STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 03 CRS 254286
WILBERT L. ALEXANDER
Attorney General Roy Cooper, by Assistant Attorney General
Martin T. McCracken, for the State.
Irving Joyner, for defendant-appellant.
While reserving the right to appeal the denial of his motion
to suppress, defendant entered an Alford plea to the charge of
possession of cocaine with intent to sell or deliver. See North
Carolina v. Alford, 400 U.S. 25, 37, 27 L. Ed. 2d. 162, 171 (1970).
The trial court suspended a sentence of fifteen to eighteen months'
imprisonment and placed defendant on supervised probation for
thirty-six months. Defendant gave notice of appeal in open court
at the conclusion of the plea hearing.
We note initially that defendant's brief to this Court addresses only one of the two assignments of error found in the record on appeal. Pursuant to N.C.R. App. P. 28(b)(6), we deem theunaddressed assignment of error to be abandoned. Because defendant confines his appeal to the denial of his motion to suppress evidence seized from his person by Mecklenburg County Police Officer Graham P. Brown during an investigatory detention on 12 November 2003, we limit our discussion accordingly.
Officer Brown testified that at the suppression hearing that he met defendant while participating in a drug interdiction operation at 1836 Union Street in the Villa Heights neighborhood in Charlotte. As a member of the operation's take-down team, Brown waited near the target area in an unmarked van while undercover officers [rode] through the neighborhood looking for people to flag down, or to attempt to solicit them for sales of cocaine. Based on his training and eight years of experience with street crime in Charlotte, Brown knew that the local cocaine trade involved typically . . . nickel and diming where people are selling cocaine in [$]10 and $20 amounts[,] . . . small one or two dosage units that an individual can use immediately[.] The officers selected the site of the operation on 12 November 2003 based on the neighborhood's known status as an open-air drug market.
At approximately 1:30 p.m., Officer Bobby Tarte notified the take-down team that he had made a purchase[.] Tarte reported the amount and location of the transaction and described both the person who sold him the drug and a second subject standing there with him at that time of the purchase. In less than a minute, Brown and his fellow officers arrived at the site of the sale and found two individuals matching Tarte's descriptions. While an officer arrested the reputed seller, Brown engaged defendant, who was standing eight to ten feet from the seller. Primarily concerned for the safety of the arresting officer, Brown believed it was unsafe really to deal with a person who sold [drugs], without dealing with the gentleman in such close proximity to the transaction. He explained that street-level drug dealing more often than not involved the participation of more than one individual, as follows:
It's very rare that you . . . find a stash of drugs, money or firearm on one person. Generally it's passed through a crowd. It's not . . . uncommon at all to find drugs on one person, marked money on the second or third individual, and then someone standing guard with a firearm in a group.
Brown further observed that it was very uncommon for someone to stand close to a hand-to-hand drug sale without some degree of involvement, and that more often than not . . . someone in that close proximity [who] watches a hand-to-hand transaction [and] does not attempt to walk away or object to it is generally, at a minimum, a lookout[.]
In speaking to Brown, defendant was evasive and agitated[,] but did not appear to be nervous. Rather than responding to questions, defendant asked why he was being questioned. Brown saw that defendant's pockets were fairly bulging but could not determine the nature of their contents by sight. Although defendant kept his hands in view at all times, Brown was concerned about the items in his pockets. He frisked defendant but was unable to determine by this pat-down search whether defendant'spockets held a weapon. Brown then walked around defendant in order to look for visual indicators of a weapon. While standing closely behind him to the left, Brown saw protruding from defendant's left pants' pocket a clear colored plastic pill bottle. Brown could see [a]lmost half of the bottle and noticed that it contained small pieces of plastic and a white residue. Based upon his training and experience, his knowledge of how cocaine was packed for sale, and defendant's proximity to the undercover drug purchase, Brown found it more probable than not that the bottle contained a controlled substance. He noted that police typically f[ou]nd street level drugs in pill bottles [or] small containers[,] items that can be dropped easily without discarding the contents so they can be retrieved. Brown removed the bottle from defendant's pocket and confirmed his suspicion that it held a small quantity of cocaine. He placed defendant under arrest and found approximately $800.00 in cash in his pockets.
Defendant cross-examined Brown but offered no rebuttal evidence.
In its order denying defendant's motion to suppress the evidence seized by Brown, the trial court made findings consistent with the officer's hearing testimony and concluded as follows: (1) Brown's detention and pat-down search of defendant were supported by a reasonable suspicion that he was involved in drug sales and might be armed[;] (2) the pill bottle in defendant's pocket was in plain view of Officer Brown who was in a place where he had a lawful right to be[;] (3) Brown's observation of the pill bottle,in light of his training and experience, provided probable cause to believe defendant was in possession of a controlled substance; and (4) Brown's warrantless seizure of the pill bottle from defendant's pocket was lawful under both the United States and North Carolina Constitutions.
On appeal, defendant claims that the trial court erred in refusing to suppress evidence that was the product of an illegal stop, search, and seizure. Defendant contends that the facts found by the court provided no grounds for a reasonable articulable suspicion of his involvement in criminal activity. He asserts that the findings did not establish any connection between him and the reputed drug dealer. Likewise, he argues that Brown's subjective belief about the possible contents of the pill bottle did not provide probable cause for a warrantless arrest or search.
Although defendant's briefed argument challenges the sufficiency of the court's findings to support its conclusions of law, his corresponding assignment of error instead challenges the evidentiary support for the court's findings of fact, as follows:
1. The Trial Judge erred when he made findings of facts which were not supported by the evidence and denied the Defendant's Suppression Motion.
To the extent defendant challenges the sufficiency of the evidence to support the court's findings, his failure to assign error to any individual finding or to argue the issue in his brief, renders the trial court's findings of fact binding on appeal. See, e.g., Chambliss v. Health Sciences Foundation, Inc., __ N.C. App. __, __, 626 S.E.2d 791, 795 (2006) (quoting Okwara v. Dillard Dep't Stores,Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000)), petition for disc. review withdrawn, 360 N.C. 532, __ S.E.2d __ (2006); see also N.C.R. App. P. 10(c)(1) (2005). Our review is thus limited to the issue of whether the court's findings support its ultimate conclusions of law regarding the admissibility of the evidence. See id; see also State v. Carpenter, __ N.C. App. __, __, 632 S.E.2d 538, 540 (2006); In re Beasley, 147 N.C. App. 399, 405, 555 S.E.2d 643, 647 (2001).
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