State v. Morton, COA08-1020.
| Decision Date | 21 July 2009 |
| Docket Number | No. COA08-1020.,COA08-1020. |
| Citation | 679 S.E.2d 437 |
| Parties | STATE of North Carolina v. Kelcie Lee Andrew MORTON. |
| Court | North Carolina Court of Appeals |
Mercedes O. Chut, Greensboro, for defendant-appellant.
Kelcie Lee Andrew Morton ("defendant") appeals from a denial of his motion to suppress a digital pocket scale and cocaine that resulted in his indictment and subsequent conviction for possession of drug paraphernalia and possession of cocaine with the intent to sell or deliver. For the reasons mentioned herein, we reverse and vacate defendant's convictions.
On 2 July 2006, Detectives R.V. Hughes ("Detective Hughes") and Mark Massey ("Detective Massey")1 of the Roxboro Police Department were on routine patrol in Person County in an unmarked police vehicle when they observed defendant walking on the sidewalk from the direction of the Food Mart toward his grandmother's house. Having been informed by a confidential informant that defendant may have been involved in a recent drive-by shooting on Burch Avenue ("Burch Avenue shooting") and by several confidential informants and members of the community that he was selling drugs in the area, the detectives stopped defendant to speak with him about the Burch Avenue shooting.
At the motion to suppress hearing, the detectives could not remember the "exact" time the confidential information was provided to them with regard to the shooting and defendant's rumored drug dealing. Detective Hughes testified that "maybe a day or two" before seeing defendant, he received information from a confidential informant that defendant was involved in the Burch Avenue shooting. He said that the informant was reliable and had previously provided information to the police department. Additional confidential informants, as well as "concerned citizens," also reported that defendant
would be frequenting the area of Weatherly Heights[,] which would be the apartment complex that's right beside the [F]ood [M]art. He would frequent that area, walk over to the [F]ood [M]art and make [drug] sales at that area which is also in close proximity to his grandmother's house, so that he could get back and forth to his drug stash.
That information had been provided to police by "several" sources about two to four months before he stopped defendant, although he did not believe it had been two full months since the last report.
Detective Hughes said that when defendant saw the patrol car coming towards him, "[h]e got into a quick pace, walking almost in a jog, heading toward his grandmother's house." When the detectives pulled over, defendant was attempting to insert his key into the door at his grandmother's house, and "was so nervous that he couldn't get the key in." Detective Massey told defendant that they needed to speak with him. As defendant walked toward the detectives, Detective Hughes ordered defendant to take his hand out of his pocket, and defendant complied. Detective Hughes had spoken with defendant several times in the past to discuss other information he had received, but had never arrested defendant.
Detective Massey's testimony about the events was similar to that of Detective Hughes, with some additional information and inconsistencies. Detective Massey, a gang analyst, believed defendant to be "involved in a subset of a blood gang affiliated with the south side of Roxboro" because of red pants defendant was wearing the day he was stopped. Although Detective Massey received information sometime in the last month from a confidential reliable informant and from Crime Stopper reports that defendant was dealing drugs, he had not seen defendant engage in any suspicious activity. While Detective Hughes said that they had received information about defendant's involvement in the Burch Avenue shooting within the past few days, Detective Massey remembered only that it was received within the last month. Detective Massey was unsure why the police did not question defendant about the Burch Avenue shooting immediately after receiving the informant's tip. No testimony was elicited with regard to the factual basis for why the detectives said the informants' tips were reliable and no prior pattern of reliability was established.
When defendant approached the patrol car, Detective Hughes told him that they wanted to discuss the Burch Avenue shooting, but that for officer safety, he wanted to pat him down for weapons first. During the pat-down, Detective Hughes felt a hard rectangular object in defendant's pocket, which based on his prior training and experience, he believed to be a digital scale used for weighing drugs. When asked by Detective Hughes if he had a scale on his person, defendant replied that he did, and Detective Hughes removed the scale from defendant's pocket.2 Detective Massey arrested defendant for possession of drug paraphernalia and searched defendant, retrieving 6.3 grams of crack cocaine from defendant's front left pocket.
Defendant was indicted for possession of drug paraphernalia and possession with intent to sell and deliver cocaine.3 Defendant filed a motion to suppress and a hearing was held on 23 and 24 April 2008. In its order denying the motion to suppress, the trial court concluded, that under the totality of the circumstances, it was "reasonable and justified to approach the defendant and request to speak with him regarding their investigation" and to frisk him for the presence of weapons. The court further concluded that it was "reasonable and justified" for Detective Hughes to seize the scale from defendant and "[t]hough, upon the arrest of the defendant for possession of drug paraphernalia, the officers determined that the subsequent search of the defendant was incident to an arrest, it does not appear to this Court that the officers had probable cause to arrest the defendant only upon the discovery of the scales." (Emphasis added.) However, the court found that the continued search of defendant was proper because the digital scale gave the police probable cause to believe that defendant had drugs on his person. The court then determined that "[i]t would have been unreasonable and impracticable to detain/delay the defendant while seeking a search warrant."
On 25 April 2008, defendant was found guilty of both charges and sentenced to 6 to 8 months' imprisonment. Defendant now appeals the denial of his motion to suppress and asks us to vacate his convictions.
Defendant assigns error to three of the findings of fact arguing that they were not supported by the evidence. He contends that the trial court erred in denying his motion to suppress on the grounds that (1) the detectives did not have a legal basis to stop defendant; (2) there was not reasonable suspicion to pat-down defendant; (3) there was no justification to continue searching defendant after the pat-down, because no weapons were found; and (4) the discovery of the digital scale did not create probable cause for an additional search.
"[T]he scope of appellate review of [a denial of a motion to suppress] is strictly limited to determining 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. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted). The trial court's conclusions of law are reviewed de novo by this Court. State v. Branch, ___ N.C.App. ___, 669 S.E.2d 18, 20 (2008).
Defendant asserts that the trial court erred in failing to suppress the evidence seized from his person because the police did not have a legal basis to stop and question him. This Court recognizes a defendant's right to be free from unreasonable search and seizure under the Fourth Amendment with regard to an investigatory stop.
The right to be free from unreasonable searches and seizures applies to seizures of the person, including brief investigatory stops. "An investigatory stop must be justified by `a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'" Whether an officer had a reasonable suspicion to make an investigatory stop is evaluated under the totality of the circumstances.
The stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by [the officer's] experience and training. The only requirement is a minimal level of objective justification, something more than an "unparticularized suspicion or hunch."
In re J.L.B.M., 176 N.C.App. 613, 619-20, 627 S.E.2d 239, 243 (2006) (citations omitted) (emphasis added).
"Obviously, not all personal intercourse between policemen and citizens involves `seizures' of persons." Terry v. Ohio, 392 U.S. 1, 20 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889, 905 n. 16 (1968). "A seizure of a person occurs only when (1) an officer has applied actual physical force to the person or, (2) absent physical force, the defendant submits to an officer's show of authority." State v. Fleming, 106 N.C.App. 165, 169, 415 S.E.2d 782, 784 (1992).
State...
To continue reading
Request your trial
-
State v. McRae, COA09-114.
...enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop"); State v. Morton, 363 N.C. 737, 738, 686 S.E.2d 510, 510, adopting per curiam, ___ N.C.App. ___, ___, 679 S.E.2d 437, 445 (2009) (Hunter, J., dissenting) (holding that "the detectiv......
-
Sluder v. Sluder
... ... See Greene v. Greene, 77 N.C.App. 821, 823, 336 S.E.2d 430, 432 (1985); Morton v. Morton, 76 N.C.App. 295, 298, 332 S.E.2d 736, 738, cert. denied, 314 N.C. 667, 337 S.E.2d 582 ... ...
- Marks v. Marks
-
State Of North Carolina v. Morton
...defendant's motion to suppress on the ground that the officer lacked reasonable suspicion to frisk defendant. In State v. Morton, 363 N.C. 737, 686 S.E.2d 510 (2009), the North Carolina Supreme Court reversed the decision of this Court on the basis of section (I) of the dissenting opinion f......