NO. COA05-95

NORTH CAROLINA COURT OF APPEALS

Filed: 15 November 2005

    Appeal by defendant from judgment entered 24 June 2004 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 17 October 2005.

    Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Richard E. Slipsky, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for defendant-appellant.

    HUNTER, Judge.

    Gaudencio Morales Celaya (“defendant”) appeals from a judgment and commitment by the trial court entered upon his conditional plea of guilty to conspiring to traffic in cocaine by possession, conspiring to traffic in cocaine by transportation, and possession of cocaine with intent to sell and deliver. In his conditional plea, defendant expressly reserved his right of appeal from the denial of his motion to suppress evidence obtained incident to his arrest. Defendant contends the trial court erred in denying hismotion to suppress. For the reasons stated herein, we affirm the order of the trial court.
    Defendant was indicted on charges of possession with intent to sell and deliver cocaine, and trafficking in cocaine by possession and transportation on 24 March 2003. Defendant subsequently filed a motion to suppress evidence seized by police officers, which was heard on 9 June 2004 in Forsyth County Superior Court, the Honorable Edwin G. Wilson, Jr. presiding. Specifically, defendant sought to suppress an automobile key he gave to law enforcement officers during their detention of him, as well as all evidence seized thereafter. Following presentation of the evidence, Judge Wilson made the following findings in open court:
            I find that the Winston-Salem Police Department used an informant for information regarding drug trafficking. The informant had been working for the Police Department for up to a year up to the time in question. The informant's lead resulted in approximately six or seven drug-related arrests. The informant received financial compensation for his services. Detective Spain referred to him as “probably the best informant we've ever had.”

            During the first week of December 2002, the informant set up a transaction with Mr. Duarte. Duarte was a Hispanic male accompanied by another Hispanic male driving a Ford Taurus. This informant was a citizen without criminal charges. Based on the informant's information, the officers knew Duarte would be accompanied by another person. Duarte had conducted the initial transaction with another Hispanic male.            Following the transaction, the informant notified the police that another deal was to take place at Parkway Plaza [shopping center] on December 7th. This deal was to involve Duarte and another unidentified second man and be the exchange of two kilos of powder cocaine. Information was provided regarding the unidentified man's ethnicity, location, and impending contact with Duarte.

            On December 7th, Duarte and the informant met outside of Big Lots [located in the Parkway Plaza shopping center]. Following the meeting, Duarte exited the informant's truck and met the Hispanic male later identified as [defendant] by a pay phone. They met there for roughly one minute. There is no evidence to suggest that the telephone was used. The contact occurred immediately after Duarte had left the informant. Duarte returned to his Ford Taurus and was apprehended by foot patrol. A small amount of powder cocaine was discovered in his car.

            At this time, [defendant] turned and walked into Big Lots. Detectives Holly and Spain followed [defendant] into the store. [Defendant] was handcuffed, frisked for weapons, and detained. Officers brought him outside the store to be questioned by Detective Gomez. Gomez read [defendant] his Miranda rights, removed the handcuffs, and took possession of [defendant's] car keys. Upon inquiring as to whether [defendant] drove to the parking lot, the defendant told a series of inconsistent stories. Police initially searched an unrelated GMC [vehicle] thought to belong to [defendant]. [Defendant's] keys fit into a Pontiac Grand Am on the scene. This car was not registered to [defendant]. A K-9 unit was called, and the drug dog reacted on the car, establishing probable cause to search the vehicle. Two kilos of cocaine were discovered within thevehicle. The car door had not been opened until after the dog had indicated on the car.

Following these findings, Judge Wilson ruled that the evidence was admissible and denied defendant's motion to suppress. Defendant subsequently pled guilty to conspiring to traffic in cocaine by possession, conspiring to traffic in cocaine by transportation, and possession of cocaine with intent to sell and deliver, while reserving his right to appeal the denial of his motion to suppress. The trial court consolidated the offenses and sentenced defendant to a minimum term of thirty-five months imprisonment, with a maximum term of forty-two months. Defendant appeals.
    Defendant argues that his detention by the Winston-Salem Police Department officers was either a formal arrest or a sufficiently intrusive and forceful seizure requiring probable cause. He contends no probable cause existed to support his arrest, and thus the search was unconstitutional and any evidence seized by officers pursuant to the illegal arrest must be suppressed. We disagree.
    The scope of appellate review of an order suppressing evidence is “strictly limited.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). This Court must determine whether the trial court's findings of fact are supported by competent evidence. Id. Factual findings which are supported by competent evidence aredeemed binding on appeal. Id. “While the trial court's factual findings are binding if sustained by the evidence, the court's conclusions based thereon are reviewable de novo on appeal.” State v. Parker, 137 N.C. App. 590, 594, 530 S.E.2d 297, 300 (2000).
    “The Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” United States v. Hensley, 469 U.S. 221, 226, 83 L. Ed. 2d 604, 610 (1985); State v. Garner, 331 N.C. 491, 506, 417 S.E.2d 502, 510 (1992) (noting that the Fourth Amendment to the Constitution of the United States and Section 20 of Article I of the North Carolina Constitution prohibits unreasonable searches and seizures). Consistent with the Fourth Amendment, however, police may detain persons in the absence of probable cause under certain circumstances. Hensley, 469 U.S. at 226, 83 L. Ed. 2d at 610. Police have the authority to detain a person “when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.” United States v. Place, 462 U.S. 696, 702, 77 L. Ed. 2d 110, 117-18 (1983); Hensley, 469 U.S. at 227, 83 L. Ed. 2d at 611 (acknowledging that officers may stop someone if they have reasonable suspicion that the person committed, is committing, or is about to commit a crime). A court must consider “the totality of the circumstances--the whole picture” in determining whetherreasonable suspicion to make an investigatory stop exists. United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981).
    Defendant does not argue that the officers lacked reasonable, articulable suspicion to perform an investigatory stop. Nor does defendant contend the officers lacked probable cause to search his vehicle or arrest him following discovery of the cocaine within the vehicle. Rather, defendant argues that when the officers stopped and handcuffed him within the Big Lots store, such action exceeded the scope of an investigatory stop, thereby transforming the detention into an arrest requiring probable cause. As such, defendant contends his seizure was unreasonable and that any evidence seized by officers during or following such seizure was fruit of the poisonous tree. We conclude that the scope and duration of defendant's initial detention was reasonable and did not constitute an arrest requiring probable cause.
    An investigatory stop must be “based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). 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 ofself-protection. State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d 502, 507 (1973). In conducting investigatory stops, the investigating officers may take steps reasonably necessary to maintain the status quo and to protect their safety, including the drawing of weapons. Hensley, 469 U.S. at 235, 83 L. Ed. 2d at 616. There is no “'“slide-rule formula”'” to apply in determining whether or not conduct is unreasonable; rather, “'“[e]ach case must turn on its own relevant facts and circumstances.”'” State v. Watson, 119 N.C. App. 395, 399, 458 S.E.2d 519, 522 (1995) (citations omitted). In determining reasonableness, courts generally consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Id.
    “[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time.” Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238 (1983). The United States Supreme Court, however, has declined to adopt “any outside time limitation for a permissible Terry stop,” Place, 462 U.S. at 709, 77 L. Ed. 2d at 122, as “[s]uch a limit would undermine the . . . important need to allow authorities to graduate their responses tothe demands of any particular situation.” Id. at 709 n.10, 77 L. Ed. 2d at 122 n.10. Delay attributable to the defendant may justify a somewhat longer period of detention. United States v. Sharpe, 470 U.S. 675, 687-88, 84 L. Ed. 2d 605, 616-17 (1985). The trial court should consider all of the circumstances in determining whether the amount of time the officer detained the citizen was reasonable under all the attendant circumstances. See State v. Sanchez, 147 N.C. App. 619, 626, 556 S.E.2d 602, 607-08 (2001) (holding that an investigatory stop of forty-five minutes under the circumstances was reasonable); State v. Darack, 66 N.C. App. 608, 614-15, 312 S.E.2d 202, 206 (1984) (holding that detention of the defendant for forty-seven minutes was proper).
    In Sanchez, this Court held that the police officers' actions in drawing their weapons, handcuffing the defendant, and detaining him for forty-five minutes did not exceed the scope of a valid investigatory stop. Sanchez, 147 N.C. App. at 626, 556 S.E.2d at 608. The police officers in Sanchez received detailed information from an informant that the defendant intended to transport cocaine on a certain date. Pursuant to the tip, eight police officers stopped the defendant in his vehicle. Working in pairs, the officers removed the defendant and the three other occupants from the vehicle. One officer placed the defendant and the occupants of the vehicle on the ground and handcuffed them while another officercovered the occupants with his handgun. The officers then frisked the occupants and searched the vehicle for weapons. Once they determined that there were no weapons, the officers put away their handguns and uncuffed the defendant and the occupants of the vehicle. No individual was handcuffed for more than five minutes. A detective then spoke to each occupant of the vehicle separately, informing them that they were suspected of possessing cocaine. The detective asked permission to search the vehicle and the belongings in the vehicle. Defendant and the occupants consented to the search. The officers found no cocaine, but several other incriminating items. The stop and search lasted approximately forty-five minutes. The defendant was ultimately convicted of trafficking in cocaine by possession and transportation and conspiracy to traffic in cocaine.
    On appeal, the defendant argued, inter alia, that the stop of his vehicle and his subsequent detention exceeded the scope of an investigatory stop, rendering his consent to the ensuing search invalid. Id. at 625, 556 S.E.2d at 607. We rejected the defendant's argument, concluding that the officers had reasonable grounds to believe, based upon the informant's tip, that the defendant might be armed and dangerous and that criminal activity was afoot. As such, the officers were justified in making a show of force to protect themselves. Thus, removing the occupants fromthe vehicle, placing them on the ground, handcuffing them, and searching them for weapons did not exceed the scope of the investigatory stop: “Based on these facts, we hold that the officers were justified in making a limited investigative detention of defendant and the occupants of the vehicle and this detention did not exceed the scope of an investigatory stop.” Id. at 626, 556 S.E.2d at 608.
    In the instant case, we conclude that defendant's detention was not overly intrusive and did not exceed the permissible scope of an investigatory stop. Defendant does not deny that the Winston-Salem police officers had reasonable articulable suspicion, based on the informant's tip and their own observations, that defendant was involved in a felony drug transaction. They were therefore entitled to detain defendant in order to verify or dispel their suspicions. The officers' reasonable belief that defendant was involved in a felony drug transaction also justified their initial handcuffing and frisking of defendant for their safety. See State v. Butler, 331 N.C. 227, 234, 415 S.E.2d 719, 723 (1992) (quoting United States v. Cortez, 449 U.S. 411, 418, 66 L. Ed. 2d 621, 629 (1981)) (stating that “[i]n concluding that defendant, as a person reasonably suspected of involvement in drug traffic, might be armed, [the police officer] was entitled to formulate 'common-sense conclusions' about 'the modes or patterns ofoperation of certain kinds of lawbreakers'” and thus was entitled to perform a limited frisk to discover any weapons on the defendant's person). Defendant remained handcuffed only until the officers brought him outside the store to speak with Detective Gomez, who spoke Spanish. Defendant then began telling “a series of inconsistent stories,” thus heightening the officers' suspicions and lengthening the necessary detention. According to the testimony, the total time elapsed from the point defendant was handcuffed until the officers established that the Pontiac parked in the parking lot belonged to defendant was approximately thirty to forty-five minutes. Under these facts, defendant's detention was reasonable and did not exceed the bounds of a permissible investigatory stop. As such, we conclude the trial court did not err in denying defendant's motion to suppress. We overrule defendant's assignment of error.
    Defendant further argues the trial court erred because its order contains no conclusion of law that the officers had probable cause to arrest defendant. We have determined, however, that probable cause was not required, because defendant's detention was an investigatory stop and not an arrest. We overrule this assignment of error.    In conclusion, we hold the trial court properly denied defendant's motion to suppress. The order of the trial court is affirmed.
    Affirmed.
    Chief Judge MARTIN and Judge STEELMAN concur.
    Report per Rule 30(e).

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