State v. Furtch

890 S.E.2d 173

STATE of North Carolina v. Damian Lewis FURTCH

No. COA22-643

Court of Appeals of North Carolina.

Filed June 20, 2023

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M. Gomez, for Defendant-Appellant.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Alexander G. Walton, for the State-Appellee.

COLLINS, Judge.

Defendant Damian Lewis Furtch appeals from judgment entered upon his guilty plea to two counts of trafficking in methamphetamine; possession with intent to manufacture, sell and/or deliver a Schedule II controlled substance; and maintaining a vehicle used for keeping and selling a controlled substance. Defendant argues that the trial court erred by denying his motion to suppress because the traffic stop was unconstitutionally extended and the narcotics investigation exceeded the scope of the traffic stop. We grant Defendant's petition for writ of certiorari and affirm the trial court's denial of the motion to suppress.

I. Background

Detective Jacob Staggs and Detective Josh Hopper with the Henderson County Sheriff's Office were performing drug interdiction on 18 February 2019 as part of the Crimes Suppression Unit. The Crimes Suppression Unit is generally responsible for patrolling high crime areas. Staggs and Hopper's vehicle was positioned facing northbound on U.S. 25 South, "the road that goes from Henderson County into Greenville County toward Travelers Rest."

That night, Staggs had received a "whisper tip" from the Narcotics Unit to be on the lookout for a silver minivan. Shortly before midnight, Staggs spotted a silver minivan following a white pickup truck too closely and got behind the minivan to run its tag through dispatch. While observing the minivan and trying to find a safe place to conduct a traffic stop, the minivan "failed to maintain lane control, kept weaving in its lane, [and] hitting the line[.]"

Staggs initiated the traffic stop and approached the vehicle from the passenger side. Staggs explained to Defendant that he was "kind of weaving" and "kind of ... following too closely[,]" and asked him for his driver's license. Defendant told Staggs that he was heading to Hendersonville to visit family. When Staggs asked Defendant where his family lived, Defendant told him Black Mountain, "which [was] kind of odd" to Staggs because Black Mountain is not in Hendersonville. While Staggs was speaking with Defendant, K-9 Deputy Cory Smith with the Henderson County Sheriff's Office arrived on the scene.

After retrieving Defendant's license, Staggs went back to his patrol vehicle, ran Defendant's license through dispatch, and made sure he had no outstanding warrants. Hopper remained standing at the rear of Defendant's vehicle. Staggs confirmed that Defendant had a valid license and no outstanding warrants before writing him a warning citation for following too closely and failing to maintain lane control.

After printing the citation and "highlight[ing] certain things that are important," Staggs exited his patrol vehicle and spoke briefly with Smith. Smith asked Staggs to have Defendant step out of the car for safety while the K-9 conducted the free air sniff.

Staggs then approached Defendant and asked him to exit the vehicle so he could "explain the warning citation[.]" Staggs frisked Defendant for weapons before explaining the warning citation. As Staggs was explaining the citation to Defendant, Smith notified Staggs that the K-9 had alerted on Defendant's vehicle. Staggs finished explaining the citation to Defendant and then explained that they had probable cause to search his vehicle because the K-9 had alerted to narcotics. During the search, the officers discovered an envelope containing 474 grams of methamphetamine.

Defendant was charged with two counts of trafficking in methamphetamine; possession with intent to manufacture, sell and/or deliver a Schedule II controlled substance; and maintaining a vehicle used for keeping and selling a controlled substance. Defendant filed a motion to suppress, which was denied after a hearing on 15 November 2021 by written order entered 24 November 2021. Defendant subsequently pled guilty to the charges and reserved the right to appeal from the denial of his motion to suppress. The trial court sentenced Defendant to 177 to 225 months’ imprisonment.

II. Discussion

A. Petition for Writ of Certiorari

We first address this Court's jurisdiction to hear Defendant's appeal. "An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty." N.C. Gen. Stat. § 15A-979(b) (2021). To properly appeal the denial of a motion to suppress after a guilty plea, a defendant must: (1) prior to finalization of the guilty plea, provide the trial court and the prosecutor with notice of his intent to appeal the suppression order, and (2) timely and properly appeal from the final judgment. State v. Jackson , 249 N.C. App. 642, 645, 791 S.E.2d 505, 508 (2016).

Here, Defendant timely gave notice that he intended to appeal the denial of his motion to suppress, and the reservation of this right was noted in the transcript. Furthermore, Defendant, through trial counsel, announced in open court that he "would be giving notice of appeal ... as to the motion to suppress and the [c]ourt's ruling on that motion." However, Defendant failed to appeal, either in open court or in writing, from the trial court's judgment entered upon his guilty plea, as is required by N.C. Gen. Stat. § 15A-979(b). Accordingly, Defendant lost his right to appeal the trial court's order denying his motion to suppress.

Recognizing this failure, Defendant has filed a petition for writ of certiorari. North Carolina Rule of Appellate Procedure 21(a) provides, inter alia, that "[a] writ of certiorari may be issued in appropriate circumstances by either appellate court 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). "Whether to allow a petition and issue the writ of certiorari is not a matter of right and rests within the discretion of this Court." State v. Biddix , 244 N.C. App. 482, 486, 780 S.E.2d 863, 866 (2015) (citation omitted). Here, it is apparent that the trial court and the prosecutor were aware of Defendant's intent to appeal the denial of the motion to suppress prior to the entry of Defendant's guilty plea, and Defendant lost his appeal through no fault of his own. See State v. Cottrell , 234 N.C. App. 736, 740, 760 S.E.2d 274, 277 (2014) (granting petition for writ of certiorari where "it is apparent that the State was aware of defendant's intent to appeal the denial of the motion to suppress prior to the entry of defendant's guilty pleas and ... defendant has lost his appeal through no fault of his own"). Accordingly, we grant Defendant's petition for writ of certiorari and address Defendant's appeal on the merits.

B. Motion to Suppress

"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). "When supported by competent evidence, the trial court's factual findings are conclusive on appeal, even where the evidence might sustain findings to the contrary." State v. Hall , 268 N.C. App. 425, 428, 836 S.E.2d 670, 673 (2019) (citation omitted). "Unchallenged findings of fact are binding on appeal." State v. Fizovic , 240 N.C. App. 448, 451, 770 S.E.2d 717, 720 (2015) (citation omitted). "We review the trial court's conclusions of law on a motion to suppress de novo." State v. Ladd , 246 N.C. App. 295, 298, 782 S.E.2d 397, 400 (2016) (italics and 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." State v. Williams , 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quotation marks, italics, and citations omitted).

1. Supporting Affidavit

As an initial matter, Defendant argues that "[i]f, in this case, defense counsel made a minor procedural error, with respect to the format of his suppression motion–one that was not objected to by the State or noted by the trial court–[Defendant] should still have his claims considered by this Court." (quotation marks and citation omitted).

A motion to suppress "must be accompanied by an affidavit containing facts supporting the motion" and "may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated." N.C. Gen. Stat. § 15A-977(a) (2021). The trial court may summarily deny a motion to suppress if the motion does not allege a legal basis for the motion, or the affidavit does not support the ground alleged as a matter of law. N.C. Gen. Stat. § 15A-977(c) (2021). While the trial court has the authority to summarily deny a motion to suppress that fails to comply with the required procedural formalities, the trial court also has the discretion to refrain from summarily denying such a motion that lacks an adequate supporting affidavit if it chooses to do so. State v. O'Connor , 222 N.C. App. 235, 239-40, 730 S.E.2d 248, 251 (2012).

Here, the affidavit accompanying Defendant's motion to suppress states:

That upon information and belief and after discussion with the above captioned defendant, review of discovery provided by the State including officer reports and documents produced in connection with this case, review of video evidence provided in discovery, the undersigned attorney has reason to believe that all alleged in the attached Motion to Suppress is accurate and alleged in good faith.

Although the accompanying affidavit did not include facts supporting the...