State v. Johnston

446 S.E.2d 135 (1994) 115 N.C. App. 711

STATE of North Carolina
v.
Richard George JOHNSTON.

No. 9326SC967.

Court of Appeals of North Carolina.

August 2, 1994.

Atty. Gen., Michael F. Easley, by Associate Atty. Gen., Robert T. Hargett, Raleigh, for the State.

Public Defender Isabel Scott Day, by Asst. Public Defender Alicia Delaney Brooks and Asst. Public Defender Julie Ramseur Lewis, Charlotte, for defendant-appellant.

EAGLES, Judge.

Defendant brings forward one assignment of error. Assignments of error 2 and 3 are not brought forward on appeal and are deemed abandoned. N.C.R.App.P. Rule 28(b)(5).

Defendant contends that the trial court erred by denying his motion to suppress evidence pursuant to G.S. 15A-974. After careful review, we find no error.

In order to determine "whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Florida v. Bostick, 501 U.S. 429, 439, 111 S. Ct. 2382, 2389, 115 L. Ed. 2d 389, 401-02 (1991). See State v. Poindexter, 104 N.C.App. 260, 265, 409 S.E.2d 614, 616 (1991), disc, review denied 330 N.C. 616, 412 S.E.2d 93 (1992). The scope of appellate review of a ruling upon 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) (citations omitted). An appellate court accords great deference to the trial court's ruling on a motion to suppress because the trial court is entrusted with the duty to hear testimony (thereby observing the demeanor of the witnesses) and to weigh and resolve any conflicts in the evidence. Id.; State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601, cert. denied, 403 U.S. 934, 91 S. Ct. 2266, 29 L. Ed. 2d 715 (1971). We note that the record on appeal contains no findings of fact or conclusions of law by the trial court regarding the denial of defendant's motion to suppress. We further note that nothing in the record indicates that defendant objected at trial to the trial court's failure to make findings or conclusions and that defendant has not assigned error to the absence of such findings or conclusions. No material conflict in the evidence exists here. "Where there is no material conflict in the evidence, findings and conclusions are not necessary even though the better practice is to find facts." State v. Edwards and State v. Jones, 85 N.C.App. 145, 148, 354 S.E.2d 344, 347, disc, review denied, 320 N.C. 172, 358 S.E.2d 58 (1987) (citation omitted).

It is well established that

law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.

Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1323-24, 75 L. Ed. 2d 229, 236 (1983) (citations omitted). See also State v. Farmer, 333 N.C. 172, 186, 424 S.E.2d 120, 128-29 (1993). Here, the evidence shows that after defendant got out of his car and appeared unsteady, Trooper Ashby asked defendant why he turned off of the road prior to the license check and for his drivers license. "[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions." Bostick, 501 U.S. at 435, 111 S.Ct. at 2386, 115 L.Ed.2d at 398. At this point, there was no evidence of coercion or detention. "``Communications between police and citizens involving no coercion or detention are outside the scope of the fourth amendment.'" State v. Thomas, 81 N.C.App. 200, 205, 343 S.E.2d 588, 591, disc, review denied, 318 N.C. 287, 347 S.E.2d 469 (1986) (citation omitted).

Defendant voluntarily answered Trooper Ashby's question by responding that he could not produce his license. "[A drivers] license shall be carried by the licensee at all times while engaged in the operation of a motor vehicle." G.S. 20-7(n). See G.S. 20-7(a). Failure to carry one's license at all times while engaged in the operation of a motor vehicle is a misdemeanor. G.S. 20-35. See also G.S. 20-29. Accordingly, Trooper Ashby had sufficient probable cause at that time to place defendant under arrest. State v. Hudson, 103 N.C.App. 708, 716, 407 S.E.2d 583, 587 (1991), disc, review denied, 330 N.C. 615, 412 S.E.2d 91 (1992); see also U.S. v. Dixon, 729 F. Supp. 1113, 1116 (W.D.N.C.1990).

While Trooper Ashby could have placed defendant under arrest at this time, he merely chose to ask defendant to step back to the patrol car so that he could check defendant's license information and so that he could further investigate defendant's intoxication based upon defendant's unsteady movements and the smell of alcohol noticed during the course of the conversation. Only after defendant failed the field sobriety tests was he placed under arrest and advised of his rights. We conclude that the seizure was constitutionally permissible and that the trial court's decision to deny defendant's motion to suppress was supported by the evidence. See State v. Badgett, 82 N.C.App. 270, 346 S.E.2d 281 (1986).

For the reasons stated, we find no error.

No error.

COZORT and LEWIS, JJ., concur.