State v. Shearin

Citation612 S.E.2d 371
Decision Date17 May 2005
Docket NumberNo. COA04-394.,COA04-394.
PartiesSTATE of North Carolina v. Roy Purnell SHEARIN.
CourtUnited States State Supreme Court of North Carolina

Russell J. Hollers, III, Carrboro, for defendant.

McGEE, Judge.

Roy P. Shearin (defendant) was convicted of possession of marijuana, possession of cocaine, possession of drug paraphernalia, and resisting, obstructing, and delaying a public officer. He was sentenced to ten to twelve months in prison plus 180 days. Defendant assigns as error the trial court's denial of defendant's motion to suppress, jury instructions on resisting arrest and possession of drug paraphernalia, denial of defendant's motion to dismiss, and entry of judgment as a Class 1 misdemeanor possession of marijuana. We find no error at trial but remand for imposition of judgment and sentencing as a Class 3 misdemeanor possession of marijuana.

Defendant was a passenger in a vehicle that was stopped by a sheriff's deputy on 3 September 2002 at approximately 10:45 p.m. because the license plate light was not working. The deputy smelled alcohol on the driver and began administering sobriety tests. Roanoke Rapids Police Officer Norton was patrolling in the area, saw the deputy's emergency lights, and drove up to assist the deputy. The vehicle was stopped in an area that was lit only by a single street light. Standing about twenty-five feet away from the stopped vehicle, Officer Norton used a flashlight to observe defendant, who remained in the passenger seat of the vehicle. Defendant asked Officer Norton if he could leave. Officer Norton told defendant to stay in the vehicle for a few more minutes. Defendant again asked Officer Norton whether he could leave, and Officer Norton approached the vehicle. Officer Norton testified that defendant "was very agitated and appeared intoxicated at the time." Officer Norton smelled alcohol on defendant and saw a black plastic bag at defendant's feet, with what Officer Norton believed to be a beer bottle, sticking out of the bag. Officer Norton asked defendant what was in the bag, and defendant tried to push the bag under the seat with his foot.

Officer Norton asked defendant to exit the vehicle. He then asked defendant if he had any weapons. Defendant did not respond. Officer Norton asked defendant three more times if defendant had any weapons. Defendant finally responded that he did not. Officer Norton testified that defendant was originally calm when first asked to exit the vehicle, but again became agitated and boisterous after being asked if he had any weapons. Defendant asked why he was being held. Officer Norton told defendant to move his hands away from his pockets so Officer Norton could frisk defendant. Defendant refused, and "took off running."

Officer Norton chased defendant into an enclosed parking lot. He told defendant to come out of hiding. Defendant complied and the officer ordered defendant onto the ground. Officer Norton handcuffed and patted down defendant. Officer Norton found marijuana, cocaine, scales for measuring drugs, and a pocket knife on defendant.

The State's evidence showed that defendant appeared agitated from the beginning of the stop. Defendant, however, asserts that he was fully compliant with the police and was not "agitated" until defendant realized that he was not free to leave.

I.

Defendant first assigns as error the trial court's denial of defendant's motion to suppress. Defendant asserts that his Fourth Amendment right to be free from unreasonable searches and seizures was violated. Defendant argues that the items found on his person, namely marijuana, cocaine, and drug paraphernalia, should have been suppressed as they were "fruits of the poisonous tree."

The fundamental inquiry under the Fourth Amendment is whether the governmental intrusion into a private individual's liberty and property was reasonable. See Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889, 904 (1968). It is well-established that a law enforcement officer may temporarily detain a person for investigative purposes without violating the Fourth Amendment. Id. at 22, 88 S.Ct. at 1879-80, 20 L.Ed.2d at 906-07. To make such a stop, an officer must have a reasonable suspicion of criminal activity based on articulable facts. Id. at 21, 88 S.Ct. at 1879, 20 L.Ed.2d at 906. Similarly, an officer may frisk a person where the officer reasonably suspects that "criminal activity may be afoot and that the [person] with whom he is dealing may be armed and presently dangerous[.]" Id. at 30, 88 S.Ct. at 1884-85, 20 L.Ed.2d at 911. The scope of this search is protective in nature and is limited to the person's outer clothing and to the search for weapons that may be used against the officer. Id. "Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken." Terry, 392 U.S. at 31, 88 S.Ct. at 1885, 20 L.Ed.2d at 911. Evidence of contraband, plainly felt during a pat-down or frisk, may also be admissible, provided the officer had probable cause to believe that the item was in fact contraband. Minnesota v. Dickerson, 508 U.S. 366, 375-77, 113 S.Ct. 2130, 124 L.Ed.2d 334, 346-47 (1993). When determining whether an officer had "a reasonable suspicion to make an investigatory stop" or had reason to believe that a defendant was armed and dangerous, trial courts must consider the totality of the circumstances. State v. Willis, 125 N.C.App. 537, 541, 481 S.E.2d 407, 410 (1997).

Defendant argues that he was subjected to a stop and a frisk that exceeded the scope of what is permissible under Terry. Specifically, defendant argues that he was illegally detained because he repeatedly asked if he could leave and was told to remain where he was. Defendant also argues that he was illegally searched because Officer Norton did not have a reasonable articulable suspicion that defendant was armed and dangerous. Defendant argues that while evidence suggested that defendant was being obnoxious to Officer Norton, there was no evidence that defendant was threatening Officer Norton, or otherwise indicating that he would be violent. Defendant also points to Officer Norton's testimony acknowledging that defendant was "calm when he exited the vehicle" and that Officer Norton had not observed any weapon or "any type of bulge" that might indicate that defendant had a weapon. Defendant further contends that he had told Officer Norton that he did not want to be searched and that he only ran away "[w]hen it became obvious that [Officer Norton] was going to go through with the illegal frisk[.]" Thus, defendant asserts that because he was illegally detained and illegally searched, the trial court erred in not granting his motion to suppress the items found on his person as a result of the search and seizure. We disagree.

"Our review of a motion to suppress is limited to a determination of whether the trial court's findings of fact are supported by competent evidence, and whether those findings are in turn supported by legally correct conclusions of law." Willis, 125 N.C.App. at 540, 481 S.E.2d at 410. In the present case, the trial court found the following:

8. That the defendant became agitated when Officer Norton told him that he needed to remain in the car until Deputy Rooks completed his investigation.

9. That Officer Norton observed a strong odor of alcohol coming from the defendant who appeared to be intoxicated.

10. That while speaking with the [d]efendant Officer Norton noticed a beer bottle neck sticking out of a black plastic bag in the floorboard of the vehicle.

11. That when Officer Norton questioned the defendant about the bag and its contents the defendant attempted to push the bag under the seat with his feet not responding to the officer's questions.

12. That Officer Norton asked the [d]efendant to exit the vehicle so that he could secure said bag [and] its contents as evidence.

13. That upon defendant exiting the vehicle Officer Norton had to ask the defendant three or four times if he had any weapons on him before he answered no.

14. That the defendant was standing with his hands at his pockets and would not move his hands away from his pockets despite officer's repeated requests.

15. That during this time the defendant became increasingly agitated.

16. That up to this point Officer Norton had not touched the defendant.

17. That upon Officer Norton telling the defendant he wanted to pat his pockets for weapons in order to assure both his and Deputy Rooks' safety the defendant refused and ran from Officer Norton.

Despite defendant's contentions to the contrary, the State's evidence competently supports these findings of fact which in turn support the trial court's conclusions of law:

1. That looking at the totality of the circumstances surrounding the search of the defendant Officer Norton had reasonable grounds to believe that criminal activity might be afoot, justifying his temporary detention of the defendant.

2. That during and after Officer Norton's detention of the defendant his personal observations confirmed his apprehension that criminal activity might be afoot and indicated that the defendant might have been armed.

3. That Officer Norton was entitled to frisk defendant as a matter of self-protection.

4. That the defendant was searched only after he had run from Officer Norton who had informed the defendant that he was not free to leave.

In looking at the totality of the circumstances, it is reasonable for a police officer to suspect that someone is armed and dangerous when that person appears agitated, is reluctant to answer...

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