Opinion
No. COA10-738
Filed 16 August 2011
Appeal by Defendant from judgment entered 3 November 2009 by Judge Christopher M. Collier in Iredell County Superior Court. Heard in the Court of Appeals 25 January 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jernigan, for the State. Michele Goldman, for Defendant.
Iredell County No. 08 CRS 054219.
Where the trial court denied Defendant's motion to suppress and competent evidence supports its findings of fact and conclusions of law, we affirm.
Sergeant Randy Cass (Sgt. Cass) of the Iredell County Sheriff's Office was on patrol on 21 May 2008 when, around 11:00 a.m., he observed an SUV with tinted windows heading south on Interstate 77 (I-77) . Believing the window tinting to be in violation of North Carolina law, Sgt. Cass stopped the SUV and immediately approached the driver's side. Sgt. Cass asked the driver, Michelle Perez (Perez), to step out of the vehicle, and then asked her several questions. Perez told him that the SUV belonged to her passenger Norma Angelica Williams (Defendant), and Sgt. Cass then asked Perez where their trip originated. Perez told him that she flew to Houston from Arizona to meet Defendant and drive her "to go DJ somewhere" but referred further questions about their trip to Defendant because it was Defendant's "gig," and Perez was not familiar with the details of their travel plans and destination.
Sgt. Cass approached Defendant and asked if she owned the SUV. Defendant replied that she did not own the vehicle but explained that she had arranged to purchase the car from the friend to whom it belonged. Defendant produced two identification cards, each issued by the states of Arizona and Texas respectively, containing consistent information. Sgt. Cass asked where she and Perez were traveling, and Defendant told him that they "were trying to get to Club Kryptonite and showed [him] a map to Myrtle Beach, South Carolina, and then asked [him] directions on how to get there." Sgt. Cass also asked where they were coming from, and Defendant responded that they were travelling from Louisville, Kentucky. Defendant gave Sgt. Cass the SUV's registration and continued to answer his questions, telling him that she and Perez were cousins and that she had recently moved to Texas from Arizona.
Sgt. Cass left Defendant and returned to speak with Perez, inquiring about her city of departure and her relationship with Defendant. Perez told him that she flew from Tucson, Arizona, and explained that she and Defendant refer to each other as cousins because of their longstanding relationship. Sgt. Cass then asked Perez to sit in his cruiser as he issued her a warning ticket. For about ten minutes, Sgt. Cass and Perez engaged in "small talk" addressing matters such as Perez's occupation. Meanwhile, Sgt. Cass contacted Blue Light Operational Center (BLOC), which he described as "an agency through United States customs that we're in access with . . . for the check of the wanted persons or the vehicle, the criminal history, [and] the driver's license." Sgt. Cass provided BLOC with information on the SUV, Perez's driver's license, and Defendant's Texas identification card, and answered BLOC'S questions regarding Defendant and Perez's route from Kentucky to South Carolina. At some point while Sgt. Cass and Perez were in the cruiser, BLOC verified "that everything was good."
After issuing a warning citation to Perez, Sgt. Cass asked her if there was any contraband, weapons or large quantities of cash in the SUV, and she indicated there was not. Sgt. Cass then asked her if he could search the SUV, but Perez did not consent. Sgt. Cass then asked Defendant if there was any contraband in the SUV, and she stated there was none. Sgt. Cass informed the women that he had requested that a canine trained in drug detection inspect the SUV. Approximately ten minutes later, Sgt. Elliott arrived and walked a canine around the SUV. The canine "alerted" on the SUV, indicating a possible presence of narcotics. Based on the dog's reaction, Sgt. Cass, Sgt. Elliott, and a third officer searched the SUV and recovered a large quantity of marijuana located in the SUV.
Sergeant Elliott's first name does not appear in the record.
Defendant was arrested and was indicted on 11 August 2008 for trafficking in marijuana by possession and trafficking in marijuana by transporting. Perez was not indicted on any charges. On 12 September 2008, Defendant filed a motion to suppress the marijuana recovered from the search of the SUV. On 3 August 2009, a hearing on Defendant's motion to suppress was held. Sgt. Cass testified at the hearing, and a video of the stop, including audio portions, was admitted into evidence.
The trial court denied Defendant's motion to suppress on 5 August 2009. Defendant entered into a plea agreement whereby she would plead guilty to one count of trafficking marijuana in exchange for the dismissal of the second count. On 3 November 2009, judgment was entered and Defendant was sentenced to an active term of twenty-five to thirty months. Defendant appeals.
I.
Defendant has petitioned our Court for writ of certiorari out of precaution that her right to appeal was not preserved. We have reviewed the record and believe Defendant's right to appeal in this matter is preserved. Defendant timely filed a written notice to appeal the denial of her motion to suppress. On 28 October 2009, the trial court accepted Defendant's plea agreement with the State. At the plea hearing, both Defendant's counsel and the trial court indicated Defendant would be appealing the denial of the motion to suppress. On 3 November 2009, judgment was entered. At the sentencing hearing, the State, Defendant's counsel, and the trial court all proceeded as if Defendant had properly entered notice of appeal.
Because the transcript from the sentencing hearing does not include an express statement of Defendant's intent to appeal, we have no way of knowing whether Defendant's counsel gave oral notice of appeal before transcription of the proceedings began. However, the record reflects that the State, the trial court, and Defendant's counsel all proceeded as if proper notice of appeal had been properly noted. Upon Defendant's request, the trial court appointed the Appellate Defender's Office to represent her, and stayed the execution of judgment pending resolution of the matter in the Court of Appeals. The trial court stated in its Appellate Entries form that "[D]efendant has given Notice of Appeal to the N.C. Court of Appeals," and "ordered that [Defendant] is allowed to appeal as an indigent."
Where we presume the "regularity and correctness" of the actions of the trial court unless the record proves otherwise, In re A.R.H.B. C.C.H.L, 186 N.C. App. 211, 219, 651 S.E.2d 247, 253 (2007), we do not believe, on these facts, that the trial court's finding that Defendant gave notice of appeal is sufficiently contradicted by the record. We therefore address the merits of Defendant's appeal.
II.
Defendant first contends the trial court lacked competent evidence to support Findings of Fact 4, 5, and 9, arguing that there was no competent evidence to support them. As Defendant does not challenge the remaining findings of fact, they are binding on this Court. See State v. Biber, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (No. 423A10, filed 16 June 2011) ("[W]hen, as here, the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal.").
Our standard of review for the denial of a motion to suppress is as follows:
[T]he trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. This Court must not disturb the trial court's conclusions if they are supported by the court's factual findings. However, the trial court's conclusions of law are fully reviewable on appeal. At a suppression hearing, conflicts in the evidence are to be resolved by the trial court. The trial court must make findings of fact resolving any material conflict in the evidence.
State v. McArn, 159 N.C. App. 209, 211-12, 582 S.E.2d 371, 373-74 (2003) (internal quotation marks and citations omitted). Moreover,
[a]n appellate court accords great deference to the trial court's ruling on a motion to suppress because the trial court is entrusted with the duty to hear testimony (thereby observing the demeanor of the witnesses) and to weigh and resolve any conflicts in the evidence. Our review of a trial court's denial of a motion to suppress is strictly limited to a determination of whether [its] findings are supported by competent evidence, and in turn, whether the findings support the trial court's ultimate conclusion.
State v. Hernandez, 170 N.C. App. 299, 303-04, 612 S.E.2d 420, 423 (2005) (internal quotation marks and citations omitted).
In general, "[t]he scope of the detention must be carefully tailored to its underlying justification." Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238 (1983). This Court requires that "[t]he stop . . . 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." State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 906 (1968)). "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 (quoting United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981)).
In Finding of Fact 4, the trial court found that Sgt. Cass asked Perez where they were coming from, and "Perez eventually stated they were coming from Houston, Texas, even though they were traveling south on the interstate." However, Sgt. Cass knew that, because Defendant and Perez were travelling south on I-77, it was illogical that they would be travelling from Houston. Sgt. Cass testified at the suppression hearing that when he sought clarification from Perez about where their travel commenced, he
asked [Ms. Perez] where she was coming from and she said that she had just flew [sic] out of Houston and not sure where she was coming from. So I started asking her, I said, no, I mean like right now, where are you coming from now? And she was making comments like from Houston.
As Sgt. Cass testified, when Perez told him they were travelling from Houston, he asked, "right now you're coming from Houston? And she said yeah. I was like, Houston what? Houston, Texas. I'm like, you're going south on 77, you know, Houston is on further south and you're indicating that's where you're coming from." Thus, competent evidence supported the trial court's finding that Perez told Sgt. Cass that she and Defendant were coming from Houston, notwithstanding the fact that they were travelling in a southerly direction.
Travel from Houston, Texas to Myrtle Beach, South Carolina as computed by Mapquest.com and RandMcNally.com is not routed by way of I-77 South.
While Defendant makes much of the fact that Perez did not eventually state that they were coming from Houston but, rather, did so immediately, Defendant failed to demonstrate that the findings of fact are not supported by the evidence. Defendant contends that by using the word "eventually," the trial court inaccurately implies a delay in Perez's response to the question. However, assuming arguendo that the evidence does not support this temporal element included in Finding of Fact 4, the finding of fact would still be supported by the evidence that Perez had identified, whether eventually or immediately, a point of origin that not only rendered her and Defendant's route illogical, but also that contradicted the information provided to Sgt. Cass by Defendant.
In contrast to the information provided by Perez, Defendant told Sgt. Cass, as the trial court found in Finding of Fact 7, that "they were coming from Kentucky." The dissent stresses that both Perez and Defendant told Sgt. Cass that Perez flew into Houston, that Defendant met her there, and that Houston is where their trip began; Perez admittedly did not know the origin of their travel that day. Therefore, because Perez had initially told Sgt. Cass that she and Defendant were coming from Houston "right now", Perez and Defendant's statements as to the origin of their travel conflicted. Because the evidence supports the trial court's Finding of Fact 4 and Defendant demonstrates no prejudice related to the error alleged, this argument is overruled.
Defendant challenges the trial court's Finding of Fact 5 which states, "[t]hat during this conversation Perez could not articulate their destination, even in general terms, even though she was driving the vehicle. Perez further stated that she and the defendant were cousins."
When Sgt. Cass asked Perez from where she and Defendant were travelling, she told him that she had flown from Arizona to Houston, Texas. But, other than her understanding that their ultimate destination was Defendant's DJ gig, Perez was "unsure as to where she was driving to." Perez referred all questions to Defendant because she asserted that she did not know the trip's details. In fact, the most Perez knew about their destination was that it was circled on Defendant's map. It is undisputed that Perez was the driver, and her inability to approximate any ultimate geographic location is competent evidence to support Finding of Fact 5. This argument is overruled.
Defendant also challenges the portion of Finding of Fact 9 that she "produced driver's licenses from the states of Arizona and Texas and had indicated the car was owned by a friend of hers, that she intended to purchase it."
It is correct that Sgt. Cass testified that Defendant produced state-issued identification cards, not driver's licenses. The purpose of Defendant's producing documentation was to prove her identity to Sgt. Cass, not to demonstrate that she was a licensed driver, as she was not driving the SUV at the time of the stop. This discrepancy, however, is inconsequential to the trial court's consideration of the evidence and to the outcome of this case. Therefore, the misstatement in Finding of Fact 9 is de minimus, and this argument is overruled.
The fact that Defendant challenges the above-stated findings of fact does not suggest that a material conflict in the evidence exists. "[F]or purposes of section 15A-977(f), a material conflict in the evidence exists when evidence presented by one party controverts evidence presented by an opposing party such that the outcome of the matter to be decided is likely to be affected." State v. Baker, ___ N.C. App. ___, ___, 702 S.E.2d 825, 831 (2010). As in Baker, where this Court held that "[t]he fact that defendant presented evidence is not, and cannot, by itself, be dispositive of whether a material conflict in the evidence existed," id. at ___, 702 S.E.2d at 830 (emphasis added), there is no material conflict in the evidence here, and the findings of fact were supported by competent evidence.
III.
Defendant concedes that the initial stop was lawful; thus, we do not address the constitutionality of the traffic stop. Rather, Defendant argues that the detention after Perez and Defendant's identification was returned was not supported by reasonable suspicion and therefore violated Defendant's right under the Fourth Amendment to the United States Constitution and Section 20 of Article I of the North Carolina Constitution. We disagree.
"Once the original purpose of the stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion in order to justify further delay. State v. Falana, 129 N.C. App. 813, 816, 501 S.E.2d 358, 360 (1998); see also Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301, 309 (1990) ("[T]he `totality of the circumstances-the whole picture[-]' . . . must be taken into account when evaluating whether there is reasonable suspicion." (quoting United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981)); accord State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). "After a lawful stop, an officer may ask the detainee questions in order to obtain information confirming or dispelling the officer's suspicions." State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999) (citing Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317 (1984)).
We must resolve whether the "totality of the circumstances" in the case sub judice gave rise "to a reasonable articulable suspicion that criminal activity was afoot" to justify Sgt. Cass' extended detention of Defendant. See State v. Myles, 188 N.C. App. 42, 47, 654 S.E.2d 752, 756 (2008) (internal quotation marks and citations omitted). "To determine reasonable articulable suspicion, courts view the facts through the eyes of a reasonable, cautious officer, guided by his experience and training at the time he determined to detain defendant." Id. (internal quotation marks and citation omitted).
Defendant attempts to support her argument that the trial court's findings of fact do not support its conclusions with our Court's decisions in Falana and Myles. We disagree.
In Falana, a trooper observed a car weaving and suspected that the driver was impaired. He detained the vehicle and noticed that the driver breathed rapidly and hesitated to answer the trooper's question. The trooper also found it suspicious that the passenger did not know whether he and the driver left New Jersey on Saturday or Sunday. Falana, 129 N.C. App. at 814-15, 501 S.E.2d at 358-59. Our Court held that these factors alone did not give rise to reasonable suspicion that criminal activity was afoot. Id. at 817, 501 S.E.2d at 360.
This Court's determination in Myles that the officer did not have reasonable suspicion to support an extended detention of a motorist and his passenger is also distinguishable. See Myles, 188 N.C. App. at 51, 654 S.E.2d at 758. Upon stopping a vehicle for suspected impaired driving, the officer did not smell alcohol. Id. at 43, 654 S.E.2d at 753. When he asked for the driver's license and registration, the officer learned that the vehicle had been rented and then asked for the passenger's license because the rental agreement was in his name. Id. After the license check, the officer issued a warning ticket, then asked the driver to step out of the vehicle, and spoke to the passenger and driver separately. Id. at 43, 654 S.E.2d at 753-54. He noticed that both were extremely nervous and gave different dates for the rental car to be returned. Id. at 43-44, 654 S.E.2d at 753-54. The officer had testified, however, that he did not believe the driver was impaired, the driver's license check revealed no outstanding violations, and he found nothing suspicious about the overdue rental car. Id. at 47-48, 654 S.E.2d at 756. Thus, the detention was not supported by reasonable suspicion. The sole basis for the officer's suspicion that criminal activity was afoot was the nervousness of the driver and the defendant, and we announced that nervousness cannot be the sole factor supporting reasonable suspicion. See id. at 50, 654 S.E.2d at 757-58 ("Although our Supreme Court previously has stated nervousness can be a factor in determining whether reasonable suspicion exists our Supreme Court has never said nervousness alone is sufficient to determine whether reasonable suspicion exists when looking at the totality of the circumstances.").
Unlike Falana and Myers, several factors permitted Sgt. Cass to form reasonable suspicion: (1) he stopped the SUV, in which Defendant was a passenger, because it "appeared to [have] illegally tinted windows"; (2) the driver, Perez, did not know the name of the city from which the pair travelled nor any details about their destination; (4) Perez and Defendant were travelling on I-77 purportedly from Louisville, KY to Myrtle Beach, SC which is an indirect route; (5) Defendant initially stated that Perez was her cousin, but later stated she and Perez "simply called each other cousins based on their close and long term relationship"; and (6) while Perez told Sgt. Cass that Defendant owned the SUV, Defendant stated that a friend of hers was the owner, but that she intended to purchase it. While some of these factors — such as the interstate driver's complete unawareness as to where she was bound and the dubious route given — are more weighty than others — such as the initially imprecise information as to vehicle ownership and the women's relationship, which was later amended with corrective details — the totality of the circumstances reveals a muddled story imbued with uncertainties and inconsistencies.
We conclude that the extended detention was supported by reasonable articulable suspicion. Sgt. Cass testified that
Ms. Perez' inaccurate, or not inaccurate, but unknown story locations of where she was coming from and going to; the conflict in the stories of being family; the third party vehicle at that point, that the owner was not present at that time; the dark tinted windows which a lot of times are used to try to conceal the identity of the people going up and down the interstate of drug couriers or money launderers.
Courts often consider the risk to law enforcement officers and their ability to discern factors suggesting that drug activity may be afoot. In forming reasonable suspicion, one factor that law enforcement officers are permitted to consider is tinting on vehicle windows. There are many cases which address the risk that tinting poses to officer safety, see United States v. Stanfield, 109 F.3d 976, 981-82 (4th Cir. 1997) ("[O]fficers face an `inordinate risk' every time they approach even a vehicle whose interior and passengers are fully visible to the officers, [and] the risk these officers face when they approach a vehicle with heavily tinted windows is, quite simply, intolerable." (citation omitted)).
Sgt. Cass stopped Perez and Defendant because the vehicle in which they rode had tinted windows in violation of state law, see N.C. Gen. Stat. § 20-127(b), (d) (2009), and cited Perez for the violation. Further, Perez and Defendant gave conflicting statements about the origin of their travel; Perez told Sgt. Cass that Defendant, with whom she had a "close and long term relationship" as the trial court found in Finding of Fact 8, was the owner of the SUV, while Defendant stated that although she intended to purchase the vehicle, it actually belonged to a friend, as the court found in Finding of Fact 9. Perez did not know the pair's purported destination, and their choice of route on I-77 South seemed incongruous with travel to Myrtle Beach from either Houston or Louisville. Sgt. Cass had the opportunity to establish reasonable suspicion that criminal activity was afoot, and the trial court made findings of fact and conclusions of law supported by competent evidence.
While the trial court made no findings of fact about either Perez or Defendant's nervousness, Perez can be heard on the audio from Sgt. Cass' patrol vehicle stating she was nervous. However, the trial court's findings of fact demonstrate that Defendant and Perez provided Sgt. Cass with information, or a lack thereof, including various inconsistencies therein, which objectively created a reasonable suspicion. The trial court stated in Finding of Fact 4 that "Perez eventually stated they were coming from Houston, Texas, even though they were traveling south on the interstate," and in Finding of Fact 5 the court found that "Perez could not articulate their destination, even in general terms, even though she was driving the vehicle." The fact that a driver has absolutely no idea where she is headed is markedly different from the Falana confusion over which day a trip began on. In Finding of Fact 7, the trial court found that "Ms. Williams stated they were coming from Kentucky and headed to Club Kryptonite in Myrtle Beach." Perez and Defendant's statements are inconsistent. Further, in Finding of Fact 5, the court found that "Perez further stated that she and the defendant were cousins. In Finding of Fact 8, the court found that "[w]hen asked[,] Williams said that Perez was her cousin and claimed a familial relationship initially, but then later stated they simply called each other cousins based on their close and long term relationship." The trial court's findings of fact demonstrate totality of the circumstances characterized by uncertainties and inconsistences, which are supported by competent evidence and further support the trial court's conclusion that reasonable suspicion justified Defendant's extended detention. Therefore, we affirm.
Affirmed.
Judge BRYANT concurs.
Judge McGEE dissents.