State v. Travis , 245 N.C. App. 120 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-413
Filed: 19 January 2016
Alamance County, Nos. 13 CRS 52783, 52787
STATE OF NORTH CAROLINA
v.
CECIL JACKSON TRAVIS, III
Appeal by defendant from judgment entered 29 October 2014 by Judge A.
Robinson Hassell in Alamance County Superior Court. Heard in the Court of Appeals
7 October 2015.
Roy Cooper, Attorney General, by Thomas J. Campbell, Assistant Attorney
General, for the State.
Leslie Rawls for defendant-appellant.
DAVIS, Judge.
Cecil Jackson Travis, III (“Defendant”) appeals from the judgment entered
upon his convictions of possession of drug paraphernalia, simple possession of a
Schedule IV controlled substance, and possession with intent to manufacture, sell, or
deliver a Schedule II controlled substance. On appeal, he contends that the trial court
erred by denying his motion to suppress. After careful review, we affirm.
Factual Background
On 8 May 2013 at around 2:00 p.m., Officer Chris Header (“Officer Header”), a
vice narcotics officer with the Mebane Police Department, was in his unmarked patrol
vehicle in the parking lot of a post office in downtown Mebane, North Carolina. From
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Opinion of the Court
his vehicle, he observed a van being driven by Defendant pull into the parking lot.
Officer Header knew Defendant as he had previously worked for Officer Header as
an informant and had “purchased narcotics for [him] . . . in a controlled capacity.”
Officer Header then observed the following:
[Defendant] pulled up to a [sic] passenger side of a maroon
SUV. . . . [T]he passenger . . . of the [SUV] roll[ed] down its
window. [Defendant] had his window down and they both
reached out and appeared to exchange something. And just
after the exchange they both returned their arms to the
vehicle[s] and then immediately left. So they were there
less than a minute.
Based on his training and experience as a vice narcotics officer, Officer Header
believed he had witnessed a “[h]and-to-hand” drug transaction in which “narcotics
had been traded for money.” As a result, he sent out a request over his radio for any
nearby patrol officer to stop Defendant’s vehicle.
Lieutenant Jeremiah Richardson (“Lt. Richardson”) was in his office at the
police station in downtown Mebane when he heard Officer Header’s request over his
radio. In response, he left his office, got into his patrol vehicle, and began backing
out of the station parking lot. As he was doing so, he observed Defendant’s van drive
past him.
Lt. Richardson pursued Defendant’s vehicle and ultimately initiated a traffic
stop of the van. A subsequent search of the vehicle led to the discovery of drug
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Opinion of the Court
paraphernalia, less than half an ounce of marijuana, and 26 oxycodone pills. As a
result, Defendant was placed under arrest.
On 27 May 2014, Defendant was indicted for (1) possession of drug
paraphernalia; (2) simple possession of a Schedule IV controlled substance; and (3)
possession with intent to manufacture, sell, or deliver a Schedule II controlled
substance. On 27 October 2014, Defendant filed a motion to suppress all evidence
obtained as a result of the traffic stop based on his assertion that no reasonable
suspicion existed to justify the stop of his vehicle.
A hearing on Defendant’s motion to suppress was held on 29 October 2014
before the Honorable A. Robinson Hassell. At the hearing, the State presented the
testimony of Officer Header and Lt. Richardson. Defendant did not offer any
evidence.
After considering the State’s evidence and the arguments of counsel, the trial
court denied Defendant’s motion. A brief recess was taken during which Defendant
entered into a plea agreement with the State, reserving his right to appeal the trial
court’s denial of his motion to suppress. Upon resumption of the proceedings,
Defendant pled guilty to the charges against him and was sentenced to 5-15 months
imprisonment. The sentence was suspended, and Defendant was placed on 24
months supervised probation. Defendant gave oral notice of appeal in open court.
Analysis
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I. Reasonable Suspicion
Defendant’s first argument on appeal is that his motion to suppress was
improperly denied based on a lack of reasonable suspicion to justify the investigatory
stop of 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).
It is well established that
[t]he Fourth Amendment protects the right of the people
against unreasonable searches and seizures. It is
applicable to the states through the Due Process Clause of
the Fourteenth Amendment. It applies to seizures of the
person, including brief investigatory detentions such as
those involved in the stopping of a vehicle.
Only unreasonable investigatory stops are
unconstitutional. An investigatory stop must be justified
by a reasonable suspicion, based on objective facts, that the
individual is involved in criminal activity.
A court must consider the totality of the
circumstances — the whole picture in determining whether
a reasonable suspicion to make an investigatory stop
exists. 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. The only
requirement is a minimal level of objective justification,
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Opinion of the Court
something more than an unparticularized suspicion or
hunch.
State v. Watkins, 337 N.C. 437, 441-42, 446 S.E.2d 67, 69-70 (1994) (internal citations,
quotation marks, and ellipses omitted); see State v. Watson, 119 N.C. App. 395, 398,
458 S.E.2d 519, 522 (1995) (“[A]n officer’s experience and training can create
reasonable suspicion. Defendant’s actions must be viewed through the officer’s
eyes.”).
In the present case, the trial court’s order contained the following findings of
fact:
1. The State presented two witnesses in this
matter, Investigator Chris Header, Mebane Police
Department and Lieutenant Jeremiah Richardson,
Mebane Police Department.
2. That on May 8, 2013 at 2:00 P.M. Officer
Header, Mebane Police Officer, was sitting in a
stationary, unmarked vehicle and was a member of
the vice/narcotics unit.
3. That this officer was in a position to observe
conduct from a suspect known subjectively to him,
and by him, as someone that he had worked with in
controlled buys and as someone who had worked for
him as an informant involving marijuana and other
controlled substances.
4. That Officer Header testified as to familiarity
with the defendant’s residence and the vehicle or
vehicles used by him or members of his family.
5. That the van the defendant occupied on this
occasion was recognized by this officer as being one
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from the defendant’s family member.
6. That the officer observed the defendant drive
up in this van and park along the passenger side of
a maroon sport utility vehicle.
7. That the officer observed arms from each
vehicle, including one arm of the defendant,
extending to one another and touch hands, without
further specificity as to the nature of the
transactions.
8. That the officer acknowledged his training and
experience of more than five years combined
between the Mebane Police Department and the
Orange County Sheriff’s Department.
9. That the officer testified that in his training
and experience, this appeared to be a hand to hand
transaction in exchange for controlled substances.
10. That the officer testified that after this hand to
hand transaction, both the defendant in his vehicle
and the maroon sport utility vehicle each drove off.
11. That there was no testimony or evidence
presented that the occupants of either vehicle had
gone into or went into the post office at which they
were located.
12. That Officer Header, thereafter, reported the
transaction and requested assistance to stop the
defendant, describing the vehicle he observed the
defendant operating and the direction from which he
had gone and appeared to be traveling.
13. That Lieutenant Richardson further testified
additionally that while in his office at the Mebane
Police Department he received the call in [sic] of
Officer Header, for whom he had been a supervisor
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while overseeing the criminal investigative division
of the Mebane Police Department.
14. That Lieutenant Richardson testified to his
visual confirmation of the vehicle as described by
Officer Header and the occupant described, as well.
15. That Lieutenant Richardson testified as to
independent knowledge of the defendant as well as
the vehicle confirming his visual recognition of each.
16. That both officers testified that no traffic
violations appeared to have occurred in their
presence to otherwise formulate the basis of the
stop.
17. That both officers testified to their knowledge
that the public area of federal property of the post
office in Mebane, North Carolina, in the downtown
area, was not known to be a crime area, but was
known to be a public area where vehicles would come
and go.
18. That after about two-tenths of a mile the
Lieutenant, having entered his vehicle to follow the
defendant, stopped the defendant’s vehicle.
The trial court then made the following conclusions of law:
1. That based upon the totality of the
circumstances, the prior knowledge, particularly of
Officer Header in working with this defendant and
the vehicle, the fact that this defendant was known
to both officers, as well as the vehicle operated by
him, the officers’ training and experience,
specifically Officer Header’s, with respect to
undercover narcotics activity, investigative
techniques, and observations in the field and
otherwise, the officers were in a position to recognize
on their belief (sic) and suspect when criminal
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Opinion of the Court
activity appears before them or appears to have
occurred.
2. That based upon the totality of the
circumstances, under these circumstances, the
suspicions of criminal activity articulated by the
officers on this occasion were objectively reasonable.
While this is a close case, we believe the trial court’s findings of fact support
its conclusion that reasonable suspicion existed to stop Defendant’s vehicle. Officer
Header recognized Defendant as one of his former informants who had previously
engaged in controlled purchases of drugs for him. He observed Defendant pull into
the post office parking lot and park in a space next to the passenger side of a maroon
SUV and then saw “arms from each vehicle, including one arm of the defendant,
extending to one another and touch hands . . . .” Both vehicles then drove off without
the occupants of the two vehicles ever having actually gone into the post office. Based
on his training and experience as a law enforcement officer for more than five years,
Officer Header believed this to be a hand-to-hand transaction in which controlled
substances had been exchanged.
On several prior occasions, we have held that reasonable suspicion existed to
support an investigatory stop where law enforcement officers witnessed acts that they
believed to be transactions involving the sale of illegal drugs. See State v. Mello, 200
N.C. App. 437, 438, 684 S.E.2d 483, 485 (2009) (based on officer’s training and
experience, he believed he had witnessed hand-to-hand controlled substance
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transaction where two individuals in area known for illegal drug activity
“approach[ed] the [defendant’s] vehicle putting their hands into the vehicle”), aff’d
per curiam, 364 N.C. 421, 700 S.E.2d 224 (2010); State v. Carmon, 156 N.C. App. 235,
240-41, 576 S.E.2d 730, 735 (reasonable suspicion existed to conduct investigatory
stop where (1) officer observed defendant in grocery store parking lot “receive a
softball-size package from a man in a conspicuous car at night”; (2) defendant
“appeared to be nervous”; and (3) officer’s “past experience in observing drug
transactions” led him to believe a drug transaction had occurred), aff’d per curiam,
357 N.C. 500, 586 S.E.2d 90 (2003); State v. Summey, 150 N.C. App. 662, 664-67, 564
S.E.2d 624, 626-28 (2002) (officer conducting surveillance of residence in area known
for past drug activity had reasonable suspicion for investigatory stop after observing
“a course of conduct which was characteristic of a drug transaction”; officer saw
defendant’s truck pull up to house and man from house approach and “appear[ ] to
engage in a brief conversation with the driver . . . [and a] few moments later, the man
returned to the yard and the truck drove away”); State v. Clyburn, 120 N.C. App. 377,
378-81, 462 S.E.2d 538, 539-41 (1995) (officer conducting surveillance during evening
in area of known drug activity had reasonable suspicion based on his training and
experience to conduct investigatory stop of defendant where officer observed
defendant and other individuals meet briefly behind vacant duplex and officer “was
of the opinion that he had observed a hand-to-hand drug transaction”).
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Opinion of the Court
Admittedly, as Defendant notes, the present incident took place in broad
daylight in the parking lot of a public building rather than in an area known for drug
activity (as in Mello, Summey, and Clyburn) or at night (as in Carmon and Clyburn).
Moreover, there is no indication that Defendant was even aware of Officer Header’s
presence much less that he displayed signs of nervousness or took evasive action to
avoid Officer Header. However, while courts making a determination of whether
reasonable suspicion existed to justify an investigative stop may certainly take into
account factors such as past criminal activity in the area, time of day, and
nervousness or evasive action by the defendant, none of these individual
circumstances are indispensable to a conclusion that an investigatory stop was
lawful. Rather, courts must consider the totality of the circumstances of each case.
Reasonable suspicion is a less demanding standard than
probable cause and requires a showing considerably less
than preponderance of the evidence. Only some minimal
level of objective justification is required. This Court has
determined that the reasonable suspicion standard
requires that the 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. Moreover, a court
must consider the totality of the circumstances — the
whole picture in determining whether a reasonable
suspicion exists.
State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645 (internal citation, quotation
marks, brackets, and ellipses omitted), cert. denied, 555 U.S. 914, 172 L. Ed. 2d 198
(2008).
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Opinion of the Court
“This process allows officers to draw on their own experience and specialized
training to make inferences from and deductions about the cumulative information
available to them that might well elude an untrained person. While something more
than a mere hunch is required, the reasonable suspicion standard demands less than
probable cause and considerably less than preponderance of the evidence.” State v.
Williams, 366 N.C. 110, 116-17, 726 S.E.2d 161, 167 (2012) (internal citations and
quotation marks omitted).
The actions of Defendant and the occupant of the maroon SUV may or may not
have appeared suspicious to a layperson. But they were sufficient to permit a
reasonable inference by a trained law enforcement officer such as Officer Header that
a hand-to-hand transaction of an illegal substance had occurred. Moreover, Officer
Header knew Defendant and recognized his vehicle, having had past experience with
him as an informant in connection with controlled drug transactions. See id. at 117,
726 S.E.2d at 167 (“Viewed individually and in isolation, any of these facts might not
support a reasonable suspicion of criminal activity. But viewed as a whole by a
trained law enforcement officer who is familiar with drug trafficking . . . the responses
[of the defendant’s accomplice] were sufficient to provoke a reasonable articulable
suspicion that criminal activity was afoot . . . .” (citation, quotation marks, and
ellipses omitted)). While we recognize that a number of entirely innocent
explanations could exist for the conduct observed by Officer Header, that fact alone
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does not necessarily preclude a finding of reasonable suspicion. See id. (“A
determination that reasonable suspicion exists need not rule out the possibility of
innocent conduct.” (citation, quotation marks, and ellipses omitted)).
In sum, on these facts we cannot say that the determination made by Officer
Header based on the conduct he observed in accordance with his training and
experience failed to rise beyond the level of an unparticularized suspicion or a mere
hunch. Accordingly, the trial court did not err in finding that based upon the totality
of the circumstances reasonable suspicion existed to stop Defendant’s vehicle.
II. Findings of Fact
In his final argument, Defendant asserts that several of the findings of fact
made by the trial court were merely recitations of testimony by the State’s witnesses.
Specifically, he contends that because findings of fact 4, 9, 10, 13, 14, 15, 16, and 17
simply recite the testimony of Officer Header and Lt. Richardson they are not proper
“findings” sufficient to support the trial court’s conclusions of law. Defendant is
correct as a general proposition that “[a]lthough . . . recitations of testimony may
properly be included in an order denying suppression, they cannot substitute for
findings of fact resolving material conflicts.” State v. Lang, 309 N.C. 512, 520, 308
S.E.2d 317, 321 (1983). The flaw in Defendant’s argument, however, is that such
recitation of testimony is insufficient only where a material conflict actually exists on
that particular issue.
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Opinion of the Court
[The defendant] argues that to the extent findings of fact 4,
6, and 8 summarize defendant’s testimony, they are not
proper findings of fact because they are mere recitations of
testimony, citing Long v. Long, 160 N.C. App. 664, 588
S.E.2d 1 (2003), and Chloride, Inc. v. Honeycutt, 71 N.C.
App. 805, 323 S.E.2d 368 (1984). In those cases, the
findings were inadequate because the trial court did not,
with a mere recitation of testimony, resolve the conflicts in
the evidence and actually find facts. That is not, however,
the case here.
Praver v. Raus, 220 N.C. App. 88, 92, 725 S.E.2d 379, 382 (2012) (select internal
citation omitted).
Indeed, where there is no material conflict in the evidence as to a certain fact,
the trial court is not required to make any finding at all as to that fact. See State v.
Smith, 135 N.C. App. 377, 380, 520 S.E.2d 310, 312 (1999) (“After conducting a
hearing on a motion to suppress, a trial court should make findings of fact that will
support its conclusions as to whether the evidence is admissible. If there is no conflict
in the evidence on a fact, failure to find that fact is not error. Its finding is implied
from the ruling of the court.” (citation and quotation marks omitted)).
Here, Defendant has not referred us to the existence of any material conflicts
in the evidence concerning the recited testimony set out in findings 4, 9, 10, 13, 14,
15, 16, or 17. See State v. Baker, 208 N.C. App. 376, 384, 702 S.E.2d 825, 831 (2010)
(“[W]e hold that, for purposes of [a motion to suppress], a material conflict in the
evidence exists when evidence presented by one party controverts evidence presented
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by an opposing party such that the outcome of the matter to be decided is likely to be
affected.”). Therefore, Defendant’s argument on this issue is overruled.1
Conclusion
For the reasons stated above, we affirm the trial court’s order denying
Defendant’s motion to suppress.
AFFIRMED.
Judges STEPHENS and STROUD concur.
1 We do, however, take this opportunity to remind the trial courts of this State that even with
regard to undisputed facts the better practice when entering a written order ruling on a motion to
suppress is to make actual findings based on the testimony of witnesses rather than merely reciting
the testimony of those witnesses.
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