Opinion
No. 07-750.
Filed March 4, 2008.
Mecklenberg County No. 06CRS242184-86.
Appeal by defendant from the judgment entered 11 April 2007 by Judge James E. Lanning and from the order entered 29 March 2007 by Judge Nathaniel J. Poovey both in Mecklenburg County Superior Court. Heard in the Court of Appeals on 9 January 2008.
Attorney General Roy A. Cooper III, by Assistant Attorney General V. Lori Fuller, for the State. Tin, Fulton, Greene Owen PLLC, by Matthew G. Pruden, for defendant-appellant.
When the trial court's findings of fact are supported by competent evidence in the record, they are binding on the appellate courts, even if they conflict with defendant's version of the events.
I. Factual and Procedural Background
On the afternoon of 5 September 2006, Brian Sherard Howey (defendant) was operating a motor vehicle and was stopped by Officer Sherwood of the Charlotte-Mecklenberg Police Department for an apparent seat belt violation. Officer Sherwood noticed that defendant was sweating profusely and behaving in a nervous manner. Defendant claimed to be operating a private taxi service with hispersonal vehicle, but could not tell Officer Sherwood the identity or precise location of his next scheduled pickup. The officer also noticed a strong smell of air freshener inside the car and noticed that carpet freshener had been sprinkled liberally across the floor of the vehicle. After another officer arrived on the scene, Officer Sherwood asked defendant if there was any contraband inside the vehicle. Defendant shook his head to indicate "no." Officer Sherwood then asked defendant if he could search him and his person, to which defendant did not respond. Officer Sherwood repeated his question. Defendant shrugged, responded "okay," and stepped out of the vehicle. In his search of defendant, Officer Sherwood found several bundles of cash and a bag of cocaine. A subsequent search of defendant's vehicle revealed a large amount of cocaine and drug paraphernalia.
Defendant was indicted for the Class F felonies of trafficking in cocaine by transportation of 28-200 grams and trafficking in cocaine by possession of 28-200 grams. Defendant was also charged with possession of drug paraphernalia. Defendant filed a motion to suppress. Following a hearing, Judge Poovey denied the motion. Defendant then entered a plea of guilty to the trafficking by possession charge, reserving his right to appeal the denial of his motion to suppress. The remaining charges were dismissed by the State and defendant received the mandatory sentence of 35-42 months imprisonment. Defendant appeals.
II. Standard of Review
In reviewing a denial of a motion to suppress, we must first determine if the trial court's findings were "supported by competent evidence, even if the evidence is conflicting." State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (citation omitted). We then determine if the trial court's conclusions of law based on this evidence were "legally correct." State v. Parker, 644 S.E.2d 235, 240 (2007) (quoting State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120-21 (2002)).
III. Denial of Motion to Suppress A. Lack of Consent to Search
In his first argument, defendant contends that he never gave consent to search his person or vehicle, and that the trial court erred in denying his motion to suppress. We disagree.
Defendant argues that his statement to the officer of "okay" was only an acknowledgment of his decision to exit the vehicle and was not consent for the officer to search his person.
Defendant relies on State v. Pearson, 348 N.C. 272, 498 S.E.2d 599 (1998), in which the Supreme Court of North Carolina ruled that there must be "clear and unequivocal consent before a defendant can waive his constitutional rights." Id. at 277. In Pearson, the officer asked the suspect to wait in his patrol car and obtained a signed consent form for the search of his vehicle. Id. at 275-76. It was only later that another officer informed the suspect that his person would be searched, and the officer began to do so without consent. Id. at 276.
In the instant case, the trial court found the following: Officer Sherwood then asked the defendant if he had anything illegal in the car or any kind of contraband; the defendant shook his head and indicated no. Officer Sherwood then asked the defendant if it was okay for him to search the vehicle and the defendant's person. The defendant did not say anything or reply at first.
Officer Sherwood then asked the defendant a second time if it was okay for him to search the defendant's person and the vehicle that he was driving. At this time the defendant shrugged his shoulders and said okay and started to get out of his vehicle. Officer Sherwood did not touch the defendant and did not open the door for him, but rather it is clear on the video that the defendant opened his own door and exited the vehicle.
We hold that these findings are supported by competent evidence in the record and are thus binding upon this court.
We now turn to whether these findings of fact support the trial court's conclusion of law that defendant voluntarily consented to the search of his person and his vehicle. Defendant requests that we reverse his conviction based upon his version of the facts, which were not found by the trial court. In its detailed findings, the trial court did not find that Officer Sherwood requested that defendant exit the vehicle at the time he requested permission to search defendant's person and vehicle. Thus, defendant's response of "okay" was to the request to search the defendant's person and his vehicle.
We hold that defendant voluntarily consented to the search of his person and vehicle, and that none of his constitutional rights, either federal or state, were violated by these two searches. The search of defendant's vehicle was also proper as a search incident to his arrest. See New York v. Belton, 453 U.S. 454, 460, 69 L. Ed. 2d 768, 775 (1981).
We hold that the trial court's findings of fact were supported by competent evidence and that they support the conclusions of law. This argument is without merit.
B. Lack of Probable Cause
In his second argument, defendant contends that the officers did not have probable cause to search his person. We have previously held that defendant consented to the search by Officer Sherwood. Thus, we do not reach this argument.
C. Motion Timely Filed
In his third argument, defendant contends that the trial court incorrectly found as an alternate basis for denying the motion to suppress that the motion was not timely filed. Since we have already determined that the defendant's motion to suppress was properly denied on its merits, we do not reach this argument.
Affirmed.
Judges McCULLOUGH and GEER concur.
Report per Rule 30(e).