Opinion
No. COA00-511
Filed 15 May 2001
Appeal by defendant from judgment entered 13 July 1999 by Judge Henry W. Hight, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 18 April 2001.
Michael F. Easley, Attorney General, by Robin P. Pendergraft, Special Deputy Attorney General, for the State.
Kelly K. Daughtry, for defendant-appellant.
Defendant was charged and convicted on one count of trafficking in cocaine by possession and one count of trafficking in cocaine by transportation and was sentenced to two consecutive terms of imprisonment. Defendant appeals, assigning error to the trial court's denial of his motion at trial to suppress certain evidence and testimony. We find no error.
The evidence presented at trial tended to show the following. On the morning of 16 December 1998, Chad Thompson, a narcotics investigator with the Johnston County Interagency Drug Task Force (the task force), was conducting surveillance in the area surrounding the Herring Mobile Home Park (the mobile home park). Thompson was positioned in the woods about two steps from a dirt path located in the mobile home park and he was dressed incamouflage. At approximately 8:45 a.m., a two-tone beige 1980's Chevrolet Impala automobile arrived and parked in Lot W-3 in the mobile home park within Thompson's view. Defendant exited the car and walked on the dirt path until he was directly in front of Thompson. Defendant took a couple of steps into the woods directly across from Thompson. Defendant was wearing a brown jacket and a baseball cap. From a distance of six steps, Thompson witnessed defendant pull from the breast pocket of his jacket a plastic bag containing approximately two or three ounces of an off-white, rocky substance. Defendant dug a small hole and buried the bag. He then stood up and walked back to the trailer on Lot W-3. Thompson subsequently communicated what he had witnessed to Agent Angela Bryan.
Two days later, on the morning of 18 December 1998, Thompson met with Agent Bryan, Agent Fish, Officer Jones, Lieutenant Somogyi and Marty Benson, the captain of the task force. They went to the mobile home park where Thompson and Fish, both dressed in camouflage, positioned themselves in the same spot in the woods where Thompson had been two days earlier. Later that morning, Benson and the three other agents went into the mobile home park to a location approximately 150 to 200 yards from where Thompson and Fish were positioned. They spoke with several men, including defendant, for ten or fifteen minutes. The men consented to a pat-down search, but no controlled substances were found. Benson then told the men that he was going to get a drug dog to search the wooded area. Benson and the other agents then left and returned to their cars.
Thereafter, Thompson saw the same automobile pull into Lot W-3, and saw defendant come down the path wearing the same jacket and baseball cap. Defendant went to the precise spot where he had buried the bag two days earlier, dug up the bag, and placed it in his jacket pocket. He then walked back out to the car and drove away. Thompson and Fish contacted the others to tell them defendant was in his car leaving the mobile home park. The four other agents — Benson in an undercover van with Somogyi, and Bryan in a second vehicle with Jones — positioned their two cars near the entrance to the mobile home park. Benson spotted the Chevrolet occupied by a single individual and followed in the van for about a mile until the Chevrolet turned into a private drive. The Chevrolet and the undercover van were driving at approximately five to ten miles per hour and the van was approximately 25 to 30 feet behind the Chevrolet at this point. Immediately after Benson made the turn into the private drive behind the Chevrolet, the Chevrolet sped up. Then the driver threw a white plastic bag about the size of a baseball out of the passenger window into the wooded area to the side of the road. Benson then activated his blue light, but the Chevrolet did not stop. Benson activated his siren and the Chevrolet stopped. Benson instructed Somogyi to go search for the plastic bag that had been thrown into the woods. Bryan arrived at the scene alone, having dropped off Jones at the beginning of the private drive. Defendant got out of the car, the agents introduced themselves, patted down defendant, and handcuffed him, but defendant was not formally placed under arrest at this time. Benson then left defendant in Bryan's custody and went to search for the plastic bag. The plastic bag was found after approximately 15 minutes. Defendant was then placed under arrest.
During the trial, defendant moved to suppress the admission of evidence resulting from the investigative stop of defendant. The trial court denied defendant's motion. The trial court subsequently entered an order embodying its findings and conclusions on defendant's motion to suppress. The factual findings in the order pertaining to the incident on 18 December 1998 are an accurate summary of the evidence presented at trial, and defendant does not assign error to these findings. The order includes the following conclusions as a matter of law:
33. That the collective knowledge of the Officers (the acts witnessed by Agents Thompson and Fish) provided to Captain Benson and known to him at the time he began following the Defendant, the actions of the Defendant in trying to elude the Agents, speeding up when the blue light was turned on, discarding an object from his vehicle, all provide sufficient exigent circumstances from which the Officer could form the reasonable suspicion that criminal activity was being engaged in by the Defendant.
34. That such reasonable suspicion was sufficient to allow Captain Benson and Officer Somogyi to make an investigative stop of the Defendant's vehicle and to detain the Defendant for a reasonable period of time.
. . .
38. That none of the constitutional rights, either State or Federal, of the Defendant were violated by the stop of his motor vehicle or handcuffs being placed on the Defendant.
39. That the detention of the Defendant was for a legitimate purpose and was limited in scope and duration.
. . .
41. That the Defendant's objection should be overruled and denied.
In reviewing the denial of a motion to suppress, we must determine whether the findings of fact are supported by competent evidence in the record, and whether the findings, in turn, support the ultimate conclusion of law. See State v. Parker, 137 N.C. App. 590, 594, 530 S.E.2d 297, 300 (2000). Because defendant does not challenge the factual findings in the order, we need only determine whether the trial court's ultimate conclusion, denying defendant's motion to suppress, was supported by the findings of fact. We believe that the trial court reached the proper result in denying defendant's motion, but for the wrong reasons. Accordingly, we find no error.
"The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. This mandate is applicable to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081 (1961). The Fourth Amendment reasonableness requirement requires probable cause in order to justify a formal arrest. See Gerstein v. Pugh, 420 U.S. 103, 43 L.Ed.2d 54 (1975). In addition, any investigatory "seizure," whether it bears the cloak of a formal arrest or merely amounts to an investigatory detention, must be founded upon probable cause. State v. Cass, 55 N.C. App. 291, 296, 285 S.E.2d 337, 340, disc. review denied, 305N.C. 396, 290 S.E.2d 366 (1982). On the other hand, where officers merely conduct a brief investigative stop, all that is required is a reasonable suspicion of criminal conduct supported by specific and articulable facts, rather than the more stringent showing of probable cause. Parker, 137 N.C. App. at 597, 530 S.E.2d at 302. A seizure that is not based upon probable cause is unreasonable and violates the Fourth Amendment, and statements obtained during an unreasonable seizure of the person are not admissible. Cass, 55 N.C. App. at 295, 285 S.E.2d at 340.
Defendant does not argue that the circumstances were insufficient to justify the investigatory stop in the first place. However, defendant argues that by placing defendant in handcuffs for approximately 15 minutes while conducting a search for the plastic bag, the officers' conduct "exceeded the scope allowed for an investigative stop" and that their conduct was therefore a "seizure" requiring probable cause. Defendant further argues that prior to the time the bag was retrieved, there was no probable cause for defendant's arrest and, for this reason, the seizure was unreasonable and violated defendant's constitutional rights. Thus, defendant concludes, the denial of his motion to suppress constitutes reversible error.
The trial court appears to have determined that during the 15 minutes in which defendant was detained in handcuffs prior to being formally placed under arrest, no seizure of defendant occurred. Thus, the trial court concluded that only a showing of a reasonable suspicion of criminal conduct supported by articulable and objective facts was necessary to justify this period of detention, and not the higher standard of probable cause. We disagree with this conclusion. It is well-established that "whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." Terry v. Ohio, 392 U.S. 1, 16, 20 L.Ed.2d 889, 903 (1968). Similarly, our Supreme Court has stated that "[a]n arrest occurs when law enforcement officers interrupt the activities of an individual and significantly restrict his freedom of action." State v. Morgan, 299 N.C. 191, 200, 261 S.E.2d 827, 832-33, cert. denied, 446 U.S. 986, 64 L.Ed.2d 844 (1980).
In State v. Fletcher, 348 N.C. 292, 500 S.E.2d 668 (1998), cert. denied, 525 U.S. 1180, 143 L.Ed.2d 113 (1999), officers received a report of an automobile breaking and entering in front of a beauty salon, and a description of a suspect who had been seen walking in front of the salon looking suspicious. Thereafter, the officers spotted the defendant, who fit the description and was two blocks from the scene of the crime, and stopped and detained him. The officers at that time recognized the defendant as a suspect in an unrelated murder investigation. At approximately 9:15 p.m., the defendant was placed in the back of the patrol car for several minutes while the eye-witness was brought to the car. When she arrived, the eye-witness identified the defendant as the person she had seen walking in front of the salon. At 10:11 p.m., an officer drove the patrol car with defendant in the back seat to the salon so that a second eye-witness could attempt to identify the defendant. The second eye-witness did identify him by his clothing, and the defendant was then placed under arrest. Defendant was not placed in handcuffs at any time prior to his formal arrest.
Defendant appealed his conviction, and on appeal the Supreme Court first concluded that there had been sufficient justification for initially stopping and detaining the defendant because the officers were able to "point to specific and articulable facts that, with inferences from those facts, create[d] a reasonable suspicion that the [defendant had] committed a crime." Id. at 302, 500 S.E.2d at 674. However, the defendant argued that even if the initial stop was lawfully based on reasonable suspicion, the nature and length of the detention of the defendant — being held in the back of the patrol car from 9:15 p.m. to 10:11 p.m. — exceeded the permissible scope of an investigative stop and amounted to a seizure without probable cause. The Court determined that once the first eye-witness identified the defendant, the level of suspicion that defendant had committed the breaking and entering was raised from reasonable suspicion to probable cause. Id. at 304, 500 S.E.2d at 675. Thus, the Court concluded (1) that the defendant's detention in the patrol car for almost an hour, although not handcuffed, was a seizure requiring probable cause, but (2) that probable cause had, in fact, been shown. Id. at 303, 500 S.E.2d at 675.
Pursuant to the holding in Fletcher, we believe it is clear that the conduct here — handcuffing defendant and detaining him for approximately 15 minutes while officers searched for the bag — amounted to a seizure requiring probable cause. For this reason, we disagree with the trial court's implicit conclusion that the officers' conduct prior to defendant's formal arrest did not require a showing of probable cause. However, we further believe that Fletcher mandates a holding that there was, in fact, probable cause for a seizure of defendant.
The existence of probable cause depends upon "whether at that moment the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense." State v. Bright, 301 N.C. 243, 255, 271 S.E.2d 368, 376 (1980) (alterations in original) (quoting Beck v. Ohio, 379 U.S. 89, 91, 13 L.Ed.2d 142, 145 (1964)). Factors which a court may consider in determining whether probable cause exists include, but are not limited to: (1) the defendant's suspicious behavior, see State v. Bridges, 35 N.C. App. 81, 239 S.E.2d 856 (1978); (2) flight from the officer or the area, see State v. Zuniga, 312 N.C. 251, 322 S.E.2d 140 (1984); (3) the discovery of what appears to be illegal contraband in the possession of the defendant, see State v. Patrick, 88 N.C. App. 582, 364 S.E.2d 450 (1988); and (4) a defendant's apparent effort to conceal evidence by throwing what appears to be illegal contraband from a car after realizing police presence, see State v. Willis, 61 N.C. App. 23, 300 S.E.2d 420, modified and aff'd, 309 N.C. 451, 306 S.E.2d 779 (1983). A pertinent example of circumstances sufficient to establish probable cause is found in State v. Harrington, 283 N.C. 527, 196 S.E.2d 742, cert. denied, 414 U.S. 1011, 38 L.Ed.2d 249 (1973). In Harrington, the defendant accompanied officers out of a restaurant at the officers' request and then ran from the officers and tossed away an aluminum foil packet. The Supreme Court held that under these circumstances the officers had probable cause to believe that a crime was being committed in their presence and were justified in pursuing defendant, placing him under arrest, retrieving the aluminum foil packet, and searching defendant's automobile subsequent to his arrest. Because there was probable cause, the items found by the officers pursuant to the defendant's arrest, including a packet of heroin, were held admissible at trial.
Here, the unchallenged findings in the trial court's order establish the following facts: defendant was seen burying a plastic bag containing a rocky, off-white substance in the woods near the trailer home park on 16 December 1998; on 18 December 1998, immediately after being told by drug agents that a drug dog would be brought to the woods, defendant was seen digging up the plastic bag that had been buried in the woods and leaving the trailer home park in his car carrying the bag in his pocket; when defendant realized that he was being followed, he sped up and threw a white plastic bag out of the car window; when the drug agents first turned on their blue light, defendant did not stop his car; defendant only stopped his car once the agents turned on their siren. We believe that at the time defendant was handcuffed, the facts and circumstances within the drug agents' knowledge and of which they had reasonably trustworthy information were sufficient to warrant the reasonable belief that defendant had committed or was committing an offense. Because there was probable cause, the seizure of defendant was not unreasonable, and any evidence resulting from that seizure was admissible at trial. Although we reach this conclusion on different grounds than the grounds on which the trial court based its conclusion, our ultimate conclusion is nonetheless the same, and, therefore, we find no error in the trial court's denial of defendant's motion to suppress.
No error.
Judges WYNN and TIMMONS-GOODSON concur.