Opinion
No. COA07-1369.
Filed 7 October 2008.
Wake County No. 07 CRS 1582.
Appeal by Defendant from order and judgment dated 19 July 2007 by Judge Kenneth C. Titus in Superior Court, Wake County. Heard in the Court of Appeals 19 August 2008.
Attorney General Roy Cooper, by Special Deputy Attorney General Marc Bernstein, for the State. Mercedes O. Chut for Defendant-Appellant.
Earnest Eugene Kemp (Defendant) entered a plea of guilty on 19 July 2007 to possession with intent to sell and deliver cocaine. The trial court sentenced Defendant to six months to eight months in prison.
At trial, Officer S.R. Davis (Officer Davis) and Officer Maxwell Lee Taylor (Officer Taylor) (collectively the officers) with the Raleigh Police department testified they were patrolling the area around Defendant's apartment building on 14 January 2007. Two to three weeks earlier, the officers had received information from a resident in Defendant's apartment building that narcotics activity was occurring at the apartment building. After receiving this information, Officers Davis and Taylor conducted nightly surveillance of Defendant's apartment building. During the course of their surveillance, Officers Davis and Taylor observed activity consistent with drug activity, such as people driving to the apartment building, staying for a few minutes, and then leaving.
As a result of observing this activity, Officers Davis and Taylor conducted a closer investigation of the apartment building on the evening of 14 January 2007. Officers Davis and Taylor walked to opposite sides of Defendant's apartment building while they arranged for a second patrol car to approach the building from the front, shining its lights on the apartment building. The officer in the patrol car reported to Officers Davis and Taylor that the people who were standing outside the apartment building moved into the breezeway when his patrol car turned into the parking lot. Officers Davis and Taylor began walking from their respective sides of the apartment building towards the doors to the breezeway where the people were now standing with their backs against the wall.
As Officer Taylor approached the door, he shined his flashlight and saw Defendant standing inside the door. Officer Taylor noticed that Defendant had dropped a carpet cutter razor blade on the ground. As Officer Davis approached Defendant from the opposite side, Officer Taylor alerted Officer Davis that there was a razor blade on the ground. Officer Davis told Defendant to sit on the nearby steps and he handcuffed Defendant. Officer Davis testified he could not recall if he handcuffed Defendant before drugs were found in Defendant's mouth or afterwards. Officer Davis testified that for both his own safety and a suspect's safety, he often handcuffed the suspect when a weapon was present.
After Defendant sat on the steps, Officer Davis engaged in a conversation with Defendant to let Defendant know why the officers were at the apartment building. Officer Davis could not understand Defendant's speech and described Defendant as having "mush mouth." Officer Davis testified that in his experience, suspects frequently hid drugs or weapons in their mouths and that suspects usually swallowed the drugs before the police could recover them. Officer Davis ordered Defendant to spit out the drugs, and Defendant eventually complied, expelling four individually wrapped bags of crack cocaine. Officer Davis then arrested Defendant and recovered the drugs.
Defendant was indicted on 5 March 2007 for possession with intent to sell or deliver cocaine. Defendant filed a motion to suppress on 25 May 2007, seeking to suppress certain items of evidence obtained during the search of Defendant's person on 14 January 2007. Defendant argued that such evidence was obtained by an illegal search and seizure of Defendant by Officers Davis and Taylor. After hearing the evidence, the trial court entered an order dated 19 July 2007 denying Defendant's motion to suppress. Defendant appeals.
"In reviewing denial of a motion to suppress, this Court must determine: `whether the trial judge'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 judge's ultimate conclusions of law.'" State v. Parker, 137 N.C. App. 590, 594, 530 S.E.2d 297, 300 (2000) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). While a trial court's factual findings are binding if the findings are supported by the evidence, the trial court's conclusions based thereon are reviewable de novo on appeal. Id. (citing State v. Mahaley, 332 N.C. 583, 592-93, 423 S.E.2d 58, 64 (1992), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 649 (1995)).
Defendant argues the trial court erred in: (1) denying Defendant's motion to suppress where police lacked reasonable suspicion for an investigatory stop; (2) denying Defendant's motion to suppress where police lacked probable cause for an arrest; and (3) entering an order denying Defendant's motion to suppress where the order did not contain findings of fact and conclusions of law. We disagree and affirm the trial court's order.
I.
In his first assignment of error, Defendant argues the trial court erred in denying his motion to suppress where police lacked reasonable suspicion for making an investigatory stop. We disagree.
"`The Fourth Amendment to the Constitution of the United States and Section 20 of Article I of the North Carolina Constitution prohibit? unreasonable searches and seizures.'" State v. Stone, 179 N.C. App. 297, 302, 634 S.E.2d 244, 247 (2006) (quoting State v. Sanchez, 147 N.C. App. 619, 623, 556 S.E.2d 602, 606 (2001), disc. review denied, 355 N.C. 220, 560 S.E.2d 358 (2002)). "The prohibition against unreasonable searches and seizures applies to `"seizures of the person, including brief investigatory detentions[.]"'" Stone, 179 N.C. App. at 302, 634 S.E.2d at 247 (quoting Sanchez, 147 N.C. App. at 623, 556 S.E.2d at 606 (quoting State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994))).
"`An investigatory stop must be justified by "a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity."'" Id. (quoting Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (quoting Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979))). "`Similarly, an officer may frisk a person where the officer reasonably suspects that "criminal activity may be afoot and that the [person] with whom he is dealing may be armed and presently dangerous[.]"'" Stone, 179 N.C. App. at 302, 634 S.E.2d at 248 (quoting State v. Shearin, 170 N.C. App. 222, 226, 612 S.E.2d 371, 375 (quoting Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911 (1968)), disc. review denied, 360 N.C. 75, 624 S.E.2d 369 (2005)). "In determining whether reasonable suspicion existed for a stop or frisk, a trial court must consider the totality of the circumstances." Stone, 179 N.C. App. at 302, 634 S.E.2d at 24 (citing Shearin, 170 N.C. App. at 226, 612 S.E.2d at 376).
In the present case, Defendant cites State v. Fleming, 106 N.C. App. 165, 415 S.E.2d 782 (1992), in support of his argument. In Fleming, a police officer observed the defendant and another man standing between two apartment buildings in an area where numerous arrests for drug offenses had occurred and where the officer knew crack cocaine and other contraband were sold daily. Fleming, 106 N.C. App. at 166, 415 S.E.2d at 783. The officer then stopped the defendant and patted him down for the sole reason that the officer had not seen the defendant and the other man before. Id. at 167, 415 S.E.2d at 783. Our Court held that these facts were insufficient to create a basis for an investigatory stop. Id. at 170-71, 415 S.E.2d at 785-86.
The case before us, however, is distinguishable from Fleming in that Officers Davis and Taylor acted on more than simply the knowledge of a traditionally criminal neighborhood and the presence of a non-resident. After they received information of drug activity from a resident of Defendant's apartment building, and after they conducted nightly surveillance of the apartment building for two to three weeks, Officers Davis and Taylor formed a reasonable suspicion of the existence of drug activity at Defendant's apartment building. Officer Taylor also observed a razor blade on the ground near where Defendant was standing. These facts considered in the totality of the circumstances gave rise to a reasonable suspicion of illegal drug activity in the minds of Officers Davis and Taylor when they conducted a legal stop of Defendant.
Defendant also cites Florida v. J.L., 529 U.S. 266, 146 L. Ed. 2d 254 (2000), in support of his argument. In J.L., officers frisked and seized the defendant after receiving an anonymous tip that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. J.L., 529 U.S. at 268, 146 L. Ed. 2d at 258-59. The Supreme Court of the United States upheld the trial court's order granting the defendant's motion to suppress and held that the anonymous tip did not create the reasonable, articulable suspicion required to justify an investigatory stop. Id. at 271, 146 L. Ed. 2d at 260.
The present case is again distinguishable. Unlike J.L., the informant in the present case was not anonymous. Officer Davis spoke directly with the informant while on a previous disturbance call. Officer Taylor testified that it appeared Officer Davis knew the informant. Furthermore, Officers Davis and Taylor acted on more than just the informant's tip. In addition to the tip, Officers Davis and Taylor conducted two to three weeks of surveillance of Defendant's apartment building where they observed conduct consistent with drug activity. Officer Taylor also saw that Defendant had dropped a razor blade on the ground.
Officers Davis and Taylor testified they were experienced in drug investigations. Officer Davis testified that at Defendant's apartment building area they had "observed ourselves what's consistent to drug activity. People coming in with vehicles, staying for approximately a few minutes at a time and leaving." Officers Davis and Taylor observed this same type of behavior during their two to three weeks of surveillance of Defendant's apartment building. Also, the officers had received information from a resident in Defendant's apartment building that drug activity was occurring there. Therefore, as the officers approached Defendant's apartment building on the night of Defendant's arrest, they were suspicious of drug activity. As the officers approached, their suspicions further increased when they observed people move into the breezeway and stand with their backs against the wall in a manner consistent with an attempt to avoid detection. Finally, Officer Taylor also saw that Defendant had dropped a razor blade on the ground near where Defendant was standing. Thus, there was ample evidence for Officers Davis and Taylor to form a reasonable suspicion that Defendant was involved in criminal activity. Therefore, we hold that the officers had reasonable suspicion to conduct an investigatory stop of Defendant.
II.
Defendant argues in his second assignment of error that the trial court erred in denying Defendant's motion to suppress certain evidence where police lacked probable cause to conduct a warrantless arrest of Defendant. We disagree.
As the State correctly contends, deprivations of liberty are not always arrests for which probable cause is required. "[W]hen conducting investigative stops, police officers are `authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop.'" State v. Campbell, ___ N.C. App. ___, ___, 656 S.E.2d 721, 727 (2008) (quoting U.S. v. Hensley, 469 U.S. 221, 235, 83 L. Ed. 2d 604, 616 (1985)). In Hensley, the United States Supreme Court held that police officers acted reasonably in arresting a passenger in the defendant's vehicle after recognizing the passenger as a convicted felon and observing the butt of a revolver protruding from underneath the passenger's seat. Hensley, 469 U.S. at 224, 83 L. Ed. 2d at 609. The officers searched the vehicle, found other handguns, and arrested the defendant. Id. at 225, 83 L. Ed. 2d at 609. The Supreme Court held that the seizure of the revolver located under the passenger's seat and the subsequent search of the passenger compartment were reasonably necessary to protect the officers' safety and therefore were authorized. Id. at 235, 83 L. Ed. 2d at 616. Similarly, in Campbell, ___ N.C. App. at ___, 656 S.E.2d at 727, our Court recently held that police officers acted reasonably under Hensley by handcuffing a defendant they deemed to be a flight risk, and that the officers' actions did not convert the stop into an arrest.
"[T]he permissible scope of a Terry stop has expanded in the past few decades, allowing police officers to neutralize dangerous suspects during an investigative detention using measures of force such as placing handcuffs on suspects, placing the suspect in the back of police cruisers, drawing weapons, and other forms of force typically used during an arrest.
Campbell, ___ N.C. App. at ___, 656 S.E.2d at 727 (quoting Longshore v. State, 399 Md. 486, 924 A.2d 1129, 1142 (2007)); see also U.S. v. Crittendon, 883 F.2d 326, 329 (4th Cir. 1989) ("Brief, even if complete, deprivations of a suspect's liberty do not convert a stop and frisk into an arrest so long as the methods of restraint used are reasonable to the circumstances."). In the present case, Officer Taylor saw that Defendant had dropped a carpet cutter razor blade on the ground and he alerted Officer Davis to the presence of the blade. Officer Davis then told Defendant to sit on the nearby steps and he handcuffed Defendant. Under these circumstances, when a weapon was within reach of Defendant and it was reasonable to consider that Defendant had other weapons on his person, Officer Davis acted reasonably in handcuffing Defendant for both his own and Defendant's personal safety. Handcuffing Defendant was reasonably necessary to prevent Defendant from grabbing the nearby razor blade and from reaching for any other possible weapons on his person.
Because the use of handcuffs was warranted under the circumstances to protect the personal safety of Officer Davis and Defendant, the actions of Officer Davis did not transform the investigatory stop into an arrest, and thus probable cause was not required. Officer Davis arrested Defendant after discovering drugs in Defendant's mouth, at which time probable cause existed for the warrantless arrest. We, therefore, affirm the trial court's order denying Defendant's motion to suppress.
"`[T]he use of firearms, handcuffs, and other forceful techniques does not necessarily transform a Terry detention into a full custodial arrest — for which probable cause is required — when the circumstances reasonably warrant such measures.'" U.S. v. Shareef, 100 F.3d 1491, 1502 (10th Cir. 1996) (quoting U.S. v. Melendez-Garcia, 28 F.3d 1046, 1052 (10th Cir. 1994) (internal quotation marks omitted)).
III.
In his final assignment of error, Defendant argues the trial court erred in failing to make findings of fact and conclusions of law in its order denying Defendant's motion to suppress. We disagree.
Pursuant to N.C. Gen. Stat. § 15A-977(f) (2007), "[t]he judge must set forth in the record his findings of fact and conclusions of law" upon hearing a motion to suppress. However, both Defendant and the State agree that an exception to this rule occurs when there is no material conflict in the evidence. "[W]here there is no material conflict in the evidence presented at the suppression hearing, specific findings of fact are not required." State v. Leach, 166 N.C. App. 711, 715, 603 S.E.2d 831, 834 (2004) (citing State v. Parks, 77 N.C. App. 778, 336 S.E.2d 424 (1985)). Because there is no material conflict in the evidence in the present case, we conclude the exception applies, and thus, no written findings of fact and conclusions of law were required of the trial court.
Defendant argues there was a material conflict in the evidence solely because Officer Davis could not recall at exactly what point he handcuffed Defendant. However, the faulty memory of Officer Davis as to the exact timing of the handcuffing did not result in an inconsistency or material conflict in the evidence. The testimony of Officer Davis did not conflict with any other testimony or evidence presented by the State or by Defendant. The trial court, as fact finder, had no facts to resolve when there was no conflict in the testimony. There is insufficient evidence to conclusively determine when the handcuffing took place, but this does not equate to a material conflict in the evidence. Thus, because there was no material conflict in the evidence, the trial court was not required to enter written findings of fact and conclusions of law. Leach, 166 N.C.App. at 715, 603 S.E.2d at 834 (2004) (citing Parks, 77 N.C. App. 778, 336 S.E.2d 424 (1985)). We affirm the order of the trial court.
Affirmed.
Judges McCULLOUGH and STROUD concur.
Report per Rule 30(e).