{ "id": 8527353, "name": "STATE OF NORTH CAROLINA v. REAL AUBIN", "name_abbreviation": "State v. Aubin", "decision_date": "1990-11-20", "docket_number": "No. 9012SC8", "first_page": "628", "last_page": "635", "citations": [ { "type": "official", "cite": "100 N.C. App. 628" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "89 L.Ed.2d 939", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 4, "opinion_index": -1 }, { "cite": "377 S.E.2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "93 N.C. App. 281", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528008 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0281-01" ] }, { "cite": "342 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703462 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0594-01" ] }, { "cite": "367 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 288", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516208 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0288-01" ] }, { "cite": "150 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561746 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0320-01" ] }, { "cite": "305 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762828 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0001-01" ] }, { "cite": "237 S.E.2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563894 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0286-01" ] }, { "cite": "210 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "24 N.C. App. 60", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548750 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/24/0060-01" ] }, { "cite": "393 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "99 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523319 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/99/0421-01" ] }, { "cite": "386 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "96 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522580 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/96/0389-01" ] } ], "analysis": { "cardinality": 674, "char_count": 15022, "ocr_confidence": 0.776, "pagerank": { "raw": 4.1059900878724644e-07, "percentile": 0.9098847075640317 }, "sha256": "88d0ff8bfd6be65ec74d20869666b52c88fbc7199a7cadbe8f2ffc99c9824ab2", "simhash": "1:9368cdcaa3ef2a59", "word_count": 2473 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and LEWIS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. REAL AUBIN" ], "opinions": [ { "text": "WELLS, Judge.\nDefendant brings forward 19 assignments of error from the trial court\u2019s order challenging the court\u2019s findings and conclusions regarding the initial stop of defendant and resulting questioning, the purported consent, and the scope of the search. We find no error.\nWe first address the initial stop. An officer\u2019s stop of a car to investigate a potential traffic offense does not require probable cause, but it is governed by the reasonableness standards of the Fourth Amendment. State v. Jones, 96 N.C. App. 389, 386 S.E.2d 217 (1989). This Court set out the guidelines for such stops in State v. Morocco, 99 N.C. App. 421, 393 S.E.2d 545 (1990):\nA police officer may conduct a brief investigative stop of a vehicle where justified by specific, articulable facts which give rise to a reasonable suspicion of illegal conduct. However, police may not make Terry-stops based on the pretext of a minor traffic violation.\nIn determining the traffic stop was pretextual, the trial court should look at what a reasonable officer would do rather than what an officer could do. (Citations omitted).\nThe trial court made extensive findings of fact in concluding that Trooper Lowry did have a reasonable suspicion that defendant was operating his vehicle while under the influence and that a reasonable officer would have stopped him. The court found that Trooper Lowry observed defendant through his rear view mirror slowing his speed to approximately 45 miles per hour and weaving within his lane. Our review of the record reveals competent evidence to support the trial court\u2019s findings, and we are accordingly bound by them. Morocco, supra.\nWe also hold that these findings support the trial court\u2019s conclusions. In Jones, supra, we held that observations of a car going 20 miles an hour below the posted speed and weaving within its lane are sufficient to raise a reasonable suspicion that the driver is operating the vehicle while impaired. Given the public interest in removing impaired drivers from the highways, these observations are also sufficient to support a conclusion that a reasonable officer would have stopped defendant to investigate the cause of this erratic driving. See Morocco, supra.\nWe next address defendant\u2019s contention that Trooper Lowry improperly detained and questioned him for purposes other than an investigation of impaired driving. The trial court found that Trooper Lowry asked for defendant\u2019s license and registration and was given a Canadian driver\u2019s license and a rental car agreement. Defendant was asked to move to Lowry\u2019s patrol vehicle so that Lowry could detect the presence of any alcohol on his person and to observe him walking to the car. The court also found that Lowry asked defendant about his residence and travel plans and was told that although defendant lived in Quebec, he was returning the car to Newark. Lowry then handed defendant back his license and the agreement and asked for and received consent to search his car. The court then found that Lowry attempted to get defendant to sign a consent form, which defendant declined to do, but repeated his consent orally. Our review of the record again reveals competent evidence to support these findings.\nWe recognize that an investigative stop and inquiry must be reasonably related in scope to the initial justification for it. State v. Jones, supra. In Jones, this Court refused to adopt a rule which would limit an officer\u2019s ability to investigate suspicious matters uncovered during an investigatory stop. In Morocco, Trooper Lowry asked about the driver\u2019s vehicle and registration in the patrol car while filling out a warning ticket. We held that such \u201cpolite conversation\u201d was not improper. In this case, Trooper Lowry asked defendant about his plans for returning the car, whether he still lived in Quebec, what he did for a living and how the weather was in Florida. As in Morocco, this conversation did not exceed permissible police behavior. Lowry\u2019s investigation was reasonable in subject matter and scope.\nDefendant also contends that he did not freely and voluntarily consent to the search of his car, and that if he did, the search exceeded the scope of the consent given. We disagree.\nWhen the State relies on a purported consent to justify a warrantless search, it has the burden of proving that the consent was voluntary and not the result of express or implied coercion. State v. Glaze, 24 N.C. App. 60, 210 S.E.2d 124 (1974). Voluntariness is a question of fact to be determined from all the surrounding circumstances. Id. At a hearing to determine the voluntariness of a defendant\u2019s consent to a search of his property, the weight to be given the evidence is peculiarly a determination for the trial court, and its findings are conclusive when supported by competent evidence. State v. Long, 293 N.C. 286, 237 S.E.2d 728 (1977). See also State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983).\nIn this case, the trial court!s findings of fact, supported by competent evidence, support the conclusion that defendant freely, intelligently, and voluntarily consented to the search of his car. The court\u2019s findings indicate that defendant responded three separate times with no apparent reservations that Trooper Lowry could search, look in, and check the car. They do not indicate that defendant was held in the car for any improper length of time, or was subjected to any pressure from Trooper Lowry. While findings do indicate that defendant may have had some difficulty understanding the consent form, or the purpose for it, this does not require the conclusion that he did not intelligently and voluntarily consent to the search. The trial court specifically found that defendant displayed an educated and understanding use of the English language during the stop. Finally, the court found that Lowry did not threaten or harass defendant, did not restrain his movements during the search, and that defendant was in sole possession of his keys, license and identification papers throughout the search.\nThese findings of fact also support the conclusion that Trooper Lowry\u2019s search of defendant\u2019s car did not exceed the scope of defendant\u2019s consent. In Morocco, supra, Lowry searched the trunk and back seat of defendant\u2019s vehicle, where he found a tote bag. This Court upheld the scope of the search, holding:\nThe defendant\u2019s consent to search the automobile for contraband \u00e9ntitled Lowry to conduct a reasonable search anywhere inside the automobile which reasonably might contain contraband. . . .\nSimilarly, in State v. Belk, 268 N.C. 320, 150 S.E.2d 481 (1966), the Court held that defendant\u2019s consent to the officer\u2019s search of his trunk implied consent to search any part of his car. It found support for this holding in the fact that none of the defendants objected to the search once it was begun. In this case, defendant gave oral consent to a search of his car for contraband. He did not object in any way to what Trooper Lowry was doing. It was reasonable for Lowry to lift up the corner of the back seat in the progress of his search.\nDefendant has also assigned error to the court\u2019s failure to make a long list of alternate and additional findings of fact. As stated above, we are bound by the trial court\u2019s findings of fact if they are supported by competent evidence. We have reviewed a videotape exhibit submitted at trial and do not find it so conclusively inconsistent with the trial court\u2019s findings that it would lead us to overrule any of them. Conflicts in the evidence at a suppression hearing are to be resolved by the trial court. See State v. Johnson, 322 N.C. 288, 367 S.E.2d 660 (1988). The court must make findings resolving conflicts in the evidence which are material to its decision. See State v. Richardson, 316 N.C. 594, 342 S.E.2d 823 (1986). In State v. Ghaffar, 93 N.C. App. 281, 377 S.E.2d 88 (1989), we vacated an order of the trial court because of insufficient findings on the questions of the officer\u2019s reasonable suspicion, the appropriateness of the investigatory detention, and the voluntariness of the consent. In this case, however, there are sufficient findings to support the conclusions deciding each issue. These assignments of error are overruled.\nThere is competent evidence in this record to support the trial court\u2019s findings, and these findings in turn support the court\u2019s conclusions.\nNo error.\nJudges COZORT and LEWIS concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Francis W. Crawley, for the State.", "Tharrington, Smith & Hargrove, by Wade M. Smith, Roger W. Smith, and C. Mark Holt, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. REAL AUBIN\nNo. 9012SC8\n(Filed 20 November 1990)\n1. Searches and Seizures \u00a7 12 (NCI3d) \u2014 investigative stop\u2014 reasonable suspicion of impaired driving\nAn officer had a reasonable suspicion that defendant was operating his vehicle while impaired so that an investigative stop of defendant\u2019s vehicle was lawful where the officer observed defendant through his rear view mirror slowing his speed on 1-95 to approximately 45 miles per hour and weaving within his lane.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 42, 43, 45, 99.\nValidity, under Federal Constitution, of warrantless search of motor vehicle \u2014 Supreme Court cases. 89 L.Ed.2d 939.\n2. Searches and Seizures \u00a7 12 (NCI3d)\u2014 investigative stop\u2014 questions not impermissible\nAn officer did not exceed the permissible scope of his initial stop of defendant\u2019s vehicle to investigate whether defendant was driving while impaired when he asked defendant about his plans for returning the rental car he was driving to Newark, New Jersey, whether he still lived in Quebec, Canada, what he did for a living, and how the weather was in Florida.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 42, 43, 45, 99.\nValidity, under Federal Constitution, of warrantless search of motor vehicle \u2014 Supreme Court cases. 89 L.Ed.2d 939.\n3. Searches and Seizures \u00a7 14 (NCI3d)\u2014 consent to search\u2014 voluntariness\nThe trial court did not err in concluding that defendant voluntarily consented to a search of his car for contraband after an investigatory stop based on a suspicion that defendant was driving while impaired where the evidence supported findings by the court that defendant on three occasions orally gave the officer permission to search his car with no apparent reservations, that defendant was not held in the car for any improper length of time and was not subjected to any pressure by the officer, that defendant displayed an educated and understanding use of the English language during the stop, that the officer did not restrain defendant\u2019s movements during the search, and that defendant was in sole possession of his keys, license and identification papers throughout the search. The fact that defendant may have had some difficulty understanding the consent form, which he did not sign, did not require the conclusion that he did not intelligently and voluntarily consent to the search.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 46, 47, 100.\nValidity, under Federal Constitution, of warrantless search of motor vehicle \u2014 Supreme Court cases. 89 L.Ed.2d 939.\n4. Searches and Seizures \u00a7 38 (NCI3d)\u2014 consent to search car\u2014 lifting of back seat\nAn officer did not exceed the scope of defendant\u2019s oral consent to a search of his car for contraband when he lifted the corner of the back seat out of position and discovered cocaine under the seat.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 46, 47, 100.\nValidity, under Federal Constitution, of warrantless search of motor vehicle \u2014 Supreme Court cases. 89 L.Ed.2d 939.\nAPPEAL by defendant from judgment entered 5 September 1989 in CUMBERLAND County Superior Court by Judge Gregory A. Weeks. Heard in the Court of Appeals 25 September 1990.\nDefendant was arrested and charged with trafficking in cocaine by possession of 400 or more grams, trafficking in cocaine by transportation of 400 or more grams, and intentionally keeping or maintaining a motor vehicle for keeping or selling controlled substances. He pled guilty to trafficking by possession and trafficking by transportation, reserving his right to appeal the denial of his pretrial motion to suppress evidence and statements.\nAt the suppression hearing (Judge Giles R. Clark presiding), State\u2019s evidence tended to show that defendant was stopped while driving north on 1-95 in Cumberland County by Trooper L. E. Lowry. Lowry was in pursuit of another vehicle when he observed in his rear view mirror that defendant\u2019s car was slowing markedly and weaving within its lane. Lowry then slowed his vehicle, eventually pulling off to an emergency lane to allow defendant to pass. He then pulled back onto the highway behind defendant, drove up on the left side to observe the driver, fell back behind defendant\u2019s car, and activated his blue light. Defendant pulled off to the side of the road.\nLowry then approached the driver\u2019s window and asked for his license and registration. Defendant produced a Canadian driver\u2019s license written in French and a rental car agreement. The weather was windy, so Lowry asked defendant to move to his patrol vehicle so he could determine in a closed space whether defendant had any odor of alcohol about him. When they were in the car, Lowry told defendant he had been stopped because of his erratic driving, and defendant responded that he was okay. Lowry spoke to defendant about his travels, and was told that he had flown to Florida from Montreal, and was returning the rental vehicle to Newark, New Jersey. Lowry told defendant of a \u201cprogram\u201d where cars heading north were being searched for weapons and contraband, and asked for his consent to search his car. Defendant said okay.\nLowry then filled out a consent to search form and pointed to the place for defendant to sign. Defendant did not sign the form, but stated \u201cYou\u2019re all right to look in the car,\u201d and \u201cYou can go and check my car. No problem. I don\u2019t understand you no way.\u201d The two then exited the car. Defendant\u2019s driver\u2019s license and the rental agreement were returned some time before they got out of the car.\nDefendant unlocked the trunk and front passenger door for Lowry. Lowry searched the car. Defendant stood behind him, periodically making statements and asking questions unrelated to the search. Lowry opened the back passenger door and searched the back seat area, including lifting the bottom portion of the seat up and out of position. He noticed what appeared to be cocaine under the seat and arrested defendant.\nDefendant\u2019s evidence focused on his claims that he had driven properly at all times and was stopped because he matched a drug courier profile, that he spoke little English and had difficulty understanding Lowry, and that he never consented to the scope of the search which was carried out.\nThe trial court denied defendant\u2019s motion on 10 March 1989. An order was filed on 19 June 1989, nunc pro tunc. Defendant then pled guilty pursuant to a plea arrangement, and was sentenced to 24 years\u2019 imprisonment and fined $100,000.00.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Francis W. Crawley, for the State.\nTharrington, Smith & Hargrove, by Wade M. Smith, Roger W. Smith, and C. Mark Holt, for defendant-appellant." }, "file_name": "0628-01", "first_page_order": 660, "last_page_order": 667 }