State v. Parker ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-655
No. COA21-519
Filed 4 October 2022
Guilford County, Nos. 17CRS91797, 19CRS75852-55, 19CRS77074
STATE OF NORTH CAROLINA
v.
KYLE EARL PARKER, Defendant.
Appeal by defendant from order entered 19 January 2021 by Judge Andrew
Heath and from judgments entered 27 January 2021 by Judge William A. Wood II in
Superior Court, Guilford County. Heard in the Court of Appeals 10 May 2022.
Attorney General Joshua H. Stein, by Assistant Attorney General Neal T.
McHenry, for the State.
Shawn R. Evans for defendant-appellant.
STROUD, Chief Judge.
¶1 Defendant Kyle Earl Parker appeals from two judgments for attempted heroin
trafficking by possession, possession of a firearm by a felon, and other charges entered
following guilty pleas, one of which was an “Alford guilty plea,” that preserved his
right to appeal an order denying his Motion to Suppress. Pursuant to his plea
arrangement, Defendant also appeals the order denying his Motion to Suppress.
Because (1) the trial court’s Findings of Fact are supported by competent evidence,
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2022-NCCOA-655
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(2) the area adjacent to a gas pump at a service station is a public vehicular area
under North Carolina General Statute § 20-4.01(32) (eff. 12 July 2017 to 20 June
2019) and (3) the trial court’s Findings of Fact support its Conclusions of Law finding
probable cause, we affirm the trial court’s order denying the Motion to Suppress.
I. Background
¶2 As to the drug and firearm possession charges at issue in this appeal,1 the
State’s evidence from the suppression hearing tended to show Detective King and
Master Corporal R.S. Cole of the Guilford County Sheriff’s Office were part of a
narcotics investigation into “several folks” including Defendant and Ms. Dalya Van.
The investigation began at the start of May 2019 and initially focused on Ms. Van
and others because a “confidential and reliable informant” made a series of
“controlled purchases of illegal narcotics,” including heroin, “from Ms. Van and
possibly others.”
¶3 As part of this investigation, on 28 May 2019 the informant contacted Ms. Van
about purchasing a kilogram of heroin, with Corporal Cole listening on speaker
phone. During this conversation, the informant arranged to meet Ms. Van at a hotel
to get a sample of the drugs. At the hotel, Ms. Van joined the informant in their car,
1The other conviction consolidated in the judgment is for malicious conduct by a prisoner.
This charge was from an “unrelated 2017 case.” Since that charge is unrelated to the
suppression order and the drug and firearms convictions it supports on appeal here, we do
not discuss the malicious conduct charge any further.
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and they traveled, with police officers including Detective King following, to
apartments where a black SUV pulled up to meet them. After other officers told
Detective King that Ms. Van had gotten out of her vehicle and into a “black SUV,”
specifically a 2019 Chevrolet Tahoe, Detective King drove past the black SUV to get
its license plate number and reported it to Corporal Cole. Corporal Cole then “ran
the registration plate through the system” and connected the black SUV to
Defendant. He also had previously received information about Defendant during this
drug investigation. Corporal Cole then informed the other officers, including
Detective King, of the connection between the black SUV and Defendant as well as
the information Corporal Cole had received about Defendant as part of the drug
investigation. Ms. Van then got out of the black SUV and into the car she came in,
and both vehicles left.
¶4 After Ms. Van and the informant got back to the hotel, Ms. Van left, and the
police met with the informant to get the sample Ms. Van had given them. Corporal
Cole tested the sample and confirmed it was heroin. The informant then arranged
with Ms. Van to purchase two kilograms of heroin at the same hotel. At this point,
Corporal Cole told the police officers conducting surveillance, including Detective
King, to look out for the black SUV. Detective King then set up on the “one main
road” leading to the hotel.
¶5 During this surveillance, Detective King’s car ran low on gas, so he drove
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across the street from his lookout position to a gas station. At the gas station,
Detective King saw Defendant and the black SUV, which he confirmed had the same
license plate number, “at or about the same time that the source” with the larger
supply of heroin was supposed to arrive at the hotel across the street. Detective King
then alerted Corporal Cole, who told Detective King that the police “Special
Emergency Response Team” (“SERT”) would be there soon to detain Defendant.
¶6 Once SERT arrived and detained Defendant, Detective King walked around to
the passenger side of Defendant’s vehicle because the police “were specifically
interested” in the larger supply of heroin they “had ordered” and that they “assum[ed]
[Defendant] was bringing.” Once there, Detective King smelled vinegar—which in
his “training and experience” is what heroin smells like—through the open window
and saw “what appeared to be . . . two kilograms of heroin” in a cereal box based on
his training and experience about how drugs are packaged. Detective King notified
Corporal Cole of the suspected heroin, and Corporal Cole joined him at the gas
station. Corporal Cole also observed what appeared to be heroin in a cereal box in
the front seat and smelled through the open window “a distinct odor” that “in [his]
training and experience . . . smelled like heroin.” After taking pictures at the scene,
Corporal Cole searched the vehicle and recovered a little more than two kilograms of
heroin from the cereal box as well as a loaded gun, cell phones, and paperwork with
Defendant’s name on it. The police then arrested Defendant based on the items
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recovered from the search.
¶7 On 5 August 2019, Defendant was indicted for possession of a firearm by a
felon, possession of a stolen firearm, two counts of trafficking opium or heroin by
possession and by transportation, maintaining a vehicle used for keeping and selling
a controlled substance, and conspiracy to traffic opium or heroin.
¶8 Following his indictment, Defendant filed a Motion to Suppress on 25
November 2020. Specifically, Defendant challenged the search of his vehicle and
seizure of property therefrom on the grounds the search was without a warrant or
any “other lawful justification” and therefore violated the Fourth Amendment of the
United States Constitution as well as the North Carolina Constitution.
¶9 On 3 December 2020, the trial court held a hearing on Defendant’s Motion to
Suppress. At the hearing, the State’s two witnesses were Corporal Cole and Detective
King. They testified to the events recounted above.
¶ 10 Following this testimony, the trial court heard arguments from Defendant’s
counsel and from the State. Defendant’s attorney argued the officers’ testimony
conflicted on whether Ms. Van arrived on her own or with the confidential informant,
and the police did not have sufficient evidence to link the black SUV to Defendant.
Specifically regarding the suppression motion, counsel argued officers did not have
probable cause to arrest Defendant for drug trafficking immediately upon seeing him
at the gas station—although she conceded the officers could properly arrest
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Defendant on outstanding warrants—such that the officers could not search the
vehicle for evidence related to an arrest on drug trafficking charges. Defendant’s
counsel then argued the contraband was not in plain view following Defendant’s
arrest. Finally, Defendant’s attorney argued there were no exigent circumstances so
the police could have obtained a search warrant first. Based on these arguments,
Defendant contended “the contraband discovered in the vehicle should be suppressed
in this case.”
¶ 11 The State argued based on the totality of the circumstances, the officers had
probable cause to detain Defendant and search the vehicle. The prosecutor also
clarified the search was valid under the automobile exception, instead of as a search
incident to arrest, so the officers only needed probable cause.
¶ 12 On 19 January 2021, the trial court entered an order denying the Motion to
Suppress. Defendant challenges the trial court’s Findings of Fact 1, 7–10, and 13–
14. In Finding 1, the trial court found the testimony of both officers “to be credible.”
Findings 7–14 recount Ms. Van meeting with the informant, arranging for a sample
that later tested positive as heroin, and the police observing the black SUV associated
with Defendant when Ms. Van got in it to retrieve the sample. Defendant does not
challenge the remaining Findings of Facts. The unchallenged Findings recount the
background of the investigation, the informant ordering the larger quantity of heroin
and associated surveillance, Detective King identifying Defendant and the black SUV
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at the gas station as well as Defendant’s subsequent detention, and the smell of
vinegar and sight of heroin in the car by both officers leading to the search of the car
and recovery of the heroin and other items listed above.
¶ 13 From all the Findings of Fact, the trial court concluded “[t]he search of the
vehicle that ultimately led to recovery of the contraband was supported by probable
cause.” Specifically, the trial court concluded police had probable cause “to conduct a
search of the vehicle being driven by the Defendant, including the passenger seat
area of the vehicle, the console and other areas where the contraband including the
heroin and firearm were found” because of:
the time and location of the encounter with the Defendant;
the Defendant’s connection with the Tahoe; the officers’
observation of the Tahoe being involved in a heroin
transaction earlier in the day; observation of the Defendant
driving the Tahoe alone; an odor consistent with heroin
emanating from the vehicle; and a substance consistent
with heroin observed by the officers in plain view inside the
vehicle . . . .
On those grounds, the trial court denied Defendant’s Motion to Suppress.
¶ 14 Following the trial court’s denial of his Motion to Suppress, Defendant
accepted a plea deal to reduced charges of: two counts of attempting to traffic by
possession of 28 or more grams of heroin, and one count each of possession of a firearm
by a felon, conspiracy to possess heroin, and malicious conduct by a prisoner. The
prosecutor summarized the facts to support Defendant’s guilty plea in a manner that
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aligned with the testimony at the suppression hearing and the trial court’s order
denying Defendant’s Motion to Suppress. Pursuant to the plea agreement, Defendant
“reserve[d] his right to appeal” the denial of the Motion to Suppress. The trial court
sentenced Defendant to 60 to 84 months on the first attempt to traffic heroin charge
and 60 to 84 months, to run consecutively, on the consolidated remaining charges.
Defendant gave notice of appeal as to both the judgments and the denial of his Motion
to Suppress in open court.
II. Analysis
¶ 15 Defendant challenges two aspects of the trial court’s order denying his Motion
to Suppress. First, Defendant contends Findings of Fact 1, 7–10, and 13–14 “are not
supported by competent evidence.” (Capitalization altered.) Second, Defendant
argues the trial court erred in its Conclusion of Law that probable cause supported
the police officers’ search of the black SUV. After reviewing these arguments, we
determine that the trial court did not err and therefore affirm the denial of
Defendant’s Motion to Suppress.
A. Standard of Review
¶ 16 As our Supreme Court has recently explained:
When considering on appeal a motion to suppress evidence,
we review the trial court’s factual findings for clear error
and its legal conclusions de novo. State v. Williams, 366
N.C. 110, 112, 726 S.E.2d 161, 166 (2012). This requires us
to examine “whether competent evidence supports the trial
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court’s findings of fact and whether the findings of fact
support the conclusions of law.” State v. Biber, 365 N.C.
162, 167–68, 712 S.E.2d 874, 878 (2011) (citing State v.
Brooks, 337 N.C. 132, 140–41, 446 S.E.2d 579, 585 (1994)).
State v. Reed, 373 N.C. 498, 507, 838 S.E.2d 414, 421 (2020). When “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.” Biber, 365 N.C. at 168, 712 S.E.2d
at 878.
¶ 17 When the trial court’s findings of fact are challenged on appeal and the
reviewing court must determine whether they are supported by competent evidence,
Reed, 373 N.C. at 507, 838 S.E.2d at 421, the court examines whether evidence in the
record can support the findings “even where the evidence might sustain findings to
the contrary.” State v. Hall, 268 N.C. App. 425, 428, 836 S.E.2d 670, 673 (2019). This
reflects the standard that “[e]ven if ‘evidence is conflicting,’ the trial judge is in the
best position to ‘resolve the conflict.’” Williams, 362 N.C. at 632, 669 S.E.2d at 294
(quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601 (1971)). “Indeed, 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.”
State v. Derbyshire, 228 N.C. App. 670, 673, 745 S.E.2d 886, 889 (2013) (alteration
omitted) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619–20 (1982)).
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B. Challenged Findings of Fact
¶ 18 Defendant first challenges seven Findings of Fact (Findings 1, 7–10, 13–14)
from the trial court’s order denying the Motion to Suppress. We review the
challenged Findings to determine whether they are supported by competent evidence.
Reed, 373 N.C. at 507, 838 S.E.2d at 421.
¶ 19 Finding of Fact 1 states: “The Court finds the testimony of Detective King
(‘King’) and Master Corporal Cole (‘Cole’), to be credible.” Defendant claims “[t]his
finding disregards the inconsistent testimony of the two officers about how Ms. Van
arrived in the parking lot where the black [SUV] was first observed, how she entered
the vehicle, and how she returned to meet with the informant.” Essentially,
Defendant argues that if there is any inconsistency between the testimonies of
Detective King and Master Corporal Cole, the trial court cannot consider both to be
credible; the trial court must pick one to believe and must disbelieve the other. But
determinations of credibility are not so simplistic, and two witnesses can be “credible”
even if there are slight factual differences in their testimonies. Different witnesses
may have different knowledge and viewpoints and may present facts in a slightly
different way, but differences in the details of their testimony alone do not render one
or both the witnesses not “credible.” The trial court has the role of sorting out the
evidence and testimony, including any variations between the facts as stated by one
witness and another, and making findings as to any facts relevant to the issues
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presented in the case. This Court does not resolve issues with the credibility of
witnesses; that is the trial court’s role. See State v. Veazey, 201 N.C. App. 398, 402,
689 S.E.2d 530, 533 (2009) (“Weighing 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.” (citing State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540,
548 (1982))); see also Williams, 362 N.C. at 632, 669 S.E.2d at 294 (“Even if evidence
is conflicting, the trial judge is in the best position to resolve the conflict.” (quotations
and citation omitted)).
¶ 20 Finding of Fact 7 states: “Without knowing that the informant was working
with law enforcement, Van met with the informant and agreed to retrieve the sample
heroin to bring back to the informant so that the informant could confirm the quality
of the heroin before ordering a substantial amount.” Both Detective King and
Corporal Cole testified about police setting up a meeting with Ms. Van through the
confidential informant to purchase drugs. Both officers also testified about Ms. Van
meeting with the informant and going to get a sample of the drug with the plan to
then buy a larger amount. This Finding is supported by the evidence.
¶ 21 Finding of Fact 8 states: “After meeting with the informant, Van drove to the
location of the heroin source to retrieve the sample and return it to the informant.
King followed and surveilled Van as she completed this task.” Detective King
testified that he followed and surveyed Ms. Van. Corporal Cole also testified about
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Ms. Van driving to get the sample of the heroin, giving it to informant, and the police
surveillance in effect at the time.
¶ 22 Finding of Fact 9 states:
King followed Van to the parking lot of an apartment
building where Van was to meet her heroin source. Several
other officers positioned themselves throughout the area
conducting their own surveillance and covering the entire
lot. King was in radio contact with Cole and the other
officers throughout this portion of the investigation.
Corporal Cole and Detective King testified about King following Ms. Van’s vehicle to
an apartment parking lot, several other officers conducting surveillance of the area,
and the constant radio contact between the officers.
¶ 23 Finding of Fact 10 states:
Once in the parking lot of the apartment building, Van
exited her vehicle and entered a black SUV. Believing that
the black SUV was the location from which Van was
retrieving the sample of heroin, King observed the black
SUV’s vehicle registration plate displaying [number
redacted] and communicated the same to Cole.”
Detective King testified he could see Ms. Van’s vehicle pull into the parking lot and
other officers told him she got “into a black SUV.” Based on other officers’
“assumption” the black SUV was “who [Van] was meeting with to retrieve the
sample,” he drove by and noted the SUV’s license plate number. Corporal Cole also
testified Van got into the black SUV and another officer told him the license plate
number, which was the same as Detective King had testified.
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¶ 24 Finding of Fact 13 states:
After a short time, Van exited the Tahoe and returned to
her vehicle. The officers attempted to follow both vehicles
and were able to maintain constant physical surveillance
on Van back to a predetermined location arranged by the
informant. The officers were unable to maintain constant
physical surveillance on the Tahoe.
Corporal Cole testified after “a very short period of time” Ms. Van left the black SUV
and got back into the vehicle in which she came. Both he and Detective King testified
about the attempt to follow both vehicles before losing track of the Tahoe.
¶ 25 Finally, Finding of Fact 14 states: “After Van and the informant met, the
informant brought the sample heroin retrieved by Van to Cole and other officers, who
field tested and confirmed the sample to be heroin.” Both Detective King and
Corporal Cole testified about the police getting the sample from the informant, with
King testifying he originally received this information from Cole. Corporal Cole
testified a field test on the sample was positive for heroin.
¶ 26 Defendant argues Findings 7–10, 13–14 “are concerning because all factually
determine that Ms. Van traveled alone when she went to the parking lot of the
apartment complex where she entered and exited the black [SUV],” which conflicts
with testimony from Detective King and Corporal Cole. As we have explained,
competent evidence supports each of the challenged Findings, and the trial judge is
in the best position to resolve conflicting evidence. Williams, 362 N.C. at 632, 669
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S.E.2d at 294. Further, it is not even clear to us these Findings conflict with the
evidence as to whether Ms. Van was alone in her vehicle. The Findings of Fact do not
specifically say Ms. Van traveled alone, only that, for example, she “drove to the
location of the heroin source to retrieve a sample and return it to the informant.” This
could have occurred with the informant in the same vehicle as Detective King and
Corporal Cole testified. And even if there is an inconsistency between the versions of
how Ms. Van traveled, the trial court also must determine the weight of the evidence.
See Derbyshire, 228 N.C. App. at 673, 745 S.E.2d at 889 (“Indeed, 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.”). The evidence
supports the trial court’s Findings, even if there is some inconsistency between the
facts as to Ms. Van in the testimony of the two officers. Therefore, we reject all of
Defendant’s challenges to the Findings of Fact.
C. Conclusion of Law Regarding Search as Supported by Probable Cause
¶ 27 In addition to his argument challenging certain Findings of Fact, Defendant
contends “the Conclusions of Law regarding the search of the black [SUV] are not
supported by probable cause.” (Capitalization altered.)
¶ 28 Although generally searches without warrants violate the Fourth Amendment,
certain circumstances allow for warrantless searches. See Coolidge v. New
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Hampshire, 403 U.S. 443, 454–55, 29 L. Ed. 2d 564, 576 (1971) (“Thus the most basic
constitutional rule in this area is that ‘searches conducted outside the judicial
process, without prior approval by judge or magistrate, are per se unreasonable under
the Fourth Amendment—subject only to a few specifically established and well
delineated exceptions.’” (quoting Katz v. United States, 389 U.S. 347, 357, 19 L. Ed.
2d 576, 585 (1967))). One such doctrine is the automobile exception, which states, “A
search of a motor vehicle which is on a public roadway or in a public vehicular area
is not in violation of the [F]ourth [A]mendment if it is based on probable cause, even
though a warrant has not been obtained.”2 State v. Isleib, 319 N.C. 634, 637–38, 356
S.E.2d 573, 576 (1987) (quoting Cardwell v. Lewis, 417 U.S. 583, 595, 41 L. Ed. 2d
325, 338 (1974)). The automobile exception to the warrant requirement “is founded
upon two separate but related reasons: the inherent mobility of motor vehicles which
makes it impracticable, if not impossible, for a law enforcement officer to obtain a
warrant for the search of an automobile while the automobile remains within the
officer’s jurisdiction, [Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543 (1925)],
2 Defendant also argues another exception to the warrant requirement, search incident to
arrest, State v. Carter, 200 N.C. App. 47, 50–51, 682 S.E.2d 416, 419 (2009) (“[A] well-
recognized exception to the warrant requirement is a search incident to a lawful arrest.”
(quotations and citation omitted)), “is invalid” here. See also Arizona v. Gant, 556 U.S. 332,
351, 173 L. Ed. 2d 485 (2009) (“Police may search a vehicle incident to a recent occupant's
arrest only if the arrestee is within reaching distance of the passenger compartment at the
time of the search or it is reasonable to believe the vehicle contains evidence of the offense of
arrest.”). But as Defendant himself admits the trial court did not analyze this exception, and
we will not review this argument.
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and the decreased expectation of privacy which citizens have in motor vehicles,
United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).” Isleib,
319 N.C. at 637, 356 S.E.2d at 575–76.
¶ 29 While the automobile exception does not require a warrant, it requires that the
vehicle be in a public vehicular area and the police have probable cause. Id., 319 N.C.
at 638, 356 S.E.2d at 576. “Probable cause exists where the facts and circumstances
within . . . the officers’ knowledge and of which they had reasonable trustworthy
information are sufficient in themselves to warrant a man of reasonable caution in
the belief that an offense has been or is being committed.” State v. Downing, 169 N.C.
App. 790, 795, 613 S.E.2d 35, 39 (2005) (quotations, citations, and alterations from
original omitted); see also Illinois v. Gates, 462 U.S. 213, 230, 76 L. Ed. 2d 527, 543
(1983) (stating probable cause can also relate to a belief “that contraband or evidence
is located in a particular place”). As part of the probable cause determination, courts
can consider “plain” observations made by police officers based on their senses. See
Downing, 169 N.C. App. at 796, 613 S.E.2d at 39 (“Plain smell of drugs by an officer
is evidence to conclude there is probable cause for a search.”); cf. Carter, 200 N.C.
App. at 54, 682 S.E.2d at 421 (explaining “plain view” as a separate exception to the
warrant requirement (quotations and citation omitted)).
¶ 30 Within this framework, Defendant contends the trial court erred in two ways.
First, Defendant argues the automobile exception to the warrant requirement should
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not apply because his vehicle was not “stopped in a public vehicular area.” Second,
Defendant challenges the trial court’s conclusion the officers had probable cause. As
part of his challenge to the trial court’s probable cause determination, Defendant
argues the trial court improperly relied on the plain view and smell doctrines. We
review each argument in turn.
1. Applicability of Automobile Exception
¶ 31 Defendant argues the trial court should not have applied the automobile
exception because it only applies to vehicles in a “public vehicular area” and the black
SUV was parked next to a fuel pump, which Defendant contends is not such an area.
In North Carolina, “public vehicular area” is defined by statute. N.C. Gen. Stat. § 20-
4.01(32) (eff. 12 July 2017 to 20 June 2019). Because the definition is provided in the
statute, this issue presents a question of statutory interpretation, which we review
de novo. State v. Jamison, 234 N.C. App. 231, 238, 758 S.E.2d 666, 671 (2014) (“Issues
of statutory construction are questions of law, reviewed de novo on appeal.”
(quotations and citation omitted)).
¶ 32 Our statutes in effect at the time of Defendant’s offense defined “Public
Vehicular Area” in pertinent part as:
Any area within the State of North Carolina that meets one
or more of the following requirements:
a. The area is used by the public for vehicular traffic at any
time, including by way of illustration and not limitation
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any drive, driveway, road, roadway, street, alley, or
parking lot upon the grounds and premises of any of the
following:
1. Any public or private hospital, college, university,
school, orphanage, church, or any of the institutions,
parks or other facilities maintained and supported
by the State of North Carolina or any of its
subdivisions.
2. Any service station, drive-in theater,
supermarket, store, restaurant, or office building, or
any other business, residential, or municipal
establishment providing parking space whether the
business or establishment is open or closed.
3. Any property owned by the United States and
subject to the jurisdiction of the State of North
Carolina. (The inclusion of property owned by the
United States in this definition shall not limit
assimilation of North Carolina law when applicable
under the provisions of Title 18, United States Code,
section 13).
N.C. Gen. Stat. § 20-4.01(32).
¶ 33 This Court recently noted our Supreme Court’s guidance on statutory
interpretation as follows:
[t]he intent of the Legislature controls the interpretation of
a statute. When a statute is unambiguous, this Court will
give effect to the plain meaning of the words without
resorting to judicial construction. [C]ourts must give [an
unambiguous] statute its plain and definite meaning, and
are without power to interpolate, or superimpose,
provisions and limitations not contained therein.
Jamison, 234 N.C. App. at 238, 758 S.E.2d at 671 (alterations in original) (quoting
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State v. Davis, 364 N.C. 297, 302, 698 S.E.2d 65, 68 (2010)).
¶ 34 Defendant contends that “[a] fuel pump is not a driveway, road, alley, or
parking lot, and is therefore not a public vehicular area.” Defendant is certainly
correct the “fuel pump” at a service station is not “a driveway, road, alley, or parking
lot.” But Defendant misstates the issue by substituting the areas listed in the statute
“by way of illustration and not limitation” as the only areas defined as “public
vehicular area.” N.C. Gen. Stat. § 20-4.01(32).
¶ 35 North Carolina General Statute § 20-4.01(32) defines “public vehicular area”
as
[t]he area [ ] used by the public for vehicular traffic at any
time . . . upon the grounds and premises of any of the
following:
....
2. Any service station, drive-in theater, supermarket, store,
restaurant, or office building, or any other business,
residential, or municipal establishment providing parking
space whether the business or establishment is open or
closed.
¶ 36 The statute’s list of types of areas “by way of illustration and not limitation”
includes “any drive, driveway, road, roadway, street, alley, or parking lot,” N.C. Gen.
Stat. § 20-4.01(32) (emphasis added), but these areas are not the definition of “public
vehicular area”; they are illustrations of the types of areas which may be included,
but “public vehicular area” is not limited to these areas.
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¶ 37 Defendant’s SUV was parked beside a fuel pump at a gas station on the paved
area open to the public for drivers to park close enough to the fuel pump to reach the
car with the hose from the pump. Thus, the question presented is whether the
parking and driving area adjacent to a fuel pump where Defendant’s SUV was parked
is an area “used by the public for vehicular traffic at any time” and is on the premises
of “[a]ny service station,” “store” or “any other business . . . establishment . . .
providing parking space.” Phrased correctly, this question answers itself.
¶ 38 The plain meaning of “service station” is a gas station. Gas stations sell gas
dispensed from fuel pumps to the public, so by its plain meaning the definition of
“public vehicular area” includes the area for driving or parking adjacent to gas
pumps. In fact, the primary purpose of the area adjacent to gas pumps at a service
station is to be “used by the public for vehicular traffic”; gas pumps provide fuel for
vehicles. We are bound by this plain meaning. Jamison, 234 N.C. App. at 238, 758
S.E.2d at 671 (“Courts must give an unambiguous statute its plain and definite
meaning . . . .” (alterations in original omitted)).
¶ 39 Several other factors further reinforce our interpretation of the plain meaning
of this statute, indicating the legislature’s intent that the public vehicular areas at a
“service station” should include the paved area adjacent to the fuel pumps. See id.
(“The intent of the legislature controls the interpretation of a statute.” (alteration in
original omitted)). The definition specifically notes “driveway[s]” and “parking lot[s]”
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on the premises of stores generally and service stations specifically are included, N.C.
Gen. Stat. § 20-4.01(32), so these portions of the definition would apply to the area
between the entry to the service station property, off the roadway, up to the area
adjacent to the gas pumps. Thus, the inclusion of a more specific reference to “service
station” in the definition in addition to “stores” and other business or retail
establishments with parking areas indicates that the only remaining unique aspect
of a service station, the driving/parking area near gas pumps, is also included. See
State v. Ramos, 193 N.C. App. 629, 637, 668 S.E.2d 357, 363 (2008) (“We are guided
by the principle of statutory construction that a statute should not be interpreted in
a manner which would render any of its words superfluous. We construe each word
of a statute to have meaning, where reasonable and consistent with the entire statute,
because it is always presumed that the legislature acted with care and deliberation.”
(quotations, citation, and alterations omitted)); see also State v. Conley, 374 N.C. 209,
215, 839 S.E.2d 805, 809 (2020) (“It is presumed that the legislature did not intend
any provision to be mere surplusage.” (quotations, citation, and alterations omitted));
State v. Ricks, 237 N.C. App. 359, 366, 764 S.E.2d 692, 696 (rejecting State’s
argument on the grounds it would make part of § 20-4.01(32) “superfluous”).
¶ 40 Here, according to unchallenged Findings of Fact, police searched Defendant’s
car when it was stopped by a gas pump at a gas station, where Defendant was
pumping gas into the car. As we have explained, the area used for public vehicular
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traffic adjacent to the gas pumps on the premises of the service station is included in
the definition of public vehicular area. N.C. Gen. Stat. § 20-4.01(32)(a). Because
Defendant’s car was in a public vehicular area, the automobile exception can apply.
See Isleib, 319 N.C. at 638, 356 S.E.2d at 576 (explaining one of the requirements for
the automobile exception to apply is that the vehicle is “in a public vehicular area”).
¶ 41 After acknowledging § 20-4.01(32)(a) includes “service stations,” Defendant
argues the statute only covers “driveways, roads, alleys, and parking lots at a service
station” and therefore “read[ing] the statute to include a fuel pump area” would be
an impermissible expansion of the statute in violation of Ricks. But our
interpretation does not expand Ricks at all; it is entirely consistent with Ricks. Ricks
was decided upon the lack of evidence that a vacant lot was open for public vehicular
traffic at all. 237 N.C. App. at 366, 764 S.E.2d at 696. In Ricks, the defendant was
stopped for driving while impaired on his moped while crossing a vacant lot on a dirt
path. 237 N.C. App. at 360, 764 S.E.2d at 693. The State’s evidence showed the “cut
through on the vacant lot” had been used by pedestrians and bicyclists, it was wide
enough for the police cruiser to enter, and there were “no signs, fences, or shrubs” to
keep the public out. Id., 237 N.C. App. at 361, 764 S.E.2d at 694. This Court held
the State failed to present evidence the vacant lot was a public vehicular area because
there was no evidence of ownership of the lot or that it was generally open to the
public for vehicular traffic:
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In the present case, there is no evidence concerning the
ownership of the vacant lot; nor is there evidence that the
vacant lot had been designated as a public vehicular area
by the owner. Moreover, a vacant lot is dissimilar to any of
the examples provided in N.C. Gen. Stat. § 20–4.01(32)(a)
that are generally open to the public. The fact that people
walk and bicycle across the vacant lot as a shortcut does
not turn the lot into a public vehicular area. In order to
show an area meets the definition of public vehicular area
in N.C. Gen. Stat. § 20–4.01(32)(a), we hold there must be
some evidence demonstrating the property is similar in
nature to those examples provided by the General
Assembly in the statute. There was no such evidence in this
case.
Id., 237 N.C. App. at 366, 764 S.E.2d at 696.
¶ 42 The area adjacent to the gas pumps here is “similar in nature to those examples
provided by the General Assembly in the statute,” id., specifically driveways and
parking areas. N.C. Gen. Stat. § 20-4.01(32)(a). The area adjacent to a gas pump at
a service station is entirely different from a dirt path used by bicycles and pedestrians
on a vacant lot. A service station’s raison d’être is to be open to the public for
vehicular traffic to and from the gas pumps; its primary purpose is to invite drivers
of vehicles onto the property to drive in and park their vehicles next to the gas pumps
to buy gas.
¶ 43 Defendant also argues a fuel pump is an area “where toxic flammable liquids
are stored and dispensed” and one where “currency and private credit card
information is exchanged, and goods are sold.” Defendant appears to be arguing this
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makes a fuel pump private, but that argument cannot stand against the statutory
definition of public vehicular area including service stations, N.C. Gen. Stat. § 20-
4.01(32)(a)(2), which we have already concluded includes the area adjacent to fuel
pumps.
¶ 44 We hold the driving or parking area adjacent to a fuel pump at a service station
is a “public vehicular area” as defined by North Carolina General Statute § 20-
4.01(32)(a).
2. Plain View and Plain Smell Doctrines
¶ 45 Beyond our conclusion Defendant’s truck was in a public vehicular area, the
automobile exception also requires the officers to have had probable cause for their
search. Isleib, 319 N.C. at 638, 356 S.E.2d at 576. Defendant challenges the trial
court’s conclusion the officers had probable cause. As part of his challenge to the trial
court’s probable cause determination, Defendant argues the trial court improperly
relied on the plain view and plain smell doctrines. We review the trial court’s
Conclusions of Law de novo and ask whether the Findings of Fact support the
Conclusions of Law. Reed, 373 N.C. at 507, 838 S.E.2d at 421.
¶ 46 As we explained above, “[p]robable cause exists where the facts and
circumstances within . . . the officers’ knowledge and of which they had reasonable
trustworthy information are sufficient in themselves to warrant a man of reasonable
caution in the belief that an offense has been or is being committed.” Downing, 169
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N.C. App. at 795, 613 S.E.2d at 39; see also Gates, 462 U.S. at 230, 76 L. Ed. 2d at
543 (stating probable cause can also relate to a belief “that contraband or evidence is
located in a particular place”). “In the context of the motor vehicle exception, ‘a police
officer in the exercise of his duties may search an automobile without a search
warrant when the existing facts and circumstances are sufficient to support a
reasonable belief that the automobile carries contraband materials.’” State v. Parker,
277 N.C. App. 531, 2021-NCCOA-217, ¶ 25 (alteration omitted) (quoting State v.
Degraphenreed, 261 N.C. App. 235, 241, 820 S.E.2d 331, 336 (2018)), disc. rev. denied
860 S.E.2d 917 (2021). “The existence of probable cause is a commonsense, practical
question that should be answered using a totality-of-the-circumstances approach.”
Degraphenreed, 261 N.C. App. at 241, 820 S.E.2d at 335 (quoting State v. McKinney,
361 N.C. 53, 62, 637 S.E.2d 868, 874 (2006)).
¶ 47 Here, the trial court properly considered the totality of the circumstances,
determining police had probable cause “to conduct a search of the vehicle being driven
by the Defendant, including the passenger seat area of the vehicle, the console and
other areas where the contraband including the heroin and firearm were found”
because of:
the time and location of the encounter with the Defendant;
the Defendant’s connection with the Tahoe; the officers’
observation of the Tahoe being involved in a heroin
transaction earlier in the day; observation of the Defendant
driving the Tahoe alone; an odor consistent with heroin
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emanating from the vehicle; and a substance consistent
with heroin observed by the officers in plain view inside the
vehicle . . . .
¶ 48 The trial court had Findings of Fact to support each factor within its
Conclusion of Law on probable cause. As to the time and location of the encounter
with Defendant, the Findings establish the drug deal was supposed to happen at a
“Howard Johnson hotel” and Detective King saw Defendant at the gas station
“directly across from the Howard Johnson hotel” and “at approximately the time the
suspected drug transaction was to take place between Van and her source.” The trial
court also found, “Based on the time, location and the other information gathered
during the course of the day throughout the investigation, King, Cole and other
officers reasonably believed Defendant was in that general location to deliver two
kilograms of heroin to Van and the informant.”
¶ 49 As to the “the officers’ observation of the [black SUV] being involved in a heroin
transaction earlier in the day” and “Defendant’s connection to the” black SUV, the
Findings recounted how Ms. Van got into a black SUV to get the heroin sample and
how police searched the license plate of the black SUV that returned “an alert”
indicating “Defendant was driving” the SUV when a “domestic incident . . . occurred
five days prior” to the date of the events in this case. Further, as to the officers’
“observation of the Defendant driving the Tahoe alone,” the trial court found when
Defendant pulled into the gas station by Detective King, “Defendant was the driver
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of the vehicle, and was alone.”
¶ 50 Finally, as to the factors about “an odor consistent with heroin emanating from
the vehicle” and “a substance consistent with heroin observed by the officers in plain
view inside the vehicle,” the Findings recount:
21. After Defendant was detained, King exited his vehicle
and walked around the outside of the Tahoe, which
Defendant left with the windows down. As King walked
around the Tahoe, he noticed the vehicle was emanating an
odor of vinegar. Based on King’s training and experience,
such an odor is associated with heroin.
22. Upon walking around the Tahoe driven by Defendant,
King observed in plain sight what he believed, based on his
training and experience, to be two kilograms of heroin
sticking out of the top of an open cereal box located on the
front passenger seat. King reported this to Cole, who
likewise smelled and saw what he believed to be heroin in
plain view in the Tahoe recently driven by Defendant.
Thus, the trial court’s Findings of Fact support its Conclusions of Law on probable
cause.
¶ 51 Defendant first contests the Conclusions on probable cause by arguing about
the strength (or lack thereof) of the evidence supporting the trial court’s
determination. First, as we have discussed, the trial court correctly followed the
totality of the circumstances test in making its probable cause determination.
Second, the trial court’s Findings of Fact support its Conclusions of Law on probable
cause. We only review those two components on appeal. See Reed, 373 N.C. at 507,
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838 S.E.2d at 421 (explaining we review conclusions of law de novo, which “requires
us to examine . . . whether the findings of fact support the conclusions of law.”
(quotations and citation omitted)). We do not reweigh the evidence as Defendant now
asks us to do. See Derbyshire, 228 N.C. App. at 673, 745 S.E.2d at 889 (explaining
how an appellate court gives “great deference to the trial court . . . 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.”).
¶ 52 Defendant also argues the trial court improperly relied upon the heroin being
in plain view in the vehicle and the odor consistent with heroin coming from the
vehicle. As to plain view, Defendant first argues for plain view to apply “the initial
intrusion must also be valid,” and he contends that was not the case here because he
was not parked in a public vehicular area. While Defendant is correct that a police
officer must have been “in a place where he had a right to be when the evidence was
discovered” for plain view to apply, Carter, 200 N.C. App. at 54, 682 S.E.2d at 421(quoting State v. Graves, 135 N.C. App. 216, 219, 519 S.E.2d 770, 772 (1999)), we have
already concluded Defendant’s black SUV was in a public vehicular area. Defendant
also argues “[t]he location and packaging of the material that law enforcement
suspected to be heroin . . . is also problematic” as to the plain view doctrine. But we
do not reweigh the evidence, and an unchallenged Finding of Fact explains both
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officers saw what they believed, based upon their training and experience, to be
heroin in the SUV.
¶ 53 Finally, Defendant argues the plain smell doctrine cannot apply as “[t]here is
no appellate authority in North Carolina specifically authorizing the search of a
vehicle based on the odor of heroin.” Defendant contends the plain smell doctrine has
been used only for marijuana, not heroin. But this Court has previously explained
“[p]lain smell of drugs by an officer is evidence to conclude there is probable cause for
a search.” Downing, 169 N.C. App. at 796, 613 S.E.2d at 39 (emphasis added). In
Downing, the drug the officers smelled was cocaine, not marijuana. Id. And as
Defendant recognizes, we have caselaw holding the smell of marijuana alone provides
probable cause. E.g. State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441
(1981). We see no reason to treat the plain smell of heroin any differently than the
plain smell of marijuana or cocaine based upon the unchallenged Findings of Fact.
Detective King “noticed the vehicle was emanating an odor of vinegar” and in his
“training and experience, such an odor is associated with heroin.”
¶ 54 In Downing, this Court addressed a similar situation where law enforcement
officers had stopped the defendant’s van while conducting a narcotics investigation
based upon information from a confidential informant regarding sales of marijuana
and cocaine. 169 N.C. App. at 792, 613 S.E.2d at 37. Upon searching the defendant,
they found only some marijuana and a pipe, but the officers then needed to move the
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defendant’s van out of the roadway where it was stopped. Id., 169 N.C. App. at 793,
613 S.E.2d at 37. The defendant consented for one of the officers to move the van out
of the roadway. Id., 169 N.C. App. at 793, 613 S.E.2d at 37–38.
While moving the van, Sergeant Johnson “smelled a strong
odor of what smelled like cocaine.” Officers then searched
the vehicle, although Defendant did not consent, and
located a Wendy’s restaurant food bag between the driver’s
seat and front passenger seat. Inside the food bag was a
plastic bag containing approximately six ounces of cocaine.
The officers then placed Defendant under arrest.
Id., 169 N.C. App. at 793, 613 S.E.2d at 38.
¶ 55 This court held the officers had probable cause for the search of a vehicle based
upon plain smell of cocaine. Id., 169 N.C. App. at 796, 613 S.E.2d at 39 (“Plain smell
of drugs by an officer is evidence to conclude there is probable cause for a search.”)
¶ 56 Because the Findings support the trial court’s Conclusions of Law on probable
cause, we hold the trial court did not err in its probable cause determination and
therefore properly denied Defendant’s Motion to Suppress.
III. Conclusion
¶ 57 We affirm the trial judge’s denial of Defendant’s Motion to Suppress. The
Findings of Fact are supported by competent evidence, so we reject Defendant’s
challenges to them. Further, those Findings support the trial court’s Conclusions of
Law police had probable cause to search Defendant’s vehicle. Within those
Conclusions, the trial court did not err in applying the plain view and plain smell
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doctrines to heroin, based upon the evidence presented by the State. Finally, the
driving and parking area adjacent to fuel pumps at a service station is a public
vehicular area under the definition provided in North Carolina General Statute § 20-
4.01(32)(a). Therefore, the automobile exception to the warrant requirement applied
to the search of Defendant’s SUV parked at the gas pumps and the officers only
needed probable cause to search Defendant’s vehicle.
AFFIRMED AND NO ERROR.
Judges COLLINS and CARPENTER concur.