Opinion
No. COA09-684.
Filed February 16, 2010.
Forsyth County No. 07CRS052590.
Appeal by defendant from judgment entered 29 October 2008 by Judge Jerry Cash Martin in Superior Court, Forsyth County. Heard in the Court of Appeals 17 November 2009.
Attorney General Roy Cooper, by Assistant Attorney General John R. Green, Jr., for the State.
Glenn Gerding, for Defendant-appellant.
"The theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions." Here, Defendant Leobardo Saucedo Garcia argued to the trial court that his consent to search his residence was not voluntarily given. He argues on appeal that he was seized in violation of his constitutional rights. Because Defendant did not make this argument to the trial court, we dismiss his appeal.
State v. Hunter, 305 N.C. 106, 112, 286 S.E.2d 535, 539 (1982).
On 15 March 2007, detectives from the Winston-Salem Police Department were conducting surveillance on Javier Fuentes at a hotel based on their suspicion that he was involved in drug trafficking. While observing Fuentes at the motel, Detective Kim Jones, who was acting undercover, saw Defendant make contact with Fuentes. Detective Jones and Defendant waved at one another.
The detectives maintained moving surveillance of Fuentes, and followed him to a Winston-Salem laundromat. After speaking on his cell phone for some time in his vehicle, Fuentes went into the laundromat where he met with a white female, Tara Allen. Fuentes and Allen disappeared into the back of the laundromat, and then Allen exited the laundromat and did something in the passenger area of Fuentes' vehicle. She then went back inside the laundromat to speak to Fuentes and Ricardo Cornejo. She then exited the laundromat and drove away in her car.
Detective J.D. Grigsby conducted a stop of Allen's vehicle. According to the testimony of Detective Jones, Detective Grigsby informed Detective Jones that officers located methamphetamine in Allen's vehicle. Allen informed officers that she had picked up the drugs from a Hispanic male known as "Luis" at the laundromat. Defendant later identified "Luis" as Fuentes.
After Allen left the laundromat, Defendant arrived there at approximately 3:35 p.m. Defendant got into the passenger area of Fuentes' vehicle and spoke with him. After Detective Jones learned from Detective Gribsby about the stop of Allen's vehicle and the discovery of methamphetamine, she radioed for assistance. Detectives Paul and Diamont arrived and made contact with Fuentes and Defendant. Detective Jones then joined the other detectives to speak with Fuentes and Defendant. Fuentes and Defendant were placed in handcuffs for officer safety. None of the detectives were uniformed, but they were clearly identified as Winston-Salem police officers.
Defendant testified, and the trial court found as a fact, that the officers' weapons were drawn when they approached the vehicle.
Detective Jones did not tell Fuentes and Defendant that they were under arrest, but told them they were being detained for a narcotics investigation. She told them they were being handcuffed for officer safety. Detective Jones observed a blue bank bag with some currency in plain view in the passenger seat of Fuentes' vehicle. Detective Jones testified that she did not have her weapon drawn. She spoke to Defendant, and he appeared to speak very good English. Defendant denied seeing Fuentes or Detective Jones earlier in the day. Detective Jones reminded Defendant that they had waved to one another, and Defendant admitted that he had gone to the motel to visit Luis (i.e. Fuentes) earlier in the day.
Defendant denied having any weapons, drugs, or currency in his vehicle, and consented to a search of his vehicle. Defendant indicated that he understood a consent-to-search form, and signed it. The search of Defendant's vehicle revealed a hidden compartment in the back, but no drugs or contraband. At the suppression hearing, Detective Jones testified that while they were at the laundromat Defendant consented to a search of his residence. Defendant was detained at the laundromat for approximately 45 minutes to an hour before being transported to his residence in handcuffs.
Detective Grigsby and Officer Atkins transported defendant to the apartment that Defendant shared with his girlfriend. Defendant was still in handcuffs and Detective Grigsby testified that he was still not free to leave. Detective Grigsby obtained a consent-to-search form from Defendant when they got to the residence.
Defendant's girlfriend, Amelia Esquivel Murill, was at the residence. Officer Grigsby testified that she consented verbally to a search of the residence. Because Murill did not understand English, Defendant translated for the officers. During the search, Defendant and Murill were seated on the couch. Detective Grigsby testified that Defendant "spontaneously uttered . . . that he did have drugs, and pointed to his closet — the downstairs closet." Officers located a white trash bag containing methamphetamine in the back of the closet.
This name is spelled both "Murill" and "Murillo" in the transcript.
Detective Jones arrived and found Defendant and Murill on the couch. Defendant was still wearing handcuffs. Detective Jones had Defendant speak to Murill in Spanish, and Murill signed a consent-to-search form. Detective Jones informed Defendant of his Miranda rights, and asked him to make a statement. Defendant told Detective Jones "his part of this whole incident" at his residence, and provided a written statement, in English, at the police station. Detective Jones testified that she and the other officers did not threaten, harass, coerce, or force Defendant to cooperate at any time during the entire investigation.
A grand jury indicted Defendant for trafficking in, and possession with intent to sell or deliver, methamphetamine. Before trial, Defendant made a motion to suppress evidence, asserting that his consent was the product of police coercion and threats. On 28 October 2008 Judge Jerry C. Martin conducted a hearing. The court ultimately denied Defendant's motion to suppress. Defendant reserved the right to appeal the denial of his motion, and pled guilty to both charges. This appeal followed. The sole issue raised on appeal is whether the trial court erred in denying defendant's motion to suppress.
We first address the question of whether Defendant has properly preserved the issue he now seeks to appeal. The State observes that Defendant's arguments below concerned the voluntariness of his consent to the search. The State objects to Defendant's now arguing that police lacked reasonable suspicion or probable cause to detain him. The State argues that Defendant's failure to raise that issue below forecloses review by this Court.
"In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R. App. P. Rule 10(a)(1)(2010). Our Courts have consistently held that "Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal" State v. Lloyd, 354 N.C. 76, 86-87, 552 S.E.2d 596, 607 (2001). In State v. Sharpe, 344 N.C. 190, 473 S.E.2d 3 (1996), our Supreme Court recognized "that where a theory argued on appeal was not raised before the trial court, `the law does not permit parties to swap horses between courts in order to get a better mount in the [reviewing court]'" Id. at 194, 473 S.E.2d at 5 (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)).
This rule was applied in State v. Hunter, 305 N.C. 106, 286 S.E.2d 535, to foreclose defendant's challenge on appeal to the legality of his arrest where he had argued below only that his confession was not voluntarily given. Id. at 112-13, 286 S.E.2d at 539. None of the trial court's findings and conclusions repeated in Hunter addressed the legality of defendant's arrest. Id. at 109-10, 286 S.E.2d 537-38; see also State v. Benson, 323 N.C. 318, 321, 372 S.E.2d 517, 519 (1988) (applying Hunter where "[t]he trial judge's order is based upon the voluntariness theory, without mention of the legality of defendant's arrest").
In his Motion to Suppress, Defendant in this case contended "that his purported consent to search was not a free and voluntary act, but was rather the product of coercion and threats made by offices [sic] of the Winston-Salem Police Department."[R6] He went on to state that:
[an] evidentiary hearing will show that Defendant's statements were not knowingly and voluntarily made, and were obtained in violation of Defendant's right to be free from unreasonable searches and seizures. Defendant contends, under a totality of the circumstances analysis, that his purported consent was Constitutionally invalid.
Obviously, the issue of the voluntariness of Defendant's consent to the search is connected with the issue of whether police had probable cause or reasonable suspicion to detain him, but the issues are separate and distinct. Nowhere in his Motion to Suppress does Defendant allege (as he does on appeal) that the seizure of his person was illegal.
Benson applied the rule to a similar scenario:
This alleged error is based upon a written pretrial motion to suppress. Defendant did not rely upon unlawful arrest as a basis for his motion. It was not mentioned or argued to the trial judge. The motion to suppress specifically states the grounds for the motion, and unlawful arrest is not one of them.
323 N.C. at 321, 372 S.E.2d at 518-19.
Moreover, Defense counsel's argument to the trial court was limited to the issue of whether Defendant's consent was voluntary. He called this issue "a dispositive issue in the case," and went on to argue that "when it comes to consent there must be a clear and unequivocal consent before a defendant can waive his constitutional rights." Defense counsel recited the facts of Defendant's detention to cast doubt on whether his consent was voluntary. "And I think the fact that that sort of fast-and-loose procedure was used in this case . . . casts severe doubt upon whether or not the consent form signed by [Defendant] was either done just in the normal manner or course of business . . . or the product of some degree of duress." In summation, Defense counsel stated "there is a very colorful showing of coercion against [Defendant]."
The only other issue argued by Defense counsel involved Defendant's command of the English language. Yet even this was ancillary to the issue of consent. Defendant counsel argued, "[w]e have further possibilities of coercion due to communication difficulties." Nowhere in his argument to the trial court does Defense counsel assert the illegality of Defendant's arrest or detention.
In the affidavit attached to Defendant's Motion to Suppress, Defendant alleged that "I do not speak very good English," and stated: "The only reason I finally signed the form was because of the threats and pressure the police put on me by their words and actions."
We recognize that the trial court made conclusions of law specifically regarding the legality of Defendant's detention:
The court does conclude that there was a reasonable, articulable suspicion by a law-enforcement officer to detain the defendant, Leobardo Garcia. The court finds — or concludes that it was reasonable to handcuff the defendant, to detain and control for officers' safety.
. . .
The court concludes that the detention, the handcuffing, and the transportation of the defendant were reasonable in length, scope, manner, and duration.
. . .
Further, the court concludes that none of defendant's constitutional rights, either federal or state, was violated by defendant's detention or arrest or search of his premises or his vehicle.
That the trial court made such conclusions distinguishes this case somewhat from Hunter and Benson, where the appellant sought review of an issue upon which the trial court had not ruled. It does not remove this case, however, from the general requirements of our rules of appellate procedure. See N.C. R. App. P, Rule 10(a)(1). With due regard for the closeness of this case, we are constrained to conclude that Defendant has not preserved the issue of whether his seizure violated his Constitutional rights.
While the trial court's conclusions of law are usually reviewable de novo, we cannot ignore the prejudice to the opposing party that would result from our review of an issue insufficiently ventilated below. We are persuaded by the State's contention that "we do not know what additional corroborative and/or other evidence could have been introduced by the State" had Defendant pursued his current argument at the trial level. Defendant's appeal is consequently,
Dismissed.
Judge CALABRIA and Judge BEASLEY concur.
Report per Rule 30(e).