State v. Royster

737 S.E.2d 400, 224 N.C. App. 374, 2012 WL 6596003, 2012 N.C. App. LEXIS 1453
Court of Appeals of North Carolina·Decided December 18, 2012·No. No. COA12-458·Published·Cited by 5 cases

Opinion

THIGPEN, Judge.

Ellis Royster, Jr., (“Defendant”) appeals from a judgment entered convicting him of feloniously carrying a concealed weapon, after Defendant’s no contest plea, challenging the denial of his motion to suppress the evidence arising from the stop in this case. We conclude the trial court did not err by denying Defendant’s motion to suppress.

[375] The evidence of record tends to show the following: At approximately 5:00 p.m. on 31 October 2009, Sergeant Scott Sherwood (“Sergeant Sherwood”) of the Charlotte-Mecklenburg Police Department observed a man, later identified as Defendant, driving a gray 2001 Cadillac SLS in the lane of traffic opposite to him near The Plaza in Charlotte, North Carolina. Sergeant Sherwood “recognized that [Defendant] was going above the [speed] limit[.]” After observing Defendant for 3 to 5 seconds, Sergeant Sherwood estimated that Defendant’s speed was 52 miles per hour. Sergeant Sherwood made a U-tum and pursued Defendant],] but Defendant “just maintained his speed and kept going outboundf.]” Sergeant Sherwood lost sight of Defendant at a left-hand curve, and after failing to spot Defendant in the straight stretch of roadway following the curve, Sergeant Sherwood concluded, “the only logical place for his car to be . . . [was that Defendant took] a right-hand tum[.]” Sergeant Sherwood turned right and immediately saw Defendant, who had turned his car around and started driving back in the direction from which he had come.

Sergeant Sherwood stopped Defendant, smelled marijuana coming from the vehicle, and discovered that Défendant was carrying a concealed weapon. Defendant was arrested. On 12 July 2010, Defendant was indicted on one count of feloniously carrying a concealed gun in violation of N.C. Gen. Stat. § 14-269 (2011).1 Defendant filed a motion to suppress the evidence arising from the stop, and the motion came on for hearing at the 24 October 2011 session of Mecklenburg County Superior Court. The trial court denied Defendant’s motion to suppress in open court. Defendant preserved his right to appeal the denial of his motion to suppress, after which Defendant pled no contest to the charge of carrying a concealed weapon. The trial court entered a judgment in open court, consistent with the plea agreement, convicting Defendant of feloniously carrying a concealed weapon. Defendant gave notice of appeal from this judgment in open court. The trial court entered a judgment on 27 October 2011.

I. Standard of Review

“The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court’s findings of fact and whether the findings of fact support the conclusions of law.” State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citation omitted). “The trial court’s findings are conclusive on [376] appeal if supported by competent evidence, even if the evidence is conflicting.” State v. Icard, 363 N.C. 303, 312, 677 S.E.2d 822, 828 (2009) (citation and quotation marks omitted). “Conclusions of law are reviewed de novo and are subject to full review.” Biber, 365 N.C. at 168, 712 S.E.2d at 878 (citation omitted). “Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal.” Id.

In this case, the trial court did not enter a written order denying Defendant’s motion to suppress. Rather, the trial court made the following ruling from the bench:

THE COURT: All right. Based upon the evidence presented and the Court’s review of the case law cited by the defense as well as some case law the Court has from the earlier order in a similar case, the Court perceives that the motion to suppress should be denied and has concluded that there’s probable cause to support the stop for speeding; that upon the finding of the marijuana, that effectively would give probable cause to search the car, also will permit a reasonable officer to remove the defendant from the vehicle and to frisk him under the Terry standard. Plus it may well be enough that the smelling of the marijuana in the car,conceivably could create probable cause for an arrest. And that portion I have to defer to further research, but I don’t think that changes the outcome.

As a preliminary matter, we note that N.C. Gen. Stat. § 15A-977(f) (2011) requires that “[t]he judge must set forth in the record his findings of facts and conclusions of law.” Id. However, N.C. Gen. Stat. § 15A-977(f), has been interpreted as “mandating a written order unless (1) the trial court provides its rationale from the bench, and (2) there are no material conflicts in the evidence at the suppression hearing.” State v. Williams, 195 N.C. App. 554, 555, 673 S.E.2d 394, 395 (2009) (citation omitted). “If these two criteria are met, the necessary findings of fact are implied from the denial of the motion to suppress.” Id. In this case, although the trial court did not enter a written order, it provided the aforementioned rationale for its ruling in open court. Moreover, Sergeant Sherwood was the only testifying witness; therefore, there was no material conflict in the evidence. As such, the necessary findings are implied from the denial of the motion to suppress. Id.

[377] On appeal, Defendant argues the trial court erred by denying his motion to suppress evidence. Specifically, Defendant contends the trial court erred in concluding that the initial stop was supported by a reasonable articulable suspicion because (1) there was insufficient evidence that Defendant was speeding, and (2) there was insufficient evidence supporting the identification of Defendant as the driver of the allegedly speeding vehicle. We conclude these arguments are meritless.

II. Reasonable Suspicion

In Defendant’s first argument on appeal, he contends the trial court erred by denying his motion to suppress evidence arising from the stop because Sergeant Sherwood lacked a reasonable articulable suspicion. We disagree.

The Fourth Amendment protects individuals “against unreasonable searches and seizures.” U.S. Const, amend. IV. The North Carolina Constitution provides similar protection. N.C. Const, art. I, § 20. “A traffic stop is a seizure ‘even though the purpose of the stop is limited and the resulting detention quite brief.’ ” State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (citation omitted). “Traffic stops have ‘been historically reviewed under the investigatory detention framework first articulated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).’ ” Id. (citation omitted). “[A] traffic stop is permitted if the officer has a ‘reasonable, articulable suspicion2 that criminal activity is afoot.’ ” Id. (citation omitted).

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State v. Royster, 737 S.E.2d 400, 224 N.C. App. 374, 2012 WL 6596003, 2012 N.C. App. LEXIS 1453 (N.C. Ct. App. 2012).

737 S.E.2d 400 (State v. Royster) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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