State v. Johnson

737 S.E.2d 442, 225 N.C. App. 440, 2013 N.C. App. LEXIS 136
CourtCourt of Appeals of North Carolina
DecidedFebruary 5, 2013
DocketNo. COA12-827
StatusPublished
Cited by11 cases

This text of 737 S.E.2d 442 (State v. Johnson) 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. Johnson, 737 S.E.2d 442, 225 N.C. App. 440, 2013 N.C. App. LEXIS 136 (N.C. Ct. App. 2013).

Opinion

STROUD, Judge.

David Harold Johnson (“defendant”) appeals from the trial court’s denial of his motion to suppress evidence seized from his person and subsequent convictions for trafficking in cocaine by possession and transportation, trafficking in heroin by possession and transportation, possession of marijuana, and possession of drug paraphernalia. For the following reasons, we affirm the trial court’s denial of defendant’s motion to suppress and find no error in his trial.

[442]*442I. Background

On 1 August 2011, defendant was indicted for trafficking in cocaine by possession and transportation, trafficking in heroin by possession and transportation, possession of marijuana, possession of drug paraphernalia, driving without a license, resisting, delaying, or obstructing a public officer, and assault on a government officer. Defendant moved to suppress evidence seized from his person as fruits of an illegal search. The trial court denied defendant’s motion by order entered 16 February 2012. Defendant pleaded not guilty and proceeded to jury trial. The evidence at trial showed that:

On 15 June 2011, defendant was travelling south on 1-95 in Johnston County. Trooper Michael Hicks with the North Carolina Highway Patrol observed defendant’s car following the car in front of him too closely and saw defendant hold up a cell phone without putting it to his ear. Trooper Hicks pulled defendant over for following too closely and texting while driving. When he approached defendant’s vehicle he noticed the strong odor of marijuana coming from defendant’s vehicle. Trooper Hicks asked defendant to step out and sit in the front passenger seat of his patrol car.

Trooper Hicks asked if he could frisk defendant for weapons and defendant agreed. In the course of his frisk, Trooper Hicks did not find anything that appeared to be a weapon, though he felt a blunt object in the inseam of defendant’s pants. After the frisk, defendant sat in the front seat of Trooper Hicks’s patrol car while Trooper Hicks ran defendant’s license information. While in the patrol car, Trooper Hicks still smelled a strong odor of marijuana coming from defendant.

Trooper Hicks advised defendant that he had noticed the strong odor of marijuana both on defendant and in defendant’s car. Defendant gave Trooper Hicks permission to search his pockets and his car. In his initial search, Trooper Hicks found nothing in defendant’s pockets and found only some receipts, a parking ticket, a scale of the type typically used by drug dealers, and an open package of boxer briefs in the trunk. A K-9 unit arrived with a dog trained in drug detection. The troopers ran the dog through the car and he alerted to the odor of contraband in the car’s trunk and on the driver’s seat.

Trooper Hicks proceeded to search defendant’s person, but found nothing in defendant’s outer clothing. Trooper Hicks then placed defendant on the side of his vehicle, so that the vehicle was between defendant and the travelled portion of the highway. Other troopers [443]*443stood around defendant to prevent passers-by from seeing him. Trooper Hicks then pulled the front waistband of defendant’s pants away from his body and looked inside. Defendant was wearing two pairs of underwear — an outer pair of boxer briefs and an inner pair of athletic compression shorts. Between the two pairs of underwear Trooper Hicks discovered a cellophane package containing several smaller packages. When Trooper Hicks saw the package, defendant turned, hit another trooper in the face and fled for the nearby woods. The troopers quickly apprehended defendant. Trooper Hicks cut open the package and found that the smaller packages contained a green, leafy substance that, in his opinion, was marijuana; a tan, rock-like substance, later identified by chemical testing to be heroin; and a white powdery substance later identified by chemical testing to be cocaine.

Defendant moved to dismiss all charges against him. The trial court granted defendant’s motion as to driving without a license, but denied his motion as to all other charges. The jury found defendant not guilty of assaulting a government officer and guilty of the remaining offenses. Defendant was sentenced to 225-279 months confinement in the Division of Adult Correction for trafficking in heroin, and a consecutive sentence of 35-42 months confinement for trafficking in cocaine, possession of marijuana, resisting a public officer, and possession of drug paraphernalia. Defendant gave notice of appeal in open court.

II. Motion to Suppress

Defendant first argues that the trial court should have granted his motion to suppress the cocaine, heroin, and marijuana found in his boxers because the search was neither incident to arrest nor pursuant to exigent circumstances justifying a strip search.

A. Standard of Review

It is well established that the standard of review in evaluating a trial court’s ruling on a motion to suppress is that the trial court’s findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. In addition, findings of fact to which defendant failed to assign error are binding on appeal. Once this Court concludes that the trial court’s findings of fact are supported by the evidence, then this Court’s next task is to determine whether the trial court’s conclusions of law are supported by the find[444]*444ings. The trial court’s conclusions of law are reviewed de novo and must be legally correct.

State v. Eaton,_N.C. App._,_, 707 S.E.2d 642, 644-45 (quotation marks and citation omitted), disc. rev. denied, 365 N.C. 202, 710 S.E.2d 25 (2011).

B. Search Based on Probable Cause and Exigent Circumstances

Defendant does not challenge any of the trial court’s findings of facts and only challenges conclusions of law 6, 7, and 8. Therefore, the findings of fact are binding on appeal, id., and we consider any challenge to the other conclusions abandoned, N.C.R. App. P. 28(a).

The trial court made the following relevant findings of fact and conclusions of law:

7. Trooper Hicks immediately detected the strong odor of green or raw marijuana coming from defendant’s vehicle.....
9. Trooper Hicks asked defendant to sit in the front passenger seat of the patrol car and defendant complied. Before defendant got in the patrol car, Trooper asked defendant if he could frisk defendant for any weapons and defendant agreed. While frisking defendant, Trooper Hicks felt a blunt object in the inseam of defendant’s pants, but he did not believe the object to be a weapon.
11. Trooper Hicks had not told defendant he was under arrest and defendant in fact was not under arrest while seated in the patrol vehicle.
13. Defendant stated that he had been in Virginia visiting his girlfriend, the mother of his child. Defendant said he could not recall the name of the place he had visited in Virginia.
14. Trooper Hicks asked defendant about the marijuana odor and defendant replied that marijuana had been used in his vehicle the day before. Defendant said that he had been eating chicken in the car before Trooper [445]*445Hicks stopped him.

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Cite This Page — Counsel Stack

Bluebook (online)
737 S.E.2d 442, 225 N.C. App. 440, 2013 N.C. App. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-johnson-ncctapp-2013.