Opinion
No. COA03-1336
Filed July 6, 2004 This case not for publication
Appeal by defendant from order entered 8 October 2002 by Judge Henry E. Frye, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 15 June 2004.
Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State. Allen W. Boyer for defendant-appellant.
Guilford County No. 02 CRS 87385.
William Carr Goodwin (defendant) appeals an order entered 8 October 2002 denying his motion to suppress evidence found during execution of a search.
The State's evidence tends to show that on 9 June 2002, three officers of the Greensboro Police Department traveled to 812 Howard Street, Greensboro, North Carolina, after receiving information of the occurrence of drug-related activity and prostitution at that location. The officers had been instructed to conduct a "knock and talk" in an attempt to get someone in charge of the residence to give consent to search the premises.
The officers arrived at the residence in question at approximately 11:00 a.m. Officer M.D. Menshew knocked on the door of the house, and a male answered but stated that he was not the owner and would not let in the officers. The male did, however, state that he would get the owner out of bed. A few minutes later, Richard Wells, the owner of the residence, came to the door and gave the officers permission to come inside and search the premises.
Once inside of the residence, Officer Menshew observed three other men sitting in a front room. Officer Menshew asked whether there was any drug activity occurring in the house, to which Wells replied, "there was recreational type activity that was occurring on a regular basis-people smoking drugs." This statement was confirmed by the presence of what appeared to be marijuana residue in an ashtray on the coffee table. Officer Menshew then asked the men present if any of them had weapons or narcotics in their possession, to which defendant answered, "[n]ot that I know of." Based upon the officers' experience, however, they believed there to be weapons and/or narcotics present.
While Officer Menshew accompanied Wells to the bedroom to retrieve his identification, Officers Eric H. Rasecke and J.M. Miller remained with the other three men in the front room of the residence. Officer Rasecke asked one man, identified as Mr. Blakenship, if he minded being patted down for weapons, whereupon Blakenship replied in the affirmative and stood up to be frisked. A second man, identified as Mr. Gorson also submitted to a pat down when requested to do so. No weapons were felt during these pat-downs and both men returned to their seats.
When Officer Rasecke asked defendant if he would stand for a pat down by Officer Miller, defendant stood up and walked over to Officer Miller. Officer Miller patted down defendant's right side, coming across a box containing cigars, along with defendant's wallet, some cash, and an identification card. After removing the box and inspecting its contents, the items were returned to defendant, whereupon Officer Miller began to pat down defendant's left side. When Officer Miller reached defendant's waist, however, defendant stuck his hand into his left front pocket. Both Officer Miller and Officer Rasecke were concerned at this point that defendant was reaching for a weapon in his pocket.
When asked to remove his hand from his left pocket, defendant complied. Defendant, however, again placed his hand in his left pocket when Officer Miller attempted to pat down the pocket a second time. This time, when asked by Officer Miller to remove his hand, defendant refused. Concerned for their safety, the two officers attempted to handcuff defendant, and a struggle ensued.
Officers Rasecke and Miller, aided by Officer Menshew, eventually subdued defendant. Officer Miller then patted down defendant's left side pocket. The officer felt a large lump similar to a bag of rocks which, from his experience, he believed to be narcotics. The item was removed from defendant's left pocket and subsequently found to be crack cocaine.
Defendant was charged with possession with intent to sell and deliver cocaine. Prior to trial, defendant moved to suppress the evidence of cocaine found in his pocket. This matter was heard by Judge Lindsay R. Davis, Jr. in Guilford County Superior Court on 7 and 8 October 2002. Defendant did not present any evidence.
By order entered in open court on 8 October 2002, the trial court denied defendant's motion to suppress. Defendant, preserving his right to appeal the denial of his suppression motion, subsequently pled guilty to possession with the intent to sell and distribute cocaine. Defendant now appeals the denial of his motion to suppress.
On appeal, defendant argues that the trial court erred in denying his motion to suppress the cocaine seized from his person during the search of his person. Specifically, defendant contends that the search and seizure violated his "right to privacy under the United States Constitution."
The Fourth Amendment, made applicable to the State through the Fourteenth Amendment, protects the citizenry from unlawful searches and seizures. State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). However, consensual searches present a "special situation excepted from the warrant requirement, and a search is not unreasonable within the meaning of the Fourth Amendment when lawful consent to the search is given." Id.; see also N.C.G.S. § 15A-221 (2003) (providing that a law enforcement officer may conduct a search and seizure, without a warrant or other authorization, if consent to the search is given). Consent to search must be freely and intelligently given to ensure that the evidence obtained during that search is admissible. State v. Graham, 149 N.C. App. 215, 218, 562 S.E.2d 286, 288 (2002), disc. review denied, 356 N.C. 685, 578 S.E.2d 315 (2003). However, "the question whether a consent to a search was in fact `voluntary' or was the product of duress or coercion, expressed or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L.Ed.2d 854, 862-63 (1973). In Graham, this Court noted that consent to search as defined in N.C. Gen. Stat. § 15A-221(b) "need not be in writing nor orally made. Rather, the use of nonverbal conduct intended to connote an assertion is sufficient." 149 N.C. App. at 219, 562 S.E.2d at 288.
In reviewing a ruling on a motion to suppress, this Court is generally limited to a determination of "whether the trial court's findings of fact are supported by competent evidence, and whether these findings of fact support the court's conclusions of law." State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282 (2000). Here, however, our review is further limited as defendant failed to specifically assign error to the trial court's findings. Though defendant attempts to present arguments in his brief regarding several of the trial court's findings, they are inadequate to preserve the sufficiency of the evidence to support those findings. See State v. Perry, 316 N.C. 87, 107, 340 S.E.2d 450, 462 (1986) ("when no exceptions are made to separate findings of fact they are presumed to be supported by competent evidence"). The trial court's findings are, therefore, binding upon this Court on appeal. Our only question is whether the trial court's findings are sufficient to support its conclusions of law.
Here, the trial court made some nineteen findings of fact consistent with the evidence set out above. Most notably, the trial court found as follows:
11. The defendant was seated on the couch in the living room. He was asked by either Officer Rasecke or Officer Miller to stand and to consent to pat down.
12. The defendant stood, moved three to four feet toward Officer Miller, who began a pat down search of the defendant's right side. Officer Miller then proceed[ed] with [the] pat down search on the defendant's left side. Officer Miller felt something in the defendant's left front pocket that caused [defendant] to "lurch" back.
13. The defendant then placed his left hand in his left front pocket.
14. Officer Miller asked the defendant to remove his left hand from the pocket and he did so, but then replaced it. Officer Miller asked the defendant to remove his hand and the defendant refused several times.
15. Officer Miller tried physically to remove the defendant's hand from his left front pocket and the defendant resisted.
16. Officer Rasecke joined Officer Miller and the two struggled with the defendant trying to secure his arms and hands.
17. Officer Menshew heard the commotion and returned to the living room. Officer Menshew assisted Officers Miller and Rasecke and together they ultimately were able to place handcuffs on the defendant with his hands behind his back.
18. Officer Miller then felt the defendant's left front pocket and felt what, based on training and experience, was a quantity of rock-like substance, which he believed to be crack cocaine.
19. Officer Miller removed the contents of the defendant's left front pocket, including a quantity of rock-like substance that appeared to be crack cocaine, and which was later confirmed by laboratory testing to be such.
Based upon the findings, the trial court made the following conclusions:
1. That the officers had consent to enter the premises.
2. That the officers had non-verbal consent to conduct Terry-type searches of the individuals present.
3. That the officers also had articulable reasonable suspicion of illegal activity at the residence and were justified in conducting Terry-type searches of the individuals present.
4. That the contents of the defendant's left front pocket were readily apparent to Officer Miller to be illegal contraband
5. That the evidence that is the subject of this motion to suppress was obtained pursuant to a lawful limited search of the defendant's person.
On the foregoing findings, we conclude that the trial court's findings support its conclusion that defendant non-verbally consented to the pat-down search, as requested by the officers. Further, even if, as he contends, defendant did withdraw his consent to the search, under the circumstances here: where the house was reportedly being used for prostitution, drug-related arrests had been made earlier that day, and the owner admitted to "recreational type" drug activity occurring on the premises, we conclude there existed sufficient circumstances to give the officers reasonable, articulable suspicion that criminal activity was afoot, so as to justify "a carefully limited search of the outer clothing of [defendant] in an attempt to discover weapons which might be used to assault [the officer]." Terry v. Ohio, 392 U.S. 1, 30, 20 L.Ed.2d 889, 911 (1968); see State v. Butler, 331 N.C. 227, 234, 415 S.E.2d 719, 723 (1992) (providing that an officer is entitled to conclude that a person reasonably suspected of involvement in drug traffic might be armed and could lawfully perform a limited frisk to discover weapons on the defendant). To that end, when Officer Miller felt what he thought, based upon his years of training and experience, to be crack cocaine, the officer also had the authority to seize the contraband See In re Whitley, 122 N.C. App. 290, 293, 468 S.E.2d 610, 612 (1996) ("where the police officer is conducting a lawful pat down search for weapons and he discovers contraband, it is proper for the officer to seize the item discovered").
In light of all of the foregoing, the trial court properly denied defendant's motion to suppress.
Affirmed.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).