{ "id": 8523524, "name": "STATE OF NORTH CAROLINA v. MICHAEL SCOTT BEVERIDGE", "name_abbreviation": "State v. Beveridge", "decision_date": "1993-12-07", "docket_number": "No. 921SC931", "first_page": "688", "last_page": "699", "citations": [ { "type": "official", "cite": "112 N.C. App. 688" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": -1 }, { "cite": "460 U.S. 730", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6199658 ], "weight": 3, "year": 1983, "opinion_index": 0, "case_paths": [ "/us/460/0730-01" ] }, { "cite": "124 L. Ed. 2d 334", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12205 ], "weight": 13, "year": 1993, "pin_cites": [ { "page": "345" }, { "page": "346" }, { "page": "347" }, { "page": "348", "parenthetical": "emphasis added" }, { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/us/508/0366-01" ] }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "496 U.S. 128", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12122066 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/us/496/0128-01" ] }, { "cite": "430 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "110 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526043 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc-app/110/0569-01" ] }, { "cite": "248 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "opinion_index": 0 }, { "cite": "38 N.C. App. 617", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555435 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/38/0617-01" ] }, { "cite": "368 S.E.2d 434", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "437" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 333", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524283 ], "year": 1988, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0333-01" ] }, { "cite": "193 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "348" } ], "opinion_index": 0 }, { "cite": "17 N.C. App. 48", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553017 ], "year": 1972, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc-app/17/0048-01" ] }, { "cite": "463 U.S. 1032", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6203160 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/us/463/1032-01" ] }, { "cite": "391 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5304519 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0588-01" ] }, { "cite": "384 S.E.2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "95 N.C. App. 691", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523035 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/95/0691-01" ] }, { "cite": "197 S.E.2d 879", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560091, 8560124, 8560107 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0670-01", "/nc/283/0670-03", "/nc/283/0670-02" ] }, { "cite": "196 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "18 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548719 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/18/0269-01" ] }, { "cite": "263 S.E.2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "45 N.C. App. 486", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549499 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0486-01" ] }, { "cite": "392 U.S. 40", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167951 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/392/0040-01" ] }, { "cite": "407 U.S. 143", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9137003 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "145" }, { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/us/407/0143-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "27" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "620" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "367 U.S. 643", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1785580 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/us/367/0643-01" ] }, { "cite": "415 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "784" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 165", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314046 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/106/0165-01" ] }, { "cite": "98 L.Ed.2d 224", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 1 }, { "cite": "484 U.S. 916", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600294, 599751, 602122, 600429, 600879, 602321, 600978, 601233, 601012, 600727, 599257, 602043, 601182, 601279 ], "year": 1987, "opinion_index": 1, "case_paths": [ "/us/484/0916-06", "/us/484/0916-10", "/us/484/0916-07", "/us/484/0916-12", "/us/484/0916-01", "/us/484/0916-11", "/us/484/0916-05", "/us/484/0916-02", "/us/484/0916-14", "/us/484/0916-09", "/us/484/0916-13", "/us/484/0916-04", "/us/484/0916-03", "/us/484/0916-08" ] }, { "cite": "357 S.E.2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "650" } ], "opinion_index": 1 }, { "cite": "320 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725713 ], "year": 1987, "pin_cites": [ { "page": "290" } ], "opinion_index": 1, "case_paths": [ "/nc/320/0276-01" ] }, { "cite": "171 S.E.2d 416", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "parenthetical": "defendant's exception to the judgment presents the face of the record for review" } ], "opinion_index": 1 }, { "cite": "276 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560350 ], "year": 1970, "pin_cites": [ { "parenthetical": "defendant's exception to the judgment presents the face of the record for review" } ], "opinion_index": 1, "case_paths": [ "/nc/276/0123-01" ] }, { "cite": "115 L.Ed.2d 389", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 1108039 ], "year": 1991, "pin_cites": [ { "page": "398-90", "parenthetical": "a suspect's refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure" } ], "opinion_index": 1, "case_paths": [ "/us/501/0429-01" ] }, { "cite": "161 S.E.2d 637", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "640" } ], "opinion_index": 1 }, { "cite": "1 N.C. App. 339", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552746 ], "year": 1968, "pin_cites": [ { "page": "343" } ], "opinion_index": 1, "case_paths": [ "/nc-app/1/0339-01" ] }, { "cite": "240 F.2d 533", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 419893 ], "year": 1957, "pin_cites": [ { "page": "535" } ], "opinion_index": 1, "case_paths": [ "/f2d/240/0533-01" ] }, { "cite": "30 L.Ed.2d 74", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "pin_cites": [ { "parenthetical": "quoting Haerr v. United States, 240 F.2d 533, 535 (5th Cir. 1957)" } ], "opinion_index": 1 }, { "cite": "404 U.S. 840", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6254177, 6250786, 6254918, 6251728, 6252082, 6254548, 6251477, 6253013, 6251127, 6253818, 6253341, 6252670, 6252351 ], "year": 1971, "pin_cites": [ { "parenthetical": "quoting Haerr v. United States, 240 F.2d 533, 535 (5th Cir. 1957)" } ], "opinion_index": 1, "case_paths": [ "/us/404/0840-11", "/us/404/0840-01", "/us/404/0840-13", "/us/404/0840-04", "/us/404/0840-05", "/us/404/0840-12", "/us/404/0840-03", "/us/404/0840-08", "/us/404/0840-02", "/us/404/0840-10", "/us/404/0840-09", "/us/404/0840-07", "/us/404/0840-06" ] }, { "cite": "178 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "70" }, { "page": "70" } ], "opinion_index": 1 }, { "cite": "277 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565528 ], "weight": 3, "year": 1970, "pin_cites": [ { "page": "400" }, { "page": "396" }, { "page": "400" } ], "opinion_index": 1, "case_paths": [ "/nc/277/0391-01" ] }, { "cite": "154 S.E.2d 95", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "96" } ], "opinion_index": 1 }, { "cite": "270 N.C. 296", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567496 ], "year": 1967, "pin_cites": [ { "page": "297" } ], "opinion_index": 1, "case_paths": [ "/nc/270/0296-01" ] }, { "cite": "124 L. Ed. 2d 334", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 12205 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "340" }, { "page": "347" } ], "opinion_index": 1, "case_paths": [ "/us/508/0366-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "26" }, { "page": "908" } ], "opinion_index": 1, "case_paths": [ "/us/392/0001-01" ] } ], "analysis": { "cardinality": 1076, "char_count": 25320, "ocr_confidence": 0.76, "pagerank": { "raw": 4.576834190347323e-07, "percentile": 0.9252437111198375 }, "sha256": "7b7de3f229f5c248674c3177c556ffcd71909872f2c1c2427c8368b6dae32210", "simhash": "1:a809212207496541", "word_count": 4233 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WELLS concurs.", "Judge McCRODDEN dissents in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL SCOTT BEVERIDGE" ], "opinions": [ { "text": "ORR, Judge.\nEven though the defendant in the case at bar has entered a plea of guilty to the charges against him, he has preserved his right of appeal pursuant to N.C. Gen. Stat. \u00a7 15A-979(b) from the denial of his motion to suppress the evidence seized as a result of the search by Officer Gregory. Defendant contends on appeal that the cocaine was found as a result of an unlawful search and seizure, thereby violating his rights under the Fourth Amendment of the United States Constitution and the Constitution of the State of North Carolina. We agree with defendant\u2019s argument and reverse the decision of the trial court.\nWe note at the onset that in a review of the denial of defendant\u2019s motion to suppress, we must first determine whether there was competent evidence to support the trial court\u2019s findings of fact. If the evidence presented was competent, the findings are conclusive and binding on appeal. State v. Fleming, 106 N.C. App. 165, 415 S.E.2d 782 (1992). Defendant has not contested the findings or conclusions of the trial court. They are therefore conclusive and binding on this Court. Id. at 168, 415 S.E.2d at 784.\nAs defendant correctly points out, the Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081 (1961), provides the guarantee of \u201cthe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ....\u201d U.S. Const, amend. IV. Similarly, the Constitution of the State of North Carolina states that \u201c[g]eneral warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.\u201d N.C. Const, art. I, \u00a7 20. \u201c[A] governmental search and seizure of private property unaccompanied by prior judicial approval in the form of a warrant is per se unreasonable unless the search falls within a well-delineated exception to the warrant requirement involving exigent circumstances.\u201d State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982).\nTerry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968) created one such exception. In Terry, the Supreme Court held that an officer may conduct a pat-down search to determine whether the person is in fact carrying a weapon. \u201cThe purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.\u201d Adams v. Williams, 407 U.S. 143, 145, 32 L. Ed. 2d 612, 617 (1972). If a search goes beyond the bounds justifiable in determining that the suspect is armed, then any evidence found as a result of such a search will be suppressed as \u201cfruit of the poisonous tree.\u201d Sibron v. New York, 392 U.S. 40, 20 L. Ed. 2d 917 (1968). The courts of North Carolina follow these same constitutional principles. State v. Vernon, 45 N.C. App. 486, 263 S.E.2d 340 (1980); State v. Wooten, 18 N.C. App. 269, 196 S.E.2d 603, appeal dismissed, 283 N.C. 670, 197 S.E.2d 879 (1973); State v. Harris, 95 N.C. App. 691, 384 S.E.2d 50 (1989), aff'd, 326 N.C. 588, 391 S.E.2d 187 (1990).\nHowever, in Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201 (1983), the United States Supreme Court held that \u201cif, while conducting a legitimate Terry search . . . the officer should discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.\u201d The courts of North Carolina have likewise consistently held that \u201cin the conduct of the limited weapons search, contraband or evidence of a crime is of necessity exposed, the officer is not required by the Fourth Amendment to disregard such contraband or evidence of crime.\u201d State v. Streeter, 17 N.C. App. 48, 50, 193 S.E.2d 347, 348 (1972). Moreover, North Carolina has also extended the limits of the Terry pat-down and have held that \u201c[w]hen an officer makes a lawful arrest of an occupant of an automobile and conducts a contemporaneous search of the automobile incident to that arrest, he may ask passengers to step out of the vehicle so he may complete his investigation.\u201d State v. Adkerson, 90 N.C. App. 333, 338, 368 S.E.2d 434, 437 (1988), quoting State v. Collins, 38 N.C. App. 617, 248 S.E.2d 405 (1978). \u201c \u2018When there are reasonable grounds to order an occupant out of the car, then he may be subjected to a limited search for weapons when the facts available to the officer justify the belief that such an action is appropriate.\u2019 \u201d Id. \u201c \u2018The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.\u2019 \u201d Id. quoting Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909.\nThe above cases are justified by reference to the \u201cplain view\u201d doctrine, which generally allows an officer to seize evidence when the initial intrusion which brings the evidence into plain view is lawful, and it is immediately apparent to the police that the items observed constitute evidence of a crime, are contraband, or are otherwise subject to seizure. State v. Church, 110 N.C. App. 569, 430 S.E.2d 462 (1993); see also Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112 (1990).\nThe constitutional guarantee against unreasonable search and seizure does not apply where a search is not necessary, and where the contraband subject matter is fully disclosed to the eye and hand. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972).\nThe plain view doctrine has now been expanded by the United States Supreme Court in Minnesota v. Dickerson, \u2014 U.S. \u2014, 124 L. Ed. 2d 334 (1993). On facts remarkably similar to the case sub judice, the Court held that the \u201c[plain view] doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search.\u201d Id. at \u2014, 124 L. Ed. 2d at 345.\nIf a police officer lawfully pats down a suspect\u2019s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect\u2019s privacy beyond that already authorized by the officer\u2019s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.\nId. at \u2014, 124 L. Ed. 2d at 346. \u201cThe seizure of an item whose identity is already known occasions no further invasion of privacy.\u201d Id. at \u2014, 124 L. Ed. 2d at 347. \u201cThus, the dispositive question ... is whether the officer who conducted the search was acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent\u2019s jacket was contraband.\u201d Id.\nIn Dickerson, the officer conducted a Terry pat-down and felt a small, hard object wrapped in plastic in the defendant\u2019s pocket. He then formed the opinion that the object was crack cocaine, and then began \u201csqueezing, sliding, and otherwise manipulating the contents of the defendant\u2019s pocket \u2014 a pocket which the officer already knew contained no weapon.\u201d Id. The Court stated that \u201c[although the officer was lawfully in a position to feel the lump in respondent\u2019s pocket, because Terry entitled him to place his hands on respondent\u2019s jacket, . . . the incriminating character of the object was not immediately apparent to him.\u201d Id. at \u2014, 124 L. Ed. 2d at 348 (emphasis added). The Court concluded that the continuing search to determine specifically what was in the defendant\u2019s pocket was beyond the scope of the lawful weapons search.\nLikewise in the case before us, while Officer Gregory was justified in conducting a limited pat-down of the defendant to determine whether the defendant was armed, once the officer concluded that there was no weapon, he could not continue to search or question the defendant in order to ascertain whether the plastic bag was indeed contraband. As the Supreme Court pointed out in Dickerson, \u201c[w]here, as here, \u2018an officer who is executing a valid search for one item seizes a different item,\u2019 this Court rightly \u2018has been sensitive to the danger . . . that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.\u2019 \u201d Id. at \u2014, 124 L. Ed. 2d at 347, quoting Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502 (1983).\nOfficer Gregory\u2019s testimony indicates that he did not know that the bag contained contraband until he asked the defendant to turn out his pockets and show him the contents in his hands. He knew only that there was a cylindrical bulge in the pocket of the defendant\u2019s jeans, and that the bulge felt like a plastic baggie. He could not see any of the bag, but could only feel the contours through the defendant\u2019s clothing as a result of the pat-down. \u201c[T]he officer\u2019s continued exploration of respondent\u2019s pocket after having concluded that it contained no weapon was unrelated to the sole justification for the search [under Terry] . . . the protection of the police officer and others nearby. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize.\u201d Id. While the pat-down revealed that the defendant had a plastic baggie in his pocket, the officer\u2019s testimony at voir dire indicated that it was not immediately apparent to him that the baggie held contraband. Without some other exigency to justify the continued warrantless search of the defendant, he was no longer authorized under Terry and its progeny to invade the defendant\u2019s privacy.\nWe therefore hold that the cocaine seized from the defendant in this case was the fruit of a constitutionally impermissible search. Because the search for and the seizure of such evidence violated the defendant\u2019s Fourth Amendment rights, it should not have been admitted in any subsequent trial against him. For the reasons stated, the judgment below is vacated.\nVacated.\nJudge WELLS concurs.\nJudge McCRODDEN dissents in a separate opinion.", "type": "majority", "author": "ORR, Judge." }, { "text": "Judge McCRODDEN\ndissenting.\nI respectfully dissent from the majority\u2019s conclusion that the trial court erred in denying defendant\u2019s motion to suppress evidence \u00bb of the cocaine seized from defendant because it was the fruit of a constitutionally impermissible search in light of Minnesota v. Dickerson, \u2014 U.S. \u2014, 124 L.Ed.2d 334 (1993). In my opinion, Dickerson is not dispositive of the question raised by defendant\u2019s appeal.\nThe majority opinion concludes that Deputy Sheriff John Gregory\u2019s actions in questioning what defendant had in his pockets and in asking him to \u201crabbit-ear\u201d them violated the Fourth Amendment of the United States Constitution. The majority bases this conclusion on a misapprehension of and, therefore, an erroneous reliance on, Dickerson, leading it to conclude that, because it was not immediately apparent to Deputy Gregory that the item in defendant\u2019s pocket was contraband, the deputy was not justified in continuing a warrantless search, to wit, questioning defendant and requesting that defendant \u201crabbit-ear\u201d his pockets. This reliance is wrong because the questioning of defendant following the pat down search was not a search and hence not prohibited by the Fourth Amendment.\nA close examination of the facts reveals several key differences between Dickerson and the case at hand. In both Dickerson and the instant case, law enforcement officers stopped suspects and performed protective pat down searches which failed to reveal any weapons. The officer in Dickerson testified that during the pat down search he felt a lump in the defendant\u2019s pocket, and the deputy in the case at hand testified that he \u201cfelt what appeared to be a plastic baggie in [defendant\u2019s] left front pant\u2019s pocket.\u201d At this point in the proceeding, however, the officer in Dickerson took a course clearly distinguishable from the one the deputy took in this case. In Dickerson, the officer determined that the lump in the defendant\u2019s pocket was contraband only after he \u201csqueezed, slid, and otherwise manipulated the pocket\u2019s contents\u201d during the pat down. Id. at \u2014, 124 L.Ed.2d at 340. After feeling the lump in Dickerson\u2019s pocket, the officer reached into it and pulled out a bag of cocaine. The manipulation of the defendant\u2019s pockets is what the United States Supreme Court found objectionable in Dickerson, when it stated that the police officer \u201coverstepped the bounds of the \u2018strictly circumscribed\u2019 search for weapons allowed under Terry.\u201d Id. at \u2014, 124 L.Ed.2d at 347 (quoting Terry v. Ohio, 392 U.S. 1, 26, 20 L.Ed.2d 889, 908 (1968)).\nIn the case before us, there is no evidence that Deputy Gregory manipulated the defendant\u2019s pockets or continued a physical invasion of defendant\u2019s privacy, actions that would have amounted to overstepping the bounds of Terry. To the contrary, after frisking the defendant for weapons and feeling what appeared to be a plastic baggie in his pocket, the deputy terminated the Terry search. Dickerson, which refined Terry, simply is not an issue here.\nIn my view, the decisive question of this appeal is whether Deputy Gregory\u2019s actions subsequent to the pat down constituted a search. If no search is necessary or conducted, the constitutional guaranty of the Fourth Amendment is not applicable. State v. Kinley, 270 N.C. 296, 297, 154 S.E.2d 95, 96 (1967). A search implies both an examination of one\u2019s premises or person with a view to the discovery of contraband, and an exploratory investigation or quest. State v. Reams, 277 N.C. 391, 400, 178 S.E.2d 65, 70 (1970), cert. denied, 404 U.S. 840, 30 L.Ed.2d 74 (1971) (quoting Haerr v. United States, 240 F.2d 533, 535 (5th Cir. 1957)). When evidence is delivered to a police officer upon request and without compulsion or coercion, there is no search within the constitutional prohibition against unreasonable searches and seizures. See State v. Reams, 277 N.C. at 396, 198 S.E.2d at 68 and cases cited therein. From the facts of this case, it is apparent that no additional search was conducted after the pat down.\nDeputy Gregory testified:\nI asked [defendant] what he had in his pocket. [Defendant] said money and pulled out some money. ... I told him that I could still see something in his jeans, they were tight to his body. I asked him to pull his pockets rabbit-ear out, he did. I noticed at that point that he was about \u2014 that he was about to start laughing. I then noticed he was palming something in his hand. I asked him what was in his hand. He turned it over. I saw a plastic bag with a small amount of white powder on it. The powder looked to be cocaine.\n(Emphasis added). There is nothing in the record to dispute Deputy Gregory\u2019s testimony that, in response to his asking defendant what was in his pocket and requesting that he \u201crabbit-ear\u201d his pockets, defendant voluntarily exhibited the package of cocaine. The record is devoid of any evidence that the deputy coerced the defendant into revealing the cocaine. See Reams, 277 N.C. at 400, 178 S.E.2d at 70. On the contrary, there was evidence that the process by which defendant displayed the cocaine was free of coercion, intimidation, and force.\nMoreover, defendant\u2019s intoxication did not negate the element of voluntariness when he exposed the cocaine to the officer. This Court, in State v. Colson, 1 N.C. App. 339, 343, 161 S.E.2d 637, 640 (1968), stated that \u201cdrunkenness provides the drinker with no constitutional cloak of privacy not available to his sober brothers.\u201d Nothing in the record indicates that the defendant\u2019s intoxication caused him to be incapable of voluntary and intelligent action.\nFinally, I would point out that defendant could have exercised his constitutional right to refuse the deputy\u2019s request that he \u201crabbit-ear\u201d his pockets and show him the contraband. Under constitutional scrutiny, such refusal would not have given the deputy probable cause either to search or arrest the defendant. Cf. Florida v. Bostick, 501 U.S. \u2014, \u2014, 115 L.Ed.2d 389, 398-90 (1991) (a suspect\u2019s refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure). The facts in the case at hand, however, provide no indication that the defendant felt that he could not refuse to display the cocaine or that he would have been arrested if he refused to do so.\nI realize that my conclusion, that what transpired between Deputy Gregory and the defendant after the pat down was not a search, is contrary to the reasoning of the trial court. Even though I reject the trial court\u2019s analysis, I believe that it reached the correct result in this case and that the result should be affirmed. Defendant\u2019s attack on the legality of the search has required us to review the record to determine whether the search was lawful. In so doing, we may review the trial court\u2019s order for errors of law pertaining to the issue. Cf. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970) (defendant\u2019s exception to the judgment presents the face of the record for review). If the trial court reached the correct result, i.e., denial of defendant\u2019s motion to suppress, the ruling will not be disturbed even though the court may not have assigned the right reason for the order entered. State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650, cert. denied, 484 U.S. 916, 98 L.Ed.2d 224 (1987).\nIn conclusion, because defendant voluntarily showed the cocaine to Deputy Gregory, I vote to uphold the denial of defendant\u2019s motion to suppress and to affirm the judgment.", "type": "dissent", "author": "Judge McCRODDEN" } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Anita LeVeaux Quigless, for the State.", "Merrell, Tillett & Barnes, by Edgar L. Barnes and Phillip H. Hayes, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL SCOTT BEVERIDGE\nNo. 921SC931\n(Filed 7 December 1993)\nSearches and Seizures \u00a7 58 (NCI4th)\u2014 warrantless pat-down search \u2014 baggie in pocket \u2014existence of contraband not immediately apparent \u2014cocaine fruit of constitutionally impermissible search\nCocaine seized from defendant was the fruit of a constitutionally impermissible search where an officer was justified in conducting a limited pat-down of defendant to determine whether defendant was armed; the officer concluded that there was no weapon but there was a rolled-up plastic baggie in defendant\u2019s pants pocket; it was not immediately apparent to the officer that the baggie held contraband; and without some other exigency to justify the continued warrantless search of defendant, the officer was no longer authorized to invade defendant\u2019s privacy.\nAm Jur 2d, Evidence \u00a7 415.\nJudge McCRODDEN dissenting.\nAppeal by defendant from judgment entered 29 July 1992 by Judge James R. Strickland in Dare County Superior Court. Heard in the Court of Appeals 31 August 1993.\nDefendant was indicted by the grand jury on 13 May 1991 for allegedly violating N.C. Gen. Stat. \u00a7 90-95, possession of cocaine. Subsequently, defendant filed a motion on 25 September 1991 seeking to suppress certain evidence pertaining to the charges against him. That motion was heard on 27 July 1991.\nThe State\u2019s evidence upon voir dire tended to show that on 30 April 1991, at 12:50 a.m., Officer Joel Johnson made a driving while impaired arrest in an area known as Avalon Beach. Officer John Gregory assisted in that arrest. As Officer Johnson was arresting the driver of the automobile, Officer Gregory secured the vehicle. The defendant was a passenger in the car.\nOfficer Gregory asked the defendant to leave the car and exit to the rear of the vehicle. At that time, Gregory noticed a strong odor of alcohol and also noticed that the defendant acted \u201cgiddy.\u201d He determined that the defendant was probably under the influence of alcohol, and he also believed that the defendant was under the influence of a controlled substance.\nThereafter, Officer Gregory asked the defendant if he had any weapons and advised the defendant that he was not under arrest. Gregory then explained to the defendant that he intended to search the vehicle, and that he also was going to perform a \u201cpat-down\u201d of the defendant\u2019s person for weapons.\nDuring the voir dire hearing, on direct examination, Officer Gregory testified that:\nA. He allowed me to pat him down and as I patted him down I noticed that there was something in his front pocket which was \u2014 it was a rolled up plastic bag, it was a large size plastic bag rolled up. It was cylindrical in his pocket long.\nQ. During your training, sir, as a law enforcement officer, had you received any training in controlled substances?\nA. Yes, sir, I have. I received a narcotics patrol officer school which is a 24 hour school which teaches you to identify things, plastic bags, things like that that people carry contraband in.\nQ. Now, what you felt in the defendant\u2019s pocket when you patted him down, sir, was that consistent with your training, sir, as to the type of plastic bags that are used to carry controlled substances?\nA. Yes, sir, it is.\nQ. And when you \u2014 after you felt that in the defendant\u2019s pockets, what did you next do, sir?\nA. I asked him what he had in his pocket and he started laughing a little bit and pulled out some money, said he had some money in there and he pulled that out but I could still see the long cylindrical bag he had in his pocket, his tight jeans. I then asked him what it was. He stuck his hand in his pocket and tried to palm what he had and I asked him what he was trying to hide and he rolled open his hand and showed me the white plastic bag with the white powdery substance in it.\nQ. You stated you could still see the baggie. Could you see a baggie itself, sir, or did you see the bulge in the pocket?\nA. You could see the long cylindrical bulge in his pocket.\nAfter the voir dire hearing, the trial court entered an order denying the defendant\u2019s motion to suppress the evidence. Based upon the evidence presented, the court made the following findings of fact:\n3) That Officer Johnson placed said Harold Delp under arrest for the offense of impaired driving.\n4) That the above-named defendant was a passenger in the vehicle at the time it was stopped by Officer Johnson.\n5) That shortly after Officer Johnson placed said Harold Delp in custody Deputy Sheriff John Gregory arrived and was requested by Officer Johnson to assist by securing the vehicle and searching the passenger compartment incident to the arrest of said Delp.\n8) That Deputy John Gregory patted down the defendant and felt what seemed to him to be a rolled up plastic baggie in the defendant\u2019s front pants pocket.\n9) That Deputy John Gregory had received numerous hours of training in the enforcement of the North Carolina Controlled Substances Act and had participated in numerous arrests for violations of said act.\n10) That Deputy John Gregory was familiar with the area surrounding Awful Arthur\u2019s which was at the intersection where the vehicle had been stopped and is an area in which previous arrests have been made for controlled substances violations.\n11) That Deputy Gregory had observed that the defendant appeared to exhibit the effects of having consumed some impairing substance and the effects were consistent with the use of a controlled substance such as was customarily stored in a rolled up plastic bag.\n12) That Deputy Gregory asked the defendant what he had in his pocket to which the defendant replied money, and the defendant pulled some money out of his pocket.\n13) That Deputy Gregory told the defendant that he could still see something in the defendant\u2019s pocket and asked the defendant to pull his pocket out.\n15) That Deputy Gregory observed the defendant conceal something in the palm of his hand.\n16) That Deputy Gregory asked the defendant what he had in his hand and then observed a plastic baggie containing a white powdery substance which appeared to Deputy Gregory to be cocaine.\n17) That Deputy Gregory then seized the plastic baggie and placed the defendant in custody.\nThe trial court entered the following conclusions of law:\n1) That based upon Deputy Gregory\u2019s training and experience and the circumstances as they appeared a reasonable officer would be justified in believing that probable cause existed to search the defendant for the possession of controlled substances.\n2) That exigent circumstances existed that precluded Officer Gregory from obtaining a search warrant to search the defendant.\n3) That the defendant was legally searched when asked about the bulge in his pants pocket observed by Deputy Gregory.\n4) That the location, time of day, physical condition of the defendant, size and shape of the bulge in the defendant\u2019s pocket, the defendant\u2019s apparent effort to conceal the contents of his pocket from Deputy Gregory\u2019s scrutiny, gave Deputy Gregory reasonable grounds to believe that the defendant possessed illegal drugs.\nDefendant subsequently entered a plea of guilty to possession of a Schedule II controlled substance, for which he received a sentence of two years imprisonment, suspended, and was placed on probation for three years. Defendant appeals the denial of the motion to suppress evidence.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Anita LeVeaux Quigless, for the State.\nMerrell, Tillett & Barnes, by Edgar L. Barnes and Phillip H. Hayes, Jr., for defendant-appellant." }, "file_name": "0688-01", "first_page_order": 718, "last_page_order": 729 }