State v. McNeil

• Court: Court of Appeals of North Carolina
• Decided: June 3, 2014
• Docket: 13-1285
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-1285 NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

STATE OF NORTH CAROLINA

v. Brunswick County No. 12 CRS 50537-39 TRISTAN McNEIL

Appeal by Defendant from judgment and commitment entered 7

May 2013 by Judge Mary Ann Tally in Brunswick County Superior

Court. Heard in the Court of Appeals 5 March 2014.

Attorney General Roy Cooper, by Associate Attorney General Gayle L. Kemp, for the State.

Kimberly P. Hoppin for Defendant.

DILLON, Judge.

Defendant Tristan McNeil appeals from a judgment entered

upon his plea of no contest to one charge of trafficking in

cocaine, contending that the trial court erred in denying his

motion to suppress evidence obtained during a search of his

person. We affirm.

I. Factual & Procedural Background

Defendant was arrested on 4 February 2012, when Officer -2- Ricky Smith of the Brunswick County Sheriff’s Department found

cocaine mixed with marijuana during a search of Defendant. On

21 May 2012, Defendant was indicted on a number of drug-related

charges, including trafficking in cocaine by possession. On 3

May 2013, Defendant filed a motion to suppress the illegal drugs

discovered by Officer Smith during his search. On 6 May 2013, a

hearing on Defendant’s motion was conducted before Superior

Court Judge Mary Ann Tally. Judge Tally denied Defendant’s

motion to suppress on 7 May 2013.

Judge Tally’s findings of fact, as recited in open court1,

tended to show the following. On 4 February 2012, police

officers in Brunswick County established a checkpoint at the

intersection of Old Shallotte Road and Union School Road for the

purpose of checking for Chapter 20 motor vehicle violations, as

well as other violations of law. At approximately 5 p.m.,

Officer Ricky Smith noticed Defendant’s vehicle approaching the

1 Judge Tally did not enter a written order, but instead announced the rationale for her decision to deny Defendant’s motion from the bench. We have held that on consideration of a motion to suppress, the trial court’s “findings and conclusions must be in the form of a written order unless (1) the trial court provides its rationale from the bench, and (2) there are no material conflicts in the evidence at the suppression hearing.” State v. Dahlquist, __ N.C. App. __, __, 752 S.E.2d 665, 666 (2013) (citation and quotation marks omitted). In the present case, however, Defendant does not challenge the propriety of the trial court’s decision to articulate its rationale in open court. -3- checkpoint from approximately 300 yards away. Officer Smith

observed Defendant’s vehicle abruptly make a left turn into a

dirt driveway that led to a trailer. Officer Smith knew the

occupants of the trailer and was distantly related to them.

Officer Smith left the checkpoint to investigate why

Defendant’s vehicle had turned into the driveway. Officer Smith

proceeded to the driveway; he saw Defendant’s vehicle parked

near the trailer and Defendant walking towards the trailer.

Officer Smith did not recognize Defendant, who was a large man

wearing a long, untucked shirt over his jeans. Officer Smith

noticed that Defendant’s vehicle displayed a South Carolina tag.

Officer Smith called out to Defendant, asking him where he

was coming from. Defendant responded that he was there to visit

his mother. Officer Smith, as previously stated, knew the

trailer occupants and thus knew that Defendant’s mother did not

live in the trailer. Ms. Holden, who lived in the trailer, came

outside and informed Officer Smith that she had never seen

Defendant before. At some point during the encounter, Ms.

Holden told Officer Smith that there had been break-ins in the

area.

Officer Smith conducted a pat-down of Defendant for safety,

checking for weapons. Officer Smith asked Defendant whether he -4- had anything on him that he should know about. Defendant

answered, “No,” then volunteered to empty his pockets. Officer

Smith instructed Defendant to place the contents of his pockets

on the hood of Officer Smith’s police car. Defendant reached

into one of his pockets and pulled out a large amount of

currency, which he placed on the hood of the police car.

Defendant then reached again into one of his pockets, while

turning away from Officer Smith. Officer Smith instructed

Defendant not to turn away; however, Defendant continued to turn

away, prompting Officer Smith to grab Defendant’s shirt.

Subsequently, Officer Smith noticed Defendant getting nervous

and walking towards his own vehicle, leaving the currency on the

police car hood. He instructed Defendant to come back, but

Defendant did not do so. Eventually, Defendant complied with

Officer Smith’s commands to put his hands behind his back.

Officer Smith noticed a large bulge still present in one of

Defendant’s pockets. He was unable to determine the contents of

the pocket when he felt it from the outside. He reached into

the pocket and pulled out cellophane material, which contained

cocaine mixed with marijuana and another large sum of money.

Based on these findings, the trial court concluded, inter

alia, that Officer Smith had possessed reasonable suspicion to -5- investigate Defendant’s abrupt left-hand turn into the driveway

in view of the police checkpoint; that Officer Smith had

possessed reasonable suspicion to continue his investigation

when Defendant lied about visiting his mother at the trailer;

and that Officer Smith had acted reasonably when he reached into

Defendant’s pocket to determine the nature of the bulge that he

had observed in that area.

Following the trial court’s denial of his motion to

suppress, Defendant entered a plea of no contest to the count of

trafficking in cocaine by possession, preserving his right to

appeal the court’s denial of his motion to suppress. The

remaining charges were dismissed as part of the plea

arrangement. The trial court sentenced Defendant to a prison

term of thirty-five to forty-two months and a fine of

$50,000.00. Defendant appeals.

II. Jurisdiction

Defendant has filed a petition for writ of certiorari with

this Court, conceding a jurisdictional defect in his notice of

appeal. Specifically, Defendant gave notice of appeal from the

trial court’s denial of his motion to suppress, but failed to

give notice of appeal with respect to the judgment entered upon

his guilty plea. We exercise our discretion, however, and, -6- pursuant N.C.R. App. P. 21(a)(1), address the merits of

Defendant’s appeal. State v. McKoy, 171 N.C. App. 636, 638, 615

S.E.2d 319, 320 (2005).

III. Analysis

Defendant contends that the trial court erred in denying

his motion to suppress the evidence found on his person without

a search warrant. More specifically, Defendant contends that

the search was in violation of his rights under the Fourth

Amendment of the United States Constitution, in that the

investigatory stop and ensuing search of his person was invalid

under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968).

“[T]he scope of appellate review of an order [regarding a

motion to suppress] is strictly limited to determining whether

the trial [court]’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding

on appeal, and whether those factual findings in turn support

the [court]’s ultimate conclusions of law.” Dahlquist, __ N.C.

App. at __, 752 S.E.2d at 666 (citation and quotation marks

omitted) (alteration in original). After careful review of the

trial court’s findings and conclusions, we affirm.

B. The Investigatory Stop

Defendant first challenges the validity of the -7- investigatory stop conducted by Officer Smith. Specifically,

Defendant argues that the trial court failed to make findings

sufficient to support the conclusion that Officer Smith had the

reasonable suspicion necessary to conduct an investigatory stop

of Defendant under the circumstances. We disagree.

Our Supreme Court has held that avoiding a police

checkpoint on a public roadway may give rise to reasonable

suspicion and justify a subsequent Terry search. State v.

Griffin, 366 N.C. 473, 749 S.E.2d 444 (2013); State v. Foreman,

351 N.C. 627, 527 S.E.2d 921 (2000). In Griffin, as in this

case, the defendant “approached a checkpoint marked with blue

flashing lights.” Griffin, 366 N.C. at 477, 749 S.E.2d at 447.

Citing Foreman and United States v. Smith, 396 F.3d 579 (4th

Cir. 2005), our Supreme Court confirmed that “this Court and the

Fourth Circuit have held that even a legal turn, when viewed in

the totality of the circumstances, may give rise to reasonable

suspicion.” Griffin, 366 N.C. at 477, 749 S.E.2d at 447.

In Foreman, our Supreme Court observed that while “a legal

turn, by itself, is not sufficient to establish a reasonable,

articulable suspicion, a legal turn in conjunction with other

circumstances, such as the time, place and manner in which it is

made, may constitute a reasonable, articulable suspicion which -8- could justify an investigatory stop.” 351 N.C. at 631, 527

S.E.2d at 923 (emphasis in original). As in Griffin, the police

officer in Foreman “observed a ‘quick left turn’ away from the

checkpoint at the precise point where the driver of the vehicle

would have first become aware of its presence.” 351 N.C. at

630, 527 S.E.2d at 923. Our Supreme Court held

that it is reasonable and permissible for an officer to monitor a checkpoint’s entrance for vehicles whose drivers may be attempting to avoid the checkpoint, and it necessarily follows that an officer, in light of and pursuant to the totality of the circumstances or the checkpoint plan, may pursue and stop a vehicle which has turned away from a checkpoint within its perimeters for reasonable inquiry to determine why the vehicle turned away.

Id. at 632-33, 527 S.E.2d at 924.

In Smith, as in the present case, a police officer followed

the defendant’s vehicle after it turned down a private driveway

in an apparent attempt to avoid a checkpoint, and upon entering

the driveway, the officer found the vehicle parked. The Fourth

Circuit Court of Appeals explained that the officer reasonably

could have inferred that the defendant “was attempting to evade

the police checkpoint” and upheld the reasonableness of the

search. Smith, 396 F.3d at 585-87.

As our Supreme Court has explained,

[r]easonable suspicion is a “less demanding standard than probable cause and requires a showing -9- considerably less than preponderance of the evidence.” Only “‘some minimal level of objective justification’” is required. This Court has determined that the reasonable suspicion standard requires that “[t]he stop . . . be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training.” Moreover, “[a] court must consider ‘the totality of the circumstances—the whole picture’ in determining whether a reasonable suspicion” exists.

State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645 (2008)

(citations omitted).

In the present case, we believe that Officer Smith’s

observation of Defendant maneuvering his vehicle into a driveway

and away from the police checkpoint, combined with the

additional circumstances as set forth in the unchallenged

portion of the trial court’s findings, “constitute[d] [a]

reasonable, articulable suspicion” that “justif[ied] an

investigatory stop.” Foreman, 351 N.C. at 631, 527 S.E.2d at

923. More specifically, upon observing Defendant turn into the

driveway, Officer Smith engaged in the inquiry that our Supreme

Court held reasonable in Foreman. Then, when questioned

concerning his presence outside the trailer, Defendant informed

Officer Smith that he was there to visit his mother, a statement

Officer Smith knew to be false given his relationship with the

occupants of that same trailer. We hold that, in light of these -10- circumstances, the trial court correctly determined that Officer

Smith’s investigatory stop of Defendant was justified.

C. The Scope of the Search

Defendant next contends that, even if the investigatory

stop was valid, Officer Smith’s search of Defendant’s person

that ensued exceeded the scope permissible under Terry. We

disagree.

The United States Supreme Court has held that a police

officer’s observation of a bulge in a defendant’s clothing may

permit the officer to conclude that the defendant is “armed and

thus pose[s] a serious and present danger to the safety of the

officer.” Pennsylvania v. Mimms, 434 U.S. 106, 110–11, 54 L.

Ed.2d 331 (1977). Moreover, in United States v. Baker, the

Fourth Circuit explained that a pat-down search is not “the only

permissible method of conducting a Terry search.” 78 F.3d 135,

138 (4th Cir. 1996). Instead, “the reasonableness of a

protective search depends on the factual circumstances of each

case.” Id.

We believe that the unchallenged findings of fact made by

the trial court – for example, that Defendant was a large man;

that Officer Smith could not discern whether the contents of one

of Defendant’s pockets included a weapon when he came in contact -11- with the bulge during his pat-down of Defendant; that Defendant

only removed a single object from his pockets when he

volunteered to empty his pockets; that Defendant turned away

from Officer Smith while reaching into his pocket; that

Defendant appeared extremely nervous and refused to obey Officer

Smith’s instructions until threatened by Officer Smith with a

taser; and that Officer Smith was the only officer on the scene

– were sufficient to sustain the trial court’s conclusion that

Officer Smith’s search of Defendant was reasonable under Terry.

Defendant cites State v. Beveridge, 112 N.C. App. 688, 436

S.E.2d 912 (1993), in support of his contention that Officer

Smith’s search of the area where he felt a large bulge was

unreasonable. Defendant’s reliance on Beveridge is misplaced.

In Beveridge, the police officer reached into a detainee’s

pocket after determining from a pat-down that the contents did

not include a weapon, but rather a cylinder-shaped object that

the officer suspected contained drugs. Id. at 696, 436 S.E.2d

at 916. This Court concluded that the officer’s actions were

overly intrusive on grounds that the officer was no longer

acting with the purpose of determining whether the detainee was

armed with a weapon at the time he reached into the detainee’s

pocket. Id. In the present case, however, Officer Smith was -12- unable to determine whether the contents of Defendant’s pocket

included a weapon at the moment he came into contact with the

bulge, after which Defendant exhibited furtive, evasive

behavior, acted nervously and reached into the pocket himself

while simultaneously turning away from Officer Smith. See State

v. Willis, 125 N.C. App. 537, 543, 481 S.E.2d 407, 411 (1997).

Accordingly, Beveridge is distinguishable and is of no help to

Defendant in the present case.

IV. Conclusion

For the foregoing reasons, we hold that the trial court did

not err in denying Defendant’s motion to suppress.

AFFIRMED.

Judges BRYANT and STEPHENS concur.

Report per Rule 30(e).