State v. Robinson

727 S.E.2d 712, 221 N.C. App. 266
CourtCourt of Appeals of North Carolina
DecidedJune 19, 2012
DocketNo. COA11-1163
StatusPublished
Cited by11 cases

This text of 727 S.E.2d 712 (State v. Robinson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Robinson, 727 S.E.2d 712, 221 N.C. App. 266 (N.C. Ct. App. 2012).

Opinions

ERVIN, Judge.

Defendant Jerome Robinson, Jr., appeals from a judgment imposing a four to five month suspended sentence upon Defendant and placing Defendant on supervised probation for a period of twenty-four months based on Defendant’s plea of guilty to one count of felonious possession of cocaine. On appeal, Defendant challenges the denial of his motion to suppress evidence seized at the time of his arrest. After careful consideration of Defendant’s challenge to the trial court’s judgment in light of the record and the applicable law, we conclude that the trial court’s judgment should remain undisturbed.

I. Factual Background

A. Substantive Facts

Shortly after midnight on 5 March 2009, Detective Brad Tisdale and Officer M.D. Pittman of the Charlotte-Mecklenburg Police Department were on patrol in a marked vehicle in the Lakewood community in Charlotte. At that time, the officers noticed three men [268]*268sitting in a car parked in a parking lot on Grant Street, a two-way road that ran through the parking lot of an apartment complex. After the officers stopped the patrol vehicle and approached the car to talk with the men, Detective Tisdale went to the driver’s side window while Officer Pittman moved towards the passenger side.

As he spoke with the driver, Detective Tisdale noticed that Defendant, who was located in the rear seat behind the driver, held a large number of bills of varying denominations. At the same time, Officer Pittman told Detective Tisdale that there was a machete in the front seat between the driver and the front seat passenger and asked the latter to get out of the car. While Detective Tisdale continued speaking with the driver, Defendant dropped the money that he was holding onto the floor of the car and “suddenly move[d] back, lift[ed] up his waist area, and place[d] his hands behind his back.”

After the front seat passenger left the car, Officer Pittman observed crack cocaine “in plain view” in the front right passenger seat and placed the front right passenger “into custody for drug related offenses.” At that point, Detective Tisdale “ordered [Defendant] to exit the vehicle” and “immediately conducted a pat-down” while Defendant stood “next to the vehicle.” Detective Tisdale performed a complete pat-down, “from the top to bottom,” including reaching “down to the waistline .... all the way down past [Defendant’s] knees to [his] ankles” and moving his hands “in a forward motion between [his] crotch and buttocks area.” When Detective Tisdale “move[d] to [Defendant’s] crotch area,” he placed his “hand, flat hand, between his crotch area and his buttocks, [and] felt a hard-like substance between [Defendant’s] buttocks.” Based on his training and experience in “encountering numerous subjects that concealed illegal narcotics in the buttocks area,” Detective Tisdale “immediately placed [Defendant] in cuffs and escorted him over to [his] vehicle, to a secure area” in order to “conduct a more thorough search.”

Detective Tisdale’s vehicle was located about twenty feet away from the point at which the pat-down had occurred. Upon reaching that location, Detective Tisdale opened the rear door of the car and positioned Defendant between that door and the passenger seat. Detective Tisdale testified that:

I asked [Defendant] to lean forward by the waist. As he leaned forward by the waist, I had my flashlight. I looked down the rear of his pants where I [had] felt the hard-like substance. I saw a clear plastic bagg[ie] protruding out from his buttocks. I immedi[269]*269ately asked [Defendant] to spread his buttocks apart so the item could fall out. He complied. The crack cocaine was packaged in a clear plastic bagg[ie]. It fell out of his pants. He was able to shake it down. It went down his pants leg and down to the ground. I then secured the cocaine.

Although Detective Tisdale did not insert his hands or the flashlight into Defendant’s pants or pull Defendant’s pants down, he did have “[Defendant] lean forward by the waist and spread [his] butt cheeks far” and pulled the waistband of Defendant’s pants back “maybe half a foot at most” so he “was able to see down inside the rear of his pants.” According to Detective Tisdale, no one else was present at the time that he searched Defendant and discovered the crack cocaine.

B. Procedural History

On 5 March 2009, a Magistrate’s Order charging Defendant with felonious possession of cocaine was issued. On 22 March 2010, the Mecklenburg County grand jury returned a bill of indictment charging Defendant with felonious possession of cocaine. On 27 September 2010, Defendant filed a motion seeking to have the evidence seized at the time of his arrest suppressed on the grounds that it had been obtained as the result of an “illegal and unconstitutional stop and seizure.” On 10 February 2011, Judge Kevin M. Bridges entered an order denying Defendant’s suppression motion.

On 14 February 2011, Defendant filed a notice reserving the right to seek appellate review of the order denying his suppression motion in the event that he entered a plea of guilty. On the same date, Defendant entered a plea of guilty to felonious possession of cocaine pursuant to a plea agreement in which the State agreed, in return for Defendant’s plea, to recommend that Defendant be sentenced to a term of four to five months imprisonment, with this sentence to be suspended and with Defendant to be placed on supervised probation. The trial court accepted the parties’ plea arrangement and entered judgment accordingly. Defendant noted an appeal to this Court from the trial court’s judgment.

II. Legal Analysis

A. Standard of Review

“The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court’s findings of fact and whether the findings of fact support the conclu[270]*270sions of law. However, when, as here, the trial court’s findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal. Conclusions of law are reviewed de novo and are subject to full review. ‘Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal. State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citing State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994); State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984); and State v. McCollum, 334 N.C. 208, 237, 433 S.E.2d 144, 160 (1993), cert. denied, 512 U.S. 1254, 114 S. Ct. 2784, 129 L. Ed. 2d 895 (1994), and quoting State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (internal citation omitted) (other citation omitted).

B. “Second Search” of Defendant

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Cite This Page — Counsel Stack

Bluebook (online)
727 S.E.2d 712, 221 N.C. App. 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-robinson-ncctapp-2012.