Opinion
NO. COA11-91
09-06-2011
STATE OF NORTH CAROLINA v. PHILLIP LEE THOMAS
Roy Cooper, Attorney General, by Richard E. Slipsky, Special Deputy Attorney General, for the State. Robert L. White, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Pitt County No. 08 CRS 59421-2
Appeal by Defendant from judgments entered 24 August 2010 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 23 May 2011.
Roy Cooper, Attorney General, by Richard E. Slipsky, Special Deputy Attorney General, for the State.
Robert L. White, for Defendant.
THIGPEN, Judge.
Phillip Lee Thomas ("Defendant") appeals the denial of his motion to suppress evidence stemming from his arrest on 11 September 2008. Defendant argues that the search of his person incident to arrest was an unreasonable strip search and that the police lacked probable cause to arrest Defendant. We disagree with both contentions and conclude the trial court did not err in denying Defendant's motion to suppress.
On 19 August 2008, the police in Greenville obtained information from a wiretap on Defendant's telephone that Defendant planned to travel to Durham to buy cocaine. Police surveillance teams were notified, and police located and followed a vehicle driven by Kristi Moore, a friend of Defendant, from Greenville to Durham. While in Durham, officers saw Moore get out of the vehicle and enter a nail salon, after which Defendant drove up in a separate vehicle, briefly entered Moore's vehicle, then left.
When Moore left the nail salon, officers continued to follow her vehicle. Moore, however, noticed she was being followed and called Defendant. Defendant told her to get rid of the bag that was in her vehicle. Moore then stopped at a McDonald's restaurant and placed the bag in the trash can in the women's restroom. The police retrieved the bag, which contained approximately one-half kilo of cocaine and some marijuana.
Shortly thereafter, Defendant arrived at the restaurant to retrieve the bag but found it was no longer there. An officer saw Defendant, but decided not to arrest him at the time.
On 11 September 2008, the police department obtained information from the wiretap on Defendant's telephone that Defendant planned to have someone inflict bodily harm on a female who was pregnant with Defendant's child, but refused to have an abortion. The conversation also revealed Defendant was going to make a drug transaction.
With the evidence from the 19 August 2008 incident and the information obtained through the wiretap, the police decided to arrest Defendant without obtaining warrants for Defendant's arrest. Defendant was stopped on a highway exit ramp, taken into custody, and placed in a police car. While in police custody, Defendant's person and vehicle were searched by the officers and a canine unit. The officers found cocaine in the waistband of Defendant's pants. Conflicting testimony was presented as to the nature of the search and whether the entire search was videotaped.
Defendant filed a motion to suppress the evidence obtained by the seizure on 11 September 2008. On 23 and 24 August 2010, the court heard Defendant's motion to suppress. The court denied the motion in open court on 24 August 2010, and thereafter entered a written order denying the motion. The case went to trial, but before the completion of the trial, Defendant decided to plead guilty to one count of trafficking cocaine by possession of more than 400 grams and one count of trafficking cocaine by possession of more than 28 grams but less than 200 grams. The court accepted Defendant's plea and sentenced Defendant to consecutive sentences of 175 to 219 months with a $250,000 fine and 35 to 42 months with a $50,000 fine. Defendant filed written notice of appeal on 31 August 2010.
Initially, this Court must determine whether Defendant has appropriately appealed his conviction, challenging the denial of his motion to suppress, after pleading guilty. The State contends Defendant did not properly give notice of his intention to appeal the denial of his motion to suppress to the prosecutor and to the court before plea negotiations were finalized, and therefore, Defendant waived his right of appeal. For the reasons discussed below, we disagree.
N.C. Gen. Stat. § 15A-979(b) provides, "[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty." Id.; see also State v. Reynolds, 298 N.C. 380, 395, 259 S.E.2d 843, 852 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 795, 100 S. Ct. 2164 (1980). "This is a conditional statutory right, however, and the defendant must notify the State - with specificity - that he intends to appeal the denial of the motion to suppress before entering his guilty plea." State v. Banner, ____ N.C. App. ____, ____, 701 S.E.2d 355, 357 (2010); see also State v. Tew, 326 N.C. 732, 735, 392 S.E.2d 603, 605 (1990) (stating that "when a defendant intends to appeal from the denial of a suppression motion pursuant to this section, he must give notice of his intention to the prosecutor and to the court before plea negotiations are finalized; otherwise, he will waive the appeal of right provisions of the statute") .
In the present case, Defendant's motion to suppress contained the following language: "NOTICE IS GIVEN THAT DEFENDANT RESERVES THE RIGHT TO APPEAL IF THIS MOTION IS DENIED AND THERE IS A SUBSEQUENT PLEA OF GUILTY." The trial court heard the motion to suppress on 23 and 24 August 2010 and denied the motion in open court on 24 August 2010. Defendant also entered a guilty plea on 24 August 2010. The trial court entered its written order denying Defendant's motion to suppress on 27 August 2010, which contained no findings of fact pertaining to Defendant's alleged failure to give notice of his intent to appeal the denial of the suppression motion. Defendant filed a written notice of appeal on 31 August 2010.
We find the opinion in State v. Hernandez, 170 N.C. App. 299, 612 S.E.2d 420 (2005), instructive here. In Hernandez, the defendant filed a motion to suppress that explicitly stated "[n]otice is given that defendant reserves the right to appeal if this motion is denied and there is a subsequent plea of guilty." Id. at 303, 612 S.E.2d at 423. The Court found that several factors, including the foregoing statement in the defendant's motion, were sufficient to show that the defendant gave notice to the State and the court of his intention to appeal the denial of his motion to suppress. Among those factors, the Court explained, were that "[t]he hearing on this motion preceded the plea colloquy, entry of judgment, and oral notice of appeal by only one day[,]" and that "in its written order denying the suppression motion, the trial court made no findings indicating that Defendant failed to give notice of his reserving his right to appeal." Id.
Here, Defendant's motion to suppress contained language indicating he would appeal a denial of the motion; the hearing on the motion, the plea colloquy, and entry of judgment were on the same day; and the trial court made no findings indicating Defendant failed to give notice. Based on this Court's holding in Hernandez, we believe Defendant adequately provided notice to the State and the court of his intention to appeal the court's denial of his suppression motion. Therefore, we conclude that
Defendant preserved the denial of his suppression motion for appeal. We now review Defendant's substantive arguments regarding the denial of his suppression motion.
Standard of Review
"When reviewing a trial court's ruling on a motion to suppress evidence, an appellate court determines whether the challenged findings of fact are supported by (1) competent evidence and (2) whether those findings support the trial court's conclusions of law." State v. Johnson, _ N.C. App. ____, __ , 693 S.E.2d 711, 714 (2010) (citation omitted). The trial court's conclusions of law are reviewed de novo. Id. "A trial court's factual findings are binding on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary." State v. Mello, 200 N.C. App. 437, 440, 684 S.E.2d 483, 486 (2009), aff'd per curiam, 364 N.C. 421, 700 S.E.2d 224-25 (2010) (quotation omitted).
I. Unreasonable Search
In Defendant's first argument on appeal, Defendant contends the trial court erred when it denied his motion to suppress the evidence obtained during the search of Defendant's person on 11 September 2008 because the search the officers performed was an unreasonable and intrusive strip search, which violated Defendant's constitutional rights. We disagree.
"The Fourth Amendment of the United States Constitution and Article 1 § 20 of the North Carolina Constitution preclude only those intrusions into the privacy of the body which are unreasonable under the circumstances." State v. Johnson, 143 N.C. App. 307, 312, 547 S.E.2d 445, 449 (2001) (citation omitted). In determining the reasonableness of a search, a court must balance "the need for the particular search against the invasion of personal rights that the search entails." Id. at 312, 547 S.E.2d at 449 (quotation omitted). "Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Id. (citation omitted).
"A valid search incident to arrest, however, will not normally permit a law enforcement officer to conduct a roadside strip search." State v. Battle, _ N.C. ____, ____, 688 S.E.2d 805, 815 (2010). "In order for a roadside strip search to pass constitutional muster, there must be both probable cause and exigent circumstances that show some significant government or public interest would be endangered were the police to wait until they could conduct the search in a more discreet location - usually at a private location within a police facility." Id.
In the present case, Defendant alleged in his motion to suppress that "the strip search of the defendant was sexually intrusive, unreasonable and a violation of [the] defendant['s] Fourth Amendment rights." The trial court found the following as fact:
Upon the Defendant being stopped, Det. Antonio Braxton, Greenville Police Department, searched the Defendant incident to the arrest and felt a bulge in the Defendant's waistband under the Defendant's belt, lifted the Defendant's outer garment and t-shirt and retrieved a plastic bag that contained over 200 grams of cocaine.Based on this finding of fact, the trial court concluded that "Law Enforcement had the authority to make a reasonable search of the Defendant's person incident to the arrest and the search conducted herein was in all respects lawful."
Conflicting testimony was presented during a voir dire examination of Defendant and Officer Braxton as to the nature of the search performed - specifically, whether the search was, in fact, a strip search. In describing the search, Defendant testified that Officer Braxton pulled Defendant's shirt up to his chest and his pants and underwear down to his ankles in the view of daytime traffic on the exit ramp. Defendant stated the officers re-dressed him and then performed the search that was depicted in the videotape. Officer Braxton, on the other hand, testified that while patting Defendant down and without removing Defendant's clothes, he "felt a huge bulge ... in [Defendant's] waistband behind his belt." Officer Braxton then "lifted up his T-shirt and saw a black, plastic bag[.]" Officer Braxton stated the actual search of Defendant's person was accurately depicted in the videotape, which was admitted into evidence and viewed by the court. In the videotape, Officer Braxton was seen patting Defendant down, lifting Defendant's shirt, and removing a black bag from Defendant's waistband - all without removing Defendant's clothes.
We believe the videotape and Officer Braxton's testimony provided competent evidence to support the court's finding that the search here was not unreasonable. Evidence shows that the search performed was not a strip search. Mello, 200 N.C. App. at 440, 684 S.E.2d at 486 (stating, "[a] trial court's factual findings are binding on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary"). Therefore, we conclude that Defendant's argument that the trial court erred by denying his motion to suppress on the basis that the search was an unreasonable strip search is without merit.
II: Probable Cause
In Defendant's second and final argument on appeal, Defendant contends the trial court erred in denying his motion to suppress because the officers did not have probable cause to arrest Defendant for the offenses of trafficking in cocaine and solicitation to commit assault with a deadly weapon.
The court made the following findings of fact:
2. On August 19, 2008[,] law enforcement officers conducted surveillance on the Defendant and two Co-Defendants . . . as they left Greenville, North Carolina, and drove to Durham[,] North Carolina; Kristy Moore was driving a separate vehicle.Based on the foregoing findings, numbers 2 through 13, the trial court concluded that "Law Enforcement had sufficient Probable Cause to arrest the Defendant on the charge of Trafficking in Cocaine of More than 400 grams for the cocaine seized on August 19, 2008 and the offense of Solicitation to Commit an Assault with a Deadly Weapon."
3. Co-Defendant Kristy Moore parked her vehicle in a strip mall and went inside a nail salon, and while inside the nail salon, the Defendant . . . walked over to Ms. Moore's vehicle and went inside . . . her vehicle. The Defendant left Durham, North Carolina[,] and was returning to Greenville, North Carolina[,] before Ms. Moore left Durham.
4. Ms. Moore left Durham being followed by law enforcement officers and called the Defendant to tell him that someone was following her and at that time the Defendant, by telephone, instructed Ms. Moore to get rid of a bag that was in the back seat of her vehicle.
5. Ms. Moore went to a McDonald's in
Durham[,] took the bag which contained a white brick suspected of being a controlled substance and put it in the trashcan in the women's bathroom and then informed the Defendant by telephone what she did with the bag of suspected controlled substance and then (sic) Ms. Moore returned to Greenville, North Carolina.
6. After Ms. Moore left the McDonald's, Det. Scott Stanton with the Greenville Police Department went inside the McDonald's and retrieved approximately one-half kilo of cocaine from the trashcan in the women's restroom.
7. Special Agent Chris Dawson, North Carolina State Bureau of Investigation and Det. Shawn Howard, Lenoir County Sheriff's Department remained at the McDonald's and witnessed the Defendant and Co-Defendant . . . enter both men's and women's restrooms of the McDonald's then leave returning to Greenville, North Carolina.
8. The Defendant was not arrested at that time for the Trafficking Cocaine on August 19, 2008 and law enforcement continued to investigate the Defendant.
9. On September 10, 2008, Officer Chris Harrison, Greenville Police Department, was monitoring the Defendant's phone calls through electronic surveillance pursuant to a court-order and heard the Defendant have a conversation about a girl that was pregnant and would not have an abortion at the Defendant's request and the Defendant expressed an intent to have the girl assaulted so the girl would lose her baby.
10. On September 11, 2008, Officer Chris Harrison was continuing the (sic) monitor the Defendant's phone calls and heard the
Defendant talk about having a girl that was pregnant assaulted so the girl would lose her baby and that he wanted it to happen that day.
11. Officer Chris Harrison notified other officer[s] about the contents of the Defendant's conversations and the decision was made to arrest the Defendant for the offen[s]e of Trafficking in Cocaine of More than 400 grams for the cocaine seized on August 19, 2008 and the offen[s]e of Solicitation to Commit an Assault with a Deadly Weapon.
12. On September 11, 2008[,] a law enforcement officer located the Defendant driving a motor vehicle on US Hwy 264 West, west of Greenville, North Carolina at which time the Defendant was stopped and placed under arrest.
13. Upon the Defendant being stopped, Det. Antonio Braxton, Greenville Police Department, searched the Defendant incident to the arrest and felt a bulge in the Defendant's waistband under the Defendant's belt, lifted the Defendant's outer garment and t-shirt and retrieved a plastic bag that contained over 200 grams of cocaine.
A: Trafficking Cocaine
Because Defendant did not challenge the trial court's findings, numbers 2 through 8, and the conclusion with regard to probable cause to arrest Defendant based on evidence relating to the trafficking of cocaine offense, the findings and conclusion are binding on appeal. State v. Boozer, _____ N.C. App. _____, ____, 707 S.E.2d 756, 764 (2011); see also State v. McLeod, 197 N.C. App. 707, 711, 682 S.E.2d 396, 398 (2009). Therefore, we uphold the trial court's denial of Defendant's motion to suppress the evidence stemming from his arrest on 11 September 2008 on the basis that law enforcement lacked probable cause to arrest him.
B: Solicitation to Commit Assault with a Deadly Weapon
Although we have concluded that law enforcement had probable cause to arrest Defendant based on the evidence surrounding the trafficking in cocaine offense, we nonetheless address Defendant's argument pertaining to the findings and conclusions associated with the solicitation offense on the merits. Defendant specifically contests whether the findings of fact pertaining to the solicitation offense, numbers 9 through 13, support the associated conclusion, that law enforcement had probable cause to arrest Defendant. Defendant, however, does not put forth any argument that the findings were not supported by the evidence. Instead, Defendant's sole argument is that "the court's findings of fact do not support the court['s] conclusion of law that probable cause[] existed to arrest the defendant."
We reiterate that unchallenged findings are binding on appeal. Boozer, ____ N.C. App. at ____, 707 S.E.2d at 764.
For a warrantless arrest to be lawful, it must be supported by probable cause. State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984). "Probable cause exists where the facts and circumstances within . . . the officers' knowledge and of which they had reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed." Id. at 261, 322 S.E.2d at 146 (citation and quotation omitted). N.C. Gen. Stat. § 15A-401(b)(1) (2009) provides that an officer may arrest without a warrant any person who the officer has probable cause to believe has committed a criminal offense in the officer's presence. This Court has defined the word "presence" in N.C. Gen. Stat. § 15A-401(b)(1) to include cases in which an officer may not be physically present but is able to listen to an offense as it occurs. State v. Narcisse, 90 N.C. App. 414, 368 S.E.2d 654, disc. review denied, 323 N.C. 368, 373 S.E.2d 553 (1988) (holding "that the offense occurred in the presence of the officer, as he acquired knowledge of it through his sense of hearing as he monitored the conversations and drug transaction through the body-bug transmitter").
Based on the Court's holding in Narcisse, we believe the trial court's findings of fact associated with the solicitation offense in the present case were sufficient to show, in accordance with N.C. Gen. Stat. § 15A-401(b)(1), that law enforcement had probable cause to believe Defendant had committed a criminal offense in an officer's presence. Therefore, we conclude the findings of fact pertaining to the solicitation offense support the trial court's conclusion that probable cause existed to arrest Defendant.
Defendant also argues the police officers did not have probable cause as a basis for the traffic stop because Defendant had not committed any traffic violations. This argument is without merit because Defendant was not being stopped for traffic violations. Probable cause to arrest Defendant was based on cocaine trafficking and solicitation to commit an assault with a deadly weapon.
--------
NO ERROR.
Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).