State v. Quinonez

An unpublished opinion of the North Carolina Court of Appeals does not constitute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 Procedu re.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-680

Filed: 2 June 2015

Mecklenburg County, No. 12 CRS 227341

STATE OF NORTH CAROLINA

v.

SALVADOR QUINONEZ.

Appeal by defendant from judgment entered 19 September 2013 by Judge

James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of

Appeals 4 November 2014.

Attorney General Roy Cooper, by Assistant Attorney General Benjamin J. Kull,
for the State.

Glover & Petersen, P.A., by Ann B. Petersen, for defendant-appellant.

CALABRIA, Judge.

Salvador Quinonez (“defendant”) appeals from a judgment entered upon a jury

verdict finding him guilty of trafficking in methamphetamine by transport.

Defendant challenges the denial of his motion to suppress as well as his sentence.

We find no error.

I. Background
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Opinion of the Court

On 20 June 2012, Special Agent Jorge Alamillo (“Agent Alamillo”) of the Drug

Enforcement Administration (“DEA”) received information from a confidential

informant (“the informant”) indicating that a person known as “Tarahumara” had

contacted the informant and wanted to sell a large amount of methamphetamine.

Agent Alamillo instructed the informant to set up the sale for the next day, and the

DEA would conduct an operation to apprehend Tarahumara.

The next day, 21 June 2012, the informant was scheduled to meet Tarahumara

in a Ross parking lot in Concord, North Carolina. A dark Mitsubishi Lancer (“the

Lancer”) driven by an Hispanic female entered the parking lot and parked next to the

informant’s vehicle. Defendant spoke briefly with the informant, then returned to

the Lancer’s passenger seat. The informant drove out of the parking lot, and the

Lancer followed the informant’s vehicle. Agent Alamillo relayed the Lancer’s license

plate number to the other law enforcement officers involved in the operation.

Officer Chris Newman (“Officer Newman”) of the Charlotte-Mecklenburg

Police Department (“CMPD”) was assisting the DEA agents in the operation. Officer

Newman observed the Lancer travelling below the speed limit on North Tryon Street

before it traversed across two lanes of travel, causing other vehicles behind it to slow

down. Officer Newman stopped the Lancer and spoke with both the female driver

and with defendant. The female driver consented to a search of the Lancer, during

which Officer Newman and his K-9 partner discovered perfume boxes in the back

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Opinion of the Court

seat. The K-9 unit indicated a positive alert to the perfume boxes, which contained

approximately one pound of methamphetamine. Law enforcement seized both the

Lancer and the perfume boxes containing the methamphetamine.

Defendant was arrested and charged with two counts of trafficking in

methamphetamine and possession with intent to sell or deliver a controlled

substance. Agent Alamillo interviewed defendant subsequent to his being taken into

custody. During the interview, defendant indicated that he had received the

methamphetamine that was found in the Lancer from an Hispanic male in

Greensboro. Defendant also offered to identify three locations where individuals were

storing drugs. Agent Alamillo and CMPD Officer Paul Brent Foushee (“Officer

Foushee”), accompanied defendant to Greensboro, where defendant identified three

houses as “stash locations.” Subsequent DEA investigations into those locations

resulted in four arrests as well as the seizure of 2.3 pounds of methamphetamine,

266 grams of cocaine, and a firearm.

On 25 March 2013, defendant filed a motion to suppress the stop of the Lancer,

the methamphetamine law enforcement discovered in the vehicle, and defendant’s

subsequent statements to law enforcement. At the hearing on defendant’s motion to

suppress, the State presented evidence from Agent Alamillo, Officer Newman, and

Officer Foushee. Defendant also testified at the hearing. On 17 September 2013, the

trial court denied defendant’s motion to suppress.

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Opinion of the Court

At trial, the State presented evidence from the informant, Agent Alamillo, and

Officer Newman. On 19 September 2013, the jury found defendant guilty of one count

of trafficking in methamphetamine, and not guilty of the other offenses. The trial

court sentenced defendant to a minimum of 225 months and a maximum of 279

months in the custody of the North Carolina Division of Adult Correction. Defendant

appeals.

II. Motion to Suppress

On appeal, defendant argues that there was no reasonable suspicion to support

the traffic stop. Specifically, defendant contends that the trial court’s finding that

the vehicles behind the Lancer were required to apply their brakes quickly to avoid a

collision is unsupported by the evidence. We disagree.

“The standard of review regarding a trial court’s decision with respect to 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.

Armstrong, ___ N.C. App. ___, ___, 762 S.E.2d 641, 643 (2014) (citation omitted).

“[T]he trial court's findings of fact are conclusive on appeal if supported by competent

evidence, even if the evidence is conflicting.” State v. Allen, 197 N.C. App. 208, 210,

676 S.E.2d 519, 521 (2009) (citation omitted). Findings not challenged on appeal are

deemed supported by competent evidence and are binding on appeal. State v. Biber,

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Opinion of the Court

365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). “Conclusions of law are reviewed de

novo [.]” Id.

In Whren [v. United States, 517 U.S. 806, 135 L.Ed.2d 89
(1996)], the United States Supreme Court held that the
temporary detention of a motorist upon probable cause to
believe that he has violated a traffic law is not inconsistent
with the Fourth Amendment's prohibition against
unreasonable seizures, even if a reasonable officer would
not have stopped the motorist for the violation.

State v. McClendon, 350 N.C. 630, 635, 517 S.E.2d 128, 131 (1999). Reasonable

suspicion is the appropriate standard in determining whether a traffic stop is

appropriate. State v. Styles, 362 N.C. 412, 416, 665 S.E.2d 438, 441 (2008).

“Reasonable suspicion is a less demanding standard than probable cause and requires

a showing considerably less than preponderance of the evidence.” Id. at 414, 665

S.E.2d at 439 (citation and quotation marks omitted).

Defendant relies upon Styles, State v. Ivey, 360 N.C. 562, 633 S.E.2d 459 (2006),

and State v. McRae, 203 N.C. App. 319, 691 S.E.2d 56 (2010), to support his argument

that Officer Newman lacked reasonable suspicion to initiate the traffic stop.

Specifically, defendant contends that there was no evidence supporting a violation of

N.C. Gen. Stat. § 20-154 and the record is silent on whether the Lancer signaled

before changing lanes.

In Ivey, the Court applied the probable cause standard to hold that the stop

was unlawful. 360 N.C. 562, 565-66, 633 S.E.2d 459, 461-62. However, Ivey was

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Opinion of the Court

abrogated by Styles, which held that reasonable suspicion is the proper standard in

determining whether a stop is lawful. 362 N.C. at 415, 665 S.E.2d at 440. In Styles,

the defendant argued that the stop in that case was improper because there was no

evidence that the movement of his vehicle could have affected the operation of

another vehicle pursuant to N.C. Gen. Stat. § 20-154(a). 362 N.C. at 416, 665 S.E.2d

at 441. The Supreme Court of North Carolina determined that “changing lanes

immediately in front of another vehicle may affect the operation of the trailing

vehicle[,]” and therefore the law enforcement officer’s observation of the defendant’s

vehicle changing lanes without signaling provided the required reasonable suspicion

to stop the defendant’s vehicle. Id. at 417, 665 S.E.2d at 441.

In McRae, law enforcement received a tip from a confidential source that the

defendant would be driving a green vehicle with over 60 grams of cocaine. 203 N.C.

App. at 320, 691 S.E.2d at 57. The defendant was stopped when a law enforcement

officer witnessed him turn into a gas station parking lot without using his turn signal.

Id., 691 S.E.2d at 57-58. On appeal, the defendant argued that the trial court erred

in concluding that his failure to use his turn signal justified the stop. Id. at 322, 691

S.E.2d at 58. This Court held that the trial court properly concluded that a

reasonable officer would have believed that the failure to use a turn signal could have

affected another motor vehicle, and therefore the law enforcement officer had

reasonable suspicion to stop the defendant. Id. at 323, 691 S.E.2d at 59.

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Opinion of the Court

In the instant case, Officer Newman testified that he observed the Lancer

travelling approximately five to ten miles slower than the posted speed limit. He

then observed the Lancer travel across two lanes of traffic in order to reach an exit

lane. Officer Newman stated that the Lancer “cut over in front of some vehicles,

causing traffic to slow way down, backing up traffic” and that about fifteen other

vehicles were affected by the Lancer’s movement. He also testified that the Lancer

“made an unsafe movement without turning or starting from a direct point in which

a lane change could be done safely.”

Defendant is correct that the record does not include evidence regarding

whether the driver activated her turn signal or looked to see if the movement could

be conducted safely before she changed lanes. However, Officer Newman did not need

probable cause to stop the Lancer. Instead, he only needed reasonable suspicion that

an unsafe movement occurred. Because Officer Newman observed the Lancer

travelling at approximately ten miles per hour below the posted speed limit before it

crossed two lanes of traffic, causing other vehicles on the road to slow down, he had

reasonable suspicion that the driver of the Lancer did not check to see whether the

movement could be made safely without affecting other vehicles on the road. The

trial court’s findings that the Lancer slowed to approximately ten miles per hour

below the speed limit and abruptly crossed two lanes of traffic, causing other vehicles

to slow down is supported by Officer Newman’s testimony. Therefore, the trial court

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Opinion of the Court

appropriately concluded that there was reasonable suspicion to stop the Lancer based

upon the information given by the informant and the traffic law violation, and

properly denied defendant’s motion to suppress.

III. Sentencing

Defendant also argues that the trial court erred in concluding that the

assistance that he gave law enforcement in locating other known drug locations in

the Greensboro area was not substantial. Specifically, defendant contends that he

should have been granted a lesser sentence because of his assistance to law

enforcement.

“This Court has held that whether a trial court finds that a criminal

defendant’s aid amounts to ‘substantial assistance’ is discretionary. The reduction of

the sentence is also in the judge’s discretion, even if the judge finds substantial

assistance was given.” State v. Robinson, 177 N.C. App. 225, 232, 628 S.E.2d 252,

256 (2006) (citations and quotation marks omitted). “To overturn a sentencing

decision, the reviewing court must find an abuse of discretion, procedural conduct

prejudicial to defendant, circumstances which manifest inherent unfairness and

injustice, or conduct which offends the public sense of fair play.” Id. at 232-33, 628

S.E.2d at 256-57 (citation and internal quotation marks omitted). “A trial court may

be reversed for an abuse of discretion only upon a showing that its ruling was so

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Opinion of the Court

arbitrary that it could not have been the result of a reasoned decision.” State v.

Wilson, 313 N.C. 516, 538, 330 S.E.2d 450, 465 (1985).

N.C. Gen. Stat. § 90-95(h)(5) provides that a sentencing judge

may reduce the fine, or impose a prison term less than the
applicable minimum prison term provided by this
subsection, or suspend the prison term imposed and place
a person on probation when such person has, to the best of
his knowledge, provided substantial assistance in the
identification, arrest, or conviction of any accomplices,
accessories, co-conspirators, or principals if the sentencing
judge enters in the record a finding that the person to be
sentenced has rendered such substantial assistance.

N.C. Gen. Stat. § 90-95(h)(5) (2013) (emphasis added). “In other words, N.C. Gen.

Stat. 90-95(h)(5) is a provision exchanging potential leniency for assistance . . . . It is

the only provision in the trafficking statutory scheme which gives a sentencing judge

the discretion not to impose the statutorily mandated minimum sentence and fine.”

State v. Steele, 201 N.C. App. 689, 694, 689 S.E.2d 155, 160 (2010) (citation and

internal quotation marks omitted). “Furthermore, our courts have recognized that

the ‘substantial assistance’ statute is permissive, not mandatory, and that defendant

has no right to a lesser sentence even if he does provide what he believes to be

substantial assistance.” State v. Kamtsiklis, 94 N.C. App. 250, 260, 380 S.E.2d 400,

405 (1989) (citation omitted).

In the instant case, defendant identified three locations to law enforcement

where individuals were storing drugs. As a result of subsequent investigations into

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Opinion of the Court

those locations, officers arrested four individuals and recovered 2.3 pounds of

methamphetamine, 266 grams of cocaine, and a firearm. Defendant did not

participate in any undercover drug buys or interact with the investigation beyond

identifying the locations to Agent Alamillo and Officer Foushee. At sentencing, the

trial court found that “[b]ased on the evidence presented at trial, considering the

arguments of counsel for the State and for the defendant, I understand that while the

defendant did offer assistance, that this assistance is not substantial and that the

sentence in the statutory range is justified.”

Defendant contends that the trial court’s language indicates that the trial court

did not make an independent ruling that defendant’s assistance was not substantial

within the meaning of N.C. Gen. Stat. § 90-95(h)(5). However, the evidence presented

included evidence concerning defendant’s assistance in the identification of the “stash

locations” and the subsequent arrest of suspects. Defendant has no right to a lesser

sentence even if he provided what he believes to be substantial assistance,

Kamtsiklis, 94 N.C. App. at 260, 380 S.E.2d at 405, and the trial court’s finding

indicates that it reached a reasoned decision and considered defendant’s assistance

to law enforcement before sentencing him in the statutory range. Defendant’s

argument is without merit.

IV. Conclusion

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Opinion of the Court

Officer Newman had reasonable suspicion to stop the Lancer due to his

observation of the Lancer’s unsafe movement in traffic. Therefore, the trial court

properly denied defendant’s motion to suppress the evidence of the

methamphetamine as well as defendant’s subsequent statements. Additionally, the

trial court did not abuse its discretion in considering defendant’s assistance to law

enforcement before sentencing him in the presumptive range. We hold that

defendant received a fair trial, free from error.

NO ERROR.

Judges STROUD and McCULLOUGH concur.

Report per Rule 30(e).

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