State v. Smith ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NO. COA14-193
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
STATE OF NORTH CAROLINA
v. Durham County
No. 12 CRS 55506
SHAUN SMITH
Appeal by defendant from order and judgment entered 30
August 2013 by Judge Paul C. Ridgeway in Durham County Superior
Court. Heard in the Court of Appeals 13 August 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Ward Zimmerman, for the State.
Farber Law Firm, P.L.L.C., by Sarah Jessica Farber for
defendant.
ELMORE, Judge.
After Shaun Smith’s (defendant) motion to suppress for lack
of reasonable suspicion was denied by the trial court, he pled
guilty pursuant to Alford on 30 October 2013 to possession with
the intent to manufacture, sell or deliver a schedule VI
controlled substance and maintaining a vehicle for a controlled
substance. The convictions were consolidated into one judgment
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at sentencing, and defendant received a suspended sentence of 4-
14 months imprisonment with 24 months of supervised probation.
Defendant preserved his right to appellate review of the motion
to suppress pursuant to N.C. Gen. Stat. § 15A-979(b). After
careful consideration, we affirm the trial court’s order.
I. Facts
On 6 June 2012, Officer K.A. Schooley and Officer E.J.
Jeffries (collectively “the officers”) of the Durham Police
Department drove to the parking lot of the Durham Housing
Authority (DHA) at 131 Commerce Street in Durham (the parking
lot) to serve a warrant on a nearby apartment resident. The
officers parked in the parking lot next to a green Honda Accord,
and they noticed defendant asleep in the driver’s seat. The
officers walked to the nearby apartment to serve the unrelated
warrant and returned to their patrol car. At that time, the
officers recognized defendant from his involvement in previous
drug activity and an encounter in the same parking lot a day
prior. After reviewing the Honda’s title to confirm that it did
not belong to defendant, Officer Schooley “approached the Honda
and knocked on the window. The [defendant] . . . opened the
door and stepped out.” She then asked defendant why he was in
the parking lot and whether his vehicle contained narcotics.
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Defendant indicated that he “was waiting to visit someone” and
did not have any narcotics inside the vehicle. He also denied
Officer Schooley’s request for a consent search of the vehicle.
At that point, Officer Schooley called for a canine officer, and
the canine officer arrived with the canine approximately ten
minutes later. Just before the canine began to sniff the
vehicle, Officer Schooley asked defendant to stand with her
behind the vehicle to create a distance between the canine and
defendant. The canine then “gave a positive indicat[ion] of
narcotics in the vehicle[,]” and the officers searched the
vehicle. The search yielded 122 grams of marijuana, over $500
cash, an assault rifle, and ammunition.
II. Analysis
a.) Findings of fact
First, defendant argues that the trial court’s findings of
fact in support of its legal conclusion are not supported by
competent evidence. We disagree.
“In reviewing a trial judge’s findings of fact, we are
‘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. Williams, 362 N.C. 628,
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632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306
N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v.
Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d
429, 434 (2010) (“‘[F]indings of fact made by the trial judge
are conclusive on appeal if supported by competent evidence,
even if . . . there is evidence to the contrary.’” (quoting
Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01,
655 S.E.2d 362, 369 (2008))).
The trial court concluded that reasonable suspicion existed
based on six findings of fact:
(1) the presence of the Defendant at a high
drug trafficking site; (2) the officer’s
knowledge of drug-related complaints
involving Defendant in other instances; (3)
the knowledge of the officers from the day
before of Defendant’s association with known
gang members and others engaged in drug
trafficking; (4) the presence of the
Defendant on the prior day at the same site
when a 911 tip reported possible drug
activity; (5) the presence of the Defendant
at the Durham Housing Authority parking area
where, just one day prior, the Defendant had
been warned that he was not permitted to
loiter without a resident of the apartments
being present; and (6) the use by Defendant
of a vehicle not registered in his name.
Each of these findings are supported by competent evidence.
With regard to Finding (1), Officer Schooley testified that
defendant was found in a parking lot that is “a Crip area. . . .
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[I]ndividuals hang out in the parking lots that do not live
there and sell narcotics” on a daily basis “around the clock.”
In addition to the drug and gang activity, Officer Schooley
stated that she frequently receives complaints in that location
for loitering, trespassers, and loud noise. Officer Jeffries
also acknowledged that complaints about drug sales in the
parking lot occur “during the day and also in the evening[.]”
In support of finding (2), the evidence shows that Officer
Jeffries “knew [defendant] from dealings before -- maybe prior
to June 5th. [Defendant] and his cousins were loitering at
another housing complex in East Durham which was Hoover Road
Apartment, which [officers] had been given -- receiving several
complaints about loitering and drug activity in that apartment
complex.”
Findings (3) and (4) are supported by the officers’
testimony that on 5 June 2012, one day before defendant’s
arrest, the officers responded to the parking lot after
receiving drug complaints in that location. When they arrived
at the parking lot, defendant was present with Malick and
Malachi Eubalis, both of whom were Crip gang members and known
drug dealers. Officer Schooley “personally participated in a
drug raid on Ashe Street with [the Eubalis’]” in the past.
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In support of Finding (5), the evidence shows that
defendant was found in the parking lot on 6 June 2012 despite
trespass warnings and being told the day before that “if [he
wasn’t] visiting somebody, . . . [he wasn’t] allowed to just be
loitering in the parking lot” because the DHA rules require that
a visitor must be present with a resident while on the parking
lot premises.
Finally, with regard to Finding (6), Officer Schooley
observed defendant in a green Honda Accord and discovered that
the license plate of the vehicle actually belonged to a female,
and the location of the vehicle’s registered address was on the
opposite side of Durham.
Each of the trial court’s findings of fact are supported by
competent evidence. Thus, they are binding on this appeal.
b.) Reasonable Suspicion
Next, we must determine whether the trial court’s findings
of fact support its conclusion of law that reasonable suspicion
existed to seize defendant “for the period of time sufficient to
allow for the canine unit to arrive on the scene (ten minutes)
and for the canine to walk around the vehicle[.]” We first note
that the order is devoid of facts sufficient to actually
determine whether defendant’s interaction with the officers
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while waiting for the canine to arrive and walk around the
vehicle was merely a consensual encounter or a seizure under the
4th Amendment requiring reasonable suspicion. However, assuming
arguendo we adopt defendant’s position that the officers seized
defendant, we nevertheless hold that the seizure was supported
by reasonable suspicion.
“The trial court’s conclusions of law . . . are fully
reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539
S.E.2d 625, 631 (2000). “The Fourth Amendment, applicable to
the states through the Fourteenth Amendment, protects the right
of people to be free from unreasonable searches and seizures.
This protection applies to seizures of the person, including
brief investigatory detentions.” State v. Campbell, 188 N.C.
App. 701, 704-05, 656 S.E.2d 721, 724 (2008) (citations and
quotation marks omitted). Such an investigatory detention is
lawful if a police officer possesses “reasonable suspicion,
based on objective facts, that the individual is involved in
criminal activity.” Id. at 705, 656 S.E.2d at 724-25 (citation
and quotation marks omitted). We consider the totality of the
circumstances “through the eyes of a reasonable, cautious
officer, guided by his experience and training at the time he
determined to detain defendant.” State v. Myles, 188 N.C. App.
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42, 47, 654 S.E.2d 752, 756, writ allowed, 362 N.C. 242, 660
S.E.2d 537 (2008) and aff'd, 362 N.C. 344, 661 S.E.2d 732 (2008)
(citation and quotation marks omitted). The State’s burden to
demonstrate reasonable suspicion is a “less demanding standard
than probable cause and requires a showing considerably less
than preponderance of the evidence.” State v. Styles, 362 N.C.
412, 414, 665 S.E.2d 438, 439 (2008) (citation and quotation
marks omitted). However, the State must show “a minimal level
of objective justification, something more than an
unparticularized suspicion or hunch.” State v. Watkins, 337
N.C. 437, 442, 446 S.E.2d 67, 70 (1994) (citation and quotation
marks omitted).
Here, the trial court’s findings of fact indicate that the
officers found defendant in a high-crime area, officer Jeffries
knew defendant from prior instances involving illicit drug
activity, and defendant was present with other known gang
members and drug dealers one day prior to his arrest in the same
location when officers responded to the scene due to drug
complaints. Moreover, defendant told the officers that he was
waiting in the vehicle to visit people in the apartment complex,
even though defendant was asleep in the vehicle when the
officers initially arrived, and the officers did not see any
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individual exit the apartments to approach defendant at any
point. Finally, defendant’s use of a vehicle registered in
another female’s name was significant because officer Schooley
testified that based on her training and experience, males
involved in illegal drug activity frequently use vehicles titled
in other people’s names “whether it’s their girlfriend or wife .
. . to avoid detection” by law enforcement.
The officers properly considered these factors in totality
to determine the presence of reasonable suspicion. See State v.
Garcia, 197 N.C. App. 522, 529, 677 S.E.2d 555, 559 (2009)
(stating that the defendant’s presence in a high-crime area is a
factor relevant in determining reasonable suspicion); see also
State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522
(1995) (holding that officers had reasonable suspicion to detain
the defendant for drugs, in part, because they knew the
defendant had previously been arrested for similar crimes in the
past); State v. McClendon, 350 N.C. 630, 637, 517 S.E.2d 128,
133 (1999) (asserting that the defendant’s responses to an
officer’s questions may contribute to reasonable suspicion).
Thus, the trial court did not err in determining that the
officers had reasonable suspicion to seize defendant while
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waiting for the canine unit to arrive and walk around the
vehicle.
III. Conclusion
In sum, we affirm the trial court’s order denying
defendant’s motion to suppress because the trial court’s
findings of fact are based on competent evidence, and the
findings support the trial court’s legal conclusion that the
officers possessed reasonable suspicion to seize defendant while
waiting for the canine unit to arrive and walk around the
vehicle.
Affirmed.
Judges CALABRIA and STEPHENS concur.
Report per Rule 30(e).