in the Court of Appeals 4 September 2019.
by Defendant from Judgment entered 26 June 2018 by Judge
Forrest D. Bridges in Mecklenburg County No.17CRS201621-22
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Douglas W. Corkhill, for the State.
Kimberly P. Hoppin for Defendant-Appellant.
Xavier Johnson ("Defendant") appeals his
convictions following guilty pleas to felony cocaine
possession and misdemeanor possession of drug paraphernalia.
Defendant argues the trial court erred in denying a motion to
suppress evidence supporting these convictions because the
police officer who searched Defendant's vehicle (1)
lacked reasonable suspicion to conduct the search and (2)
unlawfully extended the duration of the traffic stop. After
thorough review of the record and applicable law, we hold
that Defendant has failed to demonstrate error.
FACTUAL AND PROCEDURAL BACKGROUND
record and the evidence introduced at the suppression hearing
tend to show the following:
about 12:45 am on 14 January 2017, Officer Elliot Whitley
("Officer Whitley") and Sergeant Visiano of the
Charlotte-Mecklenburg Police Department were traveling on
Central Avenue in Charlotte in a single patrol car. Officer
Whitley described the location as a high-crime area, where he
has been involved in numerous drug and firearm cases.
their patrol, Officer Whitley observed Defendant's black
Dodge Charger. Sergeant Visiano ran a computer database
search of the license plate number and discovered that it was
registered to a different vehicle. Officer Whitley then
initiated a traffic stop of Defendant's vehicle.
Defendant stopped "fairly immediately."
Officer Whitley approached the driver's side of
Defendant's vehicle, he noticed Defendant raising his
hands in the air and holding them outside the window of the
vehicle. Based on his seven years of experience, including
almost five years with particular involvement in drug crimes,
Officer Whitley took notice that Defendant was raising his
hands because "sometimes it can mean [that the person
has] a gun."
Whitley asked Defendant for his license and registration and
stated that he stopped him because his vehicle tag was
registered to an Acura MDX. Officer Whitley also asked
Defendant if he had a firearm; Defendant responded that he
did not. As Defendant was looking for his license and the
vehicle registration, he explained to Officer Whitley that he
had just purchased the vehicle that day. Defendant handed
Officer Whitley his license out of his wallet and then
searched in the center console to retrieve the registration
and the bill of sale. As Defendant was searching in the
console, Officer Whitley noticed him "blading his
body," as if he were "trying to conceal something
that [was] to his right." Although Defendant was
cooperative throughout this process, he appeared "very
nervous . . . like his heart [was] beating out of his chest a
little bit." Defendant eventually provided the
paperwork, including an apparent bill of sale. Officer
Whitley returned to the patrol car to run Defendant's
information through law enforcement databases. Defendant
remained in his vehicle and Sergeant Visiano stood near the
right passenger door during this time.
reviewing Defendant's information on law enforcement
databases, Officer Whitley learned that from 2003 to 2009,
Defendant was charged with violent crimes of robbery with a
dangerous weapon, conspiracy to commit robbery with a
dangerous weapon, assault with a deadly weapon with the
intent to kill, and discharging a weapon into occupied
property. Officer Whitley testified that, of Defendant's
criminal history, he recalled that there were two
convictions, the most recent occurring in 2009. Considering
the totality of the circumstances, including Defendant's
placement of his hands, blading of his body, nervous
behavior, and criminal history, Officer Whitley believed that
Defendant "was armed and dangerous at that point."
Whitley directed Defendant to step out of the vehicle and
stand behind the vehicle on the driver's side. With
Sergeant Visiano and two other officers who had arrived
behind him, Officer Whitley conducted a consensual frisk of
Defendant's person, which did not reveal a weapon.
Officer Whitley then searched the "lungeable areas"
of the vehicle, over the objection of Defendant. Although no
weapon was discovered in the vehicle, Officer Whitley found
cocaine in the center console and placed Defendant under
January 2017, Defendant was charged with felony possession
with the intent to sell or deliver cocaine and misdemeanor
possession of drug paraphernalia. On 25 September 2017,
Defendant was indicted on a charge of felony possession of
filed a motion to suppress the evidence seized as a result of
the search, arguing that Officer Whitley lacked authority to
search his vehicle. A hearing on the motion was held on 26
June 2018. Officer Whitley was the sole witness and the only
other evidence presented was a video of the stop and search
captured by Officer Whitley's audio-visual body camera.
The trial court denied Defendant's motion, and Defendant
then entered guilty pleas to felony possession of cocaine and
misdemeanor possession of drug paraphernalia, reserving the
right to appeal the denial of his motion to suppress. The
trial court entered judgment, sentencing Defendant to 8 to 19
months' imprisonment, but suspended that sentence and
placed Defendant on supervised probation for 24 months.
Standard of Review
reviewing a motion to suppress, the trial court's
findings of fact are conclusive and binding on appeal if
supported by competent evidence." State v.
Fields, 195 N.C.App. 740, 742-43, 673 S.E.2d 765, 767
(2009). Unchallenged findings of fact are presumed to be
supported by competent evidence. State v. Roberson,
163 N.C.App. 129, 132, 592 S.E.2d 733, 735-36 (2004). The
trial court's conclusions of law are reviewed de
novo. Fields, 195 N.C.App. at 743, 673 S.E.2d
the trial court made the following relevant findings of fact:
1. That on January 14, 2017, Officer E. Whitley was licensed,
sworn, and on duty, and was acting as a patrol officer
conducting traffic control near Central Ave. and N. Sharon
Amity Rd. in Charlotte, Mecklenburg County, North Carolina.
2. That based on his training and experience working in that
area for 7 years, the above mentioned area is considered by
Officer Whitley to be a high crime area.
3. That while Officer Whitley observed a black Dodge Charger
on N. Sharon Amity Rd. his partner ran the license plate
through Department of Motor Vehicle (DMV) on that particular
4. That upon searching the vehicle in the DMV database,
officers learned that the license plate displayed on the
black Dodge Charger had been issued to an Acura MDX vehicle.
5. That when the tag appeared to be fictitious, Officer
Whitley initiated a traffic stop to investigate further.
6. That when Officer Whitley initiated the traffic stop, the
driver stopped fairly immediately and pulled into a ...