State v. Burke

712 S.E.2d 704, 212 N.C. App. 654, 2011 N.C. App. LEXIS 1220
Court of Appeals of North Carolina·Decided June 21, 2011·No. COA10-1084·Published·Cited by 2 cases

Opinions

McGEE, Judge.

[655] Charlotte-Mecklenburg Police Officer J.A. Allman1 (Officer Allman) was on patrol on 16 February 2008 when he observed Raymond Lorenzo Burke, Jr. (Defendant) driving an Infiniti automobile (the vehicle) with a thirty-day license tag. Based on Officer Allman’s previous observation of current 30-day tag numbers being issued at the time, he believed there was a possibility that the thirty-day tag on the vehicle was fictitious, and he stopped Defendant to investigate. After stopping Defendant, Officer Allman asked for Defendant’s registration and informed Defendant of his reason for the stop. When Defendant opened his glove box to retrieve his registration, Officer Allman viewed a handgun in the glove box. Officer Allman asked Defendant to step out of the vehicle. He then arrested Defendant for carrying a concealed weapon. When Officer Allman asked Defendant if Defendant had anything else Officer Allman should know about, Defendant replied that he also had ecstasy and cocaine. Officer Allman searched Defendant and confiscated six ecstasy pills and 1.9 grams of cocaine from Defendant’s left front pocket. Officer Allman then removed the handgun, which was loaded, from the glove box.

Defendant was indicted on 7 July 2008 for possession of a Schedule I controlled substance (ecstasy), possession of cocaine, and carrying a concealed weapon. Defendant filed a motion to suppress on 12 November 2008, arguing that Officer Allman’s stop of Defendant’s vehicle was illegal because Officer Allman lacked reasonable suspicion of criminal activity to justify the stop. Defendant moved to suppress all evidence obtained by Officer Allman as a result of the stop. Defendant further argued that he was questioned in violation of his Miranda rights, and that the search of his person was unlawful. Defendant’s motion was heard on 9 January 2009. Officer Allman was the only witness to testify at the suppression hearing.

At the suppression hearing, Officer Allman specifically testified that: “The tag on [Defendant’s] car appeared to be old and worn. The [number on the] 30-day tag appeared to be much lower than what was given out at the time. I believed the tag to be fictitious.” The number on Defendant’s thirty-day tag was 14949790. Officer Allman testified that he didn’t “recall” what number range he “would have found to be an acceptable range.” Officer Allman testified that it was dark, but [656] that he was in a well-lit area and the tag was readable. When questioned about the condition of the tag, Officer Allman testified that though there was ample space available, there was no documentation on the arresting affidavit regarding the tag being old or worn. Officer Allman also did not indicate to Defendant that the tag was dirty or worn. It was not until later, when Officer Allman completed a more detailed report, that he indicated the tag was worn and dirty. Officer Allman testified that he could not recall the level of dirt on the tag. He testified that the only reason given on the arresting affidavit was the “low number” of the tag and that both the number and the condition of the tag contributed to his suspicion, but that “the number was the most important.” Officer Allman was asked if the tag “was a proper size, properly placed in a proper location, all of those things?” He answered: “That’s correct.” Officer Allman testified that the tag was not faded, and that he could read the numbers. The following colloquy occurred at the suppression hearing as Defendant’s counsel questioned Officer Allman:

Q If the tag had the number that it did, the 14949790 but didn’t have any dirt or wear, would you have still stopped Mr. Burke’s vehicle?
A Yes.
Q If the tag had the amount of dirt and wear that you observed and had a number that was consistent with what you are used to seeing at that time, would you have stopped the vehicle just because of the dirt?
A No.
Q So but for the number, you wouldn’t have stopped the vehicle?
A Based on the dirt and wear and the number.
Q If the number had been what you were used to seeing at that time, you wouldn’t have stopped it.
A That’s correct.
Q But you would have stopped it with no dirt or wear at all, if it was clean as a whistle based upon the number that you saw?
A That’s correct.

Officer Allman testified that he observed nothing else suspicious or illegal regarding Defendant’s vehicle or the operation of the vehicle at [657] the time. He also testified there was no specific number range that he would have found acceptable and that there was nothing else out of the ordinary regarding the tag. Despite Officer Allman’s testimony regarding the absence of any other suspicious or illegal activity, when Defendant’s attorney asked: “But you thought there was a possibility that Mr. Burke’s tag was fictitious?[,]” Officer Allman said, “I wondered about the possibility of the tag being fictitious. That’s correct.” After reviewing Defendant’s documentation of the tag, Officer Allman testified that he found nothing fictitious about the tag.

In an order entered 18 August 2009, the trial court denied Defendant’s motion to suppress. After the denial of his motion to suppress, Defendant pled guilty to felony possession of a Schedule 1 controlled substance, felony possession of cocaine, and misdemeanor carrying a concealed weapon. Defendant’s charges were consolidated for judgment and Defendant was sentenced on 24 August 2009 to four to five months in prison, which was suspended. Defendant received eighteen months of supervised probation. Defendant expressly reserved the right to appeal the denial of his motion to suppress. Pursuant to N.C. Gen. Stat. § 15A-979(b), Defendant appeals.

In Defendant’s sole argument, he contends that the trial court erred in denying his motion to suppress because Officer Allman lacked reasonable suspicion to conduct a valid stop of Defendant’s vehicle. We agree.

The scope of appellate review of a denial of a motion to suppress “is strictly limited to determining whether the trial judge’s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether 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).

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State v. Burke, 712 S.E.2d 704, 212 N.C. App. 654, 2011 N.C. App. LEXIS 1220 (N.C. Ct. App. 2011).

712 S.E.2d 704 (State v. Burke) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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