An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-540


Filed: 3 May 2005


         v.                        Durham County
                                No. 01CRS047875

    Appeal by defendant from judgment and commitment entered 12 December 2003 by Judge Edwin G. Wilson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 25 April 2005.

    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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