An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1368
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


STATE OF NORTH CAROLINA

      v.                                      Wake County
                                              Nos. 11 CRS 11876, 221347-50
KASIN JERRELL MILLER



      Appeal by defendant from judgment entered 10 April 2013 by

Judge Carl R. Fox in Wake County Superior Court.                    Heard in the

Court of Appeals 18 March 2014.


      Attorney General Roy Cooper, by Special                   Deputy    Attorney
      General Richard E. Slipsky, for the State.

      Amanda S. Zimmer for defendant-appellant.


      BRYANT, Judge.


      Where the trial court’s findings of fact were based on a

law   enforcement     officer’s     testimony     that    while   attempting      to

detain defendant for further investigation, defendant suddenly

drove away almost hitting the officer, such findings support the

conclusion that the pursuit and eventual seizure of defendant

was based on a reasonable and articulable suspicion of assault

on an officer, and we affirm the order of the trial court.
                                         -2-
Where defendant led law enforcement officers in a high speed car

chase     ending   in    a   collision       of   defendant’s      vehicle     which

defendant promptly abandoned, and officers thereafter observed

what appeared to be cocaine on the floor of the vehicle, there

existed    probable     cause    to    search     the   vehicle,      including   the

trunk.

    On     24   and     25   October    2011,     defendant     was    indicted   on

charges of possession with intent to sell and deliver marijuana,

possession with intent to sell and deliver cocaine, speeding to

elude arrest, possession of drug paraphernalia, assault with a

deadly weapon on a government official, and attaining habitual

felon status.         On 4 January 2012, defendant was arraigned and

entered a plea of not guilty.

    Subsequently, defendant filed two motions to suppress: a

“Motion to      Suppress     Evidence Based on Unlawful Stop”; and                  a

motion to suppress “evidence seized pursuant to the warrantless

search of the trunk of the Defendant’s vehicle.”                      These matters

came on for hearing during the 8 April 2013 session of Wake

County     Superior     Court,    the     Honorable      Carl    R.     Fox,   Judge

presiding.

    By     final   order     entered     9   August     2013,   both    motions   to

suppress were denied.            Judge Fox found that on 10 September
                                      -3-
2011,     a    ranking    Senior   Officer     with    the    Raleigh    Police

Department was in uniform and working when he stopped his marked

patrol car at the Exxon Station at 9409 Glenwood Avenue for gas.

The officer observed two men sitting in a vehicle.               “[T]hey were

passing something back and forth between them.”                 When the two

men noticed noticed the officer, “they appeared to be placing

things underneath their seats and in their door pockets.”                    The

officer moved his vehicle so that he could read the vehicle’s

license plate number.        Defendant, who was seated in the driver’s

seat, repositioned the vehicle by driving around the parking lot

and backing into a parking space behind a row of parked cars.

The passenger exited the vehicle.              The officer approached the

vehicle       and   requested    defendant’s    driver’s      license,    which

defendant was unable to produce.            Defendant said he was waiting

on a friend; he did not know the name of the person who had been

sitting in the passenger seat; and he was not the registered

owner of the vehicle.           Defendant also stated there was nothing

illegal in the vehicle.         Defendant was informed that he would be

detained for further investigation and that a canine unit was

being   requested.        Suddenly,   defendant       drove   away   while   the

officer was standing beside the vehicle, “nearly striking him

with his car.”           The officer returned to his patrol car and
                                               -4-
pursued defendant with lights and siren activated.                                  Defendant

traveled on Lumley Road entering onto I-540 traveling at speeds

in    excess     of    90    mph.         As   they    traveled       down    the    highway,

“Defendant       was    reaching          around      inside    the     car    and    putting

something into his mouth”; “Defendant’s left hand was outside

his window and he was releasing things from his hand”; and the

officer     observed          white       powder       striking        his     patrol     car.

Defendant’s          vehicle    ultimately           struck    another        vehicle,     and

defendant jumped out of his vehicle and ran.                           However, defendant

was    apprehended          after     a    short       foot    chase.          Another    law

enforcement officer looking though the open driver’s side window

of    defendant’s           vehicle       observed       a     small     plastic        baggie

containing       a     white    powder         consistent      with     cocaine      on   the

floorboard.           The officers informed defendant that his vehicle

would be searched.             Defendant did not consent.                     In the trunk,

the officers found digital scales, marijuana, empty baggies, and

cocaine.

       As   to   defendant’s          initial      detention      in    the    gas    station

parking lot, Judge Fox concluded that there was no violation of

defendant’s rights against unreasonable seizure.                             Judge Fox also

concluded that during the car chase, there arose grounds for a

reasonable        and       articulable         suspicion       that         defendant     had
                                         -5-
assaulted a government official with a deadly weapon and was

possessing       and   /    or     selling     or   delivering    a     controlled

substance, obstructing an officer, fleeing to elude an officer,

and engaged in reckless driving.               Further, as to the search of

defendant’s car trunk, Judge Fox concluded that the officers had

probable cause to search the vehicle.                   Accordingly, defendant’s

motions to suppress were denied.

       Following entry of the order denying defendant’s motions to

suppress, defendant entered a guilty plea as to the charges of

possession with intent to sell and deliver marijuana, possession

with    intent    to   sell   and    deliver    cocaine,     speeding    to   elude

arrest, possession of drug paraphernalia, assault with a deadly

weapon on a government official, and obtaining habitual felon

status.      Defendant also reserved his right to appeal from the

order denying his motions to suppress.                    Accepting defendant’s

pleas   of   guilty,       Judge   Fox   entered    a    consolidated    judgment,

sentencing defendant to a term of 127 to 162 months.                     Defendant

appeals from the denial of his motions to suppress.1



1
  Defendant filed with this Court a petition for a writ of
certiorari to correct a technical defect in trial counsel’s
notice of appeal from the order denying defendant’s motions to
suppress  rather  than  from   the  judgment  entered  against
defendant. See N.C. Gen. Stat. § 15A-979(b) (“An order finally
denying a motion to suppress evidence may be reviewed upon an
appeal from a judgment of conviction, including a judgment
                                     -6-
                     ________________________________

      On appeal, defendant raises the following issues: whether

the trial court erred in (I) determining there was a factual

basis   for   defendant’s       guilty   plea;       (II)    finding       the     law

enforcement   officer     had    a   reasonable       suspicion       to     warrant

stopping   defendant;     and   (III)    concluding     that    the    search       of

defendant’s car trunk was reasonable.

                                           I

      Defendant   first    argues    that      the   trial     court       erred   in

determining whether there was a sufficient factual basis given

for the trial court to accept defendant’s guilty plea to the

charge of assault on a government official with a deadly weapon.

First, we must consider whether this argument is properly before

us.

                     Petition for writ of certiorari

      Contemporaneous with his brief, defendant filed with this

Court a petition for a writ of certiorari to address the first

argument presented in his brief.

      Acknowledging in his petition that he is not entitled to

appeal as a matter of right the issue of whether the trial court


entered upon a plea of guilty.”). To the extent that the notice
of appeal was technically deficient, we grant defendant’s
petition for writ of certiorari and hear defendant’s appeal from
the judgment entered pursuant to his guilty plea.
                                      -7-
properly     accepted   his   guilty        plea,   defendant   nevertheless

requests that we grant him a writ of certiorari.                  We decline

defendant’s request.

                  The writ of certiorari may be issued in
             appropriate     circumstances     by    either
             appellate court to permit review of the
             judgments and orders of trial tribunals when
             the right to prosecute an appeal has been
             lost by failure to take timely action, or
             when   no    right    of   appeal    from   an
             interlocutory order exists, or for review
             pursuant to N.C.G.S. § 15A-1422(c)(3) of an
             order of the trial court denying a motion
             for appropriate relief.

N.C. R. App. P. 21(a)(1) (2014).

       This Court has previously issued writs of certiorari to

address a challenge to a trial court’s compliance with General

Statutes Chapter 15A, Article 58 – Procedures Relating to Guilty

Pleas in Superior Court.         See State v. Rhodes, 163 N.C. App.

191,   592   S.E.2d   731   (2004).     Specifically,     writs   have   been

issued to address a challenge to the sufficiency of the factual

basis given in support of a guilty plea.              See State v. Keller,

198 N.C. App. 639, 641, 680 S.E.2d 212, 213 (2009); State v.

Flint, 199 N.C. App. 709, 724, 682 S.E.2d 443, 451 (2009).

       Defendant   contends    that    that     there   were    insufficient

grounds presented to support the charge of assault with a deadly

weapon on a government official.             While defendant acknowledges
                                              -8-
that the testifying officer stated “that he was nearly struck by

the vehicle and that he was afraid he would be hit by the back

portion of the vehicle as [defendant] drove off[,]” defendant

contends that “a reasonable person in his position would not

have    been     in    fear       of   immediate         bodily   harm.”         Defendant’s

argument raises only the contention that the trial court erred

in     finding        the     officer’s          testimony        more     credible       than

defendant’s interpretation of the evidence. Compare Flint, 199

N.C. App. at 726, 682 S.E.2d at 453 (holding the trial court

erred in accepting the defendant’s guilty plea where there was a

lack of a factual basis given that would allow for the trial

court to make an independent decision as to defendant’s guilt).

We deny defendant’s petition for a writ of certiorari as to this

issue.    As such, defendant’s first argument is dismissed.

                                                    II

       Next, appealing from the denial of his                            first    motion to

suppress,      defendant          argues    that         the    trial    court    erred    in

concluding       that       the    law    enforcement          officer     had   reasonable

suspicion      to      stop       defendant       after        defendant    terminated      a

consensual       encounter         with    the    law      enforcement      officer.       We

disagree.
                                        -9-
      “An order finally denying a motion to suppress evidence may

be   reviewed    upon   an    appeal     from   a    judgment      of    conviction,

including a judgment entered upon a plea of guilty.”                         N.C.G.S. §

15A-979(b).     “Generally, an appellate court's review of a trial

court's order on a motion to suppress is strictly limited to a

determination of whether its findings are supported by competent

evidence, and in turn, whether the findings support the trial

court's ultimate conclusion.”            State v. Roberson, 163 N.C. App.

129, 132, 592 S.E.2d 733, 735 (2004) (citation and quotations

omitted).

      We first note that the trial court found that the officer’s

initial approach and discussion while defendant was sitting in a

parked   car      did   not    amount     to    a     detention         or     seizure.

Acknowledging that the officer informed defendant he was “being

detained” while a canine unit was summoned,                       the trial court

stated   “these    words,     standing    alone,      did   not    result       in   the

functional      equivalent      of     detention,      or    an      ‘unreasonable

seizure’” because among other things defendant remained in the

automobile; was not handcuffed, removed from the automobile, or

otherwise restrained from movement;                 defendant’s ignition keys

were not seized; the detention lasted three to five minutes, and
                                     -10-
defendant voluntarily left the area.               Therefore, he “did not

believe he was not free to leave.”

       However, as to what happened after defendant drove away

from   the   officer   in   the   parking   lot,   we   find   the   following

findings of fact pertinent:

                  21. Officer Larsen went to his vehicle
             and   pursued the   Defendant  because  the
             Defendant’s car nearly struck him as he
             exited the parking lot of the convenience
             store.

                 . . .

                  22. . . . Both vehicles were traveling
             at speeds in excess of 70 mph on Lumley road
             and increased speed once they got onto I-
             540.

                 . . .

                  27. The     Defendant’s   vehicle  was
             switching lanes left to right and right to
             left, cars were braking to avoid collisions
             with the Defendant’s vehicle. . . .

                  28.   As  they   traveled  down   the
             highway, the Defendant was reaching around
             inside the car and putting something into
             his mouth.

                  29. As they were traveling in excess
             of 80 mph down the highway, bags of white
             substance began striking Officer Larsen’s
             car.   The Defendant’s left hand was outside
             his window and he was releasing things from
             his hand.
                                          -11-
    Defendant’s vehicle stopped                  after colliding with another

vehicle,   and     defendant       was     apprehended       by    law    enforcement

officers after a short foot chase.

    Sergeant       Michael    F.    Schabel,       employed       with    the   Raleigh

Police Department for fifteen years, responded to the Officer

Larsen’s   call    for   assistance.             Following     the      collision    and

defendant’s      abandonment       of     his     vehicle,        Sergeant       Schabel

observed “a small plastic baggie with white powder . . . he

recognized as being consistent with cocaine,” in the driver’s

side floorboard.

    The    trial    court     concluded      that    Officer       Larsen’s      initial

approach   and    discussion       with    defendant     did      not    amount     to   a

seizure and detention.          However, based on the events occurring

after   defendant     drove    away       from    Officer      Larsen,     the    court

concluded the following:

           [U]nder the totality of the circumstances,
           [there] form[ed] in the mind of a reasonable
           and prudent man/officer that there was a
           reasonable and articulable suspicion that
           criminal   activity     was   afoot  in   that
           Defendant had/was (1) possession and/or
           selling    or     delivering    a   controlled
           substance,    (2)    assaulted   a  government
           officer with a deadly weapon, (3) obstructed
           an officer, (4) fleeing to elude an officer
           and (5) engaged in reckless driving.
                                            -12-
    The findings of fact support the trial court’s conclusion

that the law enforcement officer had reasonable suspicion to

stop defendant.          See Roberson, 163 N.C. App. at 132, 592 S.E.2d

at 735.    Accordingly, defendant’s argument is overruled.

                                               III

    In     his    appeal       from   the   denial     of   his   second     motion   to

suppress, defendant argues that the trial court erred when it

relied on an inventory search of defendant’s vehicle as a basis

for upholding the search of the trunk.                       Defendant’s argument

ignores the trial court’s conclusion that there existed probable

cause     to    search     defendant’s        vehicle.        The    trial     court’s

conclusion       that     an     inventory         search   was     proper     was    an

alternative basis to uphold the search and based on our probable

cause analysis that alternative basis need not be addressed.

                    The Fourth Amendment proscribes all
               unreasonable searches and seizures, and it
               is   a   cardinal  principle    that   searches
               conducted outside the judicial process,
               without    prior   approval    by    judge   or
               magistrate, are per se unreasonable under
               the Fourth Amendment-subject only to a few
               specifically established and well-delineated
               exceptions.   One   such   exception    is  the
               automobile exception. A police officer in
               the exercise of his duties may search an
               automobile without a search warrant when the
               existing    facts   and   circumstances     are
               sufficient to support a reasonable belief
               that   the   automobile   carries    contraband
               materials. If probable cause justifies the
                                              -13-
            search of a lawfully stopped vehicle, it
            justifies the search of every part of the
            vehicle and its contents that may conceal
            the object of the search.

State v. Mitchell, ___ N.C. App. ___, ___, 735 S.E.2d 438, 441

(2012) appeal dismissed, review denied, ___ N.C. ___, 740 S.E.2d

466 (2013).

       Here, defendant led police officers on a car chase that

reached speeds in excess of 90 mph.                   In unchallenged findings of

fact, the trial court found that while defendant was driving

down the highway he was observed eating something and releasing

something from his hand outside of the driver’s side window,

“when bags of white substance began striking Officer Larsen’s

car.”     Following        defendant’s         abandonment      of    his    vehicle    and

attempt    to     flee      on        foot,    Sgt.    Schabel        observed     inside

defendant’s vehicle in plain view “a small plastic baggie with

white   powder     .   .   .     he    recognized      as   being     consistent       with

cocaine[.]”       Therefore, we hold the trial court’s findings of

fact    support    a   conclusion         that       pursuant    to    the    automobile

exception the law enforcement officers had probable cause to

justify the search of every part of defendant’s vehicle that may

have    concealed        cocaine,        including      the     trunk.           See    id.

Accordingly, defendant’s argument is overruled.

       Affirmed.
                         -14-
Judges HUNTER, Robert C. and Judge STEELMAN concur.

Report per Rule 30(e).
