STATE OF NORTH CAROLINA
v. Guilford County
Nos. 97 CRS 23493, 45283
LARRY GARY, JR.
Attorney General Roy Cooper, by Assistant Attorney General
Marc X. Sneed, for the State.
Linda B. Weisel for defendant-appellant.
LEVINSON, Judge.
On 4 August 1997, Larry Gary, Jr. (defendant
) was indicted on
charges of possession with intent to sell and deliver a controlled
substance and being an habitual felon
. On 21 October 1997,
defendant was convicted on both counts and sentenced to a term of
133 to 169 months imprisonment. This Court dismissed defendant's
appeal.
State v. Gary, 132 N.C. App. 40, 510 S.E.2d 387 (1999).
On 5 April 2000, defendant filed a motion for appropriate
relief in superior court. Defendant argued that he received
ineffective assistance of trial counsel. The motion was allowed
and defendant was granted a new appeal by the trial court.
However, this Court dismissed the appeal on 13 November 2001. On28 January 2005, the trial court again allowed defendant's motion,
this time vacating his conviction and ordering a new trial.
Prior to trial, defendant filed a motion to suppress.
A
hearing was held on the motion on 9 May 2005. The motion was
denied. The defendant then entered an Alford plea of guilty,
reserving his right to appeal the denial of his motion to suppress.
Defendant was sentenced to a term of 107 to 138 months
imprisonment.
Defendant appeals.
At the suppression hearing, the State presented the following
evidence: On 1 May 1997, Corporal B.E. Davis of the Greensboro
Police Department was assigned to a special operations unit whose
main duty was drug suppression. The unit would work areas where
drugs were reportedly being sold, conduct surveillance and attempt
to make drug arrests. As part of their duties, the unit was
focusing on a house at 1903 Martin Luther King Drive. The police
department had received numerous complaints from the community, as
well as information from confidential informants, that illegal
narcotics were being sold from this location. Specifically, the
officers were told that drug buyers would walk into the backyard of
the residence and purchase drugs at a rear basement door. Corporal
Davis was familiar with the house and its layout, including the
rear basement door, because he had been inside the residence on
prior complaints of illegal narcotic activity. In the two months
preceding the defendant's arrest, the unit conducted surveillance
of the residence and observed “quite a bit” of foot and vehicular
traffic coming to the residence. The officers observed suspectedbuyers walk to the rear of the residence, briefly disappear around
a brushy area, and reappear three to five minutes later. The
suspected buyers would then walk or drive away. Corporal Davis, as
well as other officers, came into contact with several suspected
buyers after they left the residence “and a majority of the time
they were in possession of crack cocaine.”
On 1 May 1997, Corporal Davis was conducting surveillance on
the residence. At 6:40 p.m., Corporal Davis observed a white Honda
Civic parked next to the residence. The defendant, who was seated
in the front passenger seat, exited the vehicle and went behind the
residence. Defendant walked around the brushy area in the backyard
and briefly disappeared from view. Approximately three to five
minutes later, defendant emerged and reentered the vehicle. The
vehicle then drove away. Corporal Davis contacted Corporal R.H.
Sizemore and instructed him to stop the vehicle due to illegal
narcotics activity.
Corporal Sizemore stopped the vehicle two blocks away, and
Corporal Davis arrived shortly thereafter. Corporal Davis
approached the passenger side of the vehicle and recognized
defendant as being the same person who had been at the residence.
Defendant was staring straight ahead and was clenching his jaw.
Corporal Davis noted that defendant appeared nervous, and also
observed a bulge in his mouth that seemed to move from side to
side. Corporal Davis asked defendant if he had any identification.
Defendant responded “no”, but when he spoke his voice was muffled
as if something was in his mouth. Corporal Davis asked defendantto exit the vehicle, and then asked him what he had in his mouth.
Defendant clenched his mouth real tight and replied “Nothing.”
When he did so, Corporal Davis noticed what appeared to be a brown
piece of paper, described as a ball the size of a quarter, in the
defendant's mouth. Corporal Davis instructed defendant to spit out
the object and informed him he was under arrest. Corporal Davis
tried to force the object out of defendant's mouth, but defendant
resisted. Defendant pulled away and began to run, but he was
tackled and subdued with pepper spray. Eventually, defendant spit
the object out. Corporal Davis described the item as a “very wet
brown piece of paper rolled up in a ball” with “white crumbly
substance coming out of it.”
Defendant's sole argument on appeal is that
the trial court
erred by denying his motion to suppress.
Defendant renews his
contention from his motion to suppress that police lacked
reasonable suspicion to justify the stop. Defendant asserts that
the only factor, his presence in a known drug location, is
insufficient to establish reasonable suspicion.
After careful review of the record, briefs and contentions of
the parties, we affirm.
“The scope of review on appeal of the
denial of a defendant's motion to suppress is strictly limited to
determining whether the trial court's findings of fact are
supported by competent evidence, in which case they are binding on
appeal, and in turn, whether those findings support the trial
court's conclusions of law.” State v. Corpening, 109 N.C. App.
586, 587-88, 427 S.E.2d 892, 893 (1993).
In the case sub judice, the trial court found that the stop
was properly based on reasonable articulable suspicion that
defendant was engaged in criminal activity, namely, the unlawful
possession of controlled substances
. Our Supreme Court has stated
that:
It is well established that an officer may
undertake an investigatory stop of a person,
so long as that officer has a reasonable and
articulable suspicion, based on objective
facts, that the person is engaged in criminal
activity. Courts must consider the totality
of the circumstances -- the whole picture in
making the determination as to whether a
reasonable suspicion to make an investigatory
stop existed at the time the stop was made.
The totality of the circumstances test must be
viewed through the prism of a reasonable
police officer standard; that is, the
reviewing court must take into account an
officer's training and experience. Thus, a
police officer must have developed more than
an unparticularized suspicion or hunch before
an investigatory stop may occur.
State v. Willis, 125 N.C. App. 537, 541, 481 S.E.2d 407, 410 (1997)
(internal quotation marks and citations omitted). Here, the trial
court cited Corporal Davis' experience and training in drug
investigations. Corporal Davis was a veteran officer of fourteen
years, was a member of a unit that concentrated on street level
drug transactions, and had received specialized training in street
level drug investigations and interdiction. Additionally, Corporal
Davis had accounted for between 50 to 100 drug related arrests
during his tenure. The trial court found that “[t]hrough his
education, training and practical experience, Corporal Davis became
acquainted and familiar with drugs and the manner in which they arebought and sold in various neighborhoods.”
The trial court also considered the complaints about and
observations of suspected drug activity at 1903 Martin Luther King
Drive. The trial court noted that Corporal Davis' unit was
specifically informed that drug buyers would walk behind the
residence and purchase drugs at a rear basement door. Corporal
Davis was familiar with the residence and the door, having
previously visited the home during a drug investigation.
Consistent with the information that the unit had received,
officers observed people enter the backyard and briefly disappear
behind the residence. Furthermore, several persons who had been
stopped after leaving the residence were found in possession of
crack cocaine. In identical fashion, defendant appeared at the
house, walked into the backyard, disappeared for three to five
minutes, reappeared and walked immediately to his waiting car and
left. Based on the totality of the circumstances, we hold that the
trial court properly concluded that reasonable suspicion existed.
Thus, the investigatory stop was lawful.
Accordingly, we affirm.
Affirmed.
Judges
TYSON and BRYANT concur.
Report per Rule 30(e).
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