IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA24-138
Filed 17 December 2024
Rowan County, No. 20CRS051075
STATE OF NORTH CAROLINA
v.
CURTIS LEE STOLLINGS
Appeal by Defendant from Judgment entered 12 July 2023 by Judge Joseph N.
Crosswhite in Rowan County Superior Court. Heard in the Court of Appeals 10
September 2024.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Martin T. McCracken, for the State.
Cynthia Everson for Defendant-Appellant.
HAMPSON, Judge.
Factual and Procedural Background
Curtis Lee Stollings (Defendant) appeals from the trial court’s Order denying
his Motion to Suppress and from a Judgment entered 12 July 2023 after Defendant
pleaded guilty to Possession of Drug Paraphernalia, Possession of
Methamphetamine, and Carrying a Concealed Handgun. The Record before us tends
to reflect the following:
On the evening of 7 March 2020, the Rowan County Sheriff’s Office (RCSO)
was conducting a “special project” around a “fish game arcade” in Salisbury, North STATE V. STOLLINGS
Opinion of the Court
Carolina. During the investigation, RCSO Detectives Gerald Gordy and Kelvin
Peoples ran the license plate on a parked black SUV and discovered it was registered
to a woman whom the Detectives believed to be Defendant’s spouse or girlfriend.
Detective Gordy later testified he was familiar with Defendant because he had
received information in the past that Defendant sold drugs, although he could not
recall how recent that information was or from whom he had received it.
Based on this limited information alone, the Detectives decided to follow the
vehicle. The SUV left the fish arcade and briefly entered a gas station parking lot,
where a small pick-up truck was also parked. Shortly thereafter, the SUV left the
gas station, followed by the pick-up truck, and both vehicles pulled into the parking
lot of an Applebee’s approximately a half mile away. Both vehicles remained a “very
short period of time” before leaving the parking lot and driving in different directions.
At no point did anyone in either vehicle exit their respective vehicle, nor was any
illegal activity observed.
After leaving the Applebee’s parking lot, the SUV traveled up I-85 toward
Davidson County. At the Davidson County line, the Detectives stopped the vehicle;
the basis for the stop was Defendant’s speeding five miles over the speed limit.
Defendant was driving the SUV, with a woman in the passenger seat and a child in
the back seat. During the stop, K-9 Sergeant William Basinger arrived with his K-9,
Kantor; Kantor is trained to sniff for the presence of various illegal drugs, including
methamphetamine. Sergeant Basinger conducted a sniff for drugs with the K-9
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around the SUV. Detectives Gordy and Peoples were informed the K-9 “alerted” for
the presence of drugs near the gas lid on the rear driver’s side of the vehicle. Neither
Detective Gordy nor Detective Peoples personally observed Kantor alert. Sergeant
Basinger’s body camera did not capture footage of the sniff.
After being informed the K-9 alerted, Detective Peoples searched Defendant.
Detective Peoples reached into Defendant’s pants pocket and discovered
methamphetamine. At the suppression hearing, Detective Peoples could not recall
whether he first frisked Defendant before reaching into Defendant’s pocket. While
Detective Peoples searched Defendant, Detective Gordy searched the vehicle and
discovered a black handgun between the driver’s seat and the middle console. Upon
discovery of the handgun, since Detective Gordy was not wearing a body camera, he
asked Detective Peoples to continue the search of the vehicle. Detective Peoples then
completed the search of the vehicle, seizing the handgun and a set of scales. No drugs
were found in the vehicle.
On 6 December 2021, Defendant was indicted for Possession of Drug
Paraphernalia, Possession with Intent to Sell or Deliver Methamphetamine, and
Carrying a Concealed Handgun. Prior to trial, Defendant moved to suppress “all of
the evidence in this case” as the product of an unlawful search and seizure. The trial
court denied the Motion, concluding that “based on the positive alert by K-9 Kantor,
the officers had reason to search both the person and the vehicle of the defendant.”
Following the denial of his Motion to Suppress, Defendant entered into a plea
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agreement, reserving his right to appeal the denial of the Motion. In exchange for
Defendant’s plea, the State agreed to a “consolidated . . . judgment for the drug
charges and to leave sentencing for the gun charge in the Court’s discretion.” On 12
July 2023, the trial court, pursuant to the plea agreement, entered a Judgment for
the charge of Carrying a Concealed Handgun and a Conditional Discharge for the
consolidated drug charges. The trial court’s written Order denying the Motion to
Suppress was filed on 23 August 2023. Defendant timely filed written Notice of
Appeal on the same day.
Issue
The dispositive issue on appeal is whether the trial court’s written Findings of
Fact and Conclusions of Law support its denial of Defendant’s Motion to Suppress.
Analysis
“Our review of a trial court’s denial of a motion to suppress is strictly limited
to a determination of whether [the trial court’s] findings are supported by competent
evidence, and in turn, whether the findings support the trial court’s ultimate
conclusion.” State v. Reynolds, 161 N.C. App. 144, 146-47, 587 S.E.2d 456, 458 (2003)
(citation and quotation marks omitted). The trial court’s conclusions of law, however,
are reviewed de novo. See State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357
(1997) (citation omitted). Whether the trial court describes its conclusions as findings
of fact or conclusions of law makes no difference to our review: “[w]e will review
conclusions of law de novo regardless of the label applied by the trial court.” State v.
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Jackson, 220 N.C. App. 1, 8, 727 S.E.2d 322, 329 (2012) (citation and quotation marks
omitted).
A. Findings of Fact
The trial court’s Order denying the Motion to Suppress contains thirty-eight
Findings of Fact. Our review of the Order is frustrated because the trial court failed
to resolve conflicts in the evidence with its Findings, instead reciting the testimony
of the investigating officers. “Although . . . recitations of testimony may properly be
included in an order denying suppression, they cannot substitute for findings of fact
resolving material conflicts.” State v. Lang, 309 N.C. 512, 520, 308 S.E.2d 317, 321
(1983). Here, material conflicts remain in the evidence as to whether the officers
observed Defendant engage in suspicious activity, the basis for the search of
Defendant’s person, and whether the K-9 positively alerted on Defendant’s vehicle for
the presence of drugs. Of the Findings Defendant challenges, Findings 19, 26, 27, 33,
and 36 are most relevant to our discussion. We take each of these Findings in turn.
1. Finding of Fact 19
Finding of Fact 19 is a summary of Detective Gordy’s testimony from the
suppression hearing stating he considered the activity of the SUV to be suspicious:
(19) That Detective Gordy further testified that he saw nothing illegal but did see suspicious activity that he associated with drug activity based on his training and experience such as the activity in the parking lots, the time of day, traveling to the same places as the other vehicle for a short period of time and the vehicles following each other to a separate location, that from Detective Gordy’s training and experience he testified that from this
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activity he was able to form probable cause of drug activity;
Defendant contends Finding of Fact 19 is more properly characterized as a Conclusion
of Law since it refers to a determination of probable cause and alternatively argues
it is unsupported by competent evidence. Defendant argues the activity the Finding
describes—traveling in a parking lot with another vehicle at night—is innocent and
cannot support a probable cause determination.
We cannot impart meaningful appellate review of factual findings that “merely
recite or summarize witness testimony, but do not state what the [trial court] finds
the facts to be.” See Huffman v. Moore Cty., 194 N.C. App. 352, 359, 669 S.E.2d 788,
792-93 (2008). “[Material conflicts in the evidence] must be resolved by explicit
factual findings that show the basis for the trial court’s ruling.” State v. Bartlett, 368
N.C. 309, 312, 776 S.E.2d 672, 674 (2015) (citations omitted). It is unclear whether,
by including this recitation of Detective Gordy’s testimony in Finding 19, the trial
court is concluding Detective Gordy’s observations gave him probable cause, so that
we should review this Conclusion de novo, or is merely finding Detective Gordy
personally believed he had probable cause. Alternatively, Finding 19 might be a
Finding that the alleged suspicious activity was in fact observed by Detective Gordy,
or that the alleged suspicious activity was in fact indicative of drug activity. We
cannot choose between these competing inferences. “[O]nly the trial court, as fact-
finder, can determine which inferences shall be drawn and which shall be rejected.”
State v. Jordan, 385 N.C. 753, 759, 898 S.E.2d 279, 284 (2024) (citation and quotation
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marks omitted).
Our Supreme Court has articulated the problem in the context of orally-made
findings:
“[W]hen announcing an oral ruling, trial courts often will describe the testimony and evidence received at the hearing. The court might say, ‘The officer testified that the door was open.’ Is this a finding that the officer’s testimony is credible and, thus, a finding that the door was indeed open? On a cold appellate record, it can be hard to tell.”
Id. at 757, 898 S.E.2d at 283.
The same issue arises when the written order only “describe[s] the testimony
and evidence received at the hearing.” Id. Both Detectives Gordy and Peoples
testified the observations described in Finding 19 informed their belief Defendant
was engaged in a drug transaction. Detective Peoples testified this same belief
informed his reasons for searching Defendant’s person. Finding of Fact 19 is a
recitation of Detective Gordy’s testimony that he believed the activity to be
suspicious, but fails to resolve whether his observations were accurate, indicative of
drug activity, or actually and properly served as the basis of a probable cause
determination.
2. Findings of Fact 26 and 27
Findings 26 and 27 fail to resolve another material conflict: whether the
officers searched Defendant’s person based on reasonable concerns about officer
safety or in order to find drugs. Finding 26 recites Detective Peoples’ testimony that
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he searched Defendant for weapons, while Finding 27 recites Detective Peoples’
testimony that he couldn’t remember whether he frisked Defendant before reaching
into his pockets and finding methamphetamine:
(26) . . . Detective Peoples indicated that he first searched the defendant due to activity and to ensure that the defendant did not have any weapons on his person;
(27) Detective Peoples testified that he couldn’t recall specifically if he felt something in the pocket before he reached in or not but that the pat down was due to the nature of the stop, the hour of the night, the fact that these are trained crime-reduction unit officers, narcotics officers, FBI task force officers, and that that is the reason for the search. During the search of the defendant, Detective Peoples located methamphetamine in the defendant’s pants pocket . . .
Warrantless searches “are per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and well delineated exceptions.”
Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135, 124 L. Ed. 2d 334,
343-44 (1993) (citations and quotation marks omitted).
One such exception was recognized in Terry v. Ohio, which held that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot[,] the officer may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling his suspicions.
Id. at 372-73, 113 S. Ct. at 2135, 124 L. Ed. 2d at 344 (alteration, citations, and
quotation marks omitted). The standard in Terry applies to traffic stops. Berkemer
v. McCarty, 468 U.S. 420, 439, 104 S. Ct. 3138, 3149, 82 L. Ed. 2d 317, 334 (1984);
State v. Otto, 366 N.C. 134, 137, 726 S.E.2d 824, 827 (2012).
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“[W]hen an officer is justified in believing that the individual whose suspicious
behavior he is investigating at close range is armed and presently dangerous to the
officer or to others, the officer may conduct a patdown search to determine whether
the person is in fact carrying a weapon.” Dickerson, 508 U.S. at 373, 113 S. Ct. at
2136, 124 L. Ed. 2d at 344 (citations and quotation marks omitted). “The purpose of
this limited search is not to discover evidence of crime, but to allow the officer to
pursue his investigation without fear of violence[.]” Adams v. Williams, 407 U.S. 143,
146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 617 (1972). The relevant inquiry is
whether the officer had a reasonable belief that the individual was armed and
dangerous. See id. at 146, 92 S. Ct. at 1923, 32 L. Ed. 2d at 617; Terry v. Ohio, 392
U.S. 1, 24, 88 S. Ct. 1868, 1881, 20 L. Ed. 2d 889, 908 (1968). Our courts follow these
same principles. See, e.g., State v. Harris, 95 N.C. App. 691, 697, 384 S.E.2d 50, 53
(1989) (citation omitted) (“[I]t is well within the law to conduct a frisk of a defendant
for weapons when it is strictly limited to determination of whether that defendant
was armed.”).
Defendant argues the search was conducted not to locate weapons, but because
it was Detective Peoples’ routine practice; Defendant further argues there is no
evidence that Detective Peoples frisked Defendant before reaching into his pockets,
and even if he had, there was no basis to justify a Terry frisk because the officers
could not have justifiably believed Defendant was armed.
Findings 26 and 27 recite testimony that might support a finding that the
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search of Defendant’s person was based on Detective Peoples’ reasonable belief
Defendant was armed and dangerous. Other testimony at the suppression hearing,
however, showed Defendant was searched immediately and only after the K-9
alerted. Thus, a material conflict in the evidence remains as to whether the basis of
the search was a Terry frisk for weapons or a response to the alleged K-9 alert on the
vehicle. Testimony cannot substitute for a finding in this instance. See Lang, 309
N.C. at 520-21, 308 S.E.2d at 321; Bartlett, 368 N.C. at 312, 776 S.E.2d at 674. See
also Jordan, 385 N.C. at 757-58, 898 S.E.2d at 283 (“[W]e cannot infer the necessary
findings under Bartlett because there is a material conflict in the evidence that the
trial court must resolve.”).
3. Findings of Fact 33 and 36
Another conflict in the evidence exists regarding whether the K-9 alerted for
the presence of narcotics. Finding 33 describes Detective Peoples’ testimony that he
was informed the K-9 alerted and Finding 36 recites Sergeant Basinger’s testimony
about how the K-9 sniff took place:
(33) That at the 9-minute-and-14-second mark Detective Peoples could clearly be heard on his bodycam footage saying, “positive”. When asked what this meant, he said that it was a question to the K-9 officer to see why he was being summoned to the vehicle. It was at that point that he was informed that the K-9 had alerted on to the possibility of illegal substances in the defendant’s vehicle;
(36) That Detective Basinger testified Kantor did not receive any command to sniff . . . He said that the K-9 circled the vehicle and first alerted to suspected illegal substances between the front and
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rear door seam on the driver’s side of the vehicle . . . He indicated that he considered it an alert because Kantor had a change of demeanor. They continued the search and K-9 Kantor had a complete alert on the gas lid at the back left side of the defendant’s vehicle . . .
Defendant argues there is no competent evidence showing the K-9 alerted, and as
such there was no probable cause to search Defendant’s vehicle; nor were there
grounds to search Defendant, even if the K-9 had alerted, because probable cause to
search a vehicle does not create probable cause to search its occupants.
Whether the K-9 alerted for drugs on the vehicle is critical to the inquiry of
whether the officers had probable cause to search the vehicle. See State v.
Degraphenreed, 261 N.C. App. 235, 246, 820 S.E.2d 331, 338 (2018) (“A positive alert
for drugs by a specially trained drug dog gives probable cause to search the area or
item where the dog alerts.”) (citation omitted). Testimony and body camera footage
introduced at the suppression hearing showed Detective Peoples bending over and
waving something near the rear tire by the gas lid where the K-9 is subsequently
alleged to have detected drugs. Detective Peoples testified there was “absolutely no[]”
reason for him to have been waving or rubbing anything against the tire, and despite
seeing himself do so on the footage, could not recall why he had bent over or what he
was doing at the time. We note that no illegal substances were found at or near the
source of the K-9’s alleged alert. Furthermore, the body camera footage introduced
at the suppression hearing was absent of any footage of the K-9 performing its trained
alert.
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Ultimately, there is no finding in the Record resolving the conflict surrounding
the alleged K-9 alert. Finding 33 provides Detective Peoples’ testimony that he was
informed of an alert, and Finding 36 provides Sergeant Basinger’s testimony
describing the K-9 sniff and alert. This witness testimony cannot substitute for a
finding by the trial court that the K-9 alerted. See Bartlett, 368 N.C. at 312, 776
S.E.2d at 674; Huffman, 194 N.C. App. at 359, 669 S.E.2d at 793.
B. Conclusions of Law
Defendant also challenges the trial court’s Conclusion of Law 2 as applying the
wrong legal standard and unsupported by the Findings. We review conclusions of
law de novo. See Fernandez, 346 N.C. at 11, 484 S.E.2d at 357. Conclusion of Law 2
concerns the basis for both the search of Defendant’s person and the vehicle:
(2) That based on the positive alert by K-9 Kantor, the officers had reason to search both the person and the vehicle of the defendant.
The Fourth Amendment to the United States Constitution protects the people
from “unreasonable searches and seizures.” U.S. CONST. amend. IV. “Generally,
warrantless searches are not allowed absent probable cause and exigent
circumstances,” State v. Harper, 158 N.C. App. 595, 602, 582 S.E.2d 62, 67, disc.
review denied, 357 N.C. 509, 509, 588 S.E.2d 372, 373 (2003), and a warrant may not
be issued without probable cause. U.S. CONST. amend. IV. Our state constitution
likewise has adopted this same standard. See N.C. CONST. art. I § 20.
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The warrantless search of a vehicle is permissible if based on probable cause.
State v. Guerrero, 292 N.C. App. 337, 341, 897 S.E.2d 534, 537 (2024) (“It is a well-
established rule that a search warrant is not required before a lawful search based
on probable cause of a motor vehicle in a public roadway . . . may take place.”)
(alteration in original) (citation and quotation marks omitted). Thus, the standard
for assessing the legality of the search of Defendant’s vehicle is whether the officers
had probable cause. The trial court, however, concluded only that the officers had
“reason” to conduct the search. We note that, in its Conclusion of Law 1, the trial
court properly concluded the officers had “probable cause” to stop the vehicle for
speeding, but Conclusion of Law 2 does not use the same “probable cause” language;
Conclusion of Law 2 only concludes the officers had “reason” to conduct both searches.
Furthermore, even if the trial court properly concluded the K-9 sniff gave
probable cause to search the vehicle, it could not have given probable cause to search
Defendant’s person.
“Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.”
Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342 (1979). See also State v.
Malunda, 230 N.C. App. 355, 360, 749 S.E.2d 280, 284 (2013) (probable cause to
search vehicle when officers smelled marijuana did not amount to probable cause to
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search passenger in that vehicle) and Degraphenreed, 261 N.C. App. at 246, 820
S.E.2d at 338 (positive K-9 sniff gives probable cause to search only the area or item
where the K-9 alerts).
Remand is appropriate where the trial court has applied the wrong legal
standard. See State v. Williams, 195 N.C. App. 554, 561, 673 S.E.2d 394, 398-99
(2009) (“Where . . . the trial court mistakenly applies an incorrect legal standard in
determining whether a defendant’s constitutional rights have been violated for
purposes of a motion to suppress, the appellate court must remand the matter to the
trial court for a ‘redetermination’ under the proper standard.”). We note also that,
the Findings, as they currently exist in the Order, cannot support the trial court’s
ultimate Conclusion there was “reason” or probable cause to conduct either search
based on the alleged K-9 alert because, as discussed above, there was no finding that
the K-9 alerted.
Thus, where the trial court did not apply the probable cause standard for either
search, the trial court’s denial of the Motion to Suppress was entered upon an
improper legal standard. Therefore, the trial court’s Order is not supported by its
Findings of Fact or Conclusions of Law. Consequently, we vacate the trial court’s
Order denying the Motion to Suppress and the Judgment subsequently entered and
remand this matter to the trial court for new findings and application of the correct
legal standard to the evidence. See State v. McKinney, 361 N.C. 53, 65, 637 S.E.2d
868, 876 (2006) (remanding to “afford the trial court an opportunity to evaluate”
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a motion to suppress “using the appropriate legal standard.”). We express no opinion
on the ultimate merits. See id.
Furthermore, because the Judgment was imposed as part of a plea agreement,
the plea agreement must be set aside in its entirety, and the parties may either agree
to a new plea agreement or the matter should proceed to trial on the original charges
in the indictments. See, e.g., State v. Rico, 218 N.C. App. 109, 122, 720 S.E.2d 801,
809 (Steelman, J., dissenting) (concluding judgment should be vacated, guilty plea
set aside, and the case remanded for disposition of original charges where trial court
erroneously imposed aggravated sentence based solely on the defendant’s guilty plea
and stipulation as to aggravating factor), rev’d per curiam for reasons stated in
dissent, 366 N.C. 327, 327, 734 S.E.2d 571, 571 (2012).
Conclusion
Accordingly, for the foregoing reasons, we vacate the Judgment against
Defendant and set aside the plea agreement in its entirety. We remand to the trial
court for new proceedings on Defendant’s Motion to Suppress, including for findings
of fact resolving disputes in the evidence and conclusions of law and, if necessary, to
proceed to trial. We further note: “if the judge who conducted the hearing is not
available to enter a new order on remand, a new evidentiary hearing on the motion
to suppress is required[.]” State v. Swain, 276 N.C. App. 394, 399, 857 S.E.2d 724,
727 (2021).
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VACATED AND REMANDED.
Judge STROUD concurs. Judge GORE concurs in the result only.
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