State v Mendez
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e . NO. COA11-120 NORTH CAROLINA COURT OF APPEALS Filed: 1 November 2011 STATE OF NORTH CAROLINA v. Anson County No. 10 CRS 51070 ENRIQUE SANTOS MENDEZ, Defendant. Appeal by defendant from order entered 22 October 2010 by Judge Tanya T. Wallace in Anson County Superior Court. Heard in the Court of Appeals 14 September 2011. Attorney General Roy Cooper, by Special General, Amar Majmundar, for the State. Deputy Attorney Unti & Lumsden LLP, by Sharon L. Smith, for defendantappellant. Tin, Fulton, Walker & Owen, PLLC, by W. Rob Heroy, for defendant-appellant, amicus curiae. HUNTER, Robert C., Judge. Enrique Santos Mendez ( defendant ) appeals from the trial court s denial of his motion to suppress evidence seized during a search of his vehicle. After denial of his motion, defendant entered a guilty plea to one count of trafficking in marijuana, - 2preserving his right to appeal under North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970). After careful review of the record, we affirm the trial court s denial of the motion to suppress. Background The evidence presented at a hearing on defendant s motion to suppress tended to establish the following. In the late afternoon of 5 June 2010, defendant was driving a white box truck east County. on U.S. Wadesboro Highway Police 74 through Officer Scott Wadesboro in Anson Gulledge and Anson County Sherriff s Deputy Joshua Davidson were stationed on the side of the highway defendant drove by. running stationary front radar when Defendant was driving in the left lane, the passing lane, at a speed of 54 miles per hour ( mph ) in a 55 mph zone. As defendant passed by, Officer Gulledge noticed that defendant and his passenger were both looking straight ahead and were wearing their seatbelts. Officer Gulledge and Deputy Davidson decided to follow defendant and pulled onto the highway, behind defendant. At this point, Officer Gulledge noticed defendant s brake lights illuminate and his speed drop to 25 mph while still in the passing lane and in the 55 mph zone. Suspecting that defendant was impaired, Officer Gulledge continued to follow defendant to observe his driving. The - 3officer followed defendant for approximately 4.5 miles over the next 18 minutes. Defendant pulled into the right-hand lane, increased his speed to 30 mph, and held his speed at 30 mph while in the 55 mph zone. Officer Gulledge pulled alongside defendant and noticed the driver s hands were at the ten-two position on the steering wheel; he was wearing his seatbelt and was looking straight ahead, but did not appear relaxed. The officer also noticed an air freshener on the review mirror and that the passenger was also wearing his seatbelt. Officer Gulledge moved behind defendant and continued to follow as he ran defendant s license plate. Eventually, the vehicles entered a 35 mph zone. Defendant began to pull away, and Officer Gulledge testified he fell back behind defendant a Davidson pulled quarter alongside of a mile defendant. or less while Officer Deputy Gulledge then clocked defendant via radar driving 10 mph over the speed limit and radioed Deputy Davidson that he could stop defendant for speeding. Once stopped, Officer Gulledge explained the reason for the stop. approached defendant and At this point, the officer noticed additional air fresheners in the passenger compartment, as well as trash and beverage cans on the floor. Officer Gulledge also noticed the back wall of the passenger compartment appeared to have been modified such that a door to the cargo - 4area was missing, a door that he was accustomed to seeing on vehicles similar to defendant s box truck. modification did not appear to have To the officer, the been completed by the manufacturer. Officer Gulledge asked defendant to step out of the vehicle and walk truck. to the officer s vehicle parked behind defendant s Upon watching defendant walk, Officer Gulledge concluded defendant was not impaired, but then questioned defendant about where he was driving and why. Defendant stated he owned a lawn care business and he was driving from Huntersville to Lumberton to mow one yard. Thinking the answer was unusual, Officer Gulledge asked a second time and defendant replied that he was driving from Huntersville to Lumberton to look at a yard. Officer Gulledge testified that, At that time it raised my suspicion that there may be some type of criminal activity. The officer also noticed defendant was wearing a Santa Muerte charm on a necklace a charm other police officers had told him was worn by individuals involved in criminal activity. Officer Leviner of the Wadesboro Police department arrived on the scene and began to question defendant s passenger. Defendant s passenger told the officer that they were driving from Indian Trail, North Carolina to the beach. As defendant and his passenger provided different stories, Officer Gulledge - 5asked defendant for permission to search the vehicle. Officer Gulledge testified that, as a matter of routine, he asked for defendant s consent twice. Defendant consented each time and opened the door to the cargo area upon the officer s request. Officer Gulledge testified that approximately 15 minutes had passed from stopping defendant s vehicle to the time defendant opened the cargo door. As defendant opened the door, Officer Gulledge noticed a strong odor of marijuana. Inside the cargo area, hidden in a shop vac, Officer Leviner found a clear bag of what appeared to be marijuana. Concluding that the small bag was insufficient to produce the strong odor of marijuana, Officer Gulledge radioed for a drug-sniffing dog to be brought to the scene. The dog signaled that there were drugs behind the front wall of the cargo area, modified. which appeared to the officers to have been Further investigation revealed a compartment behind the wall, in which more marijuana was hidden. In total, the police seized 200 pounds of marijuana from defendant s vehicle. Defendant was indicted on two counts of felony trafficking in marijuana and one count of felony maintaining a vehicle for keeping and selling a controlled substance. Defendant filed a motion to suppress, which was heard in the 2 September 2010 Criminal Session of the Anson County Superior Court. court denied defendant s motion. Defendant then The trial entered an - 6Alford guilty plea to one count of trafficking in marijuana, preserving his right to appeal the suppress. Defendant was sentenced to a minimum of 25 months and a maximum of 30 months imprisonment. denial of his motion to Defendant gave notice of appeal in open court. Discussion Defendant argues he is entitled to a new trial based on the trial court s error in denying his motion to suppress evidence seized during an unconstitutional search of his vehicle. Specifically, defendant argues the police officers did not have reasonable suspicion to justify stopping his vehicle. Defendant further argues that once he was stopped the police detained him for an unreasonable length of time without reasonable suspicion that criminal activity was afoot. Defendant also contends the traffic stop was motivated solely by his race, violating his constitutional right to equal protection under the law. Lastly, defendant argues he did not intelligently and knowingly consent to the search of his vehicle due to his limited understanding of the English language. In our review of the trial court s order, we are mindful that [a]n 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 - 7conflicts in the evidence. State v. Johnston, 115 N.C. App. 711, 713, 446 S.E.2d 135, 137 (1994). determining findings if of competent facts and conclusions of law. evidence whether Id. Our review is limited to supports those the trial findings court s support its The trial court s conclusions of law, however, are subject to de novo review. State v. Barnhill, 166 N.C. App. 228, 230, 601 S.E.2d 215, 217 (2004). A. Admissibility of the Radar Instrument Readings Initially, admitting into defendant evidence argues the that trial testimony court that erred defendant in was speeding based on the readings from Officer Gulledge s radar instrument. proper Defendant contends the State failed to establish a foundation requirements of for N.C. the Gen. evidence Stat. ยง in accordance 8-50.2 with (2009). the Because defendant did not object to this evidence at trial, the issue was not preserved dismissed. for appeal, and defendant s argument is N.C.R. App. P. 10(a)(1) (2011). B. Racial Discrimination Defendant and amicus curiae argue the trial court erred in denying defendant s motion to suppress because the police violated defendant s right to equal protection under the law by stopping defendant based on his race. We disagree. The Equal Protection Clause of the Fourteenth Amendment of our federal constitution prohibits selective enforcement of the - 8law based on considerations such as race. Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 98 (1996). state constitution, in Article I, section 19, also equal protection under the law for all persons. Our mandates Richardson v. N.C. Dept. of Correction, 345 N.C. 128, 134, 478 S.E.2d 501, 505 (1996). Accordingly, our Supreme Court has expressly affirmed that discriminatory application of the law will not be tolerated by our courts. State v. Ivey, 360 N.C. 562, 564, 633 S.E.2d 459, 461 (2006), abrogated by State v. Styles, 362 N.C. 412, 415-16 n.1, 665 S.E.2d 438, 440 n.1 (2008) (holding that reasonable suspicion is necessary to justify a traffic stop and disavowing any interpretation of Ivey that would imply probable cause was required). Defendant argues the circumstances leading to the traffic stop demonstrate defendant s race. selective enforcement of the law based on Specifically, defendant emphasizes there was no evidence that defendant had violated any traffic laws at the time Officer Gulledge decided to follow defendant. The officer verified that defendant s license and registration were valid, and yet Officer Gulledge followed defendant for more than four miles before executing a traffic stop. Defendant points to Officer Gulledge s testimony that while defendant was driving 54 mph in the passing lane of a 55 mph speed limit zone, [n]ormally vehicles travel in the passing - 9lane at 60 or higher. From this testimony, defendant concludes that speeding is routinely tolerated in that area, and his stop was a pretext for investigating other criminal activity because of his race. Additionally, defendant argues Officer Gulledge has a practice of targeting Hispanic drivers who are not committing any traffic violations. For support, defendant points to the citation produced by Officer Gulledge, which listed defendant and his passenger, both Hispanic, as being Asian. The officer was also questioned as to why he listed another Hispanic male as being white on his citation when he was stopped by Officer Gulledge three days after stopping defendant. Officer Gulledge responded that because he stopped many individuals, he did not remember the specifics of that incident. But, he explained, errors sometimes occur because the race of the person being cited is automatically entered on the citation from data in the police computer system. In order for a selective enforcement claim to prevail, the defendant must show the prosecutorial system was motivated by a discriminatory purpose and had a discriminatory effect. State v. Garner, 340 N.C. 573, 588, 459 S.E.2d 718, 725 (1995), cert. denied, 516 U.S. 1129, 133 L. Ed. 2d 872 (1996). To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not -10prosecuted. United States v. Armstrong, 517 U.S. 456, 465, 134 L. Ed. 2d 687, 699 (1996). We conclude the evidence in the record before this Court is insufficient to enforcement evidence police of support the supports began to law the follow defendant s based trial on race. court s defendant claim he of selective Rather, findings that immediately competent when the applied his brakes and slowed to 25 mph in a 55 mph zone, raising the officer s suspicion of impaired driving, and that defendant was ultimately stopped for speeding. Defendant s argument is overruled. C. Duration of Defendant s Stop Defendant next argues the trial court erred in concluding that the length of defendant s detention was reasonable under the circumstances. We disagree. As this Court has previously stated, when a police officer detains an individual on the suspicion of criminal activity, generally, the scope of the detention tailored to its underlying justification. must be carefully State v. Falana, 129 N.C. App. 813, 816, 501 S.E.2d 358, 360 (1998) (citation and quotation marks omitted). Additionally, [o]nce the original purpose of the stop has been addressed, there must be grounds which provide a reasonable and articulable suspicion in order to justify further delay. Id. -11In the present case, the evidence tended to show defendant was initially stopped for speeding and suspicion of impaired driving. Officer Gulledge testified, however, that when he observed defendant exit his vehicle and walk a short distance he concluded defendant was not intoxicated. suspicion of impairment was removed, Once the officer s defendant contends, the only reason Officer Gulledge had to further detain defendant was to issue a speeding citation. issuing the citation, the However, instead of immediately officer began asking defendant questions about where he was driving and for what purpose. additional questioning, defendant argues, was This without justification as the officer did not have reasonable suspicion of further criminal activity. Defendant cites this Court s decision in State v. Myles for support of his argument. 188 N.C. App. 42, 654 S.E.2d 752, aff d per curiam, 362 N.C. 344, 661 S.E.2d 732 (2008). In Myles, the officer observed the defendant s car weaving in its lane and the driver looking into the rearview and side mirrors, raising the officer s suspicion that the driver was impaired. 188 N.C. App. at 43, 45, 654 S.E.2d at 753, 755. After stopping the car, the officer found no evidence of impairment and the driver s license proved to be valid. 45, 654 S.E.2d at 755. Id. at At that point, the officer considered the traffic stop completed because he had completed all [his] -12enforcement action of the traffic stop. Id. Therefore, the Myles Court concluded the officer had to have either consent or grounds which provide a reasonable and articulable suspicion in order to justify defendant. learn any suspicion further delay before Id. (citation omitted). additional during information his lawful he questioned [the] As the officer did not as grounds detention of for the reasonable defendant, the Court concluded the officer unreasonably detained the defendant. Id. at 51, 654 S.E.2d at 758. Because the extended detention was unconstitutional, the defendant s subsequent consent to the search of his vehicle was involuntary. Id. The present case is distinguishable from Myles. that the officer defendant after had he no basis determined for continuing defendant was In arguing to not question impaired, defendant fails to address Officer Gulledge s testimony that he observed the altered back wall of the passenger compartment, numerous air fresheners, and defendant s nervous behavior before he asked defendant to exit the truck. Therefore, before excluding the possibility of impairment, Officer Gulledge had grounds for reasonable suspicion that defendant was engaged in some criminal activity other than speeding and driving while impaired. defendant s Thus, the detention argument is overruled. trial was court did not constitutional err and in concluding defendant s -13D. Consent to Search Defendant s Vehicle Defendant next unconstitutional argues because the search of was unable to he his vehicle was intelligently and knowingly consent to the search due to his limited understanding of the English language. We disagree. Evidence seized during a warrantless search is admissible if the State proves that the defendant freely and voluntarily, without coercion, duress, or fraud, consented to the search. State v. Medina, __ N.C. App. __, __, 697 S.E.2d 401, 404, rev. denied, __ N.C. __, 701 S.E.2d 250 (2010) (citation omitted). Whether consent was given voluntarily is determined under the totality of the circumstances. Id. As such, even nonverbal conduct may suffice as communicating consent to a search. State v. Graham, 149 N.C. App. 215, 219, 562 S.E.2d 286, 288 (2002) (concluding the defendant voluntarily consented to a search of his person by his actions of standing and raising his hands coupled with consent). consent a gesture the officer understood to indicate Finally, that a defendant knew he could decline to to the search does not have determine the consent was voluntary. to be established to Medina, __ N.C. App. at __, 697 S.E.2d at 404 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 232-34, 36 L. Ed. 2d 854, 866-67 (1973) (rejecting the argument consent that must knowledge be of established the to defendant s determine right the to refuse consent was -14voluntary, and stating the absence of coercion is of paramount concern)). Although defendant argues he is a native Spanish speaker and has a limited understanding of English, competent evidence supports the trial court s conclusion that defendant freely and voluntarily consented to the search of his vehicle. Gulledge s testimony questions in established English, that responding defendant in Officer answered complete his sentences. Defendant did not appear to have any problem understanding the officer and did not ask the officer to repeat his questions. Deputy Davidson and Officer Leviner provided similar testimony. Officer Leviner testified that while defendant s passenger demonstrated trouble understanding English, defendant appeared to understand their correct English. conversation and spoke in grammatically Additionally, Officer Gulledge asked defendant twice for consent to search the vehicle, and defendant consented twice. When the officer asked, Would you raise the back door for me? , defendant opened the door to the cargo area without protest. We conclude the trial court did not err in determining defendant voluntarily consented to the search of his vehicle. Defendant s argument is overruled. -15Conclusion For the reasons stated above, we conclude the trial court did not err in denying defendant s motion to suppress. trial court s order is affirmed. Affirmed. Judges STEELMAN and McCULLOUGH concur. Report per Rule 30(e). The
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