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State v. Fizovic

Court of Appeals of North Carolina

April 7, 2015

STATE OF NORTH CAROLINA,
v.
DARIO FIZOVIC, Defendant

Heard in the Court of Appeals November 6, 2014

As Corrected April 23, 2015.

Page 718

Guilford County, No. 12 CRS 71601.

Attorney General Roy Cooper, by Associate Attorney General Laura Askins, for the State.

Willis Johnson & Nelson PLLC, by Drew Nelson, for defendant-appellant.

GEER, Judge. Judges STEELMAN and STEPHENS concur.

OPINION

Page 719

Appeal by defendant from order entered 22 January 2014 by Judge Susan E. Bray and judgment entered 20 March 2014 by Judge Edgar B. Gregory in Guilford County Superior Court.

GEER, Judge.

Defendant Dario Fizovic appeals from a judgment entered on his Alford plea of guilty to possession of a firearm by a felon. On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence seized from defendant's vehicle after he was stopped for having an open container of alcohol in his vehicle. Defendant first argues that the search amounted to a " search incident to citation" and was invalid pursuant to Knowles v. Iowa, 525 U.S. 113, 142 L.Ed.2d 492, 119 S.Ct. 484 (1998), and State v. Fisher, 141 N.C.App. 448, 539 S.E.2d 677 (2000). However, because defendant was never issued a citation and was in fact arrested for the open container offense, Knowles and Fisher are inapplicable.

Alternatively, defendant argues that the search cannot be justified as a search incident to arrest because at the time of the search, the officer had already obtained sufficient evidence to prosecute the open container offense. Defendant misstates the standard. An officer may conduct a warrantless search of a suspect's vehicle incident to his arrest if he has a reasonable belief that evidence related to the offense of arrest may be found inside the vehicle. The trial court's unchallenged findings of fact (1) that it is common to find alcohol in vehicles of individuals who are stopped for alcohol violations and (2) that the center console in defendant's car was large enough to hold beer cans support the conclusion that the arresting officer had a reasonable belief that evidence related to the open container violation might be found in defendant's vehicle. Accordingly, we hold that the trial court properly concluded that the search was a valid search incident to defendant's arrest, and we affirm.

Facts

The trial court made the following undisputed findings of fact in its order denying defendant's motion to suppress. On 14 March 2012, Officer Billy Wyatt of Lankford Company Police was patrolling the Davie Street Parking Deck in Greensboro, North Carolina. Around 11:50 p.m., Officer Wyatt observed defendant driving a Jeep Grand Cherokee up the ramp in his direction. Officer Wyatt saw a passenger in the front seat and observed defendant raise a can of Modelo beer to his mouth and consume alcohol. He stopped defendant's vehicle and asked defendant for his driver's license. Defendant gave Officer Wyatt a resident alien card. Officer Wyatt asked again for a driver's license. Defendant told Officer ...


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