Opinion
No. COA15-1312
07-05-2016
STATE OF NORTH CAROLINA v. FITZGERALD JEROD ROBINSON
Attorney General Roy Cooper, by Assistant Attorney General Thomas M. Woodward, for the State. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. Mecklenburg County, No. 13 CRS 209503, 209505, 209507, 209509-10, 209512 Appeal by defendant from judgment entered 7 July 2015 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 April 2016. Attorney General Roy Cooper, by Assistant Attorney General Thomas M. Woodward, for the State. Edward Eldred, Attorney at Law, PLLC, by Edward Eldred, for defendant-appellant. BRYANT, Judge.
Where the trial court had competent evidence that the law enforcement officer smelled marijuana as he passed defendant's vehicle, we uphold the trial court's finding of fact stating as such. Accordingly, we affirm the trial court's order denying defendant's motion to suppress the evidence seized as a result of the stop and subsequent search.
On 7 March 2013, defendant Fitzgerald Jerod Robinson was issued a citation for driving without a license and arrested on charges of possession of drug paraphernalia, possession of a firearm by a felon, carrying a concealed weapon, possession with intent to sell and deliver marijuana, and resisting a public officer. On 6 October 2014, defendant was indicted for possession of drug paraphernalia, possession of a firearm by a felon, carrying a concealed weapon, possession with intent to sell or deliver a controlled substance, and resisting a public officer. On 12 June 2015, defendant filed a motion to suppress all evidence seized during the traffic stop that led to a warrantless search and his arrest. The motion was heard on 7 July 2015 during a criminal session of Mecklenburg County Superior Court presided over by Judge Robert C. Ervin.
At the hearing, testimony was given by Detective Jaco-Vargas and Officer Sheldon Connor, as well as defendant. Detective Jaco-Vargas, a six-and-a-half year veteran of the Charlotte Mecklenburg Police Department, testified that he worked as a vice and narcotics detective targeting prostitution, gambling and narcotics related offenses in Mecklenburg County. With respect to narcotics, Detective Jaco-Vargas had received education and training involving raw and burnt marijuana and cocaine to identify the odor, and had conducted several hundred arrests involving marijuana.
On 7 March 2013, Detective Jaco-Vargas was assigned to a "focus mission team" to combat street-level narcotic transactions. Responding to a complaint that a black male going by the name "Ra-Ra" was a marijuana distributor who lived in Peppertree Apartments near the intersection of Central Avenue and Kilborne Drive and drove a black PT Cruiser, Detective Jaco-Vargas took up a surveillance position in the parking lot of the Peppertree Apartments near a parked, black PT Cruiser. While under observation, the back left passenger door of the PT Cruiser opened and a black male exited the vehicle and stood by the door before walking away. When the door opened, Detective Jaco-Vargas observed two more individuals sitting in the vehicle. Attempting to see if the individual who exited the vehicle matched the description of the suspect, the detective drove towards the PT Cruiser.
Detective Jaco-Vargas testified that as he passed directly behind the PT Cruiser at a distance of three to four feet, he smelled the odor of raw marijuana coming from the vehicle. The individual who exited the vehicle did not match the physical description of the suspect, so Detective Jaco-Vargas resumed his surveillance position of the PT Cruiser and notified other members of his police unit to head toward Peppertree Apartment Complex. Soon, the PT Cruiser exited the apartment complex parking lot; Detective Jaco-Vargas followed. The PT Cruiser exited the apartment complex parking lot onto Kilborne Drive, then made a U-turn. On Kilborne Drive, Charlotte Mecklenburg Police Officer Connor, who had been monitoring Detective Jaco-Vargas's radio communications, pulled up behind the PT Cruiser and initiated a stop.
Officer Connor testified that when the PT Cruiser stopped, the driver, later identified as defendant, jumped out of the vehicle and ran. "[W]e ran three houses down, he jumped six fences and then three houses down." "It was pitch black behind the houses." When Officer Connor seized defendant, he was trying to pull something out of his pocket. A pat-down revealed a package containing what appeared to be marijuana in defendant's left coat pocket. During a search of the area where defendant was arrested, law enforcement officers discovered defendant's hat, two twenty-dollar bills, and "another few baggies of marijuana." A search of the vehicle uncovered a firearm, a Ruger handgun with an extended clip inside the driver's side door panel, as well as a digital scale.
At the close of the evidence, the trial court denied defendant's motion to suppress. Following the denial, defendant entered an Alford plea to the charges against him. On 7 July 2015, the court entered a consolidated judgment against defendant for possession of a firearm by a felon, possession of drug paraphernalia, driving a motor vehicle with no operator's license, carrying a concealed weapon, possession with intent to sell and deliver marijuana, and resisting a public officer. The trial court imposed a suspended sentence of 14 to 26 months. Defendant appeals.
On appeal, defendant argues that competent evidence did not support the trial court's finding of fact that Detective Jaco-Vargas smelled marijuana as he drove by defendant's vehicle. We disagree.
In ruling on a motion to suppress, it is an inherent role of the trial court to weigh the credibility of witnesses and resolve conflicts in testimony in order to make findings of fact that support its conclusions of law. See State v. Veazey, 201 N.C. App. 398, 402, 689 S.E.2d 530, 533 (2009) ("[O]nce again [the defendant] contends that [the trial court] erred in 'taking [the law enforcement officer] on his word with respect to some statements and not considering his other statements.' There is no error in the trial court's so doing. Weighing the credibility of witnesses and resolving conflicts in their testimony is precisely the role of the superior court in ruling on a motion to suppress." (citation omitted)). "On appeal, we review a trial court's denial of a motion to suppress to determine whether the trial court's findings of fact are supported by the evidence and whether the findings of fact support the conclusions of law." State v. Chlopek, 209 N.C. App. 358, 359-60, 704 S.E.2d 563, 564 (2011) (citations and quotation marks omitted). "If competent evidence is found to exist, the findings of fact are binding on appeal." State v. Cummings, 188 N.C. App. 598, 602, 656 S.E.2d 329, 332 (2008) (citation omitted). "We review the trial court's conclusions of law, however, de novo." Chlopek, 209 N.C. App. at 360, 704 S.E.2d at 564 (citation omitted).
Defendant contends that "[t]he legality of Officer Connor's seizure of [defendant] entirely depends on the trial court's finding that [Detective] Jaco-Vargas smelled an odor of unburnt marijuana coming from the 25.9 grams of marijuana that was in the PT Cruiser." Before this Court, defendant asserts that "the odor of marijuana was the only circumstance that could have given [Officer] Connor a reasonable, articulable suspicion to effectuate the stop."
In this case, [Detective] Jaco-Vargas'[s] testimony that he smelled 25.9 grams of raw marijuana contained in plastic baggies emanating from the PT Cruiser while he drove by with his windows down is inherently incredible. The marijuana was not burning and had not recently been burnt. It was not a large amount of marijuana. [Detective] Jaco-Vargas was on the far side of his car away from the PT Cruiser. In other words, the PT Cruiser was on [Detective] Jaco-Vargas's right hand side. Thus, the alleged odor of marijuana would have had to have drifted out of the back door of the PT Cruiser, through the air, and through [Detective] Jaco-Vargas's car before it reached his nose. [Detective] Jaco-Vargas was moving. The marijuana was contained in baggies that were either in the inside pocket of [defendant's] coat or contained in another bag. It is simply beyond belief that [Detective] Jaco-Vargas smelled the marijuana in these circumstances.
However, Detective Jaco-Vargas gave the following testimony on direct examination:
A. While I was observing the PT Cruiser, the back left passenger door opened, an unidentified black male wearing a white T-shirt got out. I then drove towards the PT Cruiser to observe if that individual exiting the vehicle was Ra-Ra, as I had a physical description of him. It was not. I had my windows
rolled down. As I was driving down, I smelled the odor of marijuana coming from the vehicle.And again,
A. Once they -- the back left passenger exited the vehicle, I went from my position here and drove this way to observe if that was going to be indeed my target. When I seen that it wasn't, I was approximately right behind the vehicle. My windows were rolled down, I drove directly behind the vehicle and that's when I can smell the odor of marijuana.
Q. And how close do you think that you were when you smelled that odor of marijuana?
A. Maybe three, four feet.
After the close of the evidence, the trial court made the following findings of fact:
THE COURT: Okay. The Court at this point would perceive that the State has offered credible evidence tending to indicate that the officer, the detective smelled marijuana in the car, that he then made a report of that to another officer who properly relied on information submitted, which then permitted that officer to effect a stop of the car. That the Defendant then -- the Defendant's flight justified the officer chasing him down and placing him into custody. There was a proper basis to search the car based upon the report of the smell of marijuana, which that gave probable cause to search the car. That report plus the Defendant's flight would give probable cause to stop the Defendant and search him. So the Court would deny the motion to suppress.
As there was competent evidence before the trial court that Detective Jaco-Vargas smelled marijuana as he passed defendant's vehicle and the trial court found this evidence credible, the trial court's finding that "the detective smelled marijuana in the car" is binding on appeal. Accordingly, defendant's argument challenging the credibility of Detective Jaco-Vargas's testimony is overruled.
AFFIRMED.
Judges STROUD and DIETZ concur.
Report per Rule 30(e).