Search and Seizure--motion to suppress--drugs--plain view
The trial court did not err in a possession with intent to sell and deliver a controlled
substance case by denying defendant's motion to suppress drug evidence which resulted in
defendant's guilty plea in a situation where an officer inadvertently discovered a plastic baggie of
drugs on defendant's body when defendant raised his arms in response to the officer's ordering
defendant to remove his hands from his front pants pocket for safety reasons, because the totality
of circumstances reveals that: (1) the officer saw in plain view approximately two inches of a
plastic baggie sticking out of defendant's pants; (2) the officer testified that before seizing the
baggie, he believed it contained a controlled substance since that is the way the officer finds it
packaged every day, he saw the same packaging of narcotics in his narcotics classes, plus he had
made numerous drug arrests with the same type bags; (3) the officer testified he observed in the
baggie a green vegetable material which he recognized as marijuana based on his education,
experience, and training; (4) the officer had probable cause to seize the baggie from defendant's
pants, regardless of whether defendant consented to a search when he raised his arms, since the
raising of defendant's arms brought the plastic baggie into the officer's plain view; and (5) the
officer came upon defendant late at night in an area known for drug activity and at a particular
intersection known for drug transactions and arrests.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General George W. Boylan, for the State.
Adrian M. Lapas for defendant-appellant.
HUNTER, Judge.
Tywuan Dannell Green (“defendant”) appeals the trial court's
denial of his motion to suppress, resulting in his plea of guilty
to one count of possession with intent to sell and deliver a
controlled substance. We affirm the trial court's denial of
defendant's motion to suppress.
The evidence presented during the hearing of defendant's
motion to suppress tended to establish the following. On 3 July1999, Sergeant Steve Mozingo (“Sgt. Mozingo”), of the Wayne County
Sheriff's Department, was on routine patrol as a member of the
department's Aggressive Criminal Enforcement Unit designed to
control street narcotics. At approximately 11:30 p.m., Sgt.
Mozingo and another officer were patrolling an area of known drug
activity in their patrol car. As the officers approached an
intersection where drug transactions are common and arrests are
routinely made, they observed three people congregated at the
intersection.
Sgt. Mozingo testified that as he approached the three in his
patrol car, he observed defendant bend down as though setting
something on the ground. Defendant then began to walk away from
where he had been standing. Sgt. Mozingo noticed a beer bottle on
the ground near where defendant had been standing. The bottle was
lying on its side, and beer was flowing out of the bottle. Sgt.
Mozingo exited his vehicle and asked defendant to return to where
the beer bottle lay. Sgt. Mozingo testified that he wanted to
verify defendant was not engaged in underage drinking, since
defendant appeared to be under twenty-one years of age.
As defendant turned to face Sgt. Mozingo, he placed his right
hand into his front pants pocket. Sgt. Mozingo requested defendant
remove his hand for safety reasons, and defendant complied. Sgt.
Mozingo asked defendant his age, to which defendant replied he was
twenty-two years old. Sgt. Mozingo requested verification of
defendant's age. Defendant responded that his identification was
in his vehicle parked nearby. Sgt. Mozingo asked defendant what he
had placed in his front pants pocket. Defendant responded,“[n]othing.” Sgt. Mozingo then asked defendant if he would consent
to a pat down. Defendant replied, “I ain't got nothing,” and
raised his hands above his head. As defendant raised his arms, his
shirt rose above his waistband, revealing approximately two inches
of a plastic baggie sticking out of his pants pocket. Sgt. Mozingo
testified that based on his “prior experience and training, and
knowing how drugs are packaged, [he] retrieved it and found []
green vegetable matter which appeared to . . . be marijuana.”
Sgt. Mozingo went to retrieve his citation book from his
patrol car, whereupon Corporal Mack Stapps (“Corporal Stapps”)
monitored defendant. Corporal Stapps observed defendant adjusting
his jaw as though he had something in his mouth. Corporal Stapps
asked defendant what was in his mouth. Defendant responded that he
did not have anything in his mouth, whereupon Corporal Stapps
observed “several dark looking objects with white specks in them.”
Corporal Stapps requested that defendant spit out the objects, and
defendant complied. Defendant spit out several green-colored
baggies containing what Corporal Stapps observed to be crack
cocaine.
Defendant introduced evidence from Dana Lamb (“Lamb”), who
testified that she was an eye-witness to the interaction between
defendant and the officers. Lamb testified that the officers were
“harassing” defendant, that defendant never raised his arms above
his head, and that the officers searched defendant without his
consent.
At the close of the evidence, the trial court entered an order
denying defendant's motion to suppress the drug evidence. Following the denial of his motion, defendant entered a guilty plea
to one count of possession with intent to sell and deliver cocaine
in violation of N.C. Gen. Stat. § 90-95(a)(1) (1999). Defendant
was sentenced to a minimum of six months' and a maximum of eight
months' imprisonment. Defendant appeals the denial of his motion
to suppress pursuant to N.C. Gen. Stat. § 15A-979(b) (1999).
Defendant argues: (1) the trial court's findings of fact were
not supported by the evidence; and (2) the trial court erred in
denying the motion to suppress because Sgt. Mozingo lacked probable
cause to seize the plastic baggie protruding from defendant's
pants.
Defendant first argues that the trial court's finding of fact
number eleven is unsupported by the evidence presented at the
hearing. The trial court found as follows:
10. At that time [that defendant raised
his hands] Sgt. Mozingo saw in plain view a
plastic baggie commonly used for wrapping
sandwiches, and also, according to his
education and experience, is used for the
packaging and re-packaging of controlled
substances, in particular marijuana.
11. Sgt. Mozingo further testified that
this baggie appeared to have some green
vegetable material in it, which his education
and training indicated to him to be marijuana.
Defendant argues that it is implicit in finding of fact number
eleven that Sgt. Mozingo observed the marijuana-like substance in
the baggie while the baggie was still protruding from defendant's
pants and prior to its seizure. Sgt. Mozingo's testimony at the
suppression hearing established that he did not observe the
marijuana-like substance until he had removed the baggie from
defendant's pants. Although the trial court's findings of fact could be more
clear as to when Sgt. Mozingo observed the marijuana-like
substance, finding of fact number eleven is clearly supported by
the evidence. Sgt. Mozingo did testify that he observed in the
baggie a green vegetable material which he recognized as marijuana
based on his education, experience and training. We decline to
draw implications from the trial court's finding beyond its plain
words.
Defendant next argues that the trial court erred in denying
his motion to suppress because Sgt. Mozingo did not have probable
cause to seize the baggie from defendant's pants. We disagree.
“[I]n evaluating a trial court's ruling on a motion to suppress
. . . the trial court's findings of fact '“are conclusive on appeal
if supported by competent evidence, even if the evidence is
conflicting.”'” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d
823, 826 (2001) (quoting State v. Brewington, 352 N.C. 489, 498,
532 S.E.2d 496, 501 (2000), cert. denied, 531 U.S. 1165, 148 L. Ed.
2d 992 (2001) (citation omitted)). Having determined the
challenged finding of fact is supported by competent evidence, we
address whether the findings of fact support the denial of
defendant's motion to suppress.
The State argues that Sgt. Mozingo had the right to seize the
plastic baggie from defendant's pants because defendant consented
to a search when he raised his arms. Regardless of whether
defendant consented to a search, the raising of his arms brought
the plastic baggie into Sgt. Mozingo's plain view. We hold thatSgt. Mozingo's seizure of the plastic baggie was justified under
the “plain view” exception to the Fourth Amendment. Under this
doctrine,
police may seize contraband or evidence if (1)
the officer was in a place where he had a
right to be when the evidence was discovered;
(2) the evidence was discovered inadvertently;
and (3) it was immediately apparent to the
police that the items observed were evidence
of a crime or contraband.
State v. Graves, 135 N.C. App. 216, 219, 519 S.E.2d 770, 772 (1999)
(citing State v. Mickey, 347 N.C. 508, 495 S.E.2d 669, cert.
denied, 525 U.S. 853, 142 L. Ed. 2d 106 (1998)).
Defendant concedes the evidence presented was sufficient to
satisfy the first two prongs of the plain view doctrine. Sgt.
Mozingo had the right to briefly detain defendant for questioning
as to whether defendant was involved in underage drinking.
Moreover, Sgt. Mozingo's discovery of the plastic baggie was not
the result of any deliberate search. The baggie was revealed
inadvertently when defendant raised his arms. We therefore focus
only on the requirement that it was immediately apparent to Sgt.
Mozingo that the plastic baggie was evidence of a crime or
contraband.
Our courts have defined the term “immediately apparent” as
being satisfied where “'“. . . the police have probable cause to
believe that what they have come upon is evidence of criminal
conduct.”'” Graves, 135 N.C. App. at 219, 519 S.E.2d at 772
(quoting State v. Wilson, 112 N.C. App. 777, 782, 437 S.E.2d 387,
389-90 (1993) (citation omitted)). “'Probable cause exists wherethe “facts and circumstances within their [the officers'] knowle
dge
. . . [are] sufficient in themselves to warrant a man of reasonable
caution in the belief that” an offense has been or is being
committed.'” Id. (quoting State v. Zuniga, 312 N.C. 251, 261, 322
S.E.2d 140, 146 (1984) (citation omitted)). “'The circumstances
leading to [a] seizure “should be viewed as a whole through the
eyes of a reasonable and cautious police officer on the scene,
guided by his experience and training.”'” Id. (quoting State v.
Hendrickson, 124 N.C. App. 150, 155, 476 S.E.2d 389, 392 (1996)
(citation omitted)).
In State v. Briggs, 140 N.C. App. 484, 536 S.E.2d 858 (2000),
this Court recently addressed the “immediately apparent”
requirement within the context of the plain feel doctrine. In that
case, the defendant was stopped in his vehicle at a routine license
checkpoint. Id. at 486, 536 S.E.2d at 859. In conducting a pat-
down search for weapons, the officer felt a cylindrical shape in
defendant's pocket that appeared to be a cigar holder. Id. at 487,
536 S.E.2d at 859. Knowing that cigar holders are frequently used
to store controlled substances, the officer removed and opened the
cigar holder from defendant's pocket, revealing several rocks of
crack cocaine. Id.
This Court noted that there exists a split of authority among
states as to whether containers themselves can be immediately
apparent as contraband. Id. at 489-90, 536 S.E.2d at 861-62. We
further noted prior case law from this State fails to fall neatly
into either category. Id. at 491, 536 S.E.2d at 862. We therefore determined the best approach for analyzing the issue is a totali
ty
of the circumstances inquiry. Id. at 493, 536 S.E.2d at 863. We
stated that the determination of probable cause in such instances
“does not require hard and fast certainty by an officer, but
involves more of a common-sense determination. . . . [T]hat
involves considering the evidence as understood by those versed in
the field of law enforcement under the circumstances then
existing.” Id.
In reviewing the totality of the circumstances in that case,
we considered evidence that the defendant was stopped late at night
and in a high crime area; the officer recognized the defendant as
someone who had previously been arrested for a drug offense; the
officer smelled cigar fumes in the defendant's car, which he
believed to be masking the smell of drugs; the defendant's eyes
were red and glassy; and the officer's experience made him aware
that cigar holders are commonly used to store controlled
substances. Id. at 493-94, 536 S.E.2d at 863-64. We concluded the
officer “had sufficient information to warrant a person of
reasonable caution in the belief that the item he detected
contained contraband.” Id. at 494, 536 S.E.2d at 864.
In the present case, Sgt. Mozingo came upon defendant late at
night in an area known for drug activity and at a particular
intersection known for drug transactions and arrests. Defendant
and two other people were congregated at the intersection. As the
officers approached, defendant bent down, then began to walk away
from the intersection. When asked by Sgt. Mozingo to return towhere he had been standing, defendant immediately placed his hand
in his front pants pocket, requiring that Sgt. Mozingo order him to
remove his hand for safety reasons. When defendant later raised
his arms, Sgt. Mozingo saw in plain view approximately two inches
of a plastic baggie. Sgt. Mozingo testified that before seizing
the baggie, he believed it contained a controlled substance because
“[t]hat's the way we find it packaged every day, in clear plastic
bags. I've been through several narcotics classes and they show us
the packaging of narcotics; plus numerous arrests made using the
same type bags.”
Upon review of the totality of the circumstances, we hold the
evidence sufficient to satisfy the third prong of the plain view
doctrine, that it was immediately apparent to Sgt. Mozingo that the
plastic baggie was evidence of a crime or contraband. The plastic
baggie containing marijuana was properly admitted into evidence,
and the trial court did not err in denying defendant's motion to
suppress. We therefore need not address defendant's additional
argument that the cocaine baggies recovered from his mouth must
also be suppressed as “fruit of the poisonous tree.”
Affirmed.
Judges WYNN and TYSON concur.
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