State v. Dickenson

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

A p p e l l a t e P r o c e d u r e .

NO. COA13-1106

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

STATE OF NORTH CAROLINA

v. Mecklenburg County

Nos. 10 CRS 200906–07

JOSEPH ASHLEY DICKENSON, JR.,

Defendant.

Appeal by defendant from judgment entered 13 November 2012

by Judge Linwood O. Foust in Mecklenburg County Superior Court.

Heard in the Court of Appeals 20 February 2014.

Roy Cooper, Attorney General, by David Shick, Associate

Attorney General, for the State.

Staples Hughes, Appellate Defender, by Mary Cook, Assistant

Appellant Defender, for defendant–appellant.

DAVIS, Judge.

Defendant Joseph Ashley Dickenson, Jr. (“Defendant”)

appeals from a judgment entered upon a guilty plea to one count

of Level One trafficking in marijuana in violation of N.C. Gen.

Stat. § 90-95(h)(1)(a). On appeal, he argues that the trial

court erred in denying his motion to suppress evidence obtained

pursuant to a stop of his vehicle by law enforcement officers.

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After careful review, we affirm the trial court’s denial of the

motion to suppress.

Factual Background

The evidence offered by the State at trial tended to show

the following. On 6 January 2010, at around 8:00 p.m., Officer

Nathan Watkins (“Officer Watkins”) and Officer Michael Sullivan

(“Officer Sullivan”) with the Charlotte–Mecklenburg Police

Department (“CMPD”) were conducting surveillance of a residence

in response to a complaint from a person who had observed

“possible illegal drug transactions” involving a number of

people and parcels moving in and out of the residence on a

regular basis. Officer Watkins was surveilling the residence

from a distance within 100 yards of the site, while Officer

Sullivan conducted his surveillance of the residence in plain

clothes from an unmarked vehicle.

Both officers observed a man who was later identified as

Defendant remove two duffle bags or suitcases from the residence

and place one of the bags into the trunk of a white, four-door

Acura Legend automobile and the other into the back seat of the

same vehicle. The officers then both observed Defendant drive

away from the residence.

Officer Sullivan began to follow Defendant’s car in his

unmarked vehicle as Defendant drove onto I-485. As Officer

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Sullivan followed Defendant, he communicated by radio to other

officers a description of Defendant’s vehicle, the license plate

number, and the direction in which Defendant was travelling.

Officer Sullivan also communicated to the other officers his

observation that Defendant was not wearing a seatbelt, which he

observed as Defendant was approaching the exit ramp to merge

onto I-485.

Officer Michael Griffin (“Officer Griffin”) testified that

as he and a fellow officer were riding together in their patrol

car, he heard Officer Sullivan communicate over the radio that

Defendant was operating a white, four-door 1992 Acura Legend

with Tag Number YYM9580, that Defendant was travelling at a

particular location along I-485, and that Officer Sullivan had

personally observed that Defendant was operating his vehicle

while not wearing his seatbelt. This information was also heard

over the radio by Officer Jonathan Tobbe (“Officer Tobbe”), who

was communicating with several officers by both telephone and

radio during the surveillance of the residence and who also

testified that Officer Sullivan had communicated over the radio

his observation that Defendant was not wearing his seatbelt.

As a result of the information communicated to them by

Officer Sullivan, Officer Griffin and his partner located and

followed Defendant’s vehicle on I-485. Officer Griffin

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continued to follow Defendant as Defendant exited I-485. While

stopped directly behind Defendant’s vehicle at a red light,

Officer Griffin personally observed that Defendant was not

wearing his seatbelt and that the belt “was actually just

hanging.” Officer Griffin then initiated a traffic stop of

Defendant’s vehicle. Upon approaching the vehicle, Officer

Griffin noticed an odor of marijuana, which he said “was very

strong, it made [his] eyes water, it was strong.” After

determining that Defendant was driving with a “canceled”

driver’s license, Officer Griffin placed Defendant under arrest

and conducted a search of Defendant’s vehicle, in which he found

the first of the two cases that Defendant had placed in the

vehicle, containing what Officer Griffin estimated to be thirty

pounds of marijuana.

Defendant was charged in bills of indictment with one count

each of trafficking by possessing and trafficking by

transporting 50 pounds or more but less than 2,000 pounds of

marijuana, a Schedule VI controlled substance under N.C. Gen.

Stat. § 90-94(1) — both Level Two trafficking offenses in

violation of N.C. Gen. Stat. § 90-95(h)(1)(b) — and with one

count of possession with intent to sell or deliver more than one

and one-half ounces of marijuana in violation of N.C. Gen. Stat.

§ 90-95(a)(1).

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Defendant filed in Mecklenburg County Superior Court a

motion to suppress the “large sum of money” found in his pocket,

the suitcases found in the backseat and trunk of his vehicle

that were alleged to contain marijuana, and the statements

Defendant made to a detective in the VICE and Narcotics Unit of

the CMPD in which he “allegedly admitted to possessing the

alleged marijuana.” In his motion, Defendant argued that the

officers who initiated the traffic stop had no articulable facts

upon which they could have relied in order to establish a proper

basis for stopping Defendant’s vehicle. After conducting a

hearing, Judge Hugh B. Lewis entered an order denying

Defendant’s motion.

Following the denial of his motion to suppress, Defendant

pled guilty to one count of Level One trafficking in marijuana

in violation of N.C. Gen. Stat. § 90-95(h)(1)(a), and the State

dismissed the remaining charges. In his plea agreement,

Defendant expressly reserved the right to appeal the denial of

his motion to suppress. On 13 November 2012, the trial court

entered its judgment and Defendant was sentenced to a term of 25

to 30 months imprisonment. Defendant gave timely written notice

of appeal.

Analysis

Defendant argues on appeal that the trial court erred by

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denying his motion to suppress because the officers who

initiated the stop of his vehicle did not have reasonable,

articulable suspicion to justify an investigatory traffic stop.

Alternatively, Defendant argues that the trial court erred by

failing to make findings of fact that “resolve the conflicts” in

the evidence presented at the hearing on the motion.

“In North Carolina, a defendant’s right to pursue an appeal

from a criminal conviction is a creation of state statute.”

State v. McBride, 120 N.C. App. 623, 624, 463 S.E.2d 403, 404

(1995), aff’d per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996).

Under N.C. Gen. Stat. § 15A-1444(e), “a defendant who has

entered a plea of guilty is not entitled to appellate review as

a matter of right, unless the defendant is appealing sentencing

issues or the denial of a motion to suppress, or the defendant

has made an unsuccessful motion to withdraw the guilty plea.”

State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870

(emphasis added), disc. review denied, 356 N.C. 442, 573 S.E.2d

163 (2002); see also N.C. Gen. Stat. § 15A-979(b) (2013) (“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.”). Nonetheless, “a

defendant bears the burden of notifying the [S]tate and the

trial court during plea negotiations of the intention to appeal

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the denial of a motion to suppress, or the right to do so is

waived after a plea of guilty.” McBride, 120 N.C. App. at 625,

463 S.E.2d at 404. Because Defendant specifically reserved his

right to appeal when he entered his guilty plea, his appeal is

properly before us.

Our review of a trial court’s denial of a 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. Cooke, 306 N.C.

132, 134, 291 S.E.2d 618, 619 (1982). An appellate court

“accords great deference” to the trial court in this respect

“because it is entrusted with the duty to hear testimony, weigh

and resolve any conflicts in the evidence, find the facts, and,

then based upon those findings, render a legal decision, in the

first instance, as to whether or not a constitutional violation

of some kind has occurred.” Id. at 134, 291 S.E.2d at 619–20.

Unchallenged findings of fact “are presumed to be supported by

competent evidence and are binding on appeal.” State v. Baker,

312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984) (internal quotation

marks omitted). In the present case, Defendant does not argue

that the court’s findings of fact fail to support its

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conclusions of law. Therefore, we limit our review accordingly.

“[A] traffic stop is constitutional if the officer has a

‘reasonable, articulable suspicion that criminal activity is

afoot.’” State v. Barnard, 362 N.C. 244, 246–47, 658 S.E.2d

643, 645 (quoting Illinois v. Wardlow, 528 U.S. 119, 123,

145 L. Ed. 2d 570, 576 (2000)), cert. denied, 555 U.S. __,

172 L. Ed. 2d 198 (2008). “This Court has determined that the

reasonable suspicion standard requires that ‘[t]he stop . . . be

based on specific and articulable facts, as well as the rational

inferences from those facts, as viewed through the eyes of a

reasonable, cautious officer, guided by his experience and

training.’” Id. at 247, 658 S.E.2d at 645 (alteration and

omission in original) (quoting State v. Watkins, 337 N.C. 437,

441, 446 S.E.2d 67, 70 (1994), appeal after remand, 120 N.C.

App. 804, 463 S.E.2d 802 (1995)). “Reasonable suspicion is a

‘less demanding standard than probable cause and requires a

showing considerably less than preponderance of the evidence.’”

Id. (quoting Wardlow, 528 U.S. at 123, 145 L. Ed. 2d at 575–76).

However, “[i]f the officer making the investigatory stop

(the second officer) does not have the necessary reasonable

suspicion,” State v. Battle, 109 N.C. App. 367, 370, 427 S.E.2d

156, 159 (1993), the stop “may nonetheless be made if the second

officer receives from another officer (the first officer) a

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request to stop the vehicle, and if, at the time the request is

issued, the first officer possessed a reasonable suspicion that

criminal conduct had occurred, was occurring, or was about to

occur.” Id. at 370–71, 427 S.E.2d at 159. Moreover, where

there is “no request from the first officer that the second

officer stop a vehicle, the collective knowledge of both

officers may form the basis for reasonable suspicion by the

second officer, if and to the extent the knowledge possessed by

the first officer is communicated to the second officer.” Id.

at 371, 427 S.E.2d at 159.

Finally, “[i]n North Carolina an officer may stop and issue

a citation to any motorist who he has probable cause to believe

has committed a misdemeanor or infraction.” State v. Hamilton,

125 N.C. App. 396, 400, 481 S.E.2d 98, 100 (internal quotation

marks omitted), appeal dismissed and disc. review denied,

345 N.C. 757, 485 S.E.2d 302 (1997). Because N.C. Gen. Stat.

§ 20-135.2A(a) requires that “each occupant of a motor vehicle

manufactured with seat belts shall have a seatbelt properly

fastened about his or her body at all times when the vehicle is

in forward motion on a street or highway in this State,” N.C.

Gen. Stat. § 20-135.2A(a) (2013), “[a]ny person violating this

statute commits an infraction.” Hamilton, 125 N.C. App. at 400,

481 S.E.2d at 100; see also N.C. Gen. Stat. § 20-135.2A(e).

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In the present case, the trial court made the following

findings of fact:

1. That the above-named Defendant was

stopped on January 06, 2010, at or near

I-485 and University City Blvd. in

Mecklenburg County by Officer MA

Griffin of the CMPD for failure to wear

a seat belt pursuant to N.C. Gen. Stat.

§ 20-135.2(a)(e) and that Officer

Golshani was riding with Officer

Griffin.

2. That prior to stopping the Defendant’s

vehicle, Officer Griffin received

information via radio from CMPD Officer

Sullivan, who indicated that the

Defendant was driving without his seat

belt.

3. That Officer Sullivan was able to

provide Officer Griffin with a

description of the Defendant’s vehicle,

along with a tag number and exact

location.

4. That Officer Griffin was able to locate

the Defendant’s vehicle based on this

information.

5. That Officer Griffin pulled up behind

the Defendant’s vehicle when it was

stopped at a red light and was able to

observe himself that the Defendant was

not wearing his seat belt.

The trial court then made the following conclusions of law:

1. That this matter is before the court on

the Defendant’s Motion to Suppress

based on violation of the Defendant’s

Constitutional Rights under the U.S.

Constitution and the Constitution of

North Carolina[.]

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2. That pursuant to State v[.] Styles,

362 N.C. App[.] 412, 665 S.E.2d[] 438,

reasonable suspicion existed for

Officer Griffin to conduct a traffic

stop on the defendant based on his

observations that he was not wearing a

seat belt as well as the information he

received from Officer Sullivan.

3. That an objective standard, rather than

a subjective standard, must be applied

to determine the reasonableness of

police action related to probable

cause. State v. McClendon, 350 N.C.

630[,] 517 S.E.2d 128.

4. That, therefore, the traffic stop

conducted on [the] vehicle in which the

Defendant was driving did not violate

his Constitutional rights under the

Fourth Amendment proscription against

unreasonable seizures.

Our review of the record reveals that competent evidence

existed to support the trial court’s findings of fact, which

support its conclusions of law. Officer Griffin testified that

prior to initiating the stop of Defendant’s vehicle, he had

personally observed that Defendant was not wearing his seatbelt

and that the belt “was actually just hanging,” both as Defendant

was exiting off of I-485 and when the officer was stopped

directly behind Defendant at the traffic light at the end of the

exit ramp of the interstate. Additionally, Officer Sullivan

testified that he, too, observed that Defendant was driving on

I-485 without wearing his seatbelt, which information he

communicated over the radio to his fellow officers and which

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information was heard by and corroborated through the testimony

of Officers Griffin and Tobbe. Furthermore, Officers Griffin

and Tobbe testified that Officer Sullivan also communicated the

description, license plate, and location of Defendant’s vehicle,

which information enabled Officer Griffin to locate Defendant’s

vehicle as he travelled along I-485.

A careful review of Defendant’s argument on appeal

demonstrates that he does not dispute that the record includes

this evidence or that such evidence supports the court’s

findings of fact. Instead, Defendant challenges the credibility

of this evidence and argues that a video recording taken from

the dashboard-mounted camera in Officer Griffin’s patrol car —

which was introduced by the State at the hearing on Defendant’s

motion to suppress — contradicts the testimony given by the

officers at the hearing. However, as Defendant concedes,

“[w]eighing the credibility of witnesses and resolving conflicts

in their testimony is precisely the role of the superior court

in ruling on a motion to suppress.” State v. Veazey, 201 N.C.

App. 398, 402, 689 S.E.2d 530, 533 (2009), disc. review denied,

363 N.C. 811, 692 S.E.2d 876 (2010).

Nevertheless, Defendant urges this Court to conclude that

the dashboard camera video recording indisputably demonstrates

that the trial court’s findings of fact were not supported by

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competent evidence, relying on Scott v. Harris, 550 U.S. 372,

167 L. Ed. 2d 686 (2007), for support. In Scott, the United

States Supreme Court considered the denial of a motion for

summary judgment that was brought based on an assertion of

qualified immunity. Id. at 376, 167 L. Ed. 2d at 691. While

reviewing whether the lower courts had properly determined that

the movant was not entitled to qualified immunity, the Court

stated that “[w]hen opposing parties tell two different stories,

one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for

summary judgment.” Id. at 380, 167 L. Ed. 2d at 694. The

Supreme Court proceeded to determine that “Respondent’s version

of events [wa]s so utterly discredited by the record that no

reasonable jury could have believed him,” id., and that “[t]he

Court of Appeals should not have relied on such visible fiction;

it should have viewed the facts in the light depicted by the

videotape.” Id. at 380–81, 167 L. Ed. 2d at 694.

Here, Defendant insists that — as in Scott — the video

recording taken from Officer Griffin’s dashboard camera belies

the testimony of both Officer Sullivan and Officer Griffin in

two ways. First, Defendant claims that the video recording

irrefutably shows that it was too dark for the officers to have

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observed that Defendant was not wearing his seatbelt. Second,

Defendant asserts that the transcript of the video recording

shows that Officer Griffin was “‘trying to come up with’ any

reason to stop [Defendant]” and that the seatbelt violation that

served as the basis for the investigatory stop was pretextual.

With respect to Defendant’s second assertion, it has long

been recognized that “it is immaterial to Fourth Amendment

analysis that the officer may have had ulterior motives for the

traffic stop.” Hamilton, 125 N.C. App. at 399, 481 S.E.2d at

100 (internal quotation marks omitted); see also State v.

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

(“[P]olice action related to probable cause should be judged in

objective terms, not subjective terms. Provided objective

circumstances justify the action taken, any ulterior motive of

the officer is immaterial.” (internal quotation marks omitted)).

Therefore, Defendant’s attempts to question the motives

underlying Officer Griffin’s investigatory stop of Defendant’s

vehicle are not relevant to our analysis.

With respect to Defendant’s first assertion, upon careful

review of the video recording in the record before us, we are

not persuaded that this video so irrefutably contradicts the

evidence presented to the trial court so as to have rendered the

officers’ testimony impossible. Rather, the inferior quality of

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the intermittently blurred images from the video recording

precludes us from determining whether the night’s darkness

rendered it impossible for Officers Griffin and Sullivan to see

a swinging, unfastened seatbelt in Defendant’s vehicle either

directly or with the aid of the ambient light from passing cars

on the interstate and at the traffic light. Thus, we conclude

that Scott is factually distinguishable from the present case

because, unlike the video recording in Scott, the video in the

record currently before us did not “so utterly discredit[]” the

testimony of the officers upon which the trial court relied in

making its findings of fact. See Scott, 550 U.S. at 380,

167 L. Ed. 2d at 694; cf. id. at 378–79, 167 L. Ed. 2d at 693

(“[R]eading the lower court’s opinion, one gets the impression

that respondent, rather than fleeing from police, was attempting

to pass his driving test . . . . The videotape tells quite a

different story.”).

Here, the State offered competent evidence that prior to

initiating his investigatory stop of Defendant’s vehicle,

Officer Griffin personally observed that Defendant was not

wearing his seatbelt while operating the vehicle, and that

Officer Sullivan observed and communicated the same to his

fellow officers, including Officer Griffin. Accordingly, we

hold the trial court did not err when it determined that Officer

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Griffin’s investigatory stop of Defendant’s vehicle was based on

reasonable, articulable suspicion.

Defendant next argues that the trial court’s order denying

his motion to suppress fails to contain sufficient findings of

fact because the court’s findings did not address the “material

conflict” in the evidence presented by “the conflicting video

evidence.” However, as discussed above, we are not persuaded

that the video recording from Officer Griffin’s dashboard camera

materially conflicted with the testimony given by the officers

at the hearing. Therefore, because no material conflict in the

evidence exists, we cannot say that the trial court erred in

denying Defendant’s motion to suppress.

Conclusion

For the reasons stated above, we affirm the trial court’s

order denying Defendant’s motion to suppress.

AFFIRMED.

Judges CALABRIA and STROUD concur.

Report per Rule 30(e).