State v. Furtch

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-643

Filed 20 June 2023

Henderson County, Nos. 19CRS050883-86

STATE OF NORTH CAROLINA

v.

DAMIAN LEWIS FURTCH

Appeal by Defendant from judgment entered 16 November 2021 by Judge

Peter B. Knight in Henderson County Superior Court. Heard in the Court of Appeals

11 April 2023.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Anne M.
Gomez, for Defendant-Appellant.

Attorney General Joshua H. Stein, by Special Deputy Attorney General
Alexander G. Walton, for the State-Appellee.

COLLINS, Judge.

Defendant Damian Lewis Furtch appeals from judgment entered upon his

guilty plea to two counts of trafficking in methamphetamine; possession with intent

to manufacture, sell and/or deliver a Schedule II controlled substance; and

maintaining a vehicle used for keeping and selling a controlled substance. Defendant

argues that the trial court erred by denying his motion to suppress because the traffic

stop was unconstitutionally extended and the narcotics investigation exceeded the

scope of the traffic stop. We grant Defendant’s petition for writ of certiorari and
 STATE V. FURTCH

Opinion of the Court

affirm the trial court’s denial of the motion to suppress.

I. Background

Detective Jacob Staggs and Detective Josh Hopper with the Henderson County

Sheriff’s Office were performing drug interdiction on 18 February 2019 as part of the

Crimes Suppression Unit. The Crimes Suppression Unit is generally responsible for

patrolling high crime areas. Staggs and Hopper’s vehicle was positioned facing

northbound on U.S. 25 South, “the road that goes from Henderson County into

Greenville County toward Travelers Rest.”

That night, Staggs had received a “whisper tip” from the Narcotics Unit to be

on the lookout for a silver minivan. Shortly before midnight, Staggs spotted a silver

minivan following a white pickup truck too closely and got behind the minivan to run

its tag through dispatch. While observing the minivan and trying to find a safe place

to conduct a traffic stop, the minivan “failed to maintain lane control, kept weaving

in its lane, [and] hitting the line[.]”

Staggs initiated the traffic stop and approached the vehicle from the passenger

side. Staggs explained to Defendant that he was “kind of weaving” and “kind of . . .

following too closely[,]” and asked him for his driver’s license. Defendant told Staggs

that he was heading to Hendersonville to visit family. When Staggs asked Defendant

where his family lived, Defendant told him Black Mountain, “which [was] kind of odd”

to Staggs because Black Mountain is not in Hendersonville. While Staggs was

-2-
 STATE V. FURTCH

Opinion of the Court

speaking with Defendant, K-9 Deputy Cory Smith with the Henderson County

Sheriff’s Office arrived on the scene.

After retrieving Defendant’s license, Staggs went back to his patrol vehicle,

ran Defendant’s license through dispatch, and made sure he had no outstanding

warrants. Hopper remained standing at the rear of Defendant’s vehicle. Staggs

confirmed that Defendant had a valid license and no outstanding warrants before

writing him a warning citation for following too closely and failing to maintain lane

control.

After printing the citation and “highlight[ing] certain things that are

important,” Staggs exited his patrol vehicle and spoke briefly with Smith. Smith

asked Staggs to have Defendant step out of the car for safety while the K-9 conducted

the free air sniff.

Staggs then approached Defendant and asked him to exit the vehicle so he

could “explain the warning citation[.]” Staggs frisked Defendant for weapons before

explaining the warning citation. As Staggs was explaining the citation to Defendant,

Smith notified Staggs that the K-9 had alerted on Defendant’s vehicle. Staggs

finished explaining the citation to Defendant and then explained that they had

probable cause to search his vehicle because the K-9 had alerted to narcotics. During

the search, the officers discovered an envelope containing 474 grams of

methamphetamine.

-3-
 STATE V. FURTCH

Opinion of the Court

Defendant was charged with two counts of trafficking in methamphetamine;

possession with intent to manufacture, sell and/or deliver a Schedule II controlled

substance; and maintaining a vehicle used for keeping and selling a controlled

substance. Defendant filed a motion to suppress, which was denied after a hearing

on 15 November 2021 by written order entered 24 November 2021. Defendant

subsequently pled guilty to the charges and reserved the right to appeal from the

denial of his motion to suppress. The trial court sentenced Defendant to 177 to 225

months’ imprisonment.

II. Discussion

A. Petition for Writ of Certiorari

We first address this Court’s jurisdiction to hear Defendant’s appeal. “An order

finally denying a motion to suppress evidence may be reviewed upon an appeal from

a judgment of conviction, including a judgment entered upon a plea of guilty.” N.C.

Gen. Stat. § 15A-979(b) (2021). To properly appeal the denial of a motion to suppress

after a guilty plea, a defendant must: (1) prior to finalization of the guilty plea,

provide the trial court and the prosecutor with notice of his intent to appeal the

suppression order, and (2) timely and properly appeal from the final judgment. State

v. Jackson, 249 N.C. App. 642, 645, 791 S.E.2d 505, 508 (2016).

Here, Defendant timely gave notice that he intended to appeal the denial of his

motion to suppress, and the reservation of this right was noted in the transcript.

Furthermore, Defendant, through trial counsel, announced in open court that he

-4-
 STATE V. FURTCH

Opinion of the Court

“would be giving notice of appeal . . . as to the motion to suppress and the [c]ourt’s

ruling on that motion.” However, Defendant failed to appeal, either in open court or

in writing, from the trial court’s judgment entered upon his guilty plea, as is required

by N.C. Gen. Stat. § 15A-979(b). Accordingly, Defendant lost his right to appeal the

trial court’s order denying his motion to suppress.

Recognizing this failure, Defendant has filed a petition for writ of certiorari.

North Carolina Rule of Appellate Procedure 21(a) provides, inter alia, that “[a] writ

of certiorari may be issued in appropriate circumstances by either appellate court to

permit review of the judgments and orders of trial tribunals when the right to

prosecute an appeal has been lost by failure to take timely action[.]” N.C. R. App. P.

21(a). “Whether to allow a petition and issue the writ of certiorari is not a matter of

right and rests within the discretion of this Court.” State v. Biddix, 244 N.C. App.

482, 486, 780 S.E.2d 863, 866 (2015) (citation omitted). Here, it is apparent that the

trial court and the prosecutor were aware of Defendant’s intent to appeal the denial

of the motion to suppress prior to the entry of Defendant’s guilty plea, and Defendant

lost his appeal through no fault of his own. See State v. Cottrell, 234 N.C. App. 736,

740, 760 S.E.2d 274, 277 (2014) (granting petition for writ of certiorari where “it is

apparent that the State was aware of defendant’s intent to appeal the denial of the

motion to suppress prior to the entry of defendant’s guilty pleas and . . . defendant

has lost his appeal through no fault of his own”). Accordingly, we grant Defendant’s

petition for writ of certiorari and address Defendant’s appeal on the merits.

-5-
 STATE V. FURTCH

Opinion of the Court

B. Motion to Suppress

“The standard of review in evaluating the denial of 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. Biber, 365 N.C. 162,

167-68, 712 S.E.2d 874, 878 (2011) (citation omitted). “When supported by competent

evidence, the trial court’s factual findings are conclusive on appeal, even where the

evidence might sustain findings to the contrary.” State v. Hall, 268 N.C. App. 425,

428, 836 S.E.2d 670, 673 (2019) (citation omitted). “Unchallenged findings of fact are

binding on appeal.” State v. Fizovic, 240 N.C. App. 448, 451, 770 S.E.2d 717, 720

(2015) (citation omitted). “We review the trial court’s conclusions of law on a motion

to suppress de novo.” State v. Ladd, 246 N.C. App. 295, 298, 782 S.E.2d 397, 400

(2016) (italics and citation omitted). “Under a de novo review, the court considers the

matter anew and freely substitutes its own judgment for that of the lower tribunal.”

State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quotation marks,

italics, and citations omitted).

1. Supporting Affidavit

As an initial matter, Defendant argues that “[i]f, in this case, defense counsel

made a minor procedural error, with respect to the format of his suppression motion–

one that was not objected to by the State or noted by the trial court–[Defendant]

should still have his claims considered by this Court.” (quotation marks and citation

omitted).

-6-
 STATE V. FURTCH

Opinion of the Court

A motion to suppress “must be accompanied by an affidavit containing facts

supporting the motion” and “may be based upon personal knowledge, or upon

information and belief, if the source of the information and the basis for the belief are

stated.” N.C. Gen. Stat. § 15A-977(a) (2021). The trial court may summarily deny a

motion to suppress if the motion does not allege a legal basis for the motion, or the

affidavit does not support the ground alleged as a matter of law. N.C. Gen. Stat.

§ 15A-977(c) (2021). While the trial court has the authority to summarily deny a

motion to suppress that fails to comply with the required procedural formalities, the

trial court also has the discretion to refrain from summarily denying such a motion

that lacks an adequate supporting affidavit if it chooses to do so. State v. O’Connor,

222 N.C. App. 235, 239-40, 730 S.E.2d 248, 251 (2012).

Here, the affidavit accompanying Defendant’s motion to suppress states:

That upon information and belief and after discussion with
the above captioned defendant, review of discovery
provided by the State including officer reports and
documents produced in connection with this case, review of
video evidence provided in discovery, the undersigned
attorney has reason to believe that all alleged in the
attached Motion to Suppress is accurate and alleged in
good faith.

Although the accompanying affidavit did not include facts supporting the motion, the

trial court, in its discretion, refrained from summarily denying Defendant’s motion

to suppress and conducted an evidentiary hearing addressing the merits of the issues

raised by Defendant’s motion. Id. at 241, 730 S.E.2d at 252. The merits of

-7-
 STATE V. FURTCH

Opinion of the Court

Defendant’s appeal from the trial court’s order denying his motion to suppress are

therefore properly before this Court.

2. Traffic Stop

Defendant argues that “Staggs deviated from the mission of the stop and

unconstitutionally extended it[.]”

The Fourth Amendment of the United States Constitution prohibits

unreasonable searches and seizures. U.S. Const. amend. IV. “Article I, Section 20 of

the North Carolina Constitution similarly prohibits unreasonable searches and

seizures.” State v. Thorpe, 232 N.C. App. 468, 477, 754 S.E.2d 213, 220 (2014)

(citation omitted).

“A traffic stop is a seizure even though the purpose of the stop is limited and

the resulting detention quite brief.” State v. Styles, 362 N.C. 412, 414, 665 S.E.2d

438, 439 (2008) (quotation marks and citation omitted). “A seizure that is justified

solely by the interest in issuing a warning ticket to the driver can become unlawful if

it is prolonged beyond the time reasonably required to complete that mission.” State

v. Williams, 366 N.C. 110, 116, 726 S.E.2d 161, 166 (2012) (quotation marks and

citation omitted). “[T]o detain a driver beyond the scope of the traffic stop, the officer

must have the driver’s consent or reasonable articulable suspicion that illegal activity

is afoot.” Id. (citation omitted). “An officer has reasonable suspicion if a reasonable,

cautious officer, guided by his experience and training, would believe that criminal

activity is afoot based on specific and articulable facts, as well as the rational

-8-
 STATE V. FURTCH

Opinion of the Court

inferences from those facts.” O’Connor, 222 N.C. App. at 238, 730 S.E.2d at 250-51

(quotation marks and citations omitted).

“The reasonable duration of a traffic stop, however, includes more than just

the time needed to write a ticket. Beyond determining whether to issue a traffic

ticket, an officer’s mission includes ordinary inquiries incident to the traffic stop.”

State v. Bullock, 370 N.C. 256, 257, 805 S.E.2d 671, 673 (2017) (quotation marks,

brackets, and citations omitted). “Such inquiries may involve checking the driver’s

license, determining whether there are outstanding warrants against the driver, and

inspecting the automobile’s registration and proof of insurance.” State v. France, 279

N.C. App. 436, 441, 865 S.E.2d 707, 712 (2021) (quotation marks and citation

omitted).

“In addition, an officer may need to take certain negligibly burdensome

precautions in order to complete his mission safely.” Bullock, 370 N.C. at 258, 805

S.E.2d at 673 (quotation marks and citation omitted). “As a precautionary measure

to protect the officer’s safety, a police officer may as a matter of course order the driver

and passengers of a lawfully stopped car to exit his vehicle during a stop for a traffic

violation.” State v. Jones, 264 N.C. App. 225, 231, 825 S.E.2d 260, 265 (2019)

(quotation marks and citation omitted). Furthermore, because “‘traffic stops remain

lawful only so long as unrelated inquires do not measurably extend the duration of

the stop,’ a ‘frisk that lasts just a few seconds . . . d[oes] not extend the traffic stop’s

duration in a way that would require reasonable suspicion.’” Id. (quoting Bullock,

-9-
 STATE V. FURTCH

Opinion of the Court

370 N.C. at 262-63, 805 S.E.2d at 676-77). “[B]ecause officer safety stems from the

mission of the traffic stop itself, time devoted to officer safety is time that is

reasonably required to complete that mission.” Bullock, 370 N.C. at 262, 805 S.E.2d

at 676.

“[T]he Fourth Amendment permits an officer to conduct an investigation

unrelated to the reasons for the traffic stop as long as it [does] not lengthen the

roadside detention.” France, 279 N.C. App. at 442, 865 S.E.2d at 712 (quotation

marks and citations omitted). Thus, “an officer who lawfully stops a vehicle for a

traffic violation but who otherwise does not have reasonable suspicion that any crime

is afoot beyond a traffic violation may execute a dog sniff only if the check does not

prolong the traffic stop.” State v. Warren, 242 N.C. App. 496, 499, 775 S.E.2d 362,

365 (2015).

a. Findings of Fact

Defendant challenges portions of findings of fact 14 and 22.

Finding of fact 14 states:

The undersigned cannot find as a fact what distance was
traveled by Deputy Staggs while he was catching up to the
minivan. The traffic at that time was neither “light” nor
“heavy.” Generally, the vehicle traffic at that time was
traveling 65 m.p.h., more or less. Deputy Staggs did not
operate his blue lights or his siren, until such time as he
had been behind the minivan for sufficient time to observe
the minivan weave within its lane again.

- 10 -
 STATE V. FURTCH

Opinion of the Court

Defendant contends that “[b]ecause Staggs testified he was parked at mile marker 3

and the stop occurred at mile marker 8, the trial court’s finding that it could not

determine what distance Staggs followed the minivan is unsupported.” However, the

trial court also made the following unchallenged findings of fact:

11. . . . Deputy Staggs observed that, in his opinion, the
silver minivan was following too closely behind an older
model white pickup truck. At the time, Deputy Staggs[’]
vehicle was parked at about Mile Marker 3. . . .
....
13. . . . Deputy Staggs departed from his stationary
position, and operated his vehicle away from the shoulder
of the highway for the purpose of following the silver
minivan.
15. At such time as Deputy Staggs turned on his blue lights
(no siren), the minivan promptly moved to the right-hand
lane and safely came to a stop along the shoulder. The
point of the stop, at about mile marker 8, was about five
miles from the location where Deputy Staggs first observed
the minivan.

The challenged portion of finding of fact 14, when viewed in conjunction with these

findings, indicates that the trial court could not find as a fact the distance Staggs

traveled after departing from his stationary position before catching up to the

minivan. The trial court’s findings of fact that “Deputy Staggs[’] vehicle was parked

at about Mile Marker 3” and that “[t]he point of the stop, at about mile marker 8, was

about five miles from the location where Deputy Staggs first observed the minivan”

are supported by competent evidence. When asked at the suppression hearing at

what mile marker he was positioned, Staggs testified, “At that point in time I want

- 11 -
 STATE V. FURTCH

Opinion of the Court

to say 3.” Furthermore, Staggs testified that “I stopped him around mile marker 8,

getting close to Interstate 26 there.” However, there is no competent evidence in the

record to support any finding as to what distance Staggs traveled after departing

from his stationary position before catching up to the minivan. Thus, the trial court

did not err by declining to “find as a fact what distance was traveled by Deputy Staggs

while he was catching up to the minivan.”

Finding of fact 22 states:

Upon printing of the warning citation, Deputy Staggs got
out of his vehicle, approached the Defendant’s car from the
rear, and asked the Defendant to get out and come around
to where the Deputy was. The Defendant complied
immediately. The Deputy asked the Defendant whether he
had any weapons, to which the Defendant replied that he
did not. The Deputy told the Defendant that he was going
to perform a quick patdown for weapons; the Defendant
promptly complied with the Deputy’s requests. The
Deputy did so in a matter of not more than about 10
seconds.

Defendant contends that “[t]he trial court’s finding that the pat-down ‘did not last

longer than about 10 seconds’ is unsupported to the extent it implies the pat-down

did not last longer than 10 seconds in total.” The challenged portion of this finding

indicates that the trial court found that the pat-down itself, rather than the entire

encounter, lasted for about ten seconds. In making this finding, the trial court

considered Staggs’ dash cam video. Staggs begins his pat down of Defendant at 8:16

of the dash cam video and concludes the pat down at 8:27. Thus, the trial court’s

- 12 -
 STATE V. FURTCH

Opinion of the Court

finding of fact that Staggs frisked Defendant for “not more than about 10 seconds” is

supported by competent evidence.

Accordingly, the trial court’s findings of fact are supported by competent

evidence.

b. Conclusions of Law

Defendant contends that conclusions of law 8, 13, 15, and 19 are not supported

by the trial court’s findings of fact.

Conclusion of law 8 states:

Deputy Staggs[’] conversation immediately following the
stop of the Defendant’s vehicle, was relatively short, and
was directly related to the purpose of the stop. The
conversation did nothing to change Deputy Staggs’
reasonable suspicion that the Defendant’s vehicle was
following the white pickup truck too closely, and in fact the
conversation appeared to confirm that belief.

This conclusion of law is supported by finding of fact 19, which states, in part:

[Staggs] told the Defendant why he had stopped him – to
the effect of you were “kind of following too close.” The
Defendant agreed, although the undersigned does not take
this agreement by the Defendant as an admission, but
instead, merely that instead of denying knowledge of such
allegation, the Defendant agreed.

Although the trial court did “not take this agreement by Defendant as an admission,”

the trial court noted that “instead of denying knowledge of such allegation, the

Defendant agreed.” This finding supports the trial court’s conclusion of law that

- 13 -
 STATE V. FURTCH

Opinion of the Court

Staggs’ conversation with Defendant “appeared to confirm” that Defendant was

following too closely.

Conclusions of law 13, 15, and 19 state:

13. Deputy Staggs’ explanation of the warning citation
after the Defendant was directed to get out of his vehicle
took no longer than it would have had the Defendant
remained in his vehicle, save for the time required for the
brief “pat-down” and the time it took to walk the few steps
to the guardrail beside the Deputy Staggs’ vehicle. Had
Deputy Staggs explained the warning citation to the
Defendant while the Defendant remained in the vehicle, he
could not have explained the citation and then handed it to
the Defendant without being on the highway side of the
Defendant’s vehicle, in the lane of travel of the highway,
thus presenting a safety issue. Deputy Staggs’ direction of
the Defendant to exit his vehicle for this purpose was
lawful.
15. Deputy Staggs had the authority to direct the
Defendant to step out of his vehicle during the stop, to
“pat-down” or frisk the Defendant, and to explain the
warning citation to the Defendant provided that he did not
extend the stop of the Defendant unnecessarily to do so; in
fact, the stop was not extended unnecessarily to complete
these acts.
19. The cursory search of the Defendant’s vehicle did not
extend the stop of the Defendant’s vehicle, and was
completed prior to the completion of the lawful purposes of
the stop.

Staggs initiated the traffic stop after observing a silver minivan following a

white pickup truck too closely, “fail[ing] to maintain lane control, . . . weaving in its

lane, [and] hitting the line[.]” At that point, Staggs was legally authorized to detain

Defendant for “the length of time reasonably necessary to accomplish the mission of

- 14 -
 STATE V. FURTCH

Opinion of the Court

the stop[.]” Bullock, 370 N.C. at 257, 805 S.E.2d at 673 (citations omitted). Upon

approaching the vehicle, Staggs informed Defendant of the reason for the stop and

requested his identification. Staggs then returned to his patrol vehicle to run

Defendant’s license through dispatch and make sure he had no outstanding warrants.

Such inquiries are “ordinary inquiries incident to the traffic stop.” Id. (quotation

marks, brackets, and citation omitted).

Upon writing a warning citation for left of center and following too closely,

Staggs asked Defendant to step out of the vehicle to explain the warning citation.

Staggs was permitted to order Defendant out of the car as a precautionary measure

to protect his safety. Jones, 264 N.C. App. at 231, 825 S.E.2d at 265. Likewise,

Staggs’ pat down of Defendant did not measurably extend the duration of the traffic

stop in a way that would require reasonable suspicion. Bullock, 370 N.C. at 263, 805

S.E.2d at 677 (“So this very brief frisk did not extend the traffic stop’s duration in a

way that would require reasonable suspicion.”). Although unrelated to the mission

of the traffic stop, the K-9 free air sniff did not prolong the stop because it took place

while Staggs was explaining the ticket to Defendant. Warren, 242 N.C. App. at

498-99, 775 S.E.2d at 365.

At no point during the traffic stop did any of the officers’ actions “convert the

encounter into something other than a lawful seizure[.]” Arizona v. Johnson, 555

U.S. 323, 333 (2009). For the entirety of the traffic stop, Staggs was either “‘diligently

pursu[ing] the investigation[,]’ conducting ‘ordinary inquiries incident to [the traffic]

- 15 -
 STATE V. FURTCH

Opinion of the Court

stop[,]’ or taking necessary ‘precautions in order to complete [his] mission safely.’”

France, 279 N.C. App. at 444, 865 S.E.2d at 714 (quoting Rodriguez v. United States,

575 U.S. 348, 354-56 (2015)). Although the K-9 free air sniff was unrelated to the

reasons for the traffic stop, it did not prolong the traffic stop and was therefore

permissible. Id.

Accordingly, the trial court did not err by denying Defendant’s motion to

suppress.

III. Conclusion

As the trial court’s findings of fact are supported by competent evidence and

the trial court’s findings of fact support its conclusions of law, the trial court did not

err by denying Defendant’s motion to suppress. Accordingly, we grant Defendant’s

petition for writ of certiorari and affirm the trial court’s denial of Defendant’s motion

to suppress.

AFFIRMED.

Chief Judge STROUD and Judge FLOOD concur.

- 16 -