{ "id": 9249037, "name": "STATE OF NORTH CAROLINA v. CEDRIC WILSON, JR. and HAYDEN CALVERT", "name_abbreviation": "State v. Wilson", "decision_date": "2002-12-31", "docket_number": "No. COA01-1539", "first_page": "89", "last_page": "100", "citations": [ { "type": "official", "cite": "155 N.C. App. 89" } ], "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": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(h)(3)", "parenthetical": "a-c" } ], "opinion_index": 0 }, { "cite": "412 U.S. 205", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171860 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "208" }, { "page": "847" } ], "opinion_index": 0, "case_paths": [ "/us/412/0205-01" ] }, { "cite": "539 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "924", "parenthetical": "quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)" } ], "opinion_index": 0 }, { "cite": "353 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135796 ], "year": 2000, "pin_cites": [ { "page": "237", "parenthetical": "quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0234-01" ] }, { "cite": "318 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "886" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520404 ], "year": 1984, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0082-01" ] }, { "cite": "357 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "638", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "320 N.C. 143", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725415 ], "year": 1987, "pin_cites": [ { "page": "146", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0143-01" ] }, { "cite": "564 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "304", "parenthetical": "citation and footnote omitted" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079463 ], "year": 2002, "pin_cites": [ { "page": "110", "parenthetical": "citation and footnote omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0107-01" ] }, { "cite": "93 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "433" } ], "opinion_index": 0 }, { "cite": "244 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219561 ], "year": 1956, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0380-01" ] }, { "cite": "296 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "653" } ], "opinion_index": 0 }, { "cite": "307 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560587 ], "year": 1982, "pin_cites": [ { "page": "67" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0062-01" ] }, { "cite": "417 S.E.2d 756", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "331 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498402 ], "year": 1992, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0537-01" ] }, { "cite": "405 S.E.2d 358", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "103 N.C. App. 175", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520024 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/103/0175-01" ] }, { "cite": "148 L. Ed. 2d 997", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1167", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9788992, 9787808, 9789122, 9787422, 9788430, 9788718, 9787538, 9789235, 9787676, 9788053, 9788565, 9788309, 9788860, 9788188, 9787934 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1167-13", "/us/531/1167-04", "/us/531/1167-14", "/us/531/1167-01", "/us/531/1167-09", "/us/531/1167-11", "/us/531/1167-02", "/us/531/1167-15", "/us/531/1167-03", "/us/531/1167-06", "/us/531/1167-10", "/us/531/1167-08", "/us/531/1167-12", "/us/531/1167-07", "/us/531/1167-05" ] }, { "cite": "536 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "9" } ], "opinion_index": 0 }, { "cite": "352 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685065 ], "year": 2000, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0227-01" ] }, { "cite": "460 U.S. 491", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195479 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "500" }, { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/us/460/0491-01" ] }, { "cite": "393 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "549", "parenthetical": "quoting Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d. 229, 238 (1983)" }, { "page": "549" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 421", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523319 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "427-28", "parenthetical": "quoting Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d. 229, 238 (1983)" }, { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0421-01" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "70" }, { "page": "69-70" } ], "opinion_index": 0 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "441" }, { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-152", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "195 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "507" } ], "opinion_index": 0 }, { "cite": "283 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558310 ], "year": 1973, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nc/283/0203-01" ] }, { "cite": "291 S.E.2d 637", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "641", "parenthetical": "quoting State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d 502, 507 (1973)" } ], "opinion_index": 0 }, { "cite": "305 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573152 ], "year": 1982, "pin_cites": [ { "page": "741", "parenthetical": "quoting State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d 502, 507 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0734-01" ] }, { "cite": "539 S.E.2d 5", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "350 N.C. 847", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 131976, 132299, 132174, 132007 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc/350/0847-02", "/nc/350/0847-03", "/nc/350/0847-04", "/nc/350/0847-01" ] }, { "cite": "510 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "167" }, { "page": "167", "parenthetical": "deputy had reasonable suspicion to stop the defendant after noticing Florida tags and window tinting which the deputy believed was darker than permitted under North Carolina law" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11236837 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "26" }, { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0022-01" ] }, { "cite": "485 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 757", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54212, 53840, 53910, 53946, 54173 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0757-01", "/nc/345/0757-05", "/nc/345/0757-04", "/nc/345/0757-02", "/nc/345/0757-03" ] }, { "cite": "481 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "100" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 396", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11868081 ], "pin_cites": [ { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0396-01" ] }, { "cite": "517 S.E.2d 128", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "132" }, { "page": "134" } ], "opinion_index": 0 }, { "cite": "350 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132043 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "636" }, { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0630-01" ] }, { "cite": "502 S.E.2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "906", "parenthetical": "officer had probable cause to stop vehicle and issue citation for speeding and following too closely" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 368", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11467624 ], "year": 1998, "pin_cites": [ { "page": "374", "parenthetical": "officer had probable cause to stop vehicle and issue citation for speeding and following too closely" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0368-01" ] }, { "cite": "564 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220032, 219940, 219910, 220175, 219996 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0500-05", "/nc/355/0500-01", "/nc/355/0500-02", "/nc/355/0500-04", "/nc/355/0500-03" ] }, { "cite": "555 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "297" }, { "page": "297-98", "parenthetical": "officer had reasonable suspicion to stop the defendant for a revoked license based on his knowledge of the defendant" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378179 ], "year": 2001, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0094-01" ] }, { "cite": "569 S.E.2d, 814", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "818", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9366580 ], "year": 2002, "pin_cites": [ { "page": "466", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0462-01" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "303 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "806" } ], "opinion_index": 0 }, { "cite": "308 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710863 ], "year": 1983, "pin_cites": [ { "page": "740" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0736-01" ] } ], "analysis": { "cardinality": 1037, "char_count": 26948, "ocr_confidence": 0.761, "pagerank": { "raw": 4.94213395741219e-07, "percentile": 0.9347282409128872 }, "sha256": "2dc8b5ddda6bf114ae3b06a7f9203a3a20b46302b24ea04f53aea65d01bd463d", "simhash": "1:1a41ee2a7d733c4a", "word_count": 4354 }, "last_updated": "2023-07-14T20:08:10.559314+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and McGEE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CEDRIC WILSON, JR. and HAYDEN CALVERT" ], "opinions": [ { "text": "HUNTER, Judge.\nDefendants, Cedric Wilson, Jr. (\u201cDefendant Wilson\u201d) and Hayden Calvert (\u201cDefendant Calvert\u201d), appeal from their convictions of two counts of trafficking in cocaine, felonies under Section 90-95(h) of the North Carolina General Statutes. We find no error.\nThe State\u2019s evidence tended to show that on 8 October 1999, Trooper R. D. Mountain (\u201cTrooper Mountain\u201d) of the North Carolina Highway Patrol observed a white Dodge following another vehicle too closely. The Dodge was less than one car length behind the vehicle and traveling approximately sixty-nine miles per hour. Trooper Mountain proceeded to follow the Dodge, which had slowed its speed to approximately fifty miles per hour in a seventy mile-per-hour zone.\nThe driver of the vehicle, Defendant Wilson, pulled over immediately when signaled by the officer. Defendant Calvert was the only passenger in the car. Upon request, Defendant Wilson produced his Ohio driver\u2019s license and a Florida vehicle registration in the name of Calvin Smith. During this time, Trooper Mountain observed a road atlas in the back seat and screws missing from the dashboard. There was also a strong odor of air freshener coming from inside the vehicle. Trooper Mountain asked Defendant Wilson to return with him to the patrol car so as to issue Defendant Wilson a warning ticket for following too closely, a violation under Section 20-152 of the North Carolina General Statutes.\nOnce in the patrol car, Trooper Mountain ran checks on Defendant Wilson\u2019s license and the vehicle registration. Trooper Mountain observed that Defendant Wilson was \u201cextremely nervous\u201d while in the patrol car. Trooper Mountain asked Defendant Wilson about his trip to Florida and about the vehicle. Defendant Wilson told Trooper Mountain he had accompanied Defendant Calvert to Florida for the purpose of visiting Defendant Calvert\u2019s grandmother. Defendant Wilson explained that he and Defendant Calvert traveled from Ohio to Florida in a white Plymouth Sundance. Once in Florida, that vehicle broke down and Defendant Calvert borrowed his friend\u2019s vehicle for their return trip. Defendant Wilson stated that the owner of the Dodge was planning to fly to Ohio and pick up the vehicle.\nMeanwhile, Officer Rodney Crater (\u201cOfficer Crater\u201d) and Sergeant William Grey (\u201cSergeant Grey\u201d) arrived at the scene. Officer Crater asked Defendant Calvert to exit the Dodge while his police dog, Zero, performed an \u201cexterior sniff.\u201d Officer Crater described Defendant Calvert also as being very nervous. Sergeant Grey asked Defendant Calvert a few questions about his trip to Florida. Defendant Calvert told Sergeant Grey defendants had gone to Florida to visit his grandmother. He said the vehicle they were driving broke down and a friend loaned them the Dodge to return home. When asked what type of car defendants had driven to Florida, Defendant Calvert said, \u201c[i]t\u2019s a Camry \u2014 no, it\u2019s an Acura.\u201d\nTrooper Mountain issued Defendant Wilson a warning ticket. As Defendant Wilson proceeded to exit the patrol car, Trooper Mountain asked Defendant Wilson if he could ask him additional questions. Defendant Wilson consented. The additional questions related to illegal weapons and drugs. Trooper Mountain then asked Defendant Wilson if he could search the Dodge. Defendant Wilson agreed and signed a consent form. Another officer arrived at the scene after Defendant Wilson gave his consent.\nWhile searching the vehicle\u2019s engine compartment, Sergeant Grey noticed the battery looked like it had been re-sealed. The battery seemed lighter than normal, and upon testing the inside depth of the battery, a false bottom was discovered. At that point, the officers and defendants drove to the nearest gas station to further inspect the battery. When the battery was opened, the officers found cocaine inside that was later determined to have a weight of 1,995 grams. Trooper Mountain testified at trial that immediately after finding the cocaine, Defendant Calvert stated, \u201cit\u2019s mine.\u201d Trooper Mountain asked Defendant Calvert \u201cwhat\u201d and Defendant Calvert said \u201ccocaine.\u201d\nOn 19 and 20 July 2000 respectively, Defendant Wilson and Defendant Calvert filed separate motions to suppress the cocaine, each arguing that the search and seizure was unlawful. Both defendants\u2019 motions were denied. Thereafter, when the cocaine was admitted into evidence at trial, neither defendant objected. On 3 May 2001, Defendants Wilson and Calvert were found guilty of trafficking in cocaine. Both defendants appeal.\nPrior to addressing both defendants\u2019 assignments of error, we note that they filed a joint record on appeal in this case which failed to include Defendant Calvert\u2019s (1) Verdict forms, (2) Judgment and Commitment, and (3) Appellate Entries. On our own initiative, this Court contacted Defendant Calvert\u2019s attorney and ordered these documents be \u201csent up and added to the record on appeal.\u201d N.C.R. App. P. 9(b)(5). Having received the necessary documents, we may now reach the merits of Defendant Calvert\u2019s assigned errors.\nI.\nDefendants first argue the trial court erred by denying their pretrial motions to suppress all of the evidence obtained as a result of the search conducted by the officers. Specifically, defendants contend the evidence should have been suppressed because (1) Trooper Mountain\u2019s stop of their vehicle was pretextual, (2) their detainment by the officers was unreasonably long, and (3) Defendant Wilson\u2019s consent to the search was not given voluntarily. However, both defendants failed to renew their objection to the admission of this evidence at trial. Thus, we must review their argument using the \u201cplain error\u201d rule. State v. Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983).\nThe \u201cplain error\u201d rule:\n\u201c[I]s always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u2018fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u2019 or \u2018where [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u2019 or the error has \u2018 \u201cresulted in a miscarriage of justice or in the denial to appellant of a fair trialf.]\u201d \u2019 \u201d\nId. (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)).\n1. Pretextual Stop\nIn ruling on defendants\u2019 motions to suppress, the trial court in the present case concluded \u201cTrooper Mountain had a reasonable, articulable suspicion to stop defendants\u2019 vehicle for a violation of NCGS 20-152.\u201d Defendants argue that since probable cause is the requisite standard under this statute and there were no objective facts from which the court could have concluded probable cause existed, Trooper Mountain\u2019s stopping their vehicle was a mere pretext for investigating them for illegal drug possession. We disagree.\n\u201cAlthough the trial court\u2019s findings of fact are generally deemed conclusive where supported by competent evidence, \u2018a trial court\u2019s conclusions of law regarding whether the officer had reasonable suspicion [or probable cause] to detain a defendant is reviewable de novo.\u2019 \u201d State v. Young, 148 N.C. App. 462, 466, 569 S.E.2d, 814, 818 (2002) (alteration in original) (quoting State v. Kincaid, 147 N.C. App. 94, 97, 555 S.E.2d 294, 297 (2001)), appeal dismissed and disc. review denied, 355 N.C. 500, 564 S.E.2d 233 (2002). After conducting such a review, we conclude probable cause was the requisite standard in this case and Trooper Mountain did have probable cause to stop defendants\u2019 vehicle.\nIn Young, Judge K. Edward Greene wrote a concurring opinion that addressed when reasonable suspicion or probable cause is required in the context of a traffic stop. His concurring opinion stated in pertinent part:\nWhile there are instances in which a traffic stop is also an investigatory stop, warranting the use of the lower standard of reasonable suspicion, the two are not always synonymous. A traffic stop made on the basis of a readily observed traffic violation such as speeding or running a red light is governed by probable cause. See, e.g., State v. McClendon, 130 N.C. App. 368, 374, 502 S.E.2d 902, 906 (1998) (officer had probable cause to stop vehicle and issue citation for speeding and following too closely), affirmed, 350 N.C. 630, 517 S.E.2d 128 (1999); State v. Hamilton, 125 N.C. App. 396, 399, 481 S.E.2d 98, 100 (officer had probable cause to stop the vehicle for the purpose of issuing seat belt citations because he had observed that both the driver and the defendant were not wearing seat belts), disc. review denied, 345 N.C. 757, 485 S.E.2d 302 (1997); see also N.C. Gen. Stat. \u00a7 15A-302(b) (1999) (an officer may issue a citation to any person who he has probable cause to believe has committed a misdemeanor or infraction). Probable cause is \u201ca suspicion produced by such facts as indicate a fair probability that the person seized has engaged in or is engaged in criminal activity.\u201d State v. Schiffer, 132 N.C. App. 22, 26, 510 S.E.2d 165, 167, disc. review denied, 350 N.C. 847, 539 S.E.2d 5 (1999). On the other hand, a traffic stop based on an officer\u2019s [reasonable] suspicion that a traffic violation is being committed, but which can only be verified by stopping the vehicle, such as drunk driving or driving with a revoked license, is classified as an investigatory stop, also known as a Terry stop. See, e.g., State v. Kincaid, [147] N.C. App. [94, 98], 555 S.E.2d 294, 297-98 (2001) (officer had reasonable suspicion to stop the defendant for a revoked license based on his knowledge of the defendant); Schiffer, 132 N.C. App. at 26, 510 S.E.2d at 167 (deputy had reasonable suspicion to stop the defendant after noticing Florida tags and window tinting which the deputy believed was darker than permitted under North Carolina law). Such an investigatory-type traffic stop is justified if the totality of circumstances affords an officer reasonable grounds to believe that criminal activity may be afoot. State v. Peck, 305 N.C. 734, 741, 291 S.E.2d 637, 641 (1982) (quoting State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d 502, 507 (1973)).\nId. at 470-71, 559 S.E.2d at 820-21 (Greene, J., concurring). Having found this analysis of reasonable suspicion and probable cause to be instructive, we apply it to the case sub judice.\nHere, Trooper Mountain testified at the suppression hearing and trial that he observed defendants\u2019 Dodge traveling behind another vehicle at a distance of less than one car length and at a speed of sixty-nine miles per hour. Section 20-152(a) provides \u201c[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.\u201d N.C. Gen. Stat. \u00a7 20-152(a) (2001). As referenced in Judge Greene\u2019s concurring opinion, our Supreme Court has held that where a \u201cdefendant\u2019s vehicle was . . . following too closely, which is a violation of N.C.G.S. \u00a7 20-152[]... the officers had probable cause to stop the vehicle[] and to issue a warning ticket. . . .\u201d State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999). Trooper Mountain\u2019s personal observation of the Dodge\u2019s speed and its following distance to another vehicle provided him with a sufficient blend of circumstances to establish that Trooper Mountain had probable cause to believe that defendants were in violation of Section 20-152. Since Trooper Mountain had probable cause that a traffic violation had occurred, further investigation was unnecessary for purposes of issuing Defendant Wilson a warning ticket. Thus, defendants\u2019 motion to suppress was properly denied because the stop was not pretextual; Trooper Mountain had probable cause to stop defendants\u2019 vehicle for following another vehicle too closely.\n2. Detainment of Defendants\nSecond, defendants argue the initial stop of their vehicle was unreasonably long thereby resulting in a violation of the Fourth Amendment of the United States Constitution.\nDetentions protected by the Fourth Amendment include \u201cbrief investigatory detentions such as those involved in the stopping of a vehicle.\u201d State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). Such a stop must be based on a \u201creasonable suspicion,\u201d determined by looking at the totality of the circumstances. Id. \u201c \u2018The scope of the detention must be carefully tailored to its underlying justification.\u2019 \u201d State v. Morocco, 99 N.C. App. 421, 427-28, 393 S.E.2d 545, 549 (1990) (quoting Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d. 229, 238 (1983)).\nThe evidence showed that defendants were not stopped and detained by Trooper Mountain for an unreasonably long period of time. Defendant Wilson\u2019s violation of Section 20-152(a) established the probable cause needed to initially stop the vehicle \u2014 meeting the lesser standard of reasonable suspicion. Once stopped, defendants were detained long enough for Trooper Mountain to ask Defendant Wilson questions about the vehicle and his travel plans, as well as check Defendant Wilson\u2019s license and the vehicle registration, both of which were out-of-state. While in the patrol car, Trooper Mountain observed that Defendant Wilson was extremely nervous. Once Trooper Mountain completed the required checks, he issued Defendant Wilson a warning ticket, and Wilson was free to leave. This process took approximately seven to eight minutes. Thus, these questions and actions were all reasonably related to Trooper Mountain\u2019s underlying justification of issuing a warning ticket.\nDefendants further argue their detention subsequent to the issuance of the warning ticket was unreasonably long. The North Carolina Supreme Court has held that in order to further detain a person after a lawful stop, an officer must have a \u201creasonable suspicion, based on specific and articulable facts, that criminal activity is afoot.\u201d State v. McClendon, 350 N.C. at 636, 517 S.E.2d at 134. These facts, as well as the rational inferences drawn from them, are to be \u201cviewed through the eyes of a reasonable, cautious officer, guided by his experience and training.\u201d State v. Watkins, 337 N.C. at 441, 446 S.E.2d at 69-70. Again, the court must look to the totality of the circumstances to determine if a reasonable suspicion exists to allow further delay. Id.\nAs previously stated, the court concluded that Trooper Mountain had a reasonable suspicion to further detain defendants after the warning ticket was issued. The evidence established that (1) the vehicle contained a strong odor of air freshener; (2) an atlas was seen in the back seat and screws were missing from the dashboard; (3) the vehicle was registered in Florida, but the driver was from Ohio; (4) there was a discrepancy in the defendants\u2019 descriptions of the vehicle left in Florida; and (5) Defendant Wilson was very nervous, tapping his hands and feet while in Trooper Mountain\u2019s patrol car. Additionally, Trooper Mountain, as a trained police officer with special knowledge in the area of illegal drugs, knew that Defendant Wilson\u2019s actions were consistent with those of a drug trafficker. Therefore, the evidence, based on the circumstances in the present case, provided Trooper Mountain with reasonable suspicion to further delay defendants.\n3. Consent to Search\nDefendants\u2019 final argument regarding suppression of the evidence contends Defendant Wilson\u2019s consent was invalid because it was not obtained freely and voluntarily. We disagree.\nThe consent needed to justify a search may be given by the \u201cperson in apparent control of [a vehicle\u2019s] operation and contents at the time the consent is given.\u201d N.C. Gen. Stat. \u00a7 15A-222 (2001). When seeking to rely on the consent given to support the validity of a search, the State has \u201cthe burden of proving that the consent was voluntary.\u201d State v. Morocco, 99 N.C. App. at 429, 393 S.E.2d at 549. In determining whether this burden has been met, the court must look at the totality of the circumstances. State v. Steen, 352 N.C. 227, 240, 536 S.E.2d 1, 9 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001).\nIn the case sub judice, the totality of the circumstances established Defendant Wilson\u2019s consent was indeed given freely and voluntarily. Defendants were pulled over by one police officer. Three additional police officers arrived at the scene some time thereafter. With the exception of his short conversation with Sergeant Grey, Defendant Wilson only interacted with Trooper Mountain prior to giving his consent. Defendant Wilson, as the driver of the car and in apparent control of its operation, was an acceptable person to give consent to the search in the absence of the vehicle\u2019s owner. See State v. McDaniels, 103 N.C. App. 175, 405 S.E.2d 358 (1991). Additionally, Sergeant Grey spoke with Defendant Calvert while Officer Crater conducted an \u201cexterior sniff\u2019 of the vehicle with Zero. The fourth officer did not arrive on the scene until after consent was given. There is no evidence that the officers, at any point, made a concerted effort to coerce defendants or displayed their authority in a manner that would make Defendant Wilson feel as though he had no choice but to consent.\nAccordingly, the trial court did not commit error, much less \u201cplain error,\u201d in denying defendants\u2019 motions to suppress the evidence obtained from the search.\nII.\nDefendant Wilson also argues that the trial court erred by denying his motion to dismiss the trafficking in cocaine charge against him because the State did not present sufficient evidence to convict him on the theory of constructive possession. We conclude that there was sufficient evidence and the trial court properly denied Defendant Wilson\u2019s motion to dismiss.\nIn order to survive a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, drawing every reasonable inference in favor of the State. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 756, 761 (1992). The evidence considered must be \u201csubstantial evidence (a) of each essential element of the offense charged, or of a lesser offense included therein, and (b) of defendant\u2019s being the perpetrator of the offense.\u201d State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982). Whether the evidence presented is substantial is a question of law for the court. State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431, 433 (1956).\nWith respect to Defendant Wilson\u2019s argument, \u201c[o]ur statutes provide that a person who possesses twenty-eight grams or more of cocaine shall be guilty of the felony known as \u2018trafficking in cocaine.\u2019 The possession element of this felony can be proven by showing either actual possession or constructive possession.\u201d State v. Siriguanico, 151 N.C. App. 107, 110, 564 S.E.2d 301, 304 (2002) (citation and footnote omitted). In determining whether possession is constructive, this Court has held:\n\u201cWhere such materials are found on the premises under the control of an accused, this fact, in and of itself, gives rise to an inference of knowledge and possession which may be sufficient to carry the case to the jury on a charge of unlawful possession.\u201d It is not necessary to show that an accused has exclusive control of the premises where [drugs and/or drug] paraphernalia are found, but \u201cwhere possession ... is nonexclusive, constructive possession . . . may not be inferred without other incriminating circumstances.\u201d\nState v. McLaurin, 320 N.C. 143, 146, 357 S.E.2d 636, 638 (1987) (citations omitted). Additionally, this Court has recognized that constructive possession can be inferred when there is evidence that a defendant had the power to control the vehicle where a controlled substance is found. State v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984). \u201c[P]ower to control the [vehicle] where a controlled substance was found is sufficient, in and of itself, to give rise to the inference of knowledge and possession sufficient to go to the jury.\u201d Id.\nWhen viewed in the light most favorable to the State, there is considerable evidence to support the State\u2019s theory of constructive possession. The evidence showed that Defendant Wilson was the driver of the vehicle where the drugs were found and aware of the circumstances by which he came into possession of the Dodge. By his own admission, Defendant Wilson was also aware that Defendant Calvert disappeared for a while upon arrival in Florida and returned later with a \u201cfriend\u2019s\u201d car to drive back to Ohio. Moreover, Trooper Mountain testified that Defendant Wilson was \u201cextremely nervous\u201d when pulled over by the officers. Finally, there was evidence that the vehicle had a strong smell of air freshener. These additional circumstances tend to further incriminate Defendant Wilson when all reasonable inferences are made in favor of the State. Thus, the court did not err in denying the motion to dismiss, and the jury was entitled to hear an instruction as to the State\u2019s theory of constructive possession.\nIII.\nFinally, Defendant Calvert argues the trial court erred by its failure to instruct the jury as to the three different levels of trafficking in cocaine. We disagree.\nA \u201c[defendant is \u2018entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.\u201d State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)). When the offense is for trafficking in cocaine, the only difference between the greater and lesser levels of the offense relate to the amount of cocaine found. N.C. Gen. Stat. \u00a7 90-95(h)(3)(a-c) (2001). In the present case, it is undisputed that the amount of cocaine discovered by the officers weighed 1,995 grams. Since the weight of the cocaine was clear, the jury could not have convicted Defendant Calvert of a lesser level of trafficking in cocaine in the absence of evidence supporting a lesser offense. Thus, the court did not err by failing to instruct the jury as to the different levels by which Defendant Calvert could have been found guilty of this offense.\nFor the aforementioned reasons, there was no error in the trial and convictions of defendants.\nNo error.\nJudges WALKER and McGEE concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Joan M. Cunningham, for the State.", "Martin & Martin, P.A., by J. Matthew Martin and Harry C. Martin, for defendant-appellant Cedric Wilson, Jr.", "The Law Firm of Charles L. Alston, Jr., by Charles L. Alston, Jr., for defendant-appellant Hayden Calvert." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CEDRIC WILSON, JR. and HAYDEN CALVERT\nNo. COA01-1539\n(Filed 31 December 2002)\n1. Search and Seizure \u2014 traffic stop \u2014 cocaine\u2014motion to suppress \u2014 probable cause\nThe trial court did not commit plain error in a trafficking in cocaine case by denying defendants\u2019 pretrial motions to suppress all evidence obtained as a result of the search of the vehicle in which they were riding even though defendants contend it was a pretextual stop, because: (1) the officers had probable cause to stop defendants\u2019 vehicle since it was traveling behind another vehicle at a distance of less than one car length in violation of N.C.G.S. \u00a7 20-152(a) and at a speed of sixty-nine miles per hour; and (2) probable cause meant the stop was not pretextual and further investigation was unnecessary for purposes of issuing a warning ticket.\n2. Search and Seizure \u2014 traffic stop \u2014 cocaine\u2014motion to suppress \u2014 reasonableness of length of detention\nThe trial court did not commit plain error in a trafficking in cocaine case by denying defendants\u2019 pretrial motions to suppress all evidence obtained as a result of the search of the vehicle in which they were riding even though defendants contend the detention of their vehicle was unreasonably long and violated their Fourth Amendment rights, because: (1) defendants were not initially stopped and detained by the officer for an unreasonably long period of time when the process took approximately seven to eight minutes and the officer\u2019s questions and actions were all reasonably related to the officer\u2019s underlying justification of issuing a warning ticket; and (2) the officer had reasonable suspicion to further detain defendants after the warning ticket was issued when the trained police officer with special knowledge in the area of illegal drugs knew defendant driver\u2019s actions were consistent with those of a drug trafficker.\n3. Search and Seizure-traffic stop \u2014 cocaine\u2014motion to suppress \u2014 voluntariness of consent\nThe trial court did not commit plain error in a trafficking in cocaine case by denying defendants\u2019 pretrial motions to suppress all evidence obtained as a result of the search of the vehicle in which they were riding even though defendants contend defendant driver\u2019s consent to search the vehicle was not obtained freely and voluntarily, because: (1) defendant as the driver of the car and in apparent control of its operation was an acceptable person to give consent to the search in the absence of the vehicle\u2019s owner; and (2) there was no evidence that the officers at any point made a concerted effort to coerce defendants or displayed their authority in a manner that would make defendant driver feel as though he had no choice but to consent.\n4. Drugs-trafficking in cocaine \u2014 constructive possession\u2014 sufficiency of evidence\nThe trial court did not err by denying a defendant\u2019s motion to dismiss the trafficking in cocaine charge against him even though he contends the State failed to present sufficient evidence of constructive possession, because: (1) power to control the vehicle where a controlled substance was found is sufficient in and of itself to give rise to the inference of knowledge and possession sufficient to go to the jury; (2) defendant was the driver of the vehicle where the drugs were found and aware of the circumstances by which he came into possession of the vehicle; (3) defendant was aware that his codefendant disappeared for a while upon arrival in Florida and returned later with a friend\u2019s car to drive back to Ohio; (4) the officer testified that defendant was extremely nervous when pulled over by the officers; and (5) there was evidence that the vehicle had a strong smell of air freshener.\n5. Drugs-trafficking in cocaine \u2014 instructions on lesser-included offenses\nThe trial court did not err by failing to instruct the jury as to the three different levels of trafficking in cocaine under N.C.G.S. \u00a7 90-95(h)(3)(a-c), because: (1) the only difference between the greater and lesser levels of the offense relate to the amount of cocaine found; and (2) it is undisputed that the amount of cocaine discovered by the officers weighed 1,995 grams.\nAppeal by defendants from judgments entered 3 May 2001 by Judge Sanford L. Steelman, Jr. in Iredell County Superior Court. Heard in the Court of Appeals 18 September 2002.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Joan M. Cunningham, for the State.\nMartin & Martin, P.A., by J. Matthew Martin and Harry C. Martin, for defendant-appellant Cedric Wilson, Jr.\nThe Law Firm of Charles L. Alston, Jr., by Charles L. Alston, Jr., for defendant-appellant Hayden Calvert." }, "file_name": "0089-01", "first_page_order": 119, "last_page_order": 130 }