STATE OF NORTH CAROLINA
v
.
Buncombe County
No. 99 CRS 57428
JOHN BRADLEY REES
Roy Cooper, Attorney General, by Rudy E. Renfer, Associate
Attorney General, for the State.
Isabel Scott Day, Public Defender, by John T. Barrett,
Assistant Public Defender.
THOMAS, Judge.
Defendant, John Bradley Rees, pled guilty to felonious
possession of a controlled substance, but reserved a right to
appeal. He now argues the trial court committed reversible error
by denying his motion to suppress evidence obtained during a
vehicle search. We affirm the order of the trial court.
On 13 June 1999, Officer Frederick Anthony Waters of the
Asheville Police Department was conducting surveillance of the Lee
Walker Heights housing complex. Waters observed defendant enter
the complex, but did not recognize him or his vehicle. Based on
prior experience timing drug transactions in the Lee Walker Heights
housing complex, Waters had determined that the average drug
transaction takes about two minutes. Waters began timing defendantas he entered the complex. Defendant exited less than two minutes
later. Believing defendant had just been involved in a drug
transaction, Waters followed him as he drove from the housing
complex. A short time later, after observing defendant commit
several motor vehicle violations, Waters activated his blue lights
and signaled defendant to stop.
Waters, however, did not arrest defendant for the motor
vehicle violations. Instead, he asked him why he had been in the
housing complex. Defendant replied that he was looking for his
brother who had run out of gas on Ravenscroft Drive, a street less
than half a mile from Lee Walker Heights, but that does not
intersect it. As he talked with Waters, defendant was nervous and
his hands were shaking.
Waters asked defendant to exit the vehicle, conducted a pat
down search for safety purposes, and searched the driver's side
area for weapons. Instead of a weapon, however, Waters found .27
grams of cocaine under the driver's seat. Defendant was placed
under arrest. Waters then learned from the police dispatcher that
there were five outstanding arrest warrants for defendant.
Defendant was indicted for possession of cocaine, pled guilty,
and on 1 November 1999 was sentenced to six to eight months in
prison. He appeals.
By defendant's only assignment of error, he argues the trial
court erred in denying his motion to dismiss because neither the
competent evidence presented nor any finding of fact established
probable cause to justify the vehicle search. The scope of appellate review of a denial of a motion to
suppress is limited to determining whether there is competent
evidence to support the trial court's findings of fact and whether
those findings of fact support the conclusions of law. State v.
Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
As a preliminary matter, defendant contends the trial court's
failure to make findings of fact or conclusions of law prevents
this Court's consideration of evidence that contains a material
conflict. In denying defendant's motion, the trial court stated
only that: “The evidence will be subjected to admission at trial.
I will find that it is within the officer's bounds.”
When the competency of the evidence is challenged and a voir
dire is conducted to determine admissibility, the general rule is
that the trial court should make findings of facts to show the
basis for the ruling. State v. Phillips, 300 N.C. 678, 685, 268
S.E.2d 452, 457 (1980). The trial court must do so where there is
a material conflict in the evidence. Id. However, although it is
always the better practice to find all facts on which the
admissibility of the evidence depends, it is not error to admit the
challenged evidence without specific findings of fact where there
is no material conflict in the evidence. Id.
Defendant asserts that the testimony of Waters presented three
material conflicts: (1) the conclusion that defendant did not live
in Lee Walker Heights when Waters testified that he knew most of
its residents; (2) the sweeping determination that persons not
familiar with the housing complex who entered and exited within twominutes had purchased narcotics; and (3) the assertion that
Ravenscroft Drive, located less than half a mile from the housing
complex, did not connect with the complex “in any way.”
Defendant, however, lodged no objection to the testimony at
the hearing. It established that Waters was an experienced
narcotics officer who had conducted surveillance of the Lee Walker
Heights housing complex for almost two years. Waters was familiar
with the complex's inhabitants, their vehicles, and the amount of
time a drug transaction ordinarily took to transpire there. It
also established that Ravenscroft Drive was located downtown and
was not a street that intersected with the housing complex. On
cross-examination, defendant elicited no inconsistent statements or
evidence of bias. We therefore find no merit to defendant's
argument.
We now address defendant's contention that the search of his
vehicle was invalid and unconstitutional because probable cause did
not exist for the search. We disagree.
During a lawful investigatory stop, a police officer may
search the interior of a vehicle for a weapon, limited to those
areas in which a weapon may be placed or hidden, if the police have
a reasonable belief that the suspect is dangerous and may gain
control of his weapons. Michigan v. Long, 463 U.S. 1032, 1049, 77
L. Ed. 2d. 1201, 1219 (1983) (emphasis added). Defendant here does
not contend that the stop of his vehicle was illegal. See State v.
Clyburn, 120 N.C. App. 377, 380, 462 S.E.2d 538, 540 (1995) (a
police officer may conduct a brief investigatory stop of anindividual without probable cause if the stop is based on a
reasonable suspicion, supported by specific, articulable facts,
that criminal activity may be afoot) (citing Terry v. Ohio, 392
U.S. 1, 30, 20 L. Ed. 2d. 889, 911 (1968)).
In Michigan v. Long, the U.S. Supreme Court set forth the rule
for determining the legality of a police officer's protective
search of a vehicle during a Terry stop:
[T]he search of the passenger compartment of
an automobile, limited to those areas in which
a weapon may be placed or hidden, is
permissible if the police officer possesses a
reasonable belief based on “specific and
articulable facts which, taken together with
the rational inferences from those facts,
reasonably warrant” the officer in believing
that the suspect is dangerous and the suspect
may gain immediate control of weapons.
Long, 463 U.S. at 1049, 77 L. Ed. 2d. at 1220 (quoting Terry, 392
U.S. at 21, 20 L. Ed. 2d. at 906). If an officer reasonably
believes that, under the circumstances, his safety or that of
others is in danger, a search of the vehicle is justified as a
protective frisk. Clyburn, 120 N.C. App. at 382, 462 S.E.2d at
541. Here, Waters was conducting surveillance of the Lee Walker
Heights housing complex, an area known for drug activity, at the
time he observed defendant enter the complex. Although the mere
presence of defendant in a neighborhood frequented by drug users
does not alone justify the conclusion that defendant himself was
involved in drug activity, there were additional circumstances here
supporting such a conclusion. See State v. Butler, 331 N.C. 227,
234, 415 S.E.2d 719, 722-23 (1992). Waters recognized neither
defendant as an inhabitant of the housing complex, nor his vehicleas one belonging to an inhabitant. Defendant entered and exited
the complex in less than two minutes. After asking defendant what
he was doing in Lee Walker Heights, Waters noticed that defendant
was very nervous and his hands were shaky.
An officer is entitled to formulate “common-sense conclusions”
about “the modes or patterns of operation of certain kinds of
lawbreakers.” United States v. Cortez, 449 U.S. 411, 418, 66 L.
Ed. 2d. 621, 629 (1981). Here, Waters's reasonable belief that
defendant had just been involved in a drug transaction supported
the reasonable assumption that defendant could be armed and
dangerous. See Clyburn, 120 N.C. App. at 381-82, 462 S.E.2d at 541
(“The officers also reasonably believed that the defendant may be
armed because of his suspected involvement in drug trafficking.”);
see also Butler, 331 N.C. at 234, 415 S.E.2d at 723 (an officer's
assumption that a person reasonably suspected of drug trafficking
may be armed is reasonable).
Waters then searched defendant's vehicle for weapons. The
search was limited to the driver's side and the area within
defendant's immediate reach, “areas in which a weapon may be placed
or hidden.” Long, 463 U.S. at 1049, 77 L. Ed. 2d. at 1220; see
also Clyburn, 120 N.C. App. at 381, 462 S.E.2d at 541 (admitting
into evidence a gun found in the vehicle's glove compartment during
a justified search of the passenger area).
Accordingly, the limited search of defendant's vehicle was
justified as a protective frisk and we reject defendant's
assignment of error. AFFIRMED.
JUDGES HUDSON and JOHN concur.
Report per Rule 30(e).
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