An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1285
NORTH CAROLINA COURT OF APPEALS
Filed: 3 June 2014
STATE OF NORTH CAROLINA
v. Brunswick County
No. 12 CRS 50537-39
TRISTAN McNEIL
Appeal by Defendant from judgment and commitment entered 7
May 2013 by Judge Mary Ann Tally in Brunswick County Superior
Court. Heard in the Court of Appeals 5 March 2014.
Attorney General Roy Cooper, by Associate Attorney General
Gayle L. Kemp, for the State.
Kimberly P. Hoppin for Defendant.
DILLON, Judge.
Defendant Tristan McNeil appeals from a judgment entered
upon his plea of no contest to one charge of trafficking in
cocaine, contending that the trial court erred in denying his
motion to suppress evidence obtained during a search of his
person. We affirm.
I. Factual & Procedural Background
Defendant was arrested on 4 February 2012, when Officer
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Ricky Smith of the Brunswick County Sheriff’s Department found
cocaine mixed with marijuana during a search of Defendant. On
21 May 2012, Defendant was indicted on a number of drug-related
charges, including trafficking in cocaine by possession. On 3
May 2013, Defendant filed a motion to suppress the illegal drugs
discovered by Officer Smith during his search. On 6 May 2013, a
hearing on Defendant’s motion was conducted before Superior
Court Judge Mary Ann Tally. Judge Tally denied Defendant’s
motion to suppress on 7 May 2013.
Judge Tally’s findings of fact, as recited in open court1,
tended to show the following. On 4 February 2012, police
officers in Brunswick County established a checkpoint at the
intersection of Old Shallotte Road and Union School Road for the
purpose of checking for Chapter 20 motor vehicle violations, as
well as other violations of law. At approximately 5 p.m.,
Officer Ricky Smith noticed Defendant’s vehicle approaching the
1
Judge Tally did not enter a written order, but instead
announced the rationale for her decision to deny Defendant’s
motion from the bench. We have held that on consideration of a
motion to suppress, the trial court’s “findings and conclusions
must be in the form of a written order unless (1) the trial
court provides its rationale from the bench, and (2) there are
no material conflicts in the evidence at the suppression
hearing.” State v. Dahlquist, __ N.C. App. __, __, 752 S.E.2d
665, 666 (2013) (citation and quotation marks omitted). In the
present case, however, Defendant does not challenge the
propriety of the trial court’s decision to articulate its
rationale in open court.
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checkpoint from approximately 300 yards away. Officer Smith
observed Defendant’s vehicle abruptly make a left turn into a
dirt driveway that led to a trailer. Officer Smith knew the
occupants of the trailer and was distantly related to them.
Officer Smith left the checkpoint to investigate why
Defendant’s vehicle had turned into the driveway. Officer Smith
proceeded to the driveway; he saw Defendant’s vehicle parked
near the trailer and Defendant walking towards the trailer.
Officer Smith did not recognize Defendant, who was a large man
wearing a long, untucked shirt over his jeans. Officer Smith
noticed that Defendant’s vehicle displayed a South Carolina tag.
Officer Smith called out to Defendant, asking him where he
was coming from. Defendant responded that he was there to visit
his mother. Officer Smith, as previously stated, knew the
trailer occupants and thus knew that Defendant’s mother did not
live in the trailer. Ms. Holden, who lived in the trailer, came
outside and informed Officer Smith that she had never seen
Defendant before. At some point during the encounter, Ms.
Holden told Officer Smith that there had been break-ins in the
area.
Officer Smith conducted a pat-down of Defendant for safety,
checking for weapons. Officer Smith asked Defendant whether he
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had anything on him that he should know about. Defendant
answered, “No,” then volunteered to empty his pockets. Officer
Smith instructed Defendant to place the contents of his pockets
on the hood of Officer Smith’s police car. Defendant reached
into one of his pockets and pulled out a large amount of
currency, which he placed on the hood of the police car.
Defendant then reached again into one of his pockets, while
turning away from Officer Smith. Officer Smith instructed
Defendant not to turn away; however, Defendant continued to turn
away, prompting Officer Smith to grab Defendant’s shirt.
Subsequently, Officer Smith noticed Defendant getting nervous
and walking towards his own vehicle, leaving the currency on the
police car hood. He instructed Defendant to come back, but
Defendant did not do so. Eventually, Defendant complied with
Officer Smith’s commands to put his hands behind his back.
Officer Smith noticed a large bulge still present in one of
Defendant’s pockets. He was unable to determine the contents of
the pocket when he felt it from the outside. He reached into
the pocket and pulled out cellophane material, which contained
cocaine mixed with marijuana and another large sum of money.
Based on these findings, the trial court concluded, inter
alia, that Officer Smith had possessed reasonable suspicion to
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investigate Defendant’s abrupt left-hand turn into the driveway
in view of the police checkpoint; that Officer Smith had
possessed reasonable suspicion to continue his investigation
when Defendant lied about visiting his mother at the trailer;
and that Officer Smith had acted reasonably when he reached into
Defendant’s pocket to determine the nature of the bulge that he
had observed in that area.
Following the trial court’s denial of his motion to
suppress, Defendant entered a plea of no contest to the count of
trafficking in cocaine by possession, preserving his right to
appeal the court’s denial of his motion to suppress. The
remaining charges were dismissed as part of the plea
arrangement. The trial court sentenced Defendant to a prison
term of thirty-five to forty-two months and a fine of
$50,000.00. Defendant appeals.
II. Jurisdiction
Defendant has filed a petition for writ of certiorari with
this Court, conceding a jurisdictional defect in his notice of
appeal. Specifically, Defendant gave notice of appeal from the
trial court’s denial of his motion to suppress, but failed to
give notice of appeal with respect to the judgment entered upon
his guilty plea. We exercise our discretion, however, and,
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pursuant N.C.R. App. P. 21(a)(1), address the merits of
Defendant’s appeal. State v. McKoy, 171 N.C. App. 636, 638, 615
S.E.2d 319, 320 (2005).
III. Analysis
Defendant contends that the trial court erred in denying
his motion to suppress the evidence found on his person without
a search warrant. More specifically, Defendant contends that
the search was in violation of his rights under the Fourth
Amendment of the United States Constitution, in that the
investigatory stop and ensuing search of his person was invalid
under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968).
“[T]he scope of appellate review of an order [regarding a
motion to suppress] is strictly limited to determining whether
the trial [court]’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 [court]’s ultimate conclusions of law.” Dahlquist, __ N.C.
App. at __, 752 S.E.2d at 666 (citation and quotation marks
omitted) (alteration in original). After careful review of the
trial court’s findings and conclusions, we affirm.
B. The Investigatory Stop
Defendant first challenges the validity of the
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investigatory stop conducted by Officer Smith. Specifically,
Defendant argues that the trial court failed to make findings
sufficient to support the conclusion that Officer Smith had the
reasonable suspicion necessary to conduct an investigatory stop
of Defendant under the circumstances. We disagree.
Our Supreme Court has held that avoiding a police
checkpoint on a public roadway may give rise to reasonable
suspicion and justify a subsequent Terry search. State v.
Griffin, 366 N.C. 473, 749 S.E.2d 444 (2013); State v. Foreman,
351 N.C. 627, 527 S.E.2d 921 (2000). In Griffin, as in this
case, the defendant “approached a checkpoint marked with blue
flashing lights.” Griffin, 366 N.C. at 477, 749 S.E.2d at 447.
Citing Foreman and United States v. Smith, 396 F.3d 579 (4th
Cir. 2005), our Supreme Court confirmed that “this Court and the
Fourth Circuit have held that even a legal turn, when viewed in
the totality of the circumstances, may give rise to reasonable
suspicion.” Griffin, 366 N.C. at 477, 749 S.E.2d at 447.
In Foreman, our Supreme Court observed that while “a legal
turn, by itself, is not sufficient to establish a reasonable,
articulable suspicion, a legal turn in conjunction with other
circumstances, such as the time, place and manner in which it is
made, may constitute a reasonable, articulable suspicion which
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could justify an investigatory stop.” 351 N.C. at 631, 527
S.E.2d at 923 (emphasis in original). As in Griffin, the police
officer in Foreman “observed a ‘quick left turn’ away from the
checkpoint at the precise point where the driver of the vehicle
would have first become aware of its presence.” 351 N.C. at
630, 527 S.E.2d at 923. Our Supreme Court held
that it is reasonable and permissible for an officer
to monitor a checkpoint’s entrance for vehicles whose
drivers may be attempting to avoid the checkpoint, and
it necessarily follows that an officer, in light of
and pursuant to the totality of the circumstances or
the checkpoint plan, may pursue and stop a vehicle
which has turned away from a checkpoint within its
perimeters for reasonable inquiry to determine why the
vehicle turned away.
Id. at 632-33, 527 S.E.2d at 924.
In Smith, as in the present case, a police officer followed
the defendant’s vehicle after it turned down a private driveway
in an apparent attempt to avoid a checkpoint, and upon entering
the driveway, the officer found the vehicle parked. The Fourth
Circuit Court of Appeals explained that the officer reasonably
could have inferred that the defendant “was attempting to evade
the police checkpoint” and upheld the reasonableness of the
search. Smith, 396 F.3d at 585-87.
As our Supreme Court has explained,
[r]easonable suspicion is a “less demanding standard
than probable cause and requires a showing
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considerably less than preponderance of the evidence.”
Only “‘some minimal level of objective justification’”
is required. This Court has determined that the
reasonable suspicion standard requires that “[t]he
stop . . . 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 his experience and training.”
Moreover, “[a] court must consider ‘the totality of
the circumstances—the whole picture’ in determining
whether a reasonable suspicion” exists.
State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645 (2008)
(citations omitted).
In the present case, we believe that Officer Smith’s
observation of Defendant maneuvering his vehicle into a driveway
and away from the police checkpoint, combined with the
additional circumstances as set forth in the unchallenged
portion of the trial court’s findings, “constitute[d] [a]
reasonable, articulable suspicion” that “justif[ied] an
investigatory stop.” Foreman, 351 N.C. at 631, 527 S.E.2d at
923. More specifically, upon observing Defendant turn into the
driveway, Officer Smith engaged in the inquiry that our Supreme
Court held reasonable in Foreman. Then, when questioned
concerning his presence outside the trailer, Defendant informed
Officer Smith that he was there to visit his mother, a statement
Officer Smith knew to be false given his relationship with the
occupants of that same trailer. We hold that, in light of these
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circumstances, the trial court correctly determined that Officer
Smith’s investigatory stop of Defendant was justified.
C. The Scope of the Search
Defendant next contends that, even if the investigatory
stop was valid, Officer Smith’s search of Defendant’s person
that ensued exceeded the scope permissible under Terry. We
disagree.
The United States Supreme Court has held that a police
officer’s observation of a bulge in a defendant’s clothing may
permit the officer to conclude that the defendant is “armed and
thus pose[s] a serious and present danger to the safety of the
officer.” Pennsylvania v. Mimms, 434 U.S. 106, 110–11, 54 L.
Ed.2d 331 (1977). Moreover, in United States v. Baker, the
Fourth Circuit explained that a pat-down search is not “the only
permissible method of conducting a Terry search.” 78 F.3d 135,
138 (4th Cir. 1996). Instead, “the reasonableness of a
protective search depends on the factual circumstances of each
case.” Id.
We believe that the unchallenged findings of fact made by
the trial court – for example, that Defendant was a large man;
that Officer Smith could not discern whether the contents of one
of Defendant’s pockets included a weapon when he came in contact
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with the bulge during his pat-down of Defendant; that Defendant
only removed a single object from his pockets when he
volunteered to empty his pockets; that Defendant turned away
from Officer Smith while reaching into his pocket; that
Defendant appeared extremely nervous and refused to obey Officer
Smith’s instructions until threatened by Officer Smith with a
taser; and that Officer Smith was the only officer on the scene
– were sufficient to sustain the trial court’s conclusion that
Officer Smith’s search of Defendant was reasonable under Terry.
Defendant cites State v. Beveridge, 112 N.C. App. 688, 436
S.E.2d 912 (1993), in support of his contention that Officer
Smith’s search of the area where he felt a large bulge was
unreasonable. Defendant’s reliance on Beveridge is misplaced.
In Beveridge, the police officer reached into a detainee’s
pocket after determining from a pat-down that the contents did
not include a weapon, but rather a cylinder-shaped object that
the officer suspected contained drugs. Id. at 696, 436 S.E.2d
at 916. This Court concluded that the officer’s actions were
overly intrusive on grounds that the officer was no longer
acting with the purpose of determining whether the detainee was
armed with a weapon at the time he reached into the detainee’s
pocket. Id. In the present case, however, Officer Smith was
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unable to determine whether the contents of Defendant’s pocket
included a weapon at the moment he came into contact with the
bulge, after which Defendant exhibited furtive, evasive
behavior, acted nervously and reached into the pocket himself
while simultaneously turning away from Officer Smith. See State
v. Willis, 125 N.C. App. 537, 543, 481 S.E.2d 407, 411 (1997).
Accordingly, Beveridge is distinguishable and is of no help to
Defendant in the present case.
IV. Conclusion
For the foregoing reasons, we hold that the trial court did
not err in denying Defendant’s motion to suppress.
AFFIRMED.
Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).