State v. Sugg

• Decision Date: 01 March 1983
• Docket Number: No. 8226SC654,8226SC654
• Citation: 61 N.C.App. 106,300 S.E.2d 248
• Parties: STATE of North Carolina v. James Thomas SUGG, II.
• Court: North Carolina Court of Appeals

Page 248

300 S.E.2d 248

61 N.C.App. 106

STATE of North Carolina v. James Thomas SUGG, II.

No. 8226SC654.

Court of Appeals of North Carolina.

March 1, 1983.

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., Daniel C. Oakley, Raleigh, for the State.

Henry T. Drake, Wadesboro, for defendant-appellant.

HILL, Judge.

On 28 April 1981, defendant James Thomas Sugg, II, a commercial airline passenger, was questioned at Douglas Municipal Airport in Charlotte, North Carolina, by a law enforcement officer who believed defendant's behavior was within the Federal Drug Enforcement Agency drug courier profile. Sugg was charged with possession with intent to sell and deliver the cocaine subsequently seized from his briefcase. From an order of the hearing judge entered 6 August 1981 denying his motion to suppress evidence of the cocaine, Sugg gave notice of appeal. He later pleaded guilty to the offense charged, reserving his right to appellate review of the order denying his motion to suppress.

Defendant contends that: (1) the hearing judge failed to make the proper findings and conclusions in support of his denial of defendant's motion to suppress, and (2) the seizure of contraband from defendant's briefcase violated the Fourth and Fourteenth Amendments of the United States Constitution. We find, however, that the evidence submitted at hearing supports the judge's denial of the motion and that the seizure of the contraband was proper. We, therefore, affirm the order of the hearing judge.

Special Agents Davis and Gross of the State Bureau of Investigation saw James Thomas Sugg, II deplane from Eastern Airlines Flight 386 from Florida at Douglas Municipal Airport in Charlotte. Sugg, casually dressed and carrying a Halliburton briefcase, was apparently the "first one off the aircraft." He "made immediate eye contact" with Davis, "appeared ... to be nervous," and repeatedly glanced back at the officers following him as he walked through the terminal. Sugg met another man at the airport gift shop with whom he walked to the terminal parking lot.

Approaching Sugg and his companion, Davis identified himself and asked if he could speak with Sugg. Sugg assented, and Davis asked Sugg to show him his plane ticket and some identification. Davis noticed the ticket had been purchased with cash and was for a round-trip flight from West Palm Beach, Florida, through Atlanta, Georgia, to Charlotte, returning some 3 to 3 1/2 hours later. Although Sugg apparently carried a Florida driver's license and said he lived in Hawaii, he produced a North Carolina license bearing an Ellerbe, North Carolina, address. Sugg said he was, in fact, going to Ellerbe that day.

Davis then informed Sugg he was conducting a narcotics investigation and asked if he could conduct a search of Sugg's person and briefcase. When Sugg demurred, Davis said that Sugg was free to leave, but Davis would hold his bag "and attempt to obtain a search warrant." Sugg's companion immediately "said something to the effect, 'I'm not involved in this. I just came to give him a ride.' " Sugg indicated he wanted to talk to his attorney, and Davis invited him to do so.

After telephoning his attorney, Sugg released his bag to the officers; and upon being asked to provide further identification accompanied Davis and Gross to their office in the terminal. Once there, Sugg requested permission to remove some personal papers from his briefcase which he opened in the officers' presence. He opened, as well, a leather pouch that was inside the briefcase and, in doing so, exposed a plastic bag containing cocaine. He was immediately placed under arrest, and his briefcase was searched.

The determinative issue of defendant's assignments of error is whether the initial intrusion by the officer, which eventually led to the officers' observation of the cocaine seized, infringed upon defendant's rights under the Fourth Amendment to the U.S. Constitution. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), established that objects in plain view of an officer who is rightfully in a position to see those objects may be seized without obtaining a search warrant. Thus, the legality of the officer's stop of defendant is critical.

I.

U.S. Supreme Court holdings carve out, at least theoretically, three tiers of police encounters: communication between the police and citizens involving no coercion or detention and therefore outside the compass of the Fourth Amendment, brief "seizures" that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause. United States v. Berry, 670 F.2d 583 (5th Cir.1982) (en banc ). "There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets." Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889, 913 (1968) (White, concurring). Indeed, a police officer may in appropriate circumstances and in an appropriate manner question persons, even though there is no probable cause for an arrest. 392 U.S. at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. Whenever, however, a police officer "accosts an individual and restrains his freedom to walk away, he has 'seized' that person," 392 U.S. at 16, 88 S.Ct. at 1877, 20 L.Ed.2d at 903, and is required to show that the seizure (1) was brief, Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and (2) was supported at least by a reasonable and articulable suspicion that the person seized was engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). This rationale, which initially applied to stops for questioning, see Terry v. Ohio, has been extended to stops made for investigatory purposes, as well: "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972); see United States v. Brigoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The standard suggested by the foregoing principles and adopted by the Supreme Court of North Carolina in State v. Thompson, 296 N.C. 703, 252 S.E.2d 776 (1979) "requires only that the officer have a 'reasonable' or 'founded' suspicion as justification for a limited investigative seizure." Id. at 706, 252 S.E.2d at 779.

II.

We note that whether the officer's conduct in this case constituted a "seizure" that invoked Fourth Amendment protections is problematic. All too often, subtle differences in circumstances distinguish a "non-seizure," which does not invoke Fourth Amendment safeguards, from a "seizure," which does. We believe that the officer's conduct was constitutionally proper under the standards governing an actual "seizure." At some point in the encounter, the officer effected a "seizure" of the defendant. Thus, we must consider both the articulable facts known to Davis at the time he determined to approach Sugg and his companion, and the rational inferences that the officer was entitled to draw from these facts. In so doing, we analyze the circumstances as a whole "through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training." United States v. Hall, 525 F.2d 857, 859 (D.C.Cir.1976); State v. Thompson, supra.

Relying on evidence presented at hearing and on the court's findings of fact which are supported by competent evidence and thus conclusive, State v. Thompson, we consider the facts and inferences upon which the officer's conduct was predicated. Officer Davis saw Sugg disembark from Eastern Airlines Flight 386. Davis "knew [the flight] was connected to Florida source cities" which are points of entry for narcotics smuggling, cocaine, in...