State v. Malunda

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NO. COA13-372 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 STATE OF NORTH CAROLINA v. Wake County No. 12 CRS 207684 JOHN KWAME MALUNDA III Appeal by defendant from judgment entered 27 September 2012 by Judge Paul G. Gessner in Wake County Superior Court. Heard in the Court of Appeals 24 September 2013. Attorney General Roy Cooper, by Assistant Attorney General Catherine F. Jordan, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant appellant. McCULLOUGH, Judge. John Kwame Malunda, III, ( defendant ) conviction for possession of cocaine appeals from his on the ground that the trial court erred in denying his motion to suppress evidence found on his person. For the following reasons, we reverse. I. Background Defendant was arrested on 5 April 2012 and indicted by a Wake County Grand Jury on 6 August 2012 for possession with intent to sell or deliver cocaine. Prior to defendant s case -2being called for trial, defendant filed a motion to suppress evidence seized during what he alleged was an illegal warrantless search of his person. Defendant s motion came on for hearing before the Honorable Paul G. Gessner at the 27 September 2012 Criminal Session of Wake County Superior Court. tended to show the following: Evidence produced at the hearing Just after midnight on 5 April 2012, Officer B.A. Brinkley, a member of the gang suppression unit of the Raleigh Police Department, was on patrol when he performed a security check of 1910 Poole Road, a gas station parking lot known for drug activity. Officer Brinkley testified that, as he pulled into the parking lot, a silver vehicle caught his attention because the driver immediately exited the vehicle and entered the gas station, followed by the passenger, later identified as defendant, who turned around 180 degrees, looked towards Officer Brinkley s marked patrol car, and then exited the vehicle and entered the gas station. At that time, Officer Brinkley backed out of the area to observe from afar. After waiting for the driver and defendant to exit the gas station for returned to approximately the gas station five minutes, parking lot. Officer Officer Brinkley Brinkley testified he briefly lost sight of the parking lot while making -3his return and the driver and defendant were back in the vehicle upon his arrival. At that time, the vehicle began to pull out of the gas station parking lot. [t]he vehicle didn t have its Officer Brinkley testified headlights partially pulled out into the roadway. . . . observed me backing up, the vehicle on . . . and it [W]hen the vehicle immediately put it in reverse and erratically parked . . . or attempted to back into a parking spot. It was not well parked. Officer Brinkley believed his marked patrol car caught the driver s attention and the driver was being extremely evasive. Due to the suspiciousness of the vehicle and the fact that the vehicle began to Brinkley, vehicle. enter now traffic joined by without Officer its headlights Trybulski1, on, Officer approached the Officer Cooper and Officer Wilkins arrived just after Officer Brinkley and Officer Trybulski approached the vehicle. Officer Brinkley initially approached the passenger side of the vehicle and spoke with defendant. Officer Brinkley testified defendant immediately identified himself as John but failed to immediately produce identification. 1 Officer Cooper We note that the incident report in the record and the transcript are inconsistent in the spelling of the name of the second officer on the scene. For purposes of this appeal, we refer to the second officer on the scene as Officer Trybulski. -4informed Officer Brinkley that he was familiar with defendant as a result of defendant s prior drug activity. Officer Brinkley testified there was an open container of alcohol in the encounter near [defendant] Specifically, defendant s defendant vehicle Officer heart was defendant appeared Brinkley beating breathing and very, very recounted rapidly heavily. [t]hroughout that through Officer the nervous[.] he could shirt his see and Brinkley testified that, [d]ue to the nervousness, the high drug area, the open container in the vehicle, and other officers arrived on scene, [defendant] defendant was was escorted frisked out for of the weapons. vehicle. No weapons Upon were exit, found. Officer Brinkley then asked defendant to sit on the curb. defendant refused, he was detained and sat on the curb When for officer safety reasons. Officer Trybulski and Officer Wilkins approached the driver side of the vehicle and noticed a strong odor of marijuana. Officer Brinkley testified he also observed the odor of marijuana on the driver side of the vehicle, but did not observe the odor on the passenger side. As a result of the odor, the driver was removed from the vehicle and a warrantless search of the vehicle was performed. Marijuana was found in the driver -5side door. A performed. warrantless search of defendant was then During the search, Officer Cooper found a small brown plastic bag in defendant s pocket. The bag contained ten smaller bags, eight of which appeared to contain crack cocaine and two of which appeared to contain powder cocaine. Defendant also had $275 dollars in his wallet. At the conclusion of the suppression hearing, the trial court found there was probable cause for police to conduct the warrantless search of defendant and denied defendant s motion to suppress. Defendant then entered a plea of guilty to the reduced charge of possession of cocaine, reserving the right to appeal the denial of his motion to suppress. Following defendant s plea, judgment was entered sentencing defendant to a term of six to seventeen months imprisonment with the sentence suspended on months of appeal from condition supervised his that defendant probation. conviction on complete Defendant 31 twenty filed September four notice 2012 of and now challenges the denial of his motion to suppress. II. Discussion An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of including a judgment entered upon a plea of guilty. conviction, N.C. Gen. -6Stat. § 15A-979(b) (2011). Our review of a trial court s denial of a motion to suppress is strictly limited to determining whether the supported by conclusively trial judge s competent binding underlying evidence, on in appeal, and findings whether fact are event which of they are those factual findings in turn support the judge s ultimate conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). The trial court s conclusions of law . . . are fully reviewable on appeal. State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). At the outset of our analysis, we note that the trial court did not issue findings of fact or conclusions of law as required by statute. must set See N.C. Gen. Stat. § 15A-977(f) (2011) ( The judge forth in the conclusions of law. ). record his findings of facts and Instead the trial court announced the denial of the defendant s motion to suppress in open court and requested that the State prepare an order with the appropriate findings of fact and conclusions of law. Despite the trial court s request, no such order appears in the record. Notwithstanding, where defendant does not argue the lack of a written order as a basis for relief and acknowledges in his reply brief that it is not an issue on appeal, we do not reach -7the issue. review on See N.C.R. App. P. 28(a) (2013) ( The scope of appeal several briefs. is limited to issues so presented in the Issues not presented and discussed in a party s brief are deemed abandoned. ); see also State v. Watkins, _ N.C. APP. _, _, 725 S.E.2d 400, 403 (2012) and State v. McCain, 212 N.C. App. 157, 165 n. 3, 713 S.E.2d 21, 27 n. 3 (2011) (both citing N.C. R. App. P. 28(a) and declining to address the lack of a written order denying the defendants motions to suppress where the defendants did not raise the issue on appeal). Furthermore, the trial court does not err in failing to issue specific findings of fact where there is no material conflict in the evidence. State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980). evidence. In this case, defendant does not challenge the Rather, defendant argues the trial court erred as a matter of law in denying his motion to suppress. The Fourth Amendment of the United States Constitution and Article I, Section 20 of the North Carolina Constitution prohibit unreasonable searches and seizures. State v. Downing, 169 N.C. App. 790, 794, 613 S.E.2d 35, 38 (2005). provisions require the exclusion unreasonable searches and seizures. of evidence The same obtained by State v. Smith, _ N.C. App. _, _, 729 S.E.2d 120, 122 (2012) (quoting State v. McLamb, -8186 N.C. App. 124, 125 26, 649 S.E.2d 902, 903 (2007)). Searches conducted without a warrant are per se unreasonable . . . subject only to a few specifically established and welldelineated exceptions. State v. Cline, 205 N.C. App. 676, 679, 696 S.E.2d 554, 556 (2010) (quoting Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585 (1967)). However, [a] warrantless search is lawful if probable cause exists to search and the exigencies warrant necessary. of the situation make search without a State v. Mills, 104 N.C. App. 724, 730, 411 S.E.2d 193, 196 (1991) (citing State v. Allison, 298 N.C. 135, 141, 257 S.E.2d 417, 421 (1979)). Defendant s sole argument on appeal is that the trial court erred in concluding the police had probable cause to conduct the warrantless search of his person.2 We agree. Probable cause has been defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. State v. Yates, 162 N.C. App. 118, 122, 589 S.E.2d 902, 904 (2004) (internal quotation marks omitted). has determined that probable cause to search This Court exists when a reasonable person acting in good faith could reasonably believe 2 On appeal, defendant does not challenge the initial stop, the frisk of his person for weapons, or the search of the vehicle. -9that a search of the defendant would reveal the controlled substances sought which would aid in his conviction. State v. Pittman, 111 N.C. App. 808, 813, 433 S.E.2d 822, 825 (1993) (internal quotation marks omitted). We hold the evidence in this case supports a finding of a reasonable suspicion, but does not amount to probable cause to conduct a search of defendant s person. Both our Supreme Court and this Court have held the odor of marijuana to be sufficient to establish probable cause to search for the contraband drug in an automobile. Yates, 162 N.C. App. at 122, 589 S.E.2d at 904 (citing State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441 (1981)). Thus, the officers in this case had probable cause to search the vehicle when they detected the odor of marijuana on the driver side of the vehicle. Probable cause to search a vehicle does not, however, amount to probable cause to search a passenger in the vehicle. See United States v. Di Re, 332 U.S. 581, 587, 92 L. Ed. 210, 216 (1948) (declining to expand the ruling in Carroll v. United States, 267 U.S. 132, 280, 69 L.Ed. 543 (1924), to justify warrantless searches of persons incident to the search of a vehicle based on mere presence in a suspected car[.] ). Where the search or standard is probable cause, a seizure of a person must be -10supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. Ybarra v. Illinois, 444 U.S. 85, 91, 62 L. Ed. 2d 238, 245 (1979). As decisions in subsequently Di Re noted and by Ybarra the Supreme turned Court, on the the unique, significantly heightened protection afforded against searches of one s person. Wyoming v. Houghton, 526 U.S. 295, 303, 143 L. Ed. 2d 408, 417 (1999). Upon review of the record in this case, we find insufficient evidence to support the trial court s conclusion that the search of defendant s person was supported by probable cause particularized with respect to defendant. The officers detected side the vehicle. odor of marijuana on the driver of the The officers then conducted a warrantless search of the vehicle and discovered marijuana in the driver side door. Yet, Officer Brinkley testified that he did not notice an odor of marijuana defendant. on the passenger side of the vehicle or on Considering the evidence, there was nothing linking the marijuana to defendant besides his presence in the vehicle. Moreover, there is not a reasonable inference of common enterprise in this case where the marijuana was found in the -11driver side door. Therefore, Maryland v. Pringle, 540 U.S. 366, 373-74, 157 L. Ed. 2d 769, 776-77 (2003) (holding there was probable cause to arrest a front seat passenger of a vehicle for possession of controlled substance found behind the rear seat because the quantity of drugs and cash in the vehicle indicated drug dealing and a reasonable inference of a common enterprise), is not controlling. Lastly, none of the other circumstances, including defendant s location activity, defendant s prior nervousness, defendant s identification, or the in an area criminal failure infraction known history, to for defendant s immediately of drug produce possessing an open container of alcohol in a motor vehicle, a noncriminal violation pursuant to N.C. Gen. Stat. § 20-138.7(e) (2011) and N.C. Gen. Stat. § 14-3.1 combination, person. (2011), amount to when probable considered cause to separately search or in defendant s They merely provide reasonable suspicion. III. Conclusion For the reasons discussed above, we hold the trial court erred in concluding there was probable warrantless search of defendant s person. cause to conduct a Therefore, we reverse the trial court s denial of defendant s motion to suppress and vacate defendant s conviction for possession of cocaine. -12Reversed and vacated. Judges McGEE and DILLON concur.

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