State v. Mello

684 S.E.2d 483

STATE of North Carolina v. Gary Frances MELLO.

No. COA08-1052.

Court of Appeals of North Carolina.

November 3, 2009.

Appeal by defendant from order entered 26 September 2007 by Judge Steve A. Balog and judgment entered 10 December 2007 by Judge V. Bradford Long in Forsyth County Superior Court. Heard in the Court of Appeals 7 April 2009.

Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.

Glover & Peterson, P.A., by James R. Glover, Chapel Hill, for Defendant.

ERVIN, Judge.

On appeal, Gary Frances Mello (Defendant) challenges the order entered by Judge Steve A. Balog (trial court) on 26 September 2007 denying his motion to suppress evidence seized during a traffic stop. For reasons set forth below, we find no error.

Factual Background

By 26 August 2006, Officer J.R. Pritchard had been employed by the Winston-Salem Police Department for about two and a half years. After completing Basic Law Enforcement Training, Officer Pritchard had received training in making drug arrests that included participating in numerous investigations with training officers. Officer Pritchard had made many arrests for drug violations and had conducted drug surveillance activities.

At approximately 10:30 a.m. on 26 August 2006, Officer Pritchard was patrolling the area of Chandler and Amanda Place when he observed a vehicle driven by Defendant stop about fifteen to twenty yards away. At that time, Officer Pritchard watched "two other individuals approach the vehicle putting their hands into the vehicle;" however, he did not see any exchange or transfer of money. Officer Pritchard had not previously seen Defendant, but he recognized the two men standing outside the vehicle. He did not, however, know their names or whether he had previously arrested them. Officer Pritchard characterized the area of Chandler and Amanda Place as "a very well-known drug location" where he had previously made drug-related arrests.

Based on his observation of the interaction between Defendant and the two individuals who approached his vehicle, Officer Pritchard suspected that he had witnessed a "drug transaction," something he had seen on numerous prior occasions. After seeing the episode at Defendant's automobile, Officer Pritchard drove a short distance before turning around. At that point, the two individuals fled the area, with one of them quickly entering a house. In addition, Defendant started driving away from the area in the opposite direction from that in which Officer Pritchard was traveling. According to Officer Pritchard, Defendant did not commit any traffic offense as he attempted to drive away. Officer Pritchard turned around again and stopped Defendant's vehicle. Defendant pulled over about a quarter of a mile after Officer Pritchard activated his blue light.

After he stopped Defendant's vehicle, Officer Pritchard approached the automobile and ascertained that Defendant was in the driver's seat and that there was a passenger named Robin Laughlin in the passenger seat. As he began to converse with Defendant, Officer Pritchard noticed that Defendant was clutching a white, rocklike substance. Defendant threw the substance to the floor. Subsequent testing revealed the substance to be .2 grams of cocaine base. In addition, Officer Pritchard recovered what he believed to be a crack pipe from Defendant's vehicle.

Procedural History

On 26 August 2006, a Magistrate's Order was issued charging Defendant with felonious possession of cocaine and possession of drug paraphernalia. On 26 February 2007, the Forsyth County grand jury returned a bill of indictment charging Defendant with felonious possession of cocaine and possession of drug paraphernalia.

On 16 April 2007, Defendant filed a motion to suppress the evidence obtained from his traffic stop on 26 August 2006. A hearing on Defendant's suppression motion was held on 31 August 2007. On 26 September 2007, the trial court entered an order denying Defendant's suppression motion.

On 10 December 2007, Defendant entered a plea of guilty to felonious possession of cocaine and possession of drug paraphernalia before Judge Long. Before entering his guilty plea, Defendant reserved the right to appeal the denial of his suppression motion to this Court. Based upon his guilty plea, Judge Long determined that Defendant was a Level III offender given that he had accumulated 5 prior record level points, that Defendant should be sentenced in the presumptive range, and that the two offenses for which Defendant had pled guilty should be consolidated for judgment. After Defendant declined a probationary sentence, Judge Long ordered that Defendant be imprisoned for a minimum term of 5 months and a maximum term of 6 months imprisonment in the custody of the North Carolina Department of Correction. Defendant gave notice of appeal to this Court from the judgment entered by Judge Long.

Analysis

In his only challenge to his convictions and sentence, Defendant asserts that Officer Pritchard lacked the reasonable suspicion of criminal activity needed to conduct a valid investigatory stop of his vehicle on 26 August 2006 so that the trial court erred in denying his motion to suppress the evidence seized as a result of that stop. After carefully examining the trial court's order denying Defendant's motion to suppress in light of the evidentiary record and the applicable law, we disagree.

"[T] he scope of appellate review of [a denial of a motion to suppress] 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). A trial court's factual findings are binding on appeal "if there is evidence to support them, even though the evidence might sustain findings to the contrary." Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001) (citations omitted). We review the trial court's conclusions of law de novo. State v. Edwards, 185 N.C.App. 701, 702, 649 S.E.2d 646, 648, disc. review denied, 362 N.C. 89, 656 S.E.2d 281 (2007). Based on this standard of review, we turn our attention to the findings of fact and conclusions of law contained in the trial court's order denying Defendant's motion to suppress.

In denying Defendant's suppression motion, the trial court made the following findings of fact:

1. Officer J[.] R[.] Pritchard has been an officer in the Winston-Salem Police Department for 3.5 years.

2. Officer Pritchard has had training in drug arrests and surveillance of drug activity.

3. Officer Pritchard has made numerous drug arrests.

4. Officer Pritchard has, in his duties, regularly patrolled the area of Chandler and Amanda Place.

5. Officer Pritchard has made drug arrests at Chandler and Amanda Place and has assisted other officers in making drug arrests at Chandler and Amanda Place, as well.

6. On August 26, 2006, Officer Pritchard was on duty and routine patrol in the area of Chandler and Amanda Place.

7. From training and experience, Officer Pritchard knew the area of Chandler and Amanda Place to be a well known drug location with high drug activity.

8. On August 26, 2006[,] at 10:30 a[.]m[.], Officer Pritchard drove by a motor vehicle operated by the Defendant. Officer Pritchard passed within 15-20 yards of the Defendant, traveling 10-15 MPH.

9. Officer Pritchard observed Defendant's vehicle stationary on Amanda Place, and saw two individuals on foot approach the driver's side of the Defendant's vehicle where the Defendant was located.

10. The two individuals inserted their hands into the Defendant's vehicle. Officer Pritchard did not see any object or money in their hands, nor did he observe any direct exchange between the individuals and the Defendant or any other persons in the car.

11. After brief contact, these individuals left the Defendant's car.

12. Officer Pritchard had not seen the Defendant before. He had seen the two pedestrians before. Their faces were familiar, but he did not know their names.

13. Officer Pritchard suspected it was a drug transaction in which the Defendant had been involved and had observed numerous similar drug transactions in the past.

14. Officer Pritchard turned his car around and saw the two individuals on foot flee the area, one going into a nearby house.

15. As Officer Pritchard came back down the street, he observed the Defendant moving in the opposite direction. Officer Pritchard initiated a traffic stop of the Defendant.

16. Officer Pritchard did not suspect that Defendant had committed any traffic violations.

17. After stopping the Defendant and making contact, Officer Pritchard seized the objects that are the subject of the Defendant's motion to suppress.

Based on these findings of fact, the trial court concluded as a matter of law that, "[u]nder the totality of the circumstances, Officer Pritchard had reasonable suspicion based on articulable facts that to an officer of his experience and training would lead him to believe that the Defendant was involved in a drug transaction and was therefore justified in making an investigatory stop of the Defendant's vehicle." In light of these findings of fact and conclusions of law, the trial court denied Defendant's motion to suppress.

Sufficiency of the Evidence to Support the Findings of Fact

First, Defendant challenges the sufficiency of the evidentiary support for Findings of Fact Nos. 13 and 14, which provide that:

13. Officer Pritchard suspected it was a drug transaction in which the Defendant had been involved and had observed numerous similar drug transactions in the past.

14. Officer Pritchard turned his car around and saw the two individuals on foot flee the area, one going into a nearby house.

As a result, the first issue that we must address is the extent, if any, to which...