Opinion
No. 05-860.
Filed March 7, 2006.
Bladen County No. 04 CRS 51828.
Appeal by defendant from judgment entered 9 February 2005 by Judge Gary L. Locklear in Bladen County Superior Court. Heard in the Court of Appeals 16 January 2006.
Attorney General Roy Cooper, by Special Deputy Attorney General Richard E. Slipsky, for the State. Paul T. Cleavenger for defendant-appellant.
On 26 July 2004 Deborah Kay Brammer (defendant) was indicted on charges of possession of cocaine, possession of drug paraphernalia, and resisting a public officer. The case was tried at the 2 December 2004 Criminal Session of Bladen County Superior Court.
On 21 June 2004 shortly after midnight, Sergeant Gary Britt (Sergeant Britt) of the Elizabethtown Police Department was on patrol when he spotted defendant leaving a home on Quail Street. The home was known to him as the Ballard House. He testified that the house was a known drug house, and that he had raided the house for illegal narcotics numerous times. Sergeant Britt stated that he had arrested over one hundred people who did not live in the house.
Sergeant Britt testified that he did not see defendant enter the house, but saw her exit the house from a side door. As she exited, the two made eye contact. Defendant looked around her, and then got on her bicycle. Sergeant Britt stated that the way she looked around reminded him of a fox. Defendant then rode off down the street. Sergeant Britt drove up slowly behind her and observed that she kept looking over her shoulder. He then circled around, stopped his car, exited, and stopped her at an intersection.
Sergeant Britt asked defendant for identification. Defendant replied that she did not have identification with her. Sergeant Britt stated that defendant spoke calmly and was cordial. However, he noticed that "[h]er eyes were very shifty and her pupils were dilated and she was acting a little nervous." Sergeant Britt explained to defendant that he had stopped her because it was late at night, and asked her what business she had at the house. Defendant nervously responded that she cleaned houses. He then asked defendant if she was involved in any drug activity. Defendant got agitated, and put her foot on the pedal of her bike. Sergeant Britt felt like defendant might try and leave, so he stood in front of the bike and put his hands on the handlebars. Defendant jerked the bicycle away from his grip and started to ride off. After a short distance, she threw the bicycle down and started to run. Sergeant Britt informed her she was under arrest for resisting and delaying an investigation, but defendant ran into the woods. Defendant got caught in some briers, and threw her purse. Sergeant Britt retrieved the purse and handcuffed defendant. When he later searched the purse, Sergeant Britt found crack cocaine, a crack pipe, a screwdriver, and some nails.
Prior to trial, defendant moved to suppress all of the evidence seized by Sergeant Britt. Defendant argued that the stop was illegal because Sergeant Britt did not have a reasonable articulable suspicion of criminal wrongdoing or probable cause to justify the stop. Furthermore, defendant argued the search was made without justification. The motion was denied. Defendant then pled guilty, preserving her right to appeal the denial of her motion to suppress.
Defendant's sole argument on appeal is that the trial court erred by denying her motion to suppress. Defendant renews her contention that Sergeant Britt lacked reasonable suspicion to justify the stop. Defendant further argues that Sergeant Britt lacked probable cause for the search and seizure.
After careful review of the record, briefs and contentions of the parties, we affirm. "The scope of review on appeal of the denial of a defendant's motion to suppress is strictly limited to determining whether the trial court's findings of fact are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court's conclusions of law." State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993). However, where, as here, the defendant does not assign error to the trial court's findings of fact, they are deemed to be supported by competent evidence and are binding on appeal. State v. Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 736 (2004) (citing State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984)). Thus, the sole issue here is whether the trial court's findings support its conclusions of law.
In the case sub judice, the trial court found that defendant was stopped after exiting a known drug house, after midnight, and after looking back at the officer several times as she left. Our Supreme Court has stated that:
It is well established that 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. 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.
The totality of the circumstances test must be viewed through the prism of a reasonable police officer standard; that is, the reviewing court must take into account an officer's training and experience. Id. Thus, a police officer must have developed more than an "`unparticularized suspicion or hunch'" before an investigatory stop may occur.
State v. Willis, 125 N.C. App. 537, 541, 481 S.E.2d 407, 410 (1997) (citations omitted). In Willis, our Supreme Court found that an investigatory stop was properly based on defendant's presence at a known drug house coupled with the fact that he acted nervous and took evasive action when he knew he was being followed. Id. Here, the officer also saw defendant leave a known drug house. This, coupled with the fact that defendant likewise acted nervously when she realized Sergeant Britt was following her, justified Sergeant Britt's detention of defendant through an investigatory stop.
However, even assuming arguendo that Sergeant Britt lacked reasonable suspicion to stop defendant, Sergeant Britt could still ask the defendant for identification, as long as he did not "induce cooperation by coercive means." State v. Campbell, 359 N.C. 644, 663, 617 S.E.2d 1, 13 (2005) ( quoting United States v. Drayton, 536 U.S. 194, 201, 153 L. Ed. 2d 242, 251 (2002)). Here, there was no evidence of coercion, thus, the request for identification was lawful. After asking defendant for identification, Sergeant Britt observed that defendant's pupils were dilated. This evidence, coupled with defendant's previous presence at a known drug house, further provided Sergeant Britt with reasonable suspicion that criminal activity was afoot and justified the stop. Thus, the trial court properly concluded that the stop was lawful.
The next question is whether defendant's purse was legally seized. Defendant claims that the purse was fruit of the poisonous tree, having been obtained after an illegal stop and arrest. However, we have already determined that the stop was proper. Defendant was not arrested or seized until after she fled. "A seizure does not occur if the person does not yield to the show of authority." State v. Taylor, 117 N.C. App. 644, 649, 453 S.E.2d 225, 228 (1995) (citing California v. Hodari D., 499 U.S. 621, 626, 113 L. Ed. 2d 690, 697 (1991)). While fleeing, defendant discarded her purse containing the contraband. Thus, the cocaine abandoned while defendant fled was not the fruit of a seizure. See State v. Leach, 166 N.C. App. 711, 716, 603 S.E.2d 831, 835 (2004) (probable cause to stop defendant, but no seizure occurred until he was physically restrained after his flight, and thus the cocaine discarded by defendant during his flight was abandoned and not the fruit of a seizure) ( citing Hodari, 499 U.S. at 629, 113 L. Ed. 2d 699). Accordingly, we affirm.
Affirmed.
Judges McCULLOUGH and TYSON concur.
Report per Rule 30(e).