An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d   u    r   e   .



                             NO. COA13-1106
                     NORTH CAROLINA COURT OF APPEALS

                           Filed:    15 April 2014


STATE OF NORTH CAROLINA

      v.                                 Mecklenburg County
                                         Nos. 10 CRS 200906–07
JOSEPH ASHLEY DICKENSON, JR.,
     Defendant.


      Appeal by defendant from judgment entered 13 November 2012

by Judge Linwood O. Foust in Mecklenburg County Superior Court.

Heard in the Court of Appeals 20 February 2014.


      Roy Cooper, Attorney General, by             David    Shick,   Associate
      Attorney General, for the State.

      Staples Hughes, Appellate Defender, by Mary Cook, Assistant
      Appellant Defender, for defendant–appellant.


      DAVIS, Judge.


      Defendant     Joseph     Ashley     Dickenson,     Jr.    (“Defendant”)

appeals from a judgment entered upon a guilty plea to one count

of Level One trafficking in marijuana in violation of N.C. Gen.

Stat. § 90-95(h)(1)(a).          On appeal, he argues that the trial

court erred in denying his motion to suppress evidence obtained

pursuant to a stop of his vehicle by law enforcement officers.
                                      -2-
After careful review, we affirm the trial court’s denial of the

motion to suppress.

                             Factual Background

      The evidence offered by the State at trial tended to show

the following.       On 6 January 2010, at around 8:00 p.m., Officer

Nathan Watkins (“Officer Watkins”) and Officer Michael Sullivan

(“Officer   Sullivan”)       with     the    Charlotte–Mecklenburg       Police

Department (“CMPD”) were conducting surveillance of a residence

in   response   to    a   complaint   from    a   person   who   had   observed

“possible   illegal       drug   transactions”     involving     a   number   of

people and parcels moving in and out of the residence on a

regular basis.        Officer Watkins was surveilling the residence

from a distance within 100 yards of the site, while Officer

Sullivan conducted his surveillance of the residence in plain

clothes from an unmarked vehicle.

      Both officers observed a man who was later identified as

Defendant remove two duffle bags or suitcases from the residence

and place one of the bags into the trunk of a white, four-door

Acura Legend automobile and the other into the back seat of the

same vehicle.        The officers then both observed Defendant drive

away from the residence.

      Officer Sullivan began to follow Defendant’s car in his

unmarked vehicle as Defendant           drove     onto I-485.        As Officer
                                      -3-
Sullivan followed Defendant, he communicated by radio to other

officers a description of Defendant’s vehicle, the license plate

number, and the direction in which Defendant was travelling.

Officer Sullivan also communicated to the other officers his

observation that Defendant was not wearing a seatbelt, which he

observed as Defendant was approaching the exit ramp to merge

onto I-485.

    Officer Michael Griffin (“Officer Griffin”) testified that

as he and a fellow officer were riding together in their patrol

car, he heard Officer Sullivan communicate over the radio that

Defendant was operating a white, four-door 1992 Acura Legend

with Tag     Number YYM9580, that Defendant was travelling at a

particular location along I-485, and that Officer Sullivan had

personally    observed   that   Defendant    was   operating    his   vehicle

while not wearing his seatbelt.         This information was also heard

over the radio by Officer Jonathan Tobbe (“Officer Tobbe”), who

was communicating with several officers by both telephone and

radio during the surveillance          of the residence        and who also

testified that Officer Sullivan had communicated over the radio

his observation that Defendant was not wearing his seatbelt.

    As a result of         the information communicated to them by

Officer Sullivan, Officer Griffin and his partner located and

followed     Defendant’s    vehicle     on   I-485.     Officer       Griffin
                                            -4-
continued to follow Defendant as Defendant exited I-485.                              While

stopped   directly        behind      Defendant’s       vehicle    at   a    red   light,

Officer      Griffin      personally       observed      that     Defendant     was    not

wearing      his    seatbelt    and     that      the   belt    “was    actually      just

hanging.”          Officer Griffin         then   initiated a traffic stop               of

Defendant’s        vehicle.        Upon    approaching       the    vehicle,       Officer

Griffin noticed an odor of marijuana, which he said “was very

strong,      it    made   [his]     eyes    water,      it   was    strong.”          After

determining        that    Defendant        was    driving      with    a    “canceled”

driver’s license, Officer Griffin placed Defendant under arrest

and conducted a search of Defendant’s vehicle, in which he found

the first of the two cases that Defendant had placed in the

vehicle, containing what Officer Griffin estimated to be thirty

pounds of marijuana.

       Defendant was charged in bills of indictment with one count

each    of        trafficking      by      possessing        and     trafficking        by

transporting 50 pounds or more but less than 2,000 pounds of

marijuana, a Schedule VI controlled substance under N.C. Gen.

Stat.   § 90-94(1)         —   both     Level     Two    trafficking        offenses    in

violation of N.C. Gen. Stat. § 90-95(h)(1)(b) — and with one

count of possession with intent to sell or deliver more than one

and one-half ounces of marijuana in violation of N.C. Gen. Stat.

§ 90-95(a)(1).
                                             -5-
       Defendant       filed      in     Mecklenburg   County        Superior   Court   a

motion to suppress the “large sum of money” found in his pocket,

the suitcases found in the backseat and trunk of his vehicle

that    were    alleged      to     contain    marijuana,       and    the   statements

Defendant made to a detective in the VICE and Narcotics Unit of

the    CMPD    in    which     he      “allegedly    admitted    to    possessing   the

alleged marijuana.”             In his motion, Defendant argued that the

officers who initiated the traffic stop had no articulable facts

upon which they could have relied in order to establish a proper

basis   for    stopping        Defendant’s      vehicle.        After    conducting     a

hearing,       Judge     Hugh       B.     Lewis     entered     an     order   denying

Defendant’s motion.

       Following the denial of his motion to suppress, Defendant

pled guilty to one count of Level One trafficking in marijuana

in violation of N.C. Gen. Stat. § 90-95(h)(1)(a), and the State

dismissed      the     remaining         charges.       In     his    plea   agreement,

Defendant expressly reserved the right to appeal the denial of

his motion to suppress.                  On 13 November 2012, the trial court

entered its judgment and Defendant was sentenced to a term of 25

to 30 months imprisonment.                Defendant gave timely written notice

of appeal.

                                          Analysis

       Defendant argues on appeal that the trial court erred by
                                          -6-
denying     his    motion     to     suppress        because       the     officers    who

initiated    the    stop    of     his   vehicle      did    not    have     reasonable,

articulable suspicion to justify an investigatory traffic stop.

Alternatively, Defendant argues that the trial court erred by

failing to make findings of fact that “resolve the conflicts” in

the evidence presented at the hearing on the motion.

    “In North Carolina, a defendant’s right to pursue an appeal

from a criminal conviction is a creation of state statute.”

State v. McBride, 120 N.C. App. 623, 624, 463 S.E.2d 403, 404

(1995), aff’d per curiam, 344 N.C. 623, 476 S.E.2d 106 (1996).

Under   N.C.      Gen.   Stat.       § 15A-1444(e),         “a   defendant      who    has

entered a plea of guilty is not entitled to appellate review as

a matter of right, unless the defendant is appealing sentencing

issues or the denial of a motion to suppress, or the defendant

has made an unsuccessful motion to withdraw the guilty plea.”

State v. Pimental, 153 N.C. App. 69, 73, 568 S.E.2d 867, 870

(emphasis added), disc. review denied, 356 N.C. 442, 573 S.E.2d

163 (2002); see also N.C. Gen. Stat. § 15A-979(b) (2013) (“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.”).                             Nonetheless, “a

defendant bears the burden of notifying the                          [S]tate and the

trial court during plea negotiations of the intention to appeal
                                         -7-
the denial of a motion to suppress, or the right to do so is

waived after a plea of guilty.”                McBride, 120 N.C. App. at 625,

463 S.E.2d at 404.          Because Defendant specifically reserved his

right to appeal when he entered his guilty plea, his appeal is

properly before us.

       Our    review   of   a   trial    court’s       denial    of   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).      An   appellate      court

“accords great deference” to the trial court in this respect

“because it 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.”             Id. at 134, 291 S.E.2d at 619–20.

Unchallenged findings of fact “are presumed to be supported by

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

312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984) (internal quotation

marks omitted).        In the present case, Defendant does not argue

that    the    court’s      findings     of     fact     fail    to   support       its
                                          -8-
conclusions of law.         Therefore, we limit our review accordingly.

       “[A] traffic stop is constitutional if the officer has a

‘reasonable,     articulable      suspicion       that       criminal       activity    is

afoot.’”      State v. Barnard, 362 N.C. 244, 246–47, 658 S.E.2d

643,    645   (quoting      Illinois      v.    Wardlow,      528 U.S.       119,   123,

145 L. Ed. 2d     570,    576    (2000)),        cert.       denied,    555 U.S.       __,

172 L. Ed. 2d 198 (2008).              “This Court has determined that the

reasonable suspicion standard requires that ‘[t]he stop . . . be

based on specific and articulable facts, as well as the rational

inferences from those facts, as viewed through the eyes of a

reasonable,      cautious      officer,      guided     by    his     experience       and

training.’”       Id.    at    247,    658 S.E.2d      at     645    (alteration       and

omission in original) (quoting State v. Watkins, 337 N.C. 437,

441, 446 S.E.2d 67, 70 (1994), appeal after remand, 120 N.C.

App. 804, 463 S.E.2d 802 (1995)).                 “Reasonable suspicion is a

‘less    demanding    standard        than   probable       cause    and     requires   a

showing considerably less than preponderance of the evidence.’”

Id. (quoting Wardlow, 528 U.S. at 123, 145 L. Ed. 2d at 575–76).

       However, “[i]f the officer making the investigatory stop

(the    second   officer)      does    not     have   the     necessary      reasonable

suspicion,” State v. Battle, 109 N.C. App. 367, 370, 427 S.E.2d

156, 159 (1993), the stop “may nonetheless be made if the second

officer    receives     from    another      officer     (the       first    officer)   a
                                          -9-
request to stop the vehicle, and if, at the time the request is

issued, the first officer possessed a reasonable suspicion that

criminal conduct had occurred, was occurring, or was about to

occur.”      Id. at 370–71, 427 S.E.2d at 159.                      Moreover, where

there is “no request from the first officer that the second

officer    stop    a     vehicle,     the    collective          knowledge    of   both

officers may form the basis for reasonable suspicion by the

second officer, if and to the extent the knowledge possessed by

the first officer is communicated to the second officer.”                           Id.

at 371, 427 S.E.2d at 159.

    Finally, “[i]n North Carolina an officer may stop and issue

a citation to any motorist who he has probable cause to believe

has committed a misdemeanor or infraction.”                      State v. Hamilton,

125 N.C. App. 396, 400, 481 S.E.2d 98, 100 (internal quotation

marks     omitted),      appeal     dismissed       and    disc.     review    denied,

345 N.C. 757, 485 S.E.2d 302 (1997).                      Because N.C. Gen. Stat.

§ 20-135.2A(a) requires that “each occupant of a motor vehicle

manufactured      with    seat    belts     shall    have    a    seatbelt    properly

fastened about his or her body at all times when the vehicle is

in forward motion on a street or highway in this State,” N.C.

Gen. Stat. § 20-135.2A(a) (2013), “[a]ny person violating this

statute commits an infraction.”              Hamilton, 125 N.C. App. at 400,

481 S.E.2d at 100; see also N.C. Gen. Stat. § 20-135.2A(e).
                              -10-
    In the present case, the trial court made the following

findings of fact:

         1.   That the above-named Defendant was
              stopped on January 06, 2010, at or near
              I-485 and University City Blvd. in
              Mecklenburg    County    by   Officer   MA
              Griffin of the CMPD for failure to wear
              a seat belt pursuant to N.C. Gen. Stat.
              § 20-135.2(a)(e)    and     that   Officer
              Golshani   was    riding    with   Officer
              Griffin.

         2.   That prior to stopping the Defendant’s
              vehicle,   Officer    Griffin   received
              information via radio from CMPD Officer
              Sullivan,   who   indicated   that   the
              Defendant was driving without his seat
              belt.

         3.   That Officer Sullivan was able to
              provide   Officer   Griffin    with   a
              description of the Defendant’s vehicle,
              along with a tag number and exact
              location.

         4.   That Officer Griffin was able to locate
              the Defendant’s vehicle based on this
              information.

         5.   That Officer Griffin pulled up behind
              the Defendant’s vehicle when it was
              stopped at a red light and was able to
              observe himself that the Defendant was
              not wearing his seat belt.

The trial court then made the following conclusions of law:

         1.   That this matter is before the court on
              the Defendant’s Motion to Suppress
              based on violation of the Defendant’s
              Constitutional Rights under the U.S.
              Constitution and the Constitution of
              North Carolina[.]
                                     -11-
           2.     That pursuant to State v[.] Styles,
                  362 N.C. App[.] 412, 665 S.E.2d[] 438,
                  reasonable    suspicion   existed   for
                  Officer Griffin to conduct a traffic
                  stop on the defendant based on his
                  observations that he was not wearing a
                  seat belt as well as the information he
                  received from Officer Sullivan.

           3.     That an objective standard, rather than
                  a subjective standard, must be applied
                  to   determine the reasonableness of
                  police   action  related   to  probable
                  cause.    State v. McClendon, 350 N.C.
                  630[,] 517 S.E.2d 128.

           4.     That,   therefore,  the   traffic  stop
                  conducted on [the] vehicle in which the
                  Defendant was driving did not violate
                  his Constitutional rights under the
                  Fourth Amendment proscription against
                  unreasonable seizures.

      Our review of the record reveals that competent evidence

existed to support the trial court’s findings of fact, which

support its conclusions of law.           Officer Griffin testified that

prior to initiating        the stop of Defendant’s vehicle, he had

personally observed that Defendant was not wearing his seatbelt

and that the belt “was actually just hanging,” both as Defendant

was   exiting   off   of   I-485    and   when   the   officer   was   stopped

directly behind Defendant at the traffic light at the end of the

exit ramp of the interstate.              Additionally, Officer Sullivan

testified that he, too, observed that Defendant was driving on

I-485   without    wearing    his     seatbelt,    which    information    he

communicated over the radio to his fellow officers and which
                                           -12-
information was heard by and corroborated through the testimony

of Officers Griffin and Tobbe.                    Furthermore, Officers Griffin

and Tobbe testified that Officer Sullivan also communicated the

description, license plate, and location of Defendant’s vehicle,

which information enabled Officer Griffin to locate Defendant’s

vehicle as he travelled along I-485.

       A     careful     review     of     Defendant’s       argument    on      appeal

demonstrates that he does not dispute that the record includes

this       evidence    or    that   such     evidence    supports       the    court’s

findings of fact.           Instead, Defendant challenges the credibility

of this evidence and argues that a video recording taken from

the dashboard-mounted camera in Officer Griffin’s patrol car —

which was introduced by the State at the hearing on Defendant’s

motion to suppress            —   contradicts the testimony         given by the

officers      at   the      hearing.       However,     as   Defendant        concedes,

“[w]eighing the credibility of witnesses and resolving conflicts

in their testimony is precisely the role of the superior court

in ruling on a motion to suppress.”                   State v. Veazey, 201 N.C.

App. 398, 402, 689 S.E.2d 530, 533 (2009), disc. review denied,

363 N.C. 811, 692 S.E.2d 876 (2010).

       Nevertheless, Defendant urges this Court to conclude that

the dashboard camera video recording indisputably demonstrates

that the trial court’s findings of fact were not supported by
                                        -13-
competent evidence, relying on Scott v. Harris, 550 U.S. 372,

167 L. Ed. 2d 686 (2007), for support.                    In Scott, the United

States    Supreme   Court    considered        the   denial     of   a    motion   for

summary    judgment   that    was      brought    based    on   an    assertion     of

qualified immunity.         Id. at 376, 167 L. Ed. 2d at 691.                    While

reviewing whether the lower courts had properly determined that

the movant was not entitled to qualified immunity, the Court

stated that “[w]hen opposing parties tell two different stories,

one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for

summary   judgment.”        Id.   at    380,     167 L. Ed. 2d       at   694.     The

Supreme Court proceeded to determine that “Respondent’s version

of events [wa]s so utterly discredited by the record that no

reasonable jury could have believed him,” id., and that “[t]he

Court of Appeals should not have relied on such visible fiction;

it should have viewed the facts in the light depicted by the

videotape.”    Id. at 380–81, 167 L. Ed. 2d at 694.

    Here, Defendant insists that — as in Scott — the video

recording taken from Officer Griffin’s dashboard camera belies

the testimony of both Officer Sullivan and Officer Griffin in

two ways.      First,   Defendant claims             that the video        recording

irrefutably shows that it was too dark for the officers to have
                                          -14-
observed that Defendant was not wearing his seatbelt.                        Second,

Defendant asserts that the transcript of the video recording

shows that Officer Griffin was “‘trying to come up with’ any

reason to stop [Defendant]” and that the seatbelt violation that

served as the basis for the investigatory stop was pretextual.

       With respect to Defendant’s second assertion, it has long

been   recognized     that    “it    is     immaterial    to    Fourth      Amendment

analysis that the officer may have had ulterior motives for the

traffic stop.”        Hamilton, 125 N.C. App. at 399, 481 S.E.2d at

100    (internal    quotation       marks    omitted);    see     also      State   v.

McClendon,    350 N.C.       630,    635,        517 S.E.2d    128,    131    (1999)

(“[P]olice action related to probable cause should be judged in

objective    terms,    not    subjective         terms.       Provided      objective

circumstances justify the action taken, any ulterior motive of

the officer is immaterial.” (internal quotation marks omitted)).

Therefore,    Defendant’s       attempts          to   question       the     motives

underlying Officer Griffin’s investigatory stop of Defendant’s

vehicle are not relevant to our analysis.

       With respect to Defendant’s first assertion, upon careful

review of the video recording in the record before us, we are

not persuaded that this video so irrefutably contradicts the

evidence presented to the trial court so as to have rendered the

officers’ testimony impossible.              Rather, the inferior quality of
                                          -15-
the   intermittently         blurred      images       from     the    video     recording

precludes       us    from   determining        whether       the     night’s      darkness

rendered it impossible for Officers Griffin and Sullivan to see

a swinging, unfastened seatbelt in Defendant’s vehicle either

directly or with the aid of the ambient light from passing cars

on the interstate and at the traffic light.                           Thus, we conclude

that Scott is factually distinguishable from the present case

because, unlike the video recording in Scott, the video in the

record currently before us did not “so utterly discredit[]” the

testimony of the officers upon which the trial court relied in

making    its    findings       of   fact.       See    Scott,        550 U.S.     at    380,

167 L. Ed. 2d at 694; cf. id. at 378–79, 167 L. Ed. 2d at 693

(“[R]eading the lower court’s opinion, one gets the impression

that respondent, rather than fleeing from police, was attempting

to pass his driving test . . . . The videotape tells quite a

different story.”).

      Here, the State offered competent evidence that prior to

initiating       his    investigatory          stop     of     Defendant’s         vehicle,

Officer    Griffin       personally       observed       that      Defendant       was    not

wearing    his       seatbelt    while    operating          the    vehicle,     and     that

Officer    Sullivan       observed       and   communicated           the   same    to   his

fellow    officers,      including       Officer       Griffin.        Accordingly,        we

hold the trial court did not err when it determined that Officer
                               -16-
Griffin’s investigatory stop of Defendant’s vehicle was based on

reasonable, articulable suspicion.

    Defendant next argues that the trial court’s order denying

his motion to suppress fails to contain sufficient findings of

fact because the court’s findings did not address the “material

conflict” in the evidence presented by “the conflicting video

evidence.”   However, as discussed above, we are not persuaded

that the video recording from Officer Griffin’s dashboard camera

materially conflicted with the testimony given by the officers

at the hearing.   Therefore, because no material conflict in the

evidence exists, we cannot say that the trial court erred in

denying Defendant’s motion to suppress.

                             Conclusion

    For the reasons stated above, we affirm the trial court’s

order denying Defendant’s motion to suppress.

    AFFIRMED.

    Judges CALABRIA and STROUD concur.

    Report per Rule 30(e).
