STATE OF NORTH CAROLINA
v. Forsyth County
No. 02 CRS 52402
REGINALD LEVON WRIGHT
Attorney General Roy Cooper, by Assistant Attorney General
Christopher W. Brooks, for the State.
James N. Freeman, Jr.,for defendant-appellant.
TIMMONS-GOODSON, Judge.
After reserving his right to appeal the denial of his motion
to suppress, Reginald Levon Wright (“defendant”) entered a guilty
plea to one count of possession with intent to sell or deliver
cocaine. The trial court sentenced defendant to an active prison
term of nine to eleven months. For the reasons stated herein, we
affirm the ruling of the trial court.
After conducting a hearing on the motion, the trial court made
the following findings of fact: at approximately 2:00 a.m. on 3
March 2002, Winston-Salem Police Officers Ben Jones (“Officer
Jones”) and Paul Hayden (“Officer Hayden”) responded to a
disturbance call at 2411 Dunbar Street. Officer Jones was familiarwith the address because he had previously investigated the house
as a possible “drink house” and for drug activity. When Officers
Jones and Hayden arrived at 2411 Dunbar Street, they saw three
males standing in front of the residence. Upon seeing the
officers, the three males turned around, walked across the yard and
attempted to enter the residence, but were unable to do so.
Defendant and one of the males subsequently walked in the direction
of the officers. Defendant, who had both hands in his pockets,
walked towards Officer Jones. Officer Jones asked defendant if he
lived at the residence. Defendant responded that he did not, but
he thought there was a party at the residence. As defendant
approached the officers, Officer Jones asked defendant to remove
his hands from his pockets and defendant did so. Officer Jones
observed a bulge in defendant's left front pants pocket, which
defendant immediately tried to cover up with his hand. Officer
Jones thought defendant “may be covering up a weapon,” so Officer
Jones informed defendant that he was going to frisk defendant for
his safety.
During the pat down for weapons, defendant kept turning away
from Officer Jones. Officer Jones had to hold onto defendant's arm
and pull him around to feel defendant's left pocket. Officer Jones
recognized the bulge to be a film container, which Officer Jones
believed, based on his training and experience, could be used to
transport narcotics. Defendant “started jerking away trying to
get away from [Officer Jones]” when Officer Jones felt the film
container. Officer Hayden then “grabbed on to help [Officer Jones]get ahold [sic] of [defendant].” The officers were able to place
defendant's hands behind his back, handcuff defendant and arrest
defendant for resisting a public officer. After the officers
arrested defendant, Officer Jones reached into defendant's left
front pocket and removed a film container, which contained 1.6
grams of crack cocaine. Officer Jones also found $220 and a cell
phone on defendant.
These findings of fact are supported by the testimony of
Officers Jones and Hayden and are therefore binding on appeal.
Based upon the findings of fact, the trial court concluded that
Officer Jones had a reasonable, articulable suspicion to believe
defendant was in possession of a weapon and that the weapon was a
concealed weapon in violation of the carrying a concealed weapon
statute; that Officer Jones' stop and detention of defendant was
reasonable; and that Officer Jones' “belief that defendant
possessed a weapon was reasonable and authorized a pat-down or a
frisk of the defendant's person for the officer's safety.” The
trial court also concluded that Officer Jones had probable cause to
believe defendant was resisting, delaying or obstructing him in the
performance of his duties during the constitutionally permissible
frisk or pat-down. Finally, the court concluded that Officer Jones
properly arrested defendant and that “[t]he search of defendant's
person was incident to arrest and that the seizure of the film
container, $220, and a cell phone was not violative of
constitutional decisions.”
The issue on appeal is whether the trial court erred indenying defendant's motion to suppress. When reviewing a trial
court's ruling on a motion to suppress, the trial court's findings
of fact are deemed conclusive if they are supported by competent
evidence; the trial court's conclusions of law reached upon those
findings are fully reviewable. State v. McArn, 159 N.C. App. 209,
211-12, 582 S.E.2d 371, 373-74 (2003). Further, “the trial court's
ruling on a motion to suppress is afforded great deference upon
appellate review as it has the duty to hear testimony and weigh the
evidence.” State v. McClendon, 130 N.C. App. 368, 377, 502 S.E.2d
902, 908 (1998), aff'd, 350 N.C. 630, 517 S.E.2d 128 (1999).
Defendant argues that the facts did not gave rise to a
reasonable suspicion of wrongdoing supporting an investigatory
stop and frisk under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889
(1968). Specifically, defendant argues the trial court erred in
concluding that Officer Jones “had a reasonable articulable
suspicion to believe that the defendant, Reginald Wright, was in
possession of a weapon.” We disagree.
An officer may undertake an investigatory stop of a person, so
long as that officer has a reasonable and articulable suspicion,
based on objective facts, that the person is engaged in criminal
activity. State v. Watson, 119 N.C. App. 395, 397, 458 S.E.2d 519,
521-22 (1995). Courts must consider “'the totality of the
circumstances -- the whole picture'” in making the determination as
to whether a reasonable suspicion to make an investigatory stop
existed at the time the stop was made. State v. Watkins, 337 N.C.
437, 441, 446 S.E.2d 67, 70 (1994) (quoting U.S. v. Cortez, 449U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981)). If upon detaining
the individual, the officer's personal observations confirm that
criminal activity may be afoot and suggest that the person detained
may be armed, the officer may frisk him as a matter of
self-protection. State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d
502, 506-07 (1973).
In determining whether the Terry standard is met, we must
consider Officer Jones' actions in light of the totality of the
circumstances, which are: (1) police observed defendant and two
other males standing in the front yard of the house which police
received a disturbance complaint about; (2) Officer Jones had
investigated the house as a possible “drink house” and for possible
drug activity; (3) upon seeing Officers Jones and Hayden, defendant
immediately walked towards the house, behavior that is evidence of
flight; (4) unable to enter the house, defendant approached Officer
Jones with his hands in his pockets; (5) although defendant took
his hands out of his pockets when told to do so, he immediately
tried to cover up his left pants pocket; and (6) Officer Jones
observed a bulge in defendant's left pants pocket. Under these
circumstances, Officer Jones had a reasonable, articulable
suspicion that defendant possessed a weapon and, therefore,
criminal activity was afoot, thereby supporting an investigatory
stop. Likewise, defendant's conduct was sufficient to justify a
pat-down search for the officers' safety. In re Whitley, 122 N.C.
App. 290, 292, 468 S.E.2d 610, 612 (1996)(citation omitted).
We next conclude that Officer Jones properly arresteddefendant and seized the cocaine pursuant to defendant's arrest.
A warrantless arrest is lawful if based upon probable cause. State
v. Phillips, 300 N.C. 678, 683, 268 S.E.2d 452, 456 (1980).
Probable cause “has been defined to be a reasonable ground of
suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man in believing the accused to be
guilty.” State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 687
(1974). N.C. Gen. Stat. § 14-223 (2003) states that “[i]f any
person shall willfully and unlawfully resist, delay or obstruct a
public officer in discharging or attempting to discharge a duty of
his office, he shall be guilty of a Class 2 misdemeanor.” Once a
police officer has executed a lawful arrest, based upon probable
cause, he may conduct a warrantless search incident to that lawful
arrest. See State v. Logner, 148 N.C. App. 135, 139, 557 S.E.2d
191, 194 (2001)(noting that a search incident to a lawful arrest is
a “well- recognized” exception to the warrant requirement).
Here, defendant began to twist as Officer Jones started to
perform a lawful pat-down. When Officer Jones attempted to pat down
defendant's left pants pocket, defendant attempted to jerk free
from Officer Jones, thereby resisting the pat-down. Defendant's
movements inhibited Officer Jones' performance of the lawful pat-
down and contributed to probable cause that defendant was in
violation of N.C. Gen. Stat. § 14-223. See generally, State v.
Swift, 105 N.C. App. 550, 554, 414 S.E.2d 65, 68 (1992)(“Flight
from a lawful investigatory stop 'may provide probable cause to
arrest an individual for violation of G.S. [ § ] 14-223'”)(citation omitted). Once Officer Jones lawfully arrested
defendant, he then reached into defendant's pocket and found a film
container which contained crack cocaine. Because the officers had
probable cause to arrest defendant for resisting a public officer,
the search conducted incident thereto, was not constitutionally
infirm and the trial court did not err in denying defendant's
motion to suppress.
Affirmed.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).
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