STATE OF NORTH CAROLINA
v. New Hanover County
No. 04 CRS 67046
LEN WAYNE BANKS, JR.,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert T. Hargett, for the State.
Sofie W. Hosford, for defendant-appellant.
HUDSON, Judge.
While preserving his right to appeal the court's denial of his
motion to suppress evidence, defendant pled guilty to felonious
possession of a gun on educational property. The court sentenced
defendant to a prison term of six to eight months. The court
suspended the sentence and placed defendant on probation for three
years.
The court's findings of fact in its order denying the motion
to suppress show the following:
On 7 November 2004, Lisa Savitts and Justin Varella, campus
police officers of the University of North Carolina at Wilmington,
came to Hewlett Hall, a dormitory on campus, to investigate a
possible violation of alcoholic beverage control laws. Whilediscussing the matter with Kelly Brinson and Kelly Cason, two
residence assistants, the officers heard someone among a group of
three men ask whether anyone had any “weed.” The officers saw
defendant, who was among the three men, standing near an elevator.
The officers approached defendant, asked to talk to him, and asked
for permission to search his person. Defendant agreed to talk to
the officers but refused to consent to a search of his person. As
the officers talked to defendant, they observed that he had red,
glassy eyes and that he repeatedly put his hands in his pockets.
The officers asked defendant to refrain from putting his hands in
his pockets. The officers also asked defendant whether he had
“anything on him that they should know about,” by implication drugs
or weapons. Defendant responded that he had a knife in his pocket.
Defendant reached for the knife but the officers intervened.
Officer Varella retrieved the knife from defendant and handed it to
Officer Savitts. At this point Officer Savitts conducted a patdown
search of defendant. As she patted him around the waistline, she
felt the handle or butt of a pistol. She retrieved a .22 caliber
pistol from defendant's waistband and handed it to the other
officer. The officers arrested defendant and conducted a search
incident to arrest. They found in defendant's pocket a plastic
baggie containing Schedule II prescription medications.
The court concluded that defendant was not in custody at the
time he was questioned by the officers. The court further
concluded that the officers had reasonable and articulable
suspicion to conduct an investigatory stop of defendant and toconduct a patdown search for weapons based upon defendant's furtive
gestures.
Appellate review of a trial court order denying a motion to
suppress is limited to determining whether the findings of fact are
supported by competent evidence and whether the conclusions of law
are supported by the findings of fact. State v. Cooke, 306 N.C.
132, 134, 291 S.E.2d 618, 619 (1982). Defendant has not assigned
error to any of the court's findings of fact; therefore, they are
deemed supported by competent evidence and are binding on appeal.
State v. Adams, 159 N.C. App. 676, 679, 583 S.E.2d 689, 690, appeal
dismissed, 357 N.C. 659, 590 S.E.2d 272 (2003). Defendant
challenges the court's conclusions of law. He argues that the
officers illegally seized him without either probable cause or
reasonable suspicion to detain him.
“When an officer observes conduct which leads him reasonably
to believe that criminal conduct may be afoot, he may stop the
suspicious person to make reasonable inquiries. If he reasonably
believes that the person is armed and dangerous, the officer may
frisk the person to discover a weapon or weapons.” State v.
Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998). As
justification for a limited investigative detention, the officer
only needs a reasonable suspicion, based upon specific and
articulable facts and the rational inferences that may be drawn
therefrom, as guided by the officer's training and experience, that
the person is involved in criminal activity. State v. Thompson,
296 N.C. 703, 706, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907,62 L. Ed. 2d 143 (1979). In determining whether an officer had
reasonable suspicion to make an investigatory stop, the reviewing
court must consider the totality of the circumstances. State v.
Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994).
The totality of the circumstances in this case shows that the
officers were in a college dormitory room where alcoholic beverages
had been consumed possibly in violation of the law, when a group of
males, including defendant, walked by. One of the men asked where
they could obtain some marijuana. Not knowing which of the men
made the statement about desiring to commit an illegal act, the
officers reasonably approached defendant, as one of the men in the
group, for further investigative questioning. Defendant consented
to talk to the officers. As they talked with defendant, the
officers observed that he had red and glassy eyes, supporting a
rational inference that he had been drinking alcohol or consuming
controlled substances. They also noticed that defendant kept
placing his hands in his pockets, thereby raising reasonable
concerns, based upon their training and experience, that he may
have a weapon. When defendant indicated that he had a knife, the
officers acted reasonably in conducting a patdown search for their
safety to assure that defendant did not have any other weapons on
his person.
We hold the trial court properly concluded that the officers
had reasonable suspicion to detain defendant for an investigatory
stop and to conduct a patdown search for weapons. Once they
discovered the gun as a result of the patdown search, the officershad probable cause to arrest defendant for possession of a firearm
on educational property and to search defendant incident to arrest.
Affirmed.
Judges MCCULLOUGH and STEELMAN concur.
Report per Rule 30(e).
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