State v Holeman, (02-1544) 10/21/2003

Appeal by defendant from judgment entered 22 January 2002 by Judge Ronald L. Stephens, in Durham County Superior Court. Heard in the Court of Appeals 16 September 2003.

Attorney General Roy Cooper, by Assistant Attorney General Alexandra M. Hightower, for the State.

Stowers & James, P.A., by Paul M. James, for defendant- appellant.

    LEVINSON, Judge.

    Defendant (Larry Holeman), appeals from conviction of felony possession of cocaine. We affirm.
    The pertinent facts surrounding defendant's 6 January 2001 arrest were elicited at a hearing on defendant's pretrial suppression motion, and may be summarized as follows: Officer Figueroa of the Durham Police Department testified that on 6 January 2001 he was on patrol duty. At around 9:00 p.m. he received a call dispatching him to the 100 block of Piedmont Avenue in response to a phone call complaining about “drug activities and subjects hanging out” in an area. When Officer Figueroa arrived at Piedmont Avenue he saw approximately five males standing around on a dirt trail or passageway that connected Piedmont to a nearby cul-de-sac, Beamon Avenue. Officer Figueroa had previously been dispatched to the “same location [for the] same reason,” and had arrested individuals loitering in this alleyway for possession of illegal drugs. Drug activity was “common” in the passageway. Moreover, it was not unusual for individuals along this passageway to “hide” when officers appeared. As he drove by the passageway on this occasion, none of the men were engaging in any visible illegal activities. Officer Figueroa did not wish to “startle them . . . so [he] just kept driving [as] though [he] was going somewhere else or [as] if . . . they [were] no concern to [him].” He did not recognize the men, and did not take note of the hair, clothing, height, or weight of any of them. After passing the trail, Officer Figueroa drove a little farther before pulling over and parking in an area out of view of the passageway. Officer Figueroa then called for backup, summoning three other officers. Officer Figueroa testified he “was going to come out of [his] car, and . . . speak with people hanging out in that passageway.” When other officers arrived, Officer Figueroa directed one car to the Beamon Street cul-de-sac; another car to “the other side of the wooded area on Scout Drive,” an adjoining street; and a third vehicle was told to “come off Scout Drive onto Piedmont traveling east on Piedmont.” Officer Figueroa would come down Piedmont traveling west.
    When the officers reached their locations, Officer Figueroa said, “go ahead move in.” In response to a question by defense counsel of whether his vehicle “essentially block[ed] [an] area ofthe passageway,” Officer Figueroa testified he had done so. The only person on the passageway was the defendant, who was walking towards Piedmont Avenue; he was not engaging in any visible illegal activities. Officer Figueroa and another officer approached defendant on foot and, in Officer Figueroa's words, he “confronted” the defendant using what he described as an “authoritative” tone of voice. No officer instructed the defendant to stop, as the defendant did so simultaneously when the two officers approached him. The officers were in uniform; though armed, neither of the two officers who approached defendant removed guns from their holsters. The second officer who approached defendant with Officer Figueroa “did not say or do anything.”
    Officer Figueroa told defendant that the police were there to investigate reports of drug related activity in the area, and asked defendant if he had any drugs or other contraband. The defendant responded that he did not have any narcotics. Officer Figueroa then asked for permission to search defendant for drugs and weapons, and defendant gave his consent. Officer Figueroa thereafter searched the defendant and found a crack pipe and a “rock” of crack cocaine. There was no physical contact between the law enforcement officers and the defendant until after consent to search was obtained. Officer Figueroa testified that defendant “was free to walk away” when he approached defendant and engaged him in conversation. Defendant did not present any evidence at the suppression hearing.    Defendant was arrested and charged with felony possession of cocaine. On 17 September 2001 he was indicted for felony possession of cocaine and possession of drug paraphernalia. On 10 October 2001, defendant filed a motion to suppress the evidence seized at the time of his arrest. A hearing was held before Judge Steve Balog, who denied his motion. At the time the plea was entered, defendant reserved the right to appeal the denial of his suppression motion. From this conviction, defendant appeals.

    Defendant presents two arguments on appeal. He argues first that his “constitutional rights to equal protection of the law” were violated by the State's failure to provide a probable cause hearing. This argument is without merit.
    N.C.G.S. § 15A-606 (2001), provides in relevant part that the trial court “must schedule a probable-cause hearing . . . not later than fifteen working days following defendant's initial appearance before the district court judge.” G.S. § 15A-606(a) and (d). The right to a probable cause hearing arises solely out of this statute; “there is no constitutional right to a probable cause hearing.” State v. Wiggins, 334 N.C. 18, 27, 431 S.E.2d 755, 760 (1993) (citation omitted). Thus, a defendant who assigns error to the failure to schedule a probable cause hearing is required to demonstrate “a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” N.C.G.S. § 15A-1443(a) (2001). In the present case, as in Wiggins, id.,defendant “points to no evidence in the record to support a finding of prejudicial error other than the passage of time following his arrest.” Id. at 28, 431 S.E.2d at 761. He raises the possibility that a probable cause hearing might have provided information he could have used in case preparation. However, “discovery is not the purpose for [a probable cause] hearing. [Its] function . . . is to determine whether there is probable cause to believe that a crime has been committed and that the defendant committed it.” State v. Hudson, 295 N.C. 427, 430, 245 S.E.2d 686, 689 (1978).
    Moreover, defendant was arrested upon a warrant and was tried upon true bills of indictment. “Both the magistrate and the grand jury had the duty to determine the existence of probable cause.” State v. Wiggins, 334 N.C. 18, 27, 431 S.E.2d 755, 760 (1993). “'[I]n the case sub judice, probable cause that a crime was committed and that defendant committed it was twice established.'” Id. at 27, 431 S.E.2d at 760 (quoting State v. Hudson, 295 N.C. 427, 430, 245 S.E.2d 686, 689 (1978)).
    In addition,“§ 15A-606(a) requires a probable cause hearing only in those situations in which no indictment has been returned by a grand jury.” State v. Lester, 294 N.C. 220, 224, 240 S.E.2d 391, 396 (1978). This assignment of error is overruled.

    Defendant argues next that the trial court erred by denying his motion to suppress evidence found as a result of Officer Figueroa's search. Defendant concedes that he gave his consent tobe searched. He contends, however, that his consent was obtained as the result of an illegal seizure.
    “The Fourth Amendment to the United States Constitution protects the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' U.S. Const. amend. IV. The Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment.” State v. Grooms, 353 N.C. 50, 73, 540 S.E.2d 713, 727-28 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). If the defendant was subject to an unlawful seizure, his subsequent consent to a search of his person may be invalid. United States v. Drayton, 536 U.S. 194, 208-09, 153 L. Ed. 2d 242, 256 (2002) (dissent) (if “the police's examination of the bus passengers . . . amounted to a suspicionless seizure under the Fourth Amendment . . . any consent to search was plainly invalid as a product of the illegal seizure”) (citation omitted). This follows the general rule that:
        Evidence that is the 'fruit' of an illegal search or seizure is not admissible[.] . . . The controlling question is 'whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'

United States v. Yousif, 308 F.3d 820, 829 (8th Cir. 2002) (quoting Wong Sun v. United States, 371 U.S. 471, 484-85, 488, 9 L. Ed. 2d 441, 455 (1963)). See also United States v. Betemit, 899 F. Supp.255, 263 (E.D. Va. 1995), affd., 129 F.3d 117 (4th Cir. 1997), cert. denied, 523 U.S. 1035, 140 L. Ed. 2d 493 (1998):
        Because the initial stop of the vehicle was not justified, it follows that the subsequent searches of vehicle and its occupants were not lawful. . . . The fact that [defendant] initially consented to the search does not remove the taint that accompanies the fact that consent was obtained through the exploitation of an illegal stop. The connection between the illegal stop and the consent, both temporally and causally, was not sufficiently attenuated to vitiate the former's taint from the ultimate fruits of the search.

(citing Taylor v. Alabama, 457 U.S. 687, 73 L. Ed. 2d 314 (1982); Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416 (1975); and United States v. Gooding, 695 F.2d 78, 84 (4th Cir. 1982)).
    In the instant case, defendant's consent was obtained within a few seconds after the law enforcement officers stopped defendant for questioning, as part of a continuous transaction with no temporal break or intervening events. We conclude that, if the initial interaction between the law enforcement officers and defendant constitutes an illegal seizure in violation of the defendant's rights under the fourth amendment, then defendant's consent to the search would be rendered invalid. Thus, the primary question before us is whether defendant was subject to an illegal seizure by police before he gave consent to the search.
    “It is well established that the standard of review in evaluating 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 isconflicting. The trial court's conclusions of law, however, are fully reviewable. State v. Nixon, __ N.C. App. __, __, 584 S.E.2d 820, 822 (2003) (citing State v. Earwood, 155 N.C. App. 698, 574 S.E.2d 707 (2003)).
    At the close of the hearing on defendant's motion to suppress, the trial court denied his motion, and directed the prosecutor to draft a formal order containing the following findings of fact and conclusion of law:
        [A]fter securing the assistance of other officers Officer Figueroa approached the passageway off Piedmont Street and met the defendant coming out of that passageway towards the officer; as Officer Figueroa and the defendant met in the area of the passageway they both stopped and engaged in a conversation; that none of what occurred constituted a show of authority to constitute a stop or seizure of the defendant. The defendant voluntarily engaged in a conversation with Officer Figueroa in which Officer Figueroa first advised the defendant that Officer Figueroa was in the area because of a complaint of narcotic activity at that location. Officer Figueroa asked the defendant if he had contraband on him, and the defendant replied no. Officer Figueroa asked the defendant whether he could search the defendant for narcotics and weapons, and the defendant freely and voluntarily consented to such a search. The officer then proceeded to search the defendant, first patting him down, and in that process locating in his right- front pocket a crack cocaine pipe and white rocks field tested to be crack cocaine.

        [This court] [c]onclude[s] as a matter of law that there was no stop or seizure of the defendant, and that his constitutional rights were not violated . . . .

    “The Constitution does not protect an individual from the mere approach of a police officer in a public place. Hence,communications between the police and citizens not involving coercion or detention do not fall within the purview of the Fourth Amendment.” State v. West, 119 N.C. App. 562, 565, 459 S.E.2d 55, 57 (citing State v. Streeter, 283 N.C. 203, 208, 195 S.E.2d 502, 506 (1973), and State v. Perkerol, 77 N.C. App. 292, 298, 335 S.E.2d 60, 64 (1985), disc. review denied, 315 N.C. 595, 341 S.E.2d 36 (1986)), disc. review denied, 341 N.C. 656, 462 S.E.2d 524 (1995). The United States Supreme Court has had several occasions to address the issue of when a seizure has occurred:
        [A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

United States v. Mendenhall, 446 U.S. 544, 555, 64 L. Ed. 2d 497, 509 (1980). The United States Supreme Court further refined this holding in Florida v. Bostick, 501 U.S. 429, 437, 115 L. Ed. 2d 389, 400 (1991):
        [T]he crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would “have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Where the encounter takes place is one factor, but it is not the only one.

(quoting Michigan v. Chesternut, 486 U.S. 567, 569, 100 L. Ed. 2d 565, 569 (1988)). Further, our determination of this question mustbe made on a case-by-case basis, rather than by application of any per se rule:
        Both petitioner and respondent, it seems to us, in their attempts to fashion a bright-line rule applicable to all investigatory pursuits, have failed to heed this Court's clear direction that any assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account 'all of the circumstances surrounding the incident' in each individual case.

Michigan, 486 U.S. at 572, 100 L. Ed. 2d at 571 (quoting Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509 (opinion of Stewart, J.). Finally, we note that “[t]he proper inquiry is an objective one: 'as long as a reasonable innocent person, as opposed to a person knowingly carrying contraband, would feel free to leave, such encounters are consensual and need not be supported by reasonable suspicion of criminal activity.'” United States v. Sanchez, 89 F.3d 715, 717-18 (10th Cir. 1996) (quoting United States v. Laboy, 979 F.2d 795, 798 (10th Cir. 1992)).
    Reviewing the facts and circumstances of the present case, we conclude defendant was not subject to a seizure within the meaning of the fourth amendment prohibition on unreasonable seizures. The officers did not brandish their weapons or threaten defendant when they approached him in this public place. Defendant was neither directed to stop nor instructed he could not leave. There was no physical contact with defendant until he consented to a search of his person. Though there were additional officers in the area, only two approached defendant. Of these, only one spoke or had any direct interaction with defendant. The officers did not demand anyidentification or other documentation from defendant. Though Officer Figueroa testified his vehicle “essentially blocked” the passageway on one side, defendant points us to no evidence that the officers cut off means of egress from the point of the encounter.   (See footnote 1) Furthermore, Officer Figueroa's testimony regarding his vehicle does not demonstrate that even on that side of the passageway individuals could not move in and around the vehicle. That Officer Figueroa used an “authoritative” tone and the encounter took place after dark do not weigh heavily in our view that this encounter amounted to anything other than permissible, voluntary contact by the police.
    The trial court did not err by concluding that defendant was not seized within the meaning of the Fourth Amendment. Accordingly, we need not address appellant's second contention that the police lacked reasonable, articulable suspicion to justify a seizure.
    Affirmed.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

Footnote: 1