Opinion
No. COA11–881.
2012-05-15
STATE of North Carolina v. Jamaah Robert McMILLAN, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Stanley G. Abrams, for the State. Mary March Exum for defendant-appellant.
Appeal by defendant from judgment entered 18 August 2010 by Judge Lindsay R. Davis, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 30 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Stanley G. Abrams, for the State. Mary March Exum for defendant-appellant.
GEER, Judge.
Defendant Jamaah Robert McMillan appeals from his convictions of trafficking in cocaine by possession and possession of cocaine. Defendant contends on appeal that a warrantless search of his vehicle was unjustified and, therefore, all evidence seized during the search should have been suppressed. Because the unchallenged findings of the trial court on defendant's motion to suppress support the court's conclusion that the evidence seized was in plain view, we hold that the trial court did not err in denying defendant's motion to suppress.
Facts
The State's evidence at the motion to suppress hearing and at trial tended to show the following facts. On 17 July 2008, a detective from the Greensboro Police Department obtained a warrant for defendant's arrest on an unrelated murder charge, and the Tactical Special Enforcement Team (“TSET”) was assigned to locate and arrest defendant. Officer Justin Flynt, one of the officers assigned to locate defendant, spotted defendant's vehicle and notified his unit. After several other officers were in the area, Officer Flynt activated his blue lights to pull over defendant's vehicle.
As defendant pulled over, Officer Flynt saw defendant make an abrupt move and dive or lunge into the passenger side of his vehicle. Officer Flynt testified that this movement led him to believe that defendant was trying to hide or retrieve a weapon or contraband. As of that date, the police had not yet found the weapon—a handgun of unknown type—which was used in the murder that was the subject of defendant's arrest warrant.
Officer Flynt approached the driver's side of the vehicle, while other officers contemporaneously approached the passenger side. The officers on the passenger side opened the doors to the vehicle to inspect the area where defendant had lunged to ensure that defendant could not reach anything to harm the officers. Officer Flynt testified that the stop was a high risk stop and that it was standard procedure for officers to open passenger doors as a safety precaution.
Officer Flynt removed defendant from the vehicle, escorted him to his police vehicle, and placed him in handcuffs. Officer Michael Ambrosio then approached the vehicle and saw that both passenger side doors had been opened. Officer Ambrosio was approximately five feet from the back passenger door when he saw what appeared to be a plastic baggie containing crack cocaine on the floorboard of the back passenger area. He seized the contraband and took it to Officer Flynt.
Defendant was charged with possession with intent to sell or deliver cocaine, trafficking in cocaine by possession, and maintaining a vehicle for the purpose of selling cocaine. Defendant was also indicted on 15 February 2010 for being a habitual felon.
Prior to trial, defendant filed a motion to suppress the seized cocaine, claiming that the evidence had been seized in violation of his Fourth Amendment rights. On 22 July 2010, the trial court entered an order denying defendant's motion, concluding: (1) that the stop of defendant was reasonable based on the arrest warrant; (2) that defendant's furtive movements when stopped raised legitimate concerns for officer safety; (3) that the opening of the passenger doors was done for officer safety; (4) that Officer Ambrosio was in a location he was legitimately entitled to occupy and was performing a legitimate function of his office; (5) that the contraband seized was in the plain view of Officer Ambrosio and that a warrant was therefore not required; and (6) that the warrantless seizure of the cocaine was justified and that defendant's constitutional rights were not violated.
Defendant was tried beginning on 17 August 2010. Defendant renewed his objection at trial, but the trial court admitted the evidence. On 18 August 2010, a jury found defendant guilty of trafficking in cocaine by possession and possession of cocaine, but found defendant not guilty of maintaining a vehicle for the purpose of selling cocaine. Defendant entered a plea of guilty to being a habitual felon. The trial court sentenced defendant to a consolidated term of 96 to 125 months imprisonment. Defendant timely appealed to this Court.
Discussion
The sole issue on appeal is whether the trial court erred in denying defendant's motion to suppress. “The scope of review of the denial of a motion to suppress is ‘strictly 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, and whether those factual findings in turn support the judge's ultimate conclusions of law.’ “ State v. Bone, 354 N.C. 1, 7, 550 S.E.2d 482, 486 (2001) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).
Findings of fact not challenged on appeal—such as those in this case—are binding on this Court. State v. Brown, 199 N.C.App. 253, 256, 681 S.E.2d 460, 463 (2009). The trial court's conclusions of law, however, “must be legally correct, reflecting a correct application of applicable legal principles to the facts found.” State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997). Because defendant has not challenged the findings, we review the trial court's order to determine whether those findings correctly support the conclusions of law.
Defendant contends the trial court erred in concluding that the contraband was seized in plain view of Officer Ambrosio. He argues that the seizure was in violation of the Fourth Amendment and Arizona v. Gant, 556 U.S. 332, 173 L.Ed.2d 485, 129 S.Ct. 1710 (2009). In Gant, the United States Supreme Court restricted an officer's ability to search a vehicle incident to arrest. The Court held that officers may search a vehicle incident to arrest only (1) if the arrestee is unsecured and within reaching distance of the passenger compartment when the search is conducted, or (2) if it is reasonable to believe that evidence relevant to the crime resulting in the arrest might be found in the vehicle. Id. at 346, 173 L.Ed.2d at 498, 129 S.Ct. at 1721. Defendant argues that Officer Ambrosio's seizure was a search incident to arrest and that neither exception set out in Gant is present in the instant case.
We disagree that Officer Ambrosio's seizure constituted a search incident to arrest and, therefore, Gant is inapplicable. There is no dispute that the officers were justified in stopping defendant's vehicle based on the warrant for his arrest. The trial court's “conclusion” “[t]hat the opening of the passenger doors was done for officer safety purposes and not to search the defendant's vehicle” is more accurately characterized as a finding of fact. This purpose, as found by the trial court, does not run afoul of Gant, in which the Supreme Court held that “[o]ther established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand.” Id.
The Supreme Court went on to explain that an officer is permitted “to search a vehicle's passenger compartment when he has reasonable suspicion that an individual ... is ‘dangerous' and might access the vehicle to ‘gain immediate control of weapons.’ “ Id. at 346–47, 173 L.Ed.2d at 498, 129 S.Ct. at 1721 (quoting Michigan v. Long, 463 U.S. 1032, 1049, 77 L.Ed.2d 1201, 1220, 103 S.Ct. 3469, 3481 (1983)). Additionally, the Court noted that “there may be still other circumstances in which safety or evidentiary interests would justify a search.” Id. at 347,173 L.Ed.2d at 498, 129 S.Ct. at 1721 (citing Maryland v. Buie, 494 U.S. 325, 334, 108 L.Ed.2d 276, 286, 110 S.Ct. 1093, 1098 (1990)).
In the instant case, the trial court's unchallenged findings of fact establish that defendant had a criminal record including offenses involving weapons and narcotics; that the murder weapon, a handgun, allegedly used by defendant had not yet been located; that defendant dove over to the passenger side of the vehicle upon being pulled over; that the officer associated this movement with an effort to hide weapons and/or contraband; that officers approached defendant's vehicle contemporaneously with Officer Flynt and opened the passenger doors; and that this practice is standard procedure for a “high risk” stop. Given that the passenger doors were opened for officer safety purposes and the procedure was done contemporaneously with Officer Flynt's approach, the officers' actions were consistent with the exceptions outlined in Gant, and the opening of the doors did not constitute a search incident to arrest.
We further find no error in the trial court's conclusion that Officer Ambrosio's seizure of the contraband was appropriate under the plain view doctrine. “[A] seizure is lawful under the plain view exception when the officer was in a place where he had a right to be when the evidence was discovered and when it is immediately apparent to the police that the items observed constitute evidence of a crime, are contraband, or are subject to seizure based upon probable cause.” State v. Mickey, 347 N.C. 508, 516, 495 S.E.2d 669, 674 (1998). The trial court's unchallenged findings of fact establish that Officer Ambrosio was part of the unit assigned to arrest defendant; that he provided security for Officer Flynt; and that he was about five feet from the back passenger door and could see what appeared to be a plastic baggie containing crack cocaine in plain view on the floorboard of the back passenger area. These findings of fact support the trial court's conclusions of law that “Ofc. Ambrosio was in a location he was legitimately entitled to occupy and was performing a legitimate function of his office” and that “the contraband seized was in the plain view of Ofc. Ambrosio, and that a search warrant was therefore not required.”
Therefore, the trial court's findings establish that the vehicle doors were opened for a purpose allowable under Gant. Once the doors were open, the evidence seized was then in plain view. The trial court, therefore, did not err in denying defendant's motion to suppress.
No error. Judges BRYANT and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).