Opinion
No. COA03-497
Filed 7 September 2004 This case not for publication
Appeal by defendant from judgment entered 16 January 2003 by Judge Clarence E. Horton, Jr. in Cabarrus County Superior Court. Heard in the Court of Appeals 9 August 2004.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State. J. Clark Fischer for defendant.
Cabarrus County No. 02 CRS 51770.
On 15 July 2002, defendant was indicted for possession of cocaine with intent to sell and deliver, and maintaining a vehicle used for keeping and selling cocaine. Defendant filed a motion to suppress evidence of cocaine found on her person and the court denied said motion. Thereafter, defendant entered a plea of guilty to felony possession of cocaine, reserving the right to appeal denial of her motion to suppress. By judgment entered 16 January 2003, defendant was sentenced to a suspended sentence of 6-8 months imprisonment, and placed on supervised probation for 24 months. Defendant gave notice of appeal in open court.
On 25 June 2002, defendant was driving her vehicle on Highway 29 in Concord. Officer Brian Kelly ("Officer Kelly") of the Concord Police Department was driving two cars behind defendant, when he noticed that defendant was driving without the use of her seatbelt. He stopped defendant and asked for her license and registration within three to five minutes.
Officer Kelly noticed that defendant seemed overly nervous during the stop. After he had issued the citation and returned her documents, Officer Kelly asked if she had any drugs or guns in the vehicle, to which she replied she had two children in the vehicle. Officer Kelly then asked for permission to search the vehicle. Defendant specifically gave Officer Kelly permission to search the vehicle. Before Officer Kelly searched the vehicle, defendant removed a can from the glove compartment, and during the search stood at the back of her vehicle.
Upon searching the vehicle, Officer Kelly found marijuana. Officer Kelly then searched defendant and found cocaine and a razor in the can she previously removed from the vehicle and was holding in her hand Defendant was placed under arrest. Approximately ten minutes had elapsed from the time the vehicle was stopped until the vehicle was searched.
On appeal, defendant argues that the trial court erred in denying her motion to suppress evidence of cocaine found during the search. Specifically, defendant argues that the officer had no justifiable reason to detain her after issuing her citation, and that her consent to search the vehicle was coerced. We disagree.
A defendant may appeal the denial of a motion to suppress, notwithstanding entry of a guilty plea. N.C.G.S. § 15A-979(b)(2003). This Court's review of denial of a motion to suppress is strictly limited. State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282 (2000). Competent evidence must support the trial court's findings. Id. If competent evidence exists, the findings are binding on appeal. Id. The court's conclusions of law, however, are reviewed de novo. State v. Chadwick, 149 N.C. App. 200, 202, 560 S.E.2d 207, 209, disc. rev. denied, 355 N.C. 752, 565 S.E.2d 672 (2002).
Our Supreme Court has held that warrantless searches and seizures are per se unreasonable unless "the search falls within a well-delineated exception to the warrant requirement[.]" State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982) (citations omitted). "Hence, when the State seeks to admit evidence discovered by way of a warrantless search in a criminal prosecution, it must first show how the former intrusion was exempted from the general constitutional demand for a warrant." Id.
The warrantless search of a vehicle and seizure of evidence obtained therefrom are justified where a police officer receives consent to execute the search. State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). This Court has held that an officer may ask for consent to search a vehicle even after the traffic stop has terminated. See State v. Morocco, 99 N.C. App. 421, 428, 393 S.E.2d 545, 549 (1990).
In the instant case, Kelly's detention of defendant ended when he returned her license and registration to her because areasonable person, under the circumstances, would have felt free to leave once the documents were returned. See State v. Kincaid, 147 N.C. App. 94, 100, 555 S.E.2d 294, 299 (2001) (reasoning that the Court in Morocco implied in its analysis that the seizure of a traffic stop ceases once the license and registration are returned). Defendant contends that by asking for her consent to search her car, Officer Kelly further detained defendant. However, "a person has been `seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980).
In the instant case, the only evidence offered at trial to suggest that defendant was further detained or seized by Officer Kelly was that another police officer may have been present and that Officer Kelly asked for consent to search her car. However, these two factors alone do not create an atmosphere where a reasonable person would not have believed she was free to leave. Officer Kelly questioned defendant briefly and returned her license and registration. Officer Kelly did not threaten defendant nor show any force. In view of all the circumstances, we conclude defendant had not been seized within the meaning of the Fourth Amendment.
Defendant alternatively argues that her consent was coerced. We disagree. "In determining whether a consent to search is `voluntary' or a product of duress or coercion, express or implied, the trial court looks to the totality of the circumstances." State v. McDowell, 329 N.C. 363, 376, 407 S.E.2d 200, 207 (1991). This Court has held that consent searches are valid where the consent is given voluntarily and a reasonable person would have understood that she had the right to withhold consent. Kincaid, 147 N.C. App. at 100, 555 S.E.2d at 299. The Supreme Court of the United States has held that the Fourth Amendment does not require that a suspect be told she is free to go in order for her consent to a car search to be considered voluntary. Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S. Ct. 417, 421 (1996).
In the instant case, defendant has not shown that her consent was coerced or otherwise involuntarily obtained. There is no evidence that defendant was so intimidated that she felt she could not reasonably leave. Nor is there any evidence defendant was restrained or threatened by Officer Kelly. Officer Kelly did not withhold defendant's license and registration, nor did he ask her to exit her vehicle. None of defendant's personal property was withheld and the entire stop lasted approximately ten minutes. Defendant relies on the possibility that another officer was present as her only grounds that here consent was coerced. However, defendant offers no case law that suggests that the presence of another officer is sufficient to show that a reasonable person would not feel as though she was free to go. The trial court did not err in denying defendant's motion to suppress evidence of cocaine found. This assignment of error is overruled.
Affirmed.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).