An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-478


Filed: 4 March 2003


v .                         Mecklenburg County
                            Nos. 00 CRS 33147-48

    Appeal by defendant from judgment entered 8 November 2001 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 January 2003.

    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.


    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.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

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