State v. Smith

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

NO. COA14-193
NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

STATE OF NORTH CAROLINA

v. Durham County
No. 12 CRS 55506
SHAUN SMITH

Appeal by defendant from order and judgment entered 30

August 2013 by Judge Paul C. Ridgeway in Durham County Superior

Court. Heard in the Court of Appeals 13 August 2014.

Attorney General Roy Cooper, by Special Deputy Attorney
General Ward Zimmerman, for the State.

Farber Law Firm, P.L.L.C., by Sarah Jessica Farber for
defendant.

ELMORE, Judge.

After Shaun Smith’s (defendant) motion to suppress for lack

of reasonable suspicion was denied by the trial court, he pled

guilty pursuant to Alford on 30 October 2013 to possession with

the intent to manufacture, sell or deliver a schedule VI

controlled substance and maintaining a vehicle for a controlled

substance. The convictions were consolidated into one judgment
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at sentencing, and defendant received a suspended sentence of 4-

14 months imprisonment with 24 months of supervised probation.

Defendant preserved his right to appellate review of the motion

to suppress pursuant to N.C. Gen. Stat. § 15A-979(b). After

careful consideration, we affirm the trial court’s order.

I. Facts

On 6 June 2012, Officer K.A. Schooley and Officer E.J.

Jeffries (collectively “the officers”) of the Durham Police

Department drove to the parking lot of the Durham Housing

Authority (DHA) at 131 Commerce Street in Durham (the parking

lot) to serve a warrant on a nearby apartment resident. The

officers parked in the parking lot next to a green Honda Accord,

and they noticed defendant asleep in the driver’s seat. The

officers walked to the nearby apartment to serve the unrelated

warrant and returned to their patrol car. At that time, the

officers recognized defendant from his involvement in previous

drug activity and an encounter in the same parking lot a day

prior. After reviewing the Honda’s title to confirm that it did

not belong to defendant, Officer Schooley “approached the Honda

and knocked on the window. The [defendant] . . . opened the

door and stepped out.” She then asked defendant why he was in

the parking lot and whether his vehicle contained narcotics.
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Defendant indicated that he “was waiting to visit someone” and

did not have any narcotics inside the vehicle. He also denied

Officer Schooley’s request for a consent search of the vehicle.

At that point, Officer Schooley called for a canine officer, and

the canine officer arrived with the canine approximately ten

minutes later. Just before the canine began to sniff the

vehicle, Officer Schooley asked defendant to stand with her

behind the vehicle to create a distance between the canine and

defendant. The canine then “gave a positive indicat[ion] of

narcotics in the vehicle[,]” and the officers searched the

vehicle. The search yielded 122 grams of marijuana, over $500

cash, an assault rifle, and ammunition.

II. Analysis

a.) Findings of fact
First, defendant argues that the trial court’s findings of

fact in support of its legal conclusion are not supported by

competent evidence. We disagree.

“In reviewing a trial judge’s findings of fact, we are

‘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. Williams, 362 N.C. 628,
 -4-
632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306

N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v.

Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d

429, 434 (2010) (“‘[F]indings of fact made by the trial judge

are conclusive on appeal if supported by competent evidence,

even if . . . there is evidence to the contrary.’” (quoting

Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01,

655 S.E.2d 362, 369 (2008))).

The trial court concluded that reasonable suspicion existed

based on six findings of fact:

(1) the presence of the Defendant at a high
drug trafficking site; (2) the officer’s
knowledge of drug-related complaints
involving Defendant in other instances; (3)
the knowledge of the officers from the day
before of Defendant’s association with known
gang members and others engaged in drug
trafficking; (4) the presence of the
Defendant on the prior day at the same site
when a 911 tip reported possible drug
activity; (5) the presence of the Defendant
at the Durham Housing Authority parking area
where, just one day prior, the Defendant had
been warned that he was not permitted to
loiter without a resident of the apartments
being present; and (6) the use by Defendant
of a vehicle not registered in his name.

Each of these findings are supported by competent evidence.

With regard to Finding (1), Officer Schooley testified that

defendant was found in a parking lot that is “a Crip area. . . .
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[I]ndividuals hang out in the parking lots that do not live

there and sell narcotics” on a daily basis “around the clock.”

In addition to the drug and gang activity, Officer Schooley

stated that she frequently receives complaints in that location

for loitering, trespassers, and loud noise. Officer Jeffries

also acknowledged that complaints about drug sales in the

parking lot occur “during the day and also in the evening[.]”

In support of finding (2), the evidence shows that Officer

Jeffries “knew [defendant] from dealings before -- maybe prior

to June 5th. [Defendant] and his cousins were loitering at

another housing complex in East Durham which was Hoover Road

Apartment, which [officers] had been given -- receiving several

complaints about loitering and drug activity in that apartment

complex.”

Findings (3) and (4) are supported by the officers’

testimony that on 5 June 2012, one day before defendant’s

arrest, the officers responded to the parking lot after

receiving drug complaints in that location. When they arrived

at the parking lot, defendant was present with Malick and

Malachi Eubalis, both of whom were Crip gang members and known

drug dealers. Officer Schooley “personally participated in a

drug raid on Ashe Street with [the Eubalis’]” in the past.
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In support of Finding (5), the evidence shows that

defendant was found in the parking lot on 6 June 2012 despite

trespass warnings and being told the day before that “if [he

wasn’t] visiting somebody, . . . [he wasn’t] allowed to just be

loitering in the parking lot” because the DHA rules require that

a visitor must be present with a resident while on the parking

lot premises.

Finally, with regard to Finding (6), Officer Schooley

observed defendant in a green Honda Accord and discovered that

the license plate of the vehicle actually belonged to a female,

and the location of the vehicle’s registered address was on the

opposite side of Durham.

Each of the trial court’s findings of fact are supported by

competent evidence. Thus, they are binding on this appeal.

b.) Reasonable Suspicion

Next, we must determine whether the trial court’s findings

of fact support its conclusion of law that reasonable suspicion

existed to seize defendant “for the period of time sufficient to

allow for the canine unit to arrive on the scene (ten minutes)

and for the canine to walk around the vehicle[.]” We first note

that the order is devoid of facts sufficient to actually

determine whether defendant’s interaction with the officers
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while waiting for the canine to arrive and walk around the

vehicle was merely a consensual encounter or a seizure under the

4th Amendment requiring reasonable suspicion. However, assuming

arguendo we adopt defendant’s position that the officers seized

defendant, we nevertheless hold that the seizure was supported

by reasonable suspicion.

“The trial court’s conclusions of law . . . are fully

reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539

S.E.2d 625, 631 (2000). “The Fourth Amendment, applicable to

the states through the Fourteenth Amendment, protects the right

of people to be free from unreasonable searches and seizures.

This protection applies to seizures of the person, including

brief investigatory detentions.” State v. Campbell, 188 N.C.

App. 701, 704-05, 656 S.E.2d 721, 724 (2008) (citations and

quotation marks omitted). Such an investigatory detention is

lawful if a police officer possesses “reasonable suspicion,

based on objective facts, that the individual is involved in

criminal activity.” Id. at 705, 656 S.E.2d at 724-25 (citation

and quotation marks omitted). We consider the totality of the

circumstances “through the eyes of a reasonable, cautious

officer, guided by his experience and training at the time he

determined to detain defendant.” State v. Myles, 188 N.C. App.
 -8-
42, 47, 654 S.E.2d 752, 756, writ allowed, 362 N.C. 242, 660

S.E.2d 537 (2008) and aff'd, 362 N.C. 344, 661 S.E.2d 732 (2008)

(citation and quotation marks omitted). The State’s burden to

demonstrate reasonable suspicion is a “less demanding standard

than probable cause and requires a showing considerably less

than preponderance of the evidence.” State v. Styles, 362 N.C.

412, 414, 665 S.E.2d 438, 439 (2008) (citation and quotation

marks omitted). However, the State must show “a minimal level

of objective justification, something more than an

unparticularized suspicion or hunch.” State v. Watkins, 337

N.C. 437, 442, 446 S.E.2d 67, 70 (1994) (citation and quotation

marks omitted).

Here, the trial court’s findings of fact indicate that the

officers found defendant in a high-crime area, officer Jeffries

knew defendant from prior instances involving illicit drug

activity, and defendant was present with other known gang

members and drug dealers one day prior to his arrest in the same

location when officers responded to the scene due to drug

complaints. Moreover, defendant told the officers that he was

waiting in the vehicle to visit people in the apartment complex,

even though defendant was asleep in the vehicle when the

officers initially arrived, and the officers did not see any
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individual exit the apartments to approach defendant at any

point. Finally, defendant’s use of a vehicle registered in

another female’s name was significant because officer Schooley

testified that based on her training and experience, males

involved in illegal drug activity frequently use vehicles titled

in other people’s names “whether it’s their girlfriend or wife .

. . to avoid detection” by law enforcement.

The officers properly considered these factors in totality

to determine the presence of reasonable suspicion. See State v.

Garcia, 197 N.C. App. 522, 529, 677 S.E.2d 555, 559 (2009)

(stating that the defendant’s presence in a high-crime area is a

factor relevant in determining reasonable suspicion); see also

State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522

(1995) (holding that officers had reasonable suspicion to detain

the defendant for drugs, in part, because they knew the

defendant had previously been arrested for similar crimes in the

past); State v. McClendon, 350 N.C. 630, 637, 517 S.E.2d 128,

133 (1999) (asserting that the defendant’s responses to an

officer’s questions may contribute to reasonable suspicion).

Thus, the trial court did not err in determining that the

officers had reasonable suspicion to seize defendant while
 -10-
waiting for the canine unit to arrive and walk around the

vehicle.

III. Conclusion

In sum, we affirm the trial court’s order denying

defendant’s motion to suppress because the trial court’s

findings of fact are based on competent evidence, and the

findings support the trial court’s legal conclusion that the

officers possessed reasonable suspicion to seize defendant while

waiting for the canine unit to arrive and walk around the

vehicle.

Affirmed.

Judges CALABRIA and STEPHENS concur.

Report per Rule 30(e).