Dockery Tonia Lynette

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					 No.:   COA07-649                    12TH JUDICIAL DISTRICT


              NORTH CAROLINA COURT OF APPEALS

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                             )
  STATE OF NORTH CAROLINA    )
                             )
       v.                    )       From Cumberland County
                             )       06 CRS 56336
  TONIA LYNETTE DOCKERY      )
                             )
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             DEFENDANT-APPELLANT’S BRIEF

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                        ii


                      INDEX

TABLE OF CASES AND AUTHORITIES ................ iii
QUESTIONS PRESENTED ............................. 1
STATEMENT OF THE CASE ........................... 2
STATEMENT OF THE FACTS .......................... 3
STATEMENT OF GROUNDS FOR APPELLATE REVIEW ....... 7


ARGUMENT ........................................ 7

 I.   THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      IN DENYING THE DEFENDANT’S MOTION TO
      SUPPRESS EVIDENCE BECAUSE THE EVIDENCE
      SEIZED WAS A RESULT OF AN ILLEGAL AND
      IMPROPER SEARCH AND SEIZURE .............. 7


 II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR
      BY ENTERING JUDGMENT WHERE THE ADMISSIBLE
      EVIDENCE WAS INSUFFICIENT TO SUPPORT ENTRY
      OF DEFENDANT’S PLEA OF GUILT ............ 16

CONCLUSION .................................... 17
CERTIFICATE OF SERVICE ........................ 18
                       iii



       TABLE OF CASES AND AUTHORITIES

Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61
L.Ed.2d 357 (1979) ......................... 10, 11

Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391,
59 L.Ed.2d 660 (1979) .......................... 10

In re J.B.L.M., 176 N.C. App. 613, 627 S.E.2d 239
(2006) ..................................... 12, 13

Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct.
330, 54 L.Ed.2d 331 (1977) ..................... 10

State v. Braxton, 90 N.C. App. 204, 368 S.E.2d 56
(1988) ..................................... 13, 14

State v. Cherry, 298 N.C. 86, 257 S.E.2d 551
(1979), cert. denied, 446 U.S. 941, 100 S.Ct.
2165, 64 L.Ed.2d 796 (1980) ..................... 8

State v. Cooke, 306 N.C. 132, 291 S.E.2d 618
(1982) .......................................... 9

State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 652
(1982) ......................................... 16

State v. Fleming, 106 N.C. App. 165, 415 S.E.2d
782 (1992) ............................. 11, 12, 16

State v. McKinney, 288 N.C. 113, 215 S.E.2d 578
(1975) ......................................... 16

State v. Minor, 132 N.C. App. 478, 512 S.E.2d
483(1999) .................................. 13, 14

State v. Phillips, 300 N.C. 678, 268 S.E.2d 452
(1980) .......................................... 8

State v. Phillips, 151 N.C. App. 185, 565 S.E.2d
697 (2002) ...................................... 9

State v. Sutton, 167 N.C. App. 242, 605 S.E.2d
483 (2004) ...................................... 7
                        iv


State v. Tate, 58 N.C. App. 494, 294 S.E.2d 16,
appeal dismissed, disc. rev.denied, 306 N.C. 750,
295 S.E.2d 763 (1982), aff’d, 307 N.C. 464, 298
S.E.2d 763 (1983) ............................... 8

State v. Thompson, 154 N.C. App. 194, 571 S.E.2d
673 (2002) ...................................... 7

United States v. Brignoni-Ponce, 422 U.S. 873, 95
S.Ct. 2574, 45 L.Ed.2d 607 (1975) .............. 10

N.C. Gen. Stat. §7A-27(b)(2005) ................. 7

N.C. Gen. Stat. §15A-974(2005) ................. 15

N.C. Gen. Stat. §15A-977(2005) .................. 8

N.C. Gen. Stat. §15A-979(b)(2005) ............... 7

N.C. Gen. Stat. §15A-1442(2005) ................. 7
                            - 1 -


                    QUESTIONS PRESENTED

I.    DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN
      DENYING THE DEFENDANT’S MOTION TO SUPPRESS
      EVIDENCE WHEN THE EVIDENCE AT ISSUE WAS SEIZED AS
      A RESULT OF AN ILLEGAL AND IMPROPER SEARCH AND
      SEIZURE?

II.   DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY
      ENTERING JUDGMENT WHERE THE ADMISSIBLE EVIDENCE
      WAS INSUFFICIENT TO SUPPORT ENTRY OF DEFENDANT’S
      PLEA OF GUILT?
                                - 2 -



                    STATEMENT OF THE CASE

    Defendant was charged with felony possession of cocaine and

possession of drug paraphernalia on May 5, 2006. (R.p.2-3) The

Grand Jury issued a true bill of indictment on both counts on

October 23, 2006. (R. p. 4)    Defendant, through counsel, filed a

motion to suppress and a supporting affidavit on February 22,

2007. (R. p. 5-9)    On February 26 and 27, the motion to suppress

was heard and denied by the trial court in open court. (T.p. 39-

40) No written order denying the motion to suppress was filed by

the trial court.    After preserving the right to appeal the

court’s ruling on the motion to suppress, Defendant entered a

transcript of plea on February 27, 2007. (T. 44; R. p. 10-13)

The Court entered judgment sentencing Defendant to a term of

imprisonment of 6 to 8 months, but suspended the sentence for a

period of 24 months. (R. p. 16-19) Appellate counsel for

defendant was appointed on March 6, 2007. (R.p. 22)
                                - 3 -



                    STATEMENT OF THE FACTS

    On May 5, 2006, Officer William Watson of the Fayetteville

City Police Department was on duty and saw a burgundy van at

approximately 1:50 a.m. on Amanda Circle.    (T.p.20)    When Watson

saw the van, he stopped and spoke with the van’s driver, who was

Mr. Charles.   (T.p.20, 26)   Mr. Charles indicated that he was

looking for a woman named Wanda that he had sexual relations

with sometimes. (T.p.22)

    Officer William Watson of the Fayetteville City Police

Department was on duty and responded to a call regarding a

suspicious vehicle in the Coinjock Circle area of Fayetteville

at approximately 8 p.m., near the Amanda Circle area. (T.p. 23)

After receiving the call from the dispatcher, Officer Watson

approached the same burgundy van he had seen before, driven by

Mr. Charles. (T.p.23)   The van was parked at a dead-end street

off Coinjock Circle, and Officer Watson recognized Mr. Charles.

(T.p. 26)   The defendant was seated in the front passenger seat

of the van and appeared to be inebriated. (T.p.23)      Officer

Watson testified as follows during the hearing on the motion to

suppress:

         Q.   And, when you approached this vehicle, it
    was because there was a call about a suspicious
    vehicle, isn’t that correct?
         A:   [Nodding head in the affirmative.]
         Q.   Once you saw Mr. Charles and talked with
    him, you knew who he was?
                              - 4 -


         A.   [Nodding head in the affirmative.]
         Q.   And you had no reason to suspect the vehicle
    was up to anything at that point, did you - - or
    anyone in the vehicle?
         A.   Yes. I suspected that something was up due
    to the fact of why would it be parked at a dead-end
    street. I mean, could I tell you what crime was
    occurring, no; whether they were breaking into a house
    or engaged in prostitution, engaged in narcotic
    activity,. That was why I was there to investigate.
         Q.   You had no idea of - - you didn’t have
    anything in mind as to any criminal activity that
    might have been taking place?
         A.   I thought maybe prostitution could have been
    involved.
         Q.   He never told you earlier that he was paying
    anybody for sex, did he?
         A.   Right, he didn’t.

         . . .

         Q.   And you didn’t see any drugs when you were
    looking in the window, talking with them?
         A.   No.

          . . .

         Q.   And you didn’t charge Mr. Charles with any
    crime, did you?
         A.   No ma’am, I didn’t.
         Q.   In fact, you barely addressed Mr. Charles at
    all during this stop, did you?
         A.   I addressed him when I made contact with the
    vehicle, asked him what he was doing there.

(T.p. 26-27, 29)   During further cross-examination at the motion

to suppress hearing, Officer Watson testified as follows:

         Q.   Was there anything else that came across in
    the CAD report that directed your attention to that
    vehicle?
         A.   The caller had said that she was suspicious
    that the van could have been involved in a breaking at
    her house prior, earlier.
         THE COURT:     I’m sorry. Would you repeat that?
                              - 5 -


         A.   Whoever called in stated that they were
    suspicious about the vehicle, where it was parked, due
    to their house had been broke in prior, and she
    believed that - - or, he believed it was - - was
    involved.

           . . .

         Q.   Did she say that it had been broken into or
    there was - - she thought there was an attempted
    breaking and entering earlier in the day?
         A.   I believe it said a B&E at her residence.
         Q.   Was an attempted B&E of her residence?
         A.   Okay.
         Q.   So, did you ask Mr. Charles any questions
    about that?
         A.   No, ma’am.
         Q.   He’s the one that was driving the van,
    right?
         A.   [No response.]
         Q.   He’s the one that was in the driver’s seat
    in the van, correct?
         A.   Yes, he was in the driver’s seat.
         Q.   You didn’t ask him any further questions to
    investigate whether or not he was part of an attempted
    breaking and entering earlier that day?
         A.   He appeared to be truthful the first time I
    stopped him and this time I stopped him.

(T.p. 31-2)

    When Officer Watson approached the vehicle, he asked for

the defendant’s name and date of birth, but she was unable to

give the officer her information and gave several different

answers regarding her name and date of birth. (T.p.23).    Officer

Watson asked the defendant to step out of the van and when she

did so, a pipe fell out with a residue in it.   (T.p.24)   After a

further search, Officer Watson found cocaine in defendant’s

pocket.   (T.p.24)
                              - 6 -


    Based upon Officer Watson’s testimony, the trial court made

the following findings:

    I will find that, under the facts of this case, that
    Officer Watson did possess a reasonable and
    articulable suspicion sufficient to justify an
    investigatory stop of the vehicle driven by Michael
    Scott Charles at about – or, the vehicle in which he
    was parked at about 7:55 on May 5, 2006; and that that
    suspicion was based, in large part, upon the fact that
    the officer had stopped this very same vehicle at 1:50
    a.m. that same day on a nearby street, specifically
    Amanda Circle, in an area known for drug activity and
    prostitution; and, that the driver at that time had
    said that he was looking for a woman named Wanda, with
    whom he wanted to have sex.

    Having made the investigatory stop of the vehicle, I
    will find that he certainly was within his right to
    ask the passenger to get out of the vehicle; that he
    did have probable cause to charge her with the
    possession of the crack pipe.

    .    .    .

    And that he certainly had the right to not only frisk
    her person, but to search her incident to the arrest;
    and, that, upon finding the crack cocaine upon her - -
    or, what he believed to be crack cocaine on her
    person, he certainly had the right to – or, he had
    probable cause to charge her with that offense; and
    accordingly, I will deny the defendant’s motion to
    suppress.


(T. 39-40) From the trial court’s order to deny the motion to

suppress, and the sentencing order, the defendant appeals.

(T.44)
                                - 7 -


           STATEMENT OF GROUNDS FOR APPELLATE REVIEW

       This appeal is taken from a final Judgment of the Superior

Court, pursuant to N.C. Gen. Stat. §§ 7A-27(b), 15A-979(b), and

15A-1442 (2005).



                             ARGUMENT
  I.     THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
         DENYING THE DEFENDANT’S MOTION TO SUPPRESS
         EVIDENCE BECAUSE THE EVIDENCE SEIZED WAS A RESULT
         OF AN ILLEGAL SEARCH AND SEIZURE.

         (Assignment of Error No. 1, R.p. 5-9, 16-20, T.p. 37-41)


       The standard of review on a trial court’s ruling upon a

motion to suppress evidence has been described as follows:

       Review of a trial court’s denial of a motion to
       suppress is limited to a determination of whether the
       trial court’s findings of fact are supported by
       competent evidence and whether those findings support
       the trial court’s ultimate conclusions of law.

State v. Sutton, 167 N.C. App. 242, 244, 605 S.E.2d 483, 484

(2004)(quoting State v. Thompson, 154 N.C. App. 194, 196, 571

S.E.2d 673, 675 (2002)).    This standard of review applies to the

entirety of Argument I below.

       Here, the trial court made no written findings of fact or

written order related to the motion to suppress, so we must

analyze the court’s findings within the transcript of the

hearing.    N.C. Gen. Stat. §15A-977(d) through (f) indicates:
                              - 8 -


    (d) If the motion [to suppress] is not determined
    summarily, the judge must make the determination after
    a hearing and finding of facts. Testimony at the
    hearing must be under oath.

    (e) A motion to suppress made during trial may be made
    in writing or orally and may be determined in the same
    manner as when made before trial. The hearing, if
    held, must be out of the presence of the jury.

    (f) The judge must set forth in the record his
    findings of facts and conclusions of law.

N.C. Gen. Stat. §15A-977(d)-(f)(2005).   “It is well settled

that, while it is the better practice to make findings of fact,

a trial court is not required to make any findings when there is

no material conflict in the evidence before them.”     State v.

Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980). This

exception is most often used when a defendant does not present

any evidence at a suppression hearing, on the theory that the

findings of fact can be inferred from the admission of

testimony. See State v. Tate, 58 N.C. App. 494, 499, 294 S.E.2d

16, 19, appeal dismissed, disc. rev. denied, 306 N.C. 750, 295

S.E.2d 763 (1982), aff’d, 307 N.C. 464, 298 S.E.2d 763 (1983).

     “Unreasonable searches and seizures are prohibited by the

Fourth Amendment to the United States Constitution, and all

evidence seized in violation of the Constitution is inadmissible

in a State court as a matter of constitutional law.”     State v.

Cherry, 298 N.C. 86, 92, 257 S.E.2d 551, 555 (1979), cert.

denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980).
                                - 9 -


“Seizure of private property unaccompanied by a prior judicial

approval in the form of a warrant is per se unreasonable unless

the search falls within a well-delineated exception to the

warrant requirement involving exigent circumstances.” State v.

Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982).     “When a

defendant in a criminal prosecution makes a motion to suppress

evidence obtained by means of a warrantless search, the State

has the burden of showing, at the suppression hearing, ‘how the

[warrantless search] was exempted from the general

constitutional demand for a warrant.’”     State v. Phillips, 151

N.C. App. 185, 188, 565 S.E.2d 697, 701 (2002)(quoting State v.

Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982)).

    Here, during the motion to suppress hearing, the State

presented several different theories supporting the warrantless

search.    Officer Watson testified that he was dispatched to

investigate a vehicle involved in an attempted breaking and

entering, but he suspected use of illegal narcotics or

prostitution. (T.p. 26)    Officer Watson further testified that

the area was a high crime area. (T.p.20)    The trial court

expressly found that the justification for the officer’s

approach and investigation of the vehicle was that the driver

earlier stated that he wanted to have relations with a woman

named Wanda in an area known for prostitution and drugs.

(T.p.39)   Thus, the justification for the investigation offered
                                - 10 -


by the trial court in its findings of fact do not match the

justification offered by the officer during his testimony.

Thus, the findings of fact made by the trial court are not

supported by the evidence presented.

    In Brown v. Texas, the United States Supreme Court examined

the legality of a detention of a suspect who refused to give his

name to police.   Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61

L.Ed.2d 357 (1979).     In Brown, the Court stated that “[w]hen the

officers detained appellant for the purpose of requiring him to

identify himself, they performed a seizure of his person subject

to the requirements of the Fourth Amendment.”     Id. at 50, 99

S.Ct. at 2640, 61 L.Ed.2d at 361.    The Court went on to analyze

the reasonableness of the seizure which it said “depend[ed] on a

balance between the public interest and the individual’s right

to personal security free from arbitrary interference by law

officers.” Id. (quoting Pennsylvania v. Mimms, 434 U.S. 106, 109

(1977); United States v. Brignoni-Ponce, 422 U.S. 873, 878

(1975)).   According to the Brown court, “a seizure must be based

on specific, objective facts indicating that society’s

legitimate interests require the seizure of the particular

individual, or that the seizure must be carried out pursuant to

a plan embodying explicit, neutral limitations on the conduct of

individual officers.”     Id. at 50-51, 99 S.Ct. at 2640, 61

L.Ed.2d at 362 (citing Delaware v. Prouse, 440 U.S. 648 (1979)).
                              - 11 -


According to the facts as recited in Brown, the defendant was

detained by police after he was observed walking away from

another individual in a high crime area and asked for

identification.   The Supreme Court held that the stop for the

purpose of asking for identification, when there was no

reasonable suspicion that the defendant was engaged in criminal

conduct, violated the requirements of the Fourth Amendment.

Brown, 443 U.S. at 53, 99 S.Ct. at 2641, 61 L.Ed.2d at 363.

    In a similar case from our state, State v. Fleming, a

seizure was determined to be unreasonable and invalid according

to the requirements of the Fourth Amendment.   106 N.C. App. 165,

415 S.E.2d 782 (1992).   In Fleming, the defendant was observed

in a high crime area at midnight with another male companion.

The defendant and his companion were not familiar to the

officers.   After seeing the officers, defendant and another man

watched the officers for a few minutes, then began to walk away

from the officers before being detained.   The trial court found

that the defendant’s presence in a high crime area at midnight

gave the officers articulable grounds to suspect the defendant

was engaged in criminal conduct, and denied defendant’s motion

to suppress. Fleming, 106 N.C. App. at 168, 415 S.E.2d at 784.

After citing the Brown opinion by the United States Supreme

Court, this Court found that the defendant’s actions in Fleming

“were not sufficient to create a reasonable suspicion that
                               - 12 -


defendant was involved in criminal conduct, it being neither

unusual nor suspicious that they chose to walk in a direction

which led way from the group of officers.”     Fleming, 106 N.C.

App. at 170-71, 415 S.E.2d at 785.

    The Court went on to state that the officer “had only a

generalized suspicion that the defendant was engaged in criminal

activity, based upon the time, place, and the officer’s

knowledge that defendant was unfamiliar to the area.” Fleming,

106 N.C. App. at 171, 415 S.E.2d at 785.     This Court held that

these facts were not sufficient to support the trial court’s

conclusion that the officer had “a reasonable articulable

suspicion that defendant was engaged in criminal activity.” Id.

at 171, 415 S.E.2d at 786.    As a result, the Court held the

motion to suppress should have been granted and vacated the

defendant’s convictions.   “We are cognizant that there is a

significant public interest in eradicating the sale and use of

illegal drugs in our society, but we also recognize that, in

order to protect our individual liberties, the Fourth Amendment

forbids every search that is unreasonable.” Fleming, 106 N.C.

App. at 171, 415 S.E.2d at 786.

    In a recent decision by this Court, a police officer

received a report that a suspicious person, a Hispanic male, was

in a gas station parking lot. In re: J.B.L.M., 176 N.C. App.

613, 627 S.E.2d 239 (2006).   After that report, the officer
                                - 13 -


found the juvenile defendant, a Hispanic male, walking through

the parking lot.    The dispatcher did not indicate the male was

performing any illegal act, and the officer did not observe the

defendant committing any illegal act. 176 N.C. App. at 618, 627

S.E.2d at 243.     Nonetheless, the trial court found the officer

had a reasonable, articulable suspicion that some criminal

activity may have taken place, and detention was justified.

This Court reversed the trial court, saying that the officer had

only a generalized suspicion the defendant was engaged in

criminal activity, citing State v. Fleming.     Id. at 622, 627

S.E.2d at 245.

    Similarly, in the case of State v. Minor. 132 N.C. App.

478, 512 S.E.2d 483 (1999), officers stopped a vehicle due to a

problem with its license tag, which was a temporary tag.       Minor

was a passenger in the vehicle and officers forced him to get

out of the vehicle when he moved his hand towards the console of

the car and rubbed his thigh.     The trial court denied

defendant’s motion to suppress the evidence found in the vehicle

after a subsequent search.     However, this Court reversed,

indicating that “gestures which are not clearly furtive are

insufficient to establish probable cause for a warrantless

search unless the officer has other specific knowledge relating

to evidence of crime.”     State v. Minor, 132 N.C. App. at 481-82,
                              - 14 -


512 S.E.2d at 485 (quoting State v. Braxton, 90 N.C. App. 204,

207, 368 S.E.2d 56, 58 (1988)).

    Similarly, regardless of Officer Watson’s justification in

approaching the burgundy van, he had no reason to remove

defendant from the vehicle.   Defendant made no furtive gestures;

the officer never testified that he was in fear that either

person in the van had a weapon.   He testified that defendant

appeared inebriated and could not or would not answer his

questions. However, being an inebriated passenger in a parked

vehicle is not a crime.   Merely requesting defendant’s name when

the officer had no reasonable or articulable idea of her

involvement or lack thereof in a crime did not create a right

for the officer to remove the passenger from the van.   The

officer gave no testimony that he smelled smoke, or observed

drug paraphernalia or illegal drugs in plain sight when he

approached the van.   An inebriated person’s inability to answer

questions, even simple questions, does not create a crime or

create evidence of a crime’s commission.

    Here, Officer Watson had only a generalized suspicion that

the individuals occupying the burgundy van were engaged in some

illegal activity.   He stated three different reasons for

approaching the van, only one of which was cited in the CAD

report – the call regarding the alleged attempted breaking and

entering.   He knew one of the people in the van, having met him
                               - 15 -


earlier in the day.    The officer made no attempt or request to

search the van for burglary tools or stolen goods.    The officer

did not question the driver of the van because he appeared to be

truthful.   The trial court made findings that were only

generally referenced by the officer during his testimony as one

of three possible reasons that he might have cause to approach

and investigate the van, which did not correspond to the reason

for the initial approach listed in the officer’s CAD report.

All of the trial court’s remaining findings of fact and

conclusions of law resulted from its finding that the officer

had a reasonable articulable suspicion that defendant was

engaged in criminal activity when he approached the vehicle, and

therefore must fail.

    For these reasons, the officer’s generalized suspicion,

along with the trial court’s findings of fact, do not support

the conclusion that the seizure of defendant and the resulting

search comports with the law of the Fourth Amendment to the

United States Constitution, or the law of the State of North

Carolina.   Accordingly, the evidence seized as a result of this

illegal and improper search and seizure should have been

suppressed by the trial court.    N.C. Gen. Stat. §15A-974(2005).

Since all of the evidence presented to the trial court stemmed

from this illegal and improper search and seizure, the

defendant’s convictions should be vacated, as in Fleming.
                               - 16 -




  II.   THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY
        ENTERING JUDGMENT WHERE THE ADMISSIBLE EVIDENCE WAS
        INSUFFICIENT TO SUPPORT ENTRY OF DEFENDANT’S PLEA OF
        GUILT.
        (Assignment of Error No. 2, R.p. 16-20, T.p. 42-44)

    The standard of review on a trial court’s ruling upon the

insufficiency of the evidence is de novo, as this is a question

of the legal sufficiency of the evidence presented, similar to

that in a motion to dismiss:

    In ruling on a motion to dismiss the trial court is to
    consider the evidence in the light most favorable to
    the State. In so doing, the State is entitled to every
    reasonable intendment and every reasonable inference
    to be drawn from the evidence; contradictions and
    discrepancies do not warrant dismissal of the case –
    they are for the jury to resolve. The court is to
    consider all of the evidence actually admitted,
    whether competent or incompetent, which is favorable
    to the State. Review of a trial court’s the trial
    court’s ultimate conclusions of law.

State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 652-52

(1982)(citing State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d

578, 581-82(1975)).   For the reasons stated in argument I above,

the trial court erred in denying the defendant’s motion to

suppress the evidence because that evidence was seized as a

result of an illegal search and seizure.   Had this evidence

properly been suppressed, there was insufficient remaining

evidence to support entry of the defendant’s plea of guilt.    See

State v. Fleming, 106 N.C. App. 165, 415 S.E.2d 782 (1992).    Due
                             - 17 -


to the trial court’s erroneous denial of defendant’s motion to

suppress, defendant’s convictions should be reversed.



                          CONCLUSION

    For the reasons stated above, defendant respectfully

requests that the Court of Appeals reverse the judgment of the

trial court and vacate the defendant’s convictions on both

counts.

    Respectfully submitted, this the ___ day of July, 2007.



                              ________________________
                              Christy E. Wilhelm
                              State Bar No. 28868
                              Attorney for Defendant-Appellant
                                   Tonia Lynette Dockery
                              Hartsell & Williams, P.A.
                              Post Office Box 368
                              Concord, North Carolina 28026-0368
                              (704) 786-5161
                              - 18 -



                      CERTIFICATE OF SERVICE

     The undersigned hereby certifies that a true and correct
copy of the foregoing DEFENDANT-APPELLANT’S BRIEF has been
served upon the following by enclosing a true copy thereof in an
envelope, postage prepaid, and depositing same in the United
States mail, properly addressed as follows:

     Mr. Joseph E. Herrin
     Special Deputy Attorney General
     Department of Transportation
     Attorney General’s Office
     1505 Mail Service Center
     Raleigh, NC 27699-1505


     This the ___ day of July, 2007.




                              ______________________________
                              Christy E. Wilhelm
                              Attorney for Defendent-Appellant
                                   Tonia Lynette Dockery


OF COUNSEL:
HARTSELL & WILLIAMS, P.A.
71 McCachern Boulevard
Post Office Box 368
Concord, NC 28026-0368
(704)786-5161

				
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