State v. Lopez

723 S.E.2d 164, 219 N.C. App. 139, 2012 WL 540744, 2012 N.C. App. LEXIS 284
CourtCourt of Appeals of North Carolina
DecidedFebruary 21, 2012
DocketCOA11-957
StatusPublished
Cited by7 cases

This text of 723 S.E.2d 164 (State v. Lopez) 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. Lopez, 723 S.E.2d 164, 219 N.C. App. 139, 2012 WL 540744, 2012 N.C. App. LEXIS 284 (N.C. Ct. App. 2012).

Opinions

STROUD, Judge.

Defendant was convicted of trafficking cocaine by possessing 400 grams or more of cocaine and trafficking cocaine by transporting 400 grams or more of cocaine. Defendant appeals, arguing the trial court erred in denying his motion to suppress and motion to dismiss. For the following reasons, we affirm the trial court’s denial of defendant’s motion to suppress and find no error in the trial court’s denial of defendant’s motion to dismiss.

I. Background

In April of 2010, defendant was indicted for various drug offenses. On or about 7 December 2010, defendant filed a motion to suppress:

1. Any statement(s) or other information gleaned from an unnamed person or from unnamed persons who allegedly provided information to law enforcement officers causing the officers to conduct an investigation leading to the stop and subsequent search of a vehicle defendant was allegedly operating on or about December 10, 2009 in Guilford County, North Carolina; and
2. Any evidence obtained during a search of a Honda Civic automobile which defendant was allegedly operating on or about December 10, 2009 in Guilford County, North Carolina.

On 30 March 2011, the trial court entered an order denying defendant’s motion to suppress based, inter alia, upon the following findings of fact:

16. Officer M.R O’Hal was a uniformed officer of the Greensboro Police Department who had received narcotics interdiction and arrest training in his capacity as a K-9 handler and instructor during his 10 ½ year career with the Greensboro Police Department. During his career, he had also been certi[141]*141fied as a radar operator for speeding enforcement purposes, although his certification had expired because of a change in duties. Also, at that time he had received training in estimating the speed of moving vehicles.
17. Officer O’Hal was on patrol in the vicinity of the surveillance being conducted by the detectives and received a communication from Sergeant Koonce instructing him to stop the white Honda driven by the defendant and related that there was a large quantity of cocaine in the vehicle. Officer O’Hal was in uniform, but he was operating an unmarked Chevrolet Tahoe on the night in question; and
18. Officer O’Hal followed the white Honda for about 2 ½ to 3 miles. He paced it for about mile and utilizing his speedometer, which was regularly calibrated, he formed the opinion that the Honda was traveling approximately 70 mph in a 60 mph zone. He conducted a “routine traffic stop” for that infraction and to investigate possible illegal narcotics activities.
19. He approached the vehicle on the passenger side and informed the driver, later identified as the defendant, Endy Lopez, that he had stopped him for speeding and asked hi[m] for a valid license or identification to which, the defendant [responded] that he did not know that he was speeding and that he was going to Winston for a construction job and just got off work. Not being able to produce a valid driver’s license, the defendant, Endy Lopez, produced a Mexican identification card and informed the officer that he did not have a valid operator’s license in North Carolina or in any other state.
20. Officer O’Hal continued asking Mr. Lopez questions about where he was going and what he was doing for the purpose of conducting a narcotics investigation, based upon his training and experience in that regard. Officer O’Hal noticed that the defendant was very well kept, had clean hands, and that his clothing was clean and “lightly dressed” for the conditions. In Officer O’Hal’s opinion, the cleanliness of the vehicle, the defendant’s clothing and his hands w[ere] not consistent with his response to questions indicating that he was employed in the construction business.
[142]*14221. The defendant was very polite and cooperative during the stop, but became visibly nervous by breathing rapidly when questioned further. His heart appeared to be beating rapidly, he exchanged glances with his passenger and both individuals looked at an open plastic bag in the back seat of the vehicle. Officer O’Hal noticed that the passenger, Garcia, was looking nervous and continuing to look into the back seat. Officer O’Hal also observed dryer sheets protruding from the open bag which also contained a yellow box of clear plastic wrap. Due to his training and experience in narcotics investigations, Officer O’Hal is aware that items such as these are used to package drugs and conceal their identity.
22. Officer O’Hal returned to his patrol vehicle and confirmed by radio communication that Mr. Lopez did not have a valid operator’s license. At this point, Officer O’Hal was able to determine that Garcia had an identification card from Virginia. Officer O’Hal then went back to the vehicle the defendant was operating and asked him whether he had anything illegal on his person or in the vehicle.
23. Officer O’Hal asked about the car and the defendant stated thát it was not his car and that he was not sure of his friend’s name. Officer O’Hal then asked whether the defend-ant had “any weapons, brass knuckles, or drugs?” Officer O’Hal followed by asking permission to search the vehicle by saying “do you mind if I search the vehicle?” Mr. Lopez responded, “No, I don’t mind.” Officer O’Hal asked “do you understand?” to which the defendant gave the positive response, “I do.” In an attempt to confirm this permission, Officer O’Hal followed and asked “do you have a pistol?” The defendant stated, “O.K. you can look” whereupon Officer O’Hal conducted a search of the vehicle. . . .
24. After searching the passenger compartment of the vehicle, Officer O’Hal went to the front of the vehicle. As Officer O’Hal did this, he saw that the defendant appeared to grow very nervous and concerned. Officer O’Hal stated that he is aware th[r]ough his training and experience that contraband is often concealed in the air intake of vehicles. After he got to the front of the vehicle, Officer O’Hal opened the hood, which he knew the defendant had opened a few minutes earlier, and observed that the air intake compartment appeared to be cleaner tha[n] the rest of the parts in the engine compartment. [143]*143He released several clips or latches which secured the top of the air filter compartment and removed the top disclosing a large quantity of powder cocaine wrapped in clear plastic.
25. The evidence shows that the encounter lasted a total of between 12-13 minutes. During the period of the stop and search, the defendant was polite and cooperative and did not appear to have any difficulty understanding English. The evidence also shows that the defendant did not limit the scope of Officer O’Halfs] search of the vehicle nor did he revoke his permission or consent at any time prior to, during, or after the search. Additionally, there is no evidence before the court that the passenger, Garcia, exercised control over the vehicle or in any way limited the search of the vehicle or revoked the permission given to search by the defendant.

Defendant was arrested, indicted, and received a trial by jury.

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State v. Lopez
723 S.E.2d 164 (Court of Appeals of North Carolina, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
723 S.E.2d 164, 219 N.C. App. 139, 2012 WL 540744, 2012 N.C. App. LEXIS 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lopez-ncctapp-2012.