STATE v. SYDNOR (2019)

Where a law enforcement officer properly issued a BOLO and a responding officer initiated a traffic stop based on that BOLO, the trial court did not commit plain error in admitting evidence resulting from the traffic stop. Moreover, we overrule defendant's alternative ineffective assistance of counsel claim.

On 5 April 2014, at approximately 10:30 pm, Sergeant Laura Wilkins of the Edenton Police Department arrived at Famous Subs restaurant after a reported robbery had taken place. Sergeant Wilkins spoke with David Salasar, the owner of Famous Subs who spoke little English. Sergeant Wilkins also spoke with Salasar's daughter who translated for Salasar, and Shirae Dowdell, an employee of Famous Subs. According to Salasar and Dowdell, a black male entered Famous Subs, brandished a gun, and demanded money from Dowdell. Dowdell went to the back of the store and told Salasar that a man was there to rob them. The man ran out of the door and Salasar followed him with his van. Salasar saw the man get into a Pontiac with Virginia tags. The Pontiac was driven by another black male.

A 50-mile be-on-the-lookout (“BOLO”) was immediately broadcasted describing the suspects. According to the dispatch, there were two suspects—black males––“driving a dark green Pontiac” with Virginia tags and possibly heading towards the Virginia border. Deputy Michael Swindell of the Pasquotank County Sheriff's Office saw a vehicle that matched the description of the BOLO and stopped the vehicle. One of the males was determined to be defendant. Sergeant Wilkins arrived at the scene and searched the vehicle––finding a loaded 9-millimeter Smith and Wesson gun that was connected to the robbery in the glove box.

On 21 April 2014, defendant was indicted for attempted robbery with a dangerous weapon. Defendant was tried on 22 May 2017 in Chowan County Superior Court before the Honorable Wayland J. Sermons, Jr., Judge presiding. At the close of evidence, a mistrial was declared after the jury failed to reach a unanimous verdict.

On 29 January 2018, this matter was retried before Judge Sermons. Before the second trial, defendant moved to suppress Salasar's testimony as to the description of the vehicle. Defendant contended that at his first trial, Salasar did not testify that he saw the color of the vehicle driven by the robbers. The trial court granted the motion.

The State introduced, and moved to admit, the gun that was recovered from the vehicle. The trial court asked defendant if he would like to be heard regarding admission, and defendant declined. The gun was admitted into evidence without objection. The jury returned a guilty verdict and the trial court entered judgment of 38 to 58 months imprisonment. Defendant appeals.

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On appeal, defendant argues the trial court committed plain error by admitting evidence obtained as a result of what he asserts was an unlawful traffic stop. Specifically, defendant argues that Deputy Swindell did not have reasonable suspicion to initiate a traffic stop because he acted pursuant to a BOLO issued by Sergeant Wilkins that was impermissible; therefore, the traffic stop was unlawful. We first address defendant's argument regarding the traffic stop and consider whether it was unlawful.

Defendant, in essence, argues that because the trial court suppressed witness testimony of Salasar identifying the vehicle, Sergeant Wilkins's BOLO was somehow improper. However, Sergeant Wilkins testified at trial, and it was clear that, notwithstanding the suppression of Salasar's testimony, Sergeant Wilkins and other officers developed evidence of the vehicle's identification shortly after the commission of the crime so as to properly issue a BOLO.

In State v. Battle, this Court discussed the general standard for conducting a traffic stop based on reasonable suspicion of another officer. State v. Battle, 109 N.C. App. 367, 371, 427 S.E.2d 156, 159 (1993) (“[T]he collective knowledge of both officers may form the basis for reasonable suspicion by the second officer, if and to the extent the knowledge possessed by the first officer is communicated to the second officer.”). This Court held

[i]f the officer making the investigatory stop (the second officer) does not have the necessary reasonable suspicion, the stop may nonetheless be made if the second officer receives from another officer (the first officer) a request to stop the vehicle, and if, at the time the request is issued, the first officer possessed a reasonable suspicion that criminal conduct had occurred, was occurring, or was about to occur.

Id. at 370–71, 427 S.E.2d at 159. Thus, under Battle, a traffic stop which, at the time of the stop, was made by an officer acting under another officer's reasonable articulable suspicion that criminal activity is afoot, will be upheld as constitutional. Id.

Applying the legal principle in Battle to the instant case, we conclude the traffic stop conducted by Deputy Swindell was also proper. The State's evidence at trial tended to show that Sergeant Wilkins arrived at the scene shortly after an armed robbery occurred at Famous Subs. Sergeant Wilkins interviewed witnesses who observed the suspect––later identified as defendant––flee with a gun, and issued a BOLO for “two black males driving a dark green Pontiac with Virginia tags.” Chief Jay Fortenbery, of the Edenton Police Department, testified that he also responded to the robbery at Famous Subs and stated, he “was briefed on the scene that the robbery had occurred and briefed on the information that was given to me by officers on the scene[, including] Sergeant Wilkins.” On the information given, Sergeant Wilkins dispatched a BOLO based on flight from commission of an armed robbery and, as such, had the requisite reasonable suspicion to issue that BOLO. See id. at 372, 427 S.E.2d at 160 (“[T]he instructions to ‘be on the lookout’ for the vehicle were tantamount to a request ‘to stop’ the vehicle.”).

Subsequently, Deputy Swindell, while observing a vehicle passing by with “two black males,” initiated the traffic stop in response to Sergeant Wilkins's BOLO. After the vehicle was stopped, defendant was identified as one of the occupants in the car. Therefore, Deputy Swindell properly relied upon the BOLO issued by Sergeant Wilkins in making the traffic stop. Defendant's argument that the traffic stop was unlawful is overruled.

Next, as defendant failed to object at trial, we consider his argument regarding the admission of evidence obtained during the traffic stop for plain error only. See N.C. R. App. P. 10(a)(4) (2019) (“In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.”). “Under the plain error rule, defendant must convince this Court not only that there was error, but that absent the error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993).

Here, defendant contends it was erroneous for the trial court to admit evidence found after defendant's vehicle was stopped because, without evidence of the BOLO, “officers would not have had any contact at all with [defendant]” and the jury would have reached a different result. After careful consideration, we disagree.

The State presented substantial evidence that the gun used in the robbery of Famous Subs was registered to defendant and was found in defendant's vehicle. Additionally, the other occupant of the vehicle testified that he and defendant had made plans to rob Famous Subs when they traveled from Virginia. Having determined that the evidence obtained from the stop was admissible, defendant has failed to meet his burden to show any error, much less plain error.

Alternatively, defendant argues his trial counsel provided ineffective assistance of counsel (IAC) because “his attorney failed to seek suppression of evidence obtained as the result of the stop.” However, defendant is unable to sustain his IAC claim. See Strickland v. Washington, 466 U.S. 668, 687, 80 L.Ed. 2d 674, 693 (1984) (To sustain an IAC claim on direct appeal, a defendant must show “[his] counsel's performance was deficient” and “that the deficient performance prejudiced the [defendant] ․ [as the] errors were so serious ․ [as] to deprive the defendant of a fair trial.”).

Defendant argues he was prejudiced because the traffic stop was unlawful and had his counsel timely raised suppression, a remedy would have been granted to his defense. Having already considered defendant's arguments as to the traffic stop and subsequent search and determined it was proper, we reject defendant's contention that his counsel's performance was so unreasonable to result in deficient representation. See State v. Banks, 210 N.C. App. 30, 49, 706 S.E.2d 807, 821 (2011) (“When counsel's performance is subjected to judicial scrutiny on appellate review, this Court must be highly deferential and indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” (quotation marks omitted)). On this record, in light of all the evidence presented at trial, it is unlikely the jury would have reached a different result. Therefore, defendant's alternative IAC argument is overruled.

NO ERROR.

Report per Rule 30(e).

BRYANT, Judge.

Judges DILLON and ZACHARY concur.