Opinion
No. COA14–1069.
04-21-2015
STATE of North Carolina v. Larry Michael CHARLES.
Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant.
Attorney General Roy Cooper, by Assistant Attorney General John A. Payne, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for defendant-appellant.
DIETZ, Judge.
On the night of 11 June 2012, police were investigating a breaking and entering at a business when they observed Defendant Larry Michael Charles approach the area in his car, turn off his headlights, and coast 10 to 15 feet to a stop alongside a dense woodline at the back of the business. A law enforcement officer who witnessed Charles's actions thought Charles might be arriving to pick up the perpetrator of the crime. By the time officers neared the vehicle, Charles already had gotten out and begun walking in the opposite direction. The officers ordered Charles to stop. When they were approximately six feet from Charles, the officers noticed a strong odor of marijuana coming from him. They then searched him and discovered two small bags of cocaine in one of his socks.
In a pre-trial motion, Charles moved to suppress the evidence recovered during the search, arguing that the officers did not have reasonable articulable suspicion to order Charles to stop walking away. Charles contended that the smell of marijuana and the resulting search were tainted by the initial, illegal stop. The trial court denied this motion, and a jury later convicted Charles of cocaine possession. Charles appealed his conviction, challenging the trial court's denial of his motion to suppress.
For the reasons set forth below, we find no error. The officers had reasonable suspicion to stop Charles based on their belief that he might be involved in the reported breaking and entering of the nearby business. Accordingly, the trial court did not err in denying Charles's motion to suppress the evidence discovered as a result of that initial investigatory stop.
Facts and Procedural History
Around 9:30 p.m. on 11 June 2012, police officers responded to a call about a possible breaking and entering in progress at Mechanical Maintenance and Supply Company in Fayetteville. The caller reported seeing a person inside the lot of the fenced-in business, which is bordered on the back side by a densely wooded area lining a residential street.
When he arrived on the scene, Officer Jeffrey Martin inspected the area, finding that the fence surrounding the business had been cut open. He set out on foot to create a perimeter around the business. As Officer Martin approached the woodline to determine whether anyone was hiding there, he saw a car crest a small hill on the adjoining street. The driver, Defendant Larry Michael Charles, turned off his headlights and allowed the vehicle to coast approximately 10 to 15 feet to a stop. Charles parked on the right side of the road, directly alongside the woodline at the back of the business. Officer Martin testified that “my immediate reaction was that's kind of suspicious,” noting that he believed Charles parked his car “right there where the suspect could be” hiding and awaiting a getaway vehicle.
Charles and a passenger got out of the car and immediately turned and began walking toward a residence across the street. Based on his suspicion that the men could be involved in the breaking and entering, Officer Martin directed the men to stop, stating, “I need to speak to you for a minute.” When Officer Martin was approximately six feet from Charles, he smelled a strong odor of marijuana coming from Charles's body.
Charles and the passenger initially ignored Officer Martin and continued walking. Officers West and Brusich stepped in to assist Officer Martin, and Officer Brusich confirmed that he, too, could smell marijuana on Charles. Officer Brusich conducted a protective frisk of Charles for weapons before leaving to assist other officers in their continued investigation. Based on the noticeable odor of marijuana, Officer West then ordered Charles to remove his shoes and discovered two small bags of a white powder substance in Charles's right sock. Officer Martin conducted a field test and determined that the substance contained in the bags was cocaine.
The State charged Charles with possession of cocaine and attaining habitual felon status. Charles filed a pre-trial motion to suppress evidence of the cocaine, arguing that the police officers lacked reasonable suspicion to conduct the initial investigatory stop. After hearing arguments on 11 February 2014, the trial court denied Charles's motion, announcing its findings of fact and conclusions of law from the bench. The court later memorialized its findings and conclusions in a written order on 27 February 2014.
The case proceeded to trial on 17 February 2014, and the jury found Charles guilty of the possession offense. Charles stipulated to attaining habitual felon status, and the trial court sentenced Charles to a term of 35 to 54 months imprisonment.
Before sentencing, Charles's counsel stated on the record that Charles reserved his right to appeal the trial court's ruling at the suppression hearing. However, Charles failed to file a notice of appeal from the judgment entered upon his conviction on 18 February 2014. On 9 October 2014, Charles filed a petition for writ of certiorari with this Court requesting that his right to appeal the judgment be restored based on his counsel's failure to timely perfect his appeal as of right.
Analysis
I. Appellate Jurisdiction
Charles, through counsel, stated before sentencing that he intended to appeal the ruling on his motion to suppress. However, he did not appeal from his conviction and sentence. This Court does not have jurisdiction to review an order denying a motion to suppress where the defendant did not timely appeal the final judgment of conviction. State v. Miller, 205 N.C.App. 724, 725–26, 696 S.E.2d 542, 542–43 (2010).
Charles acknowledges his failure to timely appeal and asks this Court to review the merits of his appeal by allowing his petition for writ of certiorari. In light of Charles's indication (albeit premature) that he intended to appeal the suppression ruling, we exercise our discretion to allow his petition for a writ of certiorari. SeeN.C. R.App. P. 21(a)(1) ; State v. McCoy, 171 N.C.App. 636, 638, 615 S.E.2d 319, 320 (2005) (“While this Court cannot hear defendant's direct appeal [for failure to properly give notice of appeal], it does have the discretion to consider the matter by granting a petition for writ of certiorari.”).
II. Denial of Motion to Suppress
Charles challenges the trial court's denial of his motion to suppress. Our review of an order denying a motion to suppress is limited to determining whether competent evidence supports the court's findings of fact and whether those findings of fact support the trial court's conclusions of law. State v. Pulliam, 139 N.C.App. 437, 439–40, 533 S.E.2d 280, 282 (2000). “[T]he trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.” State v. Martinez, 158 N.C.App. 105, 107, 580 S.E.2d 54, 56 (2003) (internal quotation marks omitted). “Conclusions of law that are correct in light of the findings are also binding on appeal.” Id .(internal quotation marks omitted). “This deference is afforded the trial judge because he is in the best position to weigh the evidence, given that he has heard all of the testimony and observed the demeanor of the witnesses.” Id.(internal quotation marks omitted).
Under the Fourth Amendment and its corresponding provision in the North Carolina Constitution, “[a]n investigatory stop must be justified by a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.” Martinez, 158 N.C.App. at 107, 580 S.E.2d at 56 (internal quotation marks omitted). “Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than a preponderance of the evidence.” State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645 (2008) (internal quotation marks omitted). “[T]he police officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant [the] intrusion.” State v. Foreman, 351 N.C. 627, 630, 527 S.E.2d 921, 923 (2000) (internal quotation marks omitted). In determining whether an officer had reasonable suspicion to make an investigatory stop, a trial court must consider the totality of the circumstances. State v. Campbell, 188 N.C.App. 701, 705, 656 S.E.2d 721, 725 (2008).
Here, Charles contends that the officers did not have reasonable and articulable suspicion to justify an investigatory stop of his person. He claims that “Officer Martin seized Mr. Charles without reasonable articulable suspicion that he was involved with any crime that might have been committed at Mechanical Maintenance and Supply Company. Officer Martin detected the odor of marijuana only afterthe illegal detention occurred.” In other words, Charles argues that the results of the officers' search must be suppressed because the officers did not have reasonable suspicion sufficient to justify their initial instruction to Charles to stop walking and wait as officers approached him.
Charles does not dispute that the odor of marijuana detected by the officers after approaching Charles justified the search of his person.
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After careful review of the record, we reject Charles's argument. First, the trial court's findings of fact are supported by competent evidence. At the suppression hearing, Officer Martin testified that he was responding to a call that an individual was spotted late in the evening inside the fence line of Mechanical Maintenance. When he arrived on the scene, Officer Martin noticed that the fence surrounding the property had been cut open. Seeing no one nearby, he suspected that someone could be hiding inside the woodline at the back of the business. As Officer Martin established a perimeter around the business and approached the woodline on foot, he observed Charles drive up in his car, turn off his headlights, and coast in excess of 10 to 15 feet to a stop. Officer Martin testified that he suspected Charles and the passenger in the vehicle might be there to meet or pick up the suspect of the reported breaking and entering. Officer Martin testified that “I had just asked them to stop so I could speak to them because of the ... close proximity of where they stopped, you know, to where the possible suspect was at.”
This testimony is competent evidence supporting the trial court's findings of fact that Officer Martin asked Charles to stop “based on his suspicion that the car or the occupants might be involved in the breaking or entering.” See Martinez, 158 N.C.App. at 107, 580 S.E.2d at 56. Those findings, in turn, support the trial court's conclusion that the officers had reasonable suspicion to conduct an investigatory stop. Id.
Indeed, the facts here are nearly identical to those in Martinez,where this Court rejected a remarkably similar argument. In Martinez,an officer encountered a pedestrian in a wooded area late at night. Id.at 108, 580 S.E.2d at 56–57. The pedestrian fled as the officer approached. Id.at 108, 580 S.E.2d at 57. While following up on this suspicious activity, the officer observed a vehicle pull up near the woodline approximately 50 yards from where the pedestrian had been. Id.The officer believed that the vehicle could be connected to the pedestrian and therefore initiated a stop, which ultimately led to a search and the arrest of the driver for possession of illegal drugs. Id.On appeal, this Court held that the officer had reasonable and articulable suspicion to stop the driver based on the belief that the driver might be connected to the fleeing suspect. Id.at 109, 580 S.E.2d at 57. Under Martinez,the trial court properly concluded that Officer Martin had reasonable suspicion to conduct an investigatory stop.
Charles also argues that the trial court improperly analyzed this issue as a “traffic stop” when in fact the officer conducted an investigatory stop, not a traffic stop. We likewise reject this argument. Although the trial court noted that Officer Martin observed Charles commit a traffic offense (driving in the dark with his headlights off), the trial court's conclusion that there was reasonable suspicion to stop Charles does not turn on the commission of the traffic offense. Rather, the trial court concluded that the act of driving without headlights was part of the totality of the circumstances justifying a stop on the ground that Charles might have been involved in a nearby breaking and entering. And, in any event, officers lawfully could have stopped Charles based solely on his operation of a motor vehicle in the hours of darkness without the use of headlights, which is prohibited by N.C. Gen.Stat. § 20129. See State v. Watkins, 337 N.C. 437, 443, 446 S.E.2d 67, 70–71 (1994). Thus, we find Charles's argument without merit.
Conclusion
The trial court did not err in denying Charles's motion to suppress. Accordingly, we find no error.
NO ERROR.
Judges CALABRIA and McCULLOUGH concur.
Report per Rule 30(e).
Opinion
Cumberland County, No. 12 CRS 057537.
Appeal by defendant from order entered 27 February 2014 by Judge James F. Ammons, Jr. in Cumberland County Superior Court. Heard in the Court of Appeals 17 February 2015.