State v. Barnard

645 S.E.2d 780, 184 N.C. App. 25, 2007 N.C. App. LEXIS 1307
CourtCourt of Appeals of North Carolina
DecidedJune 19, 2007
DocketCOA06-209
StatusPublished
Cited by34 cases

This text of 645 S.E.2d 780 (State v. Barnard) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barnard, 645 S.E.2d 780, 184 N.C. App. 25, 2007 N.C. App. LEXIS 1307 (N.C. Ct. App. 2007).

Opinions

MARTIN, Chief Judge.

Defendant was charged in bills of indictment with two counts of possession of cocaine and two counts of having achieved the status of an habitual felon. Prior to trial, defendant moved to suppress evidence seized as a result of searches of his vehicle and his person, as well as statements which he made to the police. After a hearing, the motion to suppress was denied. Defendant was convicted by a jury of two counts of possession of cocaine and subsequently entered a plea of guilty to one count of having achieved the status of an habitual felon. The remaining habitual felon charge was dismissed. He appeals from a judgment sentencing him to a minimum term of 168 months and a maximum term of 211 months imprisonment. We find no error.

[27]*27The evidence presented at the suppression hearing and at trial tended to show that at around 12:15 a.m. on 2 December 2004, Officer Brett Maltby was on patrol in a high crime area of downtown Asheville where a number of bars are located. Officer Maltby was driving a marked patrol car and was behind defendant’s vehicle, a 1993 Ford Taurus, which was stopped at a red traffic light. When the light turned green, defendant remained stopped for approximately thirty seconds before making a left turn. Based upon his training and experience, Officer Maltby considered that the delayed reaction to the green light was an indicator that the driver of the vehicle may be impaired. Officer Maltby initiated a stop of the vehicle to determine whether, in fact, the driver was impaired.

Officer Maltby approached defendant and asked for his license and registration. Defendant’s breathing was rapid and he was shaking. Officer Maltby smelled a slight odor of alcohol on defendant’s breath. Defendant said that he did not have his license and gave Officer Maltby a name and birth date. Officer Maltby returned to his patrol car to conduct a check of the name and birth date to determine if defendant had a driver’s license and to check for outstanding warrants. He determined that the information which the defendant had given him was not correct. Officer Maltby then returned to defendant’s vehicle and asked him to step out of his vehicle. Officer Maltby observed an open container of alcohol partially concealed in a paper bag. Officer Maltby placed defendant in investigatory detention, handcuffed him due to his nervousness and inability to explain his identity, and walked him back to the patrol car. Defendant then disclosed his real name, and Officer Maltby was able to determine that his driver’s license had been suspended. Officer Maltby began to write a citation for possession of an open container of alcohol and driving while license revoked.

Officer Dwight Arrowood arrived at the scene to assist Officer Maltby. At Officer Maltby’s direction, Officer Arrowood searched the interior of the Taurus and recovered a crack pipe and a Brillo pad, which is sometimes used as a filter for a crack pipe. Officer Maltby then began to, write a citation for possession of drug paraphernalia when defendant said he would do anything to get out of the situation and offered to purchase narcotics. He told Officer Maltby that he had purchased crack cocaine earlier that day from a person known as “One-Arm Willy.” Maltby was familiar with “One-Arm Willy” and agreed to void the citations he was writing if defendant would make a controlled buy from his drug dealer.

[28]*28Officer Maltby stored defendant’s vehicle, took him to the police station, and secured the assistance of an undercover narcotics officer, Officer Lauffer. Defendant agreed to go to the residence of One-Arm Willy and purchase a $20 rock of crack cocaine. The officers explained that defendant would be searched prior to leaving the police station, that he would accompany Officer Lauffer to the residence, purchase the crack cocaine and return immediately to the officer’s car. He would then be returned to the police station where he would be debriefed and searched a second time.

Defendant successfully purchased a crack rock from the dealer and turned it over to Officer Lauffer, who gave it to Officer Maltby when they returned to the police station. Officer Maltby then began to debrief defendant, inquiring as to what he had seen in the house for the purpose of obtaining and executing a search warrant. Officer Maltby searched defendant and found a small rock of crack cocaine concealed in defendant’s pocket. Defendant told Officer Maltby that he had gotten a “front” from One-Arm Willy for the second rock of cocaine. He then “asked [Officer Maltby] if he could just have the rock of crack cocaine back.” Officer Maltby refused and concluded that the defendant was not sufficiently reliable to be used as a confidential informant to support a search warrant of the dealer’s home. Officer Maltby took defendant home and subsequently charged him with possession of crack cocaine.

On appeal, defendant contends the trial court erred in denying his motion to suppress the evidence seized by the officers as a result of the Vehicle stop and subsequent search of his vehicle, as well as statements which he made to Officer Maltby. We have carefully considered his arguments and conclude the evidence was properly admitted.

On a motion to suppress, we review a trial court’s findings of fact to determine if there is competent evidence to support them. State v. Brewington, 170 N.C. App. 264, 271, 612 S.E.2d 648, 653 (2005) (citation omitted). The trial court’s findings upon conflicting evidence are accorded “great deference upon appellate review as it has the duty to hear testimony and weigh the evidence.” Id. If the findings are supported by competent evidence, they are conclusive on appeal. State v. Campbell, 359 N.C. 644, 661, 617 S.E.2d 1, 12 (2005). The conclusions of law which the court draws from those findings are fully reviewable. Id. at 662, 617 S.E.2d at 13.

[29]*29Defendant first challenges the trial court’s denial of his motion to suppress the evidence related to Officer Maltby’s traffic stop of the defendant’s vehicle. He argues that Officer Maltby had neither probable cause nor a reasonable, articulable suspicion to stop defendant and therefore it was error to admit evidence resulting from the stop. We disagree.

A police officer may effect a brief investigatory seizure of an individual where the officer has reasonable, articulable suspicion that a crime may be underway. Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906 (1968). “Reasonable suspicion” 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.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). All the State is required to show is a “minimal level of objective justification, something more than an ‘unparticularized suspicion or hunch.’ ” Id. at 442, 446 S.E.2d at 70 (quoting U.S. v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)). A court must consider the totality of the circumstances in determining whether the officer possessed a reasonable and artic-ulable suspicion to make an investigatory stop. Id. at 441, 446 S.E.2d at 70.

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Cite This Page — Counsel Stack

Bluebook (online)
645 S.E.2d 780, 184 N.C. App. 25, 2007 N.C. App. LEXIS 1307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barnard-ncctapp-2007.