An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-193
                       NORTH CAROLINA COURT OF APPEALS

                            Filed: 16 September 2014


STATE OF NORTH CAROLINA


      v.                                       Durham County
                                               No. 12 CRS 55506
SHAUN SMITH



      Appeal    by   defendant     from   order      and   judgment    entered    30

August 2013 by Judge Paul C. Ridgeway in Durham County Superior

Court.     Heard in the Court of Appeals 13 August 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Ward Zimmerman, for the State.

      Farber Law      Firm,    P.L.L.C.,     by   Sarah    Jessica     Farber    for
      defendant.


      ELMORE, Judge.


      After Shaun Smith’s (defendant) motion to suppress for lack

of reasonable suspicion was denied by the trial court, he pled

guilty pursuant to Alford on 30 October 2013 to possession with

the   intent    to    manufacture,      sell    or    deliver    a    schedule    VI

controlled substance and maintaining a vehicle for a controlled

substance.      The convictions were consolidated into one judgment
                                    -2-
at sentencing, and defendant received a suspended sentence of 4-

14 months imprisonment with 24 months of supervised probation.

Defendant preserved his right to appellate review of the motion

to suppress pursuant to N.C. Gen. Stat. § 15A-979(b).                     After

careful consideration, we affirm the trial court’s order.

                                    I. Facts

    On 6 June 2012, Officer K.A. Schooley and Officer E.J.

Jeffries    (collectively    “the   officers”)    of    the    Durham    Police

Department    drove   to   the   parking   lot   of    the    Durham    Housing

Authority (DHA) at 131 Commerce Street in Durham (the parking

lot) to serve a warrant on a nearby apartment resident.                     The

officers parked in the parking lot next to a green Honda Accord,

and they noticed defendant asleep in the driver’s seat.                     The

officers walked to the nearby apartment to serve the unrelated

warrant and returned to their patrol car.               At that time, the

officers recognized defendant from his involvement in previous

drug activity and an encounter in the same parking lot a day

prior.     After reviewing the Honda’s title to confirm that it did

not belong to defendant, Officer Schooley “approached the Honda

and knocked on the window.          The [defendant] . . . opened the

door and stepped out.”       She then asked defendant why he was in

the parking lot and whether his vehicle contained narcotics.
                                         -3-
Defendant indicated that he “was waiting to visit someone” and

did not have any narcotics inside the vehicle.                        He also denied

Officer Schooley’s request for a consent search of the vehicle.

At that point, Officer Schooley called for a canine officer, and

the canine officer arrived with the canine approximately ten

minutes    later.        Just   before   the        canine    began     to   sniff    the

vehicle,    Officer      Schooley   asked      defendant       to    stand     with   her

behind the vehicle to create a distance between the canine and

defendant.        The canine then “gave a positive indicat[ion] of

narcotics    in    the    vehicle[,]”     and       the   officers      searched      the

vehicle.     The search yielded 122 grams of marijuana, over $500

cash, an assault rifle, and ammunition.

                                     II. Analysis

a.) Findings of fact
    First, defendant argues that the trial court’s findings of

fact in support of its legal conclusion are not supported by

competent evidence.        We disagree.

    “In reviewing a trial judge’s findings of fact, we are

‘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. Williams, 362 N.C. 628,
                                      -4-
632, 669 S.E.2d 290, 294 (2008) (quoting State v. Cooke, 306

N.C. 132, 134, 291 S.E.2d 618, 619 (1982)); see also Sisk v.

Transylvania Cmty. Hosp., Inc., 364 N.C. 172, 179, 695 S.E.2d

429, 434 (2010) (“‘[F]indings of fact made by the trial judge

are conclusive on appeal if supported by competent evidence,

even if . . . there is evidence to the contrary.’” (quoting

Tillman v. Commercial Credit Loans, Inc., 362 N.C. 93, 100-01,

655 S.E.2d 362, 369 (2008))).

       The trial court concluded that reasonable suspicion existed

based on six findings of fact:

           (1) the presence of the Defendant at a high
           drug trafficking site; (2) the officer’s
           knowledge    of    drug-related    complaints
           involving Defendant in other instances; (3)
           the knowledge of the officers from the day
           before of Defendant’s association with known
           gang members and others engaged in drug
           trafficking;   (4)   the  presence   of   the
           Defendant on the prior day at the same site
           when a 911 tip reported possible drug
           activity; (5) the presence of the Defendant
           at the Durham Housing Authority parking area
           where, just one day prior, the Defendant had
           been warned that he was not permitted to
           loiter without a resident of the apartments
           being present; and (6) the use by Defendant
           of a vehicle not registered in his name.


       Each of these findings are supported by competent evidence.

With   regard   to   Finding   (1),   Officer   Schooley   testified   that

defendant was found in a parking lot that is “a Crip area. . . .
                                        -5-
[I]ndividuals hang out in the parking lots that do not live

there and sell narcotics” on a daily basis “around the clock.”

In addition to the drug and gang activity, Officer Schooley

stated that she frequently receives complaints in that location

for loitering, trespassers, and loud noise.                     Officer Jeffries

also   acknowledged       that    complaints        about    drug   sales       in   the

parking lot occur “during the day and also in the evening[.]”

       In support of finding (2), the evidence shows that Officer

Jeffries “knew [defendant] from dealings before -- maybe prior

to June 5th.         [Defendant] and his cousins were loitering at

another housing complex in East Durham which was Hoover Road

Apartment, which [officers] had been given -- receiving several

complaints about loitering and drug activity in that apartment

complex.”

       Findings     (3)   and    (4)    are    supported       by   the    officers’

testimony    that    on   5     June   2012,   one     day    before      defendant’s

arrest,     the   officers       responded     to     the    parking      lot    after

receiving drug complaints in that location.                    When they arrived

at   the   parking    lot,      defendant     was    present    with      Malick     and

Malachi Eubalis, both of whom were Crip gang members and known

drug dealers.        Officer Schooley “personally participated in a

drug raid on Ashe Street with [the Eubalis’]” in the past.
                                            -6-
       In    support     of    Finding       (5),   the    evidence      shows   that

defendant was found in the parking lot on 6 June 2012 despite

trespass warnings and being told the day before that “if [he

wasn’t] visiting somebody, . . . [he wasn’t] allowed to just be

loitering in the parking lot” because the DHA rules require that

a visitor must be present with a resident while on the parking

lot premises.

       Finally,   with      regard     to    Finding      (6),    Officer     Schooley

observed defendant in a green Honda Accord and discovered that

the license plate of the vehicle actually belonged to a female,

and the location of the vehicle’s registered address was on the

opposite side of Durham.

       Each of the trial court’s findings of fact are supported by

competent evidence.          Thus, they are binding on this appeal.

b.) Reasonable Suspicion

       Next, we must determine whether the trial court’s findings

of fact support its conclusion of law that reasonable suspicion

existed to seize defendant “for the period of time sufficient to

allow for the canine unit to arrive on the scene (ten minutes)

and for the canine to walk around the vehicle[.]”                       We first note

that   the   order     is     devoid   of     facts    sufficient        to   actually

determine    whether        defendant’s      interaction         with   the   officers
                                       -7-
while waiting for the canine to arrive and walk around                             the

vehicle was merely a consensual encounter or a seizure under the

4th Amendment requiring reasonable suspicion.                  However, assuming

arguendo we adopt defendant’s position that the officers seized

defendant, we nevertheless hold that the seizure was supported

by reasonable suspicion.

    “The      trial   court’s    conclusions        of   law   .   .   .   are   fully

reviewable on appeal.”          State v. Hughes, 353 N.C. 200, 208, 539

S.E.2d 625, 631 (2000).           “The Fourth Amendment, applicable to

the states through the Fourteenth Amendment, protects the right

of people to be free from unreasonable searches and seizures.

This protection applies to seizures of the person, including

brief investigatory detentions.”              State v. Campbell, 188 N.C.

App. 701, 704-05, 656 S.E.2d 721, 724 (2008) (citations and

quotation marks omitted).             Such an investigatory detention is

lawful   if   a   police   officer      possesses        “reasonable       suspicion,

based on objective facts, that the individual is involved in

criminal activity.”        Id. at 705, 656 S.E.2d at 724-25 (citation

and quotation marks omitted).            We consider the totality of the

circumstances     “through      the    eyes    of    a    reasonable,        cautious

officer, guided by his experience and training at the time he

determined to detain defendant.”              State v. Myles, 188 N.C. App.
                                        -8-
42, 47, 654 S.E.2d 752, 756, writ allowed, 362 N.C. 242, 660

S.E.2d 537 (2008) and aff'd, 362 N.C. 344, 661 S.E.2d 732 (2008)

(citation and quotation marks omitted).                The State’s burden to

demonstrate reasonable suspicion is a “less demanding standard

than probable cause and requires a showing considerably less

than preponderance of the evidence.”                State v. Styles, 362 N.C.

412, 414, 665 S.E.2d 438, 439 (2008) (citation and quotation

marks omitted).       However, the State must show “a minimal level

of     objective       justification,         something       more         than     an

unparticularized suspicion or hunch.”                 State v. Watkins, 337

N.C. 437, 442, 446 S.E.2d 67, 70 (1994) (citation and quotation

marks omitted).

       Here, the trial court’s findings of fact indicate that the

officers found defendant in a high-crime area, officer Jeffries

knew   defendant      from   prior   instances       involving      illicit       drug

activity,    and     defendant    was   present      with    other     known      gang

members and drug dealers one day prior to his arrest in the same

location    when    officers     responded     to    the    scene    due    to    drug

complaints.     Moreover, defendant told the officers that he was

waiting in the vehicle to visit people in the apartment complex,

even   though      defendant   was   asleep     in    the    vehicle       when    the

officers initially arrived, and the officers did not see any
                                              -9-
individual       exit    the    apartments          to    approach      defendant      at   any

point.      Finally, defendant’s use of a vehicle registered in

another female’s name was significant because officer Schooley

testified      that     based    on     her    training         and     experience,       males

involved in illegal drug activity frequently use vehicles titled

in other people’s names “whether it’s their girlfriend or wife .

. . to avoid detection” by law enforcement.

      The officers properly considered these factors in totality

to determine the presence of reasonable suspicion.                              See State v.

Garcia,    197    N.C.    App.    522,        529,       677   S.E.2d    555,    559   (2009)

(stating that the defendant’s presence in a high-crime area is a

factor relevant in determining reasonable suspicion); see also

State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522

(1995) (holding that officers had reasonable suspicion to detain

the   defendant         for    drugs,    in         part,      because    they     knew     the

defendant had previously been arrested for similar crimes in the

past);     State v. McClendon, 350 N.C. 630, 637, 517 S.E.2d 128,

133   (1999)     (asserting       that        the    defendant’s         responses     to   an

officer’s questions may contribute to reasonable suspicion).

      Thus, the trial court did not err in determining that the

officers    had       reasonable      suspicion           to    seize    defendant        while
                                          -10-
waiting    for    the    canine    unit    to    arrive     and   walk   around   the

vehicle.

                                  III. Conclusion

    In     sum,     we    affirm     the       trial   court’s      order   denying

defendant’s      motion     to     suppress       because    the    trial   court’s

findings    of    fact    are     based   on     competent    evidence,     and   the

findings support the trial court’s legal conclusion that the

officers possessed reasonable suspicion to seize defendant while

waiting    for    the    canine    unit    to    arrive     and   walk   around   the

vehicle.

    Affirmed.

    Judges CALABRIA and STEPHENS                 concur.

    Report per Rule 30(e).
