446 S.E.2d 579 (N.C. 1994), 356PA93, State v. Brooks
|Citation:||446 S.E.2d 579, 337 N.C. 132|
|Party Name:||STATE of North Carolina v. Robert Earl BROOKS.|
|Case Date:||July 29, 1994|
|Court:||Supreme Court of North Carolina|
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Michael F. Easley, Atty. Gen. by James Peeler Smith, Sp. Deputy Atty. Gen., and Neil Dalton, Asst. Atty. Gen., for State-appellant.
Nora Henry Hargrove, Wilmington, for defendant-appellee.
The defendant, Robert Earl Brooks, was initially indicted by a federal grand jury on 11 December 1990 for possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and possession of a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c). The defendant filed a motion to suppress evidence. Following a hearing on the motion, the Honorable James C. Fox, United States District Court Judge for the Eastern District of North Carolina, concluded that the defendant had been unlawfully arrested and detained and that both he and his vehicle were searched without probable cause. Judge Fox further concluded that the "fruits" of the search, as well as any incriminating statements that the defendant had made, should be suppressed. Accordingly, Judge Fox granted the defendant's motion to suppress. The charges against the defendant in the United States District Court subsequently were dismissed voluntarily by the United States Attorney's office.
On 1 April 1991, the defendant was indicted by the Grand Jury of Duplin County for possession with intent to manufacture, sell, and deliver cocaine; trafficking cocaine; maintaining a dwelling/motor vehicle to keep drugs; and a misdemeanor charge of carrying a concealed weapon. Prior to trial, the defendant moved to suppress physical evidence and his statements to the police upon which the indictments were founded. At a pretrial motions hearing on 3 September 1991 in the Superior Court, Duplin County, Judge Henry L. Stevens denied in part and granted in part the defendant's motion to suppress. On 28 October 1991, the defendant was indicted for the additional felony of perjury. The defendant's subsequent motion to quash and motion to suppress evidence on grounds of collateral estoppel by reason of the order suppressing evidence in the prior federal case were [337 N.C. 136] denied by Judge Joe Freeman Britt at the 6 January 1992 Criminal Session of Superior Court, Duplin County.
Reserving his right to appeal the denial of his pretrial motions, the defendant tendered pleas of no contest to the charges of possession, trafficking, carrying a concealed weapon, and perjury. The felonies were consolidated for judgment, and the defendant was sentenced to seven years imprisonment. Judgment also was entered sentencing the defendant to a six-month concurrent sentence for the misdemeanor of carrying a concealed weapon. The defendant appealed only from the judgment sentencing him for the felony charges. The Court of Appeals, with one judge dissenting, vacated that judgment of the trial court and granted the defendant a new trial on the felony charges. State v. Brooks, 111 N.C.App. 558, 432 S.E.2d 900 (1993). The State did not appeal on the basis of the dissent. Rather, the State filed a petition for discretionary review on 16 September 1993, seeking to present additional issues for this Court's review. In his response to the State's petition, the defendant presented two additional issues which he contends were raised below but not addressed by the Court of Appeals. The State's petition was allowed by this Court on 4 November 1993. State v. Brooks, 335 N.C. 178, 438 S.E.2d 203 (1993).
The defendant's initial motion to suppress in this case was heard on 3 September 1991, in Superior Court, Duplin County. At the hearing, the State and the defendant presented evidence. From substantial evidence presented, Judge Stevens made findings of fact which included the following:
That on July 27, 1991, SBI Agent Bruce Kennedy accompanied members of the Duplin County Sheriff's Department to a place called Hezekiah Carter's Nightclub,
located outside of the city limits of Magnolia, Duplin County, to execute a search warrant for the purposes of locating illegal controlled substances.
That Kennedy wore a marked "raid" jacket with a badge on the front, and "POLICE" written in big letters across the back. Moreover, Kennedy was wearing a baseball cap with the letters SBI across the top of the cap. That three law enforcement vehicles arrived at the same time and that one or more of the vehicles were marked police cars.
That upon arriving at the location to be searched, Kennedy observed a green Volkswagen car backed in the parking lot with [337 N.C. 137] a man in it sitting on the driver's seat. Also Kennedy saw another black male standing in front of the car. The time was approximately 9:40 p.m.
Kennedy exited the vehicle [in which] he was riding and walked down across the ditch and over to the driver's side of the vehicle in question, where the defendant was sitting in the driver's seat. The other black male that had been standing next to the vehicle walked away before Kennedy was able to arrive at the car.
Kennedy shined his flashlight on the defendant in the car. Kennedy observed on the passenger side of the bucket seats of the Volkswagen an empty unsnapped holster within reach of the defendant who was sitting in the driver's seat.
Kennedy asked the defendant, "Where is your gun?" The defendant replied, "I'm sitting on it." Kennedy was still unable to see the gun although he shined his light all about the vehicle.
Kennedy then requested the defendant to "ease it out real slow." The defendant reached under his right thigh and handed the officer his gun by the grips. Kennedy took the gun from the defendant and put it on top of the defendant's car and then received the holster from the defendant. The defendant told Kennedy, "Be careful, it's got a round in the chamber; it's loaded and there is a round in the chamber." At the very moment Kennedy asked the defendant to hand out his gun, Kennedy put his hand on his gun, but just for a second. After retrieving the gun from the defendant, Kennedy did not stand holding his gun or towering over him.
The defendant then volunteered that he had got the permit for the gun from the Sheriff of Lenoir County, Billy Smith.
The defendant then asked Kennedy if he needed to see some identification. Kennedy replied, "Yes sir," at which time, the defendant handed his North Carolina Driver's License to Kennedy along with the registration for the said Volkswagen. The defendant was permitted to exit his vehicle on several occasions including getting outside the vehicle and assisting Officer Jones to open the hood of said vehicle.
Kennedy did not place the defendant under arrest for carrying a concealed weapon; instead he asked the defendant, "Robert Earl, do you have any dope in this car?" The defendant replied, [337 N.C. 138] "No, do you want to look?" The defendant further stated that the officer could look if he wanted to.
The defendant then proceeded to search his own car. The defendant showed Kennedy where there was a compartment in the back seat of the vehicle where the defendant had built some speakers in the car and he showed the officer how the front part would lay down. There was nothing found in the compartment.
The defendant then laid a board down at which time Kennedy noticed that there were two nylon bags in the back foot of said vehicle directly behind the driver's seat.
The defendant took the board and laid it on top of the two bags in which Kennedy asked the defendant if he could look at the two bags and the defendant reached in and retrieved the two bags and sat them on the ground beside the Volkswagen.... The defendant unzipped the bag and inside of it was a digital scale that is commonly used for weighing small weights such as grams and ounces, which is consistent with what people measure narcotics with.
At that point, Kennedy took the second bag that was a small nylon pouch that normally attaches around a person's belt.
Upon opening the pouch, Kennedy retrieved a white powdery substance and said, "Robert Earl, is this your dope?" The defendant replied, "Yes." Then Kennedy reached in the pouch and retrieved another white powdery substance that was bigger than the first. Kennedy asked the defendant "Is this what you use to cut it with?" The defendant stated, "Yes." Kennedy asked, "how much do you reckon you have got here?" The defendant replied, "About an ounce."
At that point, Kennedy informed the defendant that he was going to have to charge him with having drugs and the gun [to] which the defendant replied that he understood. Prior to this statement, [neither] Kennedy nor any other law enforcement officer had made any statement to the defendant restricting his movement.
During this whole time, the defendant was cooperating with the officer, he had not formally been placed under arrest and he did not have handcuffs on him.
Based upon the foregoing findings of fact, and others, Judge Stevens rendered the following conclusions and orders:
[337 N.C. 139] 1. That Kennedy had a reasonable suspicion of criminal activity that justified his action in order to confirm or to dispel his suspicion when he exited his patrol car and walked over to the defendant's vehicle to investigate. That Kennedy was authorized to shine his flashlight into the defendant's vehicle for his own protection and...
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