State v. Aubin

397 S.E.2d 653 (1990) 100 N.C. App. 628

STATE of North Carolina
v.
Real AUBIN.

No. 9012SC8.

Court of Appeals of North Carolina.

November 20, 1990.

Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. Francis W. Crawley, Raleigh, for the State.

Tharrington, Smith & Hargrove by Wade M. Smith, Roger W. Smith, and C. Mark Holt, Raleigh, for defendant-appellant.

WELLS, Judge.

Defendant brings forward 19 assignments of error from the trial court's order challenging the court's findings and conclusions regarding the initial stop of defendant and resulting questioning, the purported consent, and the scope of the search. We find no error.

We first address the initial stop. An officer's stop of a car to investigate a potential traffic offense does not require probable cause, but it is governed by the reasonableness standards of the Fourth Amendment. State v. Jones, 96 N.C.App. 389, 386 S.E.2d 217 (1989). This Court set out the guidelines for such stops in State v. Morocco, 99 N.C.App. 421, 393 S.E.2d 545 (1990):

A police officer may conduct a brief investigative stop of a vehicle where justified by specific, articulable facts which give rise to a reasonable suspicion of illegal conduct. However, police may not make Terry-stops based on the pretext of a minor traffic violation.

In determining the traffic stop was pretextual, the trial court should look at what a reasonable officer would do rather than what an officer could do. (Citations omitted).

The trial court made extensive findings of fact in concluding that Trooper Lowry did have a reasonable suspicion that defendant was operating his vehicle while under the influence and that a reasonable officer would have stopped him. The court found that Trooper Lowry observed defendant through his rear view mirror slowing his speed to approximately 45 miles per hour and weaving within his lane. Our review of the record reveals competent evidence to support the trial court's findings, and we are accordingly bound by them. Morocco, supra.

We also hold that these findings support the trial court's conclusions. In Jones, supra, we held that observations of a car going 20 miles an hour below the posted speed and weaving within its lane are sufficient to raise a reasonable suspicion that the driver is operating the vehicle while impaired. Given the public interest in removing impaired drivers from the highways, these observations are also sufficient to support a conclusion that a reasonable officer would have stopped defendant to investigate the cause of this erratic driving. See Morocco, supra.

We next address defendant's contention that Trooper Lowry improperly detained and questioned him for purposes other than an investigation of impaired driving. The trial court found that Trooper Lowry asked for defendant's license and registration and was given a Canadian driver's license and a rental car agreement. Defendant was asked to move to Lowry's patrol vehicle so that Lowry could detect the presence of any alcohol on his person and to observe him walking to the car. The court also found that Lowry asked defendant about his residence and travel plans and was told that although defendant lived in Quebec, he was returning the car to Newark. Lowry then handed defendant back his license and the agreement and asked for and received consent to search his car. The court then found that Lowry attempted to get defendant to sign a consent form, which defendant declined to do, but repeated his consent orally. Our review of the record again reveals competent evidence to support these findings.

We recognize that an investigative stop and inquiry must be reasonably related in scope to the initial justification for it. State v. Jones, supra. In Jones, this Court refused to adopt a rule which would limit an officer's ability to investigate suspicious matters uncovered during an investigatory stop. In Morocco, Trooper Lowry asked about the driver's vehicle and registration in the patrol car while filling out a warning ticket. We held that such "polite conversation" was not improper. In this case, Trooper Lowry asked defendant about his plans for returning the car, whether he still lived in Quebec, what he did for a living and how the weather was in Florida. As in Morocco, this conversation did not exceed permissible police behavior. Lowry's investigation was reasonable in subject matter and scope.

Defendant also contends that he did not freely and voluntarily consent to the search of his car, and that if he did, the search exceeded the scope of the consent given. We disagree.

When the State relies on a purported consent to justify a warrantless search, it has the burden of proving that the consent was voluntary and not the result of express or implied coercion. State v. Glaze, 24 N.C.App. 60, 210 S.E.2d 124 (1974). Voluntariness is a question of fact to be determined from all the surrounding circumstances. Id. At a hearing to determine the voluntariness of a defendant's consent to a search of his property, the weight to be given the evidence is peculiarly a determination for the trial court, and its findings are conclusive when supported by competent evidence. State v. Long, 293 N.C. 286, 237 S.E.2d 728 (1977). See also State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983).

In this case, the trial court's findings of fact, supported by competent evidence, support the conclusion that defendant freely, intelligently, and voluntarily consented to the search of his car. The court's findings indicate that defendant responded three separate times with no apparent reservations that Trooper Lowry could search, look in, and check the car. They do not indicate that defendant was held in the car for any improper length of time, or was subjected to any pressure from Trooper Lowry. While findings do indicate that defendant may have had some difficulty understanding the consent form, or the purpose for it, this does not require the conclusion that he did not intelligently and voluntarily consent to the search. The trial court specifically found that defendant displayed an educated and understanding use of the English language during the stop. Finally, the court found that Lowry did not threaten or harass defendant, did not restrain his movements during the search, and that defendant was in sole possession of his keys, license and identification papers throughout the search.

These findings of fact also support the conclusion that Trooper Lowry's search of defendant's car did not exceed the scope of defendant's consent. In Morocco, supra, Lowry searched the trunk and back seat of defendant's vehicle, where he found a tote bag. This Court upheld the scope of the search, holding:

The defendant's consent to search the automobile for contraband entitled Lowry to conduct a reasonable search anywhere inside the automobile which reasonably might contain contraband....

Similarly, in State v. Belk, 268 N.C. 320, 150 S.E.2d 481 (1966), the Court held that defendant's consent to the officer's search of his trunk implied consent to search any part of his car. It found support for this holding in the fact that none of the defendants objected to the search once it was begun. In this case, defendant gave oral consent to a search of his car for contraband. He did not object in any way to what Trooper Lowry was doing. It was reasonable for Lowry to lift up the corner of the back seat in the progress of his search.

Defendant has also assigned error to the court's failure to make a long list of alternate and additional findings of fact. As stated above, we are bound by the trial court's findings of fact if they are supported by competent evidence. We have reviewed a videotape exhibit submitted at trial and do not find it so conclusively inconsistent with the trial court's findings that it would lead us to overrule any of them. Conflicts in the evidence at a suppression hearing are to be resolved by the trial court. See State v. Johnson, 322 N.C. 288, 367 S.E.2d 660 (1988). The court must make findings resolving conflicts in the evidence which are material to its decision. See State v. Richardson, 316 N.C. 594, 342 S.E.2d 823 (1986). In State v. Ghaffar, 93 N.C.App. 281, 377 S.E.2d 818 (1989), we vacated an order of the trial court because of insufficient findings on the questions of the officer's reasonable suspicion, the appropriateness of the investigatory detention, and the voluntariness of the consent. In this case, however, there are sufficient findings to support the conclusions deciding each issue. These assignments of error are overruled.

There is competent evidence in this record to support the trial court's findings, and these findings in turn support the court's conclusions.

No error.

COZORT and LEWIS, JJ., concur.