STATE OF NORTH CAROLINA
v. Guilford County
No. 00CRS109892
THEODORE ANTYON WILSON
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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