State v. Burleson, COA23-212, ___ N.C. App. ___ (Oct. 17, 2023)

In this McDowell County case, defendant appealed his convictions for drug-related crimes and attaining habitual felon status, arguing error in (1) denial of his motion to suppress the results of a search and (2) denial of his motion to dismiss the charges. The Court of Appeals found no error. 

In April of 2021, defendant and an acquaintance drove up to a driver’s license checkpoint operated by the McDowell County Sheriff's Department. A sheriff’s deputy approached the truck and asked the two men if either of them were on probation; the driver told the deputy he was, while defendant, as the passenger, told the deputy he was not. The deputy subsequently asked if there was anything illegal in the vehicle, and if he had their consent to search the vehicle. The driver gave verbal consent to the search, and the deputy asked him to step out of the vehicle for a pat down. After checking the driver, the deputy moved to defendant, and asked him to exit for a pat down. While patting down defendant, the deputy noticed defendant cup his hand and make a throwing motion; when asked what he threw away, the defendant admitted it was a marijuana blunt. A subsequent search of the vehicle turned up bags of marijuana and methamphetamine. At trial, defendant moved to suppress the results of the search, arguing that it was conducted without valid consent of the owner or occupants, and without reasonable suspicion. Defendant also moved to dismiss the charges for insufficient evidence. Both motions were denied, and defendant was convicted. 

Taking up (1), the Court of Appeals explained defendant’s argument hinged on conflicting testimony from the deputy and himself about the truck and any illegal contents. Defendant argued that the trial court should have made findings regarding this discrepancy and whether defendant was improperly detained without a Mirandawarning. The court disagreed, explaining that “the trial court found [the deputy’s] testimony was credible and, in doing so, resolved any testimonial conflicts in [the deputy’s] favor.” Slip Op. at 8. Even assuming the deputy asked defendant about the truck in the manner defendant testified, the court explained that defendant made no incriminating statements in response, and only made an incriminating admission after the search turned up drugs in the vehicle. 

In (2), defendant argued that the State failed to present sufficient incriminating circumstances to support his convictions. Because defendant “did not have exclusive possession of the truck in which the drugs were found, the State was required to provide evidence of other incriminating circumstances.” Id. at 11. The court found just such evidence in the testimony about defendant “cupping his hand, making a throwing motion with his back turned, and admitting to throwing a marijuana blunt” after the deputy asked him to exit the vehicle. Id. at 12. This behavior coupled with the drugs found in the center console supported defendant’s constructive possession for the convictions.