An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e .
NO. COA13-1106 NORTH CAROLINA COURT OF APPEALS
Filed: 15 April 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County Nos. 10 CRS 200906–07 JOSEPH ASHLEY DICKENSON, JR., Defendant.
Appeal by defendant from judgment entered 13 November 2012
by Judge Linwood O. Foust in Mecklenburg County Superior Court.
Heard in the Court of Appeals 20 February 2014.
Roy Cooper, Attorney General, by David Shick, Associate Attorney General, for the State.
Staples Hughes, Appellate Defender, by Mary Cook, Assistant Appellant Defender, for defendant–appellant.
DAVIS, Judge.
Defendant Joseph Ashley Dickenson, Jr. (“Defendant”)
appeals from a judgment entered upon a guilty plea to one count
of Level One trafficking in marijuana in violation of N.C. Gen.
Stat. § 90-95(h)(1)(a). On appeal, he argues that the trial
court erred in denying his motion to suppress evidence obtained
pursuant to a stop of his vehicle by law enforcement officers. -2- After careful review, we affirm the trial court’s denial of the
motion to suppress.
Factual Background
The evidence offered by the State at trial tended to show
the following. On 6 January 2010, at around 8:00 p.m., Officer
Nathan Watkins (“Officer Watkins”) and Officer Michael Sullivan
(“Officer Sullivan”) with the Charlotte–Mecklenburg Police
Department (“CMPD”) were conducting surveillance of a residence
in response to a complaint from a person who had observed
“possible illegal drug transactions” involving a number of
people and parcels moving in and out of the residence on a
regular basis. Officer Watkins was surveilling the residence
from a distance within 100 yards of the site, while Officer
Sullivan conducted his surveillance of the residence in plain
clothes from an unmarked vehicle.
Both officers observed a man who was later identified as
Defendant remove two duffle bags or suitcases from the residence
and place one of the bags into the trunk of a white, four-door
Acura Legend automobile and the other into the back seat of the
same vehicle. The officers then both observed Defendant drive
away from the residence.
Officer Sullivan began to follow Defendant’s car in his
unmarked vehicle as Defendant drove onto I-485. As Officer -3- Sullivan followed Defendant, he communicated by radio to other
officers a description of Defendant’s vehicle, the license plate
number, and the direction in which Defendant was travelling.
Officer Sullivan also communicated to the other officers his
observation that Defendant was not wearing a seatbelt, which he
observed as Defendant was approaching the exit ramp to merge
onto I-485.
Officer Michael Griffin (“Officer Griffin”) testified that
as he and a fellow officer were riding together in their patrol
car, he heard Officer Sullivan communicate over the radio that
Defendant was operating a white, four-door 1992 Acura Legend
with Tag Number YYM9580, that Defendant was travelling at a
particular location along I-485, and that Officer Sullivan had
personally observed that Defendant was operating his vehicle
while not wearing his seatbelt. This information was also heard
over the radio by Officer Jonathan Tobbe (“Officer Tobbe”), who
was communicating with several officers by both telephone and
radio during the surveillance of the residence and who also
testified that Officer Sullivan had communicated over the radio
his observation that Defendant was not wearing his seatbelt.
As a result of the information communicated to them by
Officer Sullivan, Officer Griffin and his partner located and
followed Defendant’s vehicle on I-485. Officer Griffin -4- continued to follow Defendant as Defendant exited I-485. While
stopped directly behind Defendant’s vehicle at a red light,
Officer Griffin personally observed that Defendant was not
wearing his seatbelt and that the belt “was actually just
hanging.” Officer Griffin then initiated a traffic stop of
Defendant’s vehicle. Upon approaching the vehicle, Officer
Griffin noticed an odor of marijuana, which he said “was very
strong, it made [his] eyes water, it was strong.” After
determining that Defendant was driving with a “canceled”
driver’s license, Officer Griffin placed Defendant under arrest
and conducted a search of Defendant’s vehicle, in which he found
the first of the two cases that Defendant had placed in the
vehicle, containing what Officer Griffin estimated to be thirty
pounds of marijuana.
Defendant was charged in bills of indictment with one count
each of trafficking by possessing and trafficking by
transporting 50 pounds or more but less than 2,000 pounds of
marijuana, a Schedule VI controlled substance under N.C. Gen.
Stat. § 90-94(1) — both Level Two trafficking offenses in
violation of N.C. Gen. Stat. § 90-95(h)(1)(b) — and with one
count of possession with intent to sell or deliver more than one
and one-half ounces of marijuana in violation of N.C. Gen. Stat.
§ 90-95(a)(1). -5- Defendant filed in Mecklenburg County Superior Court a
motion to suppress the “large sum of money” found in his pocket,
the suitcases found in the backseat and trunk of his vehicle
that were alleged to contain marijuana, and the statements
Defendant made to a detective in the VICE and Narcotics Unit of
the CMPD in which he “allegedly admitted to possessing the
alleged marijuana.” In his motion, Defendant argued that the
officers who initiated the traffic stop had no articulable facts
upon which they could have relied in order to establish a proper
basis for stopping Defendant’s vehicle. After conducting a
hearing, Judge Hugh B. Lewis entered an order denying
Defendant’s motion.
Following the denial of his motion to suppress, Defendant
pled guilty to one count of Level One trafficking in marijuana
in violation of N.C. Gen. Stat. § 90-95(h)(1)(a), and the State
dismissed the remaining charges. In his plea agreement,
Defendant expressly reserved the right to appeal the denial of
his motion to suppress. On 13 November 2012, the trial court
entered its judgment and Defendant was sentenced to a term of 25
to 30 months imprisonment. Defendant gave timely written notice
of appeal.
Analysis
Defendant argues on appeal that the trial court erred by -6- denying his motion to suppress because the officers who
initiated the stop of his vehicle did not have reasonable,
articulable suspicion to justify an investigatory traffic stop.
Alternatively, Defendant argues that the trial court erred by
failing to make findings of fact that “resolve the conflicts” in
the evidence presented at the hearing on the motion.
“In North Carolina, a defendant’s right to pursue an appeal
from a criminal conviction is a creation of state statute.”
State v. McBride, 120 N.C. App. 623, 624, 463 S.E.2d 403, 404
(1995), aff’d per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996).
Under N.C. Gen. Stat. § 15A-1444(e), “a defendant who has
entered a plea of guilty is not entitled to appellate review as
a matter of right, unless the defendant is appealing sentencing
issues or the denial of a motion to suppress, or the defendant
has made an unsuccessful motion to withdraw the guilty plea.”
State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870
(emphasis added), disc. review denied, 356 N.C. 442, 573 S.E.2d
163 (2002); see also N.C. Gen. Stat. § 15A-979(b) (2013) (“An
order finally denying a motion to suppress evidence may be
reviewed upon an appeal from a judgment of conviction, including
a judgment entered upon a plea of guilty.”). Nonetheless, “a
defendant bears the burden of notifying the [S]tate and the
trial court during plea negotiations of the intention to appeal -7- the denial of a motion to suppress, or the right to do so is
waived after a plea of guilty.” McBride, 120 N.C. App. at 625,
463 S.E.2d at 404. Because Defendant specifically reserved his
right to appeal when he entered his guilty plea, his appeal is
properly before us.
Our review of a trial court’s 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). An appellate court
“accords great deference” to the trial court in this respect
“because it is entrusted with the duty to hear testimony, weigh
and resolve any conflicts in the evidence, find the facts, and,
then based upon those findings, render a legal decision, in the
first instance, as to whether or not a constitutional violation
of some kind has occurred.” Id. at 134, 291 S.E.2d at 619–20.
Unchallenged findings of fact “are presumed to be supported by
competent evidence and are binding on appeal.” State v. Baker,
312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984) (internal quotation
marks omitted). In the present case, Defendant does not argue
that the court’s findings of fact fail to support its -8- conclusions of law. Therefore, we limit our review accordingly.
“[A] traffic stop is constitutional if the officer has a
‘reasonable, articulable suspicion that criminal activity is
afoot.’” State v. Barnard, 362 N.C. 244, 246–47, 658 S.E.2d
643, 645 (quoting Illinois v. Wardlow, 528 U.S. 119, 123,
145 L. Ed. 2d 570, 576 (2000)), cert. denied, 555 U.S. __,
172 L. Ed. 2d 198 (2008). “This Court has determined that the
reasonable suspicion standard 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.’” Id. at 247, 658 S.E.2d at 645 (alteration and
omission in original) (quoting State v. Watkins, 337 N.C. 437,
441, 446 S.E.2d 67, 70 (1994), appeal after remand, 120 N.C.
App. 804, 463 S.E.2d 802 (1995)). “Reasonable suspicion is a
‘less demanding standard than probable cause and requires a
showing considerably less than preponderance of the evidence.’”
Id. (quoting Wardlow, 528 U.S. at 123, 145 L. Ed. 2d at 575–76).
However, “[i]f the officer making the investigatory stop
(the second officer) does not have the necessary reasonable
suspicion,” State v. Battle, 109 N.C. App. 367, 370, 427 S.E.2d
156, 159 (1993), the stop “may nonetheless be made if the second
officer receives from another officer (the first officer) a -9- request to stop the vehicle, and if, at the time the request is
issued, the first officer possessed a reasonable suspicion that
criminal conduct had occurred, was occurring, or was about to
occur.” Id. at 370–71, 427 S.E.2d at 159. Moreover, where
there is “no request from the first officer that the second
officer stop a vehicle, the collective knowledge of both
officers may form the basis for reasonable suspicion by the
second officer, if and to the extent the knowledge possessed by
the first officer is communicated to the second officer.” Id.
at 371, 427 S.E.2d at 159.
Finally, “[i]n North Carolina an officer may stop and issue
a citation to any motorist who he has probable cause to believe
has committed a misdemeanor or infraction.” State v. Hamilton,
125 N.C. App. 396, 400, 481 S.E.2d 98, 100 (internal quotation
marks omitted), appeal dismissed and disc. review denied,
345 N.C. 757, 485 S.E.2d 302 (1997). Because N.C. Gen. Stat.
§ 20-135.2A(a) requires that “each occupant of a motor vehicle
manufactured with seat belts shall have a seatbelt properly
fastened about his or her body at all times when the vehicle is
in forward motion on a street or highway in this State,” N.C.
Gen. Stat. § 20-135.2A(a) (2013), “[a]ny person violating this
statute commits an infraction.” Hamilton, 125 N.C. App. at 400,
481 S.E.2d at 100; see also N.C. Gen. Stat. § 20-135.2A(e). -10- In the present case, the trial court made the following
findings of fact:
1. That the above-named Defendant was stopped on January 06, 2010, at or near I-485 and University City Blvd. in Mecklenburg County by Officer MA Griffin of the CMPD for failure to wear a seat belt pursuant to N.C. Gen. Stat. § 20-135.2(a)(e) and that Officer Golshani was riding with Officer Griffin.
2. That prior to stopping the Defendant’s vehicle, Officer Griffin received information via radio from CMPD Officer Sullivan, who indicated that the Defendant was driving without his seat belt.
3. That Officer Sullivan was able to provide Officer Griffin with a description of the Defendant’s vehicle, along with a tag number and exact location.
4. That Officer Griffin was able to locate the Defendant’s vehicle based on this information.
5. That Officer Griffin pulled up behind the Defendant’s vehicle when it was stopped at a red light and was able to observe himself that the Defendant was not wearing his seat belt.
The trial court then made the following conclusions of law:
1. That this matter is before the court on the Defendant’s Motion to Suppress based on violation of the Defendant’s Constitutional Rights under the U.S. Constitution and the Constitution of North Carolina[.] -11- 2. That pursuant to State v[.] Styles, 362 N.C. App[.] 412, 665 S.E.2d[] 438, reasonable suspicion existed for Officer Griffin to conduct a traffic stop on the defendant based on his observations that he was not wearing a seat belt as well as the information he received from Officer Sullivan.
3. That an objective standard, rather than a subjective standard, must be applied to determine the reasonableness of police action related to probable cause. State v. McClendon, 350 N.C. 630[,] 517 S.E.2d 128.
4. That, therefore, the traffic stop conducted on [the] vehicle in which the Defendant was driving did not violate his Constitutional rights under the Fourth Amendment proscription against unreasonable seizures.
Our review of the record reveals that competent evidence
existed to support the trial court’s findings of fact, which
support its conclusions of law. Officer Griffin testified that
prior to initiating the stop of Defendant’s vehicle, he had
personally observed that Defendant was not wearing his seatbelt
and that the belt “was actually just hanging,” both as Defendant
was exiting off of I-485 and when the officer was stopped
directly behind Defendant at the traffic light at the end of the
exit ramp of the interstate. Additionally, Officer Sullivan
testified that he, too, observed that Defendant was driving on
I-485 without wearing his seatbelt, which information he
communicated over the radio to his fellow officers and which -12- information was heard by and corroborated through the testimony
of Officers Griffin and Tobbe. Furthermore, Officers Griffin
and Tobbe testified that Officer Sullivan also communicated the
description, license plate, and location of Defendant’s vehicle,
which information enabled Officer Griffin to locate Defendant’s
vehicle as he travelled along I-485.
A careful review of Defendant’s argument on appeal
demonstrates that he does not dispute that the record includes
this evidence or that such evidence supports the court’s
findings of fact. Instead, Defendant challenges the credibility
of this evidence and argues that a video recording taken from
the dashboard-mounted camera in Officer Griffin’s patrol car —
which was introduced by the State at the hearing on Defendant’s
motion to suppress — contradicts the testimony given by the
officers at the hearing. However, as Defendant concedes,
“[w]eighing the credibility of witnesses and resolving conflicts
in their testimony is precisely the role of the superior court
in ruling on a motion to suppress.” State v. Veazey, 201 N.C.
App. 398, 402, 689 S.E.2d 530, 533 (2009), disc. review denied,
363 N.C. 811, 692 S.E.2d 876 (2010).
Nevertheless, Defendant urges this Court to conclude that
the dashboard camera video recording indisputably demonstrates
that the trial court’s findings of fact were not supported by -13- competent evidence, relying on Scott v. Harris, 550 U.S. 372,
167 L. Ed. 2d 686 (2007), for support. In Scott, the United
States Supreme Court considered the denial of a motion for
summary judgment that was brought based on an assertion of
qualified immunity. Id. at 376, 167 L. Ed. 2d at 691. While
reviewing whether the lower courts had properly determined that
the movant was not entitled to qualified immunity, the Court
stated that “[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.” Id. at 380, 167 L. Ed. 2d at 694. The
Supreme Court proceeded to determine that “Respondent’s version
of events [wa]s so utterly discredited by the record that no
reasonable jury could have believed him,” id., and that “[t]he
Court of Appeals should not have relied on such visible fiction;
it should have viewed the facts in the light depicted by the
videotape.” Id. at 380–81, 167 L. Ed. 2d at 694.
Here, Defendant insists that — as in Scott — the video
recording taken from Officer Griffin’s dashboard camera belies
the testimony of both Officer Sullivan and Officer Griffin in
two ways. First, Defendant claims that the video recording
irrefutably shows that it was too dark for the officers to have -14- observed that Defendant was not wearing his seatbelt. Second,
Defendant asserts that the transcript of the video recording
shows that Officer Griffin was “‘trying to come up with’ any
reason to stop [Defendant]” and that the seatbelt violation that
served as the basis for the investigatory stop was pretextual.
With respect to Defendant’s second assertion, it has long
been recognized that “it is immaterial to Fourth Amendment
analysis that the officer may have had ulterior motives for the
traffic stop.” Hamilton, 125 N.C. App. at 399, 481 S.E.2d at
100 (internal quotation marks omitted); see also State v.
McClendon, 350 N.C. 630, 635, 517 S.E.2d 128, 131 (1999)
(“[P]olice action related to probable cause should be judged in
objective terms, not subjective terms. Provided objective
circumstances justify the action taken, any ulterior motive of
the officer is immaterial.” (internal quotation marks omitted)).
Therefore, Defendant’s attempts to question the motives
underlying Officer Griffin’s investigatory stop of Defendant’s
vehicle are not relevant to our analysis.
With respect to Defendant’s first assertion, upon careful
review of the video recording in the record before us, we are
not persuaded that this video so irrefutably contradicts the
evidence presented to the trial court so as to have rendered the
officers’ testimony impossible. Rather, the inferior quality of -15- the intermittently blurred images from the video recording
precludes us from determining whether the night’s darkness
rendered it impossible for Officers Griffin and Sullivan to see
a swinging, unfastened seatbelt in Defendant’s vehicle either
directly or with the aid of the ambient light from passing cars
on the interstate and at the traffic light. Thus, we conclude
that Scott is factually distinguishable from the present case
because, unlike the video recording in Scott, the video in the
record currently before us did not “so utterly discredit[]” the
testimony of the officers upon which the trial court relied in
making its findings of fact. See Scott, 550 U.S. at 380,
167 L. Ed. 2d at 694; cf. id. at 378–79, 167 L. Ed. 2d at 693
(“[R]eading the lower court’s opinion, one gets the impression
that respondent, rather than fleeing from police, was attempting
to pass his driving test . . . . The videotape tells quite a
different story.”).
Here, the State offered competent evidence that prior to
initiating his investigatory stop of Defendant’s vehicle,
wearing his seatbelt while operating the vehicle, and that
Officer Sullivan observed and communicated the same to his
fellow officers, including Officer Griffin. Accordingly, we
hold the trial court did not err when it determined that Officer -16- Griffin’s investigatory stop of Defendant’s vehicle was based on
reasonable, articulable suspicion.
Defendant next argues that the trial court’s order denying
his motion to suppress fails to contain sufficient findings of
fact because the court’s findings did not address the “material
conflict” in the evidence presented by “the conflicting video
evidence.” However, as discussed above, we are not persuaded
that the video recording from Officer Griffin’s dashboard camera
materially conflicted with the testimony given by the officers
at the hearing. Therefore, because no material conflict in the
evidence exists, we cannot say that the trial court erred in
denying Defendant’s motion to suppress.
Conclusion
For the reasons stated above, we affirm the trial court’s
order denying Defendant’s motion to suppress.
AFFIRMED.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).