State v. Alston

346 S.E.2d 184, 82 N.C. App. 372, 1986 N.C. App. LEXIS 2425
Court of Appeals of North Carolina·Decided August 5, 1986·No. No. 8614SC99·Published·Cited by 3 cases

Opinion

MARTIN, Judge.

By his assignments of error, defendant presents two issues for our review. The first involves the legality of a warrantless search of defendant’s person and automobile at the time of his initial detention and the admissibility of articles seized during the course of that search. The other is whether defendant’s acquittal of the firearm possession charge operates as a bar to his prosecution upon the armed robbery charge. We answer each issue adversely to defendant and find no error in his trial.

At trial, the State offered evidence tending to show that on 10 December 1984 at approximately 12:30 a.m. a black male wearing a white sweater draped over his head entered the Seven-Eleven Food Store located on Avondale Drive in Durham, pointed a .38 caliber pistol at the clerk, Jimmy Eller bee, and demanded money. Mr. Ellerbee opened the cash drawer and placed the money, including a marked $2.00 bill, into a paper bag and gave it to the man who then turned and left the store. A witness observed him run from the store and enter a light blue compact car. The robbery was reported to Durham poLce officers, and a description of the robber and the automobile was broadcast over police radio.

John O’Neal, a night clerk at another Seven-Eleven store on North Duke Street, was informed of the robbery by a deputy [374] sheriff. He called Mr. Ellerbee and obtained a description of the robber. Shortly before 3:30 a.m., Mr. O’Neal saw defendant, a black male, drive up to the gasoline pumps in front of the store in a light blue Volkswagen Rabbit. Defendant was wearing a white sweater. Before he entered the store, defendant removed his sweater and threw it in a trash can. He then entered the store and paid for $3.00 worth of gasoline. Defendant acted as though he was nervous and told Mr. O’Neal that the police were following him and that someone was trying to frame him. Defendant then left the store to pump the gasoline; and while he was outside, Mr. O’Neal called the police. Defendant returned to the store, stayed a short time looking around the store, and then left when another customer came in. As he walked to his car, he retrieved his sweater from the trash can and put it on. He then drove out of the parking lot.

Shortly thereafter, police officers arrived at the store and were provided with a description of defendant, the automobile, and its license number. This information was broadcast over police radio. Within minutes, Officer J. L. Packard observed the light blue Volkswagen on Roxboro Street and stopped the car. Defendant was the driver and only occupant. Other officers arrived on the scene. Officer Packard told defendant why he had been stopped and that he would be detained on suspicion of armed robbery. Defendant consented to a search of his person by the officers, which revealed an amount of currency in his pocket. Officer Packard instructed another officer to search the passenger area of defendant’s automobile for weapons. A .38 caliber pistol was found underneath the driver’s seat. A check of the serial number of the pistol revealed that it had been reported as stolen. Defendant was placed under arrest for possession of a stolen firearm and was again searched. Currency, including the marked $2.00 bill taken during the robbery of the Avondale Drive Seven-Eleven store, was taken from defendant’s pocket.

Defendant did not testify but offered evidence through the testimony of several witnesses that he was at a private club at the time the robbery occurred.

Prior to trial, defendant moved to suppress the evidence seized during the search of his person and his automobile at the time of his initial detention and subsequent arrest. His first [375] assignment of error is directed to the denial of his motion and the admission into evidence of the pistol, the currency, and the white sweater. He argues that although the officers may have had a reasonable suspicion of criminal activity sufficient to justify the stop and brief detention of defendant, they did not have probable cause to conduct a search or to arrest him at the time the search of the automobile was conducted. Therefore, he argues, the pistol was the product of an illegal search; and since its discovery gave the officers probable cause to arrest him and to conduct the additional search of his person, the currency and sweater were also tainted and should have been suppressed.

It is now well established that a law enforcement officer may lawfully stop and detain a person where the officer has a reasonable suspicion, based upon personal observation or reliable information, that the person detained has committed a crime, even though the officer may not have probable cause to make a war-rantless arrest. Adams v. Williams, 407 U.S. 143, 32 L.Ed. 2d 612, 92 S.Ct. 1921 (1972); Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968); State v. Jackson, 302 N.C. 101, 273 S.E. 2d 666 (1981); State v. McZorn, 288 N.C. 417, 219 S.E. 2d 201 (1975), death sentence vacated, 428 U.S. 904, 49 L.Ed. 2d 1210, 96 S.Ct. 3210 (1976); State v. Adams, 55 N.C. App. 599, 286 S.E. 2d 371 (1982). The propriety of the stop and detention depends upon whether the officer acted reasonably in light of the facts known to him at the time. Adams v. Williams, supra.

The information known to Officer Packard as a result of receiving police broadcasts on his radio clearly justified his stop of defendant’s automobile and his detention of defendant for investigative purposes. Having lawfully stopped defendant, Officer Packard and the other officers could permissibly conduct a frisk of his person for weapons, Terry v. Ohio, supra, as well as the passenger area of his automobile where a weapon might be hidden if the officers had a reasonable belief, based on specific and articulable facts, that defendant posed a danger if permitted to reenter his automobile. Michigan v. Long, 463 U.S. 1032, 77 L.Ed. 2d 1201, 103 S.Ct. 3469 (1983). “When a search or seizure has as its immediate object a search for a weapon, ... we have struck the balance to allow the weighty interest in the safety of police officers to justify warrantless searches based only on a reasona[376] ble suspicion of criminal activity.” New York v. Class, — U.S. —, ---, 89 L.Ed. 2d 81, 92, 106 S.Ct. ---, --- (1986).

We conclude that Officer Packard acted reasonably in directing the other officers to conduct a search of defendant’s automobile. Defendant generally matched the description of the person who had committed an armed robbery some three hours earlier and was operating an automobile similar to that in which the robber had escaped. He and the automobile specifically matched the description provided by the clerk at the second convenience store, where defendant had exhibited suspicious behavior. When Officer Packard stopped defendant, defendant quickly got out of his car and allowed the car to roll back into the police car. Officer Packard described defendant’s conduct as “acting weird.” We hold these facts, taken together, sufficient to warrant “an articulable and objectively reasonable belief’ that defendant was potentially dangerous. See Michigan v. Long, supra at 1051, 77 L.Ed. 2d at 1221.

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State v. Alston, 346 S.E.2d 184, 82 N.C. App. 372, 1986 N.C. App. LEXIS 2425 (N.C. Ct. App. 1986).

346 S.E.2d 184 (State v. Alston) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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