STATE OF NORTH CAROLINA
v
.
ABELARDO C. MARTINEZ
Attorney General Roy A. Cooper, III, by Assistant Attorney
General David L. Elliott, for the State.
Samuel L. Bridges for defendant-appellant.
HUNTER, Judge.
Abelardo C. Martinez (“defendant”) appeals from an order
denying his motion to suppress the alleged contraband seized during
an investigatory stop. We affirm for the reasons stated herein.
Defendant was charged in true bills of indictment with felony
possession of cocaine, trafficking in cocaine by possession,
trafficking in cocaine by transportation, manufacturing cocaine,
possession with intent to sell or deliver cocaine, maintaining a
vehicle for keeping or selling cocaine, and carrying a concealed
weapon. On 25 January 2002, defendant filed a motion to suppress
the alleged contraband seized during an investigatory stop. A
hearing was held on this motion, during which the State presented
testimony from Darren Davis (“Officer Davis”), the City of Mebane
police officer who had stopped and searched defendant and hisvehicle. After hearing the evidence and arguments, the trial court
denied defendant's motion. In its order, the trial court made
extensive findings of fact and conclusions of law. Subsequent to
the denial of his motion to suppress, defendant entered a plea of
guilty to all charges, reserving the right to appeal the court's
denial of his motion to suppress. Defendant was sentenced to
seventy to eighty-four months imprisonment and was ordered to pay
a $100,000.00 fine. Facts pertinent to this appeal will be
included as necessary in our analysis of the issues.
Defendant contends the trial court erred in denying his motion
to suppress the alleged contraband seized during the vehicle stop.
Defendant specifically argues that the officer did not have a
reasonable and articulable suspicion to justify an investigatory
stop, and the pat-down search exceeded its permissible scope. We
disagree.
At the outset, the applicable standard in reviewing a trial
court's ruling on a motion to suppress is that the trial court's
findings of fact “are conclusive on appeal if supported by
competent evidence, even if the evidence is conflicting.” State v.
Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994). “Conclusions
of law that are correct in light of the findings are also binding
on appeal.” State v. Howell, 343 N.C. 229, 239, 470 S.E.2d 38, 43
(1996). “This deference is afforded the trial judge because he is
in the best position to weigh the evidence, given that he has heard
all of the testimony and observed the demeanor of the witnesses.”
State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 631 (2000). Unreasonable searches and seizures are prohibited by the
Fourth Amendment to the Constitution of the United States and
Section 20 of Article I of the North Carolina Constitution. State
v. Sanchez, 147 N.C. App. 619, 623, 556 S.E.2d 602, 606 (2001),
disc. review denied, 355 N.C. 220, 560 S.E.2d 358 (2002). “An
investigatory stop must be justified by 'a reasonable suspicion,
based on objective facts, that the individual is involved in
criminal activity.'” State v. Watkins, 337 N.C. 437, 441, 446
S.E.2d 67, 70 (1994) (quoting Brown v. Texas, 443 U.S. 47, 51, 61
L. Ed. 2d 357, 362 (1979)). In ascertaining whether an officer had
a reasonable suspicion to make an investigatory stop, the court
must consider “the totality of the circumstances -- the whole
picture . . . .” United States v. Cortez, 449 U.S. 411, 417, 66 L.
Ed. 2d 621, 629 (1981). “The stop must be based on specific and
articulable facts, as well as the rational inferences from those
facts, as viewed through the eyes of a reasonable, cautious
officer, guided by his experience and training.” Watkins, 337 N.C.
at 441, 446 S.E.2d at 70 (citing Terry v. Ohio, 392 U.S. 1, 21-22,
20 L. Ed. 2d 889, 906 (1968); State v. Thompson, 296 N.C. 703, 706,
252 S.E.2d 776, 779 (1979)). Our Supreme Court has acknowledged
that activity at an unusual hour is a factor that may be considered
by a law enforcement officer in formulating a reasonable suspicion.
Id. at 442, 446 S.E.2d at 70.
In the instant case, in ruling upon defendant's motion to
suppress, the trial court concluded that in considering the
totality of the circumstances, “the stopping and detention of thevehicle and the defendant was based upon a reasonable and
articulable suspicion that a crime had likely occurred, was
occurring, or about to occur, that supported such action.”
Included in the trial court's extensive findings were the following
facts: At approximately 2:00 a.m. on 22 June 2001, while on
routine patrol in a marked patrol vehicle, Officer Davis observed
and drove past a white male walking north on Trollingwood-Hawfields
Road towards Interstate 85. Officer Davis immediately turned
around and pulled over on the side of the road behind this
pedestrian who, upon seeing the officer, ran towards the woods in
the direction of Village Street Mobile Home Park. About four
minutes later, while Officer Davis was driving through the mobile
home park in an unsuccessful attempt to locate the pedestrian,
Officer Sharpe contacted Officer Davis by radio and informed him
that there was a motor vehicle parked on the right shoulder of
Trollingwood-Hawfields Road near the mobile home park. Officer
Davis then drove out of the mobile home park and observed a white
vehicle leaving the right shoulder of Trollingwood-Hawfields Road.
The white vehicle was located approximately fifty yards from where
Officer Davis had observed the pedestrian flee from him earlier.
Officer Davis followed this vehicle driven by defendant, a Hispanic
male, and then initiated an investigatory stop by activating his
blue light. The trial court additionally found the following to
which defendant objects:
Officer Davis testified that his initial
investigatory traffic stop of the vehicle of
the defendant was pursuant to Officer Davis's
thoughts and his original suspicion that thevehicle may be related to the earlier
pedestrian who had fled on foot upon approach
of the officer. It appeared extremely
suspicious to the officer considering all of
the circumstances existing at the time; that
is, Officer Davis was extremely suspicious
that a crime had likely occurred, was
occurring, or about to occur, and that the
pedestrian and the vehicle and its occupants
may be related thereto.
The trial court further found that the area in which defendant was
stopped generally has no foot traffic at 2:00 a.m. and that at the
time of the stop, there were no other motor vehicles other than
defendant's vehicle and patrol cars in that area.
After reviewing the record, we conclude the trial court's
findings of facts are supported by the evidence and these findings,
in turn, support the trial court's conclusion that the
investigatory stop “was based upon a reasonable and articulable
suspicion that a crime had likely occurred, was occurring, or about
to occur . . . .” Officer Davis indicated that he connected the
vehicle he stopped to the individual who had earlier fled from his
presence by the following testimony:
My original suspicion was that [defendant]
being in the same immediate area as a subject
that had just fled from me, I didn't know if
maybe he was there to pick up the subject, if
he was somehow related to that subject. The
suspicion of him being pulled off on the side
of the road on a section of the roadway that
is very light traffic that time of the night,
there's hardly no foot traffic, it's just
extremely suspicious to me.
Officer Davis further testified that “I connected that vehicle to
the subject that had ran [sic] from me, being in the immediate area
of where I had somebody flee from me, pulled off on the side of theroad. That's how I connected this vehicle to the subject that fled
and that suspicion.” It was reasonable for the officer to infer
that the individual who had fled from him was in some way related
to the stopped vehicle located a mere fifty yards from where the
fleeing individual had been spotted. Moreover, the fact that the
investigatory stop occurred around 2:00 a.m. when there is
generally no foot traffic and there were no vehicles on the road
except defendant's vehicle and patrol vehicles contributed to the
officer's suspicion. Based on the totality of the circumstances,
the trial court correctly concluded that the investigatory stop was
justified by a reasonable suspicion that defendant was involved in
criminal activity.
Having determined that the investigatory stop and detention
were proper, we must now determine whether the ensuing warrantless
search of defendant passed constitutional muster. “[A]n officer
may conduct a pat down search, for the purpose of determining
whether the person is carrying a weapon, when the officer is
justified in believing that the individual is armed and presently
dangerous.” State v. Sanders, 112 N.C. App. 477, 480, 435 S.E.2d
842, 844 (1993). To determine the reasonableness of a pat-down
search, the applicable standard is “'whether a reasonably prudent
man in the circumstances would be warranted in the belief that his
safety or that of others was in danger[.]'” State v. Peck, 305
N.C. 734, 742, 291 S.E.2d 637, 642 (1982) (quoting Terry, 392 U.S.
at 27, 20 L. Ed. 2d at 909)). During a lawful pat-down search for
weapons, if an officer discovers contraband, the officer may seizethe item discovered. State v. Benjamin, 124 N.C. App. 734, 739,
478 S.E.2d 651, 654 (1996). This Court in Benjamin held that it
was proper for an officer to make a brief inquiry as to the
contents of an object that he felt while conducting a lawful Terry
search. Id. at 741, 478 S.E.2d at 655. This Court further held in
Benjamin that the officer properly seized the contraband from the
defendant's jacket pocket after the defendant had indicated that
the pocket contained contraband. Id.
In the instant case, defendant argues the trial court erred in
concluding that the pat-down of defendant and seizure of contraband
were performed in a constitutionally permissible manner. Defendant
does not, however, object to any of the court's findings pertaining
to the pat-down and seizure.
The trial court found that after presenting Officer Davis with
a Maryland driver's license, defendant began “'digging'” in the
glove compartment of his vehicle. Officer Davis asked defendant
why he had pulled off the road and defendant responded that he was
urinating. Defendant continued to “dig” in his glove compartment
and reach around to several areas in the interior of the vehicle,
including behind the passenger seat toward the floorboard area.
Defendant exhibited a significant degree of nervousness while
reaching around the interior of the vehicle. Out of concern for
his own safety, Officer Davis asked defendant to exit the vehicle.
While defendant was standing outside the vehicle, Officer Davis
asked defendant if he had any weapons and defendant did not
respond. Officer Davis then performed a pat-down search ofdefendant to check for weapons. During the pat-down, Officer Davis
felt a large bulge in defendant's right pants' pocket and asked
defendant what the object was. Defendant responded, “'dope.'”
Officer Davis retrieved a large amount of currency and two bags of
cocaine from defendant's right pocket. Officer Davis testified
that when he felt the large bulge in defendant's pocket, he thought
it was a large amount of currency, which in his experience is often
connected with illegal narcotics. Officer Davis arrested defendant
and later conducted a search of defendant's vehicle.
We conclude defendant's failure to respond when he was asked
if he had any weapons and defendant's nervous “'digging'” in the
vehicle provided ample justification for the limited search of his
outer clothing. We additionally conclude, in following our holding
in Benjamin, that the officer's brief inquiry as to the contents of
the object in defendant's right pocket was not improper. Upon
defendant's response that his right pocket contained “'dope,'” the
officer properly seized the currency and cocaine resulting in
defendant's arrest. See Benjamin, 124 N.C. App. 734, 478 S.E.2d
651. Since we have determined that the stop and frisk were lawful,
we also conclude that Officer Davis was justified in conducting a
search of defendant's vehicle incident to defendant's arrest,
during which a handgun was seized. See State v. VanCamp, 150 N.C.
App. 347, 352, 562 S.E.2d 921, 926 (2002).
For the foregoing reasons, we affirm the trial court's denial
of defendant's motion to suppress the alleged contraband seized
during the investigatory stop. Affirmed.
Judges TIMMONS-GOODSON and ELMORE concur.
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