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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA09-1290 NORTH CAROLINA COURT OF APPEALS Filed: 21 December 2010 STATE OF NORTH CAROLINA v. EUGENE ELDONRAY RIVERS Appeal by State of North Carolina from order entered 5 June 2009 by Judge Kevin M. Bridges in Cabarrus County Superior Court. Heard in the Court of Appeals 10 March 2010. Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Sallenger & Brown, LLP, by Thomas R. Sallenger, for defendantappellant. STEELMAN, Judge. Where a law enforcement officer ordered defendant out of his vehicle at gunpoint after an observed hand-to-hand drug transaction and then questioned defendant about whether he had anything illegal on his person without first administering Miranda warnings, the trial court properly concluded that these circumstances were the functional equivalent of an arrest and custodial interrogation, and granted defendant's motion to suppress. I. Factual and Procedural Background On 9 September 2008, Cabarrus County Deputy J.D. Barnhardt (Deputy Barnhardt) commenced surveillance of a residence located in Cabarrus County Nos. 08 CRS 53293-94

-2Kannapolis. The surveillance was initiated based upon multiple Deputy A man

complaints concerning drug activity at the residence. Barnhardt observed vehicles stop in front of the residence.

would walk from the residence to the vehicle, then return to the residence. At approximately 12:20 a.m. on 10 September 2008,

Deputy Barnhardt observed Eugene Eldonray Rivers (defendant) park his silver Nissan Altima in the driveway of the residence.

Defendant and two other persons exited the vehicle and entered the residence. dealings. Deputy Barnhardt recognized defendant from prior

Subsequently, another vehicle pulled into the driveway The operator of the second

and parked behind defendant's vehicle.

vehicle entered the residence, and then exited the residence, followed by defendant. Deputy Barnhardt observed movements between the two persons consistent with a hand-to-hand drug transaction. The driver of the second vehicle and defendant returned to their respective vehicles. Deputy Barnhardt approached defendant, with

weapon drawn, and told defendant to place his hands on the roof of the vehicle. Deputy Barnhardt holstered his weapon and proceeded to pat down defendant for weapons. Defendant was asked, "Are you

holding?" to which defendant replied, "You know I am."

Deputy

Barnhardt asked defendant where it was and he replied "in my pocket." A small baggie of marijuana and a baggie of crack cocaine

was found in defendant's front "watch pocket." Defendant was indicted for possession with intent to sell and deliver cocaine, possession of drug paraphernalia, possession of

-3cocaine, possession of less than a half ounce of marijuana, and being an habitual felon. On 6 April 2009, defendant filed a motion

to suppress the evidence seized and statements made by defendant based upon a lack of probable cause to arrest defendant, and a custodial interrogation without having given defendant Miranda warnings. the On 5 June 2009, the trial court denied the motion as to seizure of defendant, seized as but a granted result the an motion to

initial all

suppress

evidence

of

unlawful

interrogation. The State appeals. II. Partial Granting of Defendant's Motion to Suppress

In its first argument, the State contends that the trial court erred in suppressing defendant's statements to Deputy Barnhardt and the drugs found on defendant's person. A. We disagree.

Standard of Review

In reviewing a trial court's findings of fact, if the findings are supported by competent evidence in the record, the appellate courts are bound by those findings. State v. Buchanan, 353 N.C. Unchallenged findings of

332, 336, 543 S.E.2d 823, 826 (2001). fact are not reviewable on appeal.

State v. Campbell, 359 N.C.

644, 662, 617 S.E.2d 1, 13 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006). law de novo. 758 (2008). B. Analysis We review the trial court's conclusions of

State v. Haislip, 362 N.C. 499, 500, 666 S.E.2d. 757,

-4In the instant case, the trial court found and neither party challenges the following: circumstances] standard, "That based upon [the totality of the the Deputy, under these facts, had

reasonable, articulable suspicion of criminal activity so as to warrant an investigatory stop of the Defendant[.]" This finding is binding on appeal. Campbell, 359 N.C. at 662, 617 S.E.2d at 13.

The State challenges the following "findings of fact:" 27. That the failure to administer Miranda warnings in a custodial situation creates a presumption of compulsion; . . . . 30. That the State has argued to the Court that Miranda is not triggered during a brief investigatory detention, and that the questioning of the Defendant following his seizure by the Deputy was akin to questioning following a routine traffic stop, which does not invoke Miranda; That the seizure at issue in this case is different from a routine traffic stop; That the cases holding that a routine traffic stop does not invoke Miranda so holds [sic] based upon a belief that there is a non-coercive aspect of ordinary traffic stops, even though the person may be detained and questioned regarding the officer's suspicions; That the present situation is substantially different than a routine traffic stop; that in this instance the Deputy drew his weapon, pointed it in the general direction of the Defendant, the Defendant was clearly not free to leave, the Deputy exercised control over the person of the Defendant by having the Defendant place his hands on the roof of the vehicle, and the actions of the Defendant were in compliance with and in submission to the Deputy's show of authority;

31.

32.

-533. That based upon the totality of the circumstances in this matter, a reasonable person in the position of the Defendant would believe that they were under arrest, or its functional equivalent; That as such Miranda was invoked; That the State has argued that the question posed by the Deputy, namely "Are you holding?" is an investigative question which could mean a variety of things; That the Court finds that some of the possible responses to this question would be an incriminating response, and because the Deputy did exercise restraints upon the Defendant's freedom of movement, indicative of formal arrest, that a reasonable person in the Defendant's position would believe that he was under arrest or the functional equivalent thereof, and that this question is more than an investigative one; That asking the question "Are you holding?" to this Defendant under these circumstances is interrogation for the purposes of Miranda; That in addition, the follow up question of "Where is it?" is likewise interrogation for the purposes of Miranda; That as a direct result of the Deputy's interrogation of the Defendant, without first being given his Miranda warnings, the Deputy located and seized physical evidence and arrested the Defendant; That all the evidence seized after the initial questioning of the Defendant are the fruits of the "poisonous tree" of the unlawful interrogation[.]

34.

35.

36.

37.

38.

39.

The trial court then concluded that the interrogation of defendant violated his Fifth and Fourteenth Amendment rights and granted

-6defendant's motion to suppress "any and all evidence seized as a result of Deputy's unlawful interrogation." At the outset, we note that many of the designated findings of fact are actually conclusions of law and will be reviewed as such. See State v. Sparks, 362 N.C. 181, 185, 657 S.E.2d 655, 658 (2008) ("[F]indings of fact which are essentially conclusions of law . . . will be treated as such on appeal. In distinguishing between

findings of fact and conclusions of law, as a general rule, . . . any determination requiring the exercise of judgment or the

application of legal principles is more properly classified [as] a conclusion of law." (internal As stated quotations, above, the citations, trial and

alterations

omitted)).

court's

conclusions of law are reviewed de novo. Law enforcement officers are required to administer Miranda warnings to individuals that are subjected to custodial

interrogation.

Buchanan, 353 N.C. at 336

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