STATE OF NORTH CAROLINA
v. Forsyth County
Nos. 00 CRS 56436
JONATHAN MONTEGO BANNER, 01 CRS 4463
Defendant.
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.
Affirmed.
Chief Judge EAGLES and Judge MCCULLOUGH concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***