Opinion
No. 07-649.
Filed March 4, 2008.
Cumberland County No. 06CRS56336.
Appeal by Defendant from judgment entered 27 February 2007 by Judge Thomas H. Lock in Cumberland County Superior Court. Heard in the Court of Appeals 11 February 2008.
Attorney General Roy Cooper, by Special Deputy Attorney General Joseph Ellis Herrin, for the State. Christy E. Wilhelm for Defendant-Appellant.
I. FACTS and PROCEDURE
After noting a timely appeal to the denial of her motion to suppress, Defendant Tonia Lynette Dockery pled guilty to possession of cocaine and possession of drug paraphernalia . By judgment entered 27 February 2007, Judge Thomas H. Lock sentenced Defendant to a suspended term of confinement of six to eight months. We now address Defendant's appeal from the denial of her suppression motion.
At approximately 1:50 a.m. on 5 May 2006, Officer W.D. Watson of the Fayetteville Police Department stopped a burgundy van on Amanda Circle. Officer Watson spoke with the driver, Michael Scott Charles, who indicated that he was "in the area looking for Wandabecause he usually picks her up to have sex with her in his van." Mr. Charles was not a resident of the area.
At approximately 7:55 p.m. that same day, Officer Watson responded to a call regarding a suspicious vehicle, possibly linked to a breaking and entering at a nearby house, parked at the dead end of Coinjock Street, one street over from Amanda Circle. Upon arrival, Officer Watson recognized the vehicle as the burgundy van he had stopped earlier that morning. He observed Mr. Charles seated in the driver's seat, and Defendant slouched in the passenger seat.
Officer Watson approached the vehicle and asked Defendant whether her name was Wanda, to which she answered affirmatively. Officer Watson asked Defendant what her last name was, and she responded "McRae." However, a short time later, when the officer again asked Defendant her last name, she responded "Johnson." When the officer asked her for her date of birth, she gave three different dates of birth. Defendant's words were slurred and she appeared to be under the influence of some substance. Officer Watson then asked Defendant to step out of the vehicle. Before getting out of the car, she told the officer that she was "wasted." As Defendant stepped out of the van, a crack pipe fell to the ground. Defendant attempted to hide it with her foot. Officer Watson seized the crack pipe and observed that it contained cocaine residue. He then searched Defendant and, after finding crack cocaine in her pocket, arrested her.
On appeal, Defendant contends the trial court erred by denyingher motion to suppress the crack pipe and crack cocaine recovered by Officer Watson because the evidence was seized pursuant to an illegal search and seizure, in violation of her rights under the Fourth Amendment to the United States Constitution.
II. DISCUSSION
In reviewing a trial judge's ruling on a motion to suppress, we determine only whether the trial court's findings of fact are supported by competent evidence, and whether those findings of fact support the trial court's conclusions of law. State v. Pulliam, 139 N.C. App. 437, 533 S.E.2d 280 (2000).
In denying Defendant's motion to suppress, the trial court made the following relevant findings and conclusions:
[U]nder the facts of this case, that Officer Watson did possess a reasonable and articulable suspicion sufficient to justify an investigatory stop of the vehicle driven by Michael Scott Charles at or about — or, the vehicle in which he was parked . . . at about 7:55, on May 5, 2006; and that that suspicion was based, in large part, upon the fact that the officer had stopped this very same vehicle at 1:50 a.m. that same day on a nearby street, specifically Amanda Circle, in an area known for drug activity and prostitution; and, that the driver at that time had said that he was looking for a woman named Wanda, with whom he wanted to have sex.
Having made the investigatory stop of the vehicle, I will find that he certainly was within his right to ask the passenger to get out of the vehicle; that he did have probable cause to charge her with the possession of the crack pipe.
. . . .
And that he certainly had the right to not only frisk her person, but to search her incident to the arrest; and, that, uponfinding the crack cocaine upon her — or, what he believed to be crack cocaine on her person, he certainly had the right to — or, he had probable cause to charge her with that offense; and, accordingly, I will deny the defendant's motion to suppress.
A thorough review of the record reveals the trial court's findings of fact are supported by competent evidence, and thus, are conclusive on appeal. However, we conclude the facts do not support the trial court's conclusion of law that an "investigatory stop" occurred. Nonetheless, Defendant is not entitled to relief because Officer Watson did not violate Defendant's constitutional rights when he approached the van and engaged Defendant in conversation.
The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]" U.S. Const. amend. IV. The Constitution does not prohibit all searches and seizures; it only protects against unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 4 L. Ed. 2d 1669 (1960). Furthermore, not every police encounter warrants Fourth Amendment scrutiny. State v. Harrell, 67 N.C. App. 57, 312 S.E.2d 230 (1984). Pursuant to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968), and its progeny, a three-tiered standard has developed by which to measure the need to investigate possible criminal activity against the intrusion on individual freedom which the investigation may entail:
(1) Communication between police and citizens involving no coercion or detention are outside the scope of thefourth amendment.
(2) Seizures must be based on reasonable suspicion.
(3) Arrests must be based on probable cause.
Harrell, 67 N.C. App. at 60-61, 312 S.E.2d at 234.
Accordingly, "a seizure does not occur simply because a police officer approaches an individual and asks a few questions." Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398 (1991). Thus, "even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual's identification, and request consent to search his or her luggage[.]" Id. at 434-35, 115 L. Ed. 2d at 398 (internal citations omitted). Such encounters are considered consensual and no reasonable suspicion is necessary. Bostic, 501 U.S. 429, 115 L. Ed. 2d 389. "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." Terry, 392 U.S. at 19, n. 16, 20 L. Ed. 2d at 905, n. 16. The test for determining whether a seizure has occurred is whether, under the totality of the circumstances, a reasonable person would have felt that he was not free to decline the officer's request or to otherwise terminate the encounter. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389.
In State v. Brooks, 337 N.C. 132, 446 S.E.2d 579 (1994), the North Carolina Supreme Court determined that reasonable suspicion was not required for an SBI agent to approach the defendant in hisvehicle and to engage in discussion with him because the agent's approach did not amount to an investigatory stop or seizure. In Brooks, an SBI agent arrived at a nightclub to execute a search warrant when he observed a green Volkswagen car backed in the parking lot with a male sitting in the driver's seat. The agent got out of his car and walked over to defendant's car, shined his flashlight on the defendant in the car, and observed an empty unsnapped holster on the passenger's seat. He asked the defendant where his gun was, and the defendant replied that he was sitting on it. The agent then asked the defendant to give it to him. Id.
Although the trial court concluded that the officer had "a reasonable suspicion of criminal activity that justified his action . . . when he exited his patrol car and walked over to the defendant's vehicle to investigate[,]" id. at 139, 446 S.E.2d at 584, the Supreme Court held that no reasonable suspicion was required because the conduct of the officer "did not amount to an investigatory `stop' and certainly was not a `seizure.'" Id. at 142, 446 S.E.2d at 586.
[A]t the time of [the agent's] question concerning the location of the defendant's gun, [the agent] had not done anything to restrict the defendant's movement in any manner. [The agent] did not "stop" the defendant; he merely walked up to the defendant who was sitting in his vehicle and shined a light into the interior. At that point, [the agent] had made no show of force or done anything else to indicate to a reasonable person in the defendant's position that he was not free to leave or otherwise terminate the encounter. Therefore, the defendant had not been "seized" or "stopped" for Fourth Amendment purposes at that point.
Upon seeing the empty holster on the seat beside the defendant, [the agent] acted quite reasonably and properly in asking the defendant about the location of the defendant's gun. Again, nothing in the evidence before the trial court tended to show that [the agent] asked this question in a threatening manner or made any show of force which would have caused a reasonable person to believe that he or she was not free to go or otherwise terminate the encounter. Nor did any evidence before the trial court indicate that the defendant's answer that he was sitting on the gun was other than voluntary. Therefore, the defendant had not been "seized" or "stopped" at that point[.]
Id. at 143-44, 446 S.E.2d at 586-87 (citation omitted).
Similarly, here, the evidence before the trial court tended to show that Officer Watson did not stop the van, but rather approached the van when it was parked at the dead end of the street. Officer Watson spoke to the driver of the car, and also asked Defendant several questions regarding her identity while she was sitting in the passenger's seat. Officer Watson subsequently asked Defendant to step out of the car. Defendant had the right to refuse to cooperate with any requests made, but chose not to do so. There was no evidence tending to show either that Officer Watson physically applied any force or that Defendant submitted to any show of force. Nor was there any indication from the evidence that a reasonable person in Defendant's position would have believed that he or she was not free to leave or otherwise terminate the encounter. Thus, Officer Watson's conduct did not amount to an investigatory stop or a seizure. Accordingly, no reasonable suspicion was required for Officer Watson's approach and questioning of Defendant. Even though the trial court's reasoning in denying Defendant's motion to suppress was errant, "[a] correct decision of a lower court will not be disturbed on review simply because an insufficient or superfluous reason is assigned." State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650, cert. denied, 484 U.S. 916, 98 L. Ed. 2d 224 (1987). "The crucial inquiry for this Court is admissibility and whether the ultimate ruling was supported by the evidence." Id. Accordingly, although the trial court erred in determining that an investigatory stop requiring reasonable suspicion occurred, the trial court did not err in denying Defendant's motion to suppress evidence gathered as a result of Officer Watson's encounter with Defendant. Accordingly, Defendant's assignment of error is overruled.
Furthermore, assuming arguendo, that Officer Watson's request that Defendant exit the car amounted to a "seizure," the trial court correctly concluded that the officer had reasonable articulable suspicion to do so.
In order to effect a warrantless "seizure" of an individual, "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Terry, 392 U.S. at 21, 20 L. Ed. 2d at 906. "A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed. 2d 612, 617 (1972).
Here, Officer Watson, a police officer with more than two years of experience and specialized training in drug interdiction, was assigned to patrol the Amanda Circle area, "known as a really high-drug area, high-crime area." The officer had come into contact with the burgundy van driven by Mr. Charles in the Amanda Circle area twice in less than twenty-four hours; first, in the early hours of 5 May 2006 when Mr. Charles was slowly driving around the neighborhood alone "looking for Wanda . . . to have sex with her in his van," and second, in the evening of 5 May, when the officer was dispatched to investigate the van, possibly linked to a breaking and entering at a nearby house, parked at the end of a dead-end street. When the officer approached the van the second time, the driver was accompanied by a female, Defendant, slouched in the front seat. Furthermore, Defendant, who slurred her words and appeared to be under the influence of some substance, admitted to Officer Watson that her first name was Wanda, suspiciously gave two different last names and three different birth dates when asked, and admitted to Officer Watson that she was "wasted."
We find these facts, viewed as a whole from Officer Watson's perspective, sufficient to create a reasonable suspicion that criminal activity might have been afoot: namely, prostitution or illegal drug activity. Accordingly, Officer Watson had the authority to make an investigatory stop of Defendant by asking her to step out of the car. Defendant's assignment of error is thus overruled. Defendant also contends that the trial court erred by entering judgment based upon insufficient evidence to support the offenses charged. She argues that had the crack pipe and crack cocaine recovered by Officer Watson been suppressed, the remaining evidence would have been insufficient to support her conviction. Having held the trial court properly denied Defendant's motion to suppress, we reject this contention.
The order and judgment are
Affirmed.
Judges TYSON and GEER concur.
Report per Rule 30(e).