Opinion
No. COA10-630
Filed 15 March 2011 This case not for publication
Appeal by Defendant from judgment entered 26 January 2010 by Judge Ronald E. Spivey in Superior Court, Guilford County. Heard in the Court of Appeals 1 November 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Philip A. Telfer, for the State. Wyrick Robbins Yates Ponton LLP, by Edward Eldred for Defendant-Appellant.
Guilford County Nos. 09 CRS 73540-42, 73546.
Chamroeun Hean (Defendant) pled guilty on 19 January 2009 to one count each of trafficking in cocaine by possessing 28 grams or more, possession with intent to sell cocaine, carrying a concealed gun, conspiracy to traffic in more than 28 grams of cocaine, and possession of a stolen firearm. Defendant was sentenced to one consolidated term of thirty-five to forty-two months in prison. Defendant filed a motion to suppress evidence seized during a warrantless search
upon the grounds that its exclusion [was] required by the Constitution of the United States and the Constitution of North Carolina; and that such evidence was obtained as a result of substantial violations of the provisions of Chapter 15A of the North Carolina General Statutes in that no Search Warrant was obtained by law enforcement officers for the search of . . . Defendant or . . . Defendant's property[.]
Defendant also alleged in his motion that "any consent obtained for said search was a product of coercion obtained during a time when . . . Defendant was seized and that there were no exigent circumstances necessitating such a search[.]" The trial court denied Defendant's motion by order entered 21 December 2009. Defendant specifically reserved the right to appeal the trial court's order and gave oral notice of appeal in open court.
Officer Anthony Hill and Corporal W. Krawczynski had information that Defendant was usually at a house located at 2242 West Florida Street in Greensboro, and that Defendant was usually armed. The officers also had information that this house was a location used by the Tiny Rascal Gang, an Asian gang reported to be involved in criminal activity, including "anything from possessing and selling and obtaining firearms to distributing narcotics, and property crimes as well; robberies, thefts." The officers also had information that Defendant drove a red Acura Integra. Based on this information, Officer Hill, along with Officer Coggins, set up surveillance outside the Florida Street house, with Corporal Krawczynski located a short distance away. Corporal Krawczynski could see Florida Street and would be able to "pick up" and follow any vehicle leaving the Florida Street house. Officer Hill noticed two males, one being Defendant, get into a red Acura Integra, pull out of the driveway of the Florida Street house, and head west on Florida Street. Officer Hill notified Corporal Krawczynski of Defendant's movement, and Corporal Krawczynski followed Defendant in an unmarked police car.
Defendant drove down Florida Street and onto Holden Road, and then approached Market Street. Corporal Krawczynski pulled up beside Defendant's vehicle and observed that Defendant, and a passenger in Defendant's vehicle, were not wearing seatbelts. Corporal Krawczynski turned on his lights and siren, indicating that he was initiating a traffic stop; however, Defendant did not immediately pull over. Instead, Defendant quickly made a turn into a business parking lot. He accelerated and made a quick turn into an apartment complex, where he accelerated up a driveway. Defendant made another quick turn into a parking lot where the passenger attempted to exit Defendant's vehicle. As the passenger began to exit Defendant's vehicle, Corporal Krawczynski got out of his vehicle and approached Defendant's vehicle with his gun drawn and pointed in Defendant's direction. Corporal Krawczynski asked Defendant to put his hands where Corporal Krawczynski could see them. Corporal Krawczynski later put his gun away and asked Defendant for his driver's license and vehicle registration. Corporal Krawczynski noticed that Defendant was breathing fast and that Defendant's hands were unsteady. At this point, Officer Hill and Officer Coggins arrived at the scene. Corporal Krawczynski went back to his vehicle to run a check on Defendant's driver's license and registration information while Officer Hill and Officer Coggins stayed with Defendant and the passenger. While Corporal Krawczynski was running a check on Defendant's driver's license and registration, Officer Hill went to the driver's side of Defendant's vehicle. Officer Hill also noticed that Defendant was nervous and that Defendant's hands were shaking. To insure his safety, Officer Hill requested that Defendant exit the red Acura Integra. As Defendant did so, Officer Hill asked Defendant if he had any weapons on him and if Officer Hill "could pat down [Defendant's] pockets." Defendant said, "no." Officer Hill then noticed a large bulge in Defendant's left pocket and asked Defendant what the bulge was. Defendant told Officer Hill that it was a cell phone, and Defendant began to reach into his pocket. Officer Hill told Defendant not to remove it because Officer Hill was concerned that it could be a weapon. Officer Hill then asked Defendant if he could remove the object. Defendant allowed Officer Hill to reach into Defendant's left pocket and remove a cell phone. After doing so, Officer Hill noticed there was still a bulge in Defendant's left pocket and asked Defendant if he "could take it out." Defendant replied, "yes." Officer Hill then retrieved a second cell phone from Defendant's left pocket.
Officer Hill observed a smaller bulge in Defendant's right pocket. When Officer Hill asked Defendant about that bulge, Defendant became restless and Officer Hill became concerned that Defendant might flee. Officer Hill said to Defendant: "Look, if its marijuana, just calm down." Officer Hill continued to try to calm Defendant by saying: "Look, if its marijuana, you know it's all right. Don't get upset." Defendant responded: "It's dope." Officer Hill reached into Defendant's pocket and removed what was later determined to be cocaine. Officer Hill asked Defendant if he had any weapons. Defendant said he "had a gun under the seat." Officer Hill then recovered a gun from under Defendant's seat.
While Corporal Krawczynski was running the check on Defendant's license and registration, Officer Hill was questioning Defendant and recovered the drugs and gun. When Corporal Krawczynski completed his check, he joined Officer Hill at Defendant's vehicle and Officer Hill informed him of the situation. Officer Hill then told Defendant that he was under arrest.
Defendant's sole argument is that the trial court erred in denying Defendant's motion to suppress. Defendant contends that the stop exceeded what was necessary to investigate a seat belt violation. Defendant argues that the stop was not "carefully tailored" to its underlying justification, State v. Morocco, 99 N.C. App. 421, 427-28, 393 S.E.2d 545, 549 (1990), and, therefore, violated his Fourth Amendment right to be free from unreasonable seizures.
Our review of the denial of a motion to suppress is "limited to [a] determination [of] whether the trial [court's] findings of fact are supported by competent evidence," and "whether those findings" are, in turn, supported by legally correct "conclusions of law." State v. Bone, 354 N.C. 1, 7, 550 S.E.2d 482, 486 (2001); see also State v. Willis, 125 N.C. App 537, 481 S.E.2d 407 (1997).
Defendant first contends that one of the trial court's findings of fact was not supported by competent evidence. The trial court made a finding that Corporal Krawczynski approached Defendant's vehicle with his service weapon drawn and "held to his side." However, Corporal Krawczynski testified: "I'm inclined to recall that I actually approached the vehicle with it out and pointed it in the direction of the vehicle and actually told them to put their hands on the — where I could see them." There was no evidence presented at the suppression hearing indicating that Corporal Krawczynski approached Defendant's vehicle with his weapon "held to his side." This finding of fact is not supported by competent evidence, and we proceed in our analysis assuming that Corporal Krawczynski was pointing his weapon in Defendant's direction as Corporal Krawczynski initially approached Defendant's vehicle.
Defendant argues that the seizure by the officers was unconstitutional. Defendant contends that the investigative methods employed by the officers, including Corporal Krawczynski's approaching Defendant's vehicle with his gun drawn, were not "the least intrusive means reasonably available[,]" nor were they reasonably related to the purpose of issuing Defendant a citation for failing to wear his seat belt. Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238 (1983).
Whether Corporal Krawczynski had his gun to his side or pointed in the direction of the vehicle is irrelevant. Officers may take whatever means are reasonably necessary to protect their safety without converting the stop to a de facto arrest. United States v. Henley, 469 U.S. 221, 233-35, 83 L. Ed. 2d 604, 616 (1985); see also Pennsylvania v. Mimms, 434 U.S. 106, 110-12, 54 L. Ed. 2d 331, 337-38 (1977). The reasonableness of the officers' conduct is dependent on the "balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Mimms, 434 U.S. at 109, 54 L. Ed. 2d at 336.
Corporal Krawczynski was informed that members of the Tiny Rascal Gang lived and met in the house on Florida Street. Although it is unclear whether Defendant was a member of the Tiny Rascal Gang, Corporal Krawczynski was informed that Defendant visited the Florida Street house regularly, that Defendant was usually armed when he went to the Florida Street house, and that Defendant drove a red Acura Integra. Furthermore, Corporal Krawczynski was told that, if Defendant's car was at the Florida Street house, Defendant was likely to be either transporting or delivering drugs and guns. Based on this information, it was reasonable for Corporal Krawczynski to believe that Defendant might be armed and dangerous. Therefore, Corporal Krawczynski's action in pointing his gun in the direction of Defendant's vehicle to protect his safety was reasonable. The reasonableness of Corporal Krawczynski's conduct was confirmed when a firearm was subsequently recovered from beneath Defendant's seat.
Defendant next argues that the trial court erred in finding that the officers' seizure was constitutional because the seizure was not "`carefully tailored to its underlying justification.'" Morocco, 99 N.C. App. at 427-28, 393 S.E.2d at 549 (quoting Royer, 460 U.S. at 500, 75 L. Ed. 2d at 238). Defendant argues that the scope of the seizure should have been limited to confirming Corporal Krawczynski's suspicion that Defendant was not wearing a seat belt. Specifically, Defendant argues that, when the officers ordered him out of his vehicle and began questioning him about the bulge in his right pocket, their questioning was not reasonably related to the purpose of issuing a ticket for a seat belt violation.
The trial court ruled that the investigation was lawful because the questioning by the officers did not prolong the stop beyond the time necessary to run a license and registration check, which was a proper action for a seat belt violation. When a person is lawfully stopped, an officer may ask questions, which the person stopped is free to answer or not, so long as the officer does not detain the person longer than the underlying justification for the stop requires. Arizona v. Johnson, 555 U.S. __, __, 172 L. Ed. 2d 694, 704 (2009). There is no Fourth Amendment violation when police order the driver of a lawfully detained vehicle to exit that vehicle. State v. McGirt, 122 N.C. App 237, 468 S.E.2d 833 (1996). "[F]ace-to-face confrontations outside the automobile `reduce[] the likelihood that the officer will be the victim of an assault' and . . . exiting the automobile is not a `serious intrusion upon the sanctity of the person.'" Id. at 239, 468 S.E.2d at 834-35 (quoting Mimms, 434 U.S. at 110, 54 L. Ed. 2d at 336).
Defendant argues that the trial court erred in finding that Officer Hill's questioning of Defendant did not prolong Defendant's detention and, therefore, did not violate the Fourth Amendment. Defendant relies on Morocco, and State v. Jackson, ___ N.C App.___, 681 S.E.2d 492 (2009), to support his position. The facts in the case before us are distinguishable from both those cases. In Jackson, the defendant was stopped because a deputy suspected that the driver was operating the vehicle without a license. Jackson, ___ N.C. App. at ___, 681 S.E.2d at 494. In that case, it was not until "after the traffic stop was pretty much over" that the deputy asked the defendant if there was anything illegal in the vehicle. Id. In the back passenger door panel, another officer "discovered a bag of white powder which was later determined to be cocaine[,]" Id. at ___, 681 S.E.2d at 495, and a gun fell from the bottom of the door panel where the cocaine was discovered. Id. The interrogation of the defendant in Jackson extended "the detention beyond the scope of the original traffic stop" because "the interrogation was not necessary to confirm or dispel [the deputy's] suspicion that [the defendant] was operating without a valid driver's license and it occurred after [the deputy's] suspicion that [the defendant] was operating without a license had already been dispelled." Id. at ___, 681 S.E.2d at 496-97. In Jackson, our Court held that the deputy's continued detention and questioning of the defendant after determining that the defendant had a valid driver's license was unconstitutional. Id. at ___, 681 S.E.2d at 497. Our Court further held that the gun and the cocaine were discovered as a direct result of an illegal search and should have been suppressed as fruit of the poisonous tree. Id. at ___, 681 S.E.2d at 498.
In Morocco, the defendant was stopped for a seat belt violation and was given a warning citation. Morocco, 99 N.C. App. at 424, 393 S.E.2d at 547. A trooper asked the defendant for his driver's license and vehicle registration. Id. After the trooper issued the defendant a warning ticket and returned the defendant's driver's license and vehicle registration, the trooper asked the defendant if he could search the defendant's vehicle. Id. at 425, 393 S.E.2d at 547. The defendant agreed. Id. The trooper briefly patted down the defendant for weapons, and found none. Id. The trooper then searched the trunk area of the defendant's vehicle, and again found nothing. Id. Finally, the trooper found a tote bag on the back seat of defendant's vehicle which the trooper believed contained an illegal substance. Id. Our Court found that the defendant voluntarily consented to the search of his vehicle. Id. at 429, 393 S.E.2d at 550. We also found that the search did not exceed the scope of the defendant's consent when his tote bag was searched. Id. In Morocco, after the lawful traffic stop had concluded, the defendant gave the trooper consent to search his vehicle. Id. In the case before us, however, Officer Hill's questioning of Defendant did not extend beyond the time needed to complete the tasks incident to the lawful stop.
An officer's inquiry into matters unrelated to the reason for the traffic stop does not convert the encounter into something other than a lawful seizure. Muehler v. Mena, 544 U.S. 93, 100-02, 161 L. Ed. 2d 299, 308-09 (2005). An officer may question the person who was otherwise lawfully detained concerning matters unrelated to the stop, so long as the duration of that detention is not prolonged. Johnson, 555 U.S. at ___, 172 L. Ed. 2d at 704, see also United States v. Davis, 645 F. Supp. 2d 541, 550 (2009) (holding that the officers' request for consent did not unreasonably extend the duration of the stop).
In Johnson, police officers stopped the defendant's vehicle for a vehicular infraction warranting a citation. Id. at ___, 172 L. Ed. 2d at 700. While one officer was checking the defendant's driver's license and information about the vehicle's registration and insurance, a second officer questioned and conducted a pat down of the defendant. Id. In Johnson, the Court held that "[a]n officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop." Id. at ___, 172 L. Ed. 2d at 704. Since the first officer's questioning of the defendant occurred while the second officer was taking the necessary steps to issue a citation, the questioning by the first officer did not prolong the stop. Id. Similarly, in the present case, the voluntary statements made by Defendant to Officer Hill, and Officer Hill's removal of the drugs from Defendant's pocket, took place while the check on Defendant's driver's license and registration was still being processed. Therefore, any seizure of Defendant did not extend beyond the time necessary to conduct a legal investigation pursuant to the observed seat belt violation.
Defendant made a "voluntary disclosure" during the course of a lawful stop and the stop was not extended by the questions asked by Officer Hill. As long as the length of a legal traffic stop has not been extended, and the defendant has voluntarily responded to questioning during that time, a Fourth Amendment violation has not occurred. Id. We hold the trial court did not err in denying
Defendant's motion to suppress.
Affirmed.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).