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1. Constitutional Law_-juvenile's competency to stand trial--abuse of discretion standard
The trial court did not abuse its discretion by determining that a juvenile was competent to stand trial under N.C.G.S. § 15A-1101(a) for possession of cocaine with intent to sell or deliver, because: (1) the court held a competency hearing, entered an order citing evidence offered by two psychologists giving conflicting opinions, and cited one evaluation in support of its findings; and (2) the court found the juvenile was able to assist in his own defense and work with his attorney, that he did not demonstrate symptoms of any mental disorder that could interfere with his ability to participate in court proceedings, and that he had the ability to understand legal terms and procedures that are explained in concrete terms.
2. Search and Seizure-_investigatory seizure--motion to suppress evidence--cocaine
The trial court did not err by concluding officers had reasonable suspicion to make an investigatory seizure of a juvenile in a possession of cocaine with intent to sell or deliver case when an officer requested that the juvenile spit out what was in his mouth, because: (1) the juvenile was located in a high crime area and the police had received complaints that drug dealing had been occurring in the area; (2) the juvenile quickly turned his head away from the officer and was not moving his mouth while speaking as though he had something inside his mouth; and (3) the officer testified that individuals who have exhibited such characteristics have generally kept crack cocaine in their mouths.
3. Search and Seizure--warrantless search--probable cause
The trial court did not err by denying a juvenile's motion to suppress evidence of crack cocaine found on his person in a possession of cocaine with intent to sell or deliver case based on probable cause to conduct a warrantless search, because: (1) there was probable cause based on the same factors found for reasonable suspicion to conduct the investigatory seizure; (2) exigent circumstances existed when the juvenile had drugs in his mouth and could have swallowed them, thus destroying the evidence or harming himself; (3) based upon the officer's training and
experience, he knew that putting drugs in the mouth was a common method in which people hide drugs; and (4) the fact that the juvenile was in a high crime area was only one factor the officer used to form reasonable suspicion and probable cause that criminal activity was afoot.
4. Drugs--possession of cocaine with intent to sell or deliver--motion to dismiss--
sufficiency of evidence--simple possession
The trial court erred by denying a juvenile's motion to dismiss the charge of possession of cocaine with intent to sell or deliver, and the case is remanded for disposition based on an adjudication finding juvenile responsible for simple possession, because: (1) although packaging and unexplained cash are appropriate factors to consider in determining whether there was sufficient evidence on the intent element, the evidence viewed cumulatively was insufficient when a single crack rock could only be viewed as possession of crack cocaine and the cellophane could just as easily be in the juvenile's possession in his role as a consumer who purchased the packaged crack rock from a dealer; (2) cases in which packaging have been a factor have tended to involve drugs divided into smaller quantities and packaged separately; (3) the $271 in cash onjuvenile's person was not enough to establish intent given the totality of circumstances; and (4) when the trier of fact adjudicated the juvenile responsible for possession with intent to sell or deliver, it necessarily found juvenile responsible for simple possession of a controlled substance.
Judge JACKSON concurring.
Judge CALABRIA concurring in part and dissenting in part.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Kathleen M. Waylett and Assistant Attorney
General Jay L. Osborne, for the State.
Terry F. Rose for juvenile-appellant.
I.R.T. (juvenile) appeals from an order adjudicating him
delinquent for possessing crack-cocaine with the intent to sell or
distribute. After careful consideration, we remand for disposition
based on an adjudication finding juvenile responsible for simple
On the afternoon of 19 May 2005, Durham Police Officers S. E. Kershaw (Corporal Kershaw) and J. L. Honeycutt (Officer Honeycutt) were on patrol along Beaman Street when they observed a group of individuals standing outside an apartment building. The officers exited their vehicles and walked up to the group, engaging the group members in conversation. Corporal Kershaw testified that officers have previously arrested people on drug charges in thearea, but stated that on 19 May police had not received any reports of drug sales nearby.
Corporal Kershaw testified that he approached juvenile, that juvenile looked at him, and then quickly turned his head away. Corporal Kershaw asked juvenile if he lived in the building, and juvenile answered no. [A]s I was talking to him, he kept his head turned away from me and I could tell that he was not moving his mouth as though he had something inside of his mouth[,] Corporal Kershaw stated.
Corporal Kershaw explained that he had previously encountered individuals acting evasive and hiding crack-cocaine in their mouths, and those experiences made him suspect juvenile might be hiding drugs in his mouth. By his mannerisms, by turning away, by not opening his mouth as he talked, you could tell that he had something in his mouth that he was trying to hide[,] Corporal Kershaw stated.
Suspecting juvenile of hiding drugs in his mouth, Corporal Kershaw requested juvenile to spit out what was in his mouth. Juvenile then spit out one crack-cocaine rock wrapped in cellophane. Corporal Kershaw then placed juvenile under arrest for possession of cocaine with the intent to sell or deliver. A search of juvenile's person turned up $271.00 in cash.
Following a bench trial in Durham County District Court, Judge James T. Hill entered an order adjudicating juvenile delinquent for possession of cocaine with the intent to sell or deliver. He placed juvenile on probation for a period of twelve months and required juvenile to complete a substance abuse assessment and a mental health assessment, as well as 200 hours of community service. The order further provided that the juvenile would maintain passing grades in at least four courses during each grading period, and refrain from associating with anyone in the Blood gang. From this order, juvenile appeals.
JACKSON, Judge concurs in a separate opinion.
I concur with the majority's ruling regarding the admission of evidence and remanding the case for disposition based upon an adjudication finding juvenile responsible for simple possession. I also concur with the majority's affirming the trial court's finding that the juvenile is competent to stand trial; however, I write in a separate opinion to express my concerns with this decision.
Although the determination of whether or not a defendant is competent to stand trial is one that lies within the discretion of the trial court, I am troubled by the particular circumstances found in the instant case. In the juvenile's case, he was subjected to two competency evaluations by two different psychologists, both resulting in conflicting determinations.
The first competency evaluation, done on 23 September 2005 by Dr. VandeVusse, a psychologist, concluded that although the juvenile has significant intellectual limitations that affect his verbal skills, his limitations do not lead to a diagnosis of mental retardation or of a learning disability. Dr. VandeVusse assessed the juvenile by conducting a clinical interview and observing the juvenile's behaviors. He also reviewed all of the court documents, interviewed the juvenile's mother, and reviewed his previousevaluation of the juvenile conducted a year and a half prior. Dr. VandeVusse stated in his evaluation that although the juvenile would need to have legal terms and procedures explained to him in concrete terms, he does not demonstrate any mental defect that would preclude his capacity to proceed to trial. In Dr. VandeVusse's previous evaluation performed 3 March 1989, he stated that the juvenile's overall IQ score was within the borderline range of intellectual functioning, however his verbal IQ score was found to be in the mildly mentally retarded range. Despite this, Dr. VandeVusse previously had found that the juvenile was able to discuss the charges against him and appeared to appreciate the consequences of the possible outcomes of the legal proceedings against him.
The second competency evaluation was conducted by Dr. Hancock, licensed clinical psychologist, within weeks of Dr. VandeVusse's second evaluation. In assessing the juvenile, Dr. Hancock conducted several tests, including the Test of Memory Malingering, the Instruments for Assessing Understanding and Appreciation of Miranda Rights, and the Evaluation of Competency to Stand Trial - Revised. Dr. Hancock also reviewed the juvenile's school records, the Durham Police Department Offense Record for the instant offense, prior competency evaluations by two other doctors including Dr. VandeVusse, he interviewed the juvenile's mother, and reviewed the motion for competency examination signed by the juvenile's attorney. Based upon his evaluation, Dr. Hancock reached a very different conclusion than Dr. VandeVusse. Dr.Hancock found that the juvenile's language deficits contribute to an overall condition of significant impairment in verbal IQ that impacts his competence. Dr. Hancock found the juvenile's verbal IQ to be within the mentally retarded range, and that this, coupled with the results of the competency test performed, indicate significant impairment in his factual and rational understanding of the legal system. Dr. Hancock found that the juvenile had a very limited understanding of the legal system, and did not have a clear understanding even of who the participants in the court system _ including the jury _ were. Based upon his review, Dr. Hancock concluded that the juvenile was not competent to stand trial.
While I am troubled by the fact that one evaluator conducted such extensive and relevant competency testing that the other did not, I recognize that the facts of this case cause it to be a difficult determination for the trial court. Thus, given that our standard of review is that of an abuse of discretion, this Court has no choice but to hold that the trial court did not abuse its discretion in finding the juvenile competent to stand trial. The trial court's determination was properly supported by the Dr. VandeVusse's evaluation, and thus the decision was a proper one.
CALABRIA, Judge, concurring in part and dissenting in part.
I concur with the majority that the juvenile was competent to stand trial and that the court erred in denying defendant's motion to dismiss since there was insufficient evidence to find defendantguilty of possession of crack cocaine with intent to sell or deliver.
However, I respectfully dissent from the majority's determination that the search and seizure of the defendant was justified because I believe the officers had neither reasonable, articulable suspicion to detain the defendant, nor the probable cause and exigent circumstances required to search him. The majority determines that the defendant was seized by the officers' show of force, but concludes that such a seizure was justified. I disagree. The majority opinion bases its conclusion on three factors: defendant's presence in a high-crime area, his reluctance to speak with the police, and the presence in his mouth of some unknown object. The majority determines that these factors simultaneously provided Officer Kershaw with reasonable, articulable suspicion, probable cause, and exigent circumstances justifying a search of defendant's person. Assuming, arguendo, that these factors justify a brief investigatory seizure, they certainly do not rise to the level of probable cause.
[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. Illinois v. Gates, 462 U.S. 213, 244 n. 13, 76 L. Ed. 2d 527, 552 (1983). Probable cause for an arrest has been defined to be 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. Streeter, 283 N.C. 203, 207, 195 S.E.2d 502, 505 (1973) (citation omitted). Theprobable cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances. Maryland v. Pringle, 540 U.S. 366, 371, 157 L. Ed. 2d 769, 775 (2003).
The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. Brown v. Texas, 443 U.S. 47, 52, 61 L. Ed. 2d 357, 362-63 (1979). Under Brown, the defendant's presence in an area characterized by law enforcement as high crime does not alone justify his seizure.
The majority notes Officer Kershaw's statement that there had previously been drug arrests in the area to support its determination that the officer had reasonable grounds to seize the defendant. However, as the majority notes, police had received no calls concerning drug activity in the area where defendant was seized. The relevant exchange was as follows:
[Defense counsel] So you would say that was a drug area?
[Officer Kershaw] We've made drug arrests in the area before, yes.
[Defense counsel] But you didn't receive any calls about drugs being sold on that day?
[Officer Kershaw] Correct.
Further, Officer Kershaw testified that he had not seen defendant prior to the encounter and thus had no reason to suspect defendant might use or deal with illegal drugs.
Although an area previously known for drug arrests may be one factor to consider in determining reasonable suspicion and probablecause, our courts have indicated that when there have been no recent arrests in the area, such a factor does not carry substantial weight. State v. Butler, 331 N.C. 227, 233, 415 S.E.2d 719, 722 (1992) ([the police officer] observed defendant not simply in a general high crime area, but on a specific corner known for drug activity and as the scene of recent, multiple drug-related arrests.) (emphasis supplied); In re J.L.B.M., 176 N.C. App. 613, 621, 627 S.E.2d 239, 244 (2006) (In determining there was no reasonable suspicion, the court stated, Officer Henderson did not observe the juvenile committing any criminal acts, nor had there been other reports of any criminal activity in the area that day.).
Since there was no evidence of any recent drug activity in the area in question, this fact adds little support to the majority's assertion that the officer had probable cause to search defendant, especially given the fact that Officer Kershaw testified that no drug activity was reported on the date in question. Officers were not responding to any reports of drug activity and had no specific reason to suspect that any illegal activity may be afoot. While a neighborhood's character as a high-crime area may be a factor in determining the existence of reasonable suspicion or probable cause, I find such a factor has little weight when, as here, there is no indication of recent drug activity.
The majority also relies on the fact that defendant turned his head and seemed reluctant to engage in conversation with Officer Kershaw. However, this fact is indicative of nothing more than adesire on the part of defendant to avoid speaking with police. Unless defendant was seized prior to Officer Kershaw questioning him, he was free to disengage from the encounter with Officer Kershaw. See generally State v. Corbett, 339 N.C. 313, 326, 451 S.E.2d 252, 258 (1994). If defendant was seized at the point Officer Kershaw questioned him, his seizure could not have been based on any other factor besides his presence in a high-crime area. Such a seizure would clearly violate defendant's Fourth Amendment rights as articulated in Brown. Accordingly, any evidence discovered from such a seizure would be fruit of the poisonous tree and subject to suppression. Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 441 (1963). Thus, defendant had a legal right to turn away from the officer, or alternatively, was illegally seized at that moment.
Lastly, the majority relies on the fact that defendant appeared to have some unknown object in his mouth. Despite the majority's assertion to the contrary, the fact that defendant appeared to have something in his mouth cannot provide probable cause, as the object very well could have been gum, a piece of candy, or a breath mint. Officer Kershaw himself admitted that the item could have been any number of things besides contraband.
[Defense counsel] You couldn't tell what was in his mouth[?]
[Officer Kershaw] Not at that time, no.
[Defense counsel] You didn't know if it was a piece of gum[?]
[Officer Kershaw] Correct.
[Defense counsel] You didn't know if it was a piece of hard candy[?]
[Officer Kershaw] Correct.
[Defense counsel] You didn't know if it was just the way that he talks[?]
[Officer Kershaw] Possibly.
In support of its holding, the majority relies on State v. Watson, 119 N.C. App. 395, 458 S.E.2d 519 (1995), which is distinguishable from the case sub judice. In Watson, the defendant was observed in an area where officers constantly made drug arrests by an officer who knew the defendant had previously been arrested on drug charges. Upon seeing the officer, the defendant hurriedly placed something in his mouth, began walking away from the officer, and attempted to take a drink of a beverage. Based on the totality of the circumstances, this Court determined the officer's demand was reasonable when he ordered defendant to spit out the contents of his mouth.
The majority misstates Watson's scope and ignores crucial distinctions between Watson and the instant case. In Watson, the officer was able to form a more particularized suspicion than the officer in this case, given the fact that the defendant, a known drug user in a specific location notorious for drug sales, was observed hurriedly placing something into his mouth and then trying to swallow the object by taking a drink of a beverage when he saw the police approaching. In this case, there is no evidence that defendant was a known drug user, and no evidence that he hurriedly tried to place any item in his mouth as the officers approachedhim. Here, officers simply approached some individuals and noticed that defendant turned his head and, when he spoke, appeared to have some indeterminate object in his mouth. For the reasons stated above, these facts fall short of the probable cause standard.
I believe the facts of this case are more similar to those in State v. Fleming, 106 N.C. App. 165, 415 S.E.2d 782 (1992). In Fleming, an officer observed two individuals walking in an area where crack cocaine was regularly sold. The officer first told the individuals to hold it a minute and then said, Come here. When the officer patted one of them down for weapons, he felt an object and asked what it was. The defendant admitted the object was crack cocaine.
In reversing the defendant's conviction, we determined that the officer had no reasonable, articulable suspicion to seize the defendant in that the officer had no specific reason for suspecting any criminal wrongdoing. Brown is also similar to the case sub judice. In Brown, officers detained a defendant based on vague suspicions formed after seeing two individuals walk away from each other in an alley located in a high-crime area. The court noted that vague suspicions of wrongdoing are insufficient to justify a seizure. I believe this case is more in line with Fleming and Brown, and disagree with the majority's determination that Officer Kershaw had grounds to stop and search defendant.
The totality of the circumstances in this case can be summarized as such: an officer observed an unfamiliar individual who was not a known drug user or a criminal on a day in which nodrug activity had been reported in the area and who seemed reluctant to speak with police and appeared to have some unknown object in his mouth. These facts, taken together, in no way permit a conclusion that Officer Kershaw had probable cause to search defendant's person.
To hold otherwise would allow police to search any individual located in an area where past crimes have occurred who exhibits a desire to be left alone and either has something in his mouth or speaks with a speech impediment. Such a holding eviscerates the protections of the Fourth Amendment and lowers the probable cause standard to allow police to conduct intrusive searches of residents of neighborhoods plagued by crime on the barest of suspicions. Because I believe there was no probable cause justifying the search, I see no need to address the majority's assertion that exigent circumstances existed. As the majority recognizes, a warrantless search of the person requires both probable cause and exigent circumstances. State v. Pittman, 111 N.C. App. 808, 812, 433 S.E.2d 822, 824 (1993) .
In conclusion, I dissent from the majority's determination that Officer Kershaw had grounds to stop and search defendant. However, I concur with the majority's determination that defendant was competent to stand trial and that there was insufficient evidence that defendant intended to sell or deliver crack cocaine.
For the foregoing reasons, I would remand this case to the trial court for a new trial with evidence gathered from the illegal search and seizure suppressed.
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