State v. George

898 S.E.2d 801

STATE of North Carolina

v.Marcus D. GEORGE, Defendant.

No. COA22-958

Court of Appeals of North Carolina.

Filed March 5, 2024

Appeal by defendant from judgment entered 23 April 2021 by Judge Henry L. Stevens in Sampson County Superior Court. Heard in the Court of Appeals 10 May 2023. Sampson County, Nos. 17 CRS 52091, 52092, 52094

Attorney General Joshua H. Stein, by Assistant Attorney General Jessica Macari, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine Jane Allen, for the defendant-appellant.

STADING, Judge.

Marcus D. George ("defendant") appeals from a judgment entered after a jury found him guilty of trafficking heroin by possession, trafficking heroin by transport, possession with intent to sell or deliver heroin, possession with intent to sell or deliver cocaine, and resisting a public officer. At sentencing, defendant admitted his habitual felon status. For the reasons below, we hold no error.

I. Background

On 27 July 2017, Lieutenant Bass ("Lt. Bass") of the Sampson County Sheriff's Office observed a vehicle speeding seventy miles per hour in a fifty-five mile per hour zone. Lt. Bass initiated a traffic stop and approached to find defendant in the driver’s seat with a passenger in his vehicle. Lt. Bass requested defendant for his license and registration. As defendant searched for his registration, Lt. Bass noticed him "moving around a lot inside the vehicle" and "shaking very nervously." According to Lt. Bass, defendant "would never make eye contact" or "look [his] way." While at the vehicle, Lt. Bass saw "what appeared to be marijuana residue" on the passenger side floorboard and could smell "a faint odor of marijuana coming from the vehicle."

Eventually, the passenger found defendant’s registration in the glovebox, a location defendant had previously checked. Lt. Bass returned to his patrol car and called for backup. Deputy Wilkes arrived on the scene while Lt. Bass completed the "registration check." To ensure officer safety, Deputy Wilkes asked defendant to exit the vehicle and conducted a pat-down to check for weapons. During the pat-down, defendant "was moving around" and "kept trying to turn around." Meanwhile, Lt. Bass attempted to produce a printed citation, but his computer and printer lost power. Consequently, defendant received a verbal warning for speeding. Defendant responded to the verbal warning by disputing Lt. Bass’s description of the events leading up to the traffic stop.

Upon returning defendant’s driver’s license and registration, Lt. Bass asked defendant if there were "any illegal drugs inside the vehicle," to which defendant responded, "no." Lt. Bass asked for consent to search the vehicle, but defendant refused. "At that time," Lt. Bass informed defendant that he "would be conducting a free-air sniff with [his canine] around the vehicle" and instructed the passenger to exit the vehicle before performing the search. When the passenger door was opened, Lt. Bass verified the substance on the floorboard was "marijuana stems, residue." Then, the canine alerted to the presence of narcotics at the driver’s door. A search of the vehicle led to the discovery of, among other things, marijuana and "a small plastic baggy containing a white powder." During the search, defendant "seemed … agitated … and … was pacing back and forth[.]" Thereafter, Lt. Bass attempted to arrest defendant, but he pulled away, fought, and reached for his waistband. Then, defendant put something in his mouth, which turned out to be a baggie containing an "off-white rock substance." Once defendant was handcuffed, another baggie, which contained a brown powder, was located on the ground nearby.

Defendant was indicted for numerous drug offenses, among them trafficking heroin, possession with intent to sell or deliver heroin, possession with intent to sell or deliver cocaine, maintaining a vehicle for the purpose of keeping or selling cocaine and heroin, and possession of testosterone and marijuana. He also faced charges of destroying evidence and resisting a public officer. Additionally, defendant was indicted for the status offense of habitual felon. On 31 August 2018, defendant filed a pretrial motion to suppress evidence obtained from the traffic stop. His motion alleged that the search was "without a search warrant, probable cause, consent, exigent circumstances or any other exception to the warrant requirement." The trial court conducted a suppression hearing and accepted evidence in the form of testimony from Lt. Bass, a video tendered by the State, and two photographs tendered by defendant. At the conclusion of the hearing, the trial court denied defendant’s motion.

Defendant’s trial began on 19 April 2021 in Sampson County Superior Court. The State chose not to prosecute defendant for the charges of possession of testosterone, possession of marijuana, possession of marijuana paraphernalia, and destroying evidence. At the close of all evidence, the trial court dismissed the charge of maintaining a vehicle to keep or sell a controlled substance. Following deliberations, the jury found defendant guilty of trafficking heroin, possession with intent to sell or deliver heroin, possession with intent to sell or deliver cocaine, and resisting a public officer. Defendant admitted to his habitual felon status and was sentenced by the trial court. Thereafter, defendant entered his notice of appeal in open court.

II. Jurisdiction

This Court has jurisdiction over this appeal pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a) (2023).

III. Analysis

Defendant presents two issues on appeal: (1) whether the trial court made findings of fact to support its conclusion of law that the stop was lawfully extended, and (2) whether the trial court erred in denying defendant’s motion to suppress. Below, we address each of defendant’s arguments.

A. Standard of Review

[1–4] "A trial court’s ruling on a motion to suppress is afforded great deference upon appellate review as it has the duty to hear testimony and weigh the evidence." State v. Cobb, 381 N.C. 161, 164, 872 S.E.2d 21, 25 (2022) (citations omitted). Our review of the trial court’s order is "strictly limited to determining whether the trial judge’s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge’s ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Left unchallenged on appeal, findings of fact are "deemed to be supported by competent evidence and are binding on appeal." State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). Conclusions of law are reviewed de novo. See Cobb, 381 N.C. at 164, 872 S.E.2d at 25; see also State v. Faulk, 256 N.C. App. 255, 262, 807 S.E.2d 623, 628–29 (2017).

B. The Trial Court’s Order

Defendant argues that the trial court failed to make sufficient findings of fact to support its conclusion of law that the traffic stop was not unconstitutionally prolonged. He erroneously contends that only four findings of fact contained in the trial court’s order address the contested conclusion of law:

[D]efendant stood at the window of [Lt.] Bass’s patrol car. [Lt.] Bass told [ ] defendant he would issue a speeding citation and defendant said he was going down a hill and [Lt.] Bass told him he was not.

The power failed on [Lt.] Bass’s computer and he returned defendant’s license and registration.

[Lt.] Bass requested consent to search and defendant said no.

[Lt.] Bass utilized his [canine] to conduct a free air sniff of defendant’s vehicle and the [canine] gave a positive alert for the odor of narcotics to the seam of the driver’s door near the handle.

Furthermore, defendant maintains that these findings are incomplete and do not support the challenged conclusion of law.

Defendant does not clearly contest the findings of fact but claims they are incomplete. In an abundance of caution, we first carefully review the record to evaluate those findings of fact. During the suppression hearing, Lt. Bass testified that after returning to his patrol car, he planned to issue defendant a citation for speeding, but the power failed for his computer and printer. Hence, Lt. Bass gave defendant a verbal warning instead, and defendant took this opportunity to explain that he was traveling downhill. In disagreement, Lt. Bass retorted that defendant was not going downhill when clocked on the radar. As he returned the driver’s license and registration, Lt. Bass asked about the presence of illegal drugs and requested to search the vehicle. Defendant denied the presence of illegal drugs and declined the request' to search his vehicle. Then the canine, already present on the scene with Lt. Bass, performed a "free-air sniff" around defendant’s vehicle. The canine "alerted to the odor of narcotics" at the driver’s door. To the extent defendant challenges these findings of fact, we hold that they are sufficiently supported by competent evidence.

[5] Defendant contends that the foregoing findings of fact fail to support the challenged conclusion of law for the reasons that (1) they imply that the stop was not over because Lt. Bass was still taking action related to the purpose of the stop, and (2) they omit the bulk of the events which occurred when the stop was unconstitutionally extended. Therefore, defendant claims that this matter must be remanded for the trial court to clarify its findings of fact and conclusion of law regarding the extension of the traffic stop. As a preliminary matter, we note that since the challenged findings of fact are adequately supported by competent evidence, all of the findings contained in the trial court’s order are conclusively binding on appeal. See State v. Biber, 365 N.C. at 168, 712 S.E.2d at 878; see also State v. Byrd, 287 N.C. App. 276, 279, 882 S.E.2d 438, 440 (2022) (holding that unchallenged findings of...