{ "id": 4177553, "name": "STATE OF NORTH CAROLINA v. DAVE ANTHONY HUDSON", "name_abbreviation": "State v. Hudson", "decision_date": "2010-08-17", "docket_number": "No. COA09-1421", "first_page": "482", "last_page": "493", "citations": [ { "type": "official", "cite": "206 N.C. App. 482" } ], "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": "668 S.E.2d 383", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642206 ], "year": 2008, "pin_cites": [ { "page": "386-87" } ], "opinion_index": 0, "case_paths": [ "/se2d/668/0383-01" ] }, { "cite": "617 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633716 ], "year": 2005, "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0341-01" ] }, { "cite": "631 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636161 ], "year": 2006, "pin_cites": [ { "page": "38", "parenthetical": "concluding defendant failed to preserve for review his claim that trial court erred in denying his motion to suppress confession under Miranda, where defendant raised different ground of due process at trial" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0034-01" ] }, { "cite": "630 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635852 ], "year": 2006, "pin_cites": [ { "page": "211", "parenthetical": "holding trial court's failure to make findings of fact associated with denial of defendant's suppression motion was not reversible error where defendant did not present any evidence of his own and no apparent conflict arose from the State's evidence" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0208-01" ] }, { "cite": "616 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633599 ], "year": 2005, "pin_cites": [ { "page": "619-20", "parenthetical": "holding the stop of defendant's vehicle for a traffic infraction was constitutional because the officer had \"observed defendant's vehicle twice cross the center line of the highway, in violation of N.C. Gen. Stat. \u00a7 20-146(a)\"" } ], "opinion_index": 0, "case_paths": [ "/se2d/616/0615-01" ] }, { "cite": "658 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640657 ], "year": 2008, "pin_cites": [ { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/se2d/658/0643-01" ] }, { "cite": "672 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642781 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "718", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "718", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0717-01" ] }, { "cite": "612 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632827 ], "year": 2005, "pin_cites": [ { "page": "423" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0420-01" ] }, { "cite": "535 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "873" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12124180 ], "year": 2000, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0217-01" ] }, { "cite": "442 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "29" }, { "page": "32" }, { "page": "29-30" } ], "opinion_index": 0 }, { "cite": "336 N.C. 22", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2538166 ], "year": 1994, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0022-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "541 S.E.2d 218", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2001, "pin_cites": [ { "page": "224" }, { "page": "224" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442902 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/141/0675-01" ] }, { "cite": "318 S.E.2d 883", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "886", "parenthetical": "citations omitted" } ], "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", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0082-01" ] }, { "cite": "677 S.E.2d 455", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "opinion_index": 0 }, { "cite": "363 N.C. 367", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4151550 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/nc/363/0367-01" ] }, { "cite": "193 N.C. App. 712", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4161659 ], "year": 2008, "pin_cites": [ { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0712-01" ] }, { "cite": "567 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "356 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511311 ], "year": 2002, "pin_cites": [ { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0141-01" ] }, { "cite": "678 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2009, "pin_cites": [ { "page": "594", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "363 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150522 ], "year": 2009, "pin_cites": [ { "page": "99", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0096-01" ] }, { "cite": "556 S.E.2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "270", "parenthetical": "\" '[F]or possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials.' Proof of nonexclusive, constructive possession is sufficient.\"" } ], "opinion_index": 0 }, { "cite": "354 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138558 ], "year": 2001, "pin_cites": [ { "page": "552", "parenthetical": "\" '[F]or possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials.' Proof of nonexclusive, constructive possession is sufficient.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0549-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2007, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "549 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437432 ], "year": 2001, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0335-01" ] }, { "cite": "573 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "868" } ], "opinion_index": 0 }, { "cite": "356 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511364 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "595" }, { "page": "596" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0591-01" ] }, { "cite": "347 S.E.2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "399" } ], "opinion_index": 0 }, { "cite": "318 N.C. 102", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4737959 ], "year": 1986, "pin_cites": [ { "page": "107" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0102-01" ] }, { "cite": "439 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "585", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "335 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526577 ], "year": 1994, "pin_cites": [ { "page": "449-50", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0437-01" ] }, { "cite": "173 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353087 ], "year": 2005, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0162-01" ] }, { "cite": "573 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "686", "parenthetical": "holding defendant waived assignment of error by arguing at trial that evidence should be suppressed on grounds of coercion but argued on appeal that the statement should have been suppressed for lack of probable cause" }, { "page": "685", "parenthetical": "\"[W]here a theory argued on appeal was not raised before the trial court, the law does not permit parties to 'swap horses between courts in order to get a better mount' in the appellate courts.\"" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249125 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "124", "parenthetical": "holding defendant waived assignment of error by arguing at trial that evidence should be suppressed on grounds of coercion but argued on appeal that the statement should have been suppressed for lack of probable cause" }, { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0120-01" ] }, { "cite": "178 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8376425 ], "year": 2006, "pin_cites": [ { "page": "139", "parenthetical": "concluding defendant failed to preserve for review his claim that trial court erred in denying his motion to suppress confession under Miranda, where defendant raised different ground of due process at trial" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0134-01" ] }, { "cite": "177 N.C. App. 718", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8302274 ], "year": 2006, "pin_cites": [ { "page": "721", "parenthetical": "holding trial court's failure to make findings of fact associated with denial of defendant's suppression motion was not reversible error where defendant did not present any evidence of his own and no apparent conflict arose from the State's evidence" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0718-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-146", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)", "parenthetical": "requiring vehicles to be driven \"upon the right half of the highway\"" } ], "opinion_index": 0 }, { "cite": "172 N.C. App. 801", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321543 ], "year": 2005, "pin_cites": [ { "page": "806-07", "parenthetical": "holding the stop of defendant's vehicle for a traffic infraction was constitutional because the officer had \"observed defendant's vehicle twice cross the center line of the highway, in violation of N.C. Gen. Stat. \u00a7 20-146(a)\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0801-01" ] }, { "cite": "665 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2008, "pin_cites": [ { "page": "439", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "439, 440" } ], "opinion_index": 0 }, { "cite": "362 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150881 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "414", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "414, 415" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0412-01" ] }, { "cite": "362 N.C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149866 ], "year": 2008, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0244-01" ] }, { "cite": "195 N.C. App. 430", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4164914 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "432", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "432" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0430-01" ] }, { "cite": "572 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "120-21", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 316", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511176 ], "year": 2002, "pin_cites": [ { "page": "332", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0316-01" ] }, { "cite": "170 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005169 ], "year": 2005, "pin_cites": [ { "page": "303" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0299-01" ] } ], "analysis": { "cardinality": 1159, "char_count": 28770, "ocr_confidence": 0.737, "pagerank": { "raw": 1.8064402484360293e-07, "percentile": 0.7171806155494007 }, "sha256": "26935a805de913deb928b2704930f7e183a23681681985e5b6e59c317c9ee4fc", "simhash": "1:832144d8465b04da", "word_count": 4652 }, "last_updated": "2023-07-14T18:24:03.194595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge JACKSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVE ANTHONY HUDSON" ], "opinions": [ { "text": "BEASLEY, Judge.\nDave Anthony Hudson (Defendant) appeals from judgment entered on his convictions of possession with the intent to sell and deliver marijuana and maintaining a vehicle for the keeping of a controlled substance. We conclude that there is no error.\nOn 18 May 2009, Defendant filed a motion to suppress all evidence gathered as a result of the traffic stop from which the possession and maintaining a vehicle charges arose. The motion was denied that same date, and the trial began immediately thereafter.\nOn 23 October 2008, Corporals Joshua Bissette and Jimmy Renfrow of the Wilson County Sheriff\u2019s Office were patrolling 1-95. Around 8:40 p.m., Bissette saw Defendant driving a freight liner transfer truck with a car carrier that had a high Department of Transportation identification number, indicating possible drug activity and prompting him to advise Renfrow of Defendant\u2019s approach. Renfrew followed Defendant for about two miles and observed his tractor trailer cross the center dividing line of the northbound lanes and weave back over the fog line two times. Renfrow stopped the truck, and Defendant exited with his hands in the air and his back to the officer. Defendant produced his driver\u2019s license, registration, and log book as requested. Bissette then arrived and performed a license and registration check while Defendant sat with Renfrow in his patrol car. Finding the information valid, Bissette approached Renfrew's car to return Defendant\u2019s license, registration, and log book, whereupon he asked to see the bills of lading for the vehicles on his truck. Bissette noted that Defendant was sweating, although it was forty degrees outside, and acting nervously. The bills of lading matched the cars being transported, but the one for a white 2007 Mercedes Benz convertible raised Bissette\u2019s suspicions. It referenced \u201cEddie\u201d as the contact person for both pick-up and drop-off of the car and listed the same phone number for both. The pick-up location was listed as \u201cOpa Locka Blvd and 143\u201d in Miami, Florida, and the drop-off address was listed as \u201cGun Hill Road\u201d in Bronx, New York. Bissette testified that this bill of lading stood out because the others contained full names of the companies or individuals sending and receiving the vehicle and specific addresses from and to which the car was being delivered. At that point, the officers returned Defendant\u2019s documentation, and Renfrow advised Defendant that he was free to go. As Defendant stepped out of the patrol car, Bissette asked for consent to search the tractor trailer, and at 9:19 p.m., Defendant signed a form indicating he was giving his consent, \u201cknowingly and voluntarily,\u201d to the search of his \u201ctruck and manifest (cars on car-carrier).\u201d\nThe officers found no illegal substances in the cab and then began to search the cars on the carrier. The carrier\u2019s proximity to the interstate railing, however, prohibited them from opening the vehicles\u2019 doors, and Bissette asked Defendant to drive to a closed gas station at the next exit so they could offload the cars, search them, and load them back onto the carrier. Defendant agreed, but when the officers attempted to search the Mercedes, they learned that Defendant had provided them only a limited access valet key, which would not open the trunk. The officers, however, were able to access the trunk by opening the convertible roof, whereupon they smelled marijuana and saw a large bag, which contained what was later identified by the State Bureau of Investigation as 7.5 pounds of marijuana. Defendant was arrested and, after Bissette read him his Miranda rights, agreed to make a statement and signed a waiver of rights. Defendant\u2019s exculpatory statement was read to the jury. Defendant offered no evidence but made motions to dismiss at the end of the State\u2019s case and the close of all the evidence, which were denied. The jury found Defendant guilty as charged, and Defendant duly noted his appeal.\nI. Motion to Suppress\nDefendant challenges the trial court\u2019s denial of his motion to suppress all evidence resulting from the illegal stop and detention. The standard of review for a motion to suppress is whether competent evidence supports the trial court\u2019s findings of fact and whether the findings of fact support the conclusions of law. State v. Hernandez, 170 N.C. App. 299, 303, 612 S.E.2d 420, 423 (2005). \u201c[T]he trial court\u2019s findings of fact \u2018are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.\u2019 \u201d State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120-21 (2002) (citation omitted). However, its \u201cconclusions of law regarding whether the officer had reasonable suspicion ... to detain a defendant [are] reviewable de novo.\u201d State v. Hudgins, 195 N.C. App. 430, 432, 672 S.E.2d 717, 718 (2009) (internal quotation marks and citations omitted).\nA. Reasonable Suspicion for the Stop\nDefendant first contends that his motion to suppress should have been allowed because law enforcement made the initial stop without any reasonable, articulable suspicion of criminal activity. Specifically, Defendant claims that the trial court\u2019s finding that Renfrow observed \u201cDefendant\u2019s rig cross[] the northbound center line twice and the fog line twice\u201d over a two-mile stretch was insufficient to support a reasonable suspicion as to Defendant\u2019s involvement in criminal activity. We disagree.\nIn relation to whether the stop of Defendant\u2019s vehicle was constitutional, the trial court found the following:\n1, Wilson County Deputies Renfrow and Bissette were working an \u201c1-95 traffic detail\u201d in separate vehicles; 2, Bissette first observed the Defendant\u2019s tractor-trailer car hauler northbound on 1-95; 3, Bissette\u2019s attention was called to the Defendant\u2019s vehicle because the driver was \u201cdriving the mirror,\u201d among other things; 4, Bissette communicated to Renfrow by Nextel Direct Connect about what he had observed and he then left 1-95; 5, thereafter, Renfrow entered 1-95 and picked up the Defendant\u2019s vehicle which he followed two miles; 6, during this time the Defendant\u2019s rig crossed the northbound center line twice and the fog line twice[.]\nDefendant does not assign error to any of the foregoing; thus, these unchallenged findings of fact \u201c \u2018are deemed to be supported by competent evidence and are binding on appeal.\u2019 \u201d Hudgins, 195 N.C. App. at 432, 672 S.E.2d at 718 (citation omitted). Accordingly, we review the trial court\u2019s order only to determine whether the findings of fact support the legal conclusion that Renfrow\u2019s stop of Defendant was constitutional under the circumstances.\nWe review the constitutionality of the stop pursuant to the Fourth Amendment\u2019s protection \u201cagainst unreasonable searches and seizures.\u201d State v. Barnard, 362 N.C. 244, 246, 658 S.E.2d 643, 645 (2008). \u201cA traffic stop is a seizure . . . [and] is permitted if the officer has a reasonable, articulable suspicion that criminal activity is afoot.\u201d State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (internal quotation marks and citations omitted). This Court has held the observation of a vehicle twice crossing the highway\u2019s center line provided probable cause to justify an officer\u2019s stop for the \u201creadily observable\u201d traffic violations. See State v. Baublitz, 172 N.C. App. 801, 806-07, 616 S.E.2d 615, 619-20 (2005) (holding the stop of defendant\u2019s vehicle for a traffic infraction was constitutional because the officer had \u201cobserved defendant\u2019s vehicle twice cross the center line of the highway, in violation of N.C. Gen. Stat. \u00a7 20-146(a)\u201d).\nIn the instant case, the trial court found that Defendant\u2019s truck crossed the center line of 1-95 and pulled back over the fog line twice while Renfrow followed him. Accordingly, as in Baublitz, the officer witnessed Defendant\u2019s commission of a statutory violation under N.C. Gen. Stat. \u00a7 20-146(a). See N.C. Gen. Stat. \u00a7 20-146(a) (2007) (requiring vehicles to be driven \u201cupon the right half of the highway\u201d). Therefore, his observation of Defendant twice crossing the center and fog lines provided Renfrow with probable cause to stop Defendant\u2019s truck. Where only a reasonable suspicion was required, Renfrow was clearly justified in stopping Defendant by meeting the higher standard of probable cause. Thus, we hold that the trial court\u2019s unchallenged finding that Defendant crossed the center and fog lines twice is sufficient to support its conclusions that Renfrow had a reasonable suspicion to stop Defendant\u2019s vehicle and did not violate constitutional principles in so doing.\nB. Duration of the Detention\nDefendant next contends that the seizure was unreasonably extended and that any evidence obtained thereafter was tainted by the illegality of a detention that exceeded the permissible scope of an investigatory traffic stop. Defendant continues that his consent to the search was accordingly not voluntary because it was tainted by a prolonged detention and that he remained seized when he consented, such that the traffic stop had not given way to a consensual encounter. Defendant also argues that, notwithstanding the question of voluntariness, such consent would have been invalidated because the officers went beyond the spatial and temporal scope thereof when they asked him to drive the car carrier to the next exit ramp and unload the cars at a closed gas station, thereby exceeding the parameters of any consensual encounter.\nHowever, Defendant\u2019s written motion stated only that \u201c[t]he stop was made without any reasonable or articularable [sic] suspicion that criminal activity was afoot,\u201d as the sole grounds for suppression of \u201call evidence arising out of and flowing from the illegal stop of . . . [his] motor vehicle and the subsequent search\u201d thereof. Defendant\u2019s affidavit in support of his motion to suppress likewise focused entirely on the circumstances leading up to the traffic stop and argued only that he \u201cdid not cross the center line at any time in violation of NC General Statutes,\u201d a dispute that was resolved by the trial court\u2019s unchallenged finding of fact number six. Furthermore, defense counsel elicited no testimony at the suppression hearing to support any ground for his motion other than the theory that the stop was unreasonable.\nWhile the State presented evidence tending to describe the initial seizure, the nature of the temporary detention, and Defendant\u2019s signing of the consent to search form, Defendant raised no facts, by way of either cross-examination or presentation of evidence, to contest the duration of the stop, the voluntariness of the consent, or the scope of any consent granted. In fact, Defendant\u2019s cross-examination of Renfrow concerned only the time frame during which Bissette first followed the car carrier up to the point at which the trailer began to move back and forth across the white center line of 1-95. Defense counsel\u2019s final statement to the trial court further indicated that the sole ground for the suppression motion related to the circumstances leading up to the stop: \u201cYour Honor, I just don\u2019t feel that what happened, I mean the officer just testified that there were two cars beside [Defendant]. He slides over, then slides back. What\u2019s he supposed to do? I mean, I don\u2019t think there was any reason to stop the vehicle.\u201d\nUnder the provisions of N.C. Gen. Stat. \u00a7 15A-977(a), a motion to suppress \u201cmust state the grounds upon which it is made,\u201d and \u201cmust be accompanied by an affidavit containing facts supporting the motion.\u201d N.C. Gen. Stat. \u00a7 15A-977(a) (2007). On a related note, the trial court is not required to make findings of fact when there is no conflicting evidence as to the issue in question. See State v. Bowden, 177 N.C. App. 718, 721, 630 S.E.2d 208, 211 (2006) (holding trial court\u2019s failure to make findings of fact associated with denial of defendant\u2019s suppression motion was not reversible error where defendant did not present any evidence of his own and no apparent conflict arose from the State\u2019s evidence). Moreover, the North Carolina Rules of Appellate Procedure require that a party\u2019s trial court motion state the \u201cspecific grounds\u201d for the desired ruling \u201cif the specific grounds were not apparent from the context.\u201d N.C. R. App. P. 10(b)(1); see also State v. Smith, 178 N.C. App. 134, 139, 631 S.E.2d 34, 38 (2006) (concluding defendant failed to preserve for review his claim that trial court erred in denying his motion to suppress confession under Miranda, where defendant raised different ground of due process at trial); State v. Holliman, 155 N.C. App. 120, 124, 573 S.E.2d 682, 686 (2002) (holding defendant waived assignment of error by arguing at trial that evidence should be suppressed on grounds of coercion but argued on appeal that the statement should have been suppressed for lack of probable cause). Here, the only theory advocated by Defendant that was apparent from the context was that the discovery of the marijuana was tainted by an unconstitutional traffic stop. Where Defendant impermissibly raises additional theories as grounds for suppression, different from those argued at trial, he did not properly preserve his remaining assignments of error for appellate review and waived these arguments. See Holliman, 155 N.C. App. at 123, 573 S.E.2d at 685 (\u201c[W]here a theory argued on appeal was not raised before the trial court, the law does not permit parties to \u2018swap horses between courts in order to get a better mount\u2019 in the appellate courts.\u201d). Thus, we do not consider his attempt to challenge, for the first time, the admissibility of the evidence based on the duration of the stop, the circumstances surrounding the consent, or the scope of the search.\nII. Motion to Dismiss\nDefendant contends that the trial court erred in denying his motion to dismiss both counts of the indictment on the ground of insufficient evidence to support his convictions. Upon review of a motion to dismiss challenging the sufficiency of the evidence, we question \u201cwhether there is substantial evidence of each essential element of the offense charged.\u201d State v. Borkar, 173 N.C. App. 162, 165, 617 S.E.2d 341, 343 (2005). \u201cSubstantial evidence is \u2018such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d 578, 585 (1994) (citations omitted). We view the evidence in the light most favorable to the State, entitling it to all reasonable inferences that may be drawn therefrom, and resolve any contradictions in its favor. State v. Sumpter, 318 N.C. 102, 107, 347 S.E.2d 396, 399 (1986). However, \u201c[i]f the evidence is sufficient only to raise a suspicion or conjecture ... the motion should be allowed.\u201d State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002).\nA. Possession with the Intent to Sell and Deliver Marijuana\nDefendant contends that there was insufficient evidence to convict him of possession with the intent to sell and deliver marijuana. After thorough review of the record, we disagree.\nTo convict a defendant of possession with the intent to sell and deliver, the State must prove: (1) possession of a substance, (2) which is a controlled substance, and (3) intent to sell or distribute that controlled substance. State v. Carr, 145 N.C. App. 335, 341, 549 S.E.2d 897, 901 (2001); see also N.C. Gen. Stat. \u00a7 90-95(a)(l) (2007). Defendant argues that the State failed to produce sufficient evidence that he possessed, either actually or constructively, the marijuana found in the white Mercedes.\nHere, the State proceeded upon a theory of constructive possession. See State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (\u201c \u2018[F]or possession of contraband materials, the prosecution is not required to prove actual physical possession of the materials.\u2019 Proof of nonexclusive, constructive possession is sufficient.\u201d). \u201cA defendant constructively possesses contraband when he or she has \u2018the intent and capability to maintain control and dominion over\u2019 it[,]\u201d whether \u201calone or jointly with others.\u201d State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citations omitted). However, \u201c[u]nless a defendant has exclusive possession of the place where the contraband is found, the State must show other incriminating circumstances sufficient for the jury to find a defendant had constructive possession.\u201d Id. Examples of incriminating circumstances include a defendant\u2019s nervousness or suspicious activity in the presence of law enforcement. See, e.g., State v. Butler, 356 N.C. 141, 147, 567 S.E.2d 137, 141 (2002); Carr, 122 N.C. App. at 373, 470 S.E.2d at 73. Still, whether sufficient evidence of incriminating circumstances exists to prove constructive possession depends on the circumstances, and the specific facts of each case rather than any single factor will control; the question is ordinarily one for the jury: See State v. Alston, 193 N.C. App. 712, 716, 668 S.E.2d 383, 386-87 (2008), aff\u2019d per curiam, 363 N.C. 367, 677 S.E.2d 455 (2009).\nIn car cases, not only is ownership sufficient, but\n[a]n inference of constructive possession can also arise from evidence which tends to show that a defendant was the custodian of the vehicle where the controlled substance was found. In fact, the courts in this State have held consistently that the \u201cdriver of a borrowed car, like the owner of the car, has the power to control the contents of the car.\u201d Moreover, power to control the automobile 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.\nState v. Dow, 70 N.C. App. 82, 85, 318 S.E.2d 883, 886 (1984) (citations omitted). In State v. Munoz, 141 N.C. App. 675, 541 S.E.2d 218 (2001), this Court held that the evidence was sufficient to establish that the driver constructively possessed cocaine discovered in a car on his car carrier. The defendant had bills of lading for a van on the carrier and other vehicles he had transported but no such document for the car in which the drugs were found;, the car had been under his control from the time it was loaded onto his carrier until he was stopped six days later; a fax listed a fictitious location as the drop-off address; and the trooper had to obtain the keys for the cars from the defendant in order to conduct the search. Id. at 685-86, 541 S.E.2d at 224.\nHere, as in Munoz, \u201c[a]n inference that [Defendant had knowledge of the presence of the [marijuana] can be drawn from [Defendant's power to control the [Mercedes].\u201d Id. at 685, 541 S.E.2d at 224. The Mercedes had been under Defendant\u2019s exclusive control since it was loaded onto his car carrier in Miami two days prior to his arrest. Like the trooper in Munoz, Bissette also testified that Defendant had keys to every car on the carrier and, in fact, removed the cars from the carrier himself so they could be searched. While Defendant\u2019s possession of the Mercedes was not exclusive in the sense that he did not own it but, rather, picked it up from an individual named \u201cEddie,\u201d the State here, as in Munoz, \u201cpresented other evidence from which an inference of [Djefendant\u2019s knowledge could be drawn.\u201d Id. Defendant displayed suspicious behavior when stopped by Corporal Renfrow by exiting the truck with his back to the officer and hands up, seemingly unusual activity for someone who was merely transporting cars and committed a minor traffic offense. Bissette testified that Defendant was \u201cnervous acting,\u201d hands shaking when he handed over his information, and sweating Renfrow despite the forty-degree weather. Bissette \u201ccould see [Defendant\u2019s] carotid artery pulsating out of his neck\u201d as Renfrow climbed into the cab of the truck. The suspect bill of lading referencing a contact person named only \u201cEddie\u201d and lacking specific addresses for both pick-up and drop-off locations further contributed to the suspicious circumstances. Most suspiciously, Defendant had fully functional keys for each car on the carrier except the Mercedes. Bissette testified that Defendant gave the officers a \u201cfob\u201d key to the Mercedes, but the key regularly hidden inside this type of valet key was missing, which prevented its user from opening the trunk which housed 7.5 pounds of marijuana.\nDefendant argues any inference of knowledge and constructive possession was negated by his lack of proximity to a car owned by another person, being shipped under a bill of lading, where he had a key to the vehicle but not the trunk containing the bag in which marijuana was found. We conclude, however, the specific facts taken in combination, which need not \u201crule out every hypothesis of innocence,\u201d and viewed in a light most favorable to the State are sufficient to prove other incriminating circumstances and constitute substantial evidence of constructive possession. Scott, 356 N.C. at 596, 573 S.E.2d at 869. Thus, we hold the State presented sufficient evidence on the element of possession to overcome Defendant\u2019s motion to dismiss. Our conclusion also summarily dismisses Defendant\u2019s additional argument that the trial court erred by instructing the jury on constructive possession.\nB. Maintaining a Vehicle\nDefendant also argues that there was insufficient evidence to convict him of maintaining a vehicle for the keeping of a controlled substance. We disagree.\nIt is unlawful for any person \u201c[t]o knowingly keep or maintain any . . . vehicle . . . which is used for the keeping or selling of [controlled substances].\u201d N.C. Gen. Stat. \u00a7 90~108(a)(7) (2007). \u201cThis statute prohibits the maintaining of a vehicle only when it is used for \u2018keeping or selling\u2019 controlled substances.\u201d State v. Mitchell, 336 N.C. 22, 32, 442 S.E.2d 24, 29 (1994). The term \u201c \u2018keep\u2019 therefore denotes not just possession, but possession that occurs over a duration of time.\u201d Id. at 32, 442 S.E.2d at 29-30. The totality of the circumstances controls, and whether there is sufficient evidence of the \u201ckeeping or maintaining\u201d element depends on several factors, none of which is dispositive. State v. Bowens, 140 N.C. App. 217, 221, 535 S.E.2d 870, 873 (2000).\nDefendant first contends that the State failed to prove the knowledge element of the crime. However, our conclusion that the State presented substantial evidence to show Defendant was in constructive possession of the marijuana disposes of this argument. Defendant also disputes that the State offered sufficient evidence that he \u201ckept or maintained\u201d the vehicle. He claims \u201cthere is no evidence whatsoever that the possession of marijuana in the vehicle occurred over a duration of time or that [he] used the vehicle on any prior occasion to keep or sell controlled substances.\u201d The State\u2019s evidence, however, directly contradicts this argument.\nThe bill of lading for the Mercedes in which the marijuana was discovered shows that Defendant picked up the vehicle from Eddie on 21 October 2008. Defendant maintained possession as the authorized bailee of the vehicle continuously and without variation for two days before being pulled over on the evening of 23 October 2008. Having stopped to rest overnight on at least one occasion during that time period, he retained control and disposition over the vehicle and then resumed his planned route with the car carrier. These facts are clearly distinguishable from those in Mitchell and other cases where possession of a vehicle was truly temporary or occurred on only one occasion. Here, Defendant\u2019s possession of the Mercedes spanned several days, including stops and resumptions of the New York bound trip from Miami, and thus indisputably occurred over a duration of time. In light of the foregoing, the State presented substantial evidence that Defendant was transporting the Mercedes to keep or sell the marijuana contained therein and, therefore, maintained the vehicle for that purpose from the time he loaded it onto his car carrier until he was stopped by law enforcement two days later. Accordingly, we conclude that the trial court did not err in denying Defendant\u2019s motion to dismiss.\nIII. Defendant\u2019s Statement\nIn his final argument on appeal, Defendant argues that the trial court committed plain error by failing to submit his written statement to the jury. We disagree.\nDuring trial, Defendant\u2019s exculpatory statement was read to the jury in redacted form and entered into evidence as Exhibit 8. During deliberations, the jury requested to see any evidence that the trial court deemed it could see. The trial court erroneously informed the jury that Defendant\u2019s statement was never offered into evidence, and that it would therefore be inappropriate to let them have it but that they could see anything that was received as an exhibit. Defendant contends that the trial court violated N.C. Gen. Stat. \u00a7 15A-1233(b), which provides: \u201cUpon request by the jury and with consent of all parties, the judge may in his discretion permit the jury to take to the jury room exhibits and writings which have been received in evidence.\u201d N.C. Gen. Stat. \u00a7 15A-1233(b) (2007). However, given the facts and incriminating circumstances of the instant case, we are unpersuaded that \u201cthere is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d N.C. Gen. Stat. \u00a7 15A- 1443(a)(2007). Accordingly, this argument is without merit.\nFor the foregoing reasons, we conclude that the trial court did not err in denying the motion to dismiss and Defendant\u2019s trial was free from prejudicial error.\nNo error.\nChief Judge MARTIN and Judge JACKSON concur.\n. While \u201creasonable suspicion is the necessary standard for traffic stops, regardless of whether the traffic violation was readily observed or merely suspected,\u201d it remains \u201ca less demanding standard than probable cause.\u201d Styles, 362 N.C. at 414, 415, 665 S.E.2d at 439, 440. Therefore, \u201cprobable cause is sufficient, but not necessary, for a traffic stop.\u201d Id. at 416 n.1, 665 S.E.2d at 440 n.1.", "type": "majority", "author": "BEASLEY, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Robert T. Hargett, for the State.", "McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Charles K. McCotter, Jr., for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVE ANTHONY HUDSON\nNo. COA09-1421\n(Filed 17 August 2010)\n1. Search and Seizure\u2014 crossing center line \u2014 probable cause for stop\nThe trial court\u2019s, unchallenged finding that defendant twice crossed the center and fog lines in his truck was sufficient to support the conclusion that an officer had reasonable suspicion for a traffic stop.\n2. Appeal and Error\u2014 preservation of issues \u2014 not raised at trial\nDefendant did not preserve for appellate review the question of whether a traffic stop was unreasonably extended where his motion to suppress was based only on a contention about the stop that was resolved by an unchallenged finding. His attempts to challenge for the first time on appeal the duration of the stop, the circumstances surrounding the consent, or the scope of the search were not considered.\n3. Drugs\u2014 constructive possession \u2014 trunk of car on car carrier\nThe evidence of constructive possession was sufficient to convict defendant of possession of marijuana with intent to sell and deliver where defendant was driving a car carrier that included among the cars being transported a Mercedes with marijuana in the trunk. While defendant\u2019s possession of the car was not exclusive in the sense that he did not own it, the State presented other evidence from which an inference of defendant\u2019s knowledge could be drawn.\n4. Drugs\u2014 maintaining vehicle for keeping marijuana \u2014 driver of car carrier \u2014 drugs in trunk of car\nThere was sufficient evidence to convict defendant of maintaining a vehicle for the keeping of a controlled substance where a car with marijuana in the trunk was found on a car carrier driven by defendant. The issue of constructive possession was resolved elsewhere, and defendant\u2019s possession of the car over several days, including stops and resumptions during the trip from Miami to New York, was substantial evidence that defendant was maintaining the vehicle to keep or sell marijuana from the time he loaded it onto his car carrier until he was stopped by law enforcement.\n5. Criminal Law\u2014 refusal of jury\u2019s request to view evidence\u2014 no plain error\nThe trial court did not commit plain error in a marijuana prosecution by not submitting defendant\u2019s written statement to the jury upon their request. Given the facts and incriminating circumstances of the case, there was not a reasonable possibility of a different result had the error not been committed.\nAppeal by Defendant from judgment entered 19 May 2009 by Judge William C. Griffin Jr. in Wilson County Superior Court. Heard in the Court of Appeals 12 April 2010.\nAttorney General Roy Cooper, by Special Deputy Attorney General Robert T. Hargett, for the State.\nMcCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III and Charles K. McCotter, Jr., for Defendant." }, "file_name": "0482-01", "first_page_order": 506, "last_page_order": 517 }