Search and Seizure--investigative stop--object thrown from car--
defendant handcuffed during search for object--probable cause
The trial court did not err by denying defendant's motion to
suppress evidence resulting from an investigative stop where
defendant was seen burying a plastic bag containing a rocky, off-
white substance in the woods on 16 December; defendant dug up the
plastic bag on 18 December immediately after being told that a
drug dog would be brought to the woods; he left the area in his
car and, upon realizing that he was being followed, sped up and
threw a white plastic bag from the car; defendant stopped only
when officers turned on their siren, not when they turned on
their blue light; officers did not formally arrest defendant but
handcuffed him while searching for the bag; and defendant was
arrested after the bag was found about 15 minutes later. Whether
there was a de facto arrest or merely an investigatory detention,
the facts and circumstances within the drug agents' knowledge and
of which they had reasonably trustworthy information were
sufficient to warrant the reasonable belief that defendant had
committed or was committing an offense.
Attorney General Michael F. Easley, by Special Deputy Attorney
General, Robin P. Pendergraft, for the State.
Kelly K. Daughtry, for defendant-appellant.
HUDSON, Judge.
Defendant was charged and convicted on one count of
trafficking in cocaine by possession and one count of trafficking
in cocaine by transportation and was sentenced to two consecutive
terms of imprisonment. Defendant appeals, assigning error to the
trial court's denial of his motion at trial to suppress certainevidence and testimony. We find no error.
The evidence presented at trial tended to show the following.
On the morning of 16 December 1998, Chad Thompson, a narcotics
investigator with the Johnston County Interagency Drug Task Force
(the task force), was conducting surveillance in the area
surrounding the Herring Mobile Home Park (the mobile home park).
Thompson was positioned in the woods about two steps from a dirt
path located in the mobile home park and he was dressed in
camouflage. At approximately 8:45 a.m., a two-tone beige 1980's
Chevrolet Impala automobile arrived and parked in Lot W-3 in the
mobile home park within Thompson's view. Defendant exited the car
and walked on the dirt path until he was directly in front of
Thompson. Defendant took a couple of steps into the woods directly
across from Thompson. Defendant was wearing a brown jacket and a
baseball cap. From a distance of six steps, Thompson witnessed
defendant pull from the breast pocket of his jacket a plastic bag
containing approximately two or three ounces of an off-white, rocky
substance. Defendant dug a small hole and buried the bag. He then
stood up and walked back to the trailer on Lot W-3. Thompson
subsequently communicated what he had witnessed to Agent Angela
Bryan.
Two days later, on the morning of 18 December 1998, Thompson
met with Agent Bryan, Agent Fish, Officer Jones, Lieutenant Somogyi
and Marty Benson, the captain of the task force. They went to the
mobile home park where Thompson and Fish, both dressed in
camouflage, positioned themselves in the same spot in the woods
where Thompson had been two days earlier. Later that morning,Benson and the three other agents went into the mobile home park to
a location approximately 150 to 200 yards from where Thompson and
Fish were positioned. They spoke with several men, including
defendant, for ten or fifteen minutes. The men consented to a pat-
down search, but no controlled substances were found. Benson then
told the men that he was going to get a drug dog to search the
wooded area. Benson and the other agents then returned to their
vehicles.
Thereafter, Thompson saw the same automobile pull into Lot W-
3, and saw defendant come down the path wearing the same jacket and
baseball cap. Defendant went to the precise spot where he had
buried the bag two days earlier, dug up the bag, and placed it in
his jacket pocket. He then walked back out to the car and drove
away. Thompson and Fish contacted the others to tell them
defendant was in his car leaving the mobile home park. The four
other agents -- Benson in an undercover van with Somogyi, and Bryan
in a second vehicle with Jones -- positioned their two vehicles
near the entrance to the mobile home park. Benson spotted the
Chevrolet occupied by a single individual and followed in the van
for about a mile until the Chevrolet turned into a private drive.
The Chevrolet and the undercover van were driving at approximately
five to ten miles per hour and the van was approximately 25 to 30
feet behind the Chevrolet at this point. Immediately after Benson
made the turn into the private drive behind the Chevrolet, the
Chevrolet sped up. Then the driver threw a white plastic bag about
the size of a baseball out of the passenger window into the wooded
area to the side of the road. Benson then activated his bluelight, but the Chevrolet did not stop. Benson activated his siren
and the Chevrolet stopped. Benson instructed Somogyi to go search
for the plastic bag that had been thrown into the woods. Bryan
arrived at the scene alone, having dropped off Jones at the
beginning of the private drive. Defendant got out of the car, the
agents introduced themselves, patted down defendant, and handcuffed
him, but defendant was not formally placed under arrest at this
time. Benson then left defendant in Bryan's custody and went to
search for the plastic bag. The plastic bag was found after
approximately 15 minutes. Defendant was then placed under arrest.
During the trial, defendant moved to suppress the admission of
evidence resulting from the investigative stop and detention of
defendant. The trial court denied defendant's motion. The trial
court subsequently entered an order embodying its findings and
conclusions on defendant's motion to suppress. The factual
findings in the order pertaining to the incident on 18 December
1998 are an accurate summary of the evidence presented at trial,
and defendant does not assign error to these findings. The order
includes the following conclusions as a matter of law:
33. That the collective knowledge of the
Officers (the acts witnessed by Agents
Thompson and Fish) provided to Captain Benson
and known to him at the time he began
following the Defendant, the actions of the
Defendant in trying to elude the Agents,
speeding up when the blue light was turned on,
discarding an object from his vehicle, all
provide sufficient exigent circumstances from
which the Officer could form the reasonable
suspicion that criminal activity was being
engaged in by the Defendant.
34. That such reasonable suspicion was
sufficient to allow Captain Benson and Officer
Somogyi to make an investigative stop of theDefendant's vehicle and to detain the
Defendant for a reasonable period of time.
. . .
38. That none of the constitutional rights,
either State or Federal, of the Defendant were
violated by the stop of his motor vehicle or
handcuffs being placed on the Defendant.
39. That the detention of the Defendant was
for a legitimate purpose and was limited in
scope and duration.
. . .
41. That the Defendant's objection should be
overruled and denied.
In reviewing the denial of a motion to suppress, we must
determine whether the findings of fact are supported by competent
evidence in the record, and whether the findings, in turn, support
the ultimate conclusion of law. See State v. Parker, 137 N.C. App.
590, 594, 530 S.E.2d 297, 300 (2000). Because defendant does not
challenge the factual findings in the order, we need only determine
whether the trial court's ultimate conclusion, denying defendant's
motion to suppress, was supported by the findings of fact. We find
no error in the order denying the motion to suppress and therefore
affirm the judgments.
“The right of the people to be secure in their persons . . .
against unreasonable searches and seizures, shall not be violated.”
U.S. Const. amend. IV. This mandate is applicable to the states
through the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643,
6 L. Ed. 2d 1081 (1961). Evidence obtained by an unlawful search
or seizure is inadmissible at trial. See id. Although there is no
“litmus-paper test” for determining what constitutes a “seizure”for Fourth Amendment purposes, see Florida v. Royer<
/i>, 460 U.S. 491,
506, 75 L. Ed. 2d 229, 242 (1983), it is clear that “whenever a
police officer accosts an individual and restrains his freedom to
walk away, he has 'seized' that person,” Terry v. Ohio, 392 U.S.
1, 16, 20 L. Ed. 2d 889, 903 (1968). Thus, there is no question
that defendant here was “seized” for Fourth Amendment purposes.
Acts which constitute “seizures” of a person for Fourth
Amendment purposes may very generally be divided into two
categories: (1) arrests and (2) investigatory stops. See Graham v.
Connor, 490 U.S. 386, 394, 104 L. Ed. 2d 443, 454 (1989) (holding
that excessive force claims arising in context of arrest or
investigatory stop invoke protections of Fourth Amendment against
unreasonable seizures); Reid v. Georgia, 448 U.S. 438, 440, 65 L.
Ed. 2d 890, 893 (1980) (explaining that Fourth and Fourteenth
Amendments' prohibition of unreasonable searches and seizures
governs all seizures, including traditional arrests as well as
seizures involving only a brief detention short of traditional
arrest); Robert L. Farb, Arrest, Search, and Investigation in North
Carolina 22 (2d ed. 1992). It is well-established that a formal
arrest always requires a showing of “probable cause.” See, e.g.,
Gerstein v. Pugh, 420 U.S. 103, 111, 43 L. Ed. 2d 54, 64 (1975).
An investigatory stop, on the other hand, at least at its
inception, does not require probable cause; rather, it is only
necessary that, given the totality of the circumstances, “the
detaining officers [] have a particularized and objective basis forsuspecting the particular person stopped of criminal activity.”
United States v. Cortez, 449 U.S. 411, 417-18, 66 L. Ed. 2d 621,
629 (1981). This standard has also been described as a “reasonable
suspicion of criminal activity.” Royer, 460 U.S. at 498, 75 L. Ed.
2d at 237.
In situations involving an investigatory stop, once it is
determined that the initial stop was justified at its inception by
a reasonable suspicion of criminal activity, it must further be
determined whether the subsequent detention of the defendant
following the stop is “reasonably related in scope to the
circumstances which justified the interference in the first place.”
United States v. Sharpe, 470 U.S. 675, 682, 84 L. Ed. 2d 605, 613
(1985) (quoting Terry, 392 U.S. at 20, 20 L. Ed. 2d at 889).
The scope of the intrusion permitted will vary
to some extent with the particular facts and
circumstances of each case. This much,
however, is clear: an investigative detention
must be temporary and last no longer than is
necessary to effectuate the purpose of the
stop. Similarly, the investigative methods
employed should be the least intrusive means
reasonably available to verify or dispel the
officer's suspicion in a short period of time.
Royer, 460 U.S. at 500, 75 L. Ed. 2d at 238. Where the duration or
nature of the intrusion exceeds the permissible scope, a court may
determine that the seizure constituted a de facto arrest that must
be justified by probable cause, even in the absence of a formal
arrest. See Sharpe, 470 U.S. at 685, 84 L. Ed. 2d at 615; State v.
Russell, 84 N.C. App. 383, 389, 352 S.E.2d 922, 926, disc. review
denied, 319 N.C. 677, 356 S.E.2d 784, cert. denied, 484 U.S. 946,98 L. Ed. 2d 363 (1987); Farb, Arrest, Search, and Investiga
tion
23.
Here, the trial court appears to have determined that the
detention of defendant, prior to his formal arrest, did not
constitute a de facto arrest and that, therefore, only a showing of
a reasonable suspicion of criminal conduct was necessary to justify
this period of detention, rather than the higher standard of
probable cause. Because the trial court determined that the lesser
standard of reasonable suspicion was satisfied, the trial court
denied defendant's motion to suppress.
Defendant does not argue that the circumstances were
insufficient to justify the investigatory stop in the first place.
However, defendant argues that by placing defendant in handcuffs
for approximately 15 minutes while conducting a search for the
plastic bag, the detention of defendant “exceeded the scope allowed
for an investigative stop” and therefore required probable cause.
Defendant further argues that prior to the time the bag was
retrieved, there was no probable cause, and, for this reason, the
detention was unreasonable and violated defendant's constitutional
rights. Thus, defendant concludes, the denial of his motion to
suppress constitutes reversible error. We believe it is
unnecessary to determine whether the seizure amounted to a de facto
arrest requiring probable cause, or merely an investigative
detention requiring only reasonable suspicion of criminal activity,
because even assuming arguendo that the seizure constituted a de
facto arrest requiring probable cause, there was probable causeunder the circumstances.
The existence of probable cause depends upon “whether at that
moment the facts and circumstances within [the officers'] knowledge
and of which they had reasonably trustworthy information were
sufficient to warrant a prudent man in believing that the [suspect]
had committed or was committing an offense.” State v. Bright, 301
N.C. 243, 255, 271 S.E.2d 368, 376 (1980) (alterations in original)
(quoting Beck v. Ohio, 379 U.S. 89, 91, 13 L. Ed. 2d 142, 145
(1964)). Factors which a court may consider in determining whether
probable cause exists include, but are not limited to: (1) the
defendant's suspicious behavior, see State v. Bridges, 35 N.C. App.
81, 239 S.E.2d 856 (1978); (2) flight from the officer or the area,
see State v. Zuniga, 312 N.C. 251, 322 S.E.2d 140 (1984); (3) the
discovery of what appears to be illegal contraband in the
possession of the defendant, see State v. Patrick, 88 N.C. App.
582, 364 S.E.2d 450 (1988); and (4) a defendant's apparent effort
to conceal evidence by throwing what appears to be illegal
contraband from a car after realizing police presence, see State v.
Willis, 61 N.C. App. 23, 300 S.E.2d 420, modified and aff'd, 309
N.C. 451, 306 S.E.2d 779 (1983).
A pertinent example of circumstances sufficient to establish
probable cause is found in State v. Harrington, 283 N.C. 527, 196
S.E.2d 742, cert. denied, 414 U.S. 1011, 38 L. Ed. 2d 249 (1973).
In Harrington, the defendant accompanied officers out of a
restaurant at the officers' request and then ran from the officersand tossed away an aluminum wrapper. The Supreme Court held that
under these circumstances the officers had reasonable ground to
believe that a crime was being committed in their presence (i.e.,
probable cause), and were therefore justified in pursuing
defendant, placing him under arrest, retrieving the aluminum
wrapper (which was found to contain 36 bindles of heroin), and
searching defendant's automobile subsequent to his arrest. Because
there was probable cause, the items found by the officers pursuant
to the defendant's arrest, including the 36 bindles of heroin, were
held admissible at trial.
Here, the unchallenged findings in the trial court's order
establish the following facts: defendant was seen burying a plastic
bag containing a rocky, off-white substance in the woods near the
trailer home park on 16 December 1998; on 18 December 1998,
immediately after being told by drug agents that a drug dog would
be brought to the woods, defendant was seen digging up the plastic
bag that had been buried in the woods and leaving the trailer home
park in his car carrying the bag in his pocket; when defendant
realized that he was being followed, he sped up and threw a white
plastic bag out of the car window; when the drug agents first
turned on their blue light, defendant did not stop his car;
defendant only stopped his car once the agents turned on their
siren. We believe that at the time defendant was handcuffed, the
facts and circumstances within the drug agents' knowledge and of
which they had reasonably trustworthy information were sufficient
to warrant the reasonable belief that defendant had committed or
was committing an offense. Because there was probable cause, theseizure of defendant, whether a de facto arrest requiring probable
cause or merely an investigatory detention requiring a reasonable
suspicion of criminal activity, was not unreasonable, and any
evidence resulting from that seizure was admissible at trial.
Thus, the trial court properly denied defendant's motion to
suppress.
No error.
Judges WYNN and TIMMONS-GOODSON concur.
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