STATE OF NORTH CAROLINA
v. Durham County
No. 01CRS047875
MARCUS DONTAVIOUS BEATTY
Attorney General Roy Cooper, by Assistant Attorney General
Richard A. Graham, for the State.
Russell J. Hollers, III for defendant-appellant.
ELMORE, Judge.
Defendant Marcus D. Beatty appeals the denial of his motion to
suppress. For the reasons detailed below, we hold that the trial
court did not err in denying defendant's motion to suppress.
Defendant was charged with possession of heroin with the
intent to sell and/or deliver. The State's evidence tended to show
that defendant was observed by Durham Police Officer Corporal Mike
Berendsen engaging in an apparent drug transaction in Burton Park
during the afternoon of 29 May 2001. A subsequent search of
defendant's person yielded a piece of brown paper, containing 5
bundles of heroin, which totaled 0.1 grams.
Prior to trial, defendant filed a motion to suppress “all
evidence obtained as a result of the police detention and pat-down . . . on 29 May 2001, including but not limited to the bag alleged
to have fallen from Beatty's pants, the contents of the bag, the
test of the contents for the presence of controlled substances, and
the results of that test.” The motion was heard on 11 December
2003, during trial. The evidence tended to show that Durham Police
Officer, Corporal Berendsen, was assigned to the Department's Crime
Area Target Team for District 4. The team is a special police unit
concentrating primarily on drug enforcement, and Corporal Berendsen
was surveilling Burton Park in response to reported high drug
activity in the area.
Corporal Berendsen was dressed in a camouflage “gilly suit”
and hidden in the woods across the street from Burton Park on the
afternoon of 29 May 2001, when a green Ford vehicle pulled in front
of him at the edge of the park. The corporal observed an
individual, known to him as Jesse Smith, approach the green Ford.
Smith was followed by an unidentified male. After Smith had a
conversation with the driver of the Ford, the unidentified male
walked away. Smith then moved away from the Ford and walked over
to defendant, who was also known to the corporal and who was
standing on the edge of the park. Corporal Berendsen saw defendant
remove an item from the waistband of his pants, remove something
out of the item, and place the original item back into his
waistband. Smith then walked back to the Ford, where he remained
only a short time. The Ford drove off and Smith walked away.
Corporal Berendsen explained that in his experience “drive
thru” drug transactions were facilitated by the runner and dealer. Persons like Smith are runners, and commonly work for a bag of
heroin, while dealers, like defendant, actually hold the stash of
drugs. The runner makes contact with the buyer, who places an
order for the drugs and gives the money to the runner. The runner
then goes back to the dealer holding the stash and tells him what
quantity of drugs are needed and gives the dealer the money from
the buyer. In turn, the dealer gives the runner the drugs and the
runner takes the drugs back to the buyer to conduct the hand-to-
hand purchase. Having formed the opinion that he had observed such
a drug transaction, Corporal Berendsen radioed Sergeant Hall to
detain defendant. After Sergeant Hall arrived, the corporal
removed his camouflage suit, and walked over to the location where
Sergeant Hall had detained defendant. When the officers began to
pat down defendant's outer clothing, Sergeant Hall noticed an item
at defendant's waistband. The sergeant reached to retrieve the
item, but accidentally pushed the item further into defendant's
pants. Upon shaking defendant's pants leg, the item fell out of
defendant's pants leg onto the ground. The item was a rolled-up
piece of paper bag containing five individual bundles of what was
later determined to be 0.144 grams of heroin.
After hearing the testimony of Corporal Berendsen and Sergeant
Hall and the arguments of counsel, the trial court denied the
motion to suppress. The matter proceeded to trial and the jury
subsequently found defendant guilty of the lesser included offense
of felonious possession of heroin. The trial court entered
judgment on that verdict, sentencing defendant to a presumptiveterm of 8 to 10 months imprisonment. Defendant appeals.
On appeal, defendant argues only that the trial court erred in
denying his motion to suppress. Defendant contends that his
detention was more than a brief seizure, and more akin to an
arrest. As such, defendant submits that the officers were required
to have probable cause to search him without a warrant.
The Fourth Amendment, as applied to the various states through
the Due Process Clause of the Fourteenth Amendment, protects the
citizenry from unreasonable searches and seizures. State v.
Barnes, 158 N.C. App. 606, 609, 582 S.E.2d 313, 316-17 (2003). The
warrant requirement, which necessitates that government agents or
officers obtain a warrant supported by probable cause before a
search and/or seizure is considered reasonable, serves to protect
against unreasonable searches and seizures. State v. Phillips, 151
N.C. App. 185, 191, 565 S.E.2d 697, 702 (2002). The warrant
requirement is, however, “subject . . . to a few specifically
established and well-delineated exceptions[.]” Katz v. United
States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 585 (1967). One such
exception was established by the United States Supreme Court in
Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968).
In Terry, the Court held that when a police officer observes
unusual behavior which leads him to conclude, in light of his
experience, that criminal activity may be occurring and that the
person may be armed and dangerous, the officer is permitted to
conduct a pat-down search to determine whether the person is
carrying a weapon. Id. at 30-31, 20 L. Ed. 2d at 911. This Courthas previously explained, “[a] brief investigative stop of an
individual must be based on specific and articulable facts as well
as inferences from those facts, viewing the circumstances
surrounding the seizure through the eyes of a reasonable and
cautious police officer on the scene, guided by his experience and
training.” State v. Allen, 90 N.C. App. 15, 25, 367 S.E.2d 684, 689
(1988).
While the scope of a search conducted pursuant to Terry is
limited to that degree necessary “to allow the officer to pursue
his investigation without fear of violence,” State v. Beveridge,
112 N.C. App. 688, 693, 436 S.E.2d 912, 915 (1993) (citing Adams v.
Williams, 407 U.S. 143, 146, 32 L. Ed. 2d 612, 617 (1972)), aff'd,
336 N.C. 601, 444 S.E.2d 223 (1994), this Court has held that in
cases where a police officer is conducting a lawful pat-down search
for weapons and he discovers contraband, it is proper for the
officer to seize the item discovered. See State v. Wilson, 112
N.C. App. 777, 437 S.E.2d 387 (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.
Minnesota v. Dickerson, 508 U.S. 366, 375-76, 124 L. Ed. 2d 334,
346 (1993) (quoted in Wilson, 112 N.C. App. at 780, 437 S.E.2d at
388).
“Our review of a ruling on a motion to suppress is limited towhether the trial court's findings are supported by competent
evidence and whether those findings support its ultimate
conclusions.” State v. McHone, 158 N.C. App. 117, 120, 580 S.E.2d
80, 83 (2003). In this case, our review is further limited,
however, by defendant's failure to assign error to any of the trial
court's findings of fact. The court's findings are, therefore,
presumed correct and are binding on this Court. See Okwara v.
Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481,
484 (2000) (“Where findings of fact are challenged on appeal, each
contested finding of fact must be separately assigned as error, and
the failure to do so results in a waiver of the right to challenge
the sufficiency of the evidence to support the finding.”). To that
end, our review is limited to a determination as to whether the
trial court's findings support its conclusions of law.
In the case sub judice, the trial court made the following
findings of fact:
1. [On May 29,] Officer Hall was on routine
patrol in the McDougald Terrace area. He
received a call to come to Burton Park. There
was a gentleman on the railing there. Mr.
Beatty turned out to be the gentleman, the
defendant. Mr. Hall knew him by name and
face. He had been told to detain him in
reference to drug activities. He approached
the defendant. He had been told to watch the
front area where what were thought to be drugs
were located.
2. Officer Berendsen came to the scene. . .
Officer Hall did [a] frisk for drugs; saw a
brown, rolled up piece of paper. The britches
were jiggled, and it fell out the bottom of
the defendant's pants legs. Officer Hall
picked it up, opened it, saw the bags, . . .
[.]
3. Officer Berendsen of the Durham Police
Department, who has been thirteen years a
Durham police officer, sheriff's office[r] for
six years, on May 29, 2001 was conducting
surveillance at Burton Park, which is in
district 4 in Durham. Officer Berendsen
testified that it's the biggest heroin
location in the City of Durham. It's known
where-- where heroin addicts are known to
congregate. . . . Officer Berendsen . . .
gave in detail the mode of operation used by
drug dealers where there would be a runner or
two, a dealer with a bag, the runner would go
back and forth, make contact with the buyer.
5. Officer Berendsen testified that he was
conducting surveillance in Burton Park. They
had received numerous drug complaints, an
ongoing problem. He noticed Jesse Smith, whom
he knew; he noticed a green Ford pull up
before the M&M market-- near the M&M market
and a community center. Jesse Smith and
someone else who was not identified went to
this car. Smith walked to the driver, they
exchanged words; walked back to Beatty, who
was nearby, Beatty, the defendant; the
defendant pulled something from his waistband,
handed it to Mr. Smith, and then Smith went to
the green Ford; Ford drove off.
6. Officer Berendsen testified that he was
about 50 yards away from the defendant, and
within a street and two sidewalks of the
transaction. It was 1:30 in the afternoon, it
was daylight, it was not raining. He had
known both Mr. Smith and Mr. Beatty prior to
that date.
7. Once the transaction was made, the
defendant was the focus of his attention. He
continued to observe the defendant. He did
not want the defendant to put down what he
had. He called and gave a description of the
defendant and told . . . in his description to
detain that person. His focus was on the
defendant the entire time.
8. When Officer Hall arrived, the defendant
was detained. He came to where the defendant
was located, began a pat-down. Officer Hall
went to -- after the bag fell out, Officer
Hall retrieved that, unfolded it; five bindlesof what he thought was [a] controlled
substance.
Based upon these findings, the court concluded that there was a
reasonable, articulable suspicion to pat down defendant and that
there had been no violation of defendant's rights against
unreasonable search and seizure. The court, therefore, denied
defendant's motion to suppress.
After a review of the record, we conclude that the trial
court's findings, which are presumed correct, support its
conclusion that the officers had reasonable, articulable suspicion
to conduct a pat-down search and that the seizure of the item did
not violate defendant's rights. The trial court found that Officer
Berendsen was at Burton Park investigating suspected drug
activities and requested that Officer Hall assist him in detaining
defendant in reference to these activities. The court also found
that during the pat-down search of defendant, the officers
recognized the brown paper in defendant's pants as a container for
contraband. The trial court's findings support the determination
that the incriminating character of the paper fragment was
immediately apparent to the officers. See Wilson, 112 N.C. App. at
781-83, 437 S.E.2d at 389-90 (“immediately apparent” requirement
met where officer was at scene investigating alleged drug dealings
and where he did not need to physically manipulate the item before
he was able to determine that it contained incriminating
substances). Thus, the court properly denied defendant's motion to
suppress the evidence obtained as a result of the officers'
investigative search. For the foregoing reasons, we hold that defendant received a
fair trial, free from prejudicial error.
No error.
Judges BRYANT and GEER concur.
Report per Rule 30(e).
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