An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure.
NO. COA13-888 NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County No. 12 CRS 228345 JORGE ALBERTO HERRERA
Appeal by defendant from order entered 31 January 2013 by
Judge Hugh Banks Lewis in Mecklenburg County Superior Court.
Heard in the Court of Appeals 7 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant.
ELMORE, Judge.
On 31 January 2013, judgment was entered against Jorge
Alberto Herrera (defendant) for the offenses of trafficking
heroin and possession with intent to sell or deliver heroin
(PWISD). Defendant was sentenced to consecutive terms of 90-117
months imprisonment on the trafficking conviction and 6-17
months for the PWISD conviction. On the same day, defendant -2- appealed his convictions on the basis that the trial court
erroneously admitted evidence found on him and in his vehicle
because the evidence was derived from an unlawful seizure.
After careful consideration, we hold that the trial court did
not err.
I. Facts
On 28 June 2012, at approximately 12:40 P.M., officers
Fabio Jarmiello and John Jurbala of the Charlotte Mecklenberg
County Police Department patrolled the area of Albermarle Road
Park (the park) in Charlotte, an area notorious for criminal
activity. Because the park is a high-crime area, officers
frequently check for the safety of individuals in that vicinity.
Defendant was located in the park’s parking lot, seated in the
driver’s seat of a stationary vehicle. As the officers pulled
into a nearby parking space, they observed defendant “bend[ing]
down . . . moving too much[.]” The officers exited their
vehicle, and approached defendant. Officer Jarmiello asked
defendant, “[i]s the reason you’re here -- this is a bad area, I
don’t know if you’re aware of that.” Defendant started to shake
and move, so for safety reasons officer Jarmiello asked
defendant, “[c]an you please come outside and talk to me?” In
response, defendant said “yes, okay,” and he exited the vehicle. -3- Officer Jarmiello then asked defendant “if he was in possession
of anything illegal, drugs, weapons, bazooka, anything inside
the car I should know about[?]” Defendant said “no[.]”
Thereafter, officer Jarmiello asked, “[d]o you mind if I check
in the car?” Defendant replied, “yeah, you can, there’s no
problem.” In addition to allowing the officer to search his
vehicle, defendant acquiesced to a search of his person upon the
request of officer Jarmiello. Once defendant provided “consent
. . . to search” he moved towards officer Jurbala, and officer
Jurbala observed “what appeared to be [a] controlled substance”
in defendant’s hand. Defendant was immediately placed in
handcuffs, and a comprehensive search of defendant’s person and
vehicle revealed cash and balloons containing heroin.
Before trial, defendant filed a motion to suppress all
evidence found as a result of defendant’s encounter with the
officers. The trial court denied defendant’s motion and
concluded that “the encounter was not within the protection of
the [f]ourth [a]mendment and did not require reasonable
suspicion.” At trial, defendant failed to object to officer
Jurbala’s testimony about the items found during the encounter.
II. Analysis
a.) Consensual Encounter -4- Defendant argues that the trial court committed plain error
by admitting evidence found on defendant and in his vehicle
because the evidence was derived from an unlawful seizure. We
disagree.
Defendant concedes that we should review this appeal
pursuant to the plain error standard because defendant failed to
object at trial to the admission of evidence relating to the
heroin and cash found by the officers. See State v. Grooms, 353
N.C. 50, 65, 540 S.E.2d 713, 723 (2000) (A motion to suppress
“is not sufficient to preserve for appeal the question of
admissibility of evidence if the defendant does not object to
that evidence at the time it is offered at trial.”). “In
criminal cases, an issue that was not preserved by objection
noted at trial and that is not deemed preserved by rule or law
without any such action nevertheless may be made the basis of an
issue presented on appeal when the judicial action questioned is
specifically and distinctly contended to amount to plain error.”
N.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610,
622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172
L. Ed. 2d 58 (2008). Plain error arises when the error is “‘so
basic, so prejudicial, so lacking in its elements that justice
cannot have been done[.]’” State v. Odom, 307 N.C. 655, 660, -5- 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill,
676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018,
74 L. Ed. 2d. 513 (1982)). “Under the plain error rule,
defendant must convince this Court not only that there was
error, but that absent the error, the jury probably would have
reached a different result.” State v. Jordan, 333 N.C. 431,
440, 426 S.E.2d 692, 697 (1993).
“The fourth amendment as applied to the states through the
fourteenth amendment protects citizens from unlawful searches
and seizures committed by the government or its agents.” State
v. Sanders, 327 N.C. 319, 331, 395 S.E.2d 412, 420 (1990), cert.
denied, 498 U.S. 1051, 111 S.Ct. 763, 112 L.Ed.2d 782 (1991).
However, police officers “do not violate the [f]ourth
[a]mendment’s prohibition of unreasonable seizures merely by
approaching individuals on the street or in other public places
and putting questions to them if they are willing to listen.”
State v. Garcia, 197 N.C. App. 522, 528, 677 S.E.2d 555, 559
(2009) (citation and internal quotation marks omitted). As long
as “a reasonable person would feel free to disregard the police
and go about his business,” officers are free to “pose
questions, ask for identification, and request consent to search
. . . provided they do not induce cooperation by coercive -6- means[.]” State v. Williams, 201 N.C. App. 566, 569, 686 S.E.2d
905, 907 (2009) (citation and internal quotation marks omitted).
Only once the encounter loses its “consensual nature” does the
fourth amendment apply. Garcia, 197 N.C. App. at 528, 677
S.E.2d at 559 (citation and quotation omitted).
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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 Appellate Procedure.
NO. COA13-888 NORTH CAROLINA COURT OF APPEALS
Filed: 4 February 2014
STATE OF NORTH CAROLINA
v. Mecklenburg County No. 12 CRS 228345 JORGE ALBERTO HERRERA
Appeal by defendant from order entered 31 January 2013 by
Judge Hugh Banks Lewis in Mecklenburg County Superior Court.
Heard in the Court of Appeals 7 January 2014.
Attorney General Roy Cooper, by Special Deputy Attorney General Lars F. Nance, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for defendant.
ELMORE, Judge.
On 31 January 2013, judgment was entered against Jorge
Alberto Herrera (defendant) for the offenses of trafficking
heroin and possession with intent to sell or deliver heroin
(PWISD). Defendant was sentenced to consecutive terms of 90-117
months imprisonment on the trafficking conviction and 6-17
months for the PWISD conviction. On the same day, defendant -2- appealed his convictions on the basis that the trial court
erroneously admitted evidence found on him and in his vehicle
because the evidence was derived from an unlawful seizure.
After careful consideration, we hold that the trial court did
not err.
I. Facts
On 28 June 2012, at approximately 12:40 P.M., officers
Fabio Jarmiello and John Jurbala of the Charlotte Mecklenberg
County Police Department patrolled the area of Albermarle Road
Park (the park) in Charlotte, an area notorious for criminal
activity. Because the park is a high-crime area, officers
frequently check for the safety of individuals in that vicinity.
Defendant was located in the park’s parking lot, seated in the
driver’s seat of a stationary vehicle. As the officers pulled
into a nearby parking space, they observed defendant “bend[ing]
down . . . moving too much[.]” The officers exited their
vehicle, and approached defendant. Officer Jarmiello asked
defendant, “[i]s the reason you’re here -- this is a bad area, I
don’t know if you’re aware of that.” Defendant started to shake
and move, so for safety reasons officer Jarmiello asked
defendant, “[c]an you please come outside and talk to me?” In
response, defendant said “yes, okay,” and he exited the vehicle. -3- Officer Jarmiello then asked defendant “if he was in possession
of anything illegal, drugs, weapons, bazooka, anything inside
the car I should know about[?]” Defendant said “no[.]”
Thereafter, officer Jarmiello asked, “[d]o you mind if I check
in the car?” Defendant replied, “yeah, you can, there’s no
problem.” In addition to allowing the officer to search his
vehicle, defendant acquiesced to a search of his person upon the
request of officer Jarmiello. Once defendant provided “consent
. . . to search” he moved towards officer Jurbala, and officer
Jurbala observed “what appeared to be [a] controlled substance”
in defendant’s hand. Defendant was immediately placed in
handcuffs, and a comprehensive search of defendant’s person and
vehicle revealed cash and balloons containing heroin.
Before trial, defendant filed a motion to suppress all
evidence found as a result of defendant’s encounter with the
officers. The trial court denied defendant’s motion and
concluded that “the encounter was not within the protection of
the [f]ourth [a]mendment and did not require reasonable
suspicion.” At trial, defendant failed to object to officer
Jurbala’s testimony about the items found during the encounter.
II. Analysis
a.) Consensual Encounter -4- Defendant argues that the trial court committed plain error
by admitting evidence found on defendant and in his vehicle
because the evidence was derived from an unlawful seizure. We
disagree.
Defendant concedes that we should review this appeal
pursuant to the plain error standard because defendant failed to
object at trial to the admission of evidence relating to the
heroin and cash found by the officers. See State v. Grooms, 353
N.C. 50, 65, 540 S.E.2d 713, 723 (2000) (A motion to suppress
“is not sufficient to preserve for appeal the question of
admissibility of evidence if the defendant does not object to
that evidence at the time it is offered at trial.”). “In
criminal cases, an issue that was not preserved by objection
noted at trial and that is not deemed preserved by rule or law
without any such action nevertheless may be made the basis of an
issue presented on appeal when the judicial action questioned is
specifically and distinctly contended to amount to plain error.”
N.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610,
622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172
L. Ed. 2d 58 (2008). Plain error arises when the error is “‘so
basic, so prejudicial, so lacking in its elements that justice
cannot have been done[.]’” State v. Odom, 307 N.C. 655, 660, -5- 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill,
676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018,
74 L. Ed. 2d. 513 (1982)). “Under the plain error rule,
defendant must convince this Court not only that there was
error, but that absent the error, the jury probably would have
reached a different result.” State v. Jordan, 333 N.C. 431,
440, 426 S.E.2d 692, 697 (1993).
“The fourth amendment as applied to the states through the
fourteenth amendment protects citizens from unlawful searches
and seizures committed by the government or its agents.” State
v. Sanders, 327 N.C. 319, 331, 395 S.E.2d 412, 420 (1990), cert.
denied, 498 U.S. 1051, 111 S.Ct. 763, 112 L.Ed.2d 782 (1991).
However, police officers “do not violate the [f]ourth
[a]mendment’s prohibition of unreasonable seizures merely by
approaching individuals on the street or in other public places
and putting questions to them if they are willing to listen.”
State v. Garcia, 197 N.C. App. 522, 528, 677 S.E.2d 555, 559
(2009) (citation and internal quotation marks omitted). As long
as “a reasonable person would feel free to disregard the police
and go about his business,” officers are free to “pose
questions, ask for identification, and request consent to search
. . . provided they do not induce cooperation by coercive -6- means[.]” State v. Williams, 201 N.C. App. 566, 569, 686 S.E.2d
905, 907 (2009) (citation and internal quotation marks omitted).
Only once the encounter loses its “consensual nature” does the
fourth amendment apply. Garcia, 197 N.C. App. at 528, 677
S.E.2d at 559 (citation and quotation omitted). A seizure
occurs when an officer, “by means of physical force or show of
authority, terminates or restrains [that person’s] freedom of
movement[.]” State v. Isenhour, 194 N.C. App. 539, 542, 670
S.E.2d 264, 267 (2008) (citation and quotation omitted).
Circumstances rising to the level of a seizure include “the
threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person of
the citizen, or the use of language or tone of voice indicating
that compliance with the officer’s request might be compelled.”
Williams, 201 N.C. App. at 569, 686 S.E.2d at 908 (citation
omitted).
In Isenhour, the defendant sat inside his parked vehicle,
which was located in an area known for prostitution and illegal
drug activity. Isenhour, 194 N.C. App. at 540, 670 S.E.2d at
266. Defendant remained in his vehicle for ten minutes as
officers observed him. Id. Two officers, in uniform, parked
their marked patrol vehicle eight feet away from the defendant. -7- Id. The officers approached the defendant, became suspicious of
the defendant’s stated reasons for his presence in the parking
lot, and asked the defendant to exit his vehicle. Id. at 541,
670 S.E.2d at 266. The officers patted the defendant down and
obtained consent to search his vehicle. Id. This Court held
that the encounter between the defendant and the officers was
not a seizure subject to fourth amendment protection because:
1.) the officers’ patrol car did not obstruct the defendant’s
vehicle; 2.) neither officer exhibited a “show of force” through
their demeanor as the encounter “proceeded in a non-threatening
manner[;]” and 3.) the officers did not use their police siren
on their vehicle, activate their blue strobe lights, or remove
their guns from their holsters. Id. at 544, 670 S.E.2d at 268.
As in Isenhour, the interaction between defendant and the
officers in this case was consensual. Officers observed
defendant’s vehicle parked in an area known for drugs and crime.
The officers did not block defendant with their patrol vehicle,
but instead parked a “space and a half away, on the left side of
[defendant’s] vehicle.” The patrol vehicle’s blue lights were
never activated and neither officer removed his gun from his
holster. Officer Jarmiello approached the driver’s side of
defendant’s vehicle to find out why defendant was in the area. -8- Defendant started to shake and move, so for safety reasons
officer Jarmiello politely asked defendant if he would be
willing to exit the vehicle and talk. Defendant consented by
saying “yes, okay,” and he exited the vehicle. Officer
Jarmiello then asked defendant if he possessed anything illegal
in his vehicle, to which defendant said “no[.]” Thereafter,
officer Jarmiello asked for consent to search the vehicle.
Defendant replied “yeah, you can, there’s no problem.” In
addition to providing consent to search his vehicle, defendant
also provided consent to search his person. During his
conversation with defendant, officer Jarmiello never raised his
voice and both officers acted in a non-threatening manner.
Based on the totality of the circumstances, the incident lacked
the show of force necessary to convert the consensual encounter
into a seizure. Thus, the trial court did not err in admitting
the evidence found in defendant’s vehicle and on his person
because the evidence was derived from a consensual encounter.
b.) Reasonable Suspicion
Next, defendant argues that the purported seizure was
unsupported by reasonable suspicion. However, since we have
ruled that no seizure existed, reasonable suspicion was not
required, and defendant’s argument necessarily fails. See State -9- v. Brooks, 337 N.C. 132, 142, 446 S.E.2d 579, 586 (1994)
(asserting that reasonable suspicion is not required for
consensual encounters).
III. Conclusion
In sum, the trial court did not err by admitting evidence
found on defendant and in his vehicle because the evidence was
derived from a consensual encounter.
No error.
Judge McGEE and Judge HUNTER, Robert C., concur.
Report per Rule 30(e).