In re D.K.B.

• Decision Date: 15 March 2022
• Docket Number: COA21-562
• Parties: In the MATTER OF: D.K.B.
• Court: North Carolina Court of Appeals

869 S.E.2d 375 (Table)

In the MATTER OF: D.K.B.

No. COA21-562

Court of Appeals of North Carolina.

Filed March 15, 2022

Attorney General Joshua H. Stein, by Assistant Attorney General Janelle E. Varley, for the State.

Kellie Mannette, for Juvenile-Appellant.

JACKSON, Judge.

¶ 1 D.K.B. ("Dean")¹ appeals from the trial court's denial of his motion to suppress, the 9 August 2021 order adjudicating him delinquent, and the 24 August 2021 order giving him a Level 3 disposition and ordering him to be indefinitely committed to a youth development center. After careful review, we affirm.

I. Background

¶ 2 On 15 June 2021, Dean, a 17-year-old black male, was hanging out in Wilmington, North Carolina, with a couple of friends, including Jennifer. Jennifer drove the group to a store in her car and Dean went into the store while Jennifer remained in the car. While waiting for Dean, Jennifer saw a police car pull in behind her car. The police officer appeared to examine Jennifer's car tag. Dean then left the store, got in the backseat of the car on the driver's side, and the group drove out of the store's parking lot.

¶ 3 Shortly thereafter, Jennifer was pulled over by law enforcement. Jennifer had a temporary tag on the car, which had expired ten days prior on 5 June 2021. Jennifer had received the permanent tag from her dealership but had not yet replaced the temporary tag. Two law enforcement officers, Corporal J. Beagle of the New Hanover County Sheriff's Department and Officer B. Pineiro of the Wilmington Police Department, approached the driver's side of Jennifer's car and a third officer approached the passenger's side. Officer Pineiro had previously encountered Dean in four gun-related incidents over the last year and a half. The officers were all members of the Mobile Field Force, a gang task force working in Wilmington.

¶ 4 After walking up to the car, Corporal Beagle began talking with Jennifer, asking for her driver's license and registration. Seconds later, Officer Pineiro alerted the other officers that Dean was sitting in the backseat. Corporal Beagle then told Jennifer to have Dean open the backdoor and directed her to unlock the door. While Corporal Beagle directed Jennifer to unlock the backdoor, Officer Pineiro saw through the car window Dean "fidgeting" with a black jacket on his lap and "moving his hands behind his waistband underneath his black jacket." Officer Pineiro told Dean: "Let me see your hands." After Jennifer unlocked the backdoor, Officer Pineiro opened the door and pulled Dean out of the car, intending to perform a weapons frisk. Officer Pineiro grabbed Dean by the arm to prevent him from reaching for his waistband and as he did so, Officer Pineiro asked Dean: "You got nothing on you, do you?" Dean responded to Officer Pineiro's question and Officer Pineiro later testified that Dean stated: "Yeah, I got one." Based on his experience, Officer Pineiro took that to mean Dean had a gun on his person.

¶ 5 At that point, Officer Pineiro and another officer immediately detained Dean, placing him in handcuffs. Several more law enforcement officers had arrived on scene to assist Corporal Beagle and Officer Pineiro. Officer Pineiro lifted Dean's shirt and found a black handgun in Dean's waistband. Officers then walked Dean toward the patrol cars and removed the gun from his waistband. While talking with Dean, Officer Pineiro stated that they stopped Jennifer's car because of the expired tag. Officer Pineiro also explained that he took Dean out of the car and frisked him because of his previous personal encounters with Dean in the gun-related incidents and Dean saying "Yeah, I got one" when Officer Pineiro asked if Dean had a gun on him. After a couple of minutes, Dean then told Officer Pineiro he had "a perc in [his] sock." Officer Pineiro removed a small plastic bag from Dean's sock.

¶ 6 On 13 July 2021, Dean filed a motion to suppress. The motion came on for hearing before the Honorable J.H. Corpening, II, on 20 July 2021. After hearing testimony from Jennifer, Corporal Beagle, and Officer Pineiro and reviewing Officer Pineiro's body cam footage, the trial court denied the motion to suppress. Dean entered notice of appeal as to the denial of the motion to suppress in open court. The trial court later entered a written order denying Dean's motion to suppress evidence on 16 September 2021.

¶ 7 Dean then admitted to the offenses of carrying a concealed weapon, possession of a handgun by a minor, possession of a Schedule II controlled substance, and two probation violations. The trial court entered an order adjudicating Dean delinquent on 9 August 2021. Following the admission colloquy, the trial court continued disposition to refer Dean for an interdisciplinary evaluation in accordance with N.C. Gen. Stat. § 7B-2502(c) and In re E.M. , 263 N.C. App. 476, 823 S.E.2d 674 (2019).

¶ 8 The parties reconvened for disposition on 24 August 2021. The trial court accepted a Comprehensive Clinical Assessment and the recommendations of Juvenile Justice regarding disposition for Dean. The trial court ordered Dean committed to a youth development center for an indefinite period not to exceed his nineteenth birthday. The trial court entered a written disposition order on 24 August 2021.

¶ 9 Dean entered timely notice of appeal on 26 August 2021.

II. Analysis

¶ 10 Dean argues first that the trial court erred in denying his motion to suppress challenging Findings of Fact 9, 16, and 17-22 in the trial court's written order and contending that Officer Pineiro lacked the reasonable suspicion that Dean was armed necessary to perform a Terry frisk. Dean argues second that the trial court erred in accepting a mental health assessment that was not equivalent to an interdisciplinary evaluation under N.C. Gen. Stat. § 7B-2502(c) when entering the final disposition order.

A. Motion to Suppress

¶ 11 "The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law." State v. Biber , 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011). "The trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting. The conclusions of law made by the trial court from such findings, however, are fully reviewable on appeal." State v. Saldierna , 371 N.C. 407, 421, 817 S.E.2d 174, 183 (2018) (internal marks and citations omitted).

¶ 12 On appeal, Dean challenges Findings of Fact 9, 16, 17 and "the finding implicit in the collective reading of facts numbers 17-22 that the Terry frisk did not begin until after Dean said he ‘ha[d] one’ on him." The applicable findings of fact in the trial court's 16 September 2021 order are as follows:

9. On June 15, 2021, Corporal Beagle stopped a silver Acura driven by [Jennifer] because the North Carolina registration temporary tag on the vehicle was expired.

...

16. Officer Pineiro observed the juvenile's hands messing with his waistband while a jacket covered his waistband.

17. Officer Pineiro ordered the juvenile to exit the vehicle to perform a weapons frisk based on the juvenile's movements inside the vehicle and Officer Pineiro's prior knowledge of the juvenile.

18. While the juvenile was exiting the vehicle, Officer Pineiro asked the juvenile if he had "anything on him."

19. The juvenile responded to Officer Pineiro's question by stating "I've got one on me."

20. Based on Officer Pineiro's training and experience, he knew the statement "I've got one on me" to mean that the juvenile had a firearm on him.

21. At the time the juvenile was removed from the vehicle, Officer Pineiro knew the juvenile to be presently armed and dangerous.

22. Officer Pineiro detained the juvenile by placing him in handcuffs and conducted a weapons frisk pursuant to Terry v. Ohio .

We review each finding of fact to ensure that it is supported by competent evidence.

¶ 13 Regarding Finding of Fact 9, both Jennifer and Corporal Beagle testified at the hearing that the temporary tag on her car was expired on 15 June 2021. Law enforcement officers can be heard on Officer Pineiro's body cam video telling Dean the tag had expired on 5 June 2021. Dean acknowledges in his brief "that was a valid reason the car could be stopped[.]" Accordingly, Finding of Fact 9 is supported by competent evidence.

¶ 14 Regarding Finding of Fact 16, Officer Pineiro testified on direct examination that "[Dean] had a black jacket on his lap. He kept moving with it, fidgeting it." Officer Pineiro testified on cross-examination that "You can't see on the body cam because of where I had my camera, but when he was sitting there he was moving his hands behind his waistband underneath his black jacket." As Dean points out in his brief, Officer Pineiro does not mention Dean moving his hands near his waistband when explaining to Dean the reasons for the search on the body cam video. However, in reviewing Officer Pineiro's body cam, there is a distinct period of time between when Officer Pineiro states Dean is in the car and when Officer Pineiro tells Dean to show him his hands in which Officer Pineiro could have observed Dean fidgeting with the jacket and moving his hands behind his waistband. Officer Pineiro remains standing next to the driver's side passenger window during this period. Accordingly, Finding of Fact 16 is supported by competent evidence.

¶ 15 Regarding Finding of Fact 17, in addition to listing the prior interactions he had with Dean on the body cam video, Officer Pineiro testified at the suppression hearing to each firearm-related incident concerning Dean that he had either been directly involved in or had personal knowledge of the details. Further, as outlined above, Officer Pineiro testified at the hearing that he observed Dean fidgeting with the jacket and moving his hands behind his waistband. The body cam video reflects that Officer Pineiro was in a position and had...