Opinion
No. COA03-1350
Filed 5 October 2004 This case not for publication
Appeal by defendant from judgment entered 16 January 2003 by Judge Jerry Cash Martin in Forsyth County Superior Court. Heard in the Court of Appeals 23 August 2004.
Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State. James N. Freeman, Jr., for defendant-appellant.
Forsyth County, No. 02 CRS 52402.
After reserving his right to appeal the denial of his motion to suppress, Reginald Levon Wright ("defendant") entered a guilty plea to one count of possession with intent to sell or deliver cocaine. The trial court sentenced defendant to an active prison term of nine to eleven months. For the reasons stated herein, we affirm the ruling of the trial court.
After conducting a hearing on the motion, the trial court made the following findings of fact: at approximately 2:00 a.m. on 3 March 2002, Winston-Salem Police Officers Ben Jones ("Officer Jones") and Paul Hayden ("Officer Hayden") responded to a disturbance call at 2411 Dunbar Street. Officer Jones was familiarwith the address because he had previously investigated the house as a possible "drink house" and for drug activity. When Officers Jones and Hayden arrived at 2411 Dunbar Street, they saw three males standing in front of the residence. Upon seeing the officers, the three males turned around, walked across the yard and attempted to enter the residence, but were unable to do so. Defendant and one of the males subsequently walked in the direction of the officers. Defendant, who had both hands in his pockets, walked towards Officer Jones. Officer Jones asked defendant if he lived at the residence. Defendant responded that he did not, but he thought there was a party at the residence. As defendant approached the officers, Officer Jones asked defendant to remove his hands from his pockets and defendant did so. Officer Jones observed a bulge in defendant's left front pants pocket, which defendant immediately tried to cover up with his hand Officer Jones thought defendant "may be covering up a weapon," so Officer Jones informed defendant that he was going to frisk defendant for his safety.
During the pat down for weapons, defendant kept turning away from Officer Jones. Officer Jones had to hold onto defendant's arm and pull him around to feel defendant's left pocket. Officer Jones recognized the bulge to be a film container, which Officer Jones believed, based on his training and experience, could be used to transport narcotics. Defendant "started jerking away trying to get away from [Officer Jones]" when Officer Jones felt the film container. Officer Hayden then "grabbed on to help [Officer Jones]get ahold [sic] of [defendant]." The officers were able to place defendant's hands behind his back, handcuff defendant and arrest defendant for resisting a public officer. After the officers arrested defendant, Officer Jones reached into defendant's left front pocket and removed a film container, which contained 1.6 grams of crack cocaine. Officer Jones also found $220 and a cell phone on defendant.
These findings of fact are supported by the testimony of Officers Jones and Hayden and are therefore binding on appeal. Based upon the findings of fact, the trial court concluded that Officer Jones had a reasonable, articulable suspicion to believe defendant was in possession of a weapon and that the weapon was a concealed weapon in violation of the carrying a concealed weapon statute; that Officer Jones' stop and detention of defendant was reasonable; and that Officer Jones' "belief that defendant possessed a weapon was reasonable and authorized a pat-down or a frisk of the defendant's person for the officer's safety." The trial court also concluded that Officer Jones had probable cause to believe defendant was resisting, delaying or obstructing him in the performance of his duties during the constitutionally permissible frisk or pat-down. Finally, the court concluded that Officer Jones properly arrested defendant and that "[t]he search of defendant's person was incident to arrest and that the seizure of the film container, $220, and a cell phone was not violative of constitutional decisions."
The issue on appeal is whether the trial court erred indenying defendant's motion to suppress. When reviewing a trial court's ruling on a motion to suppress, the trial court's findings of fact are deemed conclusive if they are supported by competent evidence; the trial court's conclusions of law reached upon those findings are fully reviewable. State v. McArn, 159 N.C. App. 209, 211-12, 582 S.E.2d 371, 373-74 (2003). Further, "the trial court's ruling on a motion to suppress is afforded great deference upon appellate review as it has the duty to hear testimony and weigh the evidence." State v. McClendon, 130 N.C. App. 368, 377, 502 S.E.2d 902, 908 (1998), aff'd, 350 N.C. 630, 517 S.E.2d 128 (1999).
Defendant argues that the facts did not gave rise to a reasonable suspicion of wrongdoing supporting an investigatory stop and frisk under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968). Specifically, defendant argues the trial court erred in concluding that Officer Jones "had a reasonable articulable suspicion to believe that the defendant, Reginald Wright, was in possession of a weapon." We disagree.
An officer may undertake an investigatory stop of a person, so long as that officer has a reasonable and articulable suspicion, based on objective facts, that the person is engaged in criminal activity. State v. Watson, 119 N.C. App. 395, 397, 458 S.E.2d 519, 521-22 (1995). Courts must consider "`the totality of the circumstances — the whole picture'" in making the determination as to whether a reasonable suspicion to make an investigatory stop existed at the time the stop was made. State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (quoting U.S. v. Cortez, 449U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981)). If upon detaining the individual, the officer's personal observations confirm that criminal activity may be afoot and suggest that the person detained may be armed, the officer may frisk him as a matter of self-protection. State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d 502, 506-07 (1973).
In determining whether the Terry standard is met, we must consider Officer Jones' actions in light of the totality of the circumstances, which are: (1) police observed defendant and two other males standing in the front yard of the house which police received a disturbance complaint about; (2) Officer Jones had investigated the house as a possible "drink house" and for possible drug activity; (3) upon seeing Officers Jones and Hayden, defendant immediately walked towards the house, behavior that is evidence of flight; (4) unable to enter the house, defendant approached Officer Jones with his hands in his pockets; (5) although defendant took his hands out of his pockets when told to do so, he immediately tried to cover up his left pants pocket; and (6) Officer Jones observed a bulge in defendant's left pants pocket. Under these circumstances, Officer Jones had a reasonable, articulable suspicion that defendant possessed a weapon and, therefore, criminal activity was afoot, thereby supporting an investigatory stop. Likewise, defendant's conduct was sufficient to justify a pat-down search for the officers' safety. In re Whitley, 122 N.C. App. 290, 292, 468 S.E.2d 610, 612 (1996) (citation omitted).
We next conclude that Officer Jones properly arresteddefendant and seized the cocaine pursuant to defendant's arrest. A warrantless arrest is lawful if based upon probable cause. State v. Phillips, 300 N.C. 678, 683, 268 S.E.2d 452, 456 (1980). Probable cause "has been defined to be a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty." State v. Shore, 285 N.C. 328, 335, 204 S.E.2d 682, 687 (1974). N.C. Gen. Stat. § 14-223 (2003) states that "[i]f any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor." Once a police officer has executed a lawful arrest, based upon probable cause, he may conduct a warrantless search incident to that lawful arrest. See State v. Logner, 148 N.C. App. 135, 139, 557 S.E.2d 191, 194 (2001) (noting that a search incident to a lawful arrest is a "well-recognized" exception to the warrant requirement).
Here, defendant began to twist as Officer Jones started to perform a lawful pat-down. When Officer Jones attempted to pat down defendant's left pants pocket, defendant attempted to jerk free from Officer Jones, thereby resisting the pat-down. Defendant's movements inhibited Officer Jones' performance of the lawful pat-down and contributed to probable cause that defendant was in violation of N.C. Gen. Stat. § 14-223. See generally, State v. Swift, 105 N.C. App. 550, 554, 414 S.E.2d 65, 68 (1992) ("Flight from a lawful investigatory stop `may provide probable cause to arrest an individual for violation of G.S. [§] 14-223'") (citation omitted). Once Officer Jones lawfully arrested defendant, he then reached into defendant's pocket and found a film container which contained crack cocaine. Because the officers had probable cause to arrest defendant for resisting a public officer, the search conducted incident thereto, was not constitutionally infirm and the trial court did not err in denying defendant's motion to suppress.
Affirmed.
Judges CALABRIA and LEVINSON concur.
Report per Rule 30(e).