State v. West

• Decision Date: 18 July 1995
• Docket Number: No. COA94-897,COA94-897
• Citation: 459 S.E.2d 55,119 N.C.App. 562
• Parties: STATE of North Carolina v. Ronald Alvin WEST, Defendant.
• Court: North Carolina Court of Appeals

Page 55

459 S.E.2d 55

119 N.C.App. 562

STATE of North Carolina v. Ronald Alvin WEST, Defendant.

No. COA94-897.

Court of Appeals of North Carolina.

July 18, 1995.

Atty. Gen., Michael F. Easley, by Associate Atty. Gen., Thomas B. Murphy and Asst. Atty. Gen., Lori Fuller, for the State.

Philip O. Redwine, Raleigh, and Kunstler & Kuby, by Ronald L. Kuby and William M. Kunstler, New York City, for defendant appellant.

COZORT, Judge.

Ronald West (defendant) was indicted for trafficking by possession of more than 200 grams but less than 400 grams of cocaine. The trial court denied defendant's motion to suppress evidence. Defendant pled guilty to both counts and received a twenty-year prison sentence and a $100,000 fine. Defendant appeals from the denial of the motion to suppress, and the sole question on appeal is whether the drug agent had reasonable suspicion to believe defendant was armed and involved in criminal activity when he initiated a pat frisk. We hold the agent's questioning and request to frisk defendant did not constitute a seizure, eliminating the question of reasonable suspicion.

On 8 December 1993, Special Agent Bruce Black of the State Bureau of Investigation and Detective E.W. Woodlief of the Wake County Sheriff's Department were assigned to the Drug Interdiction Unit at the Raleigh Durham International Airport (RDU). Agent Black has been assigned to this unit for five years and has over one hundred drug arrests, 95% involving cocaine.

At 7:30 p.m. on this evening, Special Agent Black and Detective Woodlief checked the passenger list for USAir Flight 1687 arriving at RDU from New York City, a "source city" for drug trafficking. The officers examined three different reservations, and one contained the names of defendant and Jason Holness. Black determined that defendant was traveling on a student fare ticket. Defendant's ticket had been paid in cash on or near the date of the flight, and the call back number on the reservation had been disconnected. Black considered these characteristics--travel from a source city, cash paid for tickets, reservations made on or near the day of travel, use of student fare ticket, and a disconnected call back number--in identifying potential drug couriers.

Upon the arrival of Flight 1687, Black and Woodlief witnessed two males, who were carrying a small amount of luggage, walking out of the jetway. Black also observed defendant reach into his pocket and pull out some keys. After all passengers had disembarked, the officers went to the baggage claim area but did not see defendant and Holness. Black stepped outside and saw defendant and Holness walking across the parking lot towards another terminal. The officers followed defendant into a parking deck. The officers, dressed in civilian clothes, approached defendant and Holness as they stood on each side of a parked car. Black presented his credentials, identified himself as a police officer, and requested to speak to defendant.

Defendant stopped putting items in the car and stood to face Black. Black asked to see defendant's airline ticket and identification, which defendant produced to Black's satisfaction. Both the ticket and identification were in the name of Ron West. Black observed that defendant was extremely nervous, and his hands were shaking. Black told defendant he was conducting an investigation into narcotics coming from New York and asked defendant for consent to search his baggage. Defendant agreed and handed his luggage to Black. As defendant gave his baggage to Black, Black observed defendant's hands trembling and defendant's hands jerked back briefly. This jerking motion startled Black. Concerned for his safety, Black asked defendant for permission to frisk him before checking his baggage. Without responding to Black, defendant ran.

Black chased defendant. During the pursuit, defendant reached into his coat and threw down a plastic bag containing a white substance. Black retrieved this bag and determined the bag contained crack cocaine. Defendant continued to run down the street and attempted to throw a plastic bag into a storm drain. Black called for assistance and was aided by an RDU police officer. After a quarter-mile chase, Black caught up with defendant, ordered defendant to get on the ground, and placed defendant under arrest.

The actual quantity of cocaine was 203 grams. Black charged defendant with trafficking in cocaine by possession of more than 200 grams but less than 400 grams and trafficking in cocaine by transportation of more than 200 grams but less than 400 grams. Defendant was indicted for these offenses on 22 February 1994. Defendant filed a motion to suppress evidence on 10 March 1994. Judge Dexter Brooks heard this matter on 21 March 1994 and denied defendant's motion on 22 March 1994. Defendant pled guilty to both counts of the indictment, and on 2 May 1994 Judge Brooks imposed a sentence of twenty years in prison and a fine of $100,000. On 9 May 1994, defendant gave notice of appeal from the Order denying the motion to suppress. The parties stipulated this issue had been properly preserved for appeal.

Defendant contends Agent Black's attempt to frisk defendant constituted a seizure under the Fourth Amendment of the United States Constitution and Article I, § 20 of the North Carolina Constitution. With respect to state constitutional grounds, defendant argues that we should reject California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) and afford greater protection against unreasonable searches and seizures under Article I, § 20 of the North Carolina Constitution than current federal case law provides. Defendant cites to other states which have rejected Hodari D. under their state constitutions. See, e.g., Matter of Welfare of E.D.J., 502 N.W.2d 779 (Minn.1993); State v. Holmes, 311 Or. 400, 813 P.2d 28 (1991); State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992); State v. Quino, 74 Haw. 161, 840 P.2d 358, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992), cert. denied, 507 U.S. 1031, 113 S.Ct. 1849, 123 L.Ed.2d 472 (1993); State v. Tucker, 626 So.2d 707 (La.1993), aff'd on reh'g, 626 So.2d 720 (La.1993); People v. Bora, 83 N.Y.2d 531, 611 N.Y.S.2d 796, 634 N.E.2d 168 (1994).

We first note that a trial court's findings of fact in a suppression hearing are binding on the appellate courts when supported by competent evidence. State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994). This Court must determine whether these findings of fact support the trial court's conclusions of law, and if so, the trial court's conclusions of law are binding on appeal. Id. at 141, 446 S.E.2d at 585.

Defendant argues that the evidence and ...