An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA14-111
                        NORTH CAROLINA COURT OF APPEALS

                           Filed:     16 September 2014


STATE OF NORTH CAROLINA

      v.                                      Sampson County
                                              Nos. 12 CRS 50372-73
REGINALD WILLIS



      Appeal by the State from order entered 7 October 2013 by

Judge Arnold Jones in Sampson County Superior Court.                     Heard in

the Court of Appeals 5 June 2014.


      Roy Cooper, Attorney General, by Teresa                       M.    Postell,
      Assistant Attorney General, for the State.

      Amanda S. Zimmer for defendant-appellee.


      DAVIS, Judge.


      The State appeals from the trial court’s 7 October 2013

order granting a motion to suppress filed by Reginald Willis

(“Defendant”).        After careful review, we vacate and remand to

the trial court for further proceedings.

                              Factual Background

      On 16 February 2012, Corporal Nick Pope (“Corporal Pope”),

a   deputy    sheriff     employed     by   the   Sampson     County     Sheriff’s
                                        -2-
Office1, was sitting in his patrol car, stationed in the center

median of Interstate 40 at mile marker 351, when Defendant’s

vehicle drove by him.             Corporal Pope thought it “looked weird”

that he was only able to see Defendant’s hat because Defendant

“was leaning so far back and so low in the seat” as if “he was

hiding himself from [Corporal Pope].”

    Corporal       Pope    pulled     into     the   left    lane   and    followed

Defendant    for     approximately      four     miles.       Immediately      after

Corporal Pope pulled onto the highway, Defendant switched lanes,

“indicating to [Corporal Pope] that he was still busy looking at

[Corporal    Pope]    in    the    rearview    mirror.”       As    Corporal      Pope

followed    Defendant,       he    noticed     Defendant     was    “not    driving

straight” as well as the fact that Defendant had “weav[ed] from

the solid, fog line to the center divider line” and “crossed . .

. the white fog line, on more than one occasion.”                   Corporal Pope

called a backup officer and informed him that he was going to

initiate a traffic stop based on Defendant’s traffic violation.

    As      Corporal       Pope     approached       the    passenger      side    of

Defendant’s stopped vehicle, Defendant rolled the window down,

at which point the odor of “raw marijuana hit [Corporal Pope] in



1
  On the date of the suppression hearing, Corporal Pope was
employed as a trooper by the North Carolina State Highway
Patrol.
                                       -3-
the   face.”      There   were    no   other    passengers     in   Defendant’s

vehicle.

      Defendant    handed    Corporal    Pope      his   New   Jersey   driver’s

license and a rental agreement entered into in Wilmington, North

Carolina, indicating the vehicle had been rented to a female who

was not in the vehicle.          Defendant initially told Corporal Pope

that he was returning home to New Jersey but then “immediately

changed his story, [stating] that he was heading to Winston-

Salem.”    Corporal Pope also noticed that Defendant had “tobacco

guts” on his shirt and in his lap, which he knew “came from

rolling a marijuana joint or blunt from a cigar” based on his

having received over 256 hours of training in criminal and drug

interdiction.

      Corporal Pope asked Defendant to step out of the vehicle.

When he asked Defendant about the “tobacco guts” on his shirt,

Defendant “brushed them off his shirt really quick, like he

didn’t    want   [Corporal    Pope]     to   see    them.”      Corporal    Pope

conducted a Terry2 search of Defendant to check for “weapons,

firearms, knives, or anything that could hurt [him].”                       When

2
  In Terry, the Supreme Court held that a police officer who “has
reason to believe that he is dealing with an armed and dangerous
individual” may conduct a limited pat-down of the individual for
weapons regardless of whether he has probable cause to make an
arrest.    Terry v. Ohio, 392 U.S. 1, 27, 20 L.E.2d 889, 909
(1968).
                                        -4-
Corporal Pope did not find any weapons, he asked Defendant to

sit in the passenger seat of his patrol car.

    Corporal Donald Carter (“Corporal Carter”), another deputy

sheriff    with     the    Sampson   County      Sheriff’s     Office   Criminal

Interdiction Team, arrived on the scene to assist Corporal Pope.

Corporal Pope asked Corporal Carter to sit with Defendant while

he conducted a search of Defendant’s vehicle “based on the smell

of marijuana.”

    Corporal        Pope    searched     Defendant’s      vehicle     and     found

“bright green” marijuana residue mixed with brown tobacco in the

floorboard, seat, and cup holder.               Corporal Pope also searched

the center console of the vehicle and found “large bundles of

U.S. currency” in the total amount of $6,052.00 and several cell

phones.

    Corporal Pope informed Corporal Carter about what he had

found in Defendant’s vehicle, and Corporal Carter decided to

conduct a more extensive search of Defendant’s person because he

“still    smelled    an    extreme     odor    of    marijuana    emitting    from

[Defendant’s]     person.”       During       this   search,     Corporal    Carter

reached into Defendant’s back pocket and found three small wax

paper bags that he believed to contain heroin.
                                      -5-
    Defendant was then handcuffed, told he was under arrest,

and placed in the front seat of Corporal Pope’s patrol vehicle.

The bags were placed in the center console of Corporal Pope’s

vehicle.    Although Defendant was handcuffed, he was able to gain

access to the bags and “attempted to tear them up into pieces.”

    Approximately 15 to 20 minutes after Defendant was placed

in handcuffs, Corporal Pope retrieved his drug-sniffing dog from

the back seat of his patrol vehicle to see if the dog could

detect the presence of any narcotics in Defendant’s vehicle.

The dog immediately indicated the presence of narcotics at the

driver’s side door of Defendant’s vehicle.              The deputies placed

the currency found in Defendant’s vehicle into a paper bag, and

the dog detected “the presence of narcotic odor on the bag which

contained the currency.”

    On 2 April 2012, Defendant was indicted by a Sampson County

grand   jury   on   charges      of   (1)    possession    of    heroin;      (2)

possession of up to one half ounce of marijuana; (3) possession

of drug paraphernalia; and (4) altering or destroying criminal

evidence.      On   17   April   2012,      Defendant   filed    a   motion   to

suppress,   alleging     that the     vehicle stop, the         search of the

vehicle, and the search of his person were unlawful and that all

evidence seized as a result should be suppressed.
                                 -6-
    Defendant’s motion to suppress was heard in Sampson County

Superior Court on 12 August 2013.       On that same day, the trial

court announced that it was granting Defendant’s motion.        On 7

October   2013,   the   trial   court   entered   a   written   order

containing, in pertinent part, the following findings of fact:

          6.   Cpl. Nick Pope with the Sampson County
          Sheriff’s Department was working traffic
          patrol on Interstate 40 at approximately
          10:30 am on February 16, 2012 when he
          observed the Defendant’s vehicle driving
          westbound.

          7.   Cpl. Pope stated the driver appeared
          overly nervous, had his ball cap pulled low
          and was leaned back in the seat.

          8.   Cpl. Pope then pulled out and followed
          the vehicle for approximately four miles.

          9.   Cpl. Pope indicated the vehicle was
          weaving within the lane and then crossed the
          fog line multiple times.

          10. Cpl. Pope stated he did not pull the
          vehicle   immediately  upon   observing  the
          traffic violation as he had to check
          multiple factors such as the location of his
          back up, the number of occupants of the
          vehicle, if any minors were in the vehicle,
          and to make further observations of the
          vehicle.

          11. Cpl. Pope stated his in car camera was
          not operational on the date of the stop.

          12. Cpl. Pope activated his blue lights and
          sirens and the Defendant pulled the car onto
          the shoulder of the highway.
                    -7-
13. Cpl. Pope stated he smelled what he
believed to be and [sic] extremely strong
odor of marijuana.

14. Cpl. Pope stated he knew through his
training and experience that drugs are often
accompanied by guns.

15. Cpl. Pope stated the driver’s hands
were shaking and he appeared nervous, the
vehicle was a rental and had been rented to
a third party not in the vehicle, the
Defendant gave two different destinations
when being questioned by the officer.   All
of which in his training and experience are
evidence of drug activity.

16. Cpl. Pope asked the driver to exit the
vehicle and conducted frisked [sic] the
Defendant before placing him into the front
seat of the patrol vehicle.

17. Cpl. Pope requested backup, Cpl. Carter
responded.

18. Cpl. Carter’s in car camera was also
not operational on the date of this action.

19. Cpl. Carter stated he could smell the
odor   of    marijuana   coming  from  the
defendant’s person as soon as he walked up
to the passenger side of the patrol car
where the defendant was sitting.

20. Cpl. Pope searched the suspect vehicle
and located marijuana residue and a large
amount of US Currency from the suspect
vehicle.

21. Cpl. Cater [sic] stated he then removed
the Defendant from the patrol vehicle and
searched the driver again because he knew
there   must  be  more  marijuana  on   the
Defendant since only residue was found in
                                 -8-
           the vehicle.

           22. During this second search, Cpl. Carter
           discovered three bags of heroine [sic] in
           the Defendant’s pant pocket.

           23. The Defendant was then handcuffed and
           placed back into the patrol vehicle.

       The trial court then made the following conclusions of law:

           1.   The stop of the vehicle was lawful due
           to Cpl. Pope’s observation of the traffic
           violation of weaving within the lane and
           crossing the fog line as well as his
           subjective opinion of the Defendant’s level
           of nervousness.

           2.   Cpl. Pope’s frisk of the Defendant for
           weapons was valid.

           3.   [A]t the time that Cpl. Carter searched
           the Defendant for the second time, the
           Defendant was not free to leave the scene
           and was seized within the meaning of the
           Fourth Amendment on [sic] the Constitution
           of the United States, the Constitution of
           the State of North Carolina and case law
           such as Minnesota v. Dickerson, 508 U.S. 366
           (1993).

           4.   During the seizure of the Defendant,
           Cpl. Carter conducted an illegal search
           without a search warrant as the Defendant
           had previously been frisked for weapons.

       Based on these conclusions of law, the trial court ordered

“all of the evidence obtained as a result of the unreasonable

search . . . [be] suppressed as fruit of the poisonous tree . .

. .”   The State appealed to this Court.
                                    -9-
                                 Analysis

       This Court's review of a trial court's ruling concerning a

motion to suppress is “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. Cooke, 306

N.C. 132, 134, 291 S.E.2d 618, 619 (1982).           Any findings of fact

that are not challenged on appeal are “deemed to be supported by

competent    evidence   and   are   binding     on   appeal.”    State   v.

Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36, disc.

review denied, 358 N.C. 240, 594 S.E.2d 199 (2004).             Our review

of a trial court’s conclusions of law is de novo.                State v.

Kincaid, 147 N.C. App. 94, 97, 555 S.E.2d 294, 297 (2001).

       We believe the trial court’s order must be vacated for two

reasons.     First, virtually every “finding of fact” the trial

court made in its suppression order merely recited that Corporal

Pope    or   Corporal   Carter   had   stated    that   particular   fact.

“Recitations of the testimony of each witness do not constitute

findings of fact by the trial judge.”            In re Bullock, ___ N.C.

App. ___, ___, 748 S.E.2d 27, 30 (2013) (citation and quotation

marks omitted); see Lane v. Am. Nat’l Can Co., 181 N.C. App.
                                  -10-
527, 531, 640 S.E.2d 732, 735 (2007) (“[F]indings of fact must

be more than a mere summarization or recitation of the evidence

. . . .”), disc. review denied, 362 N.C. 236, 659 S.E.2d 735

(2008).   If the trial court includes the recitation of testimony

in its suppression order, “our review is limited to . . . facts

found by the trial court and the conclusions reached in reliance

on those facts, not the testimony recited by the trial court in

its order.”     State v. Derbyshire, ___ N.C. App. ___, ___, 745

S.E.2d 886, 893 (2013), disc. review denied, ___ N.C. ___, 753

S.E.2d 785 (2014).

      It is well established that        where, as here, “the trial

court fails to make findings sufficient to allow the reviewing

court to apply the correct legal standard, it is necessary to

remand the case to the trial court.”       State v. Salinas, 366 N.C.

119, 124, 729 S.E.2d 63, 67 (2012).          We therefore vacate the

trial court’s order and remand this action for the entry of

actual factual findings.

      Second, we believe that remand is also necessary because

the   trial   court   utilized   the   incorrect   legal   framework   in

evaluating Defendant’s motion to suppress.         Both this Court and

our Supreme Court have recognized that remand may be appropriate

in instances in which the trial court has applied the wrong
                                         -11-
legal standard.       See State v. Buchanan, 353 N.C. 332, 339-40,

543 S.E.2d 823, 828 (2001) (“The trial court in the instant case

mistakenly     applied        the     broader      ‘free      to   leave’   test     in

determining whether defendant was ‘in custody’ for the purposes

of Miranda.    We therefore remand the case to the trial court for

a redetermination of whether a reasonable person in defendant’s

position, under the totality of the circumstances, would have

believed he was under arrest or was restrained in his movement

to   the   degree   associated         with    a    formal    arrest.”);    State    v.

Williams, 195 N.C. App. 554, 561, 673 S.E.2d 394, 398-99 (2009)

(“Where . . . the trial court mistakenly applies an incorrect

legal      standard      in         determining       whether        a   defendant’s

constitutional      rights      have    been       violated    for   purposes   of    a

motion to suppress, the appellate court must remand the matter

to the trial court for a ‘redetermination’                         under the proper

standard.”).

      In the present case, during the suppression hearing, the

trial court stated as follows:

            I find that the defendant was not free to
            leave. And consistent with Minnesota versus
            Dickerson, when the defendant’s back pocket
            was manipulated and the heroin was pulled
            out, that was a violation of his Fourth
            Amendment rights. That went beyond a frisk.
            He hadn’t been advised of his rights.    He
            wasn’t free to leave. As it relates to the
                                       -12-
            heroin pulled out of his pocket, I’ll order
            that suppressed. That wasn’t valid according
            to the law.

The trial court then memorialized this ruling in conclusion of

law 3 of its written order, stating that

            at the time that Cpl. Carter searched
            Defendant for the second time, the Defendant
            was not free to leave the scene and was
            seized within the meaning of the Fourth
            Amendment on [sic] the Constitution of the
            United States, the Constitution of the State
            of North Carolina and case law such as
            Minnesota v. Dickerson, 508 U.S. 366 (1993).

    In Minnesota v. Dickerson, the case the trial court relied

upon in concluding that the search of Defendant was unlawful,

the United States Supreme Court held that a police officer may

seize nonthreatening contraband           obtained during a       warrantless

Terry pat-down for weapons as long as the search stays within

the scope of Terry and the incriminating nature of the object is

immediately apparent.         Dickerson, 508 U.S. 366, 379, 124 L.E.2d

334, 348 (1993).           The Supreme Court held that the search in

Dickerson   had    exceeded    the     lawful   bounds   set    out   in   Terry

because the officer had to physically manipulate the object in

the defendant’s pocket in order to determine its incriminating

nature.   Id.

    Here,       however,    Corporal    Pope    had   already    completed     a

protective frisk of Defendant for weapons.                Corporal Carter’s
                                            -13-
subsequent physical search of Defendant was not a Terry frisk

but   rather     was    a    warrantless      physical     search     of    Defendant’s

person based on the deputy’s belief that probable cause existed

for the search.             As such, the trial court’s analysis of the

search under Dickerson was erroneous.

      Because the trial court’s conclusion that the search was

unconstitutional was premised on the fact that “Defendant had

previously been frisked for weapons,” the court did not analyze

whether the search was valid on other grounds.                       While the trial

court    noted    that      the    search    was   conducted       without    a   search

warrant, the analysis of whether the search was constitutional

should not have ended there.                  See State v. Allison, 298 N.C.

135, 141, 257 S.E.2d 417, 421 (1979) (“A warrantless search is

not unconstitutional . . . when (1) probable cause to search

exists    and     (2)        the   government       satisfies       its      burden   of

demonstrating that the exigencies of the situation made search

without a warrant imperative.”).

      Indeed, as the State points out, this Court has previously

upheld a warrantless search of a defendant based on the odor of

marijuana emanating from the defendant’s person.                           See State v.

Yates,    162    N.C.       App.   118,   123,     589    S.E.2d   902,     905   (2004)

(concluding      that        probable     cause     and     exigent       circumstances
                                          -14-
justified officer’s warrantless search of defendant where (1)

defendant walked by law enforcement officer twice “emanating a

strong odor of marijuana, and each time defendant was alone”;

and (2) immediate search was warranted because officer’s partner

was occupied and “narcotics can be easily and quickly hidden or

destroyed”).

      However,     the    issue    of     whether    a   warrantless     search    is

constitutionally         valid    based    on     probable     cause   and   exigent

circumstances is a case-by-case determination that must be made

by the finder of fact.           State v. Harper, 158 N.C. App. 595, 602,

582   S.E.2d   62,   67    (“Generally,          warrantless    searches     are   not

allowed   absent     probable      cause    and     exigent    circumstances,      the

existence of which are factual determinations that must be made

on a case by case basis.”), appeal dismissed and disc. review

denied, 357 N.C. 509, 588 S.E.2d 372 (2003).                      Accordingly, we

remand to the trial court for determination of the legal issues

raised by Defendant’s motion to suppress

           because it is the trial court that is
           entrusted with the duty to hear testimony,
           weigh and resolve any conflicts in the
           evidence, find the facts, and, then based
           upon   those   findings,  render   a   legal
           decision, in the first instance, as to
           whether or not a constitutional violation of
           some kind has occurred.
                                    -15-
Salinas,   366   N.C.   at   124,   729   S.E.2d   at   67   (citation   and

quotation marks omitted).

                                Conclusion

    For the reasons stated above, we               vacate and   remand for

further proceedings not inconsistent with this opinion.

    VACATED AND REMANDED.

    Judges HUNTER, JR. and ERVIN concur.

    Report per Rule 30(e).

    Judge HUNTER, JR. concurred in this opinion prior to 6

    September 2014.
