Criminal Practice – Motion to Suppress – Probable Cause

Material conflicts remained in the evidence as to whether the officers observed Defendant engage in suspicious activity, the basis for the search of Defendant’s person, and whether the K-9 positively alerted on Defendant’s vehicle for the presence of drugs.

We vacated judgment against Defendant and set aside the plea agreement in its entirety. We remanded to the trial court for new proceedings on Defendant’s motion to suppress.

Defendant appealed from the trial court’s order denying his motion to suppress and from a judgment after Defendant pleaded guilty to Possession of Drug Paraphernalia, Possession of Methamphetamine, and Carrying a Concealed Handgun. The dispositive issue on appeal was whether the trial court’s written Findings of Fact and Conclusions of Law support its denial of Defendant’s motion to suppress.

Among other things, Finding of Fact 19 is a summary of Rowan County Sheriff’s Office Detective Gerald Gordy’s testimony from the suppression hearing stating he considered the activity of the SUV to be suspicious. Defendant contended Finding of Fact 19 is more properly characterized as a Conclusion of Law since it refers to a determination of probable cause and alternatively argues it is unsupported by competent evidence. Defendant argued the activity the Finding describes—traveling in a parking lot with another vehicle at night—is innocent and cannot support a probable cause determination. It is unclear whether, by including this recitation of Detective Gordy’s testimony in Finding 19, the trial court is concluding Detective Gordy’s observations gave him probable cause, so that we should review this Conclusion de novo, or is merely finding Detective Gordy personally believed he had probable cause. Alternatively, Finding 19 might be a Finding that the alleged suspicious activity was in fact observed by Detective Gordy, or that the alleged suspicious activity was in fact indicative of drug activity. We cannot choose between these competing inferences. The same issue arises when the written order only “describe[s] the testimony and evidence received at the hearing.” Both Detectives Gordy and Kelvin Peoples testified the observations described in Finding 19 informed their belief Defendant was engaged in a drug transaction. Detective Peoples testified this same belief informed his reasons for searching Defendant’s person. Finding of Fact 19 is a recitation of Detective Gordy’s testimony that he believed the activity to be suspicious, but failed to resolve whether his observations were accurate, indicative of drug activity, or actually and properly served as the basis of a probable cause determination.

Next, Findings 26 and 27 failed to resolve another material conflict: whether the officers searched Defendant’s person based on reasonable concerns about officer safety or in order to find drugs. Defendant argued the search was conducted not to locate weapons, but because it was Detective Peoples’ routine practice; Defendant further argued there is no evidence that Detective Peoples frisked Defendant before reaching into his pockets, and even if he had, there was no basis to justify a Terry frisk because the officers could not have justifiably believed Defendant was armed. Findings 26 and 27 recite testimony that might support a finding that the search of Defendant’s person was based on Detective Peoples’ reasonable belief Defendant was armed and dangerous. Other testimony at the suppression hearing, however, showed Defendant was searched immediately and only after the K-9 alerted. Thus, a material conflict in the evidence remains as to whether the basis of the search was a Terry frisk for weapons or a response to the alleged K-9 alert on the vehicle. Testimony cannot substitute for a finding in this instance.

Finally, Defendant challenged the trial court’s Conclusion of Law 2 as applying the wrong legal standard and unsupported by the Findings. The standard for assessing the legality of the search of Defendant’s vehicle is whether the officers had probable cause. The trial court, however, concluded only that the officers had “reason” to conduct the search. Further, even if the trial court properly concluded the K-9 sniff gave probable cause to search the vehicle, it could not have given probable cause to search Defendant’s person. Thus, where the trial court did not apply the probable cause standard for either search, the trial court’s denial of the motion to suppress was entered upon an improper legal standard. Consequently, we vacated the trial court’s Order denying the motion to suppress and the judgment subsequently entered and remanded this matter to the trial court for new findings and application of the correct legal standard to the evidence. Further, because the judgment was imposed as part of a plea agreement, the plea agreement must be set aside in its entirety, and the parties may either agree to a new plea agreement or the matter should proceed to trial on the original charges in the indictments.

Vacated and remanded.

State of North Carolina v. Curtis Lee Stollings (Lawyers’ Weekly No. 011-308-24, 16 pp.) (Tobias Hampson, J.) Appealed from Rowan County Superior Court (Joseph N. Crosswhite, J.) Attorney General Joshua H. Stein, by Special Deputy Attorney General Martin T. McCracken, for the State; Cynthia Everson for Defendant-Appellant. North Carolina Court of Appeals