State v Page
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure. NO. COA11-278 NORTH CAROLINA COURT OF APPEALS Filed: 15 November 2011 STATE OF NORTH CAROLINA v. Guilford County No. 09 CRS 092959 092960 092963 GRADY EARL ALSTON PAGE Appeal by defendant from order entered 30 August 2010 by Judge Catherine C. Eagles denying his motion to suppress, and from judgment entered 7 September 2010 by Judge William Z. Wood, Jr., both in the Superior Court of Guilford County. Heard in the Court of Appeals 14 September 2011. Attorney General Roy Cooper, by Associate Attorney General J. Rick Brown, for the State. A. Wayne Harrison, for defendant-appellant. STEELMAN, Judge. Where the trial court found that defendant was stopped based upon a reasonable, articulable suspicion (R. p. 136), the officer s actual motives for the stop were irrelevant. Where defendant consented to a pat down by the officer, this was not a violation of defendant s constitutional rights. Defendant was -2not in custody when he was asked a question by the officer, and Miranda was not implicated. I. For a Greensboro residence Drive, Factual and Procedural Background period Police of of Greensboro, residence. Grady On weeks, Department, Fatema trafficking. five 15 Seray North Page Detective conducted Rice, Blanks, of the surveillance of the located Carolina, at on 2009, also Detective defendant and another male in the garage. Fellowship suspicion ( defendant ) September 5609 of frequented Blanks drug the noticed The other male placed a large, white trash bag into the trunk of a Nissan automobile and drove off. Defendant left driving a BMW. Police followed the Nissan to a dumpster, where the other male was observed disposing of the white trash bag. Police recovered the white trash found bag from wrappings. the dumpster and evidence of cocaine Shortly thereafter, Officer Prescod was instructed to stop the BMW being operated by defendant. Officer Prescod stopped the BMW for having tinted windows that were darker than allowed by statute. After producing his driver s license and registration, defendant was asked to step out of the car. the officer. Defendant verbally consented to a pat down by When defendant got out and turned to face the car -3door, there was a thud. was that? Officer Prescod asked defendant, What Defendant did not initially respond, but after being asked a second time, defendant responded, Drugs. Defendant Prescod. A was then wrapped handcuffed container was and searched found in defendant s shorts, tied to the drawstring. by the Officer front of Officer Prescod asked defendant, Is that a half-kilo? and defendant replied, Yes. Defendant was cited for the tinted windows by Officer Prescod and then turned over, along with the package of drugs, to another officer. Defendant maintaining a was indicted vehicle for for the purposes felonies of of selling keeping a and controlled substance; trafficking in cocaine by possession of 400 grams or more; and trafficking in cocaine by transportation of 400 grams or more. On 28 April 2010, Defendant filed a suppression motion seeking to suppress evidence seized as a result of the traffic stop of defendant on 15 September. A hearing on defendant s motion to suppress was held on 11 August 2010. By order dated 13 motion August defendant s 2010, Judge answer to Eagles Officer granted Prescod s the question half-kilo? and denied the balance of the motion. Is as that to a -4On 30 August 2010, defendant pled guilty to all three charges discussed above before the Honorable William Z. Wood, Jr. Under the terms of the plea agreement, defendant preserved his right to appeal the denial of his motions to suppress. The three charges were consolidated for judgment, and defendant was sentenced to the statutorily mandated active prison term of 175219 months. See N.C. Gen. Stat. § 90-95(h)(3)(c) (2009). Defendant appeals. II. Motion to Suppress In his only argument on appeal, defendant contends that the trial court erred in denying his motion to suppress. We disagree. A. The motion trial to court s suppress competent evidence. are Standard of Review findings binding of on fact in an order upon appeal if supported a by State v. Campbell, 359 N.C. 644, 661, 617 S.E.2d 1, 12 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006). On appeal, defendant assigns error to the trial court s denial of his motion to suppress, but does not challenge any of the trial court's findings of fact. Thus, the findings of fact are binding on appeal, and the only question for our review is whether those factual findings in turn support the -5judge s ultimate conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Conclusions of law are reviewed de novo and are subject to full review. State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). B. Analysis Traffic Stop The Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const. amend. IV. A traffic stop is a seizure even though the purpose of the stop is limited and the resulting detention quite brief. Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 667 (1979). conduct an investigatory traffic stop, this state, To applying Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968), has held that an officer must only have a reasonable and articulable suspicion of criminal activity. State v. Hughes, 353 N.C. 200, 206-07, 539 S.E.2d 625, 630 (2000). In State v. Styles, 362 N.C. 412, 665 S.E.2d 438 (2008), our Supreme Court clarified that reasonable suspicion is the necessary standard for traffic stops, regardless of whether the traffic violation was readily observed Id. at 415, 665 S.E.2d at 440. or merely suspected. The trial court found that -6Officer Prescod stopped defendant on suspicion of tinted windows which were darker than that which is statutorily allowed under N.C. Gen. Stat. § 20-127 (2009). Based on this finding of fact, the trial court correctly ruled that the basis for the traffic stop met the constitutional standard of reasonable and articulable suspicion. Defendant also argues that the traffic stop was made with a pretextual motive, and is therefore invalid. However, in Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89 (1996), the U.S. Supreme Court explained that an officer s actual motives, if different from the proffered, objectively reasonable basis for the stop, do not invalidate an otherwise justified stop. noted above, Officer the Prescod trial pulled court s findings defendant over of on fact the As show basis that of an observable, tinted windows violation, constituting an objective basis for the stop. Any additional motives for the stop are irrelevant based on this finding. Pat Down Defendant next contends that the pat down of his person by Officer Prescod during unreasonable search. defendant s person the traffic stop constituted an It is well-established that a search of may be validly made by an officer with -7consent. under For the warrantless, consensual search to pass muster the Fourth Amendment, consent must be given and the consent must be voluntary. State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). The trial court s findings of fact show that defendant gave verbal consent to the pat Officer Prescod, without any evidence of coercion. down by Based on this voluntary consent, the pat down did not violate defendant s constitutional rights. Questions by Officer Prescod Defendant question, also What was briefly that? contends and that Officer defendant s answer, Prescod s Drugs amounted to custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966). In rejecting this argument, the trial court judge correctly cited Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317 (1984), which stands for the proposition that a traffic stop, by itself, does not render a defendant in custody under the Fifth Amendment, for purposes of Miranda. The trial court found as a fact that defendant was not in custody at the time of this question, and there was no evidence that defendant was subjected to restraints comparable to those associated with a formal arrest. Ed. 2d. at 336. Id. at 441, 82 L. The trial court found that defendant was in -8custody and subject to Fifth Amendment protections only after he was placed in handcuffs. Officer Prescod s first question and defendant s answer prior to being handcuffed was admissible. These arguments are without merit. AFFIRMED. Judges HUNTER, Robert C. and McCULLOUGH concur. Report per Rule 30(e).
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