Opinion
NO. COA12-141
10-16-2012
STATE OF NORTH CAROLINA v. STANLEY KELLY, JR.
Attorney General Roy Cooper, by Associate Attorney General Erica Garner, for the State. Michael E. Casterline, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Mecklenburg County
No. 09 CRS 205977
Appeal by Defendant from judgment entered 18 February 2010 by Judge John O. Craig, III in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 August 2012.
Attorney General Roy Cooper, by Associate Attorney General Erica Garner, for the State.
Michael E. Casterline, for Defendant.
BEASLEY, Judge.
Stanley Kelly, Jr. (Defendant) appeals from the 18 February 2010 judgment entered on his conviction for trafficking in cocaine. For the following reasons, we find no error.
On 3 February 2009, between 2:00 p.m. and 3:30 p.m., three law enforcement officers occupied an unmarked police vehicle parked outside of a check cashing business in Charlotte, North Carolina, waiting to meet with a confidential informant. The officers included Special Agent Rodney Blacknall of the Bureau of Alcohol, Tobacco, Firearms and Explosives, and Detective Fish and Sergeant Stevenson of the Charlotte Mecklenburg Police Department. From his location in the rear passenger seat of the vehicle, a black Suburban SUV with heavily tinted windows, Agent Blacknall testified that he observed the conduct of Defendant in the driver's seat of a Dodge Neon parked in the same lot as the officers' undercover vehicle. The two vehicles were parked on opposite sides of a grassy median, separated by a distance of eight to ten feet.
Agent Blacknall testified that he observed Defendant holding a substance in a plastic bag, rolling it around in his hands, smelling it, and passing it to a black male seated in the passenger's seat. The passenger likewise rolled the bag around in his hands and smelled the substance before passing it back to Defendant, who appeared to place the bag in his jacket pocket. Based on his years of experience and knowledge about drug trafficking, Agent Blacknall believed the substance to be crack cocaine. Agent Blacknall also noted that the amount in the bag appeared to be "bigger than a user amount[.]"
By this time, the confidential informant was expected to arrive soon and the officers wanted to remain in the SUV to meet with him, so they contacted uniformed officers to respond to the scene. Using his police radio, Detective Fish described Defendant, directed the officers where to find Defendant, and suggested that the officers might find drugs in Defendant's jacket pocket. Officers Haithcock and Reece arrived promptly in a patrol vehicle. Officer Haithcock approached the driver's side of the Dodge Neon, asked Defendant to emerge from the vehicle, and conducted a frisk of the outer layers of Defendant's clothing. During the pat-down, Officer Haithcock felt a "large bumpy bulge" in Defendant's jacket pocket and, based on his experience and the information from Detective Fish, Officer Haithcock believed the bulge to be crack cocaine. Officer Haithcock then removed two plastic bags containing a substance that appeared to be crack cocaine from Defendant's jacket pocket. Defendant was subsequently arrested.
Following his arrest, Defendant was charged with trafficking in cocaine in an amount of 28 grams or more but less than 200 grams. On 24 July 2009, Defendant filed a motion to suppress the evidence obtained by the officers during his arrest. The trial court denied the motion by order entered 16 November 2009.
On 18 February 2010, Defendant was convicted of trafficking in cocaine in an amount of 28 grams or more but less than 200 grams and received a sentence of 35 to 42 months imprisonment. Defendant gave notice of appeal of the pretrial denial of his motion to suppress in open court following his sentencing. In an unpublished opinion issue on 16 August 2011, this Court dismissed Defendant's appeal for lack of jurisdiction. Defendant then filed a Petition for Writ of Certiorari, asking this Court to review his case on the merits. The petition was granted on 2 November 2011.
Defendant argues that the trial court's findings of fact are not supported by competent evidence where Agent Blacknall's testimony regarding his observations of Defendant was inherently incredible. We disagree.
Appellate courts give deference to the findings made by the trial court on a motion to suppress evidence because the trial judge is in the best position to weigh the evidence, given that he has heard all of the testimony and observed the demeanor of the witnesses. Therefore, the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.State v. Bowman, 193 N.C. App. 104, 107-08, 666 S.E.2d 831, 834 (2008) (citations, quotation marks and ellipses omitted). Conclusions of law, such as "a trial court's conclusion that a police officer had either probable cause or reasonable suspicion to detain or search a defendant [are] reviewable de novo." State v. Parker, 183 N.C. App. 1, 7, 644 S.E.2d 235, 240 (2007) (citations omitted).
The Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . . This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study. . . .Terry v. Ohio, 392 U.S. 1, 8-9, 20 L. Ed. 889, 898 (1968) (citation omitted). "[T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, [and] in most instances failure to comply with the warrant requirement can only be excused by exigent circumstances[.]" Id. at 20, 20 L. Ed. at 905.
Here, the trial court noted that two exceptions to the warrant requirement justified the warrantless search of Defendant. First, the search was lawful because the officers had probable cause to arrest Defendant. Second, notwithstanding probable cause, the search was lawful because the officers had a reasonable suspicion regarding Defendant which justified patting him down in search of weapons, and the plain feel of the bulge in Defendant's pocket during the frisk gave the officers probable cause to search Defendant. The factual findings supporting these conclusions are based on Agent Blacknall's testimony that he was able to clearly observe the conduct of Defendant and that Agent Blacknall's training and experience lead him to believe that Defendant was probably committing an offense.
Defendant argues that these findings are erroneous because the State's evidence is "inherently incredible" and therefore cannot constitute competent evidence. Defendant thus also contends that the trial court's conclusions regarding probable cause and reasonable suspicion are erroneous because they are supported by factual findings not supported by competent evidence. Our Supreme Court has determined that evidence may be deemed inherently incredible based on "undisputed facts, clearly established by the State's evidence, as to the physical conditions under which the alleged observation occurred." State v. Miller, 270 N.C. 726, 731, 154 S.E.2d 902, 905 (1967). The determination that witness testimony is inherently incredible is narrowly applied. Defendant relies on State v. Miller, where witness testimony was deemed inherently incredible when the witness was at least 286 feet from the defendant at all times and the crime occurred at night. However, our Supreme Court determined that witness identification was not inherently incredible when a witness viewed a defendant at night from a distance of eight to ten feet. State v. Wilson, 293 N.C. 47, 235 S.E.2d 219 (1977).
The State's evidence regarding the physical conditions at the time of Agent Blacknall's observation of Defendant indicates that both the police SUV and the Dodge Neon occupied by Defendant were backed into their respective parking spaces and therefore were facing the same direction. Also, the Dodge Neon was a lower vehicle than the police SUV, allowing Agent Blacknall to observe Defendant from a higher vantage point, looking down into the driver's seat of the Dodge Neon. While the police SUV had heavily tinted windows, the windows of the Dodge Neon were not tinted and Agent Blacknall's view was not obstructed. The encounter took place in daytime hours under clear skies. Such physical evidence supports Agent Blacknall's testimony that he could clearly see Defendant and the substance possessed by Defendant. Accordingly, we find that Agent Blacknall's observations of Defendant's conduct are not inherently incredible.
Defendant also contends that Agent Blacknall could not have identified the substance possessed by Defendant from a distance of eight to ten feet, and therefore Agent Blacknall's suspicions that the substance was contraband are also inherently incredible. However, Agent Blacknall testified that the plastic bag that he witnessed is consistent with the manner in which drugs are typically packaged. Agent Blacknall has 19 years of experience as a Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives. During his career, Agent Blacknall has seen cocaine over 1,000 times and conducted undercover cocaine purchases over 200 times. Furthermore, Agent Blacknall has received special training in identifying cocaine specifically. Despite this experience, Defendant argues it was inherently impossible for Agent Blacknall to recognize drugs from a distance. This argument is without merit. Agent Blacknall's testimony regarding his observations is not "in conflict with indisputable physical facts or laws or nature[,]" and it cannot be deemed inherently incredible. Miller, 270 N.C. at 731, 154 S.E.2d at 905 (internal quotation marks omitted).
Thus we find that Agent Blacknall's testimony constitutes competent evidence with which to support the trial court's findings regarding Agent Blacknall's observations of Defendant, there is no error in the trial court's conclusions that (1) Agent Blacknall had probable cause to arrest defendant; and (2) Officer Haithcock had reasonable suspicion to justify a Terry frisk based on information received from Agent Blacknall.
Defendant alternatively argues that even if Agent Blacknall's information passes constitutional standards of reliability, there is still no evidence of the presence of a weapon to justify a frisk of Defendant. We disagree.
The United States Supreme Court has determined that where an officer lacks probable cause, he may nevertheless detain an individual for investigation if he has reasonable suspicion that the individual has committed a crime. Terry, 392 U.S. at 22, 20 L. Ed. at 906-907. In the interest of protecting the officer and the public, the officer may conduct a limited search for weapons during this investigatory stop "[w]hen [the] officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous[.]" Id. at 24, 20 L. Ed. at 908. Accordingly, this narrow search, known as a Terry frisk, is lawful if: (1) "the officer has reasonable, articulable suspicion that a crime may be underway[;]" State v. Williams, 195 N.C. App. 554, 557, 673 S.E.2d 394, 396 (2009); and, (2) "[the officer] has reason to believe that he is dealing with an armed and dangerous individual[.]" Terry, 392 U.S. at 27, 20 L. Ed. at 909. This Court has noted that "[r]easonable articulable suspicion only requires a minimal level of objective justification, something more than an unparticularized suspicion or hunch." Williams, 195 N.C. App. at 558, 673 S.E.2d at 396 (citations, quotation marks, and ellipses omitted).
"Reasonable suspicion is a commonsensical proposition. Courts are not remiss in crediting the practical experience of officers who observe on a daily basis what transpires on the street[.]" State v. Clyburn, 120 N.C. App. 377, 381, 462 S.E.2d 538, 541 (1995) (citation omitted). Although "a generalized suspicion that the defendant was engaged in criminal activity," which may be formed based on factors such as time of day, location, or previous knowledge about the defendant, is insufficient to establish a reasonable suspicion, State v. Fleming, 106 N.C. App. 165, 171, 415 S.E.2d 782, 785 (1992), "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" satisfy this Court. Williams, 195 N.C. App. at 558, 673 S.E.2d at 396 (citation and quotation marks omitted).
Here, Officer Haithcock received word from Detective Fish that Agent Blacknall had observed Defendant in possession of a substance appearing to be crack cocaine. Upon arriving at the destination, Officer Haithcock was able to identify Defendant as the prospective offender described by Detective Fish. Based on his experience from working with Detective Fish on a frequent basis and his knowledge that Detective Fish has extensive training in drug offenses, Officer Haithcock was able to conclude that the information he received from the undercover vehicle was credible. At that point, he had a reasonable suspicion that Defendant was engaged in a criminal offense.
"In determining whether [a] suspect may be armed, an officer is entitled to formulate common-sense conclusions about the modes or patterns of operation of certain kinds of lawbreakers." Clyburn, 120 N.C. App. at 382, 462 S.E.2d at 541. Officer Haithcock testified, that "I know from my training and experience that individuals who often deal with narcotics most times possess some type of concealed weapon to protect themselves from being robbed[.]" Thus, based on his knowledge that drug offenders frequently carry weapons, Officer Haithcock was justified in suspecting that Defendant could be armed and dangerous. Our Supreme Court has determined that protective frisks are justified where an officer, recognizing that weapons are prevalent among drug offenders, detains a defendant suspected of drug trafficking. Id. Accordingly, we find that Officer Haithcock had a justified reasonable suspicion to support his Terry frisk of Defendant.
No Error.
Judges HUNTER, Robert C. and GEER concur.
Report per Rule 30(e).