Opinion
No. COA09-837
Filed 18 May 2010 This case not for publication
Appeal by defendant from order entered on 13 April 2009 by Judge Alan Z. Thornburg in Superior Court, Henderson County. Heard in the Court of Appeals 19 November 2009.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Robert T. Hargett, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant-appellant.
Henderson County Nos. 06 CRS 50398, 07 CRS 53, 06 CRS 50397, 06 CRS 50399.
Demetrius Miguel Williams ("defendant") appeals from the trial court's denial of his motion to suppress. We conclude that the trial court had adequate grounds for denial of defendant's motion to suppress and affirm the trial court's ruling.
I. Background
On or about 8 January 2007, defendant was indicted for one count of possession of marijuana up to one-half ounce, one count of possession with intent to sell or deliver cocaine, one count of possession of drug paraphernalia, and attaining the status of a habitual felon. On 10 May 2007, defendant moved to suppress statements made by defendant and certain physical evidence obtained as a result of a stop and search conducted by police on 17 January 2007. Following a suppression hearing on 20 July 2007, the trial court denied defendant's motion. After preserving his right to appeal the denial of his motion to suppress, defendant on or about 28 August 2007 pled guilty to one count of possession of marijuana up to one-half ounce, one count of possession with the intent to sell or deliver cocaine, one count of possession of drug paraphernalia, and having attained the status of a habitual felon . The trial court found one mitigating factor, that defendant has accepted responsibility for his actions at an early stage of the proceeding, and no aggravating factors. The trial court sentenced defendant to one consolidated term of 80 to 105 months imprisonment.
Defendant's plea arrangement and the trial court's 10 September 2007 order state that defendant pled guilty to possession of cocaine pursuant to N.C. Gen. Stat. § 90-95(a)(3). However, this Court on appeal in State v. Williams, ___ N.C. App. ___, ___, 673 S.E.2d 394, 395 (2009), in its description of the facts, stated that defendant had pled guilty to "possession with the intent to sell or deliver cocaine" pursuant to N.C. Gen. Stat. § 90-95(a)(2). As defendant did not cite error to this discrepancy and defendant's actual convictions are not essential to this Court's conclusion regarding the trial court's ruling on defendant's motion to suppress, we will not address this discrepancy. See N.C. R. App. P. 10(a) ("[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal[.]").
On appeal, this Court held that the trial court properly found that Officer Smith had a "reasonable articulable suspicion to conduct an investigatory stop of defendant[,]" but "improperly applied the reasonable articulable suspicion standard rather than probable cause in determining whether the seizure of the contraband drugs was justified under the Fourth Amendment." State v. Williams, ___ N.C. App. ___, ___, 673 S.E.2d 394, 397-98 (2009). The Court reversed the portion of the trial court's denial of defendant's motion to suppress that "concluded that the officer properly seized the crack cocaine cookie" and remanded for further findings. Id. at ___, 673 S.E.2d at 399.
This case came on for rehearing at the 8 April 2009 Criminal Session of Superior Court, Henderson County. Officer Nathan Smith of the Hendersonville Police Department was the only witness to testify for the State. Defendant did not testify.
Officer Smith testified to the following facts: On 17 January 2006, he was on patrol in Hendersonville, North Carolina. A robbery had occurred in a particular neighborhood in Hendersonville around 1 p.m. Officer Smith had been given a description of the perpetrator. Minutes after the robbery and less than a half a mile from the crime scene, Officer Smith saw defendant walking in the middle of the roadway with his hands in his pockets. Based on the description Officer Smith was given of the robbery suspect, he stopped his patrol car and asked defendant to take his hands out of his pockets. Defendant was wearing a big pullover or zip-up sweatshirt with a big pocket in the front of the shirt. Officer Smith testified that at his command to take his hands out of his pockets, defendant "stopped walking and his whole body locked up," and defendant was not compliant with Officer Smith's command. Officer Smith feared that this was the person who had committed the robbery and that he may be armed. Officer Smith then drew his gun and "issued several strong commands to take his hands out of his pockets." Defendant then began walking towards Officer Smith's patrol vehicle, taking things out of his pockets and placing them on the back of the patrol vehicle, and in the process, exposed a part of a plastic baggy that was still inside his pocket. Officer Smith placed defendant's arm on his patrol car and started frisking the big front pocket on defendant's shirt for weapons. As Officer Smith's hand brushed across this pocket, he did not feel any weapons but "did feel what was inside the plastic baggy[.]" Officer Smith testified that the object in the plastic baggy "was crumbly, it was round, maybe quarter of an inch thick, maybe two inches across, and there was also small bits, little squares and [he felt] chunks inside" the plastic baggy as he ran his hand across defendant's pocket. Without any manipulation or squeezing of the plastic baggy, Officer Smith "immediately identified and associated that with being a crack cookie." Officer Smith testified that "a crack cookie is when cocaine is reduced down and it forms a big glob and it hardens and becomes a crack cookie, which the pieces are broken off to be sold individually as crack rocks." Officer Smith stated that the area he was in when he stopped defendant was a "high-crime area" and he had previously investigated "drug activity in that neighborhood." Officer Smith further testified that he knew that the object in the plastic baggy was a crack cocaine "cookie" based on his training in drug investigations as a police officer, his past experience in drug investigations, his knowledge of how cocaine is packaged and carried, and how the plastic baggy felt when he ran his hand across defendant's pocket.
At the conclusion of the suppression hearing, the trial court held that there was sufficient evidence that Officer Smith "had probable cause to make the seizure under the plain feel doctrine" and denied defendant's motion to suppress. In its order following the suppression hearing, the trial court made the following findings of fact:
1. That Officer Smith conducted a lawful Terry frisk of the defendant for firearms;
2. That the officer observed part of a plastic [baggy] coming out of the defendant's pocket while the defendant removed some items from his pocket;
3. That during the frisk of the defendant's pocket for firearms, the officer felt the plastic bag and its contents;
4. That the officer knew the contents of the pocket contained a crack cocaine cookie in the plastic bag;
5. That the officer's belief the item was contraband was certain, immediate and knowing;
6. That the officer did not manipulate, squeeze or further search the item upon his touch in order to form his opinion that the item was contraband.
The trial court went on to conclude that "based on the above findings of fact, the evidence presented, arguments of counsel and the law applicable to this issue, the Court finds that the officer had probable cause to determine that the item he felt in the defendant's pocket was in fact contraband[,]" and "as a matter of law . . . the officer's seizure of the contraband in this case was lawful under the plain feel doctrine, as the officer had probable cause to make the seizure and denies the defendant's Motion to Suppress." Defendant gave notice of appeal in open court.
II. Motion to Suppress
When this Court evaluates "a trial court's ruling on a motion to suppress, its findings of fact will be binding on appeal if supported by competent evidence." State v. Hensley, ___ N.C. App. ___, ___, 687 S.E.2d 309, 311 (2010) (citations and quotation marks omitted). "The trial court's findings of fact must support the conclusions of law and the conclusions of law are reviewable de novo." Id.
Defendant first contends that the trial court's findings of fact Nos. 4 and 5 are not supported by evidence in the record, which state:
4. That the officer knew the contents of the pocket contained a crack cocaine cookie in the plastic bag;
5. That the officer's belief the item was contraband was certain, immediate and knowing[.]
Officer Smith testified regarding how he discovered the crack cocaine on defendant:
Assistant District Attorney: And you said that as you patted him down you felt what was in that plastic baggy; is that correct?
Officer Smith: Yes.
Q: What did you feel?
A: Well, I felt it was an object, it was crumbly, it was round, maybe quarter of an inch thick, maybe two inches across, and there was also small bits, little squares and chunks inside it as I ran my hand across it. Of course I felt the bag scrunching as well as I went across it, and I immediately identified and associated that with being a crack cookie.
. . .
Q: And how did you know that what you felt was a crack rock?
A: Just based on what I had seen in the past and how it's packaged and how it's carried and how it felt when I ran across it.
Q: And based on your experience in the past and training with pat-downs, did that assist in your opinion that [it] . . . was a crack cookie?
A: Yes
Q: And did you form an opinion at the time that you felt it what the substance was?
A: I did.
Q: And what was your opinion?
A: I immediately associated that with crack cocaine.
Q: Did you have to manipulate the bag or what you felt or squeeze it or do any further search of the object you felt to figure out what it was?
A: No.
Here, Officer Smith testified that as he was patting defendant down, he felt a plastic baggy in defendant's front pocket, with an object in that plastic baggy, and immediately recognized that object as a crack cocaine "cookie." Therefore, as the trial court's findings of fact are supported by competent evidence in the record, they are binding on appeal. Id., at ___, 687 S.E.2d at 311. "The remaining findings of fact not challenged on appeal `are deemed to be supported by competent evidence and are binding on appeal.'" Id. at ___, 687 S.E.2d at 314. Therefore, defendant's argument is overruled.
Defendant next contends that the trial court erred by holding that there was probable cause to justify seizure of the plastic baggy in defendant's pocket because the "totality of the circumstances" does not support this conclusion.
This Court has previously held that "when a police officer observes unusual behavior which leads him to conclude, in light of his experience, that criminal activity may be occurring and that the person may be armed and dangerous, the officer is permitted to conduct a pat-down search to determine whether the person is carrying a weapon." State v. Robinson, 189 N.C. App. 454, 458, 658 S.E.2d 501, 504 (2008) (citing Terry v. Ohio, 392 U.S. 1, 30, 20 L.Ed. 2d 889, 911 (1968)).
Terry established that `[a] police officer may effect a brief investigatory seizure of an individual where the officer has reasonable, articulable suspicion that a crime may be underway.' State v. Barnard, 184 N.C. App. 25, 29, 645 S.E.2d 780, 783 (2007). The purpose of the officer's frisk or pat-down is for the officer's safety; as such, the pat-down `is limited to the person's outer clothing and to the search for weapons that may be used against the officer.' State v. Shearin, 170 N.C. App. 222, 226, 612 S.E.2d 371, 376 (2005). If during `[a] limited weapons search, contraband or evidence of a crime is of necessity exposed, the officer is not required by the Fourth Amendment to disregard such contraband or evidence of crime.' State v. Streeter, 17 N.C. App. 48, 50, 193 S.E.2d 347, 348 (1972).
Id. at 458, 658 S.E.2d at 504. Under the "plain feel" doctrine, "[i]f a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context." Minnesota v. Dickerson, 508 U.S. 366, 375-76, 124 L.Ed. 2d 334, 346 (1993). An object is immediately apparent if the police have "probable cause to believe that what they have come upon is evidence of criminal conduct." State v. Wilson, 112 N.C. App. 777, 782, 437 S.E.2d 387, 390 (1993). "Probable cause is a `common sense, practical question' based on `the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" Id. (citation omitted). "The standard to be met when considering whether probable cause exists is the totality of the circumstances." Id. (citation omitted). "[U]nder the totality of the circumstances test, a reviewing court must determine whether the evidence as a whole provides a substantial basis for concluding that probable cause exists." State v. Sinapi, 359 N.C. 394, 398, 610 S.E.2d 362, 365 (2005) (citation and quotation marks omitted).
Here, the totality of the circumstances establish that Officer Smith had probable cause to seize the plastic baggy in defendant's pocket. Officer Smith testified that as part of his initial field training when he was hired to become a patrol officer in 2005, he participated in drug-related investigations and specifically, crack cocaine arrests and had opportunities to see what crack cocaine looked like, handled crack cocaine, and saw how it was packaged. By January 2006, when Officer Smith stopped defendant, Officer Smith had arrested suspects for possession of crack cocaine and participated in numerous drug arrests, citations, and assisted other officers in drug related investigations. Officer Smith testified that he was familiar with the difference between powder and crack cocaine and how crack cocaine could be produced in different quantities, weights and forms and was familiar with the way crack cocaine sometimes crumbles into smaller pieces. Officer Smith testified that the neighborhood in which he stopped defendant was in a "high-crime area" in which he had previously investigated drug activity. Officer Smith testified that when he stopped defendant in the middle of the roadway and told him to take his hands out of his pockets, defendant immediately stopped walking but was resistant to his commands to take his hands out of his pockets. Without a command from Officer Smith, defendant started walking towards Officer Smith's patrol vehicle, taking items out of his pockets as he walked, exposing part of the plastic baggy still inside his pocket. When Officer Smith conducted a pat-down on defendant, he brushed across defendant's big front pocket but did not feel any weapons, but he "did feel what was inside the plastic baggy[.]" Officer Smith gave a detailed description of the object in the plastic baggy. Further, Officer Smith testified that "[a] crack cookie is when cocaine is reduced down and it forms a big glob and it hardens and becomes a crack cookie, which the pieces are broken off to be sold individually as crack rocks." Officer Smith testified that "based on what I had seen in the past and how it's packaged and how it's carried and how it felt when I ran across it[,]" he "immediately associated that with crack cocaine[,]" without any manipulation or squeezing of the plastic baggy inside defendant's pocket.
Given the totality of the circumstances and facts within the knowledge of Officer Smith, including his experience in drug-related investigations, his familiarity with the different forms of crack cocaine, his knowledge that defendant was stopped in a high-crime area known for drug activity, defendant's resistant behavior, and the shape and feel of the object in the plastic baggy, probable cause existed for Officer Smith to believe that the object he felt during his pat down search was cocaine. Therefore, the crack cocaine "cookie" in defendant's pocket was "immediately apparent" to Officer Smith. Wilson, 112 N.C. App. at 782, 437 S.E.2d at 390.
Defendant citing State v. Briggs, 140 N.C. App. 484, 536 S.E.2d 858 (2000) argues that the totality of the circumstances do not provide a basis for concluding that probable cause existed because (1) Officer Smith did not have any prior interactions or know defendant prior to this stop; (2) defendant's conduct did not indicate that he was involved in drug activity; and (3) Officer Smith saying the it was "immediately apparent" is insufficient without something more.
In Briggs, the Court addressed the application of the plain feel doctrine in the context of a police pat down when "contraband is found on the person of defendant in a container whose shape itself does not reveal its identity as contraband." 140 N.C. App. at 489, 536 S.E.2d at 861. In Briggs, the officer, during his patdown of defendant, "felt a hard, cylindrical shape in [defendant's] pocket and it felt like a cigar holder[,]" and ultimately pulled out of defendant's pocket the cylindrical shape object, which was a cigar holder, containing ten rocks of crack cocaine inside it, and seized this evidence. Id. at 486-87, 536 S.E.2d at 859. In its application of the plain feel doctrine to determine whether the officer had probable cause to seize this evidence, this Court, applying the totality of the circumstances test, examined "numerous facts and circumstances surrounding the officer's seizure[,]" including the time defendant was stopped; the area defendant was stopped in; whether the officer had previously arrested defendant for possession of a "controlled substance or knew defendant was on probation for such an arrest at the time of the stop[;]" what the officer smelled and was aware of during the stop; the officer's observation of defendant during the stop; and the officer's experiences in prior drug arrests. Id. at 493-94, 536 S.E.2d at 863-64. After considering these facts and circumstances, this Court went on to hold that the officer "had sufficient information" to establish probable cause "that the item he detected contained contraband[,]" and the seizure of the cigar holder was lawful. Id. at 494, 536 S.E.2d at 864. Defendant argues that the totality of the circumstances test is limited to the evaluation of the facts and circumstances in Briggs, and because there was not evidence of those specific factors here, the trial court erred in concluding that the seizure of the plastic baggy was lawful.
Here, unlike Briggs, the crack cocaine "cookie" was not discovered on defendant's person "in a container whose shape did not reveal itself to be identified as contraband," id. at 489, 536 S.E.2d at 861, such as a cigar holder, but in an ordinary plastic baggy that allowed Officer Smith to immediately identify its contents. Also contrary to defendant's contentions, "the totality of the circumstances test" requires this Court to review the evidence presented in each individual case and make a determination of whether that specific evidence before it "provides a substantial basis for concluding that probable cause exists." Sinapi, 359 N.C. at 398, 610 S.E.2d at 365. In Briggs, the Court examined "the numerous facts and circumstances surrounding the officer's seizure" in that specific case and held that the officer "had sufficient information" to establish probable cause "that the item he detected contained contraband." 140 N.C. App. at 493-94, 536 S.E.2d at 863-64. Similarly, here, we have examined the circumstances presented to Officer Smith and concluded that the totality of the circumstances established that Officer Smith had probable cause to believe that the item he felt was contraband and therefore, the object was "immediately apparent" to Officer Smith. Accordingly, we are not persuaded by defendant's argument.
Defendant citing State v. Beveridge, 112 N.C. App. 688, 436 S.E.2d 912 (1993), affirmed, 336 N.C. 601, 444 S.E.2d 223 (1994), argues that "Officer's Smith's seizure of the plastic bag from [defendant's] pocket exceeded the scope of a Terry frisk in violation of [defendant's] Fourth Amendment rights." As Beveridge is distinguishable from the facts in this case, we are not persuaded by defendant's contentions.
Similar to the object discovered by officers in Briggs, in Beveridge, the officer, during his pat down of defendant, felt in defendant's front pocket a "rolled up plastic bag, it was a large size plastic bag rolled up[;] [i]t was cylindrical in his pocket long." 112 N.C. App. at 689, 436 S.E.2d at 913. In its application of the plain feel doctrine, this Court noted that the officer's testimony "indicates that he did not know that the bag contained contraband until he asked the defendant to turn out his pockets and show him the contents in his hands[,]" and therefore, it "was not immediately apparent to him that the [baggy] held contraband." Id. at 696, 436 S.E.2d at 916. This Court went on to hold that "the cocaine seized from the defendant in this case was the fruit of a constitutionally impermissible search." Id.
Here, unlike Briggs or Beveridge, the crack cocaine "cookie" was not discovered on defendant's person in a container which concealed the shape of what was inside it. There is no indication from the facts that the plastic baggy in defendant's pocket was rolled up, like Beveridge, or that Officer Smith did not recognize the object as contraband until he pulled it out of defendant's pocket. Id. at 696, 436 S.E.2d at 916. In fact, Officer Smith testified that when he ran his hand down defendant's pocket he immediately recognized that it was a plastic baggy containing a crack cocaine "cookie," without any manipulation or squeezing of the plastic bag. As the facts in Beveridge are distinguishable from the facts in this case, we are not persuaded by defendant's argument.
Defendant also argues that Officer Smith's testimony that the object in defendant's pocket was "immediately apparent" is not credible. However, for a motion to suppress evidence "[t]he trial court determines the credibility of the witnesses who testify, weighs the evidence, and determines the reasonable inferences to be drawn from therefrom." State v. Icard, 363 N.C. 303, 312, 677 S.E.2d 822, 828-29 (2009) (citations omitted). "If different inferences may be drawn from the evidence, the trial court decides which inferences to draw and which to reject." Id. Accordingly, we overrule defendant's contention. After careful review of the record, we hold that the findings of fact support the conclusions of law, Hensley, ___ N.C. App. at ___, 687 S.E.2d at 311, and therefore, the trial court properly denied defendant's motion to suppress.
Defendant finally contends that the marijuana and drug paraphernalia found during the search incident to defendant's arrest were also inadmissible as fruit of the poisonous tree. However, we have previously held that if "the trial court properly denied the motion to suppress, [then] the fruit of the poisonous tree doctrine is inapplicable." State v. Sutton, 167 N.C. App. 242, 250, 605 S.E.2d 483, 488 (2004), appeal dismissed and disc. review denied, 359 N.C. 326, 611 S.E.2d 847 (2005).
III. Conclusion
As the totality of the circumstances establishes that Officer Smith had probable cause to seize the object in defendant's pocket, we hold that the object in defendant's pocket was "immediately apparent" to Officer Smith and its seizure was lawful. Accordingly, we affirm the trial court's denial of defendant's motion to suppress.
AFFIRMED.
Judges HUNTER, JR. and ERVIN concur.
Report per Rule 30(e).