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State v. Fuller

Court of Appeals of North Carolina

December 19, 2017

STATE OF NORTH CAROLINA
v.
KENNETH ROBERT FULLER

          Heard in the Court of Appeals 29 November 2017.

         Appeal by defendant from judgment entered 17 November 2016 by Judge Linwood O. Foust in Mecklenburg County No. 14 CRS 249281 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Kristine M. Ricketts, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas C. Woomer-Deters, for defendant-appellant.

          TYSON, Judge.

         Kenneth Robert Fuller ("Defendant") appeals from a judgment imposing a suspended sentence of 6 to 17 months imprisonment, with 18 months supervised probation, after a jury found him guilty of possession of cocaine. On appeal, Defendant challenges the denial of his motion to suppress evidence of cocaine, which was seized after a search of his person was conducted, following his arrest for driving with a revoked license. We affirm the trial court's denial and find no error.

         I. Background

         On 19 December 2014, Charlotte-Mecklenburg Police Officer Wayne Goode ("Officer Goode") was on duty in the area of Dalton Street and Tryon Street in Charlotte. Officer Goode and other officers conducted surveillance of Defendant as he sat in the driver's seat of a gold-colored Mercedes-Benz sedan, parked at a gas station located on North Tryon Street. Officer Goode was familiar with Defendant from previous investigations, and suspected Defendant was selling narcotics from that gas station parking lot. Officer Goode also knew Defendant's driver's license was suspended.

         During the surveillance operation, Officer Goode observed Defendant driving away from the gas station. Officer Goode followed Defendant in order to conduct a traffic stop. While following Defendant, Officer Goode observed Defendant's Mercedes turn right off of Tryon Street onto Ashby Street and then make a quick turn into a parking lot. After the Mercedes parked in the parking lot, Officer Goode observed Defendant exit the driver's door and walk to the trunk of the Mercedes.

         Officer Goode parked behind Defendant's vehicle, approached Defendant and requested his identification. After Defendant obtained his identification from inside the Mercedes, Officer Goode arrested Defendant for driving with a revoked license. Officer Goode handcuffed Defendant and placed him inside his police cruiser.

         At the suppression hearing, Officer Goode testified, and the trial court found, after Officer Goode had placed Defendant into the police cruiser, he asked Defendant for consent to search the Mercedes, and that Defendant had consented. Defendant denied he consented to the search of his Mercedes.

         Officer Goode and other officers conducted an initial search of the Mercedes and did not locate any contraband or narcotics. A few minutes after this initial search, a K-9 dog unit arrived to conduct a sniff search of the vehicle.

         While sniffing the Mercedes, the dog "hit" on the front right fender and driver's seat cushion. Officers then conducted a more thorough search of the vehicle, but did not discover any contraband or narcotics. Officer Goode concluded that because the K-9 had "hit" on the driver's seat and no narcotics were found in the Mercedes, the narcotics were hidden on Defendant's person. Officer Goode informed his sergeant that he wanted to conduct a search of Defendant's person.

         Defendant was transported to the Charlotte-Mecklenburg Police Department's Metro Division Office and placed into a private interview room. Officer Goode conducted the search and another officer assisted by holding one of Defendant's handcuffed arms. Officer Goode did not seek Defendant's consent or a warrant to conduct the search.

         Officer Goode searched Defendant by first removing and inspecting Defendant's belt and the contents of his front pants pockets. Officer Goode observed a hidden area next to the fly of Defendant's pants. Officer Goode then inspected Defendant's back pockets and the contents thereof. Officer Goode continued his search by lowering Defendant's pants and long johns to his knee area. Officer Goode pulled out, but did not pull down, Defendant's underwear and observed Defendant's genitals and buttocks.

         Officer Goode pulled up Defendant's long johns and then inspected the hidden area on the fly of his pants. Officer Goode retrieved a bag from the hidden area near the fly of Defendant's pants. This bag was later determined to contain .83 grams of cocaine and weigh 1.7 grams. Defendant was indicted for possession with intent to sell or distribute a controlled substance and for having obtained habitual felon status.

         At a pretrial hearing, Defendant made an oral motion to suppress the evidence of the cocaine obtained from the strip search conducted by Officer Goode. The trial court denied Defendant's motion to suppress in an order filed 30 October 2015.

         The case came to trial on 7 November 2016. Defendant moved to dismiss the possession with intent to sell or deliver cocaine charge for insufficiency of the evidence, which motion the court granted. The lesser-included charge of possession of cocaine was submitted to the jury. On 14 November 2016, the jury returned verdicts of guilty of possession of cocaine and of Defendant having obtained habitual felon status. Upon the motion of Defendant, the trial court set aside the jury's verdict on obtaining habitual felon status.

         On 17 November 2016, the trial court entered judgment and sentenced Defendant to a suspended sentence of 6 to 17 months imprisonment, with 18 ...


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