Opinion
No. COA12–1505.
2013-07-2
STATE of North Carolina v. Shadrach M. BROWN.
Attorney General Roy Cooper, by Associate Attorney General David Shick, for the State. Irving Joyner for defendant-appellant.
Appeal by defendant from judgment entered 31 January 2012 by Judge F. Lane Williamson in Mecklenburg County Superior Court. Heard in the Court of Appeals 6 May 2013. Attorney General Roy Cooper, by Associate Attorney General David Shick, for the State. Irving Joyner for defendant-appellant.
BRYANT, Judge.
Assuming arguendo defendant's consent to search his vehicle was not valid, where there existed independent probable cause to search, defendant's plain error argument must fail. Where lab tests were performed that analyzed the controlled substances defendant was convicted of possessing, the trial court properly ordered defendant to pay restitution.
Facts and Procedural History
On 19 January 2010, defendant Shadrach M. Brown was indicted on charges of possession with intent to sell or deliver cocaine and possession with intent to sell or deliver marijuana. The State's evidence at trial tended to indicate the following: Officer Chad Webster of the Charlotte–Mecklenburg Police Department testified that on 17 December 2008, he was sitting, uniformed but in an unmarked van at Reedy Creek Park, staging a “car break-in sting.” The “car break-in sting” consisted of placing a vehicle filled with boxes in a parking lot in order to “entice a thief to try to break into the car” while officers kept surveillance. Officer Webster testified that while he was sitting in his van, he received a radio message from another officer that a black male driving a gold Maxima was in the park.
Officer Webster saw defendant, driving a gold Maxima, pull into the parking lot. Defendant parked his vehicle about 75 yards from Officer Webster. Officer Webster testified that after a few minutes had passed, he saw defendant exit his vehicle, reach under the driver's seat, and then return to the vehicle. Officer Webster then saw a large flame light up in front of defendant's mouth:
a flame that large led me to believe that it probably wasn't a cigarette or it wasn't something that was easily lit. Being in an isolated area, I had reason to believe it was marijuana.
Officer Webster radioed and advised other officers of the situation. Two officers arrived at the parking lot, one of them being Officer Gideon John of the Charlotte–Mecklenburg Police Department. Officer John was in a marked patrol car.
Officer John testified that he engaged in a “voluntary contact” with defendant. A “voluntary contact” to Officer John meant “get[ting] up with the person, find[ing] out who they are. When we approach a car, we come in—we don't box them in. Get up with them, try to find out why they're parked, what they're doing here, this is a high-crime area, and that's what we did.” Officer John parked and exited his vehicle and walked up to the driver's side of defendant's vehicle. Before Officer John approached the window, the window of defendant's vehicle was slightly open. Officer John testified that he saw smoke coming out of the opening in the window and that the odor was that of marijuana. Defendant opened his door and attempted to get out of the vehicle but fell down.
Officer John testified that he instructed defendant to get back into the car and place his hands on top of the steering wheel for officer safety reasons to which defendant complied. Officer John asked defendant what he was doing in the park and defendant replied that he was masturbating. Officer John then saw what he believed, based on his experience and training, to be marijuana residue on defendant's clothing and on his lap.
After asking for and receiving consent to search defendant's person, Officer John searched defendant and did not find anything except a small amount of money. Officer John placed defendant in handcuffs and informed defendant that although he was not under arrest, he was being detained. Officer John then placed defendant in his patrol vehicle. After defendant was sitting in the back of Officer John's patrol car, Officer John asked defendant for consent to search his vehicle to which defendant said yes. Officer John found eight plastic sandwich baggies of cocaine and eighteen baggies of marijuana in the center arm console of defendant's vehicle.
Defendant did not present any evidence. On 20 January 2012, a jury found defendant guilty of possession with intent to sell or deliver cocaine and possession with intent to sell or deliver marijuana. Defendant was sentenced to a suspended term of 5 to 6 months imprisonment and placed on supervised probation for a term of 24 months. Defendant was also ordered to pay restitution in the amount of $1,200.00. Defendant appeals.
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Defendant presents the following issues on appeal: whether the trial court erred (I) by admitting incriminating statements made by defendant; and (II) by ordering defendant to pay $1,200.00 in restitution.
I
First, defendant contends that he was placed in custody when he was directed by Officer John to “get back in the car and place his hands on top of the steering wheel” and which custody continued when he was placed in the back seat of the officer's vehicle and handcuffed. Defendant further contends that he “had done absolutely nothing which created probable cause for an arrest.” Therefore, defendant asserts that because he was not given his Miranda warnings by Officer John, his incriminating statement—that he was “masturbating” in the park—should not have been admitted and that his consent to search his person and consent to search his car was therefore invalid. We disagree.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
“In order to preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent.” State v. Perkins, 154 N.C.App. 148, 151, 571 S.E.2d 645, 647 (2002) (citation omitted). Defendant failed to file a motion to suppress evidence or statements at trial, nor did defendant object to the statements he now challenges on appeal. Because defendant failed to object at trial concerning the validity of his consent, he failed to properly preserve this issue on appeal. Defendant now urges our Court to review this issue for plain error.
Plain error is an error which was so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached. To prevail under a plain error analysis, a defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result.
Id. at 152, 571 S.E.2d at 648(citations and quotation marks omitted).
The rule of Miranda requiring that suspects be informed of their constitutional rights before being questioned by the police only applies to custodial interrogation. Ordinarily, when a suspect is not in custody at the time he is questioned, any admissions or confessions made by him are admissible so long as they are made knowingly and voluntarily.
State v. Brooks, 337 N.C. 132, 143, 446 S.E.2d 579, 586 (1994) (citations omitted). Whether a person is in custody for purposes of Miranda is a determination of law. State v. Yancey, ––– N.C.App. ––––, ––––, 727 S.E.2d 382, 385 (2012) (citation omitted).
“[T]he appropriate inquiry in determining whether a defendant is in custody' for purposes of Miranda is, based on the totality of the circumstances, whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.' “ State v. Hemphill, –––N.C.App. ––––, ––––, 723 S.E.2d 142, 146 (2012) (citation omitted).
While no single factor controls the determination of whether an individual is in custody for purposes of Miranda [,] our appellate courts have considered such factors as whether the suspect is told he or she is free to leave, whether the suspect is handcuffed, whether the suspect is in the presence of uniformed officers, and the nature of any security around the suspect.
Yancey, ––– N.C.App. at ––––, 727 S.E.2d at 385(citation omitted).
The evidence at trial indicated that Officer Webster was staging a car break-in sting at Reedy Creek Park when he observed defendant's vehicle enter the parking lot. Defendant was parked about 75 yards away from Officer Webster. Officer Webster observed defendant exit his vehicle, reach under the driver's seat, and then return to his vehicle. Defendant lit a large flame near his mouth which Officer Webster believed to be marijuana. Officer Webster called on two officers for assistance with investigating the situation. Officer John and a fellow officer arrived to investigate.
Officer John exited his vehicle and walked up to the driver's side of defendant's vehicle. Before he reached defendant's driver's side window, which was slightly open, Officer John saw smoke coming out of the window and recognized the odor of marijuana. Defendant opened his vehicle door and fell to the ground while attempting to exit his vehicle.
After instructing defendant to get back into his vehicle, Officer John again smelled and then saw what he believed to be marijuana due to the odor emanating from the car and the residue on defendant's lap.
After placing defendant in his patrol vehicle, Officer John asked for and received consent to search defendant's vehicle where a search resulted in eight plastic sandwich baggies of cocaine and eighteen baggies of marijuana found in the center arm console. Thereafter, defendant was formally arrested for possession of marijuana and cocaine.
Defendant first argues that his incriminating statements were illegally obtained in violation of his right to Miranda protections. It is well established that “police officers may approach individuals in public to ask them questions and even request consent to search their belongings, so long as a reasonable person would understand that he or she could refuse to cooperate.” State v. Kincaid, 147 N.C.App. 94, 100, 555 S.E.2d 294, 299 (2001). Therefore, Officer John and his fellow officer's initial approach to defendant in the park was a proper investigative stop. The officers asked defendant what he was doing in the park and defendant responded with a statement—that he was masturbating, a statement he now claims was the result of custodial interrogation. However, it is clear that at that point in time defendant was not in custody for Miranda purposes, and the officers were not required to give defendant Miranda warnings.
Defendant also argues that his consent to search his vehicle given while handcuffed in a patrol car was not valid because he was in custody and had not been given his Miranda warnings. Assuming without deciding that defendant's consent to search his vehicle was invalid, there still existed probable cause to search independent of any consent.
Under the circumstances of this case, law enforcement officers were within their authority to search defendant's vehicle. “If a law enforcement officer has probable cause to believe that the vehicle contains evidence of a crime, the officer may conduct an immediate warrantless evidentiary search of the vehicle, including closed containers found therein.” State v. Parker, 183 N.C.App. 1, 10, 644 S.E.2d 235, 242 (2007) (quoting California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982 (1991)).
As Officer John was approaching defendant's vehicle, he saw smoke emanating from the interior of defendant's vehicle and identified the smell of smoke as marijuana. When defendant opened his vehicle door and fell outside, Officer John observed marijuana residue on defendant's lap. Based on these circumstances, Officer John had probable cause to believe that defendant's vehicle contained evidence of marijuana. Such independent probable cause was sufficient to enable Officer John to conduct a warrantless search of defendant's vehicle for the purpose of determining the existence of controlled substances even without the consent of defendant. A search of the arm console yielded eighteen baggies of marijuana and eight baggies of cocaine. “[B]ecause narcotics can be easily and quickly hidden or destroyed, especially after defendant received notice of [the officer's] intent to discover whether defendant was in possession of marijuana ... there were sufficient exigent circumstances justifying an immediate warrantless search.” State v. Johnson, ––– N.C.App. ––––, ––––, 737 S.E.2d 442, 447 (2013) (citing State v. Yates, 162 N.C.App. 118, 122–23, 589 S.E.2d 902, 905 (2004)). Therefore, we determine that even assuming without deciding that defendant's consent to search his vehicle was not valid, such consent was not necessary where there was probable cause to search his vehicle. Defendant's argument based on plain error is overruled.
II
Defendant next argues that the trial court erred by ordering him to pay $1,200.00 in restitution for lab fees without any evidence presented by the State to support the restitution order. We disagree.
Generally, “the amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing.” State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995) (citation omitted). However, section 7A–304 of the North Carolina General Statutes provides, in pertinent part, that:
(a) In every criminal case in the superior or district court, wherein the defendant is convicted, ... the following costs shall be assessed and collected....
(7) For the services of the North Carolina State Crime Laboratory facilities, the district or superior court judge shall, upon conviction, order payment of the sum of six hundred dollars ($600.00) to be remitted to the Department of Justice for support of the State Bureau of Investigation. This cost shall be assessed only in cases in which ... the laboratories have performed ... analysis of any controlled substance possessed by the defendant[.]
N.C. Gen.Stat. § 7A–304(a)(7) (2011) (emphases added). “As used in statutes, the word shall' is generally imperative or mandatory.” State v. Johnson, 298 N.C. 355, 361, 259 S.E.2d 752, 757 (1979) (citation omitted).
As a result, N.C.G.S. § 7A–304(a)(7) requires a trial judge to assess costs in the amount of $600.00 to be remitted in cases in which a laboratory performed an analysis of a controlled substance possessed by the defendant, and where the defendant was convicted. Here, defendant was found guilty of possession with intent to sell or deliver marijuana and possession with intent to sell or deliver cocaine. At trial, Jennifer Leiser testified that she was a criminalist employed by the Charlotte–Mecklenburg Police Department—one who works in the chemistry section of the Charlotte–Mecklenburg Police Department crime lab and analyzes evidence for the presence of controlled substances. Leiser also testified that she conducted two drug analyses—one for marijuana and one for cocaine:
State's Exhibit 4, I received several bags containing plant material. I did a microscopic analysis on nine of those bags. A microscopic analysis, I was looking for plant hairs that are specific to marijuana. I then followed that up with four bags [sic] were tested on an instrumentation called the gas chromograph and mass spectrometer.
...
The microscopic analysis indicated that hairs were present that are specific to the marijuana plant. The instrumentation that I used found the presence of delta–9 tetrahydrocannabinol, also indicative of the marijuana plant.
...
In testing State's Exhibit 5, I used a chemical color test, and I followed that up also with the use of the gas chromograph and mass spectrometer.
...
When I tested the substance on the gas chromograph, I found that cocaine was present.
Here, the record supports that the lab tests were performed for the purpose of analyzing controlled substances—marijuana and cocaine—possessed by defendant. Therefore, the trial court did not err by ordering defendant to pay $1,200.00 in restitution for the two analyses of controlled substances, performed by the Charlotte–Mecklenburg Police Department crime lab, that led to defendant's conviction. Defendant's argument is overruled.
No error. Chief Judge MARTIN and Judge DAVIS concur.
Report per Rule 30(e).