State v. Brice
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA13-363 NORTH CAROLINA COURT OF APPEALS Filed: 3 December 2013 STATE OF NORTH CAROLINA v. Mecklenburg County No. 10 CRS 241907 RANDALL V. BRICE Appeal by Defendant from judgment entered 1 November 2012 by Judge Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 September 2013. Attorney General Roy Cooper, by Special General Richard E. Slipsky, for the State. Deputy Attorney Arnold & Smith, PLLC, by J. Bradley Smith, for Defendant. DILLON, Judge. Randall V. Brice ( Defendant ) appeals from a judgment entered, after a guilty plea, convicting Defendant of possession with intent to sell possession of marijuana. court erroneously suppress. or deliver marijuana and felonious On appeal, Defendant argues the trial entered an order denying his motion to We disagree and find no error in the trial court s order denying Defendant s motion to suppress. -2I. Background The evidence of record tends to show the following: August 2010, Officers Cory Charlotte-Mecklenburg they got behind Defendant s a Police license revoked due to side, he driven plate in were by the Alan Savelle of patrolling Defendant. Division the when They of ran Criminal The database revealed that the plate had a lapse pulled the vehicle over. driver s and Department vehicle Information database. been Thigpen On 10 in insurance, and the officers When Officer Thigpen approached the immediately smelled marijuana. Officer Thigpen checked Defendant s license and registration and told Defendant that he was stopped due to the lapse in his insurance.1 Then, Officer Thigpen went back to Defendant through several databases. that two possession months of earlier, marijuana. patrol car to run Officer Thigpen discovered Defendant Officer his had been Thigpen then arrested returned for to Defendant s vehicle and asked Defendant for consent to search the vehicle; however, Defendant refused. Thereafter, Officer Savelle opened the driver s side door, at which time he smelled a strong odor of marijuana. Defendant, of his own accord, turned around and presented his hands behind his back to Officer 1 Defendant denied that the officers told him the reason for the stop. -3Thigpen and admitted that he had marijuana. Officer Savelle recovered marijuana in vacuum-packed containers from the car. On 7 February 2011, Defendant was indicted on charges of possession with intent to sell and deliver marijuana and suppress all felonious possession of marijuana. On 14 February 2012, Defendant moved to evidence recovered from his vehicle, claiming the evidence was obtained in violation of Defendant s constitutional rights and without probable cause or reasonable suspicion. On 12 October 2012, the Honorable Eric L. Levinson entered an order denying Defendant s motion to suppress. trial court pled guilty denied to Defendant s possession motion with to intent suppress, to sell marijuana and felonious possession of marijuana. 2012, the Honorable Linwood O. Foust After the entered Defendant and deliver On 1 November a judgment consistent with Defendant s guilty plea and sentenced Defendant to four to five months incarceration; however, the trial court suspended the foregoing sentence and placed Defendant on twelve months supervised probation. From appeals. I: Analysis this judgment, Defendant -4Defendant makes a number of arguments contending that his motion to suppress should have been allowed because of the impropriety of the stop of his vehicle by the officers, which resulted in their discovery of the marijuana. Our review of an appeal from the denial of a defendant s motion to suppress is limited. State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 630 (2000). The question for this Court is whether competent evidence supports the trial court s findings of fact and whether the findings of fact support the conclusions of law. State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citation omitted). [W]hen . . . the trial court s findings of fact are not challenged on appeal, they are deemed to be supported appeal. by competent evidence and are binding on Id. at 168, 712 S.E.2d at 878 (citation omitted). Conclusions of law are reviewed de novo and are subject to full review. Id. (citation omitted). Under [the United States Supreme Court s] Terry [decision and the decisions in] subsequent cases, a traffic stop is permitted if the officer has a reasonable, articulable suspicion that criminal activity is afoot. State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (citation and quotation marks omitted). -5Reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence. The standard is satisfied by some minimal level of objective justification. This Court requires that [t]he stop . . . be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training. Moreover, [a] court must consider the totality of the circumstances the whole picture in determining whether a reasonable suspicion exists. Id. at 414, 665 S.E.2d at 439-40 (citations and quotation marks omitted). In this case, the trial court made a number of findings of fact and conclusions of law in its order denying Defendant s motion to suppress, including, inter alia, the following: 3. While on patrol, Officers Thigpen and Savelle got behind a Silver Jeep Liberty belonging to Defendant as Defendant was making a right turn onto Monroe Road from McAlway Road. 4. Officer Savelle ran the license plate of this Jeep Liberty displaying [license plate number omitted] through his DMV computer station in the police vehicle. The DMV computer returned information showing that the car Defendant was driving had an insurance lapse. 5. Based upon the information related to the insurance lapse, and relying upon the same as a basis for executing a stop of the vehicle, the police officers initiated a -6traffic stop. Officer Thigpen believed that Defendant was in violation of North Carolina General Statute § 20-313 requiring operators of motor vehicles to have valid, effective insurance coverage. . . . 36. Days after the offense, Defendant called his insurance company and asked for proof that he had insurance on the Jeep Liberty on August 30, 2010, and received such letter indicating that there was proof of insurance on the vehicle on the date of offense. . . . Based on the foregoing FINDINGS OF FACT the makes the following [] CONCLUSIONS OF LAW[:] Court . . . 4. The information that the officers received regarding the defendant s insurance status that they relied upon in executing a stop of the vehicle made the traffic stop by Officers Thigpen and Savelle on August 30, 2010, permissible under the Fourth Amendment, even though the vehicle did have proper insurance coverage on the date of offense. We now address Defendant s arguments concerning the trial court s order. A: Conflict in Evidence In Defendant s first argument, he contends the trial court erred in denying his motion to suppress, because [t]he State could not demonstrate that the patrol-car computer in fact -7displayed an insurance stop[,] and Defendant proved . . . that the vehicle was properly insured at the time of the traffic stop. Defendant contends the trial court was asked to take a leap of faith to conclude that officers had seen an insurance stop relating to the vehicle . . . when it is undisputed that no such stop existed. We find this argument unconvincing. At a suppression hearing, conflicts in the evidence are to be resolved by the trial court. State v. McArn, 159 N.C. App. 209, 211-12, 582 S.E.2d 371, 373-74 (2003) (internal quotation marks and citations omitted). In this case, both officers testified under oath that the computer in their patrol vehicle displayed DMV information from the DCI database showing that the vehicle driven by Defendant was uninsured. Defendant, however, presented as evidence a letter he received from his insurance company, verifying that his insurance was active and paid in full at the time of the . . . incident. testimony and the letter evidence that from the The officers sworn Defendant s trial court insurer was created required a conflict of to resolve. When there is a conflict in the evidence deference is afforded the trial judge because he is in the best position to weigh the evidence, given that he has heard all of the testimony and observed the demeanor of the witnesses. Hughes, 353 N.C. -8at 207, 539 S.E.2d at 631. Certainly, it would have been within the trial court s ability based on the verification letter from Defendant s insurer stating that there was no lapse in his insurance at the time of the stop to find that the officers testimony was incredible; and, therefore, the officers did not have a reasonable suspicion to stop Defendant. trial court did not do so. However, the Defendant provides no authority for the proposition that the officers testimony in this case was not competent evidence, and we find none. Therefore, Defendant s first argument must be overruled. C: Subjective Belief of Officer In Defendant s second argument, he contends the trial court erred in denying his motion to suppress because [o]fficers were allowed in this case to stop a vehicle based on their subjective belief that traffic laws were violated, where in fact no such violation had occurred. We find this argument lacks merit. In examining the legality of a traffic stop, the proper inquiry is not the subjective reasoning of the officer, but whether the objective facts support a finding that [a reasonable suspicion] existed to stop the defendant. State v. Ivey, 360 N.C. 562, 633 S.E.2d 459 (2006), overruled on other grounds, State v. Styles, 362 N.C. 412, 665 S.E.2d 438 (2008). -9In State v. McLamb, 186 N.C. App. 124, 127-28, 649 S.E.2d 902, 904 (2007), this Court held, on the following facts, that no reasonable subjectively suspicion believed the existed, even defendant though had the violated officer the speed limit, which the arresting officer believed was twenty miles per hour: Deputy Bryan s sole reason for stopping defendant was for an alleged speeding violation. The State conceded in oral argument that the speed limit on the road was actually fifty-five miles per hour, and the defendant was driving within the speed limit. Because the legal justification for this traffic stop was not objectively reasonable, we hold that the stop violated defendant's Fourth Amendment rights. To hold otherwise would be to allow[] [officers] to stop vehicles based upon their subjective belief that traffic laws have been violated even where no such violation has, in fact, occurred[.] Id. In this case, Defendant contends this Court should apply McLamb to conclude that the trial court erroneously denied Defendant s motion to suppress. However, we believe McLamb is distinguishable from this case. In McLamb, the deputy believed the speed limit was twenty miles per hour though the speed limit was actually fifty-five miles per hour. at 902. We reasoned that the Id. at 124, 649 S.E.2d proper inquiry is not the -10subjective reasoning of the officer, but whether the objective facts support a finding that [a reasonable suspicion] existed to stop the defendant. Id. at 126, 649 S.E.2d at 903 (citation and quotation marks omitted). However, in the present case, the police officers were not mistaken in their subjective belief that driving a vehicle without insurance is a crime. a motor vehicle misdemeanor. without See N.C. insurance Gen. Stat. is, § in fact, 20-313. Operating a Class Further, 1 the evidence tends to show that the officers belief that Defendant was violating the law was based upon the objective information retrieved from the DMV computer. We reiterate that the standard for reasonable suspicion is satisfied by some minimal level of objective justification[,] and a reasonable suspicion must be based on specific and articulable facts[.] State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (citation and quotation marks omitted). this case, as found by We believe, based on the facts of the trial court and supported by competent evidence, and the inferences from those facts, as [objectively] viewed through the eyes of a reasonable, cautious officer, a reasonable suspicion existed that Defendant was -11driving a vehicle without insurance. The trial court did not err in denying Defendant s motion to suppress.2 AFFIRMED. Judge McGEE and Judge McCULLOUGH concur. Report per Rule 30(e). 2 In Defendant s final two arguments, he contends there was no evidence . . . other than the officer s testimony to support findings of fact numbers 4 and 5, and that the findings of fact do not support the trial court s conclusion that a reasonable articulable suspicion existed. As we stated in Subsection B., the officer s testimony alone was competent evidence to support findings of fact numbers 4 and 5. Moreover, as we stated in Subsection C., the trial court did not err in concluding that a reasonable suspicion existed to stop Defendant.
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