STATE OF NORTH CAROLINA
v
.
Mecklenburg County
Nos. 00 CRS 33147-48
RICHARD CRAWFORD
Attorney General Roy Cooper, by Special Deputy Attorney
General John J. Aldridge, III, for the State.
The Kelly Law Firm, by George E. Kelly, III, for defendant
appellant.
TIMMONS-GOODSON, Judge.
Richard Crawford (“defendant”) appeals from the order of the
trial court denying his motion to suppress certain evidence, and
from his conviction and resulting sentence entered upon a plea of
guilty to charges of possession of cocaine and possession of drug
paraphernalia. For the reasons stated herein, we affirm the order
of the trial court.
The facts pertinent to the instant appeal are as follows: On
3 August 2000, Mecklenburg County law enforcement officers arrested
defendant after discovering drug paraphernalia on his person. A
search pursuant to arrest revealed that defendant also possessed
cocaine. Defendant subsequently filed a motion to suppress the
cocaine and drug paraphernalia seized by the officers, as well asstatements made by defendant before his arrest. In his motion to
suppress, defendant argued that the officers had no lawful grounds
to detain or search him. On 8 November 2001, defendant's motion to
suppress was heard by the trial court, after which the trial court
made the following pertinent findings of fact:
5. The Defendant was walking on Faison
Street in Charlotte, NC at 8:45 am on August
3, 2000 when Officer J.E. [Harlis] of the
Charlotte Mecklenburg Police Department
observed him.
6. The area along Faison Street where the
Defendant was seen is a high crime area known
for drugs.
7. The Defendant is a black male, age 31
years of age, 5'10" weighing approximately 180
lbs. The Defendant was wearing a hat.
8. Officer J.E. [Harlis] observed the
Defendant for approximately 1 minute[] and
thirty seconds and believed him to be one
Kenneth Hardin. Kenneth Hardin was a 32 year
old black male, approximately 6', weighing
approximately 200 lbs.
9. Officer [Harlis] had a “mug shot” of
Hardin and checked it against the Defendant.
Officer [Harlis] believed the Defendant was
Kenneth Hardin. Officer [Harlis] confirmed
with the dispatcher that Hardin had two
outstanding warrants for his arrest.
10. Officer [Harlis] mistakenly believed that
the Defendant was another individual for whom
arrest warrants had been issued.
11. Officer [Harlis] called for backup to
assist him in further investigating whether
Defendant was in fact Hardin. Officer M.K.
Shy responded to the call.
12. Officers [Harlis] and Shy approached the
Defendant as he walked down the street.
13. As they approached the Defendant
“stiffened up,” squared his shoulders, raisedhis arms from his side taking an aggressive
stance, and stepped towards Officer Shy.
14. Officer [Harlis], thinking that the
Defendant was about to assault Officer Shy,
grabbed the Defendant by the back of his
shirt, had him put his arms behind his back
and patted down the exterior of the
Defendant's clothes, looking for weapons out
of concern for officer safety.
15. Officer [Harlis] felt what he believed to
be a crack pipe in the Defendant's pants
pocket. This belief was reasonable based on
Officer [Harlis'] experience and training.
16. As Officer [Harlis] patted the
defendant's pants pocket and felt the
suspected crack pipe, the Defendant
spontaneously said, “That's a crack pipe.”
17. Officer [Harlis] then arrested defendant
for possession of drug paraphernalia and
placed him in handcuffs.
18. A search incident to the arrest yielded a
crack rock concealed in the headband of the
hat the Defendant was wearing.
19. That it was not until the Defendant was
taken to the Mecklenburg County jail that
Officer [Harlis] discovered the individual
that he had arrested was not Kenneth Hardin.
Based on these findings, the trial court concluded that the
officers' actions in detaining and searching defendant had been
reasonable, and that none of defendant's rights had been violated
during his arrest. The trial court therefore denied defendant's
motion to suppress.
After the trial court denied his motion to suppress, defendant
pled guilty to possession of cocaine and possession of drug
paraphernalia, for which charges the trial court sentenced him to
an active term of imprisonment for eight to ten months. Defendantnow appeals the trial court's denial of his motion to suppress.
_____________________________________________________
Defendant argues that the trial court erred in denying his
motion to suppress, in that (1) the officers detained him without
probable cause; (2) his statement to the officers was the result of
a custodial interrogation; (3) his statement was made before the
officers informed defendant of his rights under Miranda; and (4)
the scope of the initial search was excessive. For the reasons
stated herein, we affirm the order of the trial court.
The applicable standard in reviewing a trial court's
determination 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), cert. denied,
513 U.S. 1096, 130 L. Ed. 2d 661 (1995). Any conclusions of law
reached by the trial court “must be legally correct, reflecting a
correct application of applicable legal principles to the facts
found.” State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357
(1997). We therefore review the evidence in the instant case to
determine whether it supports the trial court's findings, and
whether these findings in turn support the trial court's
conclusions of law.
Defendant argues that the officers had no probable cause to
detain or search him, and that the trial court therefore erred in
denying his motion to suppress evidence seized as a result of an
unlawful search. We disagree. An investigatory stop must be justified by “a reasonable
suspicion, based on objective facts, that the individual is
involved in criminal activity.” Brown v. Texas, 443 U.S. 47, 51,
61 L. Ed. 2d 357, 362 (1979); State v. Ray, 137 N.C. App. 326, 330,
527 S.E.2d 675, 678 (2000). The court must consider “the totality
of the circumstances--the whole picture” in determining whether a
reasonable suspicion to make an investigatory stop exists. 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. See 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, cert. denied, 444 U.S. 907, 62 L. Ed. 2d 143 (1979). The
basic requirement is a minimal level of objective justification,
something more than an “'unparticularized suspicion or hunch.'”
United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)
(quoting Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909); State v.
Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522 (1995).
Defendant's assertions to the contrary, there was ample
evidence to support the trial court's conclusion that the officers
acted reasonably in their detention of defendant. The evidence
tended to show that Officers Harlis and Shy detained defendant
under the mistaken but reasonable impression that he was Kenneth
Harden (“Harden”), an individual with whom Officer Harlis was
personally acquainted and for whom arrest warrants had been issued. See State v. Lynch, 94 N.C. App. 330, 333-34, 380 S.E.2d 397, 399
(1989) (concluding that, where the law enforcement officer
mistakenly believed that the defendant was another individual for
whom arrest warrants had been issued, and where the defendant and
the other individual were sufficiently similar in appearance, the
officer's mistake was not unreasonable and justified the
defendant's detention). In this case, the evidence tended to show
that defendant and Harden are both African-American males of
similar age, height, weight, and facial hair. Officer Harlis
testified that, when he first observed defendant, he believed him
to be Harden based on his acquaintance with Harden, as well as a
photograph of Harden. When Officer Harlis showed Officer Shy the
photograph of Harden, Officer Shy agreed that defendant was Harden.
As they approached defendant, defendant “took an aggressive
stance,” whereupon Officer Harlis “thought [defendant] was going to
assault Officer Shy.” Officer Harlis then conducted a brief pat-
down search of defendant's outer clothing to ensure he was not
carrying weapons. Defendant did not volunteer his identification
to the officers, even after they informed him that they thought
they had a warrant for his arrest.
Under the totality of the circumstances, we conclude that
reasonable suspicion existed for Officers Harlis and Shy to conduct
an investigatory stop of defendant. The trial court therefore did
not err in concluding that the officers acted reasonably in their
detention of defendant. We overrule this assignment of error.
By further assignment of error, defendant contends there wasinsufficient evidence to support the trial court's finding that
defendant “spontaneously said, 'That's a crack pipe.'” Defendant
asserts that, rather than being spontaneous, his statement was in
direct response to an illegal custodial interrogation.
At the hearing for defendant's motion to suppress, Officer
Harlis testified that he and Officer Shy approached defendant under
the mistaken impression that defendant was another individual for
whom warrants had been issued. Officer Harlis stated that, “[a]s
we got out of the car and approached [defendant], he took an
aggressive stance. And, stiffened up. And, I thought he was going
to assault Officer Shy. And, I think he did too, at that point.”
When asked to explain what he meant by “aggressive stance,” Officer
Harlis stated that defendant “sort of squared off. And, went
towards Officer Shy, little bit, with his arms.” Officer Shy
testified that, as he approached defendant, he informed him that he
“needed to speak to him for a minute[]. That we thought he might
have a warrant.” According to Officer Shy, defendant then
“stretched up; he stretched up his arms and changed facial
expression. And, advanced towards me. It was as if I had made him
mad.” Defendant continued to advance towards Officer Shy until he
“extended [his] left hand and placed it on [defendant's] chest to
keep him from coming any closer.” At that point, Officer Harlis
“grabbed the defendant, by the back of the shirt. And, I told him
just to relax; put his arms back behind his back.” Because he
considered defendant's behavior to be aggressive, Officer Harlis
patted down defendant's exterior clothing in order to ensure thathe did not pose a threat to the officers' safety. Officer Harlis
testified that, “[a]s I was patting [defendant] down, as soon as my
hand touched his left pocket, I felt a crack pipe. And, I made a
statement to the defendant. I said, 'I know what that is.' At
that point he just said, 'That's a crack pipe.'” Officer Shy
confirmed Officer Hardin's testimony.
Defendant contends that this evidence does not support the
trial court's finding that defendant's statement regarding the
crack pipe was spontaneous, asserting instead that his response was
a result of a custodial interrogation. Custodial interrogation
means “questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” Miranda v. Arizona, 384
U.S. 436, 444, 16 L. Ed. 2d 694, 706 (1966). In determining
whether an individual is in custody, the appellate court examines
the totality of the circumstances to ascertain whether there was a
“'formal arrest or restraint on freedom of movement' of the degree
associated with a formal arrest.” State v. Kemmerlin, __ N.C. __,
573 S.E.2d 870, 880 (2002) (quoting Oregon v. Mathiason, 429 U.S.
492, 495, 50 L. Ed. 2d 714, 719 (1977)); see also State v.
Buchanan, 353 N.C. 332, 338, 543 S.E.2d 823, 827 (2001) (stating
that the definitive inquiry is whether there was a formal arrest or
a restraint on freedom of movement of the degree associated with a
formal arrest). The determination of custody for purposes of
Miranda is an objective one; the subjective views of the
interrogating officers or the person being questioned are notrelevant. See Buchanan, 353 N.C. at 341-42, 543 S.E.2d at 829.
Defendant asserts that he was in custody at the time he made
his statement to law enforcement officers because they were
physically restraining him at the time, and he was not free to
leave. The fact that a defendant is not free to leave, however,
does not necessarily constitute custody for purposes of Miranda.
See State v. Benjamin, 124 N.C. App. 734, 738, 478 S.E.2d 651, 653
(1996). In determining that a defendant detained during an
investigatory traffic stop was not in custody, the Benjamin Court
noted that, although “no one is free to leave when they are stopped
by a law enforcement officer for a traffic violation[,]” “[a]ny
investigative action that the police must take at traffic stops in
order to evaluate their safety and the circumstances surrounding
the traffic violation, . . . does not rise to the level of
custodial interrogation [and] should not require Miranda warnings.”
Id. at 738, 478 S.E.2d at 653.
The evidence in the instant case tends to show that Officers
Harlis and Shy restrained defendant after he displayed behavior the
officers considered to be aggressive. They did not arrest him,
however. Officer Harlis informed defendant that he would “be
released as soon as his identity was confirmed.” Although it is
clear that defendant was not free to leave during the duration of
the investigatory stop, it is equally clear that the officers'
temporary restraint of defendant did not restrict his freedom of
movement of the degree associated with a formal arrest. See
Buchanan, 353 N.C. at 338, 543 S.E.2d at 827. Because defendantwas not in custody at the time he made his statement, the trial
court did not err in admitting his statement into evidence.
We therefore overrule this assignment of error.
In a related assignment of error, defendant contends that he
made his statement while in custody without the benefit of Miranda
warnings. We have already determined, however, that defendant was
not in custody when he made the statement. Because he was not in
custody at the time, no Miranda warnings were necessary, and we
overrule this assignment of error.
Finally, defendant contends that the search was illegal on the
grounds that it was overly extensive. Defendant bases his argument
on the fact that, in his testimony, Officer Harlis described the
crack pipe he felt in defendant's pocket in great detail.
Defendant asserts that it may be inferred from Officer Harlis'
testimony that the search went beyond that necessary to ensure that
defendant carried no weapons. We disagree.
Under the “plain feel” doctrine announced in Minnesota v.
Dickerson, 508 U.S. 366, 124 L. Ed. 2d 334 (1993), if
a police officer lawfully pats down a
suspect's outer clothing and feels an object
whose contour or mass makes its identity
immediately apparent, there has been no
invasion of the suspect's privacy beyond that
already authorized by the officer's search for
weapons; if the object is contraband, its
warrantless seizure would be justified by the
same practical considerations that inhere in
the plain-view context.
Id. at 375-76, 124 L. Ed. 2d at 346; State v. Briggs, 140 N.C. App.
484, 489, 536 S.E.2d 858, 861 (2000). The Court concluded that the
search in Minnesota exceeded the scope of Terry because theincriminating character of the object felt was not immediately
apparent to the officer. See Minnesota at 379, 124 L. Ed. 2d at
348.
Unlike the facts before the Minnesota Court, the evidence in
the instant case tends to show that the incriminating character of
the object seized from defendant was immediately apparent to the
law enforcement officers. Officer Harlis testified that, “as soon
as my hand touched his left pocket, I felt a crack pipe.” Officer
Harlis confirmed that he knew it was a crack pipe based on his
training and experience in working in law enforcement for eleven
years, with four years spent in a “street drug interdiction unit.”
Officer Shy verified that, “[a]s soon as [Officer Harlis] touched
[defendant's] pocket, he said, 'I know what that is.'” As there
was substantial evidence that the object seized was immediately
identifiable by Officer Harlis as drug paraphernalia, the trial
court did not err in concluding that its seizure was lawful and
could be admitted into evidence. We overrule this assignment of
error.
In conclusion, we hold that the trial court did not err in
denying defendant's motion to suppress. We therefore affirm the
order of the trial court.
Affirmed.
Judges TYSON and LEVINSON concur.
Report per Rule 30(e).
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