An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-272


Filed: 21 January 2003


         v.                        Forsyth County
                                Nos. 00 CRS 56436
JONATHAN MONTEGO BANNER,                    01 CRS 4463

    Appeal by defendant from judgment entered 5 November 2001 by Judge Henry E. Frye, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 23 December 2002.

    Attorney General Roy Cooper, by Special Deputy Attorney General W. Dale Talbert, for the State.

    James N. Freeman, Jr., for defendant-appellant.

    HUDSON, Judge.

    Defendant Jonathan Montego Banner was charged with felony possession of cocaine, maintaining a dwelling used to keep or sell a controlled substance, and having attained the status of habitual felon. Prior to trial, defendant moved to suppress items seized from his person during a search executed by Winston-Salem police officers. For the reasons discussed below, we conclude that the trial court properly denied defendant's motion to suppress, and therefore, affirm the judgment and commitment entered upon defendant's Alford plea.
    The State's evidence tends to show that on the evening of 27 September 2000, as a part of a drug investigation, a confidentialpaid informant and an undercover police officer, went to an apartment located at 547A Freedom Street in Winston-Salem. Once there, they purchased crack cocaine with marked bills. As previously planned, immediately after the drug purchase, the undercover police officer met with Detective Dennis Mason, of the Forsyth County Sheriff's Office. The undercover officer described the seller of the crack cocaine to Detective Mason as “a black male, who was wearing a possible gray and white or multi colored shirt with tan pants . . . possibly was wearing some thin glasses, who lived at the residence, who went by the name of Josh.” The officer told the detective that the seller was between 20 and 25 years old and between 5'10" and 6'0" tall. Based upon the undercover officer's information, Detective Mason obtained a search warrant for the 547A Freedom Street residence. The warrant authorized the search of the apartment at 547A Freedom Street and the arrest of “'Josh,' a black male, approximately 20-25 years old, 5'10["]-6'0" tall, wearing tan pants and a black and white shirt with a black collar.” The attachment to the warrant application described “Josh” as wearing “round framed glasses and a black bandana on his head.”
    When the detective and a team of other law enforcement officers traveled to the Freedom Street apartment, they acted in accordance with standard operating procedures. The officers first knocked on the door and announced themselves, and when no one answered, Detective Mason open the unlocked door. He and accompanying officers then entered the apartment, whereupon theyfound four adults and several children inside. The officers then secured the occupants, having them lie on the floor, while officers made sure that no one else was hiding in the apartment. The officers also frisked the occupants for weapons. Detective Mason secured and frisked defendant, and while doing so, noticed a small lump in his right front pocket. Based upon the detective's training and experience, he immediately believed the lump to be crack cocaine. Detective Mason removed the substance from defendant's pocket and completed the frisk.
    After all of the occupants of the apartment had been frisked, the officers read the search warrant and a more thorough search of the premises was conducted. The search yielded a plastic baggie containing cocaine residue and postal scales of the type commonly used to weigh cocaine. Officers found $275.00 in defendant's wallet, which included $50.00 in marked bills paid by the confidential informant during the earlier purchase. The apartment was leased in the name of Sharice Danielle Scott, one of the persons present during the execution of the warrant. Defendant also indicated that he resided at the 547A Freedom Street apartment. Both defendant and Scott were arrested and charged with drug related offenses.
    Detective Mason noted that approximately one hour and 15 minutes passed between the purchase of the cocaine by the informant and the execution of the search warrant, during which the apartment at 547A Freedom Street was without police surveillance. Moreover, the detective noted that despite the difference in the descriptionof “Josh” in the search warrant and defendant's appearance when the warrant was executed - defendant was wearing a multicolored shirt and tan pants, but no bandana or glasses; and was a 26 year old, 5'8" tall black male - he believed that defendant was the person who sold the crack cocaine to the confidential informant.
    Defendant did not present any evidence at the hearing on his motion to suppress. After hearing the State's evidence and arguments of defense counsel, the trial court denied the motion. Preserving his right to appeal the denial of his motion to suppress under G.S. 15A-979(b), defendant subsequently entered an Alford plea to the substantive charges, and, as part of the plea, admitted to having attained the status of habitual felon. The trial court sentenced defendant in a consolidated judgment to 58 to 79 months imprisonment. Defendant appeals.
    The sole issue presented by defendant's assignments of error on appeal is whether the trial court erred in denying his motion to suppress. It is well settled that in reviewing a 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 these 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, 501 (2000). The court's conclusions of law, if supported by the findings, aresimilarly binding on appeal. Id.
    In the instant case, defendant takes issue with the following findings of fact made by the trial court:
        7. The description was of a Black male wearing a gray and white or multi-colored shirt with tan pants and possibly wearing thin glasses, 20-25 years old and 5[']10[”] to six feet tall.

        . . .

        12. Mason observed the Defendant wearing a multi[-]colored shirt and tan pants and closely matching Miller's physical description inside 547(A) Freedom Street. Mason did not see other adult that matched the description given by Miller.

        13. Based upon all the things that Mason observed he believed that the defendant was the person who had sold the cocaine to the informant.

        . . .

        18. The defendant told Mason that he lived at 547 A. The place of the search and where earlier that evening cocaine had been purchased.
    Defendant contends that these findings are unsupported by the evidence. We disagree. Detective Mason testified during the suppression hearing that the undercover officer who purchased drugs from the apartment at 547A Freedom Street, described the person who sold the drugs as “a black male, who was wearing a possible gray and white or multi colored shirt with tan pants . . . possibly . . . wearing some thin glasses, . . . [and] between twenty and twenty-five years of age” and “between 5'10" and 6'0" tall.” The person was reported to go by the name of “Josh.” The warrant application described the shirt worn by the seller as a “black andwhite pull over shirt with a black collar” and noted that he wore a “black bandana.” Although defendant was wearing a different shirt--a multi-colored shirt, is 5'8", and was not wearing glasses or a black bandanna, Detective Mason testified that defendant was the person described in the warrant. Mason also testified that defendant gave his address as 547A Freedom Street after his arrest. The trial court was within its discretion to find the detective's evidence credible. See State v. Bromfield, 332 N.C. 24, 36, 418 S.E.2d 491, 497 (1992)(“Inconsistencies or conflicts in the testimony do not necessarily undermine the trial court's findings, since such contradictions in the evidence are for the finder of fact to resolve”(emphasis added)). The variance between the description of the seller in the warrant application and defendant's actual appearance at the time of the warrant's execution, does not render Detective Mason's testimony “unbelievable,” just as the differences do not render the search unreasonable. See Thompson v. Prince William County, 753 F.2d 363, 365 (4th Cir. 1985)(“it simply demands too much to expect police officers, on the basis of slight discrepancies of height . . . and weight or in color of eyes . . . and hair . . . to abandon obtention or execution of a warrant on someone who, for other strong indications . . ., meets the warrants description”). As the court's findings were supported by the competent evidence, they are binding on this Court on appeal.
    We move, then, to defendant's argument as to the propriety of the court's conclusions of law. The trial court made the followingrelevant conclusions of law:
        2. The Search Warrant for 547(A) Freedom Street is Valid.

        3. Officers from the Forsyth County Sheriff's Department had a lawful reason to detain the defendant at the private residence of 547(A) Freedom Street during the execution of the search warrant.

        4. Based upon the Mason's training and experience and the facts of this case; he had a lawful right to perform a Terry frisk on the defendant at the scene.

        5. Detective Mason performed a terry frisk for weapons upon the defendant in the residence. Mason's discovery of the cocaine in the pocket of the defendant was lawful based upon the Plain Feel Doctrine. (State v. Wilson, 112 N.C. App. 777 (1993); State v. Benjamin, 124 N.C. App. 734 (1996)). It was Immediately Apparent to Mason that the item was Cocaine without any manipulation.

        6. Furthermore based upon the facts of this case Mason had Probable Cause to believe that the defendant had sold cocaine to the confidential informant shortly before the execution of the Search Warrant.

        7. Additionally Probable Cause existed to arrest the defendant for Maintaining A Dwelling for the Violation of the Controlled Substance Act based upon the facts of this case even if Cocaine had not been found in the defendant's pocket.

        8. Detective Mason or another Officer with the Department would have performed a search incident to arrest in this case and found the cocaine in the defendant's pocket even if the cocaine had not been located in the defendant's pocket during the Terry Frisk.
    The Fourth Amendment to the United States Constitution, applicable to the states through the Due Process Clause of the Fourteenth Amendment, prohibits unreasonable searches and seizures.State v. Grooms, 353 N.C. 50, 73, 540 S.E.2d 713, 727-28 (2000). “Under the general rule, a warrant supported by probable cause is required before a search is considered reasonable.” State v. Woods, 136 N.C. App. 386, 390, 524 S.E.2d 363, 365 (2000). Moreover, this Court has previously noted that
        An officer executing a search warrant is authorized by statute to detain persons present on the premises and to frisk those present for weapons if he reasonably believes that there is a threat to the safety of himself or others. These provisions are clearly designed to enable officers to ensure their safety and to prevent possible suspects from fleeing or destroying evidence.

State v. Jones, 97 N.C. App. 189, 196, 388 S.E.2d 213, 217 (1990) (internal citations omitted). Finally, the plain feel doctrine allows seizure of a weapon or contraband during a frisk or pat down when its incriminating nature is immediately apparent. State v. Sanders, 112 N.C. App. 477, 482, 435 S.E.2d 842, 845-46 (1993).
    In this case, defendant has presented no argument as to the findings of the court regarding the evidence leading to the issuance of the search warrant. Those findings are then binding on this Court on appeal. See State v. Rhyne, 124 N.C. App. 84, 89, 478 S.E.2d 789, 791 (1996)(citing N.C.R. App. P. 28(a)). Further, those findings, which detail the purchase of drugs by an undercover police officer and a confidential informant, are sufficient to support a conclusion that probable cause existed for the issuance of a valid warrant. To that end, the entry into, and the subsequent securing and frisk of the occupants of the 547A Freedom Street apartment were also proper under well-settled case law. Moreover, the facts and circumstances here support the seizure of the cocaine from defendant's pocket during the frisk of his outer clothing for weapons under the plain feel doctrine. Significantly, even if the cocaine had not been found on defendant's person as a result of the frisk, police officers already had probable cause to arrest defendant based upon the sale of cocaine to an undercover officer and confidential police informant earlier that evening, and the cocaine would have been found during a search incident to his lawful arrest. A thorough review of the record then shows that the trial court's findings support its conclusions, and we conclude that those conclusions are legally proper.
    As the trial court's findings are supported by competent evidence, and those findings support its conclusions of law, we conclude that the trial court properly denied defendant's motion to suppress. Having so concluded, we affirm the judgment and commitment entered upon defendant's guilty plea.
    Chief Judge EAGLES and Judge MCCULLOUGH concur.
    Report per Rule 30(e).

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