An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-888
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 4 February 2014


STATE OF NORTH CAROLINA


      v.                                      Mecklenburg County
                                              No. 12 CRS 228345
JORGE ALBERTO HERRERA



      Appeal by defendant from order entered 31 January 2013 by

Judge Hugh Banks Lewis in Mecklenburg County Superior Court.

Heard in the Court of Appeals 7 January 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Lars F. Nance, for the State.

      Appellate Defender Staples Hughes, by Assistant Appellate
      Defender Emily H. Davis, for defendant.


      ELMORE, Judge.


      On   31   January    2013,    judgment     was   entered    against      Jorge

Alberto    Herrera     (defendant)     for    the   offenses     of   trafficking

heroin and possession with intent to sell or deliver heroin

(PWISD).     Defendant was sentenced to consecutive terms of 90-117

months     imprisonment     on   the    trafficking      conviction      and    6-17

months for the PWISD conviction.                On the same day, defendant
                                                  -2-
appealed        his       convictions        on   the   basis      that    the   trial    court

erroneously admitted evidence found on him and in his vehicle

because     the       evidence       was      derived       from    an    unlawful   seizure.

After careful consideration, we hold that the trial court did

not err.

                                                  I. Facts

       On   28       June    2012,      at    approximately         12:40    P.M.,   officers

Fabio Jarmiello and John Jurbala of the Charlotte Mecklenberg

County Police Department patrolled the area of Albermarle Road

Park (the park) in Charlotte, an area notorious for criminal

activity.             Because the park is a high-crime area, officers

frequently check for the safety of individuals in that vicinity.

Defendant was located in the park’s parking lot, seated in the

driver’s seat of a stationary vehicle.                             As the officers pulled

into a nearby parking space, they observed defendant “bend[ing]

down   .    .    .    moving      too    much[.]”           The    officers      exited   their

vehicle,        and       approached     defendant.           Officer       Jarmiello     asked

defendant, “[i]s the reason you’re here -- this is a bad area, I

don’t know if you’re aware of that.”                         Defendant started to shake

and    move,         so     for   safety          reasons     officer       Jarmiello     asked

defendant, “[c]an you please come outside and talk to me?”                                   In

response, defendant said “yes, okay,” and he exited the vehicle.
                                           -3-
Officer Jarmiello then asked defendant “if he was in possession

of anything illegal, drugs, weapons, bazooka, anything inside

the    car   I    should    know     about[?]”             Defendant     said   “no[.]”

Thereafter, officer Jarmiello asked, “[d]o you mind if I check

in the car?”            Defendant replied, “yeah, you can, there’s no

problem.”        In addition to allowing the officer to search his

vehicle, defendant acquiesced to a search of his person upon the

request of officer Jarmiello.               Once defendant provided “consent

. . . to search” he moved towards officer Jurbala, and officer

Jurbala observed “what appeared to be [a] controlled substance”

in    defendant’s       hand.      Defendant       was      immediately     placed    in

handcuffs, and a comprehensive search of defendant’s person and

vehicle revealed cash and balloons containing heroin.

       Before    trial,    defendant       filed       a   motion   to   suppress    all

evidence found as a result of defendant’s encounter with the

officers.         The    trial     court    denied         defendant’s     motion    and

concluded that “the encounter was not within the protection of

the    [f]ourth     [a]mendment       and        did       not   require    reasonable

suspicion.”       At trial, defendant failed to object to officer

Jurbala’s testimony about the items found during the encounter.

                                      II. Analysis

a.) Consensual Encounter
                                        -4-
       Defendant argues that the trial court committed plain error

by admitting evidence found on defendant and in his vehicle

because the evidence was derived from an unlawful seizure.                        We

disagree.

       Defendant   concedes      that      we    should    review      this   appeal

pursuant to the plain error standard because defendant failed to

object at trial to the admission of evidence relating to the

heroin and cash found by the officers.                See State v. Grooms, 353

N.C. 50, 65, 540 S.E.2d 713, 723 (2000) (A motion to suppress

“is    not   sufficient   to    preserve        for   appeal     the   question   of

admissibility of evidence if the defendant does not object to

that   evidence    at   the    time   it   is    offered    at    trial.”).       “In

criminal cases, an issue that was not preserved by objection

noted at trial and that is not deemed preserved by rule or law

without any such action nevertheless may be made the basis of an

issue presented on appeal when the judicial action questioned is

specifically and distinctly contended to amount to plain error.”

N.C.R. App. P. 10(a)(4); see also State v. Goss, 361 N.C. 610,

622, 651 S.E.2d 867, 875 (2007), cert. denied, 555 U.S. 835, 172

L. Ed. 2d 58 (2008).          Plain error arises when the error is “‘so

basic, so prejudicial, so lacking in its elements that justice

cannot have been done[.]’”            State v. Odom, 307 N.C. 655, 660,
                                                  -5-
300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill,

676 F.2d 995, 1002 (4th Cir. 1982), cert. denied, 459 U.S. 1018,

74       L.    Ed.    2d.     513   (1982)).           “Under    the    plain   error       rule,

defendant            must    convince      this    Court       not   only   that     there    was

error, but that absent the error, the jury probably would have

reached a different result.”                       State v. Jordan, 333 N.C. 431,

440, 426 S.E.2d 692, 697 (1993).

          “The fourth amendment as applied to the states through the

fourteenth amendment protects citizens from unlawful searches

and seizures committed by the government or its agents.”                                    State

v. Sanders, 327 N.C. 319, 331, 395 S.E.2d 412, 420 (1990), cert.

denied, 498 U.S. 1051, 111 S.Ct. 763, 112 L.Ed.2d 782 (1991).

However,             police     officers         “do     not     violate     the      [f]ourth

[a]mendment’s               prohibition     of    unreasonable         seizures    merely      by

approaching individuals on the street or in other public places

and putting questions to them if they are willing to listen.”

State v. Garcia, 197 N.C. App. 522, 528, 677 S.E.2d 555, 559

(2009) (citation and internal quotation marks omitted).                                   As long

as “a reasonable person would feel free to disregard the police

and       go    about        his    business,”          officers     are    free     to     “pose

questions, ask for identification, and request consent to search

.    .    .    provided        they   do    not    induce       cooperation     by    coercive
                                           -6-
means[.]”     State v. Williams, 201 N.C. App. 566, 569, 686 S.E.2d

905, 907 (2009) (citation and internal quotation marks omitted).

Only once the encounter loses its “consensual nature” does the

fourth   amendment        apply.      Garcia,     197   N.C.   App.        at       528,   677

S.E.2d   at   559    (citation       and   quotation      omitted).             A    seizure

occurs when an officer, “by means of physical force or show of

authority, terminates or restrains [that person’s] freedom of

movement[.]”        State v. Isenhour, 194 N.C. App. 539, 542, 670

S.E.2d    264,      267    (2008)     (citation     and      quotation          omitted).

Circumstances rising to the level of a seizure include “the

threatening      presence     of     several     officers,     the    display          of   a

weapon by an officer, some physical touching of the person of

the citizen, or the use of language or tone of voice indicating

that compliance with the officer’s request might be compelled.”

Williams, 201 N.C. App. at 569, 686 S.E.2d at 908 (citation

omitted).

       In Isenhour, the defendant sat inside his parked vehicle,

which was located in an area known for prostitution and illegal

drug activity.        Isenhour, 194 N.C. App. at 540, 670 S.E.2d at

266.     Defendant        remained    in   his   vehicle     for     ten    minutes         as

officers observed him.             Id.     Two officers, in uniform, parked

their marked patrol vehicle eight feet away from the defendant.
                                    -7-
Id.   The officers approached the defendant, became suspicious of

the defendant’s stated reasons for his presence in the parking

lot, and asked the defendant to exit his vehicle.             Id. at 541,

670 S.E.2d at 266.      The officers patted the defendant down and

obtained consent to search his vehicle.           Id.     This Court held

that the encounter between the defendant and the officers was

not a seizure subject to fourth amendment protection because:

1.) the officers’ patrol car did not obstruct the defendant’s

vehicle; 2.) neither officer exhibited a “show of force” through

their demeanor as the encounter “proceeded in a non-threatening

manner[;]” and 3.)     the officers did not use their police siren

on their vehicle, activate their blue strobe lights, or remove

their guns from their holsters.       Id. at 544, 670 S.E.2d at 268.

      As in Isenhour, the interaction between defendant and the

officers   in   this   case   was   consensual.         Officers   observed

defendant’s vehicle parked in an area known for drugs and crime.

The officers did not block defendant with their patrol vehicle,

but instead parked a “space and a half away, on the left side of

[defendant’s] vehicle.”       The patrol vehicle’s blue lights were

never activated and neither officer removed his gun from his

holster.    Officer    Jarmiello    approached    the   driver’s   side   of

defendant’s vehicle to find out why defendant was in the area.
                                              -8-
Defendant       started   to     shake       and    move,       so    for     safety    reasons

officer    Jarmiello      politely           asked       defendant       if    he    would   be

willing to exit the vehicle and talk.                           Defendant consented by

saying     “yes,      okay,”     and     he     exited         the     vehicle.         Officer

Jarmiello then asked defendant if he possessed anything illegal

in his vehicle, to which defendant said “no[.]”                                     Thereafter,

officer    Jarmiello      asked        for    consent          to    search    the     vehicle.

Defendant       replied   “yeah,        you    can,      there’s        no    problem.”       In

addition to providing consent to search his vehicle, defendant

also     provided      consent     to     search         his        person.       During     his

conversation with defendant, officer Jarmiello never raised his

voice    and    both    officers        acted       in    a    non-threatening          manner.

Based on the totality of the circumstances, the incident lacked

the show of force necessary to convert the consensual encounter

into a seizure.         Thus, the trial court did not err in admitting

the evidence found           in defendant’s vehicle and                       on his     person

because the evidence was derived from a consensual encounter.

b.) Reasonable Suspicion

       Next,     defendant     argues         that       the    purported       seizure      was

unsupported by reasonable suspicion.                           However, since we have

ruled    that    no    seizure    existed,          reasonable         suspicion       was   not

required, and defendant’s argument necessarily fails.                                See State
                                     -9-
v.   Brooks,   337    N.C.   132,   142,   446   S.E.2d    579,   586   (1994)

(asserting     that   reasonable     suspicion    is      not   required   for

consensual encounters).



                                III.   Conclusion

      In sum, the trial court did not err by admitting evidence

found on defendant and in his vehicle because the evidence was

derived from a consensual encounter.

      No error.



      Judge McGEE and Judge HUNTER, Robert C., concur.

      Report per Rule 30(e).
