Opinion
No. COA12–848.
2013-02-5
STATE of North Carolina v. William BROWN.
Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Sue Genrich Berry, for defendant-appellant.
Appeal by defendant from judgment entered 27 February 2012 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 December 2012. Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Sue Genrich Berry, for defendant-appellant.
STEELMAN, Judge.
Defendant failed to preserve for appellate review the denial of his motion to suppress. Even assuming arguendo that this issue was properly preserved, the trial court properly denied the motion. The trial court erred in assigning a prior record level point for a prior offense having all of the elements of the present offense. Since this changes defendant's prior record level, this matter is remanded to the trial court for resentencing.
I. Factual and Procedural Background
Defendant was indicted for felony possession with intent to sell or deliver heroin, the felony of maintaining a place to keep controlled substances, and the misdemeanor of possession of drug paraphernalia.
On 23 January 2012, defendant filed a motion to suppress evidence obtained during a search of defendant's person on 6 April 2011. On the same date, defendant filed a second motion to suppress evidence seized from defendant as “fruit of the unconstitutional seizure[.]” Defendant asserted that the warrantless placement of a GPS device on a vehicle operated by defendant was an unconstitutional seizure. On 8 February 2012, the trial court entered an order denying defendant's motions to suppress.
On 27 February 2012, a jury found defendant guilty of possession with intent to sell or deliver heroin, the misdemeanor of knowingly maintaining a vehicle for the unlawful keeping of controlled substances, and possession of drug paraphernalia. The trial court found defendant to be a prior record level IV for felony sentencing, consolidated the three charges into one judgment, and sentenced defendant to an active term of imprisonment of 11–14 months.
Defendant appeals.
II. Motion to Suppress
In his first argument, defendant contends that the trial court erred in denying defendant's motion to suppress. We disagree.
A. Preservation of Issue for Appellate Review
“[A] pretrial motion to suppress evidence is not sufficient to preserve for appellate review the issue of whether the evidence was properly admitted if the defendant fails to object at the time the evidence is introduced at trial.” State v. Harwood, ––– N.C.App. ––––, ––––, 727 S.E.2d 891, 896 (2012) (alteration in original). See also State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198–99 (2000).
Defendant failed to object to evidence of defendant's heroin possession at the time that the State introduced the evidence at trial. On appeal, defendant failed to argue that the trial court committed plain error. We therefore dismiss this argument. Even assuming arguendo that defendant preserved this issue for appellate review, it is without merit.
B. Standard of Review
“The standard of review of a trial court's suppression order is 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.” State v. Hagin, 203 N.C.App. 561, 563, 691 S.E.2d 429, 431 (2010) (internal quotation marks omitted).
“Great deference is accorded the trial judge because the trial court is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision.” Id. (internal quotation marks omitted). “The trial court's findings are conclusive if supported by any competent evidence even if there is evidence to the contrary that would support different findings.” Id. (internal quotation marks omitted). “If the trial court's findings of fact are supported by competent evidence, this Court then determines whether those factual findings support the trial court's ultimate conclusions of law.” Id.
C. Trial Court's Findings of Fact
In its order denying defendant's motion to suppress, the trial court made the following findings of fact that are relevant to our analysis:
10. On April 6, 2011, CMPD Detective Sidney Lackey located Defendant by use of the GPS device at a McDonald's restaurant in Mecklenburg County.
....
12. Lackey, in plain clothes, watched Defendant and several others at the McDonald's for approximately three hours from an unmarked vehicle. He watched Defendant twice leave McDonald's, walk to a car that had just driven into McDonald's parking lot, get in, and a short while later get out and return inside McDonald's.
13. Defendant left McDonald's and drove the Ford Tempo to a Petro Express gas station. Detective Lackey followed him in the unmarked vehicle with the aid of the GPS device.
14. At the Petro Express, Lackey watched as the passenger in the Ford Tempo got out of the car and walked up to a car that was in the gas-station parking lot.
15. Based upon his training and experience, Lackey believed that Defendant was engaging in the selling and delivery of controlled illegal substances. Lackey called for the assistance of CMPD Vice and Narcotics Detective L. Donahue. Donahue was on duty on April 6, 2011, in uniform and driving a marked CMPD patrol car.
16. Detective Lackey told Donahue he had been conducting surveillance on the defendant. He told Donahue that Defendant was driving a Ford Tempo and was presently at the Petro Express. Lackey further told Donahue that he wanted him to conduct a traffic stop on Defendant based on the suspected drug sales, and that he believed he would find contraband on Defendant or in his car.
17. Based upon his conversation with Detective Lackey, Donahue had the intent to stop the Ford Tempo and search Defendant.
18. Donahue parked his patrol car at an Exxon gas station located several blocks away from the Petro Express and to conduct the traffic stop.
19. Defendant left the Petro Express in the Ford Tempo and drove directly to the Exxon where Donahue was parked.
20. CMPD Detective Donahue watched as Defendant drove the Tempo in front of his parked, marked patrol car and stopped at the fuel pumps.
....
22. Donahue, although in uniform, did not have his gun drawn. He walked up to Defendant and told him that there had been several armed robberies in the area and that he wanted to talk with him about the fact that he had pulled into the Petro Express and left without buying gas. He spoke in a conversational tone.
....
24. Defendant engaged in conversation with Detective Donahue, who asked Defendant whether he had any weapons or contraband. Defendant denied possession of either.
25. When asked by Detective Donahue if he would consent to a search, Defendant turned his back to Donahue and stretched his arms out to the side, giving him non-verbal consent to search.
26. When searching Defendant, Donahue felt what he believed to be a plastic baggie containing a bulge in Defendant's shirt pocket. Based upon his 13 years of training and experience as a law-enforcement officer, Donahue believed the plastic baggie contained narcotics.
27. Further examination revealed it carried 16 dosage units of heroin.
Defendant does not challenge these findings of fact on appeal, but rather argues that they mandate that the contraband seized from him be suppressed. These findings are binding upon this court. State v. McLeod, 197 N.C.App. 707, 711, 682 S.E.2d 396, 398 (2009).
D. Analysis
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. amend IV.
“Cases construing the scope of the exclusionary rule required by federal constitutional principles ... indicate that, at a bare minimum, there must be a ‘cause in fact’ or ‘but-for’ relationship between the unconstitutional conduct and the evidence sought to be suppressed.” State v. Richardson, 295 N.C. 309, 322, 245 S.E.2d 754, 763 (1978).
We first determine whether the State's conduct in attaching a GPS device to the vehicle was unconstitutional. The United States Supreme Court held that “the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a ‘search.’ “ U.S. v. Jones, ––– U.S. ––––, ––––, 181 L.Ed.2d 911, 918 (2012) (footnote omitted). Accordingly, in the instant case, the trial court concluded that the “Government's installation of a GPS device on the Ford Tempo, without a search warrant, and its use of that device to monitor the vehicle's movements for the purpose of obtaining information, constitutes a warrantless ‘search’ within the meaning of the Fourth Amendment.”
Defendant argues that the trial court erred in making conclusions of law 4 and 5. Conclusion of law 4 states that “there is sufficient attenuation between the placement of the GPS tracking device and the discovery of the heroin in Defendant's shirt pocket such that suppression of that evidence is not warranted.” Conclusion of law 5 states that the “purge was complete when Defendant freely and voluntarily consented to the ‘pat down’ search of his person.”
“Evidence that is discovered as a direct result of an illegal search or seizure is generally excluded at trial as fruit of the poisonous tree unless it would have been discovered regardless of the unconstitutional search.” State v. Jackson, 199 N.C.App. 236, 244, 681 S.E.2d 492, 497 (2009). “This Court must ascertain whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. (internal quotation marks omitted).
The rule “is that if a person is illegally arrested, any inculpatory statement he makes while under arrest must be suppressed unless the State can show the causal chain was broken by some independent circumstance which will show the statement was not caused by the arrest.” State v. Allen, 332 N.C. 123, 128, 418 S.E.2d 225, 228 (1992). This rule has been applied, beyond inculpatory statements, to physical evidence. Jackson, supra; Harwood, ––– N.C.App. at ––––, 727 S.E.2d at 900–01.
The question in the instant case is whether defendant's consent is a means of obtaining evidence that is “sufficiently distinguishable to be purged of the primary taint[,]” Jackson, 199 N.C.App. at 244, 681 S.E.2d at 497, or an “independent circumstance” which will show the evidence was not obtained by the GPS device. Allen, 332 N.C. at 128, 418 S.E.2d at 228.
Consent “has long been recognized as a special situation excepted from the warrant requirement, and a search is not unreasonable within the meaning of the Fourth Amendment when lawful consent to the search is given.” State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). In Smith, the fact that the officer “had previously obtained information concerning the location of drugs in the home and had previously spoken with one of the residents concerning her consent to search does not invalidate a lawful consent to search.” Smith, 346 N.C. at 799, 488 S.E.2d at 213.
In Harwood, this Court concluded that defendant's inculpatory statement and consent to a search of his residence “directly resulted from the investigating officers' decision to detain him.” Harwood, ––– N.C.App. at ––––, 727 S.E.2d at 900–01. In Jackson, this Court concluded that defendant's “eventual consent to search the vehicle was tainted by the illegality of the extended detention[.]” Jackson, 199 N.C.App. at 243, 681 S.E.2d at 497.
The instant case is easily distinguishable from Jackson and Harwood because the case involves no vehicle stop and no challenge to the length of the detention. Defendant does not challenge the trial court's findings regarding the voluntariness of defendant's consent. The trial court found that “Detective Donahue did not threaten or coerce Defendant into consenting to the search, nor did he make him any promises.” The trial court concluded that defendant's “non-verbal consent allowing Detective Donahue to search his person was given freely, voluntarily and knowingly and without coercion, threats or promises.”
Discovery of the contraband directly resulted from defendant's consent to a search of his person. The fact that the officers previously obtained information concerning the location of the vehicle by use of a GPS device did not invalidate defendant's lawful consent to a search of his person. We hold that defendant's consent was a means of obtaining evidence that is “sufficiently distinguishable to be purged of the primary taint[,]” Jackson, 199 N.C.App. at 244, 681 S.E.2d at 497, or an “independent circumstance” which will show the evidence was not obtained by the GPS device. Allen, 332 N.C. at 128, 418 S.E.2d at 228. The trial court did not err in denying defendant's motion to suppress.
This argument is without merit.
III. Prior Record Level Calculation
In his second argument, defendant contends that the trial court erred in sentencing defendant as a prior felony record level IV. We agree.
A. Standard of Review
The “trial court's assignment of a prior record level is a conclusion of law, which we review de novo.” State v. Mack, 188 N.C.App. 365, 380, 656 S.E.2d 1, 12 (2008).
B. Analysis
The trial court found that defendant had four prior felony convictions for eight felony sentencing points. It then found that defendant was on probation at the time that this offense was committed for one additional point. Finally, the court found that all of the elements of the present offense were included in a prior offense for one additional point, for a total of 10 felony sentencing points. This made defendant a prior record level IV.
On appeal, defendant argues that the elements of the present offense (possession with intent to sell and deliver heroin) were not included in his prior federal offense of conspiracy to possess with intent to sell or deliver heroin. The elements of the present offense are (1) possession (2) of a controlled substance (3) with intent to sell or deliver the controlled substance. State v. Casey, 59 N.C.App. 99, 116, 296 S.E.2d 473, 483–84 (1982). Defendant's prior offense was conspiracy pursuant to 21 U.S.C. § 846, conspiracy to possess with intent to sell or deliver heroin. “The essential elements of a § 846 conspiracy are (1) an agreement between two or more persons to violate federal law relating to controlled substances; (2) knowledge of the essential objectives of the conspiracy; (3) knowing and voluntary involvement therein; and (4) interdependence among the conspirators.” U.S. v. Hall, 551 F.3d 257, 268 n.13 (4th Cir.2009).
The federal offense does not require possession of the controlled substance. The elements of possession with intent to sell and deliver heroin are not included in defendant's prior federal offense. The trial court erred in assessing a prior record level point on this basis.
Since this reduces the number of prior record level points to 9, defendant is a prior record level III, rather than a level IV. This matter is remanded to the trial court for resentencing.
IV. Sentencing
Since we have remanded this matter to the trial court for resentencing, we do not address the defendant's argument that the trial court erred in imposing a sentence at the top of the presumptive range.
DISMISSED IN PART, REMANDED FOR RESENTENCING. Judges STEPHENS and McCULLOUGH concur.
Report per Rule 30(e).