STATE OF NORTH CAROLINA
v
.
Forsyth County
No. 03 CRS 56794
DANIEL MARCUS CORDRAY
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Robert T. Hargett, for the State.
Appellant Defender Staple Hughes, by Assistant Public Defender
Paul M. James, for the defendant-appellant.
JACKSON, Judge.
On 19 June 2003, Daniel Cordray (“defendant”) and two friends
entered a Bojangles restaurant in Winston-Salem, North Carolina at
about 6:00 a.m. Officer Ednee Gaylor arrived at the restaurant
just as the three men were entering the restaurant through a door
on the side of the restaurant. Officer Gaylor, who was in uniform,
parked his patrol car, and attempted to enter the restaurant
through the same door defendant and the other men entered, but
found the door to be locked. He tried the other door on that same
side of the restaurant, and found that door also to be locked.
Officer Gaylor was meeting his father and other individuals at the
restaurant for breakfast. When he was unable to enter the locked
door, he motioned for one of his father's friends to come and openthe door for him. He asked the individual who had let him in why
the doors were locked, and the individual responded that he did not
know, but that the doors had been unlocked and open a minute ago.
Officer Gaylor saw that defendant and his two friends were at
the front counter, and he assumed they were ordering food. At this
point he was concerned as to why the doors had been locked. Once
Officer Gaylor entered the restaurant, he went to the back of the
dining room to meet his father. One of the individuals with the
officer's father was a retired magistrate. Officer Gaylor
testified that he felt uneasy about the situation, because
defendant and the other two men kept a constant watch on the
officer the entire time he was in the restaurant, and had watched
him walk to the back of the restaurant. The officer knew that it
was 6:00 a.m., and that the restaurant had opened at 5:30 a.m. He
stated that he “felt real uneasy with the fact that the doors were
locked and knowing that they had just walked in.” Defendant and
his friends were the last people to enter the restaurant through
that door prior to the officer's entering, and defendant and his
friends had not had any problem entering the restaurant.
Officer Gaylor stood in the back of the restaurant for a
couple of seconds with his father and his father's friends,
watching the three men at the counter. He stated that at all
times, one or all three of the men were turning around and watching
the officer. At this point, Officer Gaylor felt as though he may
have entered the restaurant during the middle of a robbery attempt,
and he called for a backup unit. He based this suspicion on histraining and experience, the fact that the doors had been locked
when he tried to enter them, and that the three men kept a constant
watch on him while he was in the restaurant.
Defendant and his friends were at the counter of the
restaurant when Officer Gaylor and the retired magistrate
approached them. The officer testified that based on the behavior
of the three men, and the restaurant doors' being locked, he had a
reasonable suspicion that the men were engaging in criminal
activity. When Officer Gaylor approached the men, he ordered them
to put their hands on the counter. The three men seemed to be
caught off guard and surprised, and did not immediately comply with
the officer's order. The officer then unholstered his weapon and
put it down by his leg. He again ordered the men to put their
hands on the counter, at which time they complied.
Officer Gaylor informed the men that he was going to pat them
down for his own safety. During the pat down of either defendant
or defendant's friend Mr. Jones, the officer felt a large, soft
bulge in one man's pocket. He removed a large soft bag and placed
it on the counter without looking at or examining the bag. As he
continued to pat down the men, defendant pushed the bag to the
other side of the counter where it fell to the floor. When Officer
Gaylor retrieved the bag, he saw for the first time that the bag
contained a green vegetable material that he believed to be
marijuana.
Officer Gaylor then placed defendant under arrest for the
possession of marijuana. The officer searched defendant incidentto the arrest, and discovered a plastic bag containing a white rock
substance in defendant's jacket pocket. Officer Gaylor immediately
believed the substance to be cocaine. On 28 October 2003 defendant
filed a motion to suppress seeking to suppress the bag of marijuana
and the bag of cocaine. Following a hearing on the motion to
suppress, the trial court denied defendant's motion on 6 May 2004.
On 9 March 2005, defendant entered a conditional plea of
guilty to the reduced charge of simple possession of cocaine and
possession of marijuana with the intent to sell and deliver it.
Pursuant to the plea agreement, defendant preserved his right to
appeal the denial of his motion to suppress. See N.C. Gen. Stat.
§ 15A-979(b) (2004). Defendant was sentenced to a suspended
sentence of six to eight months imprisonment, and was placed on
twenty-four months of supervised probation.
Defendant contends the trial court erred in denying his motion
to suppress the bags of marijuana and cocaine found as a result of
the officer's Terry stop and frisk, and subsequent arrest.
Defendant specifically argues that his Fourth Amendment right to be
free from unreasonable searches and seizures was violated when the
officer did not have a reasonable articulable suspicion of criminal
activity such that a Terry stop was warranted, the officer did not
have additional reasonable suspicion to warrant a pat down of
defendant, the officer lacked probable cause to arrest defendant,
and thus the subsequent search of defendant incident to his arrest
was unlawful. At the suppression hearing, the trial court found that based
upon the doors to the restaurant being locked and defendant and the
two other men constantly watching the officer, the officer had a
reasonable articulable suspicion that criminal activity was about
to occur, such that his approaching of the men and detaining them
was proper. The court also found that based on the type of
activity the officer suspected the men to be involved in, it was
reasonable for him to pat them down in order to see if any of them
were carrying a weapon. When the officer conducted the pat down of
either defendant or Mr. Jones, the officer felt a large, soft bulge
in the pocket, and removed the object so that he could conduct a
more effective pat down of the suspect's pocket. Once defendant
pushed the bag and caused it to fall to the back side of the
counter, the officer retrieved the bag, at which time he was able
to see through the mesh side of the bag and was able to see that
the bag contained a green vegetable material, which the officer
believed to be marijuana. The court found that by causing the bag
to fall to the other side of the counter, defendant exercised
dominion and control over it, thus justifying the officer's arrest
of defendant for possession of marijuana.
“The fundamental inquiry under the Fourth Amendment is whether
the governmental intrusion into a private individual's liberty and
property was reasonable.” State v. Shearin, 170 N.C. App. 222,
226, 612 S.E.2d 371, 375, appeal dismissed and disc. review denied,
__ N.C. __, 624 S.E.2d 369 (2005); see also Terry v. Ohio, 392 U.S.
1, 19, 20 L. Ed. 2d 889, 904 (1968). A law enforcement officermay, without violating the Fourth Amendment, “temporarily detain a
person for investigative purposes.” Id. (citing Terry, 392 U.S. at
22, 20 L. Ed. 2d at 906-07). In order for this temporary detention
to be lawful, the officer must have a reasonable suspicion that
criminal activity is in process or about to be committed, and this
reasonable suspicion must be based on articulable facts. Id.
(citing Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906). Once an
officer has detained a person for investigative purposes, he may
frisk the person, or conduct a pat-down, only “where the officer
reasonably suspects that 'criminal activity may be afoot and that
the [person] with whom he is dealing may be armed and presently
dangerous.'” Id. (quoting Terry, 392 U.S. at 30, 20 L. Ed. 2d at
911). The purpose of the officer's frisk or pat down is for the
officer's safety, and “is limited to the person's outer clothing
and to the search for weapons that may be used against the
officer.” Id. at 226, 612 S.E.2d at 376. A search conducted in
this manner will be considered reasonable “under the Fourth
Amendment, and any weapons seized may properly be introduced in
evidence against the person from whom they were taken.” Terry, 392
U.S. at 31, 20 L. Ed. 2d at 911. “Evidence of contraband, plainly
felt during a pat-down or frisk, may also be admissible, provided
the officer had probable cause to believe that the item was in fact
contraband.” Shearin, 170 N.C. App. at 226, 612 S.E.2d at 376
(citing Minnesota v. Dickerson, 508 U.S. 366, 375-77, 124 L. Ed. 2d
334, 346-47 (1993)). Our courts have established that in
“determining whether an officer had a 'reasonable suspicion to makean investigatory stop' or had reason to believe that a defendant
was armed and dangerous, trial courts must consider the totality of
the circumstances.” Id. (quoting State v. Willis, 125 N.C. App.
537, 541, 481 S.E.2d 407, 410 (1997)); see also, State v. Watkins,
337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994).
Defendant argues that he was subjected to an unlawful
detention and frisk, in that the officer did not have a reasonable
suspicion based on articulable facts justifying the detention. It
is undisputed that the officer detained defendant and two other
men, the question thus becomes whether the detention was lawful.
The officer testified at the suppression hearing that when he
arrived at the Bojangles, he saw defendant and two other men enter
the restaurant, and that no one entered the restaurant between the
time the men entered and when the officer attempted to enter. When
the officer attempted to enter the restaurant, he found that both
doors on that side of the restaurant were locked. Once he was
inside the restaurant, defendant and the other two men kept a
constant watch on the officer. The officer stated that he
immediately felt uneasy, and called for a backup unit because he
believed that he may have walked in during the middle of a robbery.
Based on defendant's and the other two men's behavior, and the fact
that the restaurant doors had been locked, the officer stated that
he believed the men were about to take part in a criminal activity.
The officer testified that his concern that the men were about to
commit a robbery was based not only on the events leading up to the
detention of the men, but also on his training and experience . Based on these facts, we hold the officer's observations, when
coupled with the events leading up to the detention, were
sufficient to support the trial court's finding that the officer
had reasonable suspicion to justify a temporary detention of the
men for investigative purposes.
At the suppression hearing, the officer testified that he
asked the men if any of them had a weapon, to which they replied in
the negative. He then informed the men that he was going to pat
them down for his safety. During the pat down of defendant or one
of the other men, the officer felt a large, soft bulge, which took
up the entire pocket. The officer stated that he immediately
recognized that the soft bulge was not a weapon. He stated that he
was unable to tell if there was a weapon in the pocket under the
bag, and that he removed the bag from the pocket for the purpose of
being able to conduct a complete pat down of the suspect. The
officer placed the bag on the restaurant's counter, and did not
open it or inspect it in any way.
While the officer's reaching into one of the suspect's pockets
may have constituted a search beyond the scope of a limited frisk,
the issue before this Court is “whether the degree of intrusion
[was] reasonably related to the events that took place.” State v.
Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522 (1995).
In determining whether or not conduct is
unreasonable, “there is no slide-rule
formula,” and “each case must turn on its own
relevant facts and circumstances.” In
determining reasonableness, courts must
consider the scope of the particular
intrusion, the manner in which it isconducted, the justification for initiating
it, and the place in which it is conducted.
Willis, 125 N.C. App. at 543, 481 S.E.2d at 411 (quoting Watson,
119 N.C. App. at 399, 458 S.E.2d at 522). Based on the facts of
the instant case, we conclude that the officer was justified in
removing the bag from one of the suspect's jacket, thus enabling
him to conduct a full and lawful pat-down for possible weapons.
After removing the bag from one of the suspect's jackets, the
officer continued to pat down the other suspects. The officer was
then informed by the retired magistrate that defendant pushed or
threw the bag onto the floor on the other side of the counter.
When the officer recovered the bag, he was able to see, for the
first time, that the bag was leather on one side and mesh on the
other. The bag landed on the floor with the mesh side facing up,
and when the officer retrieved the bag, he was able to see that it
contained a plastic bag containing a green vegetable matter which
he immediately believed to be marijuana. The officer then arrested
defendant for possession of marijuana.
In order to justify an arrest, an officer must have probable
cause, which is “'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.
Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971) (quoting 5
Am. Jur. 2d Arrests § 44 (1962)). Here, the officer immediately
believed the substance in the bag to be marijuana, and he was
informed by a witness that defendant was the one who pushed the bag
off the counter. The officer's subsequent arrest of defendant forpossession of marijuana was lawful, in that once defendant pushed
the bag off the counter, he had exercised dominion and control over
the bag. Defendant's pushing of the bag constituted possession of
the marijuana and was sufficient to give the officer probable cause
thereby justifying the officer's arrest of defendant.
After the officer arrested defendant, he conducted a full
search of defendant's person, at which time he found a plastic bag
containing a white rock substance which he believed to be cocaine.
In conducting a search incident to an arrest, “the officer may
lawfully take from the person arrested any property which such
person has about him and which is connected with the crime charged
or which may be required as evidence thereof.” State v. Roberts,
276 N.C. 98, 102, 171 S.E.2d 440, 443 (1970); see also State v.
Bone, 354 N.C. 1, 9, 550 S.E.2d 482, 487 (2001), cert. denied, 535
U.S. 940, 152 L. Ed. 2d 231 (2002). As the officer had probable
cause thereby justifying his arrest of defendant, he was thus
entitled to conduct a full search of defendant's person.
Therefore, the search of defendant which resulted in the discovery
of the bag of white rock substance was lawful.
It has been well established in this State “that the standard
of review in evaluating a trial court's ruling on a motion to
suppress is that the trial court's findings of fact are conclusive
on appeal if supported by competent evidence, even if the evidence
is conflicting. The trial court's conclusions of law, however, are
fully reviewable.” State v. Nixon, 160 N.C. App. 31, 33, 584
S.E.2d 820, 822 (2003); see also State v. Buchanan, 353 N.C. 332,336, 543 S.E.2d 823, 826 (2001); State v. Smith, 160 N.C. App. 107,
114, 584 S.E.2d 830, 835 (2003). Defendant contends that the court
erred by finding the officer did not exceed the scope of the Terry
stop and frisk when he removed the bag from the jacket of one of
the suspects, and that the officer did not have probable cause to
arrest defendant for possession of marijuana.
After a full review of the record and briefs, and the
transcript of the hearing on defendant's motion to suppress, we
hold there was sufficient evidence to support the trial court's
findings of fact. We also hold the trial court's findings of fact
support the trial court's decision to deny defendant's motion to
suppress.
No error.
Judges HUDSON and LEVINSON concur.
Report per Rule 30 (e).
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