STATE OF NORTH CAROLINA
v
.
LARRY GENE McRAE
Attorney General Roy Cooper, by Assistant Attorney General
Rudy E. Renfer, for the State.
Public Defender Angus B. Thompson, II, by Assistant Public
Defender Ronald H. Foxworth, for defendant-appellant.
THOMAS, Judge.
Defendant, Larry Gene McRae, appeals from the denial of his
suppression motion. Following the trial court's decision,
defendant pled guilty to felony possession of cocaine and
misdemeanor possession of drug paraphernalia pursuant to a plea
agreement in which he preserved his right to appeal the denial of
his motion pursuant to N.C. Gen. Stat. § 15A-979(b).
By his sole assignment of error, defendant contends the trial
court erred in concluding that the law enforcement officers had
constitutionally reasonable grounds to justify the stop of his
vehicle and subsequent search of his person. For the reasons
herein, we affirm the trial court. The testimony at the suppression hearing tends to show the
following: On 5 December 1997, at approximately 9:15 p.m.,
Corporal Bill Leggett and Sergeant David Prevatte of the Rowland
Police Department were on patrol traveling north on Martin Luther
King Boulevard. The officers observed defendant's vehicle, a gray
Lincoln, parked in a private parking lot. The area is a "well
known drug area" and a sign prohibiting trespassing after 8:00 p.m.
was posted on the premises.
Leggett testified he observed defendant get in and out of the
vehicle several times and "there [were] a lot of people gathering
around." According to Leggett, during one of the times defendant
was out of the vehicle, defendant was approached by a man in a blue
jacket. Leggett noticed something being passed between the two
men, leading him to suspect a sale of an item had occurred.
Prevatte, meanwhile, testified to merely observing a man
approach the driver's side window of defendant's vehicle and have
a conversation with defendant "for about a minute." The man then
left and went back across the street. Prevatte did not testify to
seeing anything pass between the two.
Following his encounter with the man in the parking lot,
defendant drove his vehicle off the lot and turned right on Martin
Luther King. The officers' suspicions had been roused due to the
time of night and their knowledge that the area was a popular
location for drug transactions, so they turned their patrol car
around and followed defendant.
While continuing to trail him, they ran a license check, andeventually paced defendant traveling 45 mph in a 35 mph zone.
After defendant made a right turn onto North Hine Street, the
officers activated their blue lights and pulled him over for
speeding. They then received word that the license tag on
defendant's vehicle was assigned to another vehicle.
Prevatte approached defendant's vehicle and discovered
defendant in the driver's seat and a female in the passenger seat.
Prevatte asked defendant for his driver's license. Prevatte could
not remember whether defendant had produced a driver's license when
asked; however, Prevatte testified that a subsequent check
indicated defendant's license was revoked. Prevatte asked
defendant to step out and go to the front of the vehicle in order
for the officers to inquire further about the vehicle's ownership.
Defendant was "extremely nervous," according to Prevatte,
repeatedly placing his hands in his pockets and removing them.
While defendant did not take out any objects, he continued to put
his hands in and out of his pockets after being asked not to do so
by Prevatte.
Concerned for the officers' safety, Prevatte conducted a "pat-
down" frisk of defendant and felt an "undetermined object" in
defendant's pocket. Prevatte asked defendant to remove the object
and place it on the hood of the car. Defendant acquiesced,
removing some copper and metal wiring. Prevatte then asked if
defendant had anything else in his pockets and defendant responded
by pulling out a rock of cocaine. Defendant, then placed underarrest, indicated he had purchased the cocaine to trade for sex
with his female passenger. Defendant was later charged with
possession of drug paraphernalia and possession of cocaine.
Defendant, meanwhile, testified at the suppression hearing
that he had purchased cocaine at the corner store, but had done so
in front of the store, not in the parking lot across the street.
He said he obeyed all traffic laws after leaving the parking lot
and did not speed. He further noted that he was not ticketed for
speeding by the officers. Upon being pulled over, he was asked for
his driver's license and registration, produced his license, but
could not find his registration. He was then asked to step from
the car and was searched. He never consented to the search.
According to defendant, the cocaine was found in the bill of his
cap.
Following the suppression hearing, the trial court made the
following findings of fact and conclusions of law:
1. That the officers had probable cause to
stop the Defendant's vehicle for violation of
the motor vehicle laws of this State, to wit,
speeding and registration of the license
plate.
2. That the officers thereafter determined
that the Defendant's license was in a state of
revocation giving the officers further
probable cause to detain and arrest.
3. That the combination of the observed drug
transaction and multiple violation occurring
in the present [sic] of the officers, the
conduct of the defendant, all gave the
officers reasonable grounds to detain and
frisk the Defendant.
4. That the purpose of the detention and the
length of the detention was reasonable under
the totality of the circumstances.
Based on its findings of fact and conclusions of law, the
trial court denied defendant's motion to suppress.
Our review of a trial court's denial of a motion to suppress
is limited to a determination of whether its findings are supported
by competent evidence, and if so, whether the findings support the
trial court's conclusions of law. State v. Allison, 148 N.C. 702,
704, 559 S.E.2d 828, 829 (2002). "This Court will not review a
trial court's findings of fact when defendant merely makes a
general contention that the trial court's findings are not
supported by the evidence." State v. Steen, 352 N.C. 227, 238, 536
S.E.2d 1, 8 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997
(2001).
Here, defendant, in his sole assignment of error, has failed
to specifically except to any of the trial court's findings of
fact. Additionally, defendant failed to identify in his brief
which of the trial court's findings of fact are not supported by
the evidence. Because defendant has assigned error to the trial
court's findings of fact only in a general fashion, the focus of
our analysis is whether the trial court's findings overall support
its conclusion that the stop and subsequent search of defendant was
constitutional.
Article I, Section 20 of our North Carolina Constitution, as
does the Fourth Amendment to the United States Constitution,
protects against unreasonable searches and seizures. State v.
McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999). The
temporary detention of a motorist upon probable cause to believethat he has violated a traffic law is not inconsistent with the
prohibition against unreasonable seizures, even if a reasonable
officer would not have stopped the motorist for the violation. Id.
(officer had probable cause to stop station wagon driven by
defendant because defendant was speeding); see also Whren v. United
States, 517 U.S. 806, 135 L. Ed. 2d 89 (1996); State v. Hamilton,
125 N.C. App. 396, 400, 481 S.E.2d 98, 100 (1997) (officer had
probable cause to stop vehicle in which defendant was a passenger
based on officer's observation that neither the driver nor
defendant passenger was wearing a seat belt). Probable cause
exists where the facts and circumstances within the knowledge of
the officer, when objectively viewed through the eyes of a
reasonable, cautious officer, guided by his experience and
training, are sufficient to warrant a prudent man's belief that the
suspect has committed or is committing an offense. See State v.
Crenshaw, 144 N.C. App. 574, 577, 551 S.E.2d 147, 149 (citing State
v. Munoz, 141 N.C. App. 675, 682, 541 S.E.2d 218, 222 (2001)),
cert. denied, 353 N.C. 454, 548 S.E.2d 534 (2001) ; Hamilton, 125
N.C. App. at 399, 481 S.E.2d at 100 (citing State v. Streeter, 283
N.C. 203, 207, 195 S.E.2d 502, 505 (1973) (citation omitted)).
Here, the facts found by the trial court conclusively
establish that the officers had probable cause to stop defendant's
vehicle for speeding. The trial court found that the officers
paced defendant's vehicle "exceeding the posted speed limit at 45
mph in a 35 mph zone." We therefore conclude the officers in this
case were justified in stopping defendant's vehicle. SeeMcClendon, 350 N.C. at 636, 517 S.E.2d at 132.
Having established that the initial stop of defendant's
vehicle was proper, we next address whether the subsequent search
of defendant's person was constitutionally reasonable.
When an officer has lawfully detained a vehicle based on
probable cause to believe that a traffic law has been violated, he
may order the driver to exit the vehicle. See State v. McGirt, 122
N.C. App. 237, 239, 468 S.E.2d 833, 834-35 (1996) (citing
Pennsylvania v. Mimms, 434 U.S. 106, 111, 54 L. Ed. 2d 331, 337
(1977)), aff'd per curiam, 345 N.C. 624, 481 S.E.2d 288 (1997).
The officer is permitted to conduct a "pat-down" frisk to discover
a weapon or weapons once the defendant is outside the vehicle,
"[i]f he reasonably believes that the person is armed and
dangerous[.]" State v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599,
600 (1998); see also Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889
(1968); State v. Butler, 331 N.C. 227, 415 S.E.2d 719 (1992); State
v. Peck, 305 N.C. 734, 291 S.E.2d 637 (1982). In determining that
an individual might be armed and dangerous, the officer is entitled
to formulate common-sense conclusions about "'the modes or patterns
of operation of certain kinds of lawbreakers.'" Butler, 331 N.C. at
234, 415 S.E.2d at 723 (quoting United States v. Cortez, 449 U.S.
411, 418, 66 L. Ed. 2d 621, 629 (1981)).
Here, the officers observed defendant's vehicle parked "in a
well known drug area" in violation of a posted "No Trespassing"
Sign. Prevatte saw defendant engaged in a conversation with a man
who had walked to the driver's side window of defendant's vehicle. This, coupled with the time of night and the area in which
defendant was parked, roused Prevatte's suspicions that defendant
was involved in drug trafficking. Additionally, Leggett testified
that he saw something being passed from a man in the parking lot to
defendant. Based on this evidence, the trial court found as fact
that defendant participated in a "drug transaction."
After defendant exited the parking lot, the officers paced him
traveling 45 mph in a 35 mph zone and lawfully stopped him for
speeding. Prior to encountering defendant in his vehicle, the
officers determined the license tags on the vehicle to be
fictitious. Prevatte was thus entitled to inquire further
regarding the vehicle's ownership. See McClendon, 350 N.C. at 637,
517 S.E.2d at 133. Accordingly, he asked defendant to step out and
go to the front of the vehicle.
Defendant appeared "extremely nervous" to Prevatte, and
repeatedly put his hands in and out of his pockets. Defendant
continued doing so even after Prevatte told him to stop. Prevatte
then conducted a "pat-down" search of defendant for weapons and
felt what he described as an "undetermined object" in defendant's
pocket. He asked defendant to remove it. Defendant voluntarily
complied, placed drug paraphernalia on the hood of the car, and,
when asked if he had anything else in his pockets, pulled out a
rock of cocaine. Prevatte did not reach into defendant's pocket
and the "pat-down" frisk was not otherwise unreasonably intrusive.
Defendant simply voluntarily complied with Prevatte's request to
empty his pockets. Under the circumstances of this case, we findthat defendant's acquiescence to Prevatte's request amounted to
clear and unequivocal consent for the seizure of the contraband
removed from defendant's pockets.
When viewed from the common-sense perspective of a law
enforcement officer performing his duties, these facts allowed
Prevatte to form a reasonable belief that defendant was armed and
dangerous. In sum, the trial court's findings of fact reveal: (1)
defendant was observed in a "well know drug area" at night
participating in a "drug transaction," see Butler, 331 N.C. at 234,
415 S.E.2d at 723 (in face-to-face encounter with person suspected
of drug trafficking, officer could reasonably assume suspect might
be armed); (2) he was stopped for speeding and the officers
subsequently discovered the license tags on his vehicle were
fictitious and his driver's license had been revoked; (3) he
appeared "extremely nervous" when he stepped out of his car, see
McClendon, 350 N.C. at 638, 517 S.E.2d at 134 (nervousness, like
all other facts, must be taken in light of the totality of the
circumstances, and is an appropriate factor to consider when
determining whether a basis for reasonable suspicion exists); and
(4) he repeatedly put his hands in and out of his pockets after
being asked not to. See Hamilton, 125 N.C. App. at 401, 481 S.E.2d
at 101 (suspect reached toward his left side before exiting
vehicle, which trial court found caused officer to believe suspect
was reaching for a weapon; "pat-down" for weapons justified based
on reasonable belief suspect armed and dangerous). The totality of
these circumstances, even in the face of an otherwise cooperativedefendant who presented no obvious signs of carrying a weapon,
supports the trial court's conclusion that Prevatte had reasonable
grounds to frisk defendant. See McGirt, 122 N.C. App. at 240, 468
S.E.2d at 835.
Because the evidence sought to be suppressed by defendant was
voluntarily given to the officers during the course of a
constitutionally reasonable "pat-down" frisk, the trial court did
not err in denying defendant's motion to suppress. Accordingly, we
affirm.
Affirmed.
Chief Judge EAGLES and Judge TYSON concur.
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