State v. Dickenson ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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
    A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .
    NO. COA13-1106
    NORTH CAROLINA COURT OF APPEALS
    Filed:    15 April 2014
    STATE OF NORTH CAROLINA
    v.                                 Mecklenburg County
    Nos. 10 CRS 200906–07
    JOSEPH ASHLEY DICKENSON, JR.,
    Defendant.
    Appeal by defendant from judgment entered 13 November 2012
    by Judge Linwood O. Foust in Mecklenburg County Superior Court.
    Heard in the Court of Appeals 20 February 2014.
    Roy Cooper, Attorney General, by             David    Shick,   Associate
    Attorney General, for the State.
    Staples Hughes, Appellate Defender, by Mary Cook, Assistant
    Appellant Defender, for defendant–appellant.
    DAVIS, Judge.
    Defendant     Joseph     Ashley     Dickenson,     Jr.    (“Defendant”)
    appeals from a judgment entered upon a guilty plea to one count
    of Level One trafficking in marijuana in violation of 
    N.C. Gen. Stat. § 90-95
    (h)(1)(a).          On appeal, he argues that the trial
    court erred in denying his motion to suppress evidence obtained
    pursuant to a stop of his vehicle by law enforcement officers.
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    After careful review, we affirm the trial court’s denial of the
    motion to suppress.
    Factual Background
    The evidence offered by the State at trial tended to show
    the following.       On 6 January 2010, at around 8:00 p.m., Officer
    Nathan Watkins (“Officer Watkins”) and Officer Michael Sullivan
    (“Officer   Sullivan”)       with     the    Charlotte–Mecklenburg       Police
    Department (“CMPD”) were conducting surveillance of a residence
    in   response   to    a   complaint   from    a   person   who   had   observed
    “possible   illegal       drug   transactions”     involving     a   number   of
    people and parcels moving in and out of the residence on a
    regular basis.        Officer Watkins was surveilling the residence
    from a distance within 100 yards of the site, while Officer
    Sullivan conducted his surveillance of the residence in plain
    clothes from an unmarked vehicle.
    Both officers observed a man who was later identified as
    Defendant remove two duffle bags or suitcases from the residence
    and place one of the bags into the trunk of a white, four-door
    Acura Legend automobile and the other into the back seat of the
    same vehicle.        The officers then both observed Defendant drive
    away from the residence.
    Officer Sullivan began to follow Defendant’s car in his
    unmarked vehicle as Defendant           drove     onto I-485.        As Officer
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    Sullivan followed Defendant, he communicated by radio to other
    officers a description of Defendant’s vehicle, the license plate
    number, and the direction in which Defendant was travelling.
    Officer Sullivan also communicated to the other officers his
    observation that Defendant was not wearing a seatbelt, which he
    observed as Defendant was approaching the exit ramp to merge
    onto I-485.
    Officer Michael Griffin (“Officer Griffin”) testified that
    as he and a fellow officer were riding together in their patrol
    car, he heard Officer Sullivan communicate over the radio that
    Defendant was operating a white, four-door 1992 Acura Legend
    with Tag     Number YYM9580, that Defendant was travelling at a
    particular location along I-485, and that Officer Sullivan had
    personally    observed   that   Defendant    was   operating    his   vehicle
    while not wearing his seatbelt.         This information was also heard
    over the radio by Officer Jonathan Tobbe (“Officer Tobbe”), who
    was communicating with several officers by both telephone and
    radio during the surveillance          of the residence        and who also
    testified that Officer Sullivan had communicated over the radio
    his observation that Defendant was not wearing his seatbelt.
    As a result of         the information communicated to them by
    Officer Sullivan, Officer Griffin and his partner located and
    followed     Defendant’s    vehicle     on   I-485.     Officer       Griffin
    -4-
    continued to follow Defendant as Defendant exited I-485.                              While
    stopped   directly        behind      Defendant’s       vehicle    at   a    red   light,
    Officer      Griffin      personally       observed      that     Defendant     was    not
    wearing      his    seatbelt    and     that      the   belt    “was    actually      just
    hanging.”          Officer Griffin         then   initiated a traffic stop               of
    Defendant’s        vehicle.        Upon    approaching       the    vehicle,       Officer
    Griffin noticed an odor of marijuana, which he said “was very
    strong,      it    made   [his]     eyes    water,      it   was    strong.”          After
    determining        that    Defendant        was    driving      with    a    “canceled”
    driver’s license, Officer Griffin placed Defendant under arrest
    and conducted a search of Defendant’s vehicle, in which he found
    the first of the two cases that Defendant had placed in the
    vehicle, containing what Officer Griffin estimated to be thirty
    pounds of marijuana.
    Defendant was charged in bills of indictment with one count
    each    of        trafficking      by      possessing        and     trafficking        by
    transporting 50 pounds or more but less than 2,000 pounds of
    marijuana, a Schedule VI controlled substance under 
    N.C. Gen. Stat. § 90-94
    (1)         —   both     Level     Two    trafficking        offenses    in
    violation of 
    N.C. Gen. Stat. § 90-95
    (h)(1)(b) — and with one
    count of possession with intent to sell or deliver more than one
    and one-half ounces of marijuana in violation of 
    N.C. Gen. Stat. § 90-95
    (a)(1).
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    Defendant       filed      in     Mecklenburg   County        Superior   Court   a
    motion to suppress the “large sum of money” found in his pocket,
    the suitcases found in the backseat and trunk of his vehicle
    that    were    alleged      to     contain    marijuana,       and    the   statements
    Defendant made to a detective in the VICE and Narcotics Unit of
    the    CMPD    in    which     he      “allegedly    admitted    to    possessing   the
    alleged marijuana.”             In his motion, Defendant argued that the
    officers who initiated the traffic stop had no articulable facts
    upon which they could have relied in order to establish a proper
    basis   for    stopping        Defendant’s      vehicle.        After    conducting     a
    hearing,       Judge     Hugh       B.     Lewis     entered     an     order   denying
    Defendant’s motion.
    Following the denial of his motion to suppress, Defendant
    pled guilty to one count of Level One trafficking in marijuana
    in violation of 
    N.C. Gen. Stat. § 90-95
    (h)(1)(a), and the State
    dismissed      the     remaining         charges.       In     his    plea   agreement,
    Defendant expressly reserved the right to appeal the denial of
    his motion to suppress.                  On 13 November 2012, the trial court
    entered its judgment and Defendant was sentenced to a term of 25
    to 30 months imprisonment.                Defendant gave timely written notice
    of appeal.
    Analysis
    Defendant argues on appeal that the trial court erred by
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    denying     his    motion     to     suppress        because       the     officers    who
    initiated    the    stop    of     his   vehicle      did    not    have     reasonable,
    articulable suspicion to justify an investigatory traffic stop.
    Alternatively, Defendant argues that the trial court erred by
    failing to make findings of fact that “resolve the conflicts” in
    the evidence presented at the hearing on the motion.
    “In North Carolina, a defendant’s right to pursue an appeal
    from a criminal conviction is a creation of state statute.”
    State v. McBride, 
    120 N.C. App. 623
    , 624, 
    463 S.E.2d 403
    , 404
    (1995), aff’d per curiam, 
    344 N.C. 623
    , 
    476 S.E.2d 106
     (1996).
    Under   N.C.      Gen.   Stat.       § 15A-1444(e),         “a   defendant      who    has
    entered a plea of guilty is not entitled to appellate review as
    a matter of right, unless the defendant is appealing sentencing
    issues or the denial of a motion to suppress, or the defendant
    has made an unsuccessful motion to withdraw the guilty plea.”
    State v. Pimental, 
    153 N.C. App. 69
    , 73, 
    568 S.E.2d 867
    , 870
    (emphasis added), disc. review denied, 
    356 N.C. 442
    , 
    573 S.E.2d 163
     (2002); see also N.C. Gen. Stat. § 15A-979(b) (2013) (“An
    order   finally     denying      a    motion    to    suppress      evidence     may   be
    reviewed upon an appeal from a judgment of conviction, including
    a judgment entered upon a plea of guilty.”).                             Nonetheless, “a
    defendant bears the burden of notifying the                          [S]tate and the
    trial court during plea negotiations of the intention to appeal
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    the denial of a motion to suppress, or the right to do so is
    waived after a plea of guilty.”                McBride, 
    120 N.C. App. at 625
    ,
    
    463 S.E.2d at 404
    .          Because Defendant specifically reserved his
    right to appeal when he entered his guilty plea, his appeal is
    properly before us.
    Our    review   of   a   trial    court’s       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. Cooke, 
    306 N.C. 132
    ,   134,    
    291 S.E.2d 618
    ,   619     (1982).      An   appellate      court
    “accords great deference” to the trial court in this respect
    “because it is entrusted with the duty to hear testimony, weigh
    and resolve any conflicts in the evidence, find the facts, and,
    then based upon those findings, render a legal decision, in the
    first instance, as to whether or not a constitutional violation
    of some kind has occurred.”             Id. at 134, 
    291 S.E.2d at
    619–20.
    Unchallenged findings of fact “are presumed to be supported by
    competent evidence and are binding on appeal.”                    State v. Baker,
    
    312 N.C. 34
    , 37, 
    320 S.E.2d 670
    , 673 (1984) (internal quotation
    marks omitted).        In the present case, Defendant does not argue
    that    the    court’s      findings     of     fact     fail    to   support       its
    -8-
    conclusions of law.         Therefore, we limit our review accordingly.
    “[A] traffic stop is constitutional if the officer has a
    ‘reasonable,     articulable      suspicion       that       criminal       activity    is
    afoot.’”      State v. Barnard, 
    362 N.C. 244
    , 246–47, 
    658 S.E.2d 643
    ,    645   (quoting      Illinois      v.    Wardlow,      
    528 U.S. 119
    ,   123,
    
    145 L. Ed. 2d 570
    ,    576    (2000)),        cert.       denied,    555 U.S.       __,
    
    172 L. Ed. 2d 198
     (2008).              “This Court has determined that the
    reasonable suspicion standard 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.’”       
    Id. at 247
    ,    
    658 S.E.2d at 645
        (alteration       and
    omission in original) (quoting State v. Watkins, 
    337 N.C. 437
    ,
    441, 
    446 S.E.2d 67
    , 70 (1994), appeal after remand, 
    120 N.C. App. 804
    , 
    463 S.E.2d 802
     (1995)).                 “Reasonable suspicion is a
    ‘less    demanding    standard        than   probable       cause    and     requires   a
    showing considerably less than preponderance of the evidence.’”
    
    Id.
     (quoting Wardlow, 
    528 U.S. at 123
    , 
    145 L. Ed. 2d at
    575–76).
    However, “[i]f the officer making the investigatory stop
    (the    second   officer)      does    not     have   the     necessary      reasonable
    suspicion,” State v. Battle, 
    109 N.C. App. 367
    , 370, 
    427 S.E.2d 156
    , 159 (1993), the stop “may nonetheless be made if the second
    officer    receives     from    another      officer     (the       first    officer)   a
    -9-
    request to stop the vehicle, and if, at the time the request is
    issued, the first officer possessed a reasonable suspicion that
    criminal conduct had occurred, was occurring, or was about to
    occur.”      
    Id.
     at 370–71, 
    427 S.E.2d at 159
    .                      Moreover, where
    there is “no request from the first officer that the second
    officer    stop    a     vehicle,     the    collective          knowledge    of   both
    officers may form the basis for reasonable suspicion by the
    second officer, if and to the extent the knowledge possessed by
    the first officer is communicated to the second officer.”                           Id.
    at 371, 
    427 S.E.2d at 159
    .
    Finally, “[i]n North Carolina an officer may stop and issue
    a citation to any motorist who he has probable cause to believe
    has committed a misdemeanor or infraction.”                      State v. Hamilton,
    
    125 N.C. App. 396
    , 400, 
    481 S.E.2d 98
    , 100 (internal quotation
    marks     omitted),      appeal     dismissed       and    disc.     review    denied,
    
    345 N.C. 757
    , 
    485 S.E.2d 302
     (1997).                      Because 
    N.C. Gen. Stat. § 20-135
    .2A(a) requires that “each occupant of a motor vehicle
    manufactured      with    seat    belts     shall    have    a    seatbelt    properly
    fastened about his or her body at all times when the vehicle is
    in forward motion on a street or highway in this State,” 
    N.C. Gen. Stat. § 20-135
    .2A(a) (2013), “[a]ny person violating this
    statute commits an infraction.”              Hamilton, 125 N.C. App. at 400,
    
    481 S.E.2d at 100
    ; see also 
    N.C. Gen. Stat. § 20-135
    .2A(e).
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    In the present case, the trial court made the following
    findings of fact:
    1.   That the above-named Defendant was
    stopped on January 06, 2010, at or near
    I-485 and University City Blvd. in
    Mecklenburg    County    by   Officer   MA
    Griffin of the CMPD for failure to wear
    a seat belt pursuant to 
    N.C. Gen. Stat. § 20-135.2
    (a)(e)    and     that   Officer
    Golshani   was    riding    with   Officer
    Griffin.
    2.   That prior to stopping the Defendant’s
    vehicle,   Officer    Griffin   received
    information via radio from CMPD Officer
    Sullivan,   who   indicated   that   the
    Defendant was driving without his seat
    belt.
    3.   That Officer Sullivan was able to
    provide   Officer   Griffin    with   a
    description of the Defendant’s vehicle,
    along with a tag number and exact
    location.
    4.   That Officer Griffin was able to locate
    the Defendant’s vehicle based on this
    information.
    5.   That Officer Griffin pulled up behind
    the Defendant’s vehicle when it was
    stopped at a red light and was able to
    observe himself that the Defendant was
    not wearing his seat belt.
    The trial court then made the following conclusions of law:
    1.   That this matter is before the court on
    the Defendant’s Motion to Suppress
    based on violation of the Defendant’s
    Constitutional Rights under the U.S.
    Constitution and the Constitution of
    North Carolina[.]
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    2.     That pursuant to State v[.] Styles,
    362 N.C. App[.] 412, 665 S.E.2d[] 438,
    reasonable    suspicion   existed   for
    Officer Griffin to conduct a traffic
    stop on the defendant based on his
    observations that he was not wearing a
    seat belt as well as the information he
    received from Officer Sullivan.
    3.     That an objective standard, rather than
    a subjective standard, must be applied
    to   determine the reasonableness of
    police   action  related   to  probable
    cause.    State v. McClendon, 
    350 N.C. 630
    [,] 
    517 S.E.2d 128
    .
    4.     That,   therefore,  the   traffic  stop
    conducted on [the] vehicle in which the
    Defendant was driving did not violate
    his Constitutional rights under the
    Fourth Amendment proscription against
    unreasonable seizures.
    Our review of the record reveals that competent evidence
    existed to support the trial court’s findings of fact, which
    support its conclusions of law.           Officer Griffin testified that
    prior to initiating        the stop of Defendant’s vehicle, he had
    personally observed that Defendant was not wearing his seatbelt
    and that the belt “was actually just hanging,” both as Defendant
    was   exiting   off   of   I-485    and   when   the   officer   was   stopped
    directly behind Defendant at the traffic light at the end of the
    exit ramp of the interstate.              Additionally, Officer Sullivan
    testified that he, too, observed that Defendant was driving on
    I-485   without    wearing    his     seatbelt,    which    information    he
    communicated over the radio to his fellow officers and which
    -12-
    information was heard by and corroborated through the testimony
    of Officers Griffin and Tobbe.                    Furthermore, Officers Griffin
    and Tobbe testified that Officer Sullivan also communicated the
    description, license plate, and location of Defendant’s vehicle,
    which information enabled Officer Griffin to locate Defendant’s
    vehicle as he travelled along I-485.
    A     careful     review     of     Defendant’s       argument    on      appeal
    demonstrates that he does not dispute that the record includes
    this       evidence    or    that   such     evidence    supports       the    court’s
    findings of fact.           Instead, Defendant challenges the credibility
    of this evidence and argues that a video recording taken from
    the dashboard-mounted camera in Officer Griffin’s patrol car —
    which was introduced by the State at the hearing on Defendant’s
    motion to suppress            —   contradicts the testimony         given by the
    officers      at   the      hearing.       However,     as   Defendant        concedes,
    “[w]eighing 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.”                   State v. Veazey, 
    201 N.C. App. 398
    , 402, 
    689 S.E.2d 530
    , 533 (2009), disc. review denied,
    
    363 N.C. 811
    , 
    692 S.E.2d 876
     (2010).
    Nevertheless, Defendant urges this Court to conclude that
    the dashboard camera video recording indisputably demonstrates
    that the trial court’s findings of fact were not supported by
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    competent evidence, relying on Scott v. Harris, 
    550 U.S. 372
    ,
    
    167 L. Ed. 2d 686
     (2007), for support.                    In Scott, the United
    States    Supreme   Court    considered        the   denial     of   a    motion   for
    summary    judgment   that    was      brought    based    on   an    assertion     of
    qualified immunity.         
    Id. at 376
    , 
    167 L. Ed. 2d at 691
    .                    While
    reviewing whether the lower courts had properly determined that
    the movant was not entitled to qualified immunity, the Court
    stated that “[w]hen opposing parties tell two different stories,
    one of which is blatantly contradicted by the record, so that no
    reasonable jury could believe it, a court should not adopt that
    version of the facts for purposes of ruling on a motion for
    summary   judgment.”        
    Id. at 380
    ,     
    167 L. Ed. 2d at 694
    .     The
    Supreme Court proceeded to determine that “Respondent’s version
    of events [wa]s so utterly discredited by the record that no
    reasonable jury could have believed him,” 
    id.,
     and that “[t]he
    Court of Appeals should not have relied on such visible fiction;
    it should have viewed the facts in the light depicted by the
    videotape.”    
    Id.
     at 380–81, 
    167 L. Ed. 2d at 694
    .
    Here, Defendant insists that — as in Scott — the video
    recording taken from Officer Griffin’s dashboard camera belies
    the testimony of both Officer Sullivan and Officer Griffin in
    two ways.      First,   Defendant claims             that the video        recording
    irrefutably shows that it was too dark for the officers to have
    -14-
    observed that Defendant was not wearing his seatbelt.                        Second,
    Defendant asserts that the transcript of the video recording
    shows that Officer Griffin was “‘trying to come up with’ any
    reason to stop [Defendant]” and that the seatbelt violation that
    served as the basis for the investigatory stop was pretextual.
    With respect to Defendant’s second assertion, it has long
    been   recognized     that    “it    is     immaterial    to    Fourth      Amendment
    analysis that the officer may have had ulterior motives for the
    traffic stop.”        Hamilton, 125 N.C. App. at 399, 
    481 S.E.2d at 100
        (internal    quotation       marks    omitted);    see     also      State   v.
    McClendon,    
    350 N.C. 630
    ,    635,        
    517 S.E.2d 128
    ,    131    (1999)
    (“[P]olice action related to probable cause should be judged in
    objective    terms,    not    subjective         terms.       Provided      objective
    circumstances justify the action taken, any ulterior motive of
    the officer is immaterial.” (internal quotation marks omitted)).
    Therefore,    Defendant’s       attempts          to   question       the     motives
    underlying Officer Griffin’s investigatory stop of Defendant’s
    vehicle are not relevant to our analysis.
    With respect to Defendant’s first assertion, upon careful
    review of the video recording in the record before us, we are
    not persuaded that this video so irrefutably contradicts the
    evidence presented to the trial court so as to have rendered the
    officers’ testimony impossible.              Rather, the inferior quality of
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    the   intermittently         blurred      images       from     the    video     recording
    precludes       us    from   determining        whether       the     night’s      darkness
    rendered it impossible for Officers Griffin and Sullivan to see
    a swinging, unfastened seatbelt in Defendant’s vehicle either
    directly or with the aid of the ambient light from passing cars
    on the interstate and at the traffic light.                           Thus, we conclude
    that Scott is factually distinguishable from the present case
    because, unlike the video recording in Scott, the video in the
    record currently before us did not “so utterly discredit[]” the
    testimony of the officers upon which the trial court relied in
    making    its    findings       of   fact.       See    Scott,        
    550 U.S. at 380
    ,
    
    167 L. Ed. 2d at 694
    ; cf. 
    id.
     at 378–79, 
    167 L. Ed. 2d at 693
    (“[R]eading the lower court’s opinion, one gets the impression
    that respondent, rather than fleeing from police, was attempting
    to pass his driving test . . . . The videotape tells quite a
    different story.”).
    Here, the State offered competent evidence that prior to
    initiating       his    investigatory          stop     of     Defendant’s         vehicle,
    Officer    Griffin       personally       observed       that      Defendant       was    not
    wearing    his       seatbelt    while    operating          the    vehicle,     and     that
    Officer    Sullivan       observed       and   communicated           the   same    to   his
    fellow    officers,      including       Officer       Griffin.        Accordingly,        we
    hold the trial court did not err when it determined that Officer
    -16-
    Griffin’s investigatory stop of Defendant’s vehicle was based on
    reasonable, articulable suspicion.
    Defendant next argues that the trial court’s order denying
    his motion to suppress fails to contain sufficient findings of
    fact because the court’s findings did not address the “material
    conflict” in the evidence presented by “the conflicting video
    evidence.”   However, as discussed above, we are not persuaded
    that the video recording from Officer Griffin’s dashboard camera
    materially conflicted with the testimony given by the officers
    at the hearing.   Therefore, because no material conflict in the
    evidence exists, we cannot say that the trial court erred in
    denying Defendant’s motion to suppress.
    Conclusion
    For the reasons stated above, we affirm the trial court’s
    order denying Defendant’s motion to suppress.
    AFFIRMED.
    Judges CALABRIA and STROUD concur.
    Report per Rule 30(e).