Opinion
No. COA12–92.
2012-07-3
STATE of North Carolina v. Cortez Lamar SLADE, Defendant.
Roy Cooper, Attorney General, by Gayle L. Kemp, Associate Attorney General, for the State. Unti & Lumsden, LLP, by Sharon L. Smith, for defendant-appellant.
Appeal by defendant from judgment entered 23 August 2011 by Judge William Z. Wood, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 21 May 2012. Roy Cooper, Attorney General, by Gayle L. Kemp, Associate Attorney General, for the State. Unti & Lumsden, LLP, by Sharon L. Smith, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Cortez Lamar Slade was indicted by a grand jury for conspiring to traffic and for trafficking by possession in excess of 10 pounds but less than 50 pounds of marijuana, a Schedule VI controlled substance, in violation of N.C.G.S. § 90–95(i) and (h)(1)(a). Prior to trial, he moved to suppress evidence seized pursuant to searches of his vehicle and a hotel room. After a hearing, the trial court denied the motion to suppress. Defendant entered into a plea agreement with the State, reserving his right to appeal the denial of his motion to suppress. He appeals from the judgment entered upon his guilty plea.
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On appeal, defendant challenges the trial court's denial of his motion to suppress evidence seized during the early morning hours of 12 October 2010. Defendant asserts that the court's findings of fact, which he does not challenge, do not support its conclusion that the investigative stop was based on the detaining officers' reasonable and articulable suspicion that criminal activity was afoot. We disagree.
Our review of a trial court's order on 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. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “Where no exceptions have been taken to the findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal.” State v. Phillips, 151 N.C.App. 185, 190, 565 S.E.2d 697, 701 (2002) (internal quotation marks omitted). In the present case, since defendant fails to challenge any of the trial court's findings of fact, such findings are binding on appeal.
The evidence supporting the unchallenged findings of fact made by the trial court tended to show that, during the early morning hours of 12 October 2010, officers with the Greensboro Police Department assigned to the Southern District Community Resource Team—which handles “community problems in certain neighborhoods”—were conducting surveillance of the traffic in and around the hotels and businesses in an area designated as the Western Patrol District. Because this district had recently seen a “large volume of vehicle break-ins” in hotel parking lots, as well as drug transactions, officers were surveilling the area from several unmarked vehicles stationed in parking lots throughout the 600 block of South Regional Road.
Officer Shawn Keith Roscoe testified that, while on surveillance in an unmarked minivan at about midnight in the parking lot of the Fatz Café located next to the Red Roof Inn, he observed defendant accompanied by a woman, later charged as his co-defendant, descend the stairs from the second floor of the Red Roof Inn and enter a silver Dodge Intrepid parked on the grass adjacent to the otherwise-almost-empty hotel parking lot. The officer then observed defendant drive his vehicle around the Red Roof Inn lot and around the adjacent lot of the Fatz Café in a manner that Officer Roscoe described as “very, very slow—and I mean rolling—speed.” According to Officer Roscoe, defendant “circled behind [the officer's vehicle], almost came to a complete stop, when the passenger—the female passenger almost sat up in her seat and tried to attempt to look into the [officer's] van.” Defendant then sped up, left the parking area of the Fatz Café, and again circled the parking lot of the Red Roof Inn twice “at a low speed like as if they were looking for somebody maybe.” According to the officer's testimony, in the immediate vicinity, no businesses other than the hotels were open at that hour. Defendant and his passenger then parked their vehicle, returned to Room 227 on the second floor of the Red Roof Inn, exited the room a few minutes later, entered the same vehicle, again slowly circled the parking lot, and exited the Red Roof Inn lot onto Regional Road. Because the officer “believ[ed] that the defendant had engaged in counter-surveillance maneuvers in the hotel lot,” he “alerted additional officers to the vehicle's activities.”
After receiving a description of defendant's vehicle from Officer Roscoe, Officers Travis Benjamin Cole and Justin Paul Kivette, who were surveilling the Motel 6 parking lot from the Shoney's located on Regional Road, observed the Dodge Intrepid “on the move” with a red Ford pick-up truck travelling “right behind it.” Officer Cole testified that he recognized the pick-up truck as one that he had observed slowly circling the Red Roof Inn parking lot shortly before hearing the report from Officer Roscoe about the counter-surveillance maneuvers of the Dodge Intrepid. Officer Cole turned onto Regional Road in an unmarked SUV and fell in behind the Intrepid and the pick-up truck. The officer then observed the vehicles “abruptly turn[ ] into the McDonald's” parking lot, circle that lot “extremely—very slowly,” and, without stopping or pulling into the drivethru lane of the restaurant, turn back onto the roadway traveling in the direction from which they came. Officer Cole then observed defendant “abruptly” turn right “to seemingly duck into [the] parking lot” of the Fairview Inn and “didn't use their turn signal at all.” The vehicles then “by-passed all open spaces” “throughout the entire parking lot” and “headed what seemed like on purpose to the back of the building,” at which time Officer Cole activated his blue lights and “advised [defendant] that [he] was pulling [defendant] over for a traffic stop.”
The officers' subsequent search of defendant's vehicle and hotel room at the Red Roof Inn yielded the discovery of “a pillow case containing a substantial amount of cash currency” in the trunk of the Intrepid, a pound of marijuana concealed under the vehicle's hood, and approximately 15 pounds of marijuana and assorted packaging materials in the hotel room.
“Only unreasonable investigatory stops are unconstitutional.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (citing Terry v. Ohio, 392 U.S. 1, 9, 20 L.Ed.2d 889, 899 (1968)), appeal after remand, 120 N.C.App. 804, 463 S.E.2d 802 (1995). “An investigatory stop must be justified by a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity,' “ id. (quoting Brown v. Texas, 443 U.S. 47, 51, 61 L.Ed.2d 357, 362 (1979)), and must “arise from the officer's knowledge prior to the time of the stop.' “ State v.. McRae, 203 N.C.App. 319, 322, 691 S.E.2d 56, 58 (2010) (quoting State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000)). “A court must consider the totality of the circumstances—the whole picture in determining whether a reasonable suspicion to make an investigatory stop exists.” Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (internal quotation marks omitted). “The stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.” Id. “The only requirement is a minimal level of objective justification, something more than an unparticularized suspicion or hunch.' “ Id. at 442, 446 S.E.2d at 70 (emphasis added) (quoting United States v. Sokolow, 490 U.S. 1, 7, 104 L.Ed.2d 1, 10 (1989)).
In the present case, defendant argues the officers lacked reasonable and articulable suspicion that criminal activity was afoot prior to initiating the investigative stop of defendant's vehicle. However, as defendant concedes in his brief, Officer Cole testified that he observed defendant “turn[ ] quickly into the parking lot of the Fairview Inn” without using his turn signal while the pick-up truck “follow[ed] closely behind” his Intrepid. Our Supreme Court has concluded that “reasonable suspicion existed when [a] defendant switched lanes on a highway without using his turn signal, and the defendant's car was immediately in front of the officer's patrol car,” “because it is clear that changing lanes immediately in front of another vehicle may affect the operation of the trailing vehicle,' “ which is a violation of N.C.G.S. § 20–154(a). McRae, 203 N.C.App. at 323, 691 S.E.2d at 59 (quoting State v. Styles, 362 N.C. 412, 416–17, 665 S.E.2d 438, 441 (2008)). In other words, such an observation gives the officer “the required reasonable suspicion to stop [a] defendant's vehicle.” See id. (internal quotation marks omitted). Moreover, this Court has applied the same reasoning to conclude that an officer had reasonable suspicion to stop a defendant based on his failure to use a turn signal when “defendant was traveling, before his turn, in a through lane with medium' traffic and was a short distance in front of the police officer.” See id. Therefore, because defendant concedes and the evidence supports the court's unchallenged findings that Officer Cole observed defendant's vehicle abruptly turn off of the roadway without signaling while the pick-up truck followed closely behind it, we conclude that Officer Cole had reasonable and articulable suspicion of criminal activity to initiate an investigative stop of defendant's vehicle.
Defendant next contends the trial court erred when it concluded that the officers “ had a probable cause basis to initiate a stop of the vehicle after observing the improper turn violation,” (emphasis added), because defendant argues that the officers did not have probable cause to initiate the stop. However, since our Supreme Court has held that “reasonable suspicion[, rather than probable cause,] is the necessary standard for traffic stops, regardless of whether the traffic violation was readily observed or merely suspected,” see Styles, 362 N.C. at 415–16, 665 S.E.2d at 440–41, we need not consider whether the officers actually had probable cause to initiate the traffic stop of defendant's vehicle.
Additionally, although defendant does not explicitly argue that the court used an improper standard for its constitutional analysis, we note for clarification that despite the “probable cause” language used by the court when the order was reduced to writing, a review of the record and transcript indicates that the court recognized and applied the proper standard for this constitutional inquiry. Here, the judge corrected counsel in open court when counsel did not state the proper standard in full, and, more importantly, specifically provided in Conclusion of Law 1 in its written order that “[t]he initial encounter between the defendant and law enforcement officers that resulted in his detention was a valid investigative stop based on the collective observations of the officers that there existed reasonable and articulable suspicion that criminal activity was afoot. ” (Emphasis added.) Therefore, we are persuaded that the trial court's reference to the “probable cause” standard in Conclusion of Law 2 of its written order denying defendant's motion to suppress appears to be a mere lapsus linguae or typographical error, and we conclude that this misstatement of the applicable standard did not constitute prejudicial error in the present case.
Defendant also suggests that the officers could not have had reasonable and articulable suspicion that criminal activity was afoot prior to stopping defendant's vehicle because the officers did not observe any illegal or “inherently suspicious” activity, when these activities are viewed in isolation. However, “whether a particular indicator is innocent in nature is immaterial; the relevant inquiry is the degree of suspicion that attaches to particular types of noncriminal acts.' “ State v. Bonds, 139 N.C.App. 627, 629, 533 S.E.2d 855, 857 (2000) (quoting Sokolow, 490 U.S. at 10, 104 L.Ed.2d at 12);see also State v. Crenshaw, 144 N.C.App. 574, 577, 551 S.E.2d 147, 150 (2001) (stating that, while each fact on its own “might not justify a search, ... one cannot piecemeal this analysis[;] ... [o] ne piece of sand may not make a beach, but courts will not be made to look at each grain in isolation and conclude there is no seashore” (internal quotation marks omitted)). Thus, as we recounted above, the unchallenged findings indicate that: defendant used counter-surveillance driving maneuvers when approaching the unmarked police car in the otherwise-empty parking lot; defendant drove at an unusually slowed driving speed and repeatedly weaved his vehicle in and out of parking lots of closed and unfrequented businesses where there had been recent reports of increasing incidents of property crimes and drug transactions; and this activity occurred during the late night and early morning hours. Nevertheless, because we have already determined that, in the present case, defendant's observed failure to use his turn signal gave the officers reasonable and articulable suspicion to initiate an investigative stop of defendant's vehicle, we need not address whether the composite of these additional circumstances provided “a minimal level of objective justification,” “as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training,” see Watkins, 337 N.C. at 441–42, 446 S.E.2d at 70, to give the officers reasonable and articulable suspicion to initiate an investigative stop of defendant's vehicle.
Affirmed. Judges ELMORE and HUNTER, Jr. concur.
Report per Rule 30(e).