
15. Here the Court finds the believable evidence is the [d] efendant answered the question in a manner in which people in the community address one another by stating “no” to the question posed in the negative “do you mind if I search your car” as opposed to a more fully narrative answer such as “no, I do not mind if you search my car”, thus the [d]efendant intended to consent to the search especially in light of the [d] efendant and Arrington being familiar with one another and comfortable in each other's presence.
The trial court concluded that based on “the totality of the evidence [,] ... [d] efendant consented to the search of the passenger area of the vehicle and did not later withdraw her consent .”
On 7 December 2011, the jury found defendant guilty of possession with the intent to manufacture, sell, or deliver cocaine and for driving her vehicle on the left side of the highway. On 7 December 2011, the trial court sentenced defendant to 10 to 12 months imprisonment but suspended the sentence for 18 months of supervised probation. Defendant appeals.
Arguments
Defendant first argues that the trial court erred in finding that defendant intended to consent to the search when she answered “no” to Detective Arrington's question because this finding was not supported by competent evidence. We disagree.
Our review of a trial court's 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. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court's conclusions of law ... are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). “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. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (internal quotation marks omitted).
Here, there was competent evidence in the record to support this finding of fact. Both Detective Arrington and Detective Carter testified that Detective Arrington clearly asked defendant, “do you mind if I search your car?” They unequivocally testified that defendant replied “no.” Defendant contends that this evidence was insufficient to support the finding because she testified that she specifically refused to give the officers consent to search her vehicle. While defendant's testimony certainly represents a conflict with that of Detective Arrington's, the trial court, in weighing the testimony, found Detective Arrington's evidence “believable.” The trial court acknowledged that “[d]efendant denies ever giving consent to the search.” However, the trial court chose to find Detective Arrington's testimony credible and resolved the conflict in favor of Detective Arrington. “Because the trial court, as the finder of fact, has the duty to pass upon the credibility of the evidence and to decide what weight to assign to it and which reasonable inferences to draw therefrom, the appellate court cannot substitute itself for the trial court in this task.” State v. Villeda, 165 N.C.App. 431, 438, 599 S.E.2d 62, 66 (2004); see also State v. Veazey, 201 N.C.App. 398, 402, 689 S.E.2d 530, 533 (2009) (holding that “[w]eighing the credibility of witnesses and resolving conflicts in their testimony is precisely the role of the superior court in ruling on a motion to suppress”). Thus, defendant's argument is overruled.
Next, defendant argues that the trial court erred in concluding that defendant “consented to the search of her vehicle.” Specifically, defendant alleges that her answer to Detective Arrington was ambiguous, and her compliance was not “voluntary” based on the fact that she saw Mr. Nettles arrested and searched. We are not persuaded.
Pursuant to N.C. Gen.Stat. § 15A–221 (2011), a law enforcement officer may conduct a search without a warrant if the subject of the search provides consent. For a “consensual search to pass muster under the Fourth Amendment, consent must be given and the consent must be voluntary.” State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). “To be voluntary the consent must be unequivocal and specific, and freely and intelligently given.” State v. Little, 270 N.C. 234, 239, 154 S.E.2d 61, 65 (1967) (internal quotation marks and citation omitted). “[T]he question whether a consent to a search [is] in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” State v. Kuegel, 195 N.C.App. 310, 315, 672 S.E.2d 97, 100 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854, 862–63 (1973)), disc. review denied,363 N.C. 378, 679 S .E.2d 396 (2009).
Here, based on the totality of the circumstances, we conclude that the trial court did not err in denying defendant's motion to suppress for several reasons. First, when Detective Arrington asked if she minded if he searched her car, defendant's answer was unequivocal and unambiguous. She did not say, “no, you can't search” or “no, I mind if you search.” In contrast, by simply answering “no,” defendant was essentially saying, “no, I do not mind if you search.” Even though Detective Arrington asked his question in the negative, the phrasing of the question is not so strange or unfamiliar as to make defendant's one-worded answer unintelligently given. Additionally, it does not necessarily mean that defendant's consent was the product of coercion simply because there may be been a clearer way to ask it. Second, we note that because defendant was familiar with Detective Arrington, she would have been more comfortable refusing to give consent than had she not known him. Finally, there is no evidence that defendant was handcuffed or restrained in any way when she gave consent. While it is uncontested that defendant saw Mr. Nettles handcuffed, her consent does not necessarily become involuntary because she saw another person arrested and searched. Therefore, the trial court did not err in concluding that defendant consented to the search.
Next, defendant argues that even if she had consented to the search, she withdrew her consent. Specifically, defendant contends that she withdrew her consent “when she began protesting during the search.” We disagree.
A person may revoke his consent to search. State v. Schiro, –––N.C.App. ––––, ––––, 723 S.E.2d 134, 138 (2012). “The scope of a valid consent search is measured against a standard of objective reasonableness where the court asks what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id. (internal citations omitted).
At the suppression hearing, Detective Arrington testified that, during the search, defendant asked “why are you doing this to me?” and “why are you searching me?” While a reasonable person may believe that these statements indicated that defendant was unhappy with what was transpiring, they are too ambiguous to make a reasonable person believe defendant wanted to withdraw her consent. See generally State v. Morocco, 99 N.C.App. 421, 430, 393 S.E.2d 545, 550 (1990) (holding that the defendant's statement that “the bag contained some nude photographs of his wife” was too ambiguous to constitute a revocation of consent). Furthermore, defendant testified that she said nothing to Detective Arrington or Detective Carter during the search. Therefore, based on the totality of the circumstances, the trial court did not err in concluding defendant did not revoke her consent.
Conclusion
For the foregoing reasons, we conclude the trial court did not err in finding that defendant intended to consent to the search or in concluding that defendant consented to the search.
No error. Judges McGEE and ELMORE concur.
Report per Rule 30(e).