Opinion
No. COA18-911
05-21-2019
STATE OF NORTH CAROLINA v. DAMIEN TATRON MCGILL
Attorney General Joshua H. Stein, by Special Deputy Attorney General Phillip T. Reynolds, for the State. Stephen G. Driggers, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. New Hanover County, No. 16 CRS 51275, 17CRS5473 Appeal by defendant from order and judgment entered on or about 17 April 2018 by Judge Joshua W. Willey, Jr. in Superior Court, New Hanover County. Heard in the Court of Appeals 27 March 2019. Attorney General Joshua H. Stein, by Special Deputy Attorney General Phillip T. Reynolds, for the State. Stephen G. Driggers, for defendant-appellant. STROUD, Judge.
Defendant appeals an order denying his motion to suppress and the judgment entered upon his guilty plea to two drug-related charges. For the following reasons, we affirm the order and conclude there was no error with the judgment.
I. Background
On 8 January 2016 at approximately 9:00 a.m. in the morning, Officer Mack Ake of the Wilmington Police Department observed a vehicle with what appeared to be illegally tinted windows. Officer Ake followed the vehicle and intended to stop it, but upon checking the license tag number he identified the owner of the vehicle as defendant and determined that defendant's driver's license was suspended. Officer Ake was also aware that defendant "was a high-ranking gang member" who had previously carried a firearm and had made threats against law enforcement. Officer Ake checked to see if he could get backup law enforcement for a stop, but none was available. Officer Ake watched defendant park and get out of his vehicle but decided not to approach defendant without backup and instead obtained a warrant for defendant's arrest because he was driving while his license was revoked.
The next day, on 9 January 2016, a warrant for defendant's arrests was issued. Upon arresting defendant and conducting a search incident to arrest, a law enforcement officer found "prepackaged, ready-for sale bundles of heroin" in his left coat pocket. Defendant was indicted for possession with intent to manufacture, sell and deliver heroin and possession with intent to sell or deliver heroine "within 1000 feet of the boundary of real property of a public park[.]"
The "bundles" were also referred to as "bindles" and "bags."
Defendant moved to suppress the evidence against him, and in April of 2018, the trial court denied defendant's motion to suppress. Defendant pled guilty to the two charges against him reserving the right to appeal the denial of his motion to suppress, and the trial court entered judgment upon the guilty plea. Defendant appeals.
II. Motion to Suppress
Defendant argues that the trial court erred in denying his motion to suppress because the arrest warrant was not based upon probable cause. Defendant contends the evidence presented to the magistrate to obtain the arrest warrant did not rise to the level of probable cause because Officer Ake did not see him get out of his vehicle and thus did not know who was driving his vehicle.
When a motion to suppress is denied, this Court employs a two-part standard of review on appeal: The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law.State v. Jackson, 368 N.C. 75, 78, 772 S.E.2d 847, 849 (2015) (citation and quotation marks omitted).
Defendant challenges finding of fact 8 where the trial court found, "It was about 9[:]30am and it was light outdoors[.] Officer Ake observed the defendant get out of the driver's side of the vehicle[.] The officer was familiar with the defendant's appearance and was 98-100% sure the driver was McGill[.]" Defendant bases his argument upon a hypertechnical analysis of Officer Ake's testimony. Defendant contends Officer Ake testified he saw defendant "walking away from the driver's side" of the vehicle and this is not the same as testifying he saw defendant "get out of the [vehicle] on the driver's side." (Emphasis added.) But when we consider Officer Ake's testimony in context, it supports the trial court's finding that he "observed defendant get out of the driver's side of the vehicle." After testifying about his initial observation of defendant's vehicle and following the car while attempting to get backup officers to assist, Officer Are testified as follows:
Q. As you sat in the parking lot off of 17th Street, what, if anything, did you see?
A. I observed Mr. McGill walking away from the driver's side of the Mustang.
Q. Did you see anybody else get out of the car?
A. No.
Q. Did you engage Mr. McGill at that point?
A. No.
Q. Other than the incident in November where you had been on scene at a prior arrest, did you have any other encounters with Mr. McGill?
A. To the best of my knowledge, no.
Q. In terms of - tell me how long all of this took.
A. From the time where I observed the car at Castle Street and Wrightsville to the time of him pulling into the parking lot, two to three minutes.
Q. And how sure are you that it was Mr. McGill that got out of that car?The trial court's finding of fact is supported by the evidence. Further, even if we generously assume that finding of fact 8 stating that Officer Ake saw defendant "get out of" the vehicle is in error, the other findings of fact regarding the running of defendant's license plate, discovering defendant's revoked license, past familiarity with defendant, observations of defendant's vehicle leading up to when it parked, and seeing defendant immediately thereafter at the driver's side of the vehicle would all still support probable cause for driving with a revoked license. See State v. Lenoir, ___ N.C. App. ___, ___, 816 S.E.2d 880, 884 (2018).
A. Very.
Q. And when you say "very," if you were to put a percentage on it, what would your percentage be?
A. 98 to 100.
In determining whether to issue a warrant, the magistrate must make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Probable cause means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender. Probable cause does not mean actual and positive cause, nor does it import absolute certainty. If the apparent facts set
Id. (emphasis added) (citations, quotation marks, and brackets omitted). Because the warrant was properly issued upon probable cause, we need not address defendant's other contentions regarding the search as they are based upon the premise that the warrant was defective. This argument has no merit.out in an affidavit for a search warrant are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a search warrant.
III. Conclusion
We affirm the trial court's denial of defendant's motion to suppress and conclude there was no error in the judgment entered upon defendant's guilty plea.
AFFIRMED; NO ERROR.
Judges INMAN and ZACHARY concur.
Report per Rule 30(e).