State v. Herrera ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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    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.
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    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
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    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,
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    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
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    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.
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    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.
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    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
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    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).