STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 01 CRS 25589, 51908
THADDEUS LAMONT WILKINS
Attorney General Roy Cooper, by Assistant Attorney General
Thomas H. Moore, for the State.
Richard E. Jester for defendant-appellant.
CAMPBELL, Judge.
Having preserved his right to appeal the denial of his motion
to suppress, see N.C. Gen. Stat. § 15A-979(b) (2001), defendant
entered a guilty plea to possession of cocaine with intent to sell
or deliver, possession of drug paraphernalia, and habitual felon
status. The trial court consolidated the offenses for judgment and
imposed a mitigated sentence of seventy-two to ninety-six months'
imprisonment.
At the suppression hearing, Winston-Salem Police Officer Jeff
Azar testified that he was on patrol in the area of Cleveland
Avenue between Twentieth and Twenty-First Streets at approximately
3:00 p.m. on 16 February 2001. Azar twice drove past the corner ofCleveland and Twenty-First and saw “several individuals hanging
around that corner” in front of Carter's Grocery. Azar contacted
Officer Ben Jones, and the two officers decided to contact the
group in order to “make sure no criminal activity [wa]s going on.”
Azar had made numerous drug-related arrests in the area and was
“very familiar” with it as the site of “[a] lot of drug
activity[.]”
The officers parked on Twentieth Street. As they got out of
their cars, the group dispersed and “left the area pretty quick” at
a pace that was “[n]ot a run, but not a walk.” Defendant went
across Twenty-First Street and behind an abandoned house at the
corner of Twenty-First and Cleveland. The officers went into the
abandoned house but found no one there. When they stepped onto the
back porch, Azar observed defendant standing behind a tree in a
wooded area behind the house. It appeared to Azar that defendant
was “trying to hide[.]” Azar estimated that the woods were
approximately fifty to sixty yards from the back of the house, and
defendant was standing one hundred yards from the porch. After
watching defendant remain behind the tree for two or three minutes,
Azar and Jones walked to the edge of the woods. In a normal tone
of voice, Azar called to defendant, “[S]ir, you can come out of the
woods, there's nothing wrong, we'd like to speak to you a minute.”
Defendant came out of the woods toward the officers. As he
approached, Azar noticed defendant had both hands in the front
pouch of his hooded sweatshirt. Azar asked defendant to take his
hands from his pockets while they talked. When defendant removedhis hands from the sweatshirt, Azar noticed a large bulge remaining
in the pouch and asked defendant if he was carrying any weapons.
When defendant answered in the negative, Azar asked if he could
frisk him. Defendant responded, “[T]hat's fine.” In patting down
defendant's sweatshirt pocket, Azar felt what he believed was a
bottle with a stem sticking out of it. Based on Azar's training
and experience, it was “readily apparent” that the object was a
crack pipe. After defendant denied possessing a crack pipe, Azar
asked him if he would mind letting Azar look at the object.
Defendant replied, “No, I don't have a problem with that.” Azar
then removed the crack pipe from defendant's sweatshirt and placed
defendant under arrest for possession of drug paraphernalia. A
search incident to the arrest yielded a bag of crack cocaine from
defendant's right front pants pocket.
Officer Jones, who had been on the police force for two years
and had made “many” drug-related arrests in the area, offered an
account of defendant's arrest that was substantially similar to
Azar's version. He described defendant as hiding behind a tree in
the woods and “peeking out kind of around the tree, looking at” the
officers, at which point Azar called out to defendant in a “[c]alm
tone, . . . just loud enough to where you could hear it.” Jones
explained the reason for getting defendant's hands out of his
sweatshirt as follows:
Officer Azar asked [defendant] to remove his
hands, from my training and experience I know
that guns and drugs go together, so we
immediately wanted him to get his hands out of
his pocket[.] [H]e was on the corner where a
lot of drug activity is known to happen.
In his lone significant variance from Azar's testimony, Jones
stated that when Azar asked defendant if he could frisk him for
weapons, defendant gave no response.
Defendant testified that he left the corner when the police
arrived and was walking on a path through the wooded area to visit
a friend who lived nearby. Realizing that he needed a pack of
cigarettes, he stopped and turned around, intending to return to
Carter's Grocery. When he came within sixty yards of the abandoned
house, the officers addressed him from the back porch, asking him
where he was going. Defendant said he was going to the store to
buy cigarettes, and the officers told him to “come on through.” As
defendant walked, the officers came off the porch and stood in
front of him on the path, blocking his way. They asked defendant
what he was doing and where he lived. The officers then asked for
his identification. When defendant said he was not carrying
identification, they asked to frisk him. Defendant did not
respond but was patted down anyway. Defendant did not recall being
asked to take his hands from his pockets. Moreover, his hands were
in his pants' pockets, rather than his sweatshirt pocket.
In denying defendant's motion to suppress the pipe and cocaine
found on his person, the trial court concluded that Azar performed
a Terry search of defendant during an otherwise consensual
encounter. See Terry v. Ohio, 392 U.S. 1, 19 n. 16, 20 L. Ed. 2d
889, 905 n.16 (1968). The court found that Azar observed defendant
as part of a group gathered on Cleveland Avenue in an area known
for drug activity. When Azar and Jones exited their cars,defendant crossed the street and went toward an abandoned house.
The officers went to look for defendant in the house, stepping out
onto the back porch when they found it unoccupied. The court
further found as follows:
Officer Azar observed the Defendant two or
three minutes behind a tree and that the
Defendant was not moving, and made a request
of the Defendant to come out of the woods.
The officer's tone of voice was in a normal
tone and the officer had not drawn his weapon
. . . .
The Defendant responded on his own and
came out. Officer Azar noticed the Defendant
had . . . on . . . a black hooded sweat[shirt]
in which the Defendant's hands were in [] part
concealed from the officer. [Azar] at that
time made a request, because the officer's
experience that drugs and guns were a part of
this drug activity area, and requested the
Defendant to take his hands out of his
pockets.
The court found that defendant voluntarily removed his hands from
his pocket but was silent when Azar asked for his consent to a
frisk for weapons. In performing the frisk, “which he had the
authority to do,” Azar felt an object which he believed was a crack
pipe. After a search confirmed the presence of the crack pipe,
defendant was arrested. A full search of defendant's clothing
disclosed the crack cocaine.
The court concluded “[t]hat based on the totality of the
circumstances, the officers were justified in a Terry frisk of the
Defendant for weapons; and upon the officers' observation of the
noticeable bulge in the Defendant's pockets, . . . they had a
reasonable, articulable suspicion to search the Defendant and to
retrieve both the crack pipe and the cocaine which was laterfound.”
Defendant contends that the trial court erred in concluding
that the facts gave rise to a reasonable suspicion of wrongdoing
supporting an investigatory stop and frisk under Terry. He avers
that the only facts suggestive of criminal activity were (1) his
presence in an area with a high level of drug activity and (2) the
bulge in his pocket. Defendant contends, citing State v. Artis,
123 N.C. App. 114, 472 S.E.2d 169, disc. review denied, 344 N.C.
633, 477 S.E.2d 45 (1996), that such facts are insufficient to
support the warrantless search of his person. Defendant also
disputes the court's conclusion that he was not “seized” for
constitutional purposes when the two officers initially blocked his
path.
On appeal from the denial of a motion to suppress, the trial
court's findings of fact are binding if supported by competent
evidence. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619
(1982). Its conclusions of law will be upheld if supported by its
findings of fact. Id.
The Fourth Amendment protects citizens from "unreasonable
searches and seizures" at the hands of law enforcement or other
governmental authority. U.S. Const. amend. IV. For constitutional
purposes, a seizure occurs when a police officer, “by means of
physical force or show of authority, has in some way restrained the
liberty” of the person. State v. Foreman, 133 N.C. App. 292, 296,
515 S.E.2d 488, 492 (1999), affirmed as modified, 351 N.C. 627,
633, 527 S.E.2d 921, 925 (2000) (quoting Terry v. Ohio, 392 U.S. 1,19 n. 16, 20 L. Ed. 2d 889, 905 n.16 (1968)). No seizure occurs
merely because a police officer approaches a person in a public
area. State v. Brooks, 337 N.C. 132, 142, 446 S.E.2d 579, 586
(1994). Police are free to pose questions of individuals, ask for
identification, or seek consent to conduct a search, provided a
reasonable person would feel free under the circumstances to break
off the encounter. Id. at 142, 446 S.E.2d 585-86. “[A] seizure
does not occur until there is a physical application of force or
submission to a show of authority." Foreman, 133 N.C. App. at 296,
515 S.E.2d at 492.
Consistent with the testimony of Azar and Jones, the trial
court found that defendant was standing behind a tree and came out
of the woods after Azar asked to speak with him in a calm tone of
voice from a distance of more than fifty yards. Azar and Jones did
not draw their weapons, rush toward defendant, or otherwise make
any show of authority that would have moved the incident outside
the realm of a purely voluntary encounter between police officers
and a member of the public. These findings are binding on appeal
and support the trial court's conclusion that defendant was not
stopped or “seized” when he came into the yard to speak with Azar.
Cf. United States v. Drayton, __ U.S. __, __, 70 U.S.L.W. 4539, __
(2002); Foreman, 133 N.C. App. at 296, 515 S.E.2d at 492.
The trial court further found that Azar performed a pat-down
search for weapons after defendant removed his hands from the
pocket of his sweatshirt, revealing a bulge. The court found that
defendant remained silent when Azar asked for his consent to thesearch. (This Court has held that an individual's silent
acquiescence to a search of his person is insufficient to
constitute a waiver of his Fourth Amendment rights.) See State v.
Pearson, 348 N.C. 272, 277, 498 S.E.2d 599, 601 (1998). Consent to
a search “must be [] clear and unequivocal” before it will be
treated as a waiver of constitutional protections. Id. (citing
State v. Little, 270 N.C. 234, 239, 154 S.E.2d 61, 65 (1967)).
An officer may conduct a limited pat-down search for weapons
if the totality of the circumstances gives rise to a reasonable
suspicion that the person to be searched is engaged in criminal
activity and is armed and potentially dangerous. See State v.
Beveridge, 112 N.C. App. 688, 694, 436 S.E.2d 912, 915 (1993)
(citing Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968)), aff'd,
336 N.C. 601, 444 S.E.2d 223 (1994). Here, defendant was observed
with a group of men on a street corner associated with a high
degree of illegal drug activity. See State v. Butler, 331 N.C.
227, 233-34, 415 S.E.2d 719, 722 (1992). When Azar and Jones
stepped out of their patrol cars, defendant and the rest of the
group dispersed in various directions. Although perhaps not
“[h]eadlong flight[,]” defendant's departure from the area at a
pace somewhere between a run and walk was suggestive of possible
criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 124, 145
L. Ed. 2d 570, 576-77 (2000) (“Flight, by its very nature, is not
'going about one's business'; in fact, it is just the opposite.”);
Butler, 331 N.C. at 234, 415 S.E.2d at 722-23. Azar and Jones then
saw defendant engage in further evasive action, attempting to hidebehind a tree in a wooded area for a period of two or three
minutes. When defendant came out of the woods at Azar's behest,
his hands were in the front pouch pocket of his sweatshirt. When
he removed his hands, a noticeable bulge remained in the pocket.
See State v. Sanders, 112 N.C. App. 477, 482, 435 S.E.2d 842, 845
(1993). Finally, the officers knew from experience that guns were
commonly used in the illegal drug trade. Based on the entirety of
the officer's observations, we conclude that Azar's decision to pat
down defendant for weapons as a safety precaution was reasonable.
Relying on our decision in State v. Artis, defendant contends
that the bulge in his pocket and his presence in a high crime were
insufficient to justify a pat-down search. In Artis, the defendant
was playing a video game in an airport game room when he was
approached by an officer and patted down, a process which
ultimately led to the discovery of crack cocaine in the defendant's
pocket. To support the search, the prosecution relied upon three
facts: (1) the level of drug activity in the airport game room;
(2) a bulge in defendant's pant's pocket similar in shape to brass
knuckles or a weapon's handgrip; and (3) the fact that defendant
had not yet passed through the airport's metal detector. Artis at
123 N.C. App. at 117-18, 472 S.E.2d at 170-71. We found these
facts gave rise to only a “generalized suspicion” and that
defendant's conduct in playing a video game did not present “any
apparent need for quick action by [the officer] to insure that
defendant was not armed with a weapon that would be used against
him or others nearby.” Id. at 119, 472 S.E.2d at 171. Because noreasonably prudent officer would have believed the safety of
himself or others was in danger, this Court concluded that the
search was unreasonable under Terry and held the resulting evidence
inadmissible. Id. at 119, 472 S.E.2d at 171.
The instant case is distinguishable from Artis. Here,
defendant took evasive action when the officers arrived, fleeing
the street corner and hiding behind a tree in the woods for a
period of minutes. Moreover, unlike the defendant in Artis,
defendant approached the officers with his hands in the sweatshirt
pocket where the bulge was located. Defendant's ready access to
the potential weapon and the suspicious conduct observed by the
officers rendered the pat-down search a reasonable safety
precaution supported by objective facts.
The trial court next found that Azar reached into defendant's
sweatshirt pocket and seized the crack pipe, “after feeling and
noticing what he, in his past experience, [had] known to be a crack
pipe.” Azar testified that in frisking defendant, he had
discovered “a large object that felt from [his] experience to be a
crack pipe, a bottle and a stem sticking out of it[.]” Based on
his experience, the nature of the object was “readily apparent”
during the frisk.
An officer who conducts a limited Terry search need not ignore
the discovery of what is obviously contraband merely because it is
not a weapon. See State v. Streeter, 17 N.C. App. 48, 50, 193
S.E.2d 347, 348 (1972), aff'd, 283 N.C. 203, 195 S.E.2d 502 (1973).
“When the facts and circumstances within the officer's knowledgeare sufficient to warrant a person of reasonable caution in the
belief that the item may be contraband, probable cause exists” to
support a search or arrest. State v. Briggs, 140 N.C. App. 484,
493, 536 S.E.2d 858, 863 (2000) (citing Texas v. Brown, 460 U.S.
730, 742, 75 L. Ed. 2d 502, 514 (1983)). Under the facts found by
the trial court, Azar's warrantless seizure of the crack pipe from
defendant's pocket was properly supported by probable cause adduced
during the pat-down search. Moreover, “[b]ecause . . . defendant's
arrest was lawfully based on the fruits of a valid pat down search,
the warrantless search of his person incident to the arrest, which
yielded the . . . crack cocaine, was likewise constitutional.” See
State v. Pulliam, 139 N.C. App. 437, 442, 533 S.E.2d 280, 283
(2000) (citing State v. Hardy, 299 N.C. 445, 455, 263 S.E.2d 711,
718 (1980)). The motion to dismiss was properly denied.
Defendant also asserts that the trial court erroneously
entered the sentence against him in case file number 01 CRS 25589,
which contained his indictment under the habitual felon statute.
Because habitual felon status is not a substantive crime, he
contends this file number will not support a criminal sentence.
Defendant further argues that he cannot now be re-sentenced for his
substantive crimes in 01 CRS 51908, in light of the statutory bar
against imposing a greater sentence for a crime on remand than was
initially imposed at trial. See N.C. Gen. Stat. § 15A-1335 (2001).
Thus, defendant asserts his sentence must be stricken.
Defendant's claim is without merit. The judgment entered by
the trial court plainly lists both defendant's habitual felonstatus in 01 CRS 25589 and his substantive convictions for
possession of drug paraphernalia and possession of cocaine with
intent to sell or deliver in 01 CRS 51908. The mere fact that the
superior court's file number in 01 CRS 025589 appears at the upper
right-hand corner of the judgment does not constitute a sentencing
error.
Defendant expressly abandons his remaining assignments of
error.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***