State v. Valentine

1

STATE OF NORTH CAROLINA v. ALEXANDER O'SHAE VALENTINE, Defendant.

No. COA23-520

Court of Appeals of North Carolina

September 3, 2024

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 14 May 2024.

Appeal by defendant from judgment entered 14 November 2022 by Judge William Anderson Long, Jr. in Forsyth County Superior Court. No. 19 CRS 51876-79

Attorney General Joshua H. Stein, by Assistant Attorney General Grace R. Linthicum, for the State.

John W. Moss for defendant-appellant.

THOMPSON, Judge.

Defendant Alexander Valentine entered an Alford plea on the following charges: (1) trafficking opium or heroin by possession, (2) trafficking opium or heroin by transportation, (3) possession with intent to sell or distribute (PWISD) heroin, (4) PWISD marijuana, (5) possession of marijuana paraphernalia, (6) possession of drug paraphernalia, (7) carrying a concealed gun, and (8) possession of a firearm by a felon.

On appeal, defendant contends that his Fourth Amendment and Fourteenth Amendment rights were violated when a Kernersville Police Officer conducted a warrantless search of defendant's person. We disagree. Defendant also raised an ineffective assistance of counsel claim on appeal. However we decline to review such a claim as it is not properly before us. For the reasons discussed below, we affirm the trial court's decision denying defendant's motion to suppress.

I. Factual Background and Procedural History

On 13 April 2021, defendant filed a motion to suppress, which came on for hearing on 16 November 2021 before Judge William A. Long. Based on the evidence presented during this hearing, the case facts are as follows. On 23 February 2019 at approximately 3 a.m., Captain Eric Pittman (Pittman) of the Kernersville Police Department (KPD) merged onto Highway 421, headed southbound toward Kernersville, and observed a silver vehicle traveling in the left-hand lane-in the same direction as Pittman-at a "normal rate of speed[.]" Pittman observed the silver vehicle pass him, reduce its speed by "an obvious amount," and move into the right-hand lane behind a tractor-trailer truck. Pittman testified that he observed the silver vehicle's speed to be between thirty and forty miles per hour (mph) (in a sixty-mph zone) and that the car was following very closely behind the tractor-trailer truck. Because of the significant reduction in speed and following the truck too closely, Pittman initiated a traffic stop of the silver car. Once the vehicles stopped on the right-hand side of the highway, Pittman exited his patrol car and approached the passenger side of the silver vehicle. Pittman identified himself as a law enforcement officer with KPD to the driver and defendant, who was the passenger, and requested the registration and license of the driver. While at the passenger side of the vehicle, Pittman detected the odor of marijuana. Pittman testified that due to the odor, he asked defendant for his identification, which defendant provided.

Officers Kline (Kline) and Houle (Houle) of the KPD subsequently arrived on the scene, and after Pittman informed Kline of the odor of marijuana emanating from the vehicle, defendant and the driver were asked to step out of the car. At defendant's request, Pittman informed defendant that he was being detained "because the odor of marijuana [was] present in the vehicle." During this process, Pittman detected the odor of marijuana emanating from defendant's person and asked if defendant had smoked marijuana that day; defendant indicated that he had. Pittman informed defendant that Houle would conduct a "probable cause search" of defendant's person. Pittman, Houle, and defendant moved to the side of Pittman's patrol car.^[1] Pittman had Houle take control of defendant so that Pittman could run a warrant check on the driver and defendant.

Before Houle began searching defendant's person, he removed a cross-body bag from defendant's upper body, which contained a firearm. Simultaneous to the discovery of the firearm, Pittman informed Houle that both the driver and defendant had outstanding warrants for their arrest, and that defendant was a convicted felon. During the search of defendant's person, Houle observed a bulge in defendant's pants near defendant's groin area. Houle pulled defendant's waistband out far enough to reach into defendant's underwear and retrieved two bags of contraband; one bag was identified as marijuana, and the other bag was suspected to be heroin. Following Houle's search of defendant, he requested that Pittman conduct a secondary search to ensure all contraband was retrieved.

On 2 March 2020, a Forsyth County Grand Jury indicted defendant on the following charges: (1) trafficking opium or heroin by possession, (2) trafficking opium or heroin by transportation, (3) possession with intent to sell or distribute (PWISD) heroin, (4) PWISD marijuana, (5) possession of marijuana paraphernalia, (6) possession of drug paraphernalia, (7) carrying a concealed gun, and (8) possession of a firearm by a felon.

After hearing and reviewing the evidence presented at the motion to suppress hearing, the trial court denied defendant's motion to suppress, and on 14 November 2022 defendant's case came on for trial. At the trial, defendant entered into an Alford plea agreement^[2] as to all charges and explicitly reserved the right to appeal his motion to suppress. Pursuant to his plea agreement, Judge Long sentenced defendant to imprisonment for a minimum of seventy months and a maximum of ninety-three months in the North Carolina Department of Adult Correction. Defendant gave timely oral notice of appeal.

II. Discussion

A. Petition for Writ of Certiorari

As an initial matter, defendant filed a Petition for Writ of Certiorari (petition) contemporaneously with his appeal. Defendant stated that he filed his petition so that this Court could exercise its discretion to review his appeal if his appeal was deemed untimely filed. However, defendant's appeal was deemed timely filed by Order of the Clerk of Court. Thus, defendant's petition is dismissed as moot.

B. Appellate Jurisdiction

This Court has jurisdiction over defendant's appeal. Generally, when a defendant enters into a plea agreement, his rights to appeal are limited. However, pursuant to N.C. Gen. Stat § 15A-979(b), this Court may review an order denying a defendant's motion to suppress evidence on appeal from a final judgment of conviction, including a judgment entered on a guilty plea. State v. McBride, 120 N.C.App. 623, 625, 463 S.E.2d 403, 404 (1995). In such instances, the defendant must (1) notify the State and the trial court of his intention to appeal during plea negotiations, and (2) provide notice of appeal from the final judgment. Id. at 625-26, 463 S.E.2d at 404-05.

Here, the trial court had notice because it stated that all defendant's objections were preserved for any potential appeal. Moreover, defendant explicitly reserved the right to appeal the trial court's denial of his motion to suppress in his Alford plea and gave timely notice of appeal from his conviction. Thus, defendant's appeal is properly before this Court.

C. Motion to Suppress

On appeal, defendant contends that the trial court should have granted his motion to suppress the marijuana and heroin found in his underwear because the search "was without probable cause, was not justified by any exigent circumstances and was objectively unreasonable." More specifically, defendant argues that the search of his "groin and buttocks areas while standing on the side of Highway 421 with only the patrol car blocking the view from oncoming traffic was unreasonable [,]" and the "facts and circumstances did not justify an immediate search of this scope without additional privacy measures." We do not agree.

a. Standard of Review

This Court's review of a trial court's denial of a defendant's 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. Johnston, 115 N.C.App. 711, 713, 446 S.E.2d 135, 137 (1994) (citation omitted). Moreover, this Court "accords great deference to the trial court's ruling on a motion to suppress because the trial court is entrusted with the duty to hear testimony (thereby observing the demeanor of the witnesses) and to weigh and resolve any conflicts in the evidence." Id. Finally, this Court reviews a trial court's conclusions of law de novo. State v. Steele, 277 N.C.App. 124, 129, 858 S.E.2d 325, 330 (2021).

b. Search Based on Probable Cause and Exigent Circumstances

"Upon timely motion, evidence must be suppressed if: [i]ts exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina[.]" N.C. Gen. Stat. § 15A-974(a)(1) (2023). Under the Fourth Amendment of the United States Constitution, individuals are protected from unreasonable searches and seizures, U.S. Const. amend. IV., and the North Carolina Constitution also protects individuals from unreasonable searches and seizures. N.C. Const. art. I, § 20. Thus, evidence that is obtained as a result of an unreasonable search must be suppressed.

"A warrantless search is lawful if probable cause exists to search and the exigencies of the situation make search without a warrant necessary." State v. Stover 200 N.C.App. 506, 511, 685 S.E.2d 127,...