State v. Miller

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1368
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
STATE OF NORTH CAROLINA
v. Wake County
Nos. 11 CRS 11876, 221347-50
KASIN JERRELL MILLER
Appeal by defendant from judgment entered 10 April 2013 by
Judge Carl R. Fox in Wake County Superior Court. Heard in the
Court of Appeals 18 March 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Richard E. Slipsky, for the State.
Amanda S. Zimmer for defendant-appellant.
BRYANT, Judge.
Where the trial court’s findings of fact were based on a
law enforcement officer’s testimony that while attempting to
detain defendant for further investigation, defendant suddenly
drove away almost hitting the officer, such findings support the
conclusion that the pursuit and eventual seizure of defendant
was based on a reasonable and articulable suspicion of assault
on an officer, and we affirm the order of the trial court.
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Where defendant led law enforcement officers in a high speed car
chase ending in a collision of defendant’s vehicle which
defendant promptly abandoned, and officers thereafter observed
what appeared to be cocaine on the floor of the vehicle, there
existed probable cause to search the vehicle, including the
trunk.
On 24 and 25 October 2011, defendant was indicted on
charges of possession with intent to sell and deliver marijuana,
possession with intent to sell and deliver cocaine, speeding to
elude arrest, possession of drug paraphernalia, assault with a
deadly weapon on a government official, and attaining habitual
felon status. On 4 January 2012, defendant was arraigned and
entered a plea of not guilty.
Subsequently, defendant filed two motions to suppress: a
“Motion to Suppress Evidence Based on Unlawful Stop”; and a
motion to suppress “evidence seized pursuant to the warrantless
search of the trunk of the Defendant’s vehicle.” These matters
came on for hearing during the 8 April 2013 session of Wake
County Superior Court, the Honorable Carl R. Fox, Judge
presiding.
By final order entered 9 August 2013, both motions to
suppress were denied. Judge Fox found that on 10 September
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2011, a ranking Senior Officer with the Raleigh Police
Department was in uniform and working when he stopped his marked
patrol car at the Exxon Station at 9409 Glenwood Avenue for gas.
The officer observed two men sitting in a vehicle. “[T]hey were
passing something back and forth between them.” When the two
men noticed noticed the officer, “they appeared to be placing
things underneath their seats and in their door pockets.” The
officer moved his vehicle so that he could read the vehicle’s
license plate number. Defendant, who was seated in the driver’s
seat, repositioned the vehicle by driving around the parking lot
and backing into a parking space behind a row of parked cars.
The passenger exited the vehicle. The officer approached the
vehicle and requested defendant’s driver’s license, which
defendant was unable to produce. Defendant said he was waiting
on a friend; he did not know the name of the person who had been
sitting in the passenger seat; and he was not the registered
owner of the vehicle. Defendant also stated there was nothing
illegal in the vehicle. Defendant was informed that he would be
detained for further investigation and that a canine unit was
being requested. Suddenly, defendant drove away while the
officer was standing beside the vehicle, “nearly striking him
with his car.” The officer returned to his patrol car and
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pursued defendant with lights and siren activated. Defendant
traveled on Lumley Road entering onto I-540 traveling at speeds
in excess of 90 mph. As they traveled down the highway,
“Defendant was reaching around inside the car and putting
something into his mouth”; “Defendant’s left hand was outside
his window and he was releasing things from his hand”; and the
officer observed white powder striking his patrol car.
Defendant’s vehicle ultimately struck another vehicle, and
defendant jumped out of his vehicle and ran. However, defendant
was apprehended after a short foot chase. Another law
enforcement officer looking though the open driver’s side window
of defendant’s vehicle observed a small plastic baggie
containing a white powder consistent with cocaine on the
floorboard. The officers informed defendant that his vehicle
would be searched. Defendant did not consent. In the trunk,
the officers found digital scales, marijuana, empty baggies, and
cocaine.
As to defendant’s initial detention in the gas station
parking lot, Judge Fox concluded that there was no violation of
defendant’s rights against unreasonable seizure. Judge Fox also
concluded that during the car chase, there arose grounds for a
reasonable and articulable suspicion that defendant had
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assaulted a government official with a deadly weapon and was
possessing and / or selling or delivering a controlled
substance, obstructing an officer, fleeing to elude an officer,
and engaged in reckless driving. Further, as to the search of
defendant’s car trunk, Judge Fox concluded that the officers had
probable cause to search the vehicle. Accordingly, defendant’s
motions to suppress were denied.
Following entry of the order denying defendant’s motions to
suppress, defendant entered a guilty plea as to the charges of
possession with intent to sell and deliver marijuana, possession
with intent to sell and deliver cocaine, speeding to elude
arrest, possession of drug paraphernalia, assault with a deadly
weapon on a government official, and obtaining habitual felon
status. Defendant also reserved his right to appeal from the
order denying his motions to suppress. Accepting defendant’s
pleas of guilty, Judge Fox entered a consolidated judgment,
sentencing defendant to a term of 127 to 162 months. Defendant
appeals from the denial of his motions to suppress.1
1
Defendant filed with this Court a petition for a writ of
certiorari to correct a technical defect in trial counsel’s
notice of appeal from the order denying defendant’s motions to
suppress rather than from the judgment entered against
defendant. See N.C. Gen. Stat. § 15A-979(b) (“An order finally
denying a motion to suppress evidence may be reviewed upon an
appeal from a judgment of conviction, including a judgment
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________________________________
On appeal, defendant raises the following issues: whether
the trial court erred in (I) determining there was a factual
basis for defendant’s guilty plea; (II) finding the law
enforcement officer had a reasonable suspicion to warrant
stopping defendant; and (III) concluding that the search of
defendant’s car trunk was reasonable.
I
Defendant first argues that the trial court erred in
determining whether there was a sufficient factual basis given
for the trial court to accept defendant’s guilty plea to the
charge of assault on a government official with a deadly weapon.
First, we must consider whether this argument is properly before
us.
Petition for writ of certiorari
Contemporaneous with his brief, defendant filed with this
Court a petition for a writ of certiorari to address the first
argument presented in his brief.
Acknowledging in his petition that he is not entitled to
appeal as a matter of right the issue of whether the trial court
entered upon a plea of guilty.”). To the extent that the notice
of appeal was technically deficient, we grant defendant’s
petition for writ of certiorari and hear defendant’s appeal from
the judgment entered pursuant to his guilty plea.
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properly accepted his guilty plea, defendant nevertheless
requests that we grant him a writ of certiorari. We decline
defendant’s request.
The writ of certiorari may be issued in
appropriate circumstances by either
appellate court to permit review of the
judgments and orders of trial tribunals when
the right to prosecute an appeal has been
lost by failure to take timely action, or
when no right of appeal from an
interlocutory order exists, or for review
pursuant to N.C.G.S. § 15A-1422(c)(3) of an
order of the trial court denying a motion
for appropriate relief.
N.C. R. App. P. 21(a)(1) (2014).
This Court has previously issued writs of certiorari to
address a challenge to a trial court’s compliance with General
Statutes Chapter 15A, Article 58 – Procedures Relating to Guilty
Pleas in Superior Court. See State v. Rhodes, 163 N.C. App.
191, 592 S.E.2d 731 (2004). Specifically, writs have been
issued to address a challenge to the sufficiency of the factual
basis given in support of a guilty plea. See State v. Keller,
198 N.C. App. 639, 641, 680 S.E.2d 212, 213 (2009); State v.
Flint, 199 N.C. App. 709, 724, 682 S.E.2d 443, 451 (2009).
Defendant contends that that there were insufficient
grounds presented to support the charge of assault with a deadly
weapon on a government official. While defendant acknowledges
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that the testifying officer stated “that he was nearly struck by
the vehicle and that he was afraid he would be hit by the back
portion of the vehicle as [defendant] drove off[,]” defendant
contends that “a reasonable person in his position would not
have been in fear of immediate bodily harm.” Defendant’s
argument raises only the contention that the trial court erred
in finding the officer’s testimony more credible than
defendant’s interpretation of the evidence. Compare Flint, 199
N.C. App. at 726, 682 S.E.2d at 453 (holding the trial court
erred in accepting the defendant’s guilty plea where there was a
lack of a factual basis given that would allow for the trial
court to make an independent decision as to defendant’s guilt).
We deny defendant’s petition for a writ of certiorari as to this
issue. As such, defendant’s first argument is dismissed.
II
Next, appealing from the denial of his first motion to
suppress, defendant argues that the trial court erred in
concluding that the law enforcement officer had reasonable
suspicion to stop defendant after defendant terminated a
consensual encounter with the law enforcement officer. We
disagree.
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“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.” N.C.G.S. §
15A-979(b). “Generally, an appellate court's review of a trial
court's order on a motion to suppress is strictly limited to a
determination of whether its findings are supported by competent
evidence, and in turn, whether the findings support the trial
court's ultimate conclusion.” State v. Roberson, 163 N.C. App.
129, 132, 592 S.E.2d 733, 735 (2004) (citation and quotations
omitted).
We first note that the trial court found that the officer’s
initial approach and discussion while defendant was sitting in a
parked car did not amount to a detention or seizure.
Acknowledging that the officer informed defendant he was “being
detained” while a canine unit was summoned, the trial court
stated “these words, standing alone, did not result in the
functional equivalent of detention, or an ‘unreasonable
seizure’” because among other things defendant remained in the
automobile; was not handcuffed, removed from the automobile, or
otherwise restrained from movement; defendant’s ignition keys
were not seized; the detention lasted three to five minutes, and
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defendant voluntarily left the area. Therefore, he “did not
believe he was not free to leave.”
However, as to what happened after defendant drove away
from the officer in the parking lot, we find the following
findings of fact pertinent:
21. Officer Larsen went to his vehicle
and pursued the Defendant because the
Defendant’s car nearly struck him as he
exited the parking lot of the convenience
store.
. . .
22. . . . Both vehicles were traveling
at speeds in excess of 70 mph on Lumley road
and increased speed once they got onto I-
540.
. . .
27. The Defendant’s vehicle was
switching lanes left to right and right to
left, cars were braking to avoid collisions
with the Defendant’s vehicle. . . .
28. As they traveled down the
highway, the Defendant was reaching around
inside the car and putting something into
his mouth.
29. As they were traveling in excess
of 80 mph down the highway, bags of white
substance began striking Officer Larsen’s
car. The Defendant’s left hand was outside
his window and he was releasing things from
his hand.
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Defendant’s vehicle stopped after colliding with another
vehicle, and defendant was apprehended by law enforcement
officers after a short foot chase.
Sergeant Michael F. Schabel, employed with the Raleigh
Police Department for fifteen years, responded to the Officer
Larsen’s call for assistance. Following the collision and
defendant’s abandonment of his vehicle, Sergeant Schabel
observed “a small plastic baggie with white powder . . . he
recognized as being consistent with cocaine,” in the driver’s
side floorboard.
The trial court concluded that Officer Larsen’s initial
approach and discussion with defendant did not amount to a
seizure and detention. However, based on the events occurring
after defendant drove away from Officer Larsen, the court
concluded the following:
[U]nder the totality of the circumstances,
[there] form[ed] in the mind of a reasonable
and prudent man/officer that there was a
reasonable and articulable suspicion that
criminal activity was afoot in that
Defendant had/was (1) possession and/or
selling or delivering a controlled
substance, (2) assaulted a government
officer with a deadly weapon, (3) obstructed
an officer, (4) fleeing to elude an officer
and (5) engaged in reckless driving.
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The findings of fact support the trial court’s conclusion
that the law enforcement officer had reasonable suspicion to
stop defendant. See Roberson, 163 N.C. App. at 132, 592 S.E.2d
at 735. Accordingly, defendant’s argument is overruled.
III
In his appeal from the denial of his second motion to
suppress, defendant argues that the trial court erred when it
relied on an inventory search of defendant’s vehicle as a basis
for upholding the search of the trunk. Defendant’s argument
ignores the trial court’s conclusion that there existed probable
cause to search defendant’s vehicle. The trial court’s
conclusion that an inventory search was proper was an
alternative basis to uphold the search and based on our probable
cause analysis that alternative basis need not be addressed.
The Fourth Amendment proscribes all
unreasonable searches and seizures, and it
is a cardinal principle 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. One such exception is the
automobile 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. If probable cause justifies the
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search of a lawfully stopped vehicle, it
justifies the search of every part of the
vehicle and its contents that may conceal
the object of the search.
State v. Mitchell, ___ N.C. App. ___, ___, 735 S.E.2d 438, 441
(2012) appeal dismissed, review denied, ___ N.C. ___, 740 S.E.2d
466 (2013).
Here, defendant led police officers on a car chase that
reached speeds in excess of 90 mph. In unchallenged findings of
fact, the trial court found that while defendant was driving
down the highway he was observed eating something and releasing
something from his hand outside of the driver’s side window,
“when bags of white substance began striking Officer Larsen’s
car.” Following defendant’s abandonment of his vehicle and
attempt to flee on foot, Sgt. Schabel observed inside
defendant’s vehicle in plain view “a small plastic baggie with
white powder . . . he recognized as being consistent with
cocaine[.]” Therefore, we hold the trial court’s findings of
fact support a conclusion that pursuant to the automobile
exception the law enforcement officers had probable cause to
justify the search of every part of defendant’s vehicle that may
have concealed cocaine, including the trunk. See id.Accordingly, defendant’s argument is overruled.
Affirmed.
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Judges HUNTER, Robert C. and Judge STEELMAN concur.
Report per Rule 30(e).