Opinion
No. COA10-617
Filed 4 January 2011 This case not for publication
Appeal by defendant from judgment entered 19 January 2010 by Judge Stuart Albright in Randolph County Superior Court. Heard in the Court of Appeals 20 December 2010.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Thomas J. Pitman, for the State. Kevin P. Bradley, for defendant-appellant.
Randolph County No. 08 CRS 53350.
Gregory Lionel King ("defendant") appeals from the trial court's judgment entered after he pleaded guilty to possession of cocaine and trafficking in cocaine by transportation. Defendant contends that the trial court erroneously denied his motion to suppress evidence seized after a search of his car and that the judgment contains a clerical error because it records a conviction for trafficking by possession rather than trafficking by transportation. We find no prejudicial error, but we remand the matter for entry of a new judgment to correct the clerical error.
On the afternoon of 29 May 2008, Archdale Police Officer Travis Reams ("Officer Reams") was patrolling on Interstate 85. Officer Reams saw a silver car make an erratic lane change and noticed the driver leaning very far back in his seat, but the driver sat upright and covered his face with his left hand as he passed Officer Reams. Officer Reams followed the car while it was traveling approximately seventy miles per hour and within two car lengths of the car directly in front of it, and Officer Reams stopped the silver car for following too closely.
When the driver pulled over, Officer Reams determined that defendant was the driver and that no one else was in the car. Officer Reams asked defendant for his driver's license and registration, and he observed that the car was a rental. While defendant was retrieving his license, Officer Reams noticed what appeared to him, based upon his training and experience, to be marijuana particles on the floorboard and the passenger seat. Defendant told Officer Reams that he was driving from Oxford to Charlotte for a job interview with a trucking company. Officer Reams thought that it was odd for defendant to drive that far for an interview, particularly when defendant later told him he could not remember the name of the company. Officer Reams then explained to defendant that he had stopped him for following too closely and walked back to his patrol car to issue a warning citation. While he was in his patrol car, Officer Reams called another law enforcement officer to assist with the stop.
After Officer Reams issued defendant the warning citation, he asked defendant to step out of his car so that he could explain the citation to him. Standing at the rear of defendant's car, Officer Reams explained to defendant that, because he had issued a warning, defendant would not have to pay a fine or appear in court. Officer Reams returned defendant's license and asked defendant if there were any items in the car "that [he] needed to be made aware of." Defendant asked, "Like what?" Officer Reams then asked defendant if there was marijuana, cocaine, or a large sum of money in the car, and defendant said there was not. When Officer Reams asked about cocaine, defendant looked down and at the rear of the car. Officer Reams asked for permission to search the car, and defendant asked why. Officer Reams explained that he was part of an interstate task force and again asked if defendant would object to a search of the car. Defendant appeared to be nervous, but said, "No, I don't care."
Officer Reams searched the passenger area of the car first and found marijuana particles, or "shake", on the passenger seat and in the center console area. Defendant denied that he had been smoking marijuana in the car. Officer Reams went on to search the car's trunk area, where he found a black duffel bag and a computer briefcase. Inside the duffel bag, Officer Reams found a large package with clear plastic wrap on it. Defendant claimed he did not know how the package got in the bag. Officer Reams then handcuffed defendant and put the package back into the car until he could determine what was in the package.
When a canine unit arrived on the scene and conducted a sweep, the dog alerted at the rear of the car. Officer Reams cut open the package and found that it contained a white, powdery substance. Field testing indicated that the white powder was cocaine. Officers arrested defendant, took him back to the police station, and administered his Miranda warnings. Defendant then told Officer Reams that the black duffel bag belonged to him.
The Randolph County grand jury returned indictments against defendant on 8 September 2008 for trafficking in cocaine by transportation and possession of cocaine. On 20 July 2009, defendant filed a written motion to suppress evidence seized on 29 May 2008. In his motion to suppress, defendant contended that Officer Reams "purposely delayed issuing the citation to conduct further investigation that was not justified by any reasonable suspicion," and that defendant's consent to the search was rendered invalid.
The matter came on for hearing on 28 August 2009. After hearing the testimony of two police officers, including Officer Reams, the trial court denied defendant's motion to suppress in a written order entered on 23 September 2009. The trial court made numerous findings of fact and concluded that Officer Reams had a valid reason for initiating the traffic stop, that Officer Reams had reasonable and articulable suspicion for continuing to detain defendant after issuing the warning citation, and that defendant's consent to the search was valid.
Following the denial of his motion to suppress, defendant agreed to plead guilty to possession of cocaine and trafficking in cocaine by transportation. In exchange for defendant's plea, the State agreed to consolidate the two convictions into one judgment of thirty-five to forty-two months imprisonment. The trial court entered a judgment consistent with the terms of defendant's plea agreement, although the judgment indicates that it is for "Trafficking in Cocaine by Possession" and possession of cocaine. Defendant specifically reserved his right to appeal the denial of his motion to suppress as a condition of his guilty plea, and entered notice of appeal from the trial court's judgment in open court.
We first address defendant's argument that the trial court erred by denying his motion to suppress because Officer Reams lacked a reasonable, articulable suspicion to justify continuing his encounter with defendant after he issued the warning citation. We hold this argument to be without merit.
In reviewing a trial court's order denying a motion to suppress, the trial court's findings of fact "`are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.'" State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (quoting State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994), cert. denied, 513 U.S. 1096, 130 L. Ed. 2d 661 (1995)), cert. denied, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001)). After reviewing the findings of fact, we must determine whether the findings support the trial court's conclusions of law. See State v. Hyde, 352 N.C. 37, 45, 530 S.E.2d 281, 288 (2000), cert. denied, 531 U.S. 1114, 148 L. Ed. 2d 775 (2001). "[T]he trial court's conclusions of law are reviewed de novo and must be legally correct." State v. Pickard, 178 N.C. App. 330, 334, 631 S.E.2d 203, 206 (citing State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)), disc. rev. denied and appeal dismissed, 361 N.C. 177, 640 S.E.2d 59 (2006)).
The trial court's unchallenged findings of fact and conclusions of law are binding on this Court on appeal. State v. McLeod, ___ N.C. App. ___, ___, 682 S.E.2d 396, 398 (2009) (citing N.C. R. App. P. 10; Dodson v. Dodson, 185 N.C. App. 265, 267, 647 S.E.2d 638, 640-41 (2007); State v. Phillips, 151 N.C. App. 185, 190, 565 S.E.2d 697, 701 (2002)).
During a valid traffic stop, an officer may search areas of the detained vehicle or items contained in the vehicle with the owner's consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L. Ed. 2d 854, 858 (1973); State v. Pearson, 348 N.C. 272, 277, 498 S.E.2d 599, 601 (1998). The validity of the initial stop is not in dispute in the case sub judice. Rather, defendant contends that, after issuing the citation, the stop became unreasonable and invalidated defendant's purported consent to the search.
"In order to further detain a person after lawfully stopping him, an officer must have reasonable suspicion, based on specific and articulable facts, that criminal activity is afoot." State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999). Without reasonable, articulable suspicion of additional criminal activity, the officer's request for consent exceeds the scope of the traffic stop and the prolonged detention violates the Fourth Amendment. Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238 (1983).
Here, defendant concedes in his brief that Officer Reams "stopped [defendant] validly for following too closely," but contends that Officer Reams lacked any reason to suspect that defendant had engaged in any other criminal activity in order to continue their encounter and obtain defendant's consent to search his car.
To the contrary, the trial court found that:
18. While Reams waited on the Defendant to produce his [driver's] license, the officer observed a substance consisting of small particles scattered about the floorboard and the console area of the front seat. The Officer's training and experience led him to identify these particles as small bits of marijuana known as marijuana "shakes". Marijuana shakes result from the action of placing the marijuana in a paper or container to smoke.
19. The Defendant advised Reams that he was traveling from Oxford to Charlotte to apply for a job with a trucking company, but could not remember the name of the trucking company.
. . . .
22. The Defendant was not free to leave after the issuance of the warning citation as the officer determined that he would conduct further investigation into the substance in the floorboard of the car that appeared to be marijuana to the officer.
23. Reams asked the Defendant if he had any marijuana or money or cocaine in the car. The Defendant looked at the Officer and answered no as to marijuana and money. The Defendant would not look at the officer when he answered no as to cocaine.
These findings are supported by the evidence presented at the suppression hearing, and we hold that the findings demonstrate that Officer Reams had reasonable, articulable suspicion that additional criminal activity was afoot. Officer Reams observed what he identified as marijuana particles on the floorboard and passenger area of defendant's car when he initially stopped the car. During the course of the stop, defendant appeared nervous and was reluctant to make eye contact with Officer Reams when he asked whether defendant had cocaine in the car. Defendant's explanation for his travel, that he was attending a job interview with a trucking company, was suspicious in light of the fact that he could not remember the name of the company. See McClendon, 350 N.C. at 637, 517 S.E.2d at 133 (the defendant's evasiveness and nervousness supported a finding of reasonable suspicion). Only after making all of these observations did Officer Reams ask for, and obtain, defendant's consent to a search of his car. Accordingly, we hold that the trial court's findings of fact support its conclusion that Officer Reams had reasonable, articulable suspicion of criminal activity and that he could detain defendant beyond the scope of the initial traffic stop. Therefore, the trial court properly denied defendant's motion to suppress.
In defendant's remaining argument, he contends that the judgment entered for "trafficking in cocaine by possession" is inconsistent with the indictment for trafficking in cocaine by transportation and his agreement to plead guilty to that offense. The State concedes that there appears to be a clerical error, and we agree.
"Any person who sells, manufactures, delivers, transports, or possesses 28 grams or more of cocaine . . . shall be guilty of a felony, which felony shall be known as `trafficking in cocaine'[.]" N.C. Gen. Stat. § 90-95(h)(3)(2009). "Sale, manufacture, delivery, transportation, and possession . . . are separate trafficking offenses for which a defendant may be separately convicted and punished." State v. Diaz, 317 N.C. 545, 554, 346 S.E.2d 488, 494 (1986), abrogated in part on other grounds by State v. Hartness, 326 N.C. 561, 564-65, 391 S.E.2d 177, 179 (1990) (discussing ambiguous jury instructions, but recognizing that, with respect to the "sale, manufacturing, delivery, transportation, and possession [of controlled substances][,] [e]ach is a discrete criminal offense.").
"`Clerical error' has been defined . . . as `[a]n error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination'". State v. Jarman, 140 N.C. App. 198, 202, 535 S.E.2d 875, 878 (2000) (quoting Black's Law Dictionary 563 (7th ed. 1999)). "`[A] court of record has the inherent power to make its records speak the truth and, to that end, to amend its records to correct clerical mistakes or supply defects or omissions therein.'" State v. Taylor, 156 N.C. App. 172, 176, 576 S.E.2d 114, 117 (2003) (quoting Jarman, 140 N.C. App. at 202, 535 S.E.2d at 878). "When, on appeal, a clerical error is discovered in the trial court's judgment or order, it is appropriate to remand the case to the trial court for correction because of the importance that the record `speak the truth.'" State v. Smith, 188 N.C. App. 842, 845, 656 S.E.2d 695, 696 (2008) (citations omitted).
Here, the written judgment lists the offense as "Trafficking in Cocaine by Possession," but the indictment and plea agreement specify the offense of trafficking by transportation, a different offense. Because this inconsistency apparently resulted from a mistake in recording the judgment, rather than a substantive error, we deem it to be a clerical error. Accordingly, we hold no prejudicial error, but we remand the matter for correction of the clerical error in the judgment.
No Prejudicial Error; Remanded for Correction of the Clerical Error.
Chief Judge MARTIN and Judge ELMORE concur.
Reported per Rule 30(e).
Judge JACKSON concurred prior to December 31, 2010.