Opinion
No. COA10-1436
Filed 5 July 2011 This case not for publication
Appeal by the State from order entered 15 June 2010 by Judge J. Carlton Cole in Durham County Superior Court. Heard in the Court of Appeals 13 April 2011.
Attorney General Roy A. Cooper, by Assistant Attorney General LaToya B. Powell, for the State. William D. Spence for defendant-appellee.
Durham County Nos. 06 CRS 58801, 07 CRS 12622.
Where the findings of fact were sufficient to support probable cause based on prior case authority, we reverse the trial court's conclusion that the arresting officer lacked probable cause to seize contraband found in defendant's possession.
Facts and Procedural History
On 15 October 2007, defendant Antonio McKever was indicted for possession with intent to sell or deliver a schedule II substance, maintaining a vehicle for the purpose of keeping or selling a controlled substance, possession of drug paraphernalia, and for attaining habitual felon status. In April 2010, defendant made a pre-trial motion to suppress tangible evidence. The motion stated the following:
1. The Defendant was arrested without a warrant on or about 10 December 2006 for Possession with the Intent to Sell/Deliver Schedule II (crack cocaine), Maintaining a Vehicle for the Purpose of Selling a Controlled Substance and Possession of Drug Paraphernalia.
2. On 10 October 2006, the defendant was seized and searched by the Durham City Police Department without probable cause and in the absence of reasonable grounds to suspect that the Defendant had committed a crime.
3. The Defendant was in a vehicle with the parking lights on that was backed into the drive of 2416 Owen Street. The Defendant was asked to exit the vehicle and searched after this initial unlawful stop and seizure.
4. The Durham City Police Officer failed to obtain a search warrant to search the Defendant nor did the Defendant give consent to the search.
The motion to suppress requested that the trial court suppress the tangible items seized from defendant, including but not limited to the cocaine and metal crack pipe allegedly found in defendant's possession.
In June 2010, the trial court held a hearing on defendant's pre-trial motion to suppress. At the close of the two-day hearing, the trial court made the following findings of fact, in pertinent part:
[t]he police officer [(Officer Joshua Leconey] who conducted the investigation and the stops and the search testified that [during] . . . the first stop he conducted his investigation [of defendant] and found nothing. [Officer Leconey] had received a tip from a confidential informant, he conducted his investigative stop, found nothing, and allowed the defendant to leave.
Some one hour later, . . . [Officer Leconey] was traveling in the vicinity of 2416 Owen Street, at which time he saw a car backed into a driveway at that location with the parking lights on. That he stopped his vehicle and approached the defendant's vehicle. He testified that it was, in his opinion, . . . approximately 30 degrees outside. That as he approached the defendant's car, his left leg was out of the car, and as he moved around he was able to observe a piece of plastic in the defendant's hand.
Based on that, [Officer Leconey] asked the defendant out of the car, had him raise his hands. He then stuck his hand into the defendant's left pocket and removed from the left pocket what he believed was crack cocaine packaged in a manner which he had in his earlier testimony described how much substance was packaged in the baggy and cut [sic].
[Officer Leconey] then, after finding the plastic bag containing a rock-like substance, . . . placed him in cuffs and went into his pockets and took out the pipe.
[Officer Leconey] testified that the defendant at that time appeared to be nervous and he described how his hand was shaking. . . .
And the defendant was shaking and beads of sweat were rolling off. He asked him if [defendant] was okay, as he saw the sweat on his forehead. And that's when he observed the plastic in the left fist and saw him put it in his pocket. And based on that, the defendant's conduct, or appearance of nervousness, he then had him raise his hands and take the contraband from his pocket.
Based on the foregoing findings of fact, the trial court concluded that "the mere presence of the piece of plastic in the hand of the defendant, along with the defendant's sweat, beads of sweat, shaking, alone did not rise to the level that would give [Officer Leconey] sufficient probable cause to remove the contraband from the pocket of the defendant." The trial court granted defendant's motion to suppress. The State appeals.
On appeal, the State's sole argument is that the trial court erred in concluding Officer Leconey lacked probable cause to seize the contraband in defendant's pocket, where the totality of the circumstances showed that the officer lawfully approached defendant's vehicle and, in plain view, observed what was immediately apparent to him to be drug paraphernalia. We agree."[T]he standard of review in evaluating a trial court's ruling on a motion to suppress is that the trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. The trial court's conclusions of law, however, are fully reviewable." State v. Nixon, 160 N.C. App. 31, 33, 584 S.E.2d 820, 822 (2003) (citation omitted). Because the State does not except to any findings of fact and challenges only conclusions of law,
our review is strictly limited to determining whether . . . [the findings of fact] support the judge's ultimate conclusions of law. Indeed an appellate court accords great deference to the trial court in this respect because it is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision, in the first instance, as to whether or not a constitutional violation of some kind has occurred.
State v. Williams, 190 N.C. App. 301, 306, 660 S.E.2d 189, 192 (2008) (citing State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619-2 (1982)). Conclusions of law are reviewed de novo. Id. (citation omitted). "Further, the trial court's conclusions of law must be legally correct, reflecting a correct application of applicable legal principles to the facts found." State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997) (citation omitted). Therefore, the determinative issue before this Court is whether the trial court's findings of fact support its conclusion that "the mere presence of the piece of plastic in the hand of the defendant, along with the defendant's sweat, beads of sweat, shaking, alone did not rise to the level that would give the officer sufficient probable cause to remove the contraband from the pocket of the defendant."
"[T]he better reasoned view is to consider the totality of the circumstances in determining whether the incriminating nature of the object was immediately apparent and thus, probable cause existed to seize it." State v. Briggs, 140 N.C. App. 484, 493, 536 S.E.2d 858, 863 (2000). "A probable cause determination does not require hard and fast certainty by the officer but involves more of a common-sense determination considering evidence as understood by those versed in the field of law enforcement." State v. Robinson, 189 N.C. App. 454, 459, 658 S.E.2d 501, 505 (2008). "When the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution in the belief that the item may be contraband, probable cause exists." Briggs, 140 N.C. App. at 493, 536 S.E.2d at 863.
The State argues that Officer Leconey's seizure of the plastic baggy found in defendant's pocket was justified under the "plain view" doctrine of the Fourth Amendment of the United States Constitution. The State contends that Officer Leconey was in a place where he had a right to be when he discovered the evidence, that he inadvertently discovered the plastic baggy in defendant's hand, and that the plastic baggy was immediately apparent to Leconey to be drug paraphernalia, fulfilling the requirements of the plain view doctrine. Accordingly, the State argues the trial court made sufficient findings of fact to conclude that Officer Leconey had probable cause to believe defendant was holding contraband in his hand.
"Generally, warrantless searches are presumed to be unreasonable and therefore violative of the Fourth Amendment of the United States Constitution." State v. Carter, 200 N.C. App. 47, 50-1, 682 S.E.2d 416, 419 (2009) (citation omitted).
One exception to the warrant requirement is the plain view doctrine, under which police may seize contraband or evidence if (1) the officer was in a place where he had a right to be when the evidence was discovered; (2) the evidence was discovered inadvertently; and (3) it was immediately apparent to the police that the items observed were evidence of a crime or contraband.
Id. at 54, 682 S.E.2d at 421 (citations omitted) (emphasis added).
[T]he scope of the Fourth Amendment is not determined by the subjective conclusion of the law enforcement officer. The officer's subjective opinion is not material, nor are the courts bound by an officer's mistaken legal conclusion as to the existence or non-existence of probable cause[.] The search or seizure is valid when the objective facts known to the officer meet the standard required."
State v. Peck, 305 N.C. 734, 741, 291 S.E.2d 637, 641-2 (1982) (internal citations omitted).
Accordingly, we will now examine the totality of the circumstances surrounding the case before us based upon the findings of fact made by the trial court. Officer Leconey testified that he was a member of the Durham Police Department for four years and that he had worked on numerous cases involving the type of controlled substance found to be in defendant's possession. Officer Leconey received a tip from a confidential informant stating that defendant was selling cocaine out of his vehicle, but upon his investigative stop of defendant, found nothing and allowed defendant to leave. An hour later, as Officer Leconey was traveling along 2416 Owen Street, he observed a car backed into a driveway with its parking lights on. Officer Leconey approached the car, which happened to be defendant's vehicle, saw that defendant's left leg was outside of the car, and observed a piece of clear plastic in defendant's hand as defendant was moving around. Officer Leconey further testified that although it was thirty degrees outside, defendant was shaking, sweating and appeared to be nervous. Officer Leconey testified as follows: "I observed the plastic baggy sticking out with the knot and with it cut off, which, in my experience, that I've had in four years of the many dope arrests I've had, drugs are packaged that way." After observing defendant's fist with the clear plastic sticking out of it, defendant "put it in his left pocket, coat pocket, in a quick manner." Viewing defendant's actions as a safety hazard, coupled with defendant's nervousness, Officer Leconey asked defendant to raise his hands and reaching in to defendant's pocket, seized what he believed to be contraband.
We note that "[n]ervousness, like all other facts, must be taken in light of the totality of the circumstances." State v. McClendon, 350 N.C. 630, 638, 517 S.E.2d 128, 134 (1999). However, because it was a spontaneous encounter, Officer Leconey was in a place where he had a right to be, the evidence seized was discovered inadvertently, and the packaging was immediately apparent to Officer Leconey as evidence of contraband, fulfilling the prongs of the plain view doctrine.
The State relies heavily on State v. Green, 146 N.C. App. 702, 554 S.E.2d 834 (2001), arguing that the facts of Green are indistinguishable from those in the case sub judice. We agree. The defendant in Green argued that the trial court erred in denying his motion to suppress when the arresting officer did not have probable cause. The Green defendant contended that it was not "immediately apparent" to the officer that defendant's items were evidence of a crime or contraband. Id. at 706, 554 S.E.2d at 836. The facts of Green are as follows: the arresting officer approached a group of people loitering in a known drug trafficking area. The officer testified that as he approached the group, the defendant bent down and placed something on the ground. As the defendant began walking away, the officer noticed a beer bottle on the ground close to where the defendant had been standing. The officer testified that he approached the defendant to verify he was not engaging in underage drinking. As the defendant turned to face the officer, the defendant placed one of his hands into his front pocket.
[The officer] then asked defendant if he would consent to a pat down. Defendant replied, "I ain't got nothing," and raised his hands above his head. As defendant raised his arms, his shirt rose above his waistband, revealing approximately two inches of a plastic baggie sticking out of his pants pocket. [The officer] testified that based on his "prior experience and training, and knowing how drugs are packaged, [he] retrieved it and found [] green vegetable matter which appeared to . . . be marijuana."
Id. at 704, 554 S.E.2d at 835.
The trial court in Green made the following findings of fact, in pertinent part:
10. At that time [the defendant] raised his hands] [the officer] saw in plain view a plastic baggie commonly used for wrapping sandwiches, and also, according to his education and experience, is used for the packaging and re-packaging of controlled substances, in particular marijuana.
11. [The officer] further testified that this baggie appeared to have some green vegetable material in it, which his education and training indicated to him to be marijuana.
Id. at 705, 554 S.E.2d at 835. This Court recognized that "[a]lthough the trial court's findings of fact could be more clear as to when [the officer] observed the marijuana-like substance, finding of fact number eleven is clearly supported by the evidence. . . . We decline to draw implications from the trial court's finding beyond its plain words." Id. at 705, 554 S.E.2d at 836. Upon a review of the totality of the circumstances, this Court held that evidence was sufficient to show it was immediately apparent to the officer that the plastic baggy was evidence of contraband and upheld the trial court's order denying defendant's motion to suppress. Id. at 708, 554 S.E.2d at 837. Our Court concluded that the officer's seizure was justified under the "plain view" exception to the Fourth Amendment.
Therefore, because the circumstances in Green are almost indistinguishable from the circumstances leading to the seizure of a controlled substance in the instant case, Green controls our analysis and result. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (stating that "[w]here a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court."). Because the findings of fact were sufficient to support probable cause to seize the contraband in defendant's possession, we reverse the trial court's grant of defendant's motion to suppress.
Reversed.
Judges HUNTER, Robert C. and MCCULLOUGH concur.
Report per rule 30(e).