STATE OF NORTH CAROLINA
v
.
Richmond County
Nos. 99 CRS 8727
MARVIN LEE CRUMP 01 CRS 291
Attorney General Roy Cooper, by Assistant Attorney General
Kimberly P. Hunt, for the State.
George E. Crump, III, for the defendant-appellant.
WYNN, Judge.
Following conviction on the offenses of possession of cocaine
and being an habitual felon, Marvin Lee Crump challenges on appeal
the trial court's denial of his motions to suppress evidence and
dismiss the habitual felon indictment. We find no error.
Early in the morning on 22 October 1999, Officers Robert
Burdick and Ray Polentz of the Rockingham Police Department
responded to a call of a breaking and entering at the Economy Motel
in Rockingham. Upon discovering a broken motel room window, the
officers knocked on the room's door and announced their presence as
police officers. They heard women screaming in the room and what
sounded like people wrestling. When no one responded to their
persistent knocks, the officers kicked the door open and enteredthe room.
Inside the room, the officers found defendant sitting on the
edge of the bed with no shirt on and his pants about half-way down
his legs. The also saw Larry Wright coming out of the bathroom and
two women on the opposite side of the bed from defendant. While
Officer Polentz detained and searched Wright, Officer Burdick
instructed defendant to lie on the floor face down, patted him for
weapons, found a hard object in his right front pants pocket and
believed it was a knife. Upon reaching into defendant's pocket to
remove the object, Officer Burdick pulled out a roll of money; at
the same time, a small cellophane bag later determined to contain
crack cocaine fell out of defendant's pocket.
Following denial of defendant's motion to suppress the cocaine
evidence found in his pocket, the trial court adjudged him guilty
of possession of cocaine under N.C. Gen. Stat. § 90-95(a)(3) (1999)
and being an habitual felon under N.C. Gen. Stat. § 14-7.1 (1999).
Defendant appeals.
-------------------------------------------------------
Defendant first argues that the trial court erred by failing
to find that the search by Officer Burdick was unconstitutional.
The scope of appellate review of a ruling upon
a motion to suppress is “strictly limited to
determining whether the trial judge's
underlying findings of fact are supported by
competent evidence, in which event they are
conclusively binding on appeal, and whether
those factual findings in turn support the
judge's ultimate conclusions of law.” An
appellate court accords great deference to the
trial court's ruling on a motion to suppress
because the trial court is entrusted with the
duty to hear testimony (thereby observing thedemeanor of the witnesses) and to weigh and
resolve any conflicts in the evidence.
State v. Johnston, 115 N.C. App. 711, 713, 446 S.E.2d 135, 137
(1994) (internal citations omitted).
In this case, the trial court found that:
(1) On October 22, 1999, Officer Burdick,
accompanied by Officer Polentz did go to the
Economy Motel in response to a complaint of a
breaking or entering. Arriving there they
were sent to an annex and there did see a room
which had a broken window. As they approached
the door of this room, they did hear sounds
described as wrestling and screaming by
ladies. That they did knock on the door,
announce themselves as police and directed the
occupants to open the door. They continued to
hear screaming and wrestling. They again
announced themselves as police and directed
the occupants to open the door some two or
three times. The screaming continued
throughout.
(2) After the final announcement and request
or direction to open the door, Officer Polentz
kicked the door in and both officers entered.
Officer Burdick there did observe the
Defendant in this matter, Marvin Crump, seated
on the edge of a bed. That as the Defendant
was there seated, his pants were located
somewhere between his knees and his thighs.
Otherwise he was wearing underwear and no
shirt.
(3) Also within the room were two ladies
seated on the other side of the bed on which
Mr. Crump was seated. An individual by the
name of Larry Wright, who is the subject of
other criminal charges pending before this
Court, was observed standing near or coming
from a bathroom. Upon entry of the room,
Officer Polentz did go directly to and did
detain Larry Wright. Officer Polentz observed
in the bathroom a plastic bag floating on top
of water in the toilet, seized that and there
found two objects which he identified as
suspected crack/cocaine.
(4) Officer Burdick, upon entering the roomdirected the Defendant, Marvin Crump, to lie
on the floor and did thereafter pat down the
Defendant Crump. That as he patted down the
pants of the Defendant, he felt an object in
the right front pocket which he described as
hard, the size approximately three inches long
by three-quarter inches wide. There has been
no testimony of any weapons having been
observed at any time prior to the entry of
this room.
(5) Officer Burdick placed his hand in the
right front pocket of Defendant Crump and
removed the hard object which he determined to
be a number of dollar bills in varying
denominations totalling $266 folded in such a
manner as to constitute a size which the Court
finds to be approximately three inches long by
one-half or three-quarter inches thick or
wide.
(6) As Officer Burdick removed this from the
pants pocket of the Defendant, a small plastic
bag or portion of a bag containing what was
later identified or determined by the officer
to be crack/cocaine fell from the Defendant
Crump's pocket.
(7) The officers did not witness any fight
between these individuals, Marvin Crump or
Larry Wright. The Defendant Crump did not try
to flee the scene and made no threatening
gestures towards the officers.
Defendant does not specifically challenge any of these findings,
see State v. Watkins, 337 N.C. 437, 438, 446 S.E.2d 67, 68 (1994)
(trial court's findings of fact are not reviewable when not
excepted to on appeal), and a careful review of the record reveals
that these findings are supported by competent evidence, rendering
them conclusively binding on appeal. See Johnston. Based on these
findings, the trial court concluded:
that it was reasonable for Officer Burdick to
pat down or frisk the Defendant Crump as he
was entering a motel room after having heard
screaming and sounds of wrestling or fightingand at that point he had no idea what the
intentions of the Defendant Crump or Mr.
Wright were, nor exactly what had been
occurring prior thereto.
Additionally, the trial court concluded:
that no violations of Defendant Crump's
Constitutional rights, state or federal,
occurred and that the seizure of the small bag
containing alleged crack/cocaine occurred
solely because it came out of the pocket with
the hard object later determined to be a
significant number of folded bills of U.S.
currency.
The Fourth Amendment protects persons against unreasonable
searches and seizures, see U.S. Const. amend. IV, and is applicable
to the states via the Fourteenth Amendment. See U.S. Const. amend.
XIV; see also N.C. Const. art. I, § 20. “[T]he central inquiry
under the Fourth Amendment [is] the reasonableness in all the
circumstances of the particular governmental intrusion of a
citizen's personal security.” Terry v. Ohio, 392 U.S. 1, 19, 20 L.
Ed. 2d 889, 904 (1968).
“Thus, if the totality of circumstances affords an officer
reasonable grounds to believe that criminal activity may be afoot,
he may temporarily detain the suspect[.]” State v. Streeter, 283
N.C. 203, 210, 195 S.E.2d 502, 507 (1973). Furthermore, if the
officer's personal observations after the detention “confirm his
apprehension that criminal activity may be afoot and indicate that
the [detainee] may be armed, [the officer] may then frisk [the
detainee] as a matter of self-protection.” Id. Based on the facts
before us, we uphold the trial court's conclusions that Officer
Burdick's search of defendant was reasonable in light of thetotality of the circumstances, and that the search did not violate
defendant's state or federal constitutional rights. As the trial
court's findings of fact support its conclusions of law,
defendant's first two assignments of error are without merit.
Defendant also argues that the trial court erred in denying
his motion to dismiss the habitual felon indictment on the grounds
that the Habitual Felon Act is unconstitutional. However,
defendant cites no authority in support of this contention, thereby
abandoning this assignment of error. See N.C.R. App. P. 28(b)(6)
(2002). Furthermore, as defendant recognizes in his brief, our
courts have consistently upheld the constitutionality of the
Habitual Felon Act. See, e.g., State v. Todd, 313 N.C. 110, 326
S.E.2d 249 (1985); State v. Wilson, 139 N.C. App. 544, 533 S.E.2d
865, appeal dismissed and disc. review denied, 353 N.C. 279, 546
S.E.2d 395 (2000). This assignment of error is without merit.
No error.
Judges McCULLOUGH and BIGGS concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***