STATE OF NORTH CAROLINA
v. Forsyth County
No. 03CRS56055
LATANYA ROCHELLE WATSON
Attorney General Roy Cooper, by Special Deputy Attorney
General Douglas A. Johnston, for the State.
Thomas E. Fulghum for defendant appellant.
McCULLOUGH, Judge.
Defendant LaTanya Rochelle Watson was charged with possession
with intent to sell and deliver cocaine. Prior to trial, defendant
moved to suppress the cocaine seized during a warrantless search of
her person during an investigatory stop. The motion was heard at
the 7 January 2004 Criminal Session of Forsyth County Superior
Court. The evidence tended to show the following: At approximately
3:00 a.m. on 3 June 2003, Officer Gory Mendez, an officer with the
Winston-Salem Police Department, observed defendant pressed up
against the Church's Fried Chicken building, some 50 feet from the
sidewalk. Officer Mendez was patrolling the area, and was
immediately suspicious, because Church's was closed. There was no
vehicular traffic and no one else in the area. The area was knownto be a high crime area.
Concerned that there was a possible break-in occurring, the
officer pulled into a nearby parking lot. Before Officer Mendez
could get out of his patrol car, defendant began to walk away.
Officer Mendez asked defendant to stop. When she stopped and
turned around, the officer recognized her as a person from the
area. Officer Mendez approached defendant and asked her where she
had come from, and defendant replied that she had come from her
sister's residence just two blocks away. Officer Mendez had
previously arrested defendant's sister for possession with intent
to sell and/or deliver cocaine and had assisted vice and narcotics
officers in conducting two forcible searches into the home of
defendant's sister to seize drugs and drug paraphernalia.
As Officer Mendez elicited further background information from
defendant, he frisked the exterior of defendant's bag to make sure
that it did not contain any weapons. During the course of this
interaction, Officer Mendez noticed that defendant had an
irregular, roughly spherical, hard object in her bra. The officer
thought the object was crack cocaine. He also noticed that
defendant seemed nervous while talking to him -- stuttering,
constantly looking around, and not focusing on the questions that
he was asking her.
Officer Mendez called for a female officer to conduct a pat-
down of defendant's clothing. Officer Meredith E. Gomez responded
to the scene, whereupon she also noticed the suspicious object
under defendant's bra. When Officers Mendez and Gomez askeddefendant if she had any drugs or weapons on her person, defendant
began to cry and stated, “Go ahead, do what you got to do.” When
asked again about drugs or weapons, defendant replied, “He knows,
he's been looking at it all this time.”
Officer Gomez then conducted a search, during which she
discovered a bag of crack cocaine in defendant's bra. The
encounter between defendant and Officer Mendez lasted about 20 to
30 minutes. Only about four minutes elapsed between Officer
Mendez's initial request of defendant to stop and his obtaining
defendant's background information. Defendant was not handcuffed
during the exchange; she never asked to leave, nor did she ever
state her unwillingness to talk to the officers. The officers did
not display any weapons during their exchange with defendant or
touch her in any way prior to the search, nor did they use a
threatening tone of voice or block her path in any way to prevent
her from leaving the scene.
After hearing the evidence and arguments of counsel, the court
rendered judgment denying the motion in open court. The court
subsequently entered an order on 9 March 2004 in accordance with
its earlier ruling. Defendant thereafter pled guilty to possession
with intent to sell and deliver cocaine, specifically preserving
her right to appeal the denial of her motion to suppress. The
court entered judgment on the guilty plea, suspending defendant's
active sentence and placing her on supervised probation for 36
months. Defendant appeals.
The dispositive issue on appeal is whether the trial courterred in denying defendant's motion to suppress. “Our review of a
ruling on a motion to suppress is limited to whether 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 on appeal. 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 some 30 findings
of fact, which are presumed correct and are binding on this Court.
Based upon those findings, the trial court concluded
that the State has proven by a preponderance
of the evidence that based on the totality of
the circumstances, Officer Mendez had a
reasonable articulable suspicion to stop and
talk to the defendant to see if she were [sic]
involved in some type of crime;
1. That Officer Mendez's initial encounter
with the Defendant was consensual;
2. That after Officer Mendez stopped the
defendant he developed probable cause tosearch the Defendant based on among
other things: his knowledge of her and
her sister; the time of night; his
observation of the lump on the
Defendant's left breast area; the
defendant's nervousness; his belief that
the object was crack cocaine based on
his training and experience; and the high
crime area they were in;
And, THEREFORE, based on the foregoing
findings of fact the Court CONCLUDES AS A
MATTER OF LAW that the search conducted was
done with probable cause and the Defendant's
motion to Suppress the crack cocaine seized
from the Defendant is hereby denied[.]
Defendant contends that the trial court erred in so
concluding. We disagree.
The Fourth Amendment to the United States Constitution, as
applied to the states by the Due Process Clause of the Fourteenth
Amendment, prohibits only unreasonable searches and seizures.
State v. Grooms, 353 N.C. 50, 73, 540 S.E.2d 713, 727-28 (2000),
cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). Consensual
searches are not considered “unreasonable within the meaning of the
Fourth Amendment,” so long as consent to search is given freely and
intelligently. State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210,
213 (1997); see also N.C. Gen. Stat. § 15A-221 (2003)(providing
that a law enforcement officer may conduct a search and seizure,
without a warrant or other authorization, if consent to search is
given). “[T]he question whether a consent to a search was in fact
'voluntary' or was the product of duress or coercion, express or
implied, is a question of fact to be determined from the totality
of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S.218, 227, 36 L. Ed. 2d 854, 862-63 (1973).
[P]olice officers may approach individuals in
public places "to ask them questions and to
request consent to search their luggage, so
long as a reasonable person would understand
that he or she could refuse to cooperate." The
Court further explains that "a seizure does
not occur simply because a police officer
approaches an individual and asks a few
questions." Such encounters are considered
consensual by the Court and no reasonable
suspicion is necessary.
State v. Pittman, 111 N.C. App. 808, 811, 433 S.E.2d 822, 823-24
(1993)(quoting Florida v. Bostick, 501 U.S. 429, 431, 115 L. Ed. 2d
389, 396 (1991)). “[The U.S. Supreme] Court has found that
'[c]ommunications between police and citizens involving no coercion
or detention are outside the scope of the fourth amendment.'”
Id. (quoting State v. Thomas, 81 N.C. App. 200, 205, 343 S.E.2d
588, 591, disc. review denied, 318 N.C. 287, 347 S.E.2d 469
(1986)).
Moreover, it is well settled that a brief investigatory stop
of an individual is permissible under the Fourth and Fourteenth
Amendments if there exists reasonable, articulable suspicion to
show that criminal activity is afoot. State v. Milien, 144 N.C.
App. 335, 339, 548 S.E.2d 768, 771 (2001). Reasonable suspicion is
to be determined by the totality of the circumstances, viewed
through the eyes of a reasonable, cautious police officer.
A more intrusive search and seizure requires probable cause.
See Milien, 144 N.C. App. at 340, 548 S.E.2d at 772 (“Where the
duration or nature of the intrusion exceeds the permissible scope,
a court may determine that the seizure constituted a de factoarrest that must be justified by probable cause, even in the
absence of a formal arrest.”). “The existence of probable cause
depends upon 'whether at that moment the facts and circumstances
within [the officers'] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent man in
believing that the [suspect] had committed or was committing an
offense.'” Milien, 144 N.C. App. at 341, 548 S.E.2d at 772
(quoting State v. Bright, 301 N.C. 243, 255, 271 S.E.2d 368, 376
(1980) (alterations in original)). The Court gave several factors
“which a court may consider in determining whether probable cause
exists,” including “(1) the defendant's suspicious behavior, see
State v. Bridges, 35 N.C. App. 81, 239 S.E.2d 856 (1978); (2)
flight from the officer or the area, see State v. Zuniga, 312 N.C.
251, 322 S.E.2d 140 (1984); [and] (3) the discovery of what appears
to be illegal contraband in the possession of the defendant, see
State v. Patrick, 88 N.C. App. 582, 364 S.E.2d 450 (1988)[.]” Id.
In the instant case, Officer Mendez's initial stop of
defendant was permissible as a public exchange between an officer
and an individual. Here, the officer merely approached defendant
with the intent to inquire about her reason for being outside of
the closed Church's restaurant. At the time that Officer Mendez
originally decided to initiate contact with defendant, he did not
know the person's sex or identity. Indeed, though he suspected a
possible break-in, there was not any direct evidence to support
that belief.
We further conclude that the circumstances surrounding thestop also support an investigatory stop based upon reasonable,
articulable suspicion. A person pressed against the outside of a
closed business in a high-crime area at 3:00 a.m. would certainly
give a reasonably prudent officer of Officer Mendez's experience
that quantum of suspicion to justify an investigatory stop.
During that stop, after conducting a pat-down of a bag
defendant was carrying, and obtaining some biographical
information, Officer Mendez observed what appeared to be crack
cocaine secreted in defendant's bra. The officer noticed that
defendant was stuttering, looking around nervously, and was just
not being attentive to the questions that he was asking. In
addition, Officer Mendez knew that defendant's sister, who lived
nearby, was a drug dealer. At this point, Officer Mendez had
probable cause to believe that defendant was in possession of a
controlled substance, which would justify a lawful arrest. The
officer called for assistance. Officer Gomez responded to the
scene, where she too observed what appeared to be crack cocaine on
defendant's person. When Officer Gomez asked defendant if she
could search her, defendant told her to “do what you got to do.”
Defendant also said, “he [referring to Officer Mendez] knows, he's
been looking at it [referring to the crack cocaine in her bra] all
this time.” We believe that defendant's statements constituted
consent.
Contrary to defendant's argument, there was no showing on this
record of duress or coercion by the officers. But even assuming
arguendo there was evidence to support a finding of duress orcoercion so as to negate the consensual nature of the initial
exchange with Officer Mendez or the voluntary and knowing nature of
defendant's consent to search, we conclude that the search was
still proper in that the investigatory stop was based upon
reasonable, articulable suspicion and the search was justified
properly based upon probable cause.
In light of our conclusion in this regard, the trial court's
conclusions, which are duly supported by its findings, were proper.
The court's decision to deny defendant's motion to suppress the
crack cocaine seized from her person is, therefore, affirmed.
Affirmed.
Chief Judge MARTIN and Judge CALABRIA concur.
Report per Rule 30(e).
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