An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1050


Filed: 4 May 2004


         v.                            Guilford County
                                    No. 00CRS109892

    Appeal by defendant from judgment entered 1 November 2002 by Judge Lindsay R. Davis, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 19 April 2004.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Joseph Finarelli, for the State.

    The Kelly Law Firm, by George E. Kelly, III, for defendant- appellant.

    HUNTER, Judge.

    After reserving his right to appeal the denial of his motion to suppress, Theodore Antyon Wilson (“defendant”) entered a guilty plea to one count of possession of cocaine. The trial court sentenced defendant to an active prison term of six to eight months. For the reasons stated herein, we affirm the ruling of the trial court.
    At the hearing on defendant's motion to suppress, the State's witnesses testified to the following facts: At 5:26 p.m. on 25 November 2000, Greensboro Police Officers G. M. Richey (“Officer Richey”) and D. C. Webb (“Officer Webb”) received a report of a home invasion robbery at 306 Beech Street in Greensboro, NorthCarolina. The suspects were identified as “[t]wo black males, one light skinned, one dark skinned[,]” both of whom were armed. The officers parked their patrol car one block south of 306 Beech Street and proceeded on foot through the yards of the residences on the east side of the block. Two houses away from 306 Beech Street, the officers observed a light-skinned black male and dark-skinned black male in the yard wearing dark clothing. The officers “immediately identified [them]selves as Greensboro police officers in loud and forceful commands” and ordered the two men to get down on the ground. In response, the two suspects ran between two houses toward Cumberland Courts Apartments. Officer Richey chased the dark-skinned male, who was later determined to be defendant.
    Hearing a radio report of the suspects' flight, Officer Cameron Sean Peach (“Officer Peach”) and his partner turned their patrol car onto Ragan Street toward Cumberland Courts Apartments. Officer Peach observed defendant running across Ragan Street, and his partner activated the blue lights and drove the patrol car onto the grass in pursuit of defendant. Officer Peach rolled down his window and commanded defendant to get onto the ground. Defendant turned to look at the patrol car but continued running for another 100 yards before stopping. Officer Peach exited the car, displayed his badge and ordered defendant to get on the ground and spread his hands. Unable to “remember a single call that there wasn't a weapon involved, some type of firearm involved in a home invasion[,]” Officer Peach handcuffed defendant and conducted an open-handed pat-down search for weapons. In the course of thesearch, Officer Peach ran his fingers over defendant's left front pant's pocket from top to bottom. As his fingers passed over the bottom of the pocket, Officer Peach discerned a cluster of hard objects which he immediately identified as crack cocaine, based on his training and experience. Officer Peach did not manipulate the object in any way to reach this conclusion. A search of defendant's pocket confirmed that the mass was a plastic bag containing “several little rocks” of cocaine.
    In denying the motion to suppress, the trial court entered findings of fact consistent with the testimony set forth above. Based upon these findings, it concluded that the cocaine in defendant's pocket was “found incident to a lawful pat-down search” and that “defendant's rights under both the U.S. Constitution and the North Carolina Constitution were not violated in any manner.”
    Defendant challenges the denial of his motion to suppress the crack cocaine found by Officer Peach, which he asserts was “seized during a search incident to an illegal arrest in violation of [his] Fourth Amendment rights.” Defendant raised only a general challenge to the trial court's ruling and did not except or assign error to any of the trial court's findings of fact. “Accordingly, the findings 'are presumed to be supported by competent evidence and are binding on appeal.'” State v. Jones, 96 N.C. App. 389, 392, 386 S.E.2d 217, 219 (1989) (quoting Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982)). As a result, we limit our review “'to whether the trial court's findings of fact support its conclusions of law.'” Statev. Kornegay, 149 N.C. App. 390, 393, 562 S.E.2d 541, 544 (quoting State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999), cert. denied, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000)), appeal dismissed and disc. review denied, 355 N.C. 497, 564 S.E.2d 51 (2002). We review conclusions of law de novo. Id.
    At the first stage of our analysis, we hold that the facts found by the trial court support the conclusion that Officer Peach conducted a lawful pat-down search of defendant. Police may perform a frisk or pat-down search for weapons if the totality of the circumstances give rise to a reasonable suspicion that the person to be searched is engaged in criminal activity and is armed and potentially dangerous. See In re Whitley, 122 N.C. App. 290, 292, 468 S.E.2d 610, 612 (1996). Here, the dispatcher's report of a robbery home invasion, the presence of two suspects matching their reported description at the reported location, and the suspects' flight from police were “'specific and articulable facts'” sufficient to create a reasonable suspicion of criminal activity supporting an investigatory stop. Id. (quoting State v. Allen, 90 N.C. App. 15, 25, 367 S.E.2d 684, 689 (1988)). Likewise, the nature of the reported crime and the suspects' conduct were sufficient to justify a pat-down search for the officers' safety. Id.
    Having determined that the pat-down search was lawful, we next conclude that Officer Peach lawfully seized the cocaine from defendant's pocket. Under the plain feel doctrine, an officer may seize a weapon or contraband discovered during an otherwise lawfulpat-down search of a suspect's outer clothing, when the incriminating nature of the object is immediately apparent to the officer. See State v. Sanders, 112 N.C. App. 477, 482, 435 S.E.2d 842, 845-46 (1993). In his testimony, Officer Peach emphasized that he was immediately able to discern the nature of the object based on his open-handed frisk of defendant's outer clothing, without manipulating the object in any way. The trial court expressly found that “[f]rom his training and experience, Officer Peach readily and immediately identified the rock-like substance as crack cocaine.” Under the facts found by the trial court, the cocaine in defendant's pocket was identified by Officer Peach by plain feel during a lawful pat-down search. Because the lawful pat-down search gave Officer Peach probable cause to believe the object in defendant's pocket was contraband, his subsequent seizure of the cocaine from defendant's pocket did not offend the constitutional bar against unreasonable searches and seizures. See In re Whitley, 122 N.C. App. at 293, 468 S.E.2d at 612; State v. Wilson, 112 N.C. App. 777, 782-83, 437 S.E.2d 387, 390 (1993). Therefore, the trial court properly denied defendant's motion to suppress.
    In his two remaining assignments of error, defendant challenges the trial court's summary denial of his counsel's request for a determination of defendant's competency to stand trial. Defendant made no motion in the trial court to withdraw his guilty plea on the ground of incompetency. Therefore, his arguments lie outside his appeal of right and are not properlybefore this Court for review. See N.C. Gen. Stat. § 15A-1444(a1), (a2), (e) (2003); State v. Pimental, 153 N.C. App. 69, 72, 568 S.E.2d 867, 869 (2002); State v. Dickson, 151 N.C. App. 136, 564 S.E.2d 640 (2002). We dismiss these assignments of error without prejudice to defendant's right to file a motion for appropriate relief in superior court. State v. Jamerson, ___ N.C. App. ___, 588 S.E.2d 545 (2003).
    No error.
    Judges WYNN and McCULLOUGH concur.
    Report per Rule 30(e).

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