State v. France

865 S.E.2d 707

STATE of North Carolina

v.William Anthony FRANCE, Defendant.

No. COA20-487

Court of Appeals of North Carolina.

Filed September 21, 2021

Attorney General Joshua H. Stein, by Assistant Attorney General Adrian W. Dellinger, for the State.

Ellis & Winters LLP, Raleigh, by Michelle A. Liguori, for Defendant-Appellant.

GRIFFIN, Judge.

¶ 1 Defendant William Anthony France appeals from judgments entered upon his pleas of guilty to various drug-related offenses, driving while license revoked, and attaining the status of a habitual felon. Defendant argues that the trial court erred by (1) denying his motion to suppress evidence; and (2) entering a civil judgment ordering Defendant to pay attorney's fees without providing Defendant notice and an opportunity to be heard. After careful review, we conclude that the trial court did not err in denying Defendant's motion to suppress evidence. We vacate the civil judgment as to attorney's fees and remand for further proceedings.

I. Factual and Procedural Background

¶ 2 On the night of 15 February 2017, Detective L.A. Veal and Officer LaValley of the Winston-Salem Police Department were patrolling the streets of Winston-Salem in an unmarked vehicle as part of the "street crimes unit" when they noticed a vehicle with "a white light emitting from the taillight[.]" Detective Veal turned on her vehicle's emergency lights and initiated a traffic stop because of the broken taillight.

¶ 3 After stopping the vehicle, Detective Veal and Officer LaValley approached the vehicle. Defendant was in the driver's seat of the vehicle. His brother, Harvey France, was in the passenger's seat. Defendant's cousin, Antoine Bishop, was in the back seat. Officer LaValley then informed Defendant and the passengers of the purpose of the traffic stop and requested identification from the occupants, while Detective Veal called in the vehicle's license plate number and peered into the front and back seats of the vehicle with a flashlight. Defendant informed Officer LaValley that he did not have his driver's license. After Officer LaValley collected Harvey's identification, Harvey stated, "I can walk home.... I'm just saying I can walk." Officer LaValley then returned to the patrol car with the occupants’ identification to conduct warrant checks. Detective Veal briefly discussed the white taillight with Defendant before joining Officer LaValley in the patrol car.

¶ 4 Detective Veal returned to the patrol car and requested that a canine unit respond to her location. Immediately thereafter, Officers Ferguson and Wagoner arrived at the scene. Detective Veal briefly greeted the officers before returning to the patrol car with Officer LaValley. Officers Ferguson and Wagoner then stood by the stopped vehicle to watch over the occupants.

¶ 5 Shortly after Detective Veal returned to the patrol car, Officer LaValley discovered that the backseat passenger, Mr. Bishop, had active warrants for his arrest. Officer LaValley exited the patrol car and, with assistance from Officer Wagoner, asked Mr. Bishop to step out of the vehicle. Mr. Bishop complied and informed Officer LaValley that he was carrying a gun. Officer LaValley then removed the gun from Mr. Bishop's possession and placed it on the trunk of the vehicle while Officer Ferguson watched Mr. Bishop from the opposite side of the car with his weapon drawn.

¶ 6 Meanwhile, Detective Veal approached the driver's side of the vehicle and asked Defendant and Harvey to place their hands on the dashboard while Officers LaValley, Wagoner, and Ferguson dealt with Mr. Bishop. After Officer LaValley placed Mr. Bishop's gun on the trunk, Officer Ferguson informed Detective Veal that he was going to step away to "render [Mr. Bishop's weapon] safe." While Officer Ferguson was securing Mr. Bishop's weapon and Officers LaValley and Wagoner were placing Defendant under arrest, Detective Veal stood watch over Defendant and Harvey.

¶ 7 Officer Ferguson unloaded Mr. Bishop's weapon and stored it in the trunk of the patrol car. He then returned to the vehicle and told Detective Veal that he would watch Defendant and Harvey so that Detective Veal could go and "do what [she needed] to do." Detective Veal immediately returned to her patrol car, pulled out her laptop, and continued to conduct warrant checks on Defendant and/or Harvey. After conducting the warrant checks, Detective Veal began "the process of issuing a citation" to Defendant for the broken taillight and "driving with a license revoked[.]"

¶ 8 While Detective Veal was drafting the citation, the canine unit that she requested earlier responded to the scene, at which point the other officers requested that Defendant and Harvey step out of the vehicle. Defendant and Harvey complied with the officers’ requests. While the other officers dealt with Defendant and Harvey, Detective Veal walked over to greet the officer with the canine and informed the officer that she had previously encountered the vehicle that evening and witnessed "a hand-to-hand transaction." The officer with the canine then walked the canine around the vehicle, and the canine "indicated a positive alert." The officers then searched the vehicle and found "multiple burnt marijuana cigarettes were located in a portable ashtray in the center console" along with "an open container of beer[.]" Officer Ferguson also searched Defendant's person and "located a digital scale in [Defendant's] pants pocket."

¶ 9 Detective Veal arrested Defendant for possession of drug paraphernalia. Detective Veal and Officer Ferguson both reported smelling "unburnt marijuana" emanating from Defendant's person. Officers Ferguson and Wagoner later conducted a strip search of Defendant at the police station and "located an individually wrapped bag of unburnt marijuana and an individually wrapped bag of a white rock-like substance," which later "tested positive for cocaine."

¶ 10 A Forsyth County grand jury issued true bills of indictment charging Defendant with several drug-related offenses, driving while license revoked, and attaining the status of a habitual felon. Defendant then filed a motion to suppress evidence obtained during the traffic stop. A hearing was held on Defendant's motion to suppress, during which Defendant argued, inter alia , that the length of the traffic stop was "outside the reasonable amount of time ... allowed for a traffic stop" under the Fourth Amendment of the U.S. Constitution as interpreted in Rodriguez v. United States , 575 U.S. 348, 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015).

¶ 11 The trial court entered a written order denying Defendant's motion to suppress and concluded the following as a matter of law:

The officers in this case diligently pursued their investigation into the original [traffic] violation for which [ ] Defendant's vehicle was stopped and the related safety concerns. The seizure of [ ] Defendant in this case was reasonable in every way and in compliance with the law in Rodriguez and other cases.... To the extent, if any, that the seizure of [ ] Defendant went beyond the scope of the investigation that resulted from the original traffic violation, that seizure was supported by reasonable suspicion or safety concerns independent of the traffic violation, i.e., dealing with the safety concerns which arose when Officer LaValley, not lead traffic violation investigator Det. Veal, took the back seat passenger of the [vehicle] into custody for outstanding warrants and dealing with safety concerns that arose when a loaded handgun was located by Officer LaValley on that individual. Both of these situations required Det. Veal to deviate, if only briefly, from her mission of conducting the traffic stop as it related to [ ] Defendant's traffic and license violations.

The trial court further concluded that the body camera footage "introduced and published during th[e] hearing corroborate[d] the fact that Det. Veal diligently pursued her investigation into the original traffic violation for which the vehicle was stopped and subsequent discovery of [ ] Defendant's revoked license."

¶ 12 Pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), Defendant pled guilty to possession of a controlled substance on jail premises, possession with intent to sell or deliver cocaine, two counts of possession of cocaine, possession of drug paraphernalia, possession of less than one-half ounce of marijuana, and attaining the status of a habitual felon. The trial court entered two judgments upon Defendant's convictions and sentenced him to 26 to 44 months’ imprisonment for possession of cocaine and possession of drug paraphernalia and 67 to 93 months’ imprisonment for the other offenses. The court also entered a civil judgment ordering Defendant to pay attorney's fees.

¶ 13 Defendant expressly reserved his right to appeal the trial court's order denying his motion to suppress and provided oral notice of appeal in open court. Defendant did not provide notice of appeal from the civil judgment ordering him to pay attorney's fees but has filed a petition for writ of certiorari seeking discretionary review of the judgment.

II. Appellate Jurisdiction

¶ 14 We must first address our jurisdiction to hear Defendant's appeal on the issue of attorney's fees. Defendant concedes that he did not timely file notice of appeal from the civil judgment ordering him to pay attorney's fees. In acknowledgment of this error, Defendant filed a petition for certiorari with this Court seeking discretionary review of his appeal.

¶ 15 N.C. R. App. P. 21(a) provides that this Court may issue a writ of certiorari "to permit review of the judgments and orders of trial tribunals when the right to prosecute an appeal has been lost by failure to take timely action...." N.C. R. App. P. 21(a)(1). "Certiorari is a discretionary writ, to be issued only for good and sufficient cause shown." State v. Grundler , 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959) (citation omitted). This Court has...