NO. COA01-1004
Appeal by defendant from judgment entered 9 April 2001 by
Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard
in the Court of Appeals
Attorney General Roy A. Cooper, by Assistant Attorney General
Jay L. Osborne, for the State.
Public Defender Isabel Scott Day, by Assistant Public Defender
Julie Ramseur Lewis, for defendant.
BIGGS, Judge.
Defendant Vernon Raley appeals from the denial of his motion
to suppress evidence seized during his arrest for disorderly
conduct. We affirm the decision of the trial court.
Defendant was arrested and charged with several offenses,
including disorderly conduct, all arising out of an altercation
occurring at a Charlotte, North Carolina convenience store during
the pre-dawn hours on 29 March 2000. Prior to trial, defendant
moved to suppress certain physical evidence seized from his vehicle
during a search incident to his arrest. This matter was heard by
the trial court on 9 April 2001.
The evidence tended to show that at approximately 1:15 a.m. on29 March 2000, a female clerk at the Ashley Road Amoco in
Charlotte, North Carolina, observed a red Cadillac sedan pull into
the store's parking lot and park. Defendant, who was the driver
and sole occupant of the vehicle, exited the car and approached the
store. The clerk had earlier locked the doors to the store after
observing some customers stealing beer, and had to to open the door
by a remote door locking mechanism to let defendant into the store.
Defendant became angry because the door had been locked, and when
he entered the store he said to the clerk, “You don't have to lock
me out[,] Beautiful, you know you are making me horney [sic].”
When the clerk requested that he not address her in that manner,
defendant responded, “F--k you, B--ch.” Further, when the clerk
informed defendant that the police were on the way, he stated,
“F--ck you, I have something for you, and the police.”
Police officers arrived on the scene moments later and the
clerk told them about defendant's statements. In response, the
officers asked defendant, who was standing outside of the store at
this time, to come back inside to explain what happened from his
perspective. Defendant refused and continued to utter profanity.
When advised to calm down, defendant stated, “F--ck that s--t I can
say what I want.” The police officers detected a strong odor of
alcohol about defendant's person, and subsequently arrested him for
disorderly conduct. The officer then conducted a pat-down of
defendant's clothing before placing him in the patrol car.
Thereafter, one of the officers located defendant's prison
identification card in his wallet, identifying defendant as aconvicted felon.
After his arrest, defendant informed the officers that he
owned the red Cadillac sedan parked in front of the store. When
one of the officers approached the vehicle, he observed an open
bottle of liquor on top of the front passenger seat. The officer
also saw the handle of a pistol sticking out from underneath the
driver's seat. The officer subsequently informed defendant that he
was also going to be charged with transporting an open container of
alcoholic beverage, possession of a firearm by a felon, and
altering serial numbers on a gun. Enraged by the additional
charges, defendant began to shout racial epitaphs to the police
officers, and threatened, “Ya'll will pay for this.”
After reviewing the evidence filed during discovery of this
matter and hearing the arguments of counsel, the trial court denied
defendant's motion to suppress. Thereafter, defendant, reserving
the right to appeal the denial of his motion to suppress, pled
guilty to all of the charges against him. In accordance with the
plea agreement, the charges were consolidated for sentencing and
defendant was placed on intensive probation. Defendant appeals.
I.
By his first assignment of error, defendant argues that the
trial court erred in denying his motion to suppress evidence
obtained during a search incident to his arrest. Specifically,
defendant contends that his warrantless arrest was unlawful, since
police officers lacked probable cause to arrest him for disorderly
conduct. Accordingly, defendant submits that the evidence seizedpursuant to that arrest should have been suppressed. We disagree.
In reviewing the trial court's ruling on a motion to suppress,
this Court need “determine only whether the trial court's findings
of fact are supported by competent evidence in the record, and
whether th[ose] findings of fact support the court's conclusions of
law.”
State v. Colbert, 146 N.C. App. 506, 511, 553 S.E.2d 221, 224
(2001). The trial court's findings are binding on appeal if
supported by competent evidence, even if there is evidence to
support contrary findings.
State v. Brewington, 352 N.C. 489, 498,
532 S.E.2d 496, 502 (2000). “The conclusions drawn from the facts
found are, however, reviewable.”
State v. Wallace, 111 N.C. App.
581, 584, 433 S.E.2d 238, 240 (1993).
At the outset, we note that defendant has failed to assign
error or present argument as to any of the trial court's findings
of fact; thus, the findings are presumed correct and are binding on
this Court on appeal.
See State v. Rhyne, 124 N.C. App. 84, 90, 478
S.E.2d 789, 791 (1996)(citing N.C.R. App. P. 28(a)). Our sole
inquiry on appeal, therefore, is whether the trial court erred in
concluding that the officers had probable cause to arrest him.
The Fourth Amendment, as applied to the States through the Due
Process Clause of the Fourteenth Amendment, protects the citizens
from unreasonable searches and seizure. U.S. Const. Amend. IV.
The North Carolina Constitution contains similar protections.
See
N.C. Const. Art. I, § § 19, 20. It is well settled that an arrest
passes constitutional muster when founded upon probable cause.
State v. Chadwick, 149 N.C. App. 200, 202, 560 S.E.2d 207, 209,
disc. review denied, 355 N.C. 752, 565 S.E.2d 672 (2002). Probable
cause has been defined as “'a reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves to
warrant a cautious man in believing the accused to be guilty.'”
State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971)
(quoting 5 Am.Jur.2d
Arrests § 44 (1962)). Significantly, probable
cause does not require an actual showing of criminal activity,
“'only
a probability or substantial chance'” of such activity.
State v. Riggs, 328 N.C. 213, 219, 400 S.E.2d 429, 433 (1991)
(emphasis in original) (quoting
Illinois v. Gates, 462 U.S. 213,
243 n. 13, 76 L. Ed. 2d 527, 552 n. 13 (1983)). Whether probable
cause exists is determined by the facts and attenuating
circumstances, and is based upon an objective of reasonableness.
Harris, 279 N.C. at 311, 182 S.E.2d at 367. Once a police officer
has executed a lawful arrest, based upon probable cause, he may
conduct a warrantless search incident to that lawful arrest.
See
State v. Logner, 148 N.C. App. 135, 139, 557 S.E.2d 191, 195
(2001)(noting that a search incident to a lawful arrest is a “well-
recognized” exception to the warrant requirement”).
Defendant was charged with disorderly conduct. N.C.G.S. 14-
288.4 defines disorderly conduct thusly:
(a) Disorderly conduct is a public
disturbance intentionally caused by a person
who:
(1) Engages in fighting or other violent
conduct or in conduct creating the threat of
imminent fighting or violence; or
(2) makes or uses any utterance, gesture,
display or abusive language which is intended
and plainly likely to provoke violentretaliation and thereby causes a breach of the
peace.
N.C.G.S. § 14-288.4 (2001). “Public disturbance” is defined in
G.S. § 14-288.1(8) as follows:
Any annoying, disturbing, or alarming act or
condition exceeding the bounds of social
toleration normal for the time and place in
question which occurs in a public place or
which occurs in, affects persons in, or is
likely to affect persons in a place to which
the public or a substantial group has access.
The places covered by this definition shall
include, but not be limited to, highways,
transport facilities, schools, prisons,
apartment houses, places of business or
amusement, or any neighborhood.
N.C. Gen. Stat. § 14-299.1(8) (2001).
The facts here tend to show that during the early morning
hours of 29 March 2000, a convenience store clerk locked the doors
of the store where she worked, after observing customers
shoplifting. Defendant became upset when he approached the store
and found it locked. When he gained entrance, he became abusive
toward the clerk-- first, making sexually suggestive comments, and
then cursing her. When the clerk informed defendant that the
police had been called, defendant continued to curse her and
threatened, “F--k you, I have something for you and the police.”
After police officers responded to the scene, the clerk informed
them of defendant's comments. When the officers requested that he
move out of the store's doorway and enter the store so that they
could further investigate the matter, defendant refused, yelling,
“No I ain't going inside that fucking store.” Despite the officers
attempts to calm defendant, he continued with his outbursts. Customers in the parking lot seemed bothered by defendant's
behavior. When defendant continued to refuse to cooperate and
continued to curse the officers, they arrested him for disorderly
conduct. During the arrest, the officers detected a strong odor of
alcohol about defendant's person.
Based upon this evidence, the trial court made the following
findings in open court:
I am going to find that the Defendant appeared
in the store; . . . that his admission was
delayed because the Clerk had locked the door
. . . because of an earlier incident, in which
the Defendant was not involved. When the
Defendant was allowed access into the store he
was angry and cursed and made comments to the
clerk, saying, “You don't have to lock me out”
and “you make me horny” and “I have . . . “--
- after being told that the police had been
called, he said, “I have something for you and
the police.” The evidence would suggest that
the Defendant had been drinking and there was
an odor of alcohol about him. The Defendant
also made the statement in the presence of
police, “F--k that sh-t. I can say what I
want.” In addition, there were others
presence [sic] within the hearing of these
comments.
Based upon those findings, the Court concluded as follows:
The Court concludes as a matter of law that
the Defendant engaged in abusive behavior
which was intended to provoke a breach of the
peace; that his comments were troublesome to
others; . . . and that the police were
authorized to arrest the Defendant for
disorderly conduct; and that the motion to
suppress should be denied.
On this record, the trial court properly concluded that the
officers had probable cause to arrest defendant for disorderly
conduct. We reject defendant's attempts to distinguish seminal
cases, which support our decision in this regard.
See State v.Summerell, 282 N.C. 157, 192 S.E.2d 569 (1972),
reversed on other
grounds, 324 N.C. 539, 380 S.E.2d 118 (1989);
State v. McLoud, 26
N.C. App. 297, 215 S.E.2d 872 (1972);
State v. Cunningham, 34 N.C.
App. 72, 237 S.E.2d 334 (1977). We conclude that the instant facts
and attenuating circumstances would permit a reasonable, prudent
police officer similarly situated to believe that defendant's
profane and abusive language was intended to, and did in fact,
disrupt the peace. Unquestionably, defendant's conduct disrupted
operations at the convenience store. The clerk was forced to stop
the orderly operation of the store to deal with defendant's
belligerent behavior and to speak with the officers about that
behavior. Moreover, after their arrival, defendant continued to
direct abuses and profanity at the store clerk and police officers.
When asked to calm down, he loudly and profanely refused.
Responding officers observed that store customers seemed disturbed
by defendant's language and behavior.
Because the officers had probable cause to arrest defendant
for disorderly conduct, the search conducted incident thereto, was
not constitutionally infirm and the trial court did not err in
denying defendant's motion to suppress. Defendant's first
assignment of error is overruled.
II.
By his second assignment of error, defendant argues that the
trial court erred in denying his motion to suppress evidence, based
upon statutory violations. Defendant contends that his warrantlessarrest for disorderly conduct was in violation of G.S. 15A-401, and
that the evidence seized was obtained in substantial violation of
Chapter 15 of the North Carolina General Statutes. Again, we
disagree.
The record reveals that it is unclear whether trial counsel
objected to the admission of the evidence seized during defendant's
arrest, based upon violation of G.S. 15A-401. Moreover, it does
not appear that the trial court ruled upon the motion to suppress
in this regard, so as to preserve the issue for review under N.C.R.
App. P. 10(b)(1). Defendant, therefore, seeks review under the
“plain error” doctrine. Our Supreme Court has previously stated,
“[T]he plain error rule . . . is always to be applied cautiously
and only in the exceptional case where ... it can be said the
claimed error is a 'fundamental error, something so basic, so
prejudicial, so lacking in its elements that justice cannot have
been done'. . . .” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d
375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995,
1002 (4th Cir.1982)). “To satisfy the requirements of the plain
error rule, the Court must find error, and that if not for the
error, the jury would likely have reached a different result.”
State v. Holmes, 120 N.C. App. 54, 64, 460 S.E.2d 915, 921, disc.
review denied, 342 N.C. 416, 465 S.E.2d 545 (1995).
G.S. 15A-401 provides in pertinent part:
(b) Arrest by Officer Without a Warrant. --
(1) Offense in Presence of Officer. --An
officer may arrest without a warrant any
person who the officer has probable cause to
believe has committed a criminal offense in
the officer's presence.
(2) Offense Out of Presence of Officer. -- An
officer may arrest without a warrant any
person who the officer has probable cause to
believe:
a. Has committed a felony; or
b. Has committed a misdemeanor, and:
1. Will not be apprehended unless immediately
arrested, or
2. May cause physical injury to himself or
others, or damage to property unless
immediately arrested.
N.C.G.S. § 15A-401(b)(2001). Evidence obtained as a result of a
“substantial violation” of any provision in Chapter 15A must be
suppressed. N.C.G.S. [§] 15A-974(2) (2001). In making a
determination as to whether a violation is substantial within the
meaning of G.S. § 15A-974(2), the trial court must consider all of
the circumstances, including the importance of the interest
violated, the extent of the deviation, the willfulness of the
deviation, and the deterrent value that the exclusion of the
evidence will provide. State v. Simpson, 320 N.C. 313, 322, 357
S.E.2d 332, 337 (1987). Suppression is required where “a causal
relationship [] exist[s] between the violation and the acquisition
of the evidence sought to be suppressed.” State v. Richardson, 295
N.C. 309, 322, 245 S.E.2d 754, 763 (1978).
As we concluded earlier, the arresting officers in this case
had probable cause to arrest defendant for disorderly conduct. We
further conclude that the arresting officers had probable cause to
believe that defendant committed the offense in their presence.
While defendant argues to the contrary, we believe that defendant'scontinued, threatening behavior and use of profanity after police
officers arrived on the scene, despite warnings to calm down; his
refusal to cooperate with the police in investigating the matter;
and his continued disruption of the business of the convenience
store, along with his drunken demeanor, support such a conclusion.
Discerning no error -- plain or otherwise-- in denying defendant's
motion based upon violations of G.S. § 15A-401 or -974(2), we
overrule defendant's second assignment of error.
In light of the forgoing, we hold that the trial court
properly denied defendant's motion to suppress. Accordingly, the
decision of the trial court is affirmed.
Affirmed.
Chief Judge EAGLES and Judge WALKER concur.
Report Rule 30(e).
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