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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1389


Filed: 7 August 2007


         v.                        Forysth County
                                Nos. 04 CRS 46235
                                     04 CRS 63977

    Appeal by defendant from judgment entered 23 February 2006 by Judge Andy Cromer in Forsyth County Superior Court. Heard in the Court of Appeals 23 July 2007.

    Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State.

    Jarvis John Edgerton, IV, for defendant-appellant.

    CALABRIA, Judge.

    Oscar Lee White (“defendant”) pled guilty to felony possession of cocaine and habitual felon status. Pursuant to the plea, defendant reserved his right to appeal an order denying his motion to suppress. Judge Andy Cromer sentenced defendant to a minimum term of 101 months to a maximum term of 131 months in the North Carolina Department of Correction.
    The findings in the order denying defendant's motion to suppress tended to show: At approximately 4:44 p.m. on 19 November 2004, Officer J.P. Timberlake (“Officer Timberlake”),an eleven-year veteran of the Winston-Salem Police Department, drove through an area known for drug activity. Officer Timberlake observed a stopped vehicle near a vacant building. He ascertained by the tagnumber of the stopped vehicle that it was registered to a female by the name of Jennifer Goral(“Ms. Goral”). He also received information that Ms. Goral was a missing or endangered person. Based upon this information, Officer Timberlake turned his vehicle around to stop behind the stopped vehicle.
    Officer Timberlake subsequently observed a male, with his left hand clenched, walk across the street and sit in the passenger seat of the stopped vehicle, also occupied by a female. Officer Timberlake observed that the male and female appeared to exchange an item. Officer Timberlake approached the vehicle and asked the female to show her hands, to exit the vehicle, and to identify herself. She complied with his requests and identified herself as Jennifer Goral.
    Officer Timberlake also observed that the male passenger kept his left hand hidden and down near the edge of the seat. Officer Timberlake asked the male, identified as defendant, to show his hands. Defendant refused. The officer noted that defendant was visibly nervous and fidgety, and was breathing heavily. Defendant jumped out of the vehicle and ran. Officer Timberlake pursued defendant and grabbed him. The two men struggled and Officer Timberlake asked defendant multiple times to stop and put his hands behind his back. Defendant did not comply. Officer Timberlake ultimately placed defendant in handcuffs with the assistance of a passing motorist. Officer Timberlake arrested defendant for resisting or delaying an officer. The officer searched defendant incident to arrest and found cocaine on defendant's person.    Based upon the foregoing facts, the court concluded that Officer Timberlake lawfully approached defendant and that no seizure occurred until Officer Timberlake ultimately subdued defendant. The court concluded that the officer had legitimate concerns for his safety and that he had the authority to ask defendant to open his hands.
    Defendant does not contest the court's findings of fact in the order denying the motion to suppress; therefore, they are binding and not reviewable. State v. Watkins, 337 N.C. 437, 438, 446 S.E.2d 67, 68 (1994). When findings of fact are not contested, our review is limited to determining whether the findings of fact support the court's conclusions of law. State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999), cert. denied, 530 U.S. 1245, 147 S.E.2d 965 (2000). Defendant contends the court erred by denying the motion to suppress. He argues Officer Timberlake lacked reasonable suspicion to forcibly detain defendant, and thereby violated his constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution.
    The Fourth Amendment protects the “right of the people . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. The protection afforded by the Fourth Amendment applies to seizures of the person, including brief investigatory detentions such as those involved in the stopping of a vehicle. Watkins, 337 N.C. at 441, 446 S.E.2d at 69-70. To justify a brief investigatory detention, “the police officer must be able to point to specific and articulable facts which, taken together with rationalinferences from those facts, reasonably warrant [the] intrusion.” Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906 (1968). The stop must be justified by “a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.” Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979). The totality of the circumstances must be considered in determining whether a reasonable suspicion to make an investigatory stop exists. United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981).
    The court's findings of fact in the case at bar show that Officer Timberlake, an officer having eleven years of experience, observed a vehicle stopped in an area known for drug activity. Upon further investigation, he discovered that the vehicle was registered to a person reported as missing or endangered. He then observed defendant get into the vehicle and engage in what appeared to be a hand-to-hand exchange. At this point under the totality of these circumstances, we conclude Officer Timberlake possessed reasonable suspicion to conduct an investigatory stop of the vehicle.
    We next determine whether Officer Timberlake had reasonable suspicion to seize defendant. Some factors our courts have deemed supportive of an officer's formulation of reasonable suspicion to seize a defendant for investigative purposes include the defendant's nervousness, State v. McClendon, 350 N.C. 630, 638-9, 517 S.E.2d 128, 134 (1999); evasive or furtive conduct, State v. Butler, 331 N.C. 227, 233-34, 415 S.E.2d 719, 722 (1992); orpresence in an area known for drug activity, when combined with other suspicious actions, State v. Willis, 125 N.C. App. 537, 541- 42, 481 S.E.2d 407, 410-11 (1997). In State v. Shearin, 170 N.C. App. 222, 612 S.E.2d 371, appeal dismissed and disc. review denied, 360 N.C. 75, 624 S.E.2d 369 (2005), a case factually similar to the case at bar, an officer stopped a vehicle in which the defendant was a passenger. A second officer observed that the defendant appeared agitated and intoxicated and that the defendant attempted to hide an open container of an alcoholic beverage. The officer asked the defendant to exit the vehicle. The officer also asked the defendant whether he had any weapons. The defendant refused to answer questions and ran away when the officer attempted to frisk him for weapons. The officer apprehended the defendant and, during a search incident to arrest, found marijuana and drug paraphernalia on the defendant. We stated:
        In looking at the totality of the circumstances, it is reasonable for a police officer to suspect that someone is armed and dangerous when that person appears agitated, is reluctant to answer when asked whether he is armed, and not only refuses to be searched for weapons, but also flees when he is about to be searched. Officer Norton's search of defendant was thus reasonable as a means of protecting himself from being assaulted by defendant.

Id. at 228, 612 S.E.2d at 377.
    In the case at hand, Officer Timberlake observed defendant was concealing something in his hand and when Officer Timberlake, not knowing whether the item might be a weapon, asked defendant to open his hand, defendant refused and attempted to flee. Prior to thatpoint Officer Timberlake observed nervous and furtive behavior on defendant's part. Based upon these circumstances, we conclude Officer Timberlake had reasonable suspicion to seize defendant.
    For the foregoing reasons, the order denying the motion to suppress is affirmed.
    Chief Judge MARTIN and Judge JACKSON concur.
    Report per Rule 30(e).

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