State v. Butler

556 S.E.2d 304, 147 N.C. App. 1, 2001 N.C. App. LEXIS 1051
CourtCourt of Appeals of North Carolina
DecidedNovember 6, 2001
DocketCOA00-999
StatusPublished
Cited by22 cases

This text of 556 S.E.2d 304 (State v. Butler) 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. Butler, 556 S.E.2d 304, 147 N.C. App. 1, 2001 N.C. App. LEXIS 1051 (N.C. Ct. App. 2001).

Opinions

[3]*3HUNTER, Judge.

Keith Butler (“defendant”) appeals from convictions of trafficking cocaine by transportation and trafficking cocaine by possession in violation of N.C. Gen. Stat. § 90-95 (1999). We find no error.

The evidence presented at trial tended to establish that on 20 January 1998, Raleigh police officers assigned to the Drug Interdiction Unit of the Drug Task Force, as well as officers of the State Bureau of Investigation, were monitoring the city’s bus terminals. Officer D.C. Murphy of the Interdiction Unit testified that the officers were watching for buses arriving from or traveling to “source cities” where drugs are prevalent. Officer Murphy testified that the officers generally observe disembarking passengers, including whether the passengers have little or no luggage; their demeanor and how they react upon seeing the officers; whether they appear nervous; and whether they look around or behind themselves often even though no one is at the terminal to meet them.

At approximately 9:30 a.m., the officers were observing a bus arriving from New York City and traveling to Miami, both of which are considered “source cities.” Officer Murphy testified that he saw defendant exit the bus carrying a single bag and walk towards the first set of double doors in the terminal. As defendant reached the doors, he “stopped, turned around, paused for a minute and then walked in quickly.” Officer Murphy testified that defendant looked directly at the officers, making eye contact right before he walked through the terminal. As defendant walked through the terminal, the officers observed him “turnfing] around several times looking behind him” and making eye contact with the officers. Defendant was walking “very briskly,” and as he approached the doors to exit the terminal, he “paused and looked back again,” making eye contact with the officers.

Defendant then left the terminal and got into a taxicab parked approximately two feet from the terminal doors, just as the officers were exiting the terminal behind him. The cab was being driven by Christopher Thomas (“Thomas”). Defendant sat directly behind Thomas’ driver’s seat. Thomas’ window was down, and Officer Murphy told Thomas to “hold on just a second.” As he approached the cab, Officer Murphy observed defendant “making motions with his hands to go on” and telling Thomas to “go, go, go several times.” Thomas testified that defendant slammed the cab door when he [4]*4entered the cab and continued to say “let’s go, let’s go, let’s go” in a “frightened” voice.

The officers approached the cab and identified themselves as police officers. Officer Murphy stated that defendant was “very nervous, fidgety.” The officers asked defendant if they could speak with him for a few minutes, and defendant agreed. As defendant began to exit the vehicle, Officer Murphy noticed that he was “very slow getting out and bent over to where you could see just barely the top of his head and part of his shoulder,” but not his hands. Thomas testified that he felt defendant “struggling” behind his seat right before defendant opened the cab door. Thomas stated that he did not “know what [defendant] was doing,” but he could feel defendant “pushing the back of [his] seat” and “could feel the force on the back of [the] seat.” Defendant then exited the cab and immediately walked away from the cab, going towards the front doors of the terminal. The officers had to follow defendant away from the cab in order to speak with him.

The officers asked defendant some questions, during which time he appeared “very nervous” and “his hands were shaking.” Defendant consented to a search of his person and the bag he was carrying. The search did not uncover any illegal substances, and the officers allowed defendant to leave the terminal.

In the meantime, another man entered Thomas’ cab, looking for a ride a few blocks away. Thomas knew the man, and had given him several cab rides previously. Thomas testified that the passenger was seated behind the front passenger seat, the opposite side from which defendant sat. Thomas testified that the passenger stayed behind the front passenger seat, and at no time did the passenger move over to where defendant had sat, or make any leaning motions behind Thomas’ seat or to the floor of the cab. After dropping off the passenger, Thomas immediately returned to the bus terminal, approximately ten minutes after he left. The officers approached Thomas’ cab and asked if they could search the vehicle. Thomas consented to a search which lead to the discovery of cocaine in a package underneath the driver’s side seat, in front of where defendant had been seated.

Thomas testified that defendant was the first person in his cab that morning, and that he cleaned the cab right before picking up defendant. Thomas testified that he did not observe anything under his driver’s seat other than the usual cigarette butts and lint. Officer [5]*5Murphy testified that the cab was “extremely clean” and that he observed “vacuum marks” indicating that the cab had been vacuumed recently. Defendant was apprehended near the bus terminal.

Defendant was tried at the 26 October 1998 Criminal Session of Wake County Superior Court on charges of trafficking cocaine by transportation and trafficking cocaine by possession in violation of N.C. Gen. Stat. § 90-95. On 29 October 1998, defendant was found guilty on both counts and was sentenced to two consecutive terms of thirty-five to forty-two months’ imprisonment. Defendant appeals.

Defendant makes four arguments on appeal: (1) the trial court committed plain error in failing to suppress the cocaine evidence recovered from the taxicab; (2) the trial court erred in denying defendant’s motion to set aside the verdicts based on a variance between the indictments and the verdicts; (3) the trial court erred in denying defendant’s motion to dismiss the charges for insufficient evidence; and (4) the trial court erred in sentencing defendant “in a manner not authorized by law.” After careful review, we hold that defendant received a fair trial.

A. Motion to Suppress

Defendant first argues that the trial court committed plain error in failing to suppress, on its own motion, the cocaine evidence recovered from the taxicab. Specifically, defendant argues that the evidence should have been suppressed because the officers did not have probable cause to detain defendant both inside and outside the cab.

Defendant failed to move to suppress the evidence at trial, or otherwise object; therefore, the issue is under plain error review. See State v. Hardy, 353 N.C. 122, 131, 540 S.E.2d 334, 342 (2000). Our standard of review under plain error is whether

“it can be said the claimed error is a ‘fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,’ or ‘where [the error] is grave error which amounts to a denial of a fundamental right of the accused,’ or the error has “ ‘resulted in a miscarriage of justice or in the denial to appellant of a fair trial.” ’ ”

State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (emphasis omitted) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted)).

[6]

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State v. Butler
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Bluebook (online)
556 S.E.2d 304, 147 N.C. App. 1, 2001 N.C. App. LEXIS 1051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-butler-ncctapp-2001.