Opinion
No. 05-520.
Filed January 3, 2006.
Craven County Nos. 03 CRS 53113; 03 CRS 53114.
Appeal by defendant from judgment entered 20 September 2004 by Judge Benjamin G. Alford in Craven County Superior Court. Heard in the Court of Appeals 7 December 2005.
Attorney General Roy Cooper, by Assistant Attorney General Rudy Renfer, for the State. McCotter, Ashton Smith, P.A., by Rudolph A. Ashton, III, for defendant-appellant.
Roy Thomas Nesbitt ("defendant") appeals from the trial court's denial of his motion to suppress. We affirm.
The evidence presented at trial showed the following. On 27 May 2003, Deputy Steve Fifer ("Deputy Fifer") of the Craven County Sheriff's Office was on patrol at the Trent River Bridge in Craven County when he saw defendant approaching in his blue Datsun pick-up truck. Deputy Fifer possessed personal knowledge defendant was driving without a valid driver's license. Based on this knowledge, Deputy Fifer stopped defendant on Pollock Street. At the time of the stop, defendant's license was indeed suspended or revoked. Deputy Fifer observed two occupants in the truck, and discovered that the other occupant was defendant's wife, Tasha Nesbitt ("Tasha Nesbitt"). Deputy Fifer informed defendant why he had stopped him and requested his consent to search the vehicle. After defendant consented, Deputy Fifer used his K-9 to search the vehicle, and the K-9 discovered a clear plastic bag containing marijuana on the driver's side floorboard.
Deputy Fifer ordered Tasha Nesbitt out of the vehicle and requested her consent to search her pocketbook. Deputy Fifer testified that Tasha Nesbitt consented, but Tasha Nesbitt denied that she gave consent. Deputy Fifer discovered a plastic bag containing marijuana in her pocketbook. Defendant claimed the marijuana located in his wife's pocketbook belonged to him. Defendant and Tasha Nesbitt were subsequently transported to the Craven County Sheriff's Department for further interrogation. Upon their arrival, defendant invoked his Fifth Amendment right against self-incrimination and declined to answer the officers' questions. Tasha Nesbitt did not invoke her right against self-incrimination, and according to two officers, Tasha Nesbitt gave them consent to search the family residence ("the residence"). Tasha Nesbitt accompanied the officers to the residence. Inside a storage trailer at the residence, the officers discovered thirty (30) pounds of marijuana. Tasha Nesbitt testified that she felt that if she did not consent, she would be charged.
Defendant was indicted on trafficking in marijuana, possession with intent to sell and deliver marijuana, and driving a motor vehicle without a license. Defendant filed a motion to suppress all evidence seized from his vehicle and his residence. The trial court denied the motion. Defendant plead guilty to trafficking in marijuana; the other charges were dismissed; and defendant expressly reserved his right to appeal the denial of his motion to suppress. The trial court sentenced defendant to a minimum of 25 months and a maximum of 30 months in the North Carolina Department of Correction. Defendant appeals.
I. Constitutionality of the Stop of Defendant's Vehicle
Defendant initially argues that "the stop of [his] vehicle was pretextual and without a reasonable, articulable suspicion or probable cause, and the trial court erred in finding that the stop was lawful." Specifically, defendant assigned error to the trial court's finding of fact that "Deputy Fifer knew that [defendant] did not have a North Carolina Driver's license from some prior interaction with the defendant" and what defendant claims to be the trial court's conclusion that the stop was lawful. When reviewing a motion to suppress, a "trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Smith, 160 N.C. App. 107, 114, 584 S.E.2d 830, 835 (2003) (citations and quotations omitted). We will affirm a motion to suppress if a trial court's challenged conclusions of law are supported by the findings. State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993). In the case sub judice, we are unable to review defendant's first assignment of error because the trial court's conclusion does not relate to the issue of the lawfulness of the stop. The trial court concluded that "[n]one of the defendant['s] constitutional rights, either Federal or State, were violated by his arrest or by the search of the pocketbook of Tasha Nesbitt or the residence of the defendant and Tasha Nesbitt." (Emphasis added). Defendant did not assign error to the absence of a conclusion regarding the lawfulness of the stop; thus, this issue has not been preserved for appellate review. N.C.R. App. P. 10(a) (2005) (stating, "[e]xcept as otherwise provided herein, the scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal in accordance with Rule 10").
II. Constitutionality of the Search of Defendant's Residence and Tasha Nesbitt's Pocketbook
Defendant next argues that the trial court erred in finding that Tasha Nesbitt consented to the search of her pocketbook and their residence. Specifically, defendant argues that the trial court further erred in concluding that Tasha Nesbitt "freely, voluntarily, and knowingly" consented to the searches and that "[n]one of the defendant['s] constitutional rights, either Federal or State, were violated . . . by the search of the pocketbook of Tasha Nesbitt or the residence of defendant and Tasha Nesbitt."
We initially note that defendant has no standing to challenge the search of Tasha Nesbitt's pocketbook because he had no reasonable expectation of privacy in it. See Rawlings v. Kentucky, 448 U.S. 98, 104-05 (1980) (holding that a defendant had no reasonable expectation of privacy in his companion's purse); Statev. Jordan, 40 N.C. App. 412, 414-15, 252 S.E.2d 857, 859 (1979) (holding that a defendant had no reasonable expectation of privacy in the pocketbook of a passenger in his vehicle). Accordingly, we do not reach the related assignments of error.
Regarding the search of the residence, defendant assigned as error that "[t]he trial court erred in finding as fact that [Tasha Nesbitt] consented to the search of their residence and premises." Defendant argues that Tasha Nesbitt did not consent because "any consent was not freely and voluntarily given, but was the subject of coercion and duress." After reviewing the briefs, trial transcript, and record on appeal, we hold that the trial court's finding is supported by competent evidence. We, therefore, reject this assignment of error.
Defendant also challenges the trial court's conclusions of law that "[n]one of the defendant['s] constitutional rights, either Federal or State, were violated by . . . the search of the . . . residence of the defendant and Tasha Nesbitt" and that "[the consent given by Tasha Nesbitt for the search of . . . the residence of the defendant were freely, voluntarily, and knowingly consented to." However, in his brief, defendant merely challenges the sufficiency of the evidence and fails to state any argument why the findings were inappropriate or otherwise fail to support the conclusions of law. Accordingly, defendant abandoned this assignment of error. N.C.R. App. P. 28(b)(6) (2005) (stating, "[a]ssignments of error . . . in support of which no reason or argument is stated or authority cited, will be taken as abandoned").
In his final assignment of error, defendant assigns error to the trial court's denial of his motion to suppress. For the foregoing reasons, we reject this assignment of error.
Affirmed.
Judges BRYANT and JACKSON concur.
Report per Rule 30(e).