Opinion
No. COA12–1178.
2013-05-21
STATE of North Carolina v. Pedro Ortiz SALGADO, Defendant.
Roy Cooper, Attorney General, by John P. Barkley, Assistant Attorney General, for the State. Irving Joyner for defendant-appellant.
Appeal by defendant from judgments entered 26 April 2011 by Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard in the Court of Appeals 26 February 2013. Roy Cooper, Attorney General, by John P. Barkley, Assistant Attorney General, for the State. Irving Joyner for defendant-appellant.
DAVIS, Judge.
Defendant Pedro Ortiz Salgado (“defendant”) pled guilty to trafficking in cocaine by possession, manufacturing cocaine, and knowingly maintaining a dwelling house for the purpose of keeping or selling a controlled substance after the trial court denied his motion to suppress. Defendant's guilty plea specifically reserved his right to appeal the trial court's order denying his motion to suppress evidence discovered by law enforcement officers during a search of his residence, and he now appeals that ruling. After careful review, we affirm.
Factual Background
Defendant was indicted and charged on 10 August 2010 with trafficking cocaine by possession, manufacturing cocaine, and knowingly maintaining a dwelling house for the purpose of keeping or selling a controlled substance. On 18 January 2011, defendant filed a motion to suppress evidence obtained during the search of his residence. Defendant's motion and supporting affidavit alleged that (1) defendant did not consent to the search of his residence by Detective Christopher Creech (“Detective Creech”) of the Wake County Sheriff's Office; and (2) any evidence seized during the execution of the subsequent search warrant should be suppressed as “fruit of the poisonous tree.”
Defendant's motion to suppress was heard and denied on 26 April 2011. In its order denying the motion, the trial court made the following findings of fact: On or about 19 June 2010, Detective Creech responded to 4410 Whitfield Road in reference to a “shots fired” call made by an anonymous complainant at approximately 9:32 a.m. on 19 June 2010. The caller described the singlewide trailer located at the 4410 Whitfield Road address and stated that a woman wearing a pink top was at that location.
When Detective Creech arrived at the address, he parked his patrol car approximately 30 to 40 yards away from the trailer. The emergency equipment on the vehicle was not activated. Detective Creech was in his police uniform and approached the trailer with his shotgun pointed towards the ground in the “low ready” position.
He did not hear any gunfire or see anyone outside the trailer but did notice that very loud music seemed to be coming from inside the residence. Detective Creech also noticed “the distinctive odor of a weapon that had recently been fired” as he approached the trailer. He testified that in his 15 years of law enforcement experience, he had smelled the odor of recently fired weapons on numerous occasions.
Detective Creech knocked repeatedly on the front door of the trailer, and a man (later identified as defendant) responded in English: “Who is it?” Detective Creech identified himself as a law enforcement officer, and defendant replied: “Hold on a minute.” After one or two minutes had passed, Detective Creech became concerned about the possibility that someone could have been wounded or killed based on the nature of the call and the odor of recent gunfire. He checked the rear door of the trailer based on his desire to prevent anyone from fleeing.
When he returned to the front porch, defendant answered the door. Detective Creech ordered defendant to step outside and raise his arms. Detective Creech patted down defendant to make sure he was not armed. No contraband or weapons were found on defendant's person. While conducting the pat-down search, however, Detective Creech noticed “a white, powdery substance” under defendant's nose that “appeared consistent with powder cocaine.”
When the pat-down search was completed, Detective Creech allowed defendant to lower his arms. Defendant was not physically detained or placed in handcuffs at that time. The shotgun Detective Creech carried was never pointed at defendant. Detective Creech then asked defendant if he could enter the trailer, and defendant responded by saying “yes” in English. Detective Creech testified that throughout this incident defendant appeared to understand short questions and responses in English but that “longer phrases were not as clear.”
Once inside, Detective Creech saw on the kitchen table a black pistol and a rolled up dollar bill with a white powdery substance on the outside of the bill. He also noticed white droppings on the table area that appeared to be cocaine. He then detained defendant by placing him in handcuffs and seating him in a plastic chair at the kitchen table. A woman in a pink top was also in the trailer, and Detective Creech asked her to sit at the table as well. Defendant began to move around in the chair, and a plastic bag containing a white substance fell onto the floor from the area of defendant's buttocks.
Detective Creech placed defendant under arrest and performed a protective sweep of the home to determine whether additional suspects were present. A search warrant was then obtained and executed. Law enforcement officers recovered items that were consistent with the manufacturing of cocaine including a kilo press, a hydraulic jack, and a shrink wrap machine.
Based on these findings of fact, the trial court concluded that: (1) Detective Creech's pat-down search of defendant was a Terry frisk supported by reasonable suspicion; (2) Detective Creech's testimony that defendant gave voluntary consent to his request for permission to enter the trailer was credible; (3) once he was lawfully inside the residence, Detective Creech's observation of contraband in plain view gave him reasonable suspicion to physically detain defendant; and (4) Detective Creech possessed probable cause to place defendant under arrest for trafficking cocaine.
Following the denial of his motion to suppress, defendant pled guilty to trafficking cocaine by possession, manufacturing cocaine, and knowingly maintaining a dwelling house for the purpose of keeping or selling a controlled substance. Defendant was sentenced to an active term of 35 to 42 months imprisonment and gave notice of appeal in open court.
Analysis
Defendant's sole argument on appeal is that the trial court erred in denying his motion to suppress evidence obtained during the search of his residence. A defendant “is entitled to mandatory appellate review of an order denying a motion to suppress when his conviction judgment was entered pursuant to a guilty plea” if he expressly preserves the right to appeal. State v. Banner, 207 N.C.App. 729, 731, 701 S.E.2d 355, 357 (2010). Here, defendant specifically reserved his right to appeal when he entered his guilty plea, and thus, his appeal is properly before us.
Our review of a trial court's ruling on 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). Additionally, any findings of fact that are not challenged by a defendant on appeal are “deemed to be supported by competent evidence and are binding on appeal.” State v. Roberson, 163 N.C.App. 129, 132, 592 S.E.2d 733, 735–36 (2004). “The conclusions of law made from the findings of fact are reviewable de novo.” State v. Brown, 199 N.C.App. 253, 256, 681 S.E.2d 460, 463 (2009).
I. Findings of Fact
With regard to the trial court's findings of fact in the order denying his motion to suppress, defendant only challenges findings of fact 5, 7, and 10. Thus, findings of fact 1–4, 6, 8–9, and 11–20 are binding on appeal. Roberson, 163 N.C.App. at 132, 592 S.E.2d at 735–36.
Defendant argues that the trial court misrepresented Detective Creech's testimony in findings 5 and 7 by stating that: (a) Detective Creech smelled “the distinctive odor of a weapon that had recently been fired”; (b) through his 15 years of experience in law enforcement, Detective Creech “smelled the odor of recently fired weapons on numerous occasions”; and (c) Detective Creech was concerned “based on the nature of the call and his observation of the odor of recent gunfire.” (Emphasis added.)
Defendant asserts that the trial court's use of the words “recent” and “recently” in these findings is not supported by competent evidence because Detective Creech did not specifically describe the odor as one of recent gunfire. However, defendant's argument is not persuasive.
Detective Creech testified at the suppression hearing that he could “smell the odor of or the primer of a weapon that had been previously fired in [his] opinion” and that he recognized the smell because law enforcement officers are required to qualify at the firing range each year and “that odor is always present.” The trial court was permitted to make the reasonable inference from Detective Creech's testimony that the odor Detective Creech smelled was of recent gunfire as it had not yet dissipated, and he was still able to detect it in the open air. Thus, we conclude that findings of fact 5 and 7 were supported by Detective Creech's testimony.
Defendant also argues that finding of fact 10 misstates Detective Creech's testimony. At the suppression hearing, Detective Creech testified that he “noticed a white powdery substance just under [defendant's] nose” and that through his training and experience, it was his opinion that the substance “could possibly be powder cocaine.” In finding of fact 10, the trial court found that in Detective Creech's opinion, “based on his training and experience, the substance appeared consistent with powder cocaine.” We believe that the trial court's finding that the substance “appeared consistent with powder cocaine” is supported by Detective Creech's testimony that the substance “could possibly be powder cocaine.”
Finally, defendant states that it is “instructive” that the information regarding the gunfire odor and the powdery substance on defendant's nose was not included in the police report or the search warrant application affidavit. In making this observation, defendant is presumably attempting to cast doubt on the credibility of Detective Creech's testimony. However, “[g]reat deference is accorded the trial judge because the trial court is ‘entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, [and] find the facts....' “ State v. Hagin, 203 N.C.App. 561, 563, 691 S.E.2d 429, 431 (2010) (quoting Cooke, 306 N.C. at 134, 291 S.E.2d at 620). Here, the trial court heard Detective Creech's testimony, including defense counsel's cross-examination of him. Detective Creech was the only witness, and defendant did not present any evidence. Detective Creech testified at the suppression hearing that he smelled the odor of gunfire and observed a powdery white substance on defendant's nose. It is not the role of this Court to second-guess the trial court's determination regarding the credibility of a witness' testimony. Thus, we hold that the trial court's findings of fact were supported by competent evidence and are binding on appeal. Cooke, 306 N.C. at 134, 291 S.E.2d at 619.
II. Conclusions of Law
Having established that findings of fact 5, 7, and 10 were supported by competent evidence, we must now determine whether the trial court's findings of fact support its conclusions of law.
A. Detention and Frisk
Defendant argues that the trial court erred in finding that reasonable suspicion existed to detain or pat down defendant. Under Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (1968), a law enforcement officer may conduct a brief investigatory stop or detention of an individual if the officer has reasonable suspicion based on “specific and articulable facts” that the individual is engaged in criminal activity. Id. at 21, 20 L.Ed.2d at 906. The officer may also conduct a pat down of the individual if the officer believes, based on his experience, that the person may be armed and dangerous. Id. at 30–31, 20 L.Ed.2d at 911. “Ultimately, the determination of whether an officer was justified in conducting a pat-down frisk as a matter of self-protection hinges on the totality of the circumstances.” State v. King, 206 N.C.App. 585, 589, 696 S.E.2d 913, 915 (2010).
Here, the trial court determined that Detective Creech had reasonable suspicion to detain defendant and conduct a Terry frisk for officer safety based on the following circumstances:
a) He responded to the trailer at 4410 Whitfield Road for a “shots fired” call that also described a female in a pink top being present; and
b) Upon arriving, he heard no shots but did hear loud music coming from the trailer there; and
c) He smelled the distinctive smell of recent gunfire around the residence; and
d) Upon knocking on the door, a male voice verbally answered his knocks but no one came to the door for a period of one to two minutes; and
e) The delay caused Creech to be concerned for the safety of possible victim(s) in the residence; and
f) When Defendant came to the door, he appeared to have a white powdery substance consistent with cocaine under his nose.
Defendant argues that Detective Creech's detention and pat-down search of him was unlawful and based on no more than an “inchoate and unparticularized suspicion or hunch.” We disagree.
Defendant relies primarily on Florida v. J.L., 529 U.S. 266, 146 L.Ed.2d 254 (2000). In J.L., the United States Supreme Court determined that an anonymous tip describing the defendant's clothing and asserting that he was carrying a weapon did not, by itself, constitute reasonable suspicion to conduct an investigatory stop. Id. at 270, 146 L.Ed.2d at 260. The Court held that only when a tip is “suitably corroborated” and “exhibits ‘sufficient indicia of reliability’ “ may it form the basis for reasonable suspicion to conduct a stop and frisk. Id. (quoting Alabama v.. White, 496 U.S. 325, 327, 110 L.Ed.2d 301, 306 (1990)).
In the present case, Detective Creech's detention and pat-down search of defendant was not based solely on the anonymous call. Rather, Detective Creech testified that once he arrived at the address and saw the trailer described by the caller, he smelled the odor of a weapon that had been previously fired. The presence of this odor corroborated the caller's tip that shots had been fired near the trailer.
Detective Creech knocked repeatedly on the front door but—despite the sound of loud music emanating from the trailer that suggested the trailer was occupied—one to two minutes elapsed before defendant opened the door. Under the circumstances, it was not improper for Detective Creech to ask defendant to step outside on the porch and to pat him down for officer safety. When he was certain defendant did not have a weapon on his person, Detective Creech allowed defendant to lower his arms.
Law enforcement officers are “entitled to go to a door to inquire about a matter” and entry onto private property “for the purpose of a general inquiry or interview is proper.” State v. Prevette, 43 N.C.App. 450, 455, 259 S.E.2d 595, 599–600 (1979). Thus, Detective Creech had the right to approach the trailer and inquire about the “shots fired” call. As he neared the trailer, the gunfire odor he detected corroborated the tip that shots had been fired near the trailer. Defendant's conduct in response to Detective Creech's repeated knocking on the door (i.e. telling him to wait and not opening the door for one or more minutes)—although not in and of itself unlawful—also factors into the analysis of reasonable suspicion. See State v. Miller, 198 N.C.App. 196, 199, 678 S.E.2d 802, 805 (2009) (“[A]lthough nervous behavior, standing alone, is not sufficient to establish reasonable suspicion, its presence with other facts may be used to establish reasonable suspicion. In addition, we have held that evasive actions taken by the defendant may be relevant when examining whether reasonable suspicion was present at the time of the stop.”) (internal citations omitted).
An officer “need not be absolutely certain the individual is armed” to conduct a frisk for weapons. Terry, 392 U.S. at 27, 20 L.Ed.2d at 909. Rather, our Supreme Court, quoting Terry, has held that the test for reasonable suspicion is “ ‘whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger[.]’ “ State v. Peck, 305 N.C. 734, 742, 291 S.E.2d 637, 642 (1982) (quoting Terry, 392 U.S. at 27, 20 L.Ed.2d at 909). Under these circumstances, we cannot say that Detective Creech lacked reasonable suspicion to believe his safety could be in danger.
B. Consent
Defendant's final argument is that the trial court erred in finding that he voluntarily consented to Detective Creech's entry into the trailer. However, defendant does not challenge findings of fact 12 and 13 of the trial court's order which state the following:
12. Creech asked Defendant in English if Creech could enter the trailer and Defendant responded by saying, “Yes” in English, and
13. In their conversation, Creech said it appeared Defendant understood short questions and responses in English, but that longer phrases were not as clear to Defendant. Creech asked Defendant in English if anyone else was in the trailer and Defendant responded in English saying, “My wife[.]”
These findings are presumed to be supported by competent evidence and are binding on appeal. Roberson, 163 N.C.App. at 132, 592 S.E.2d at 735–36. Thus, the only question for this Court is whether the trial court's conclusion of law that defendant “gave voluntary consent to enter the residence” is supported by its findings of fact.
It is well established that consent is a recognized exception to the general warrant requirement contained in the Fourth Amendment and Article I, § 20 of the North Carolina Constitution. State v. Jones, 96 N.C.App. 389, 397, 386 S.E.2d 217, 222 (1989). “For the warrantless, consensual search to pass muster under the Fourth Amendment, consent must be given and the consent must be voluntary.” State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). “Voluntariness is a question of fact to be determined from all the circumstances, and while the subject's knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 248–49, 36 L.Ed.2d 854, 875 (1973).
In State v. Stover, 200 N.C.App. 506, 685 S.E.2d 127 (2009), this Court found that the defendant gave voluntary consent to a search of his residence after officers kicked down the door of his home and an officer had initially aimed his gun at the defendant when he thought the defendant was about to flee. The officers then sat the defendant down in his living room and did not place him in handcuffs. Id. at 514, 685 S.E.2d at 133. They asked for his consent to search the home after completing a protective sweep. This Court determined that “[a]lthough these facts are not completely one-sided as to the issue of voluntariness, we hold that the evidence is sufficient to support the trial court's findings of fact and its determination that defendant's consent was voluntary.” Id.
The circumstances in the present case are significantly less coercive than those in Stover. Detective Creech never (1) attempted to enter the trailer by force; or (2) aimed his weapon at defendant. Additionally, Detective Creech's testimony supports the trial court's finding that defendant was able to understand and communicate with him. We are, therefore, satisfied that the trial court's conclusion that “[d]efendant knowingly and voluntarily granted Creech consent to enter [d]efendant's residence” is supported by findings of fact 12 and 13.
Defendant then contends that even if he consented to Detective Creech's entry into the trailer, he did not consent to a search of the trailer once Detective Creech was inside. This argument is also without merit. Detective Creech testified at the hearing that shortly after entering the trailer, he saw a black pistol, a rolled-up dollar bill with white powder on it, and “white droppings” on the kitchen table that were “consistent with what was on defendant's nostrils.” This testimony was noted in the trial court's finding of fact 14, and that finding of fact supports the trial court's conclusion that “Creech observed contraband in plain view that gave him further reasonable suspicion to physically detain defendant.”
The plain view doctrine allows law enforcement officers to seize contraband or evidence when (1) the officer is in an area in which he has a legal right to be present at the time the contraband or evidence is discovered; (2) the evidence or contraband is discovered inadvertently; and (3) it is immediately apparent that the items or objects are contraband or evidence of a crime. State v. Graves, 135 N.C. App 216, 219, 519 S.E.2d 770, 772 (1999). Here, Detective Creech's testimony and the trial court's findings of fact based on that testimony indicate that each of these three requirements was satisfied.
Detective Creech obtained valid consent from defendant to enter the trailer. Once inside, Detective Creech noticed the contraband by merely turning his head and looking at the kitchen table. He testified that based on his training and experience, he immediately identified the substance on the table as what he “believe[d] to be cocaine[.]” Detective Creech did not actually seize these items at that time—they were later seized pursuant to a search warrant—but the items' presence in Detective Creech's plain view gave him sufficient cause to handcuff and detain defendant.
Because the pat-down search, detention, and entry into the trailer were lawful, any evidence obtained from defendant's residence, including (1) the cocaine found on the kitchen table; (2) the cocaine that dropped onto the floor while defendant was seated and handcuffed; and (3) the kilo press, hydraulic jack, and shrink wrap machine recovered during the execution of the search warrant, is not “fruit of the poisonous tree.” The trial court, therefore, properly denied 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 HUNTER and McCULLOUGH concur.
Report per Rule 30(e).