Opinion
No. COA12–4.
2012-07-3
STATE of North Carolina v. Tyree Jamal BUNCH.
Attorney General Roy Cooper, by Special Deputy Attorney General Marc Bernstein, for the State. Hartsell & Williams, P.A., by Benjamin G. Goff and Christy E. Wilhelm, for defendant-appellant.
Appeal by defendant from judgment entered 22 August 2011 by Judge Howard E. Manning, Jr., in Wake County Superior Court. Heard in the Court of Appeals 18 June 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Marc Bernstein, for the State. Hartsell & Williams, P.A., by Benjamin G. Goff and Christy E. Wilhelm, for defendant-appellant.
ELMORE, Judge.
Tyree Jamal Bunch (defendant) appeals from the judgment entered after he pled guilty to felony possession of cocaine. Defendant contends that Judge Paul C. Ridgeway erroneously denied his motion to suppress cocaine seized following an investigatory stop. We affirm.
On 15 August 2010, Raleigh police officers were dispatched to respond to a large fight, during which two gunshots were fired. About a minute and a half after receiving the call from dispatch, Officer Patrick Browne saw seven or eight men cutting through the grass to walk out of Kingwood Forest Park. The area where Officer Browne encountered the men was about a two-tothree minute walk from the scene of the fight, and had a history of gun, drug, and gang activity. It was midnight at the time, and Officer Browne testified that all city parks close at 11:00 p.m. Officer Browne thought the men's behavior was “not normal” under the circumstances.
Officer Browne was able to stop five of the men, and he detained them while he waited for backup. Officer Browne recognized one of the detained men from a prior arrest and knew that he was a gang leader. A second officer arrived within about thirty seconds, and Officer Browne then conducted a frisk of the men for weapons. Officer Browne searched defendant first, because defendant kept “backing away” and trying to leave the area. During the frisk, Officer Browne felt a hard, two-by-two inch square object in defendant's right front pocket. Officer Browne asked defendant what the object was, and defendant told him, “I don't know, take it out and look at it.” The object was a jewelry box containing a single dose unit of crack cocaine, in a clear plastic bag. Field testing confirmed that the substance was cocaine, and Officer Browne arrested defendant.
Defendant filed a motion to suppress the cocaine, and the matter came on for a suppression hearing on 21 July 2011. On 10 August 2011, Judge Paul C. Ridgeway entered an order denying the motion. Judge Ridgeway concluded that Officer Browne's stop and frisk of defendant was reasonable and lawful, and that defendant gave valid consent to Officer Browne's search of the box. On 22 August 2011, defendant entered an open plea to felony possession of cocaine and preserved his right to appeal the order denying his motion to suppress. The trial court sentenced defendant to a 6 to 8 month prison term, which was then suspended, and defendant was placed on 18 months of supervised probation.
On appeal, defendant argues that Judge Ridgeway erred by denying his motion to suppress, because Officer Browne lacked a reasonable suspicion to stop and frisk him. We disagree.
“In reviewing the trial court's order following a motion to suppress, [appellate courts] are bound by the trial court's findings of fact if such findings are supported by competent evidence in the record; but the conclusions of law are fully reviewable on appeal.” State v. Smith, 346 N.C. 794, 797, 488 S.E.2d 210, 212 (1997) (citations omitted). “Accordingly, we review the trial court's pertinent findings of fact to determine whether they are supported by competent evidence from the record, and we review whether its conclusions of law are proper and ‘reflect[ ] a correct application of [law] to the facts found.’ “ State v. Waring, 364 N.C. 443, 470, 701 S.E.2d 615, 633 (2010) (citation omitted), cert. denied, sub nom Waring v. North Carolina, ––– U.S. ––––, 181 L.Ed.2d 53 (2011).
Here, defendant concedes that the trial court's findings of fact are supported by the evidence. Thus, the remaining issue related to the stop and frisk is whether the trial court's conclusions of law represent a correct application of the pertinent law to the facts of this case.
“The police can stop and briefly detain a person for investigative purposes if they have a reasonable suspicion supported by articulable facts that criminal activity may be afoot even if they lack probable cause.” State v. Hudgins, 195 N.C.App. 430, 433, 672 S.E.2d 717, 719 (2009) (internal quotation marks and brackets omitted) (quoting United States v. Sokolow, 490 U.S. 1, 2, 104 L.Ed.2d 1, 6 (1989)). “If upon detaining the individual, the officer's personal observations confirm that criminal activity may be afoot and suggest that the person detained may be armed, the officer may frisk him as a matter of self-protection.” State v. Rinck, 303 N.C. 551, 559, 280 S.E.2d 912, 919 (1981) (citing Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (1968)).
In evaluating whether an officer had a reasonable suspicion to stop and detain a defendant:
A court must consider “the totality of the circumstances—the whole picture” in determining whether a reasonable suspicion to make an investigatory stop exists.... The stop must 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.... The only requirement is a minimal level of objective justification, something more than an “unparticularized suspicion or hunch.”
State v. Campbell, 359 N.C. 644, 664, 617 S.E.2d 1, 14 (2005) (citations omitted), cert. denied,547 U.S. 1073, 164 L.Ed.2d 523 (2006). “When police act on the basis of an informant's tip, the indicia of the tip's reliability are certainly among the circumstances that must be considered in determining whether reasonable suspicion exists.” State v. Maready, 362 N.C. 614, 619, 669 S.E.2d 564, 567 (2008).
Viewing the totality of the circumstances in this case, we hold that Judge Ridgeway correctly concluded that Officer Browne's stop and frisk were proper. Defendant contends that Officer Browne's stop was based only on an anonymous tip. This argument, however, ignores the reality that Officer Browne's actions were based on both the information he received from the police dispatcher and his own observations, including: (1) the area where he first encountered defendant was known for gun, drug, and gang activity; (2) the group of seven or eight men emerged from a closed city park near midnight; (3) the park was a short distance from the site of the large reported fight where shots were fired; (4) Officer Browne saw the men a very short time after he received the report of the fight; (5) Officer Browne recognized one of the men in the group as a known gang leader he had previously arrested; and (6) after initially being cooperative, defendant subsequently attempted to back away from Officer Browne and leave the area while the officer waited for backup. We hold that these observations, made personally by Officer Browne, support both his decision to stop defendant and subsequent decision to frisk him.
After Officer Browne conducted the frisk, he asked defendant about the square object in his front pocket. Defendant told Officer Browne to “take it out and look at it.” Defendant argues that this consent to search was ineffective due to the unconstitutional stop and frisk, and that Officer Browne exceeded the scope of the purported consent by looking inside the jewelry box.
First, we note that because we disagree with defendant's contention that Officer Browne acted based only on an anonymous tip and not his own observations, we also disagree with his contention that his consent was tainted by the initial stop. Thus, we need only further address defendant's contention that Officer Browne's examination of the box exceeded the scope of defendant's consent.
“The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of ‘objective’ reasonableness—what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 114 L.Ed.2d 297, 302 (1991). Reasonableness is not easily defined:
In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.
Bell v. Wolfish, 441 U.S. 520, 559, 60 L.Ed.2d 447, 481 (1979).
Defendant's claim that his consent only extended to an examination of the exterior of the jewelry box, and not to the interior of the box, does not meet the reasonable person standard. The case cited by defendant in support of his argument, State v. Stone, 362 N.C. 50, 653 S.E.2d 414 (2007), examines the limits of a defendant's consent in light of an intrusive roadside search of the defendant's groin area. Thus, we find the facts of Stone to be inapposite of the facts here. Instead, we hold that a reasonable person in defendant's position who invited Officer Browne to “look at” the jewelry box would expect that Officer Browne would open the box to examine its contents. See State v. Leonard, 87 N.C.App. 448, 452–53, 361 S.E.2d 397, 400 (1987) (trial court properly concluded that officer did not exceed scope of consent by searching the inside of a container), appeal dismissed, disc. review denied, 321 N.C. 746, 366 S.E.2d 867 (1988). Accordingly, we affirm the order denying defendant's motion to suppress.
Affirmed. Judges HUNTER, ROBERT C., and McCULLOUGH concur.
Report per Rule 30(e).