State v. Beveridge

436 S.E.2d 912 (1993)

STATE of North Carolina v. Michael Scott BEVERIDGE.

No. 921SC931.

Court of Appeals of North Carolina.

December 7, 1993.

*914 Attorney Gen. Lacy H. Thornburg by Asst. Atty. Gen. Anita LeVeaux Quigless, Raleigh, for the State.

Merrell, Tillett & Barnes by Edgar L. Barnes, Nags Head and Phillip H. Hayes, Jr., Avon, for defendant-appellant.

ORR, Judge.

Even though the defendant in the case at bar has entered a plea of guilty to the charges against him, he has preserved his right of appeal pursuant to N.C.Gen.Stat. § 15A-979(b) from the denial of his motion to suppress the evidence seized as a result of the search by Officer Gregory. Defendant contends on appeal that the cocaine was found as a result of an unlawful search and seizure, thereby violating his rights under the Fourth Amendment of the United States Constitution and the Constitution of the State of North Carolina. We agree with defendant's argument and reverse the decision of the trial court.

We note at the onset that in a review of the denial of defendant's motion to suppress, we must first determine whether there was competent evidence to support the trial court's findings of fact. If the evidence presented was competent, the findings are conclusive and binding on appeal. State v. Fleming, 106 N.C.App. 165, 415 S.E.2d 782 (1992). Defendant has not contested the findings or conclusions of the trial court. They are therefore conclusive and binding on this Court. Id. at 168, 415 S.E.2d at 784.

As defendant correctly points out, the Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), provides the guarantee of "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. IV. Similarly, the Constitution of the State of North Carolina states that "[g]eneral warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted." N.C. Const. art. I, § 20. "[A] governmental search and seizure of private property unaccompanied by prior judicial approval in the form of a warrant is per se unreasonable unless the search falls within a welldelineated exception to the warrant requirement involving exigent circumstances." *915 State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982).

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) created one such exception. In Terry, the Supreme Court held that an officer may conduct a pat-down search to determine whether the person is in fact carrying a weapon. "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." Adams v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1922, 32 L. Ed. 2d 612, 617 (1972). If a search goes beyond the bounds justifiable in determining that the suspect is armed, then any evidence found as a result of such a search will be suppressed as "fruit of the poisonous tree." Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). The courts of North Carolina follow these same constitutional principles. State v. Vernon, 45 N.C.App. 486, 263 S.E.2d 340 (1980); State v. Wooten, 18 N.C.App. 269, 196 S.E.2d 603, appeal dismissed, 283 N.C. 670, 197 S.E.2d 879 (1973); State v. Harris, 95 N.C.App. 691, 384 S.E.2d 50 (1989), aff'd, 326 N.C. 588, 391 S.E.2d 187 (1990).

However, in Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), the United States Supreme Court held that "if, while conducting a legitimate Terry search ... the officer should discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances." The courts of North Carolina have likewise consistently held that "in the conduct of the limited weapons search, contraband or evidence of a crime is of necessity exposed, the officer is not required by the Fourth Amendment to disregard such contraband or evidence of crime." State v. Streeter, 17 N.C.App. 48, 50, 193 S.E.2d 347, 348 (1972). Moreover, North Carolina has also extended the limits of the Terry pat-down and have held that "[w]hen an officer makes a lawful arrest of an occupant of an automobile and conducts a contemporaneous search of the automobile incident to that arrest, he may ask passengers to step out of the vehicle so he may complete his investigation." State v. Adkerson, 90 N.C.App. 333, 338, 368 S.E.2d 434, 437 (1988), quoting State v. Collins, 38 N.C.App. 617, 248 S.E.2d 405 (1978). "`When there are reasonable grounds to order an occupant out of the car, then he may be subjected to a limited search for weapons when the facts available to the officer justify the belief that such an action is appropriate.'" Id. "`The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" Id. quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1882, 20 L. Ed. 2d at 909.

The above cases are justified by reference to the "plain view" doctrine, which generally allows an officer to seize evidence when the initial intrusion which brings the evidence into plain view is lawful, and it is immediately apparent to the police that the items observed constitute evidence of a crime, are contraband, or are otherwise subject to seizure. State v. Church, 110 N.C.App. 569, 430 S.E.2d 462 (1993); see also Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990).

The constitutional guarantee against unreasonable search and seizure does not apply where a search is not necessary, and where the contraband subject matter is fully disclosed to the eye and hand. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972).

The plain view doctrine has now been expanded by the United States Supreme Court in Minnesota v. Dickerson, ___ U.S. ___, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). On facts remarkably similar to the case sub judice, the Court held that the "[plain view] doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search." Id. at ___, 113 S. Ct. at 2137, 124 L. Ed. 2d at 345.

*916 If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.

Id. at ___, 113 S. Ct. at 2137, 124 L. Ed. 2d at 346. "The seizure of an item whose identity is already known occasions no further invasion of privacy." Id. at ___, 113 S. Ct. at 2138, 124 L. Ed. 2d at 347. "Thus, the dispositive question ... is whether the officer who conducted the search was acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent's jacket was contraband." Id.

In Dickerson, the officer conducted a Terry pat-down and felt a small, hard object wrapped in plastic in the defendant's pocket. He then formed the opinion that the object was crack cocaine, and then began "squeezing, sliding, and otherwise manipulating the contents of the defendant's pocketa pocket which the officer already knew contained no weapon." Id. The Court stated that "[a]lthough the officer was lawfully in a position to feel the lump in respondent's pocket, because Terry entitled him to place his hands on respondent's jacket, ... the incriminating character of the object was not immediately apparent to him." Id. at ___, 113 S. Ct. at 2139, 124 L. Ed. 2d at 348 (emphasis added). The Court concluded that the continuing search to determine specifically what was in the defendant's pocket was beyond the scope of the lawful weapons search.

Likewise in the case before us, while Officer Gregory was justified in conducting a limited pat-down of the defendant to determine whether the defendant was armed, once the officer concluded that there was no weapon, he could not continue to search or question the defendant in order to ascertain whether the plastic bag was indeed contraband. As the Supreme Court pointed out in Dickerson, "[w]here, as here, `an officer who is executing a valid search for one item seizes a different item,' this Court rightly `has been sensitive to the danger ... that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.'" Id. at ___, 113 S. Ct. at 2138, 124 L. Ed. 2d at 347, quoting Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983).

Officer Gregory's testimony indicates that he did not know that the bag contained contraband until he asked the defendant to turn out his pockets and show him the contents in his hands. He knew only that there was a cylindrical bulge in the pocket of the defendant's jeans, and that the bulge felt like a plastic baggie. He could not see any of the bag, but could only feel the contours through the defendant's clothing as a result of the pat-down. "[T]he officer's continued exploration of respondent's pocket after having concluded that it contained no weapon was unrelated to the sole justification for the search [under Terry]... the protection of the police officer and others nearby. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize." Id. While the pat-down revealed that the defendant had a plastic baggie in his pocket, the officer's testimony at voir dire indicated that it was not immediately apparent to him that the baggie held contraband. Without some other exigency to justify the continued warrantless search of the defendant, he was no longer authorized under Terry and its progeny to invade the defendant's privacy.

We therefore hold that the cocaine seized from the defendant in this case was the fruit of a constitutionally impermissible search. Because the search for and the seizure of such evidence violated the defendant's Fourth Amendment rights, it should not have been admitted in any subsequent trial against him. For the reasons stated, the judgment below is vacated.

Vacated.

*917 WELLS, J., concurs.

McCRODDEN, J., dissents in a separate opinion.

McCRODDEN, Judge, dissenting.

I respectfully dissent from the majority's conclusion that the trial court erred in denying defendant's motion to suppress evidence of the cocaine seized from defendant because it was the fruit of a constitutionally impermissible search in light of Minnesota v. Dickerson, ___ U.S. ___, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). In my opinion, Dickerson is not dispositive of the question raised by defendant's appeal.

The majority opinion concludes that Deputy Sheriff John Gregory's actions in questioning what defendant had in his pockets and in asking him to "rabbit-ear" them violated the Fourth Amendment of the United States Constitution. The majority bases this conclusion on a misapprehension of and, therefore, an erroneous reliance on, Dickerson, leading it to conclude that, because it was not immediately apparent to Deputy Gregory that the item in defendant's pocket was contraband, the deputy was not justified in continuing a warrantless search, to wit, questioning defendant and requesting that defendant "rabbit-ear" his pockets. This reliance is wrong because the questioning of defendant following the pat down search was not a search and hence not prohibited by the Fourth Amendment.

A close examination of the facts reveals several key differences between Dickerson and the case at hand. In both Dickerson and the instant case, law enforcement officers stopped suspects and performed protective pat down searches which failed to reveal any weapons. The officer in Dickerson testified that during the pat down search he felt a lump in the defendant's pocket, and the deputy in the case at hand testified that he "felt what appeared to be a plastic baggie in [defendant's] left front pant's pocket." At this point in the proceeding, however, the officer in Dickerson took a course clearly distinguishable from the one the deputy took in this case. In Dickerson, the officer determined that the lump in the defendant's pocket was contraband only after he "squeezed, slid, and otherwise manipulated the pocket's contents" during the pat down. Id. at ___, 113 S. Ct. at 2133, 124 L. Ed. 2d at 340. After feeling the lump in Dickerson's pocket, the officer reached into it and pulled out a bag of cocaine. The manipulation of the defendant's pockets is what the United States Supreme Court found objectionable in Dickerson, when it stated that the police officer "overstepped the bounds of the `strictly circumscribed' search for weapons allowed under Terry." Id. at ___, 113 S. Ct. at 2138, 124 L. Ed. 2d at 347 (quoting Terry v. Ohio, 392 U.S. 1, 26, 20 L. Ed. 2d 889, 908 (1968)).

In the case before us, there is no evidence that Deputy Gregory manipulated the defendant's pockets or continued a physical invasion of defendant's privacy, actions that would have amounted to overstepping the bounds of Terry. To the contrary, after frisking the defendant for weapons and feeling what appeared to be a plastic baggie in his pocket, the deputy terminated the Terry search. Dickerson, which refined Terry, simply is not an issue here.

In my view, the decisive question of this appeal is whether Deputy Gregory's actions subsequent to the pat down constituted a search. If no search is necessary or conducted, the constitutional guaranty of the Fourth Amendment is not applicable. State v. Kinley, 270 N.C. 296, 297, 154 S.E.2d 95, 96 (1967). A search implies both an examination of one's premises or person with a view to the discovery of contraband, and an exploratory investigation or quest. State v. Reams, 277 N.C. 391, 400, 178 S.E.2d 65, 70 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971) (quoting Haerr v. United States, 240 F.2d 533, 535 (5th Cir.1957)). When evidence is delivered to a police officer upon request and without compulsion or coercion, there is no search within the constitutional prohibition against unreasonable searches and seizures. See State v. Reams, 277 N.C. at 396, 178 S.E.2d at 68 and cases cited therein. From the facts of this case, it is apparent *918 that no additional search was conducted after the pat down.

Deputy Gregory testified:

I asked [defendant] what he had in his pocket. [Defendant] said money and pulled out some money.... I told him that I could still see something in his jeans, they were tight to his body. I asked him to pull his pockets rabbit-ear out, he did. I noticed at that point that he was aboutthat he was about to start laughing. I then noticed he was palming something in his hand. I asked him what was in his hand. He turned it over. I saw a plastic bag with a small amount of white powder on it. The powder looked to be cocaine.

(Emphasis added). There is nothing in the record to dispute Deputy Gregory's testimony that, in response to his asking defendant what was in his pocket and requesting that he "rabbit-ear" his pockets, defendant voluntarily exhibited the package of cocaine. The record is devoid of any evidence that the deputy coerced the defendant into revealing the cocaine. See Reams, 277 N.C. at 400, 178 S.E.2d at 70. On the contrary, there was evidence that the process by which defendant displayed the cocaine was free of coercion, intimidation, and force.

Moreover, defendant's intoxication did not negate the element of voluntariness when he exposed the cocaine to the officer. This Court, in State v. Colson, 1 N.C.App. 339, 343, 161 S.E.2d 637, 640 (1968), stated that "drunkenness provides the drinker with no constitutional cloak of privacy not available to his sober brothers." Nothing in the record indicates that the defendant's intoxication caused him to be incapable of voluntary and intelligent action.

Finally, I would point out that defendant could have exercised his constitutional right to refuse the deputy's request that he "rabbit-ear" his pockets and show him the contraband. Under constitutional scrutiny, such refusal would not have given the deputy probable cause either to search or arrest the defendant. Cf. Florida v. Bostick, 501 U.S. ___, ___, 111 S. Ct. 2382, 2387, 115 L. Ed. 2d 389, 398-90 (1991) (a suspect's refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure). The facts in the case at hand, however, provide no indication that the defendant felt that he could not refuse to display the cocaine or that he would have been arrested if he refused to do so.

I realize that my conclusion, that what transpired between Deputy Gregory and the defendant after the pat down was not a search, is contrary to the reasoning of the trial court. Even though I reject the trial court's analysis, I believe that it reached the correct result in this case and that the result should be affirmed. Defendant's attack on the legality of the search has required us to review the record to determine whether the search was lawful. In so doing, we may review the trial court's order for errors of law pertaining to the issue. C.f. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970) (defendant's exception to the judgment presents the face of the record for review). If the trial court reached the correct result, i.e., denial of defendant's motion to suppress, the ruling will not be disturbed even though the court may not have assigned the right reason for the order entered. State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650, cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224 (1987).

In conclusion, because defendant voluntarily showed the cocaine to Deputy Gregory, I vote to uphold the denial of defendant's motion to suppress and to affirm the judgment.