State v. Moua

891 S.E.2d 14

STATE of North Carolina v. Wang Meng MOUA, Defendant.

No. COA22-839

Court of Appeals of North Carolina.

Filed July 18, 2023

Attorney General Joshua H. Stein, by Assistant Attorney General Tirrill Moore and Special Deputy Attorney General Kristin J. Uicker, for the State.

BJK Legal, by Benjamin J. Kull, Raleigh, for the Defendant.

RIGGS, Judge.

Defendant Wang Meng Moua appeals the order denying his motion to suppress evidence which was entered prior his guilty plea for trafficking in methamphetamine by transport, trafficking in methamphetamine by possession, and keeping or maintaining a vehicle for keeping or selling methamphetamine. Mr. Moua argues he has an appeal of right under N.C. Gen. Stat § 15A-979(b) (2021), even though he did not notify the court and the prosecutor of his intent to appeal prior to his entry of a guilty plea. But on the chance that this Court concluded he did not have a statutory right of appeal, Mr. Moua also submitted a petition for writ of certiorari to consider the merits of his claim. We granted certiorari review in our discretion under separate order.

After review of the record, we hold that the search was not consensual, and accordingly, we reverse the denial of the motion to suppress and vacate the judgment.

I. FACTS & PROCEDURAL HISTORY

At 12:59 a.m. on 5 December 2019, Sgt. Garrett Tryon and Officer J. Housa, with Charlotte-Mecklenburg County Police Department, initiated a traffic stop of Mr. Moua, for speeding on North Tryon Street near the Interstate 85 connector in Mecklenburg County. Sgt. Tryon stopped Mr. Moua, who was driving with a passenger, on a side street and told Mr. Moua that he had paced him at fifty miles per hour in a thirty-five mile per hour zone on North Tryon Street. Sgt. Tryon asked Mr. Moua for his license and registration, and he also asked the passenger to provide his license. Both Mr. Moua and his passenger cooperated and provided their identification; both Sgt. Tryon and Officer Housa were calm and professional in executing the stop, which was recorded on bodycam.

Sgt. Tryon went back to his vehicle and ran the information through different law enforcement databases while Officer Housa stood by the passenger door of Mr. Moua's car, shining his flashlight into the vehicle. After about two minutes of checking, Sgt. Tryon learned that Mr. Moua was on active probation and had prior charges; however, Mr. Moua did not have any active warrants. Sgt. Tryon then returned to Mr. Moua's car and said, "Sir come out and talk to me real quick." As he was speaking to Mr. Moua, Sgt. Tryon reached through the open window, unlocked and opened the door.

As soon as Mr. Moua walked to the back of the vehicle, Sgt. Tryon handed back Mr. Moua's license and registration. Sgt. Tryon had the following conversation with Mr. Moua:

SGT. TRYON: Come over here. Here is your stuff back, man. Um. Look. You gotta slow down. 35 is 35, right? I get it, North Tryon used to be, like 55, like three years ago. You've been living out here for a while?

MR. MOUA: Yeah.

SGT. TRYON: All right. Um. I see you got some charges in the past, you're on probation.

MR. MOUA: Yeah.

SGT. TRYON: You squared away? You straight now?

MR. MOUA: Yeah.

SGT. TRYON: All right. You been checking in?

MR. MOUA: Oh yeah.

SGT. TRYON: Are you unsupervised or –?

MR. MOUA: Supervised.

SGT. TRYON: Supervised. Out of Mecklenburg County or –?

MR. MOUA: Ah it's Cabarrus.

SGT. TRYON: Cabarrus County. Cool. Hey, man, you have anything on you or in the car –

MR. MOUA: No.

SGT. TRYON: –that I should be worried about?

MR. MOUA: No.

SGT. TRYON: You wouldn't mind if I check, right?

MR. MOUA: Ya, go ahead.

SGT. TRYON: Mind if I pat you down really quick?

MR. MOUA: Ya.

Sgt. Tryon performed a pat down that did not uncover any contraband. After the pat down, Sgt. Tryon began to search the vehicle; meanwhile, Mr. Moua smoked a cigarette on the side of the road. Within fifteen seconds of initiating the search, Sgt. Tryon noticed a bag sticking out from under the driver's seat containing a white powdery substance. After discovering the bag, Sgt. Tryon walked over to Mr. Moua, placed him in handcuffs, and then continued to search the vehicle.

On 16 December 2019, Mr. Moua was indicted on one count each of trafficking methamphetamine (more than 200 but less than 400 grams) by transport, trafficking methamphetamine (more than 200 but less than 400 grams) by possession and keeping or maintaining a vehicle for keeping or selling methamphetamine. On 26 April 2021, the State filed superseding indictments on the two trafficking counts to lower the mass of methamphetamine to more than 28 but less than 200 grams.

Mr. Moua moved to suppress the evidence obtained during the search. The trial court heard this motion on 10 March 2022. During that hearing, Sgt. Tryon testified that he typically asks people to get out of the vehicle either for officer safety or privacy reasons. He testified that in this case, he asked Mr. Moua to step out of the vehicle so that he could ask him about his probation away from the passenger. Additionally, Sgt. Tryon testified that in his experience, owner-operators are more likely to consent to a search of the vehicle when they are separated from their vehicle. During his testimony, Mr. Moua's counsel asked Sgt. Tryon about his reason for questioning Mr. Moua about his probation; Sgt. Tryon testified that it was "a conversation piece." Sgt. Tryon testified that, in his opinion, the purpose of the traffic stop concluded when he returned Mr. Moua's driver's license and registration.

After the motion to suppress hearing, the trial court issued an order denying the motion to suppress. In that order, the court made twenty-one findings of facts, including:

8. Upon re-approaching the [D]efendant, Sgt. Tryon requested the [D]efendant step out of the vehicle to speak with him, which the [D]efendant consented to doing. Sgt. Tryon said it was common practice for him and officers to ask occupants out of their vehicles during traffic stops for safety and privacy purposes.

10. Almost immediately upon the [D]efendant and Sgt. Tryon getting to the back of the [D]efendant's vehicle, Sgt. Tryon returned all of the documents back to the [D]efendant and the two briefly discussed the [D]efendant speeding and Sgt. Tryon gave him a warning for the speeding.

11. After concluding the purpose for the stop , Sgt. Tryon engaged in a consensual conversation with the [D]efendant about his probation and asked for consent to search his car and person.

12. The [D]efendant freely and voluntarily gave consent for Sgt. Tryon to search his car and person.

The trial court also made twelve conclusions of law, including:

4. Almost immediately upon stepping out of the vehicle, Sgt. Tryon handed the [D]efendant his documents back and gave him a verbal warning for speeding.

5. At that point in time, this [c]ourt finds the reason for the traffic stop was concluded. The following conversation and actions after were a consensual encounter between Sgt. Tryon and the [D]efendant. A reasonable person in the [D]efendant[’]s position would have felt free to leave or free to refuse to cooperate at that point and terminate the encounter.

12. In viewing the totality of the circumstances and the evidence before this [c]ourt .... Sgt. Tryon returned the [D]efendant[’]s documents to him almost immediately and the traffic stop concluded once Sgt. Tryon handed the [D]efendant back all of his documents and gave him a verbal warning for speeding. The conversations and actions beyond that point were consensual in nature. Thereafter, the [D]efendant was no longer seized, the [D]efendant[’]s Constitutional rights were not violated within the meaning of the Fourth Amendment, and the [D]efendant[’]s consent to search his vehicle and person was freely and voluntarily [sic].

After the denial of his motion to suppress, Mr. Moua subsequently pleaded guilty as charged to all charges on 2 May 2022. Mr. Moua did not seek nor secure any agreement with the prosecutor to reduce or dismiss the charges. At the plea and sentencing hearing, the State submitted, as a factual basis for the plea, the gallon-sized Ziploc bag which Sgt. Tryon found under the seat containing 194.21 grams of methamphetamine. The State indicated that after Sgt. Tryon completed the search of the car he read Mr. Moua his Miranda rights, and then Mr. Moua confessed that the methamphetamine in the vehicle was his; neither event appears on the video recording of the stop. Mr. Moua did not indicate his intent to appeal the motion to suppress prior to pleading guilty, and neither the colloquy nor the plea transcript asked Mr. Moua if he wished to reserve any rights to appeal or enter a conditional plea. However, Mr. Moua made an oral notice of appeal on the record during this sentencing hearing.

II. ANALYSIS

Mr. Moua argues that he has the right to appeal the denial of the motion to suppress upon entry of his guilty plea according to N.C. Gen. Stat. § 15A-979(b) (2021). Generally, notice of intent to appeal is required to ensure the right to appeal under the statute; however, this Court held in State v. Jonas , that notice of intent to appeal is not required when a defendant does not negotiate a plea agreement and simply pleads guilty as charged. State v. Jonas , 280 N.C. App. 511, 516, 867 S.E.2d 563, 567 (2021), review allowed, writ allowed , ––– N.C. ––––, 876 S.E.2d 272 (2022). The ruling in Jonas is currently stayed; therefore, Mr. Moua also filed a petition for writ of certiorari. In our discretion, we granted his petition for writ of certiorari under separate order.

On appeal, Mr. Moua argues that at the time he gave consent to search his car, he was unlawfully seized, and therefore, his consent was invalid. We agree.

A. Appellate Jurisdiction

In North Carolina, a defendant's right to pursue an appeal from a criminal conviction is a creation of statute. State v....