State v Downey
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA10-1413 NORTH CAROLINA COURT OF APPEALS Filed: 19 July 2011 STATE OF NORTH CAROLINA v. Mecklenburg County No. 09 CRS 216106 09 CRS 216117-18 09 CRS 42314 LASHAWN TERRY DOWNEY Appeal by defendant from judgment entered 21 July 2010 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 April 2011. Attorney General Roy Cooper, by Associate Attorney General J. Rick Brown, for the State. Mary March Exum, for defendant-appellant. STEELMAN, Judge. Where defendant gave consent to the officers search of his backpack, and that consent was voluntary, the trial court did not err in denying defendant s motion to suppress obtained as a result of the consensual search. I. Procedural and Factual History evidence -2In the early morning hours of 2 April 2009, the CharlotteMecklenburg Police Department received a series of calls from a neighborhood in Charlotte. Officers Kristen Daughtery (Officer Daughtery) and Aaron Skipper (Officer Skipper) were on patrol in the area. Individually and jointly dispatch calls that morning. they responded to four Officer Skipper responded to a residence located at 3044 Florida Avenue at 2:41 a.m., where the complaintant stated that someone kept knocking and hanging around the front door. Officer Skipper did not locate a suspect but shoeprints observed porch. 4:01 several left on the complaintant s Second, Officer Daughtery responded to a dispatch at a.m. from a residence on 1000 E. 36th Street. That complainant reported seeing a black male wearing a green shirt and blue jeans Daughtery Officer was masturbating unable Daughtery to on locate responded to their the a front porch. suspect. residence At at Street, which backs up to 1000 E. 36th Street. Officer 4:48 1001 E. a.m., 35th The dwelling s security alarm awoke the occupant, who found the front door had been unlocked from the inside. Officer Daughtery observed several shoeprints leading up to an open window at the front of the residence, as well as an additional shoeprint on the living room floor. The occupant reported that a laptop, laptop bag, purse and money had been stolen from the residence. -3Both officers then responded to a fourth dispatch at 3031 Florida Avenue at 4:50 a.m. They observed defendant walking up Florida Avenue and approached him. Both officers were familiar with defendant from previous encounters. him, the later, officers defendant backpack. reappeared to the on residence. the same A street, short time carrying a The backpack contained the items reported stolen from 1001 E. 35th On returned After speaking with 3 burglary, Street. May 2010, larceny defendant after was breaking indicted and for entering, stolen goods and being an habitual felon. first-degree possession of Defendant filed a motion to suppress the items seized at the time of his arrest. The trial court denied this motion. motion to suppress, defendant Following the denial of his pled guilty to first-degree burglary, felony larceny after breaking and entering, and being an habitual felon. Defendant preserved his right to appeal the denial of his motion to suppress. 121 to 155 months in the Defendant was sentenced to North Carolina Department of Correction. Defendant appeals. III. Motion to Suppress In his first argument, defendant contends that the trial court erred by denying his motion to suppress the evidence and items seized during defendant s arrest. We disagree. -4A. Standard of Review The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether fact support the conclusions of law. ___, ___, ___ S.E.2d ___, ___ the findings of State v. Biber, ___ N.C. (16 June 2011) (No. 432A10). Plaintiff does not challenge the trial court s findings of fact. Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported evidence and is binding on appeal. Id. conclusions of law are reviewable de novo. by competent The trial court s Id. B. Analysis Consensual encounters for which police do not need probable cause or even reasonable suspicion are lawful, as long as the person is free to disregard the police and leave. I.N.S. v. Delgado, 466 U.S. 210, 215, 80 L. Ed. 2d 247, 255 (1984). the warrantless, consensual search to pass muster For under the Fourth Amendment, consent must be given and the consent must be voluntary. Whether the consent is voluntary is to be determined from the totality of the circumstances. State v. Barden, 356 N.C. 316, 341, 572 S.E.2d 108, 125 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). Evidence obtained in an unconstitutional, nonconsensual search is not admissible. State v. Garner, 331 N.C. 491, 505, 417 S.E.2d 502, 510 (1992) (citing -5State v. Colson, 274 N.C. 295, 305, 163 S.E.2d 376, 383 (1968)). Inconsistencies necessarily or undermine conflicts in the court's trial the testimony findings, do not since such contradictions in the evidence are for the finder of fact to resolve. State v. Bromfield, 332 N.C. 24, 36, 418 S.E.2d 491, 497 (1992). Defendant made a motion to suppress evidence gathered from his second interaction with the officers, contending that he was illegally stopped and seized, and that Officer Skipper had no reasonable suspicion to stop, seize and arrest him. court entered an Order on 22 July 2010, The trial denying defendant s motion to suppress, and making the following findings of fact: 13. The officers again observed the defendant walking up Florida Avenue a few minutes after their initial encounter. The defendant now had a backpack. The officers again walked toward the defendant. 14. The officers did not brandish their weapons or threaten the defendant as they approached him on Florida Avenue. The defendant was not instructed to stop. 15. The defendant voluntary [sic] engaged in a conversation with the officers. 16. The defendant was wearing an colored shirt with blue jeans. defendant s pants zipper was down. olive The 17. Skipper asked the defendant if he could see the soles of his shoes. The defendant consented. Daugherty recognized the defendant s soles to be consistent with the shoeprints left at 1001 E. 35th Street. -6- 18. Skipper asked the defendant for consent to look in his backpack. The defendant gave consent. Skipper found a laptop bag and laptop inside of the backpack. The laptop bag and laptop matched the description of the items take [sic] from 1001 E. 35th Street. 19. The defendant was then handcuffed and his pants pockets were searched. Skipper found two hundred and forty dollars in the defendant s pants pocket. 20. the the the The trial observe The Court has considered the totality of circumstances surrounding the search of backpack, pants pocket and the arrest of defendant. court each noted, witness it had and to the opportunity determine what credibility to give each witness testimony. to see weight and and Defendant did not assign as error any of the trial court s findings of fact and these findings are therefore binding on appeal. The trial court found, based on the totality of the circumstances, that the officers testimony offered sufficient evidence that both the encounter with defendant and the ensuing search were consensual and voluntary. These findings support the conclusions of law that defendant was not subject to a seizure within the meaning of the Fourth Amendment. defendant freely officers the backpack . . and soles . . of voluntarily his shoes Following the consented and to to the discovery of Instead, showing search the of the his victim s -7property, the officers had sufficient effectuate a warrantless arrest. obtained during officers and a consensual, These interaction court did not err in to with the conclusions of law were supported by sufficient findings of fact. trial cause The evidence in question was lawful was admissible. probable denying We hold that the defendant s motion to suppress the stop and the evidence and items seized during his arrest. This argument is without merit. III. Sufficiency of Findings of Fact and Conclusions of Law In his second argument, defendant contends that the trial court erred by failing to make full and sufficient findings of fact and conclusions of law in its order denying defendant s motion to suppress. We disagree. We hold that the trial court made sufficient findings of fact and conclusions of law supporting its denial of defendant s motion to suppress. court did not make However, assuming arguendo that the trial findings of fact regarding defendant s testimony at the hearing, our case law indicates that the trial court s order should still be affirmed. Trial courts are not required to make findings of fact on all evidence presented. State v. Dunlap, 298 N.C. 725, 730-31, 259 S.E.2d 893, 896 (1979) ( We see no reason why a trial judge should be compelled to summarize every single fact presented -8at voir dire. ). It is not error per se for the trial court to omit findings of fact in support of its ruling on a motion to suppress. State v. Rollins, 200 N.C. App. 105, 110, 682 S.E.2d 411, 415 (2009) (quotations and internal alterations omitted). In cases where the trial court does not explicitly set forth in its findings of fact the reasons for denying a defendant s motion to suppress, the necessary findings are implied from the admission of the challenged evidence. State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980). Findings of fact may support the denial of a motion to suppress through the trial court s conclusions on the merits of the legal issue underlying defendant s motion. In the Biber, __ N.C. at __, __ S.E.2d at __. instant case, the trial court s order does not contain findings of fact or conclusions of law that specifically articulate the defendant s determine trial court s testimony. the rationale However, witnesses based credibility, for on the not its trial adopting ability court to made findings of fact that incorporated the officers testimony and did not adopt defendant s conflicting testimony. The trial court then explicitly concluded as a matter of law that [n]one of the constitutional rights, either Federal or State, addressed in Defendant s Motion to Suppress were violated by the officers in their encounter with the defendant on 2 April 2009, and that defendant freely and voluntarily gave consent. The trial -9court s denial of the motion to suppress was supported by its conclusion that defendant s rights were not violated, based on its findings of fact supporting this conclusion. The trial court made sufficient findings of fact and conclusions of law supporting its denial of defendant s motion to suppress. This argument is without merit. AFFIRMED. Judges STEPHENS and HUNTER, ROBERT N. Jr. concur. Report per Rule 30(e).
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