Search and Seizure--traffic stop--consent to search car--pat-down of person--search
incident to arrest
The trial court did not err by denying defendant's motion to suppress cocaine where the
car in which he was a passenger was stopped at a traffic check point; the car was driven by a man
known to officers to be a convicted drug trafficker, who claimed that he did not know defendant's
name and who consented to a search of the car; defendant became belligerent when asked to leave
the vehicle; he appeared intoxicated when he finally left the vehicle; an officer saw a bulge in
defendant's pocket about an inch wide and six inches long and conducted a pat-down search,
discovering a utility razor knife; defendant was arrested for carrying a concealed weapon; and a
search of defendant's person incident to the arrest produced a plastic baggie containing marijuana
and cocaine.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Thomas D. Zweigart, for the State.
Robert H. Raisbeck, Jr. for defendant appellant.
HUNTER, Judge.
After noting a timely appeal to the denial of his motion to
suppress, defendant pled guilty to possession of cocaine with
intent to manufacture, sell or deliver and to being an habitual
felon. By judgment entered 24 May 1999, Judge William Z. Wood
sentenced defendant in the mitigated range to eighty to 105 months
imprisonment. We now address defendant's appeal from the denial of
his suppression motion.
The State's witnesses at the suppression hearing were
Detective Sergeant Christopher Paul Shuskey (“Shuskey”) and
Detective Anthony Ross Leftwich (“Leftwich”) of the Davie CountySheriff's Office. On the evening of 23 October 1998, the
detectives were assigned to a traffic check point at the
intersection of Daniel and Gladstone Roads in southern Davie
County. Shuskey testified that all vehicles passing through the
intersection were stopped and checked for traffic violations. In
addition, officers randomly asked drivers for consent to search
their vehicles.
Defendant arrived at the check point as a passenger in a car
driven by a man known by Shuskey and Leftwich to be a convicted
drug trafficker. Shuskey asked the driver for his license and
registration, which he produced. When asked who his passenger was,
the driver claimed he did not know defendant's name. The driver
consented to a search of his vehicle and pulled his car onto the
shoulder of Daniels Road.
Before conducting the search, Shuskey asked Leftwich to “get
[defendant] out of the vehicle.” “[F]or my safety, I wanted to get
him outside[,] and for his safety also[,]” Shuskey explained. When
Leftwich asked him to leave the vehicle, defendant grew
“belligerent,” saying the detective had no right to make him get
out. Defendant smelled of alcohol, was “very loud” and
“[a]rgumentative” and used profanity. When defendant finally exited
the vehicle, he was “unsteady on his feet” and appeared to be
intoxicated. Leftwich saw a “large bulge[,]” one inch wide and six
or seven inches long, in defendant's front pants pocket. Leftwichconducted a pat down search of defendant for weapons and
discovered a utility razor knife in defendant's pants pocket.
Leftwich arrested defendant for carrying a concealed weapon. Asearch of defendant's person incident to the arrest produced a
plastic baggie of marijuana and a nine rocks of crack cocaine.
In denying the motion to suppress, the trial court made
findings of fact consistent with the detectives' account of events.
The court found the driver was known to the detectives as a
convicted drug trafficker, did not know the name of his passenger,
and consented to a search of his vehicle. The court further found
defendant was asked to exit the vehicle pursuant to the consent
search and was patted down for the officers' safety, as follows:
Officer Leftwich then asked the defendant
to get out of the vehicle . . . . The
defendant, who exhibited an odor of alcohol,
became hostile and belligerent with the
officer. Upon the defendant exiting, the
officer noticed a bulge in the front pocket of
the defendant. The shape and dimensions of
the bulge appeared to the officer as a
possible weapon. . . .
The court concluded (1) the check point stop was lawful; (2) the
driver granted valid consent to a search of his vehicle; (3)
defendant was lawfully asked to exit the vehicle to effect the
search; (4) Leftwich saw a bulge in defendant's pants pocket
resembling a weapon, which justified a pat down “to protect the
officer's safety[;]” (5) the knife was discovered during a lawful
pat down; and (6) the marijuana and crack cocaine were found during
a lawful search incident to defendant's arrest.
On appeal, defendant argues the warrantless search of his
person was unconstitutional. He notes the detectives lacked any
basis for a reasonable suspicion that he or the driver was engaged
in criminal activity. He asserts the description of the lump inhis pocket was too indeterminate to justify a belief he was
carrying a weapon rather than any one of several innocent objects.
Finally, defendant challenges the court's finding that the driver
consented to the search of his vehicle, believing the “record is
devoid of any evidence” of consent. Absent such consent, defendant
claims the officers lacked probable cause to search him.
In reviewing a trial judge's ruling on a suppression motion,
we determine only whether the trial court's findings of fact are
supported by competent evidence, and whether these findings of fact
support the court's conclusions of law. See State v. Rhyne, 124
N.C. App. 84, 88-89, 478 S.E.2d 789, 791 (1996).
The sole factual challenge raised by defendant is whether the
evidence supports the finding that the driver consented to a search
of his vehicle. Contrary to defendant's claim, however, the record
contains Shuskey's uncontradicted testimony affirming the driver's
consent:
[SHUSKEY:] . . . At that time I asked [the
driver] for consent to search his vehicle.
[COUNSEL:] Did [the driver] consent to the
request?
[SHUSKEY:] Yes, he did.
Shuskey confirmed the driver was free to “go on down the road” had
he refused to allow the search.
Under both the North Carolina and United States Constitutions,
“an officer may conduct a pat down search, for the purpose of
determining whether the person is carrying a weapon, when the
officer is justified in believing that the individual is armed andpresently dangerous.” State v. Sanders, 112 N.C. App. 477,
480,
435 S.E.2d 842, 844 (1993). In determining the reasonableness of
a pat down search, the North Carolina Supreme Court has adopted the
standard of Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911
(1968), “i.e., 'whether a reasonably prudent man in the
circumstances would be warranted in the belief that his safety or
that of others was in danger.'” Sanders, 112 N.C. App. at 481, 435
S.E.2d at 844-45 (quoting State v. Peck, 305 N.C. 734, 742, 291
S.E.2d 637, 642 (1982)).
Defendant does not challenge the constitutionality of the
initial stop of the vehicle. Generally, an investigative stop and
detention leading to a pat down search must be based on an
officer's reasonable suspicion of criminal activity. Id. However,
an investigative stop at a traffic check point is constitutional,
without regard to any such suspicion, if law enforcement officers
systematically stop all oncoming traffic. See Delaware v. Prouse,
440 U.S. 648, 59 L. Ed. 2d 660 (1979); Sanders, 112 N.C. App. at
480, 435 S.E.2d at 844.
Moreover, the United States Supreme Court has affirmed the
right of police to order passengers from a vehicle in order to
conduct a search of the driver's car, despite the complete absence
of probable cause or reasonable suspicion concerning the
passengers. Maryland v. Wilson, 519 U.S. 408, 137 L. Ed. 2d 41
(1997). Although the search of the vehicle in Wilson arose during
a stop for a minor traffic offense, we believe the Court's analysisof passengers' rights applies equally to a consent search of a
vehicle conducted during a check point stop:
[A]s a practical matter, the passengers are
already stopped by virtue of the stop of the
vehicle. The only change in their
circumstances which will result from ordering
them out of the car is that they will be
outside of, rather than inside of, the stopped
car. Outside the car, the passengers will be
denied access to any possible weapon that
might be concealed in the interior of the
passenger compartment. It would seem that the
possibility of a violent encounter stems not
from the ordinary reaction of a motorist
stopped for a speeding violation, but from the
fact that evidence of a more serious crime
might be uncovered during the stop. And the
motivation of a passenger to employ violence
to prevent apprehension of such a crime is
every bit as great as that of the driver.
Id. at 413-14, 137 L. Ed. 2d at 47-48.
Based on Prouse, Sanders and Wilson, we conclude the initial
check point stop and the driver's consent to the search of his
vehicle provided sufficient constitutional justification for
defendant's removal from the car. As a passenger, defendant was
obliged to exit the vehicle for safety reasons during the search
thereof, despite the absence of probable cause or a reasonable
suspicion of criminal activity.
Once defendant was out of the car and in close proximity to
sheriff's detectives, they were permitted to conduct a limited pat
down search for weapons if they had a reasonable suspicion based on
articulable facts under the circumstances that defendant was armed
and dangerous. See State v. Adkerson, 90 N.C. App. 333, 338, 368
S.E.2d 434, 437 (1988). We hold the facts as found by the trial court support its
conclusion that the pat down search was constitutional. Among the
articulable grounds for the search were the long, narrow bulge in
defendant's front pants pocket, his belligerent attitude toward the
detectives and his apparent intoxication. That the driver of the
vehicle claimed not to know defendant's name also lent a degree of
uncertainty and suspiciousness to the encounter.
Because we hold defendant's arrest was lawfully based on the
fruits of a valid pat down search, the warrantless search of his
person incident to the arrest, which yielded the marijuana and
crack cocaine, was likewise constitutional. See State v. Hardy,
299 N.C. 445, 455, 263 S.E.2d 711, 718 (1980). The motion to
suppress was properly denied.
No error.
Judges McGEE and TIMMONS-GOODSON concur.
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