Opinion
No. COA15-1181
07-19-2016
STATE OF NORTH CAROLINA v. TYRUS ERSKIN WINSLOW, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General John A. Payne, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jon H. Hunt, for the 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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, 09CRS019490, 37207 Appeal by Defendant from judgment entered 14 March 2011 by Judge H. William Constangy in Mecklenburg County Superior Court. Heard in the Court of Appeals 28 April 2016. Attorney General Roy A. Cooper, III, by Assistant Attorney General John A. Payne, for the State. Appellate Defender Glenn Gerding, by Assistant Appellate Defender Jon H. Hunt, for the Defendant. DILLON, Judge.
Tyrus Erskin Winslow ("Defendant") appeals from judgment entered upon his guilty plea for possession with intent to sell or deliver a controlled substance and for attaining the status of a habitual felon. Defendant appeals from the trial court's denial of his motion to suppress. For the following reasons, we affirm.
I. Background
The evidence tended to show the following: On 18 February 2009, two officers were patrolling a hotel parking lot in an unmarked patrol car. The officers saw Defendant "loitering" in the hotel parking lot and viewed the circumstances as "suspicious." After approaching Defendant in their vehicle, one officer recognized Defendant from an unrelated drug call, and believed that Defendant had been banned from the hotel.
When the officers approached Defendant, they identified themselves as police officers and asked to speak with him. In response to one of the officer's questions, Defendant stated that he did not know that he had been banned from the hotel and that he had neither a room in the hotel nor proof of identification. When asked, Defendant objected to a full search, but did not object to a pat down.
During the pat down, the officer felt a "cutting instrument" in Defendant's pocket, which he removed and identified as a box cutter with the blade exposed. Having recovered the box cutter, the officer believed that he had probable cause to arrest Defendant for carrying a concealed weapon and placed Defendant in handcuffs. The officer continued the pat down, finding a second box cutter, as well as a "wadded silver gum wrapper" which held two rocks of what appeared to be crack cocaine.
Defendant filed a motion to suppress the evidence obtained as a result of the pat down and search, claiming the officers lacked a "reasonable and articulable suspicion that [Defendant] was committing a crime." After the trial court denied Defendant's motion, Defendant pleaded guilty to the charged offenses, reserving his right to appeal the denial of his suppression motion. Defendant filed timely notice of appeal with this Court.
II. Analysis
In this case, the officers' search of Defendant was in two phases. During the first phase, the officers conducted a pat down of Defendant, whereupon they discovered a box cutter. During the second phase, after discovering the box cutter, the officers conducted a search incident to an arrest, whereupon they discovered the illegal drugs.
On appeal, Defendant challenges only the first phase of the search. Specifically, Defendant argues that the officers lacked reasonable suspicion to conduct the pat down. Defendant makes no argument regarding the second phase of the search, including whether the officers had probable cause to arrest him and to conduct a full search incident to arrest. Accordingly, the only issue before this Court is whether the pat down of Defendant was lawful. See Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) ("It is not the role of the appellate courts . . . to create an appeal for an appellant.").
We hold that the officers' pat down of Defendant was lawful based on the trial court's conclusion that Defendant gave voluntary consent.
We review the trial court's denial of a motion to suppress evidence to 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. McKinney, 368 N.C. 161, 163, 775 S.E.2d 821, 824 (2015). We review the trial court's conclusions of law de novo. State v. Gabriel, 192 N.C. App. 517, 519, 665 S.E.2d 581, 584 (2008).
The trial court found that the officers asked Defendant if they could (1) pat him down for officer safety and (2) if they could search him. The trial court also found that while Defendant objected to being searched, he did not object to a pat down. Specifically, one of the officers testified that Defendant responded, "Yeah, you can pat me down." Moreover, Defendant elicited testimony from the officers on cross-examination that Defendant had consented to a pat down. In its order, the trial court essentially concluded that Defendant consented to the pat down. We conclude that the trial court's findings regarding Defendant's consent to the pat down are supported by the evidence.
"An encounter between a law enforcement officer and a citizen does not implicate the Fourth Amendment's prohibition against unreasonable searches and seizures in the absence of a 'seizure' of the person." State v. Williams, 201 N.C. App. 566, 569, 686 S.E.2d 905, 907 (2009) (citing Florida v. Royer, 460 U.S. 491, 498 (1983)). A seizure does not occur "simply because a police officer approaches an individual and asks a few questions." Florida v. Bostick, 501 U.S. 429, 434 (1991). An encounter "will not trigger Fourth Amendment scrutiny unless it loses its consensual nature." Id. At the time of the pat down, Defendant was not "seized." See State v. Farmer, 333 N.C. 172, 188, 424 S.E.2d 120, 129 (1993) (considering the following facts in concluding that defendant was not seized for 4th Amendment purposes: (1) officers did not summon the defendant into their presence, but approached him and identified themselves as law enforcement officers; (2) officer requested information concerning the defendant's identity and place of residence rather than demanding answers; and (3) officers did not display weapons); see also State v. Icard, 363 N.C. 303, 309, 677 S.E.2d 822, 827 (2009).
In the present case, the officers approached Defendant in the parking lot, identified themselves as police officers, and asked to speak with him. One of the officers asked Defendant for identification and whether he was renting a room at the hotel, and Defendant responded "no" to both questions. The officers "did not obstruct his path or prevent him from leaving, . . . nor did they draw their weapons at any point or threaten [] Defendant." These facts fully support the trial court's findings and its conclusion of law that the search was conducted with valid consent. Therefore, the pat down was lawful and this Court affirms the trial court's denial of Defendant's motion to suppress. See State v. Garner, 340 N.C. 573, 592, 459 S.E.2d 718, 728 (1995).
AFFIRMED.
Chief Judge McGEE and Judge ZACHARY concur.
Report per Rule 30(e).