Opinion
No. COA10-1011
Filed 15 March 2011 This case not for publication
Appeal by Defendant from judgment entered 5 May 2010 by Judge Kevin M. Bridges in Stanly County Superior Court. Heard in the Court of Appeals 14 March 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Robert C. Montgomery, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for Defendant.
Stanly County No. 08 CRS 53009.
On 15 November 2008, police received a tip from an unidentified caller that a burgundy Buick Regal was involved in a possible drug transaction in front of a Friendly Mart in Albemarle, North Carolina. Shortly thereafter, police observed a vehicle matching the caller's description. Police initiated a stop of the vehicle, which was being driven by Defendant Durrelle Raishon Davis. During the stop, police observed in plain view a small plastic bag of cocaine sitting on the floorboard of Defendant's car. Defendant was cited for possession with intent to sell or deliver a schedule II controlled substance. On 12 January 2009, Defendant was indicted on the same charge.
On 4 May 2010, Defendant filed a motion to suppress. In the unverified motion, Defendant claimed that police advised him that they had stopped his vehicle because "`there was a 911 call that a burgundy car in this area was involved in a drug transaction.'" Defendant claimed, however, that he "did not enter the [F]riendly Mart and did not conduct any drug transaction." Defendant argued that the search of his vehicle was thus illegal and sought suppression of the evidence seized as a result of the search. Attached to the motion, and incorporated by reference, was the Defendant's affidavit. The sworn affidavit stated: "That I have had read to me the entire contents of the foregoing Motion to Suppress, and that the same is true to my own knowledge and belief." The trial court summarily denied the motion on the ground that Defendant failed to comply with N.C. Gen. Stat. § 15A-977(c)(2) (2009), to wit, that Defendant's affidavit failed to contain any facts to support the motion to suppress. Thereafter, Defendant pled guilty, reserving his right to appeal the denial of his motion to suppress. This appeal followed.
Defendant's sole argument on appeal is that the trial court erred by summarily denying his motion to suppress. Defendant contends that his properly sworn affidavit, which incorporated by reference the facts alleged in the motion, and the motion, which likewise incorporated the affidavit by reference, created a "fully reciprocal relationship in which the facts alleged in the motion were to be taken as fully set forth in the affidavit, and the affidavit was to be understood to attest to the veracity of the facts alleged in the motion."
After careful review of the record, briefs and contentions of the parties and for the following reasons, we affirm the trial court's order summarily denying Defendant's motion to suppress. Pursuant to N.C. Gen. Stat. § 15A-977(a):
A motion to suppress evidence in superior court made before trial must be in writing and a copy of the motion must be served upon the State. The motion must state the grounds upon which it is made. The motion must be accompanied by an affidavit containing facts supporting the motion. The affidavit may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated.
N.C. Gen. Stat. § 15A-977(a) (2009) (emphasis added). Our Supreme Court has held that a defendant who seeks to suppress evidence must comply with N.C. Gen. Stat. § 15A-977. State v. Satterfield, 300 N.C. 621, 624, 268 S.E.2d 510, 513 (1980); see also State v. Pearson, 131 N.C. App. 315, 317, 507 S.E.2d 301, 302 (1998).
In State v. Phillips, 132 N.C. App. 765, 513 S.E.2d 568, disc. review denied and appeal dismissed, 350 N.C. 846, 539 S.E.2d 3 (1999), the defendant argued that his motion to suppress with supporting affidavit was sufficient to meet the requirements of N.C. Gen. Stat. § 15A-977(a), and, therefore, the trial court erred in summarily denying his motion. In Phillips, the supporting affidavit, which was attached to the motion and incorporated by reference, stated:
1) My name is Edward A. Fliorella, Jr. I am an attorney actively engaged in the practice of criminal law for the past ten years.
2) I have reviewed the discovery provided by the State with my client and, based upon those specific facts, and as alleged in this Motion to Suppress, it is the opinion of the undersigned that the relief requested should be granted.
3) That this affidavit is being filed pursuant to N.C.G.S. § [] 15A-977.
Id. at 769, 513 S.E.2d at 571. The defendant in Phillips argued, much as does Defendant here, that "when read together, the affidavit and motion to suppress are sufficient to meet the requirements of G.S. 15A-977(a)." Id. at 768, 513 S.E.2d at 571. This Court disagreed, concluding that the affidavit failed to meet the mandatory requirements of N.C. Gen. Stat. § 15A-977(a) because the affidavit failed to state "a single fact in support of the motion to suppress." Id. at 769, 513 S.E.2d at 571. This Court specifically noted that N.C. Gen. Stat. § 15A-977(a) "explicitly and clearly states that `[t]he motion must be accompanied by an affidavit containing facts supporting the motion.'" Id. Because the affidavit in Philips lacked any facts in support of the motion, this Court held that the trial court did not err by summarily denying the defendant's motion to suppress. Id.
We find Phillips to be controlling. Because Defendant's affidavit failed to state a single fact in support of his motion to suppress, we conclude it was insufficient to comply with the requirements of N.C. Gen. Stat. § 15A-977(a). Therefore, the trial court did not err by summarily denying Defendant's motion to suppress. Accordingly, we affirm the trial court's order.
Affirmed.
Judges ERVIN and BEASLEY concur.
Report per Rule 30(e).