{ "id": 8523954, "name": "STATE OF NORTH CAROLINA v. ANTONIO DEMETRIUS WILSON, Defendant", "name_abbreviation": "State v. Wilson", "decision_date": "1993-12-07", "docket_number": "No. 9326SC46", "first_page": "777", "last_page": "783", "citations": [ { "type": "official", "cite": "112 N.C. App. 777" } ], "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": "433 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "240", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522985 ], "year": 1993, "pin_cites": [ { "page": "584", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0581-01" ] }, { "cite": "460 U.S. 730", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6199658 ], "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "plurality opinion" }, { "parenthetical": "plurality opinion" } ], "opinion_index": 0, "case_paths": [ "/us/460/0730-01" ] }, { "cite": "102 L. Ed. 387", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1988, "opinion_index": 0 }, { "cite": "488 U.S. 958", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1493728, 1494561, 1495366, 1494952, 1494217, 1494987, 1494156, 1494413, 1494189, 1495086, 1495346, 1495219, 1494709, 1493749, 1493945 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/us/488/0958-13", "/us/488/0958-01", "/us/488/0958-09", "/us/488/0958-08", "/us/488/0958-12", "/us/488/0958-04", "/us/488/0958-02", "/us/488/0958-06", "/us/488/0958-14", "/us/488/0958-07", "/us/488/0958-11", "/us/488/0958-03", "/us/488/0958-05", "/us/488/0958-15", "/us/488/0958-10" ] }, { "cite": "370 S.E.2d 390", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "395" } ], "opinion_index": 0 }, { "cite": "322 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516170 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0770-01" ] }, { "cite": "430 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "criminal character of object in plain view must be immediately apparent to justify its seizure" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526043 ], "year": 1993, "pin_cites": [ { "parenthetical": "criminal character of object in plain view must be immediately apparent to justify its seizure" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0569-01" ] }, { "cite": "504 N.W.2d 400", "category": "reporters:state_regional", "reporter": "N.W.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "404" } ], "opinion_index": 0 }, { "cite": "826 F. Supp. 33", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3828874 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/f-supp/826/0033-01" ] }, { "cite": "622 So. 2d 791", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7481236 ], "year": 1993, "pin_cites": [ { "parenthetical": "removal of matchbox containing contraband not allowed because identity of contraband not readily apparent" } ], "opinion_index": 0, "case_paths": [ "/so2d/622/0791-01" ] }, { "cite": "827 F. Supp. 711", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 7405903 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/f-supp/827/0711-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "113 S.Ct. 2130", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 12205 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "346" }, { "parenthetical": "requiring illegal character of contraband to be immediately apparent" }, { "parenthetical": "requiring illegal character of contraband to be immediately apparent" } ], "opinion_index": 0, "case_paths": [ "/us/508/0366-01" ] }, { "cite": "415 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "785", "parenthetical": "citations omitted" }, { "page": "785-86" } ], "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" ] } ], "analysis": { "cardinality": 686, "char_count": 14823, "ocr_confidence": 0.74, "pagerank": { "raw": 1.9710409800416131e-07, "percentile": 0.7393098979901918 }, "sha256": "4d31f9fb9a26ee327de6e251403fce12718a1675bf4558b31f5e023fdf66be35", "simhash": "1:0aa2adfb62d46078", "word_count": 2406 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and MARTIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANTONIO DEMETRIUS WILSON, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nThe evidence presented below shows that on the evening of 2 March 1991, the Charlotte Police Department received an anonymous phone call that several individuals were dealing drugs in the breezeway of Building 1304 at the Hunter Oaks Apartments. The caller provided no specifics as to the names of the individuals nor did the caller give a description of the alleged drug dealers. Officer Faulkenberry and Officer J.M. Cherry were originally dispatched to the scene. The police were familiar with the area and knew that when a squad car entered the parking lot at one end of the breezeway the suspects would run out the other end. A plan was thus devised where one patrol car would enter the parking lot and Officer Faulkenberry and Officer Cherry would position themselves so that they could apprehend anyone who ran out the back of the breezeway.\nOne of the suspects who ran out the back of the breezeway was defendant. Officer Faulkenberry stopped him and performed a protective frisk of defendant\u2019s outer clothing. While performing his protective frisk, Officer Faulkenberry felt a lump in the left breast pocket of defendant\u2019s jacket and he immediately opined that it was crack cocaine. Officer Faulkenberry then asked defendant if his coat had an inside pocket. Defendant made no verbal response, but instead opened his jacket so that the inside pocket was visible. Officer Faulkenberry testified that once defendant opened his jacket he saw a small plastic bag which he then removed. The contents of the plastic bag proved to be crack cocaine.\nDefendant was arrested and charged with possession with intent to sell and deliver cocaine. At trial defendant filed a motion to suppress and an accompanying affidavit giving his version of Officer Faulkenberry\u2019s search. The trial court denied defendant\u2019s motion to suppress and defendant thereafter entered a plea of guilty. Defendant now appeals.\nThere are two separate issues before this Court: (I) Whether Officer Faulkenberry had a reasonable suspicion to justify his stop of defendant, and (II) Whether Officer Faulkenberry\u2019s frisk of defendant was more intrusive than necessary. As to the first issue defendant argues that the facts of this case are identical to those in State v. Fleming, 106 N.C. App. 165, 415 S.E.2d 782 (1992), where this Court held that reasonable suspicion did not exist. We do not agree. In Fleming this Court stated that: \u201cA brief investigative stop of an individual must be based on specific and articulable facts as well as inferences from those facts, viewing the circumstances surrounding the seizure through the eyes of a reasonable cautious police officer on the scene, guided by his experience and training.\u201d Id. at 169, 415 S.E.2d at 785 (citations omitted). This Court further held that there was no reasonable suspicion because the officers seized a defendant who had merely been standing in an open area between two apartment buildings and then chose to walk in a direction away from the officers. The Fleming Court determined that the officers had only a generalized suspicion based on the time, place and the fact that defendant was unfamiliar to the area, and that if a generalized suspicion was enough then innocent citizens could be subjected to unreasonable searches at an officer\u2019s whim. Id. at 171, 415 S.E.2d at 785-86.\nIn the present case we find that Officer Faulkenberry had much more than a generalized suspicion. Officer Faulkenberry was in the area because the police had received an anonymous phone call that individuals were dealing drugs at the apartment complex. Further, when the squad car pulled into the parking lot, defendant and several other individuals attempted to flee the scene. Officer Faulkenberry also testified that as a seven year veteran of the force, it was his experience that weapons were frequently involved in drug transactions. We find that when these factors are considered as a whole and from the point of view of a reasonably cautious officer present on the scene, Officer Faulkenberry had reasonable suspicion to seize defendant and to perform a pat down search.\nWe next address the question of whether or not Officer Faulkenberry\u2019s search of defendant was more intrusive than was necessary to assure himself that defendant was not dangerous. Since the filing of the briefs in this case, the United States Supreme Court decided the factually similar case of Minnesota v. Dickerson, 113 S.Ct. 2130, 124 L. Ed. 2d 334 (1993). In Dickerson, a police officer stopped a suspect and performed a routine pat down search. Although the search revealed no weapons, the officer became curious about a small lump in the front pocket of the defendant\u2019s jacket. The officer testified \u201cI examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane.\u201d Id. Believing the lump to be cocaine the officer reached into defendant\u2019s pocket and retrieved a small cellophane bag, confirming his suspicion.\nOn appeal, the Supreme Court addressed the narrow question of whether or not an officer may seize nonthreatening contraband detected during a pat down search. The Supreme Court held that such was permissible as long as the officer\u2019s search was within the bounds established by Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968). Supplying the rationale for its decision, the Supreme Court stated that:\n[i]f 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 th\u00e9 object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.\nDickerson at 2137, 124 L. Ed. 2d at 346. Applying this \u201cplain feel\u201d exception to the facts before it, the Supreme Court held that the officer\u2019s search was not authorized by Terry because the incriminating character of the lump in defendant\u2019s pocket was not immediately apparent because the officer had to slide it through his fingers and otherwise manipulate the lump to determine its incriminating character.\nIn the present matter Officer Faulkenberry testified that while performing his pat down search he felt a package or a lump in defendant\u2019s pocket and that he could tell there were smaller pieces within the lump. At first blush, the present matter appears indistinguishable from Dickerson. However, upon closer examination there are several critical differences between the case at bar and Dickerson. In both Dickerson and the case at bar, the officer testified that he felt a lump and opined that it was cocaine. However, in Dickerson there was additional testimony that the officer manipulated the contents of the defendant\u2019s pocket to form his opinion that the substance was cocaine, thus refuting any notion that the character of the contraband was immediately apparent to the officer. In the case at bar there is no such additional testimony that Officer Faulkenberry manipulated the contents of defendant\u2019s pocket or that he performed a search that was not permitted under Terry. The extent of Officer Faulkenberry\u2019s testimony was:\nAs I was conducting the pat-down, I . . . started down the front and in his left breast pocket I felt a package or felt a lump. I could tell that there were small individual pieces inside of that lump and based on my past experience, I believed it to be a Controlled Substance, more than likely Crack.\nThough Officer Faulkenberry\u2019s testimony sufficiently distinguishes this case from Dickerson, it still does not answer the ultimate question of whether the incriminating character of the lump in defendant\u2019s pocket was \u201cimmediately apparent.\u201d The resolution of this question is made difficult because the Supreme Court failed, for whatever reason, to provide a definition or a test for the phrase \u201cimmediately apparent.\u201d In fact, it has been suggested by one court that the \u201cimmediately apparent\u201d test confuses \u201cknowledge\u201d and \u201csuspicion\u201d because an officer cannot truly verify the illegal character of a contraband substance without looking at it, and perhaps even testing it. See United States v. Ross, 827 F. Supp. 711 (S.D. Ala. 1993).\nSince Dickerson was decided in June of this year, there have been several cases construing it. In Ross, the Southern District Court of Alabama held that the incriminating character of a matchbox found in the defendant\u2019s crotch during a lawful pat down was not immediately apparent because a matchbox is not contraband and it was irrelevant that the officer thought it contained cocaine. Id.; see also State v. Parker, 622 So. 2d 791 (La. App. 4th Cir. 1993) (removal of matchbox containing contraband not allowed because identity of contraband not readily apparent). Similarly, in United States v. Winter, 826 F. Supp. 33 (D. Mass. 1993), the Massachusetts District Court held that the \u201cplain feel\u201d rationale of Dickerson did not apply where the arresting officer repeatedly testified that he did not know the incriminating character of the contraband until he removed it. In contrast, the Wisconsin Court of Appeals upheld a trial court\u2019s denial of a motion to suppress in light of Dickerson when the arresting officer testified that he immediately recognized the incriminating character of a plastic bag found in defendant\u2019s waistband during a pat down search. State v. Buchanan, 504 N.W.2d 400 (Wis. Ct. App. 1993). The court reasoned that \u201cgiven what the officer knew about the storage of cocaine, his conclusions about the character of the plastic baggie [were] reasonable.\u201d Id. at 404. These cases clearly establish that the item seized must be contraband itself and that the officer must be aware of the incriminating character of the contraband before seizing such.\nAlthough we feel that the facts of the present case most clearly resemble those in Buchanan, the above cases offer little more than case by case guidance and fall short of definitively answering the ultimate question of what is \u201cimmediately apparent.\u201d In resolving this question we are guided by search and seizure cases decided under the \u201cplain view\u201d exception to the Fourth Amendment, because the \u201cimmediately apparent\u201d requirement is common to both the \u201cplain view\u201d exception and the \u201cplain feel\u201d exception. See Minnesota v. Dickerson, 113 S.Ct. 2130, 124 L. Ed. 2d 334 (1993) (requiring illegal character of contraband to be immediately apparent); State v. Church, 110 N.C. App. 569, 430 S.E.2d 462 (1993) (criminal character of object in plain view must be immediately apparent to justify its seizure). In State v. White, 322 N.C. 770, 370 S.E.2d 390, cert. denied, 488 U.S. 958, 102 L. Ed. 387 (1988), our Supreme Court held that in the context of the \u201cplain view\u201d exception the term \u201cimmediately apparent\u201d is \u201csatisfied if the police have probable cause to believe that what they have come upon is evidence of criminal conduct.\u201d Id. at 777, 370 S.E.2d at 395. Given this statement we need only determine whether Officer Faulkenberry had probable cause to believe that the contraband he felt during his pat down search was cocaine. See e.g. State v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502 (1983) (plurality opinion) (during routine traffic stop, incriminating character of balloon was immediately apparent because officer had probable cause to believe that balloon contained narcotics). \u201cProbable cause is a \u2018common sense, practical question\u2019 based on \u2018the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.\u2019 \u201d State v. Wallace, 111 N.C. App. 581, 584, 433 S.E.2d 238, 240 (1993) (citation omitted). \u201cThe standard to be met when considering whether probable cause exists is the totality of the circumstances.\u201d Id. Based upon the fact that Officer Faulkenberry was called to the scene to investigate alleged drug dealings and because he had made prior drug arrests in his seven years of service, we find that upon using his tactile senses, he had probable cause to believe that the contraband in defendant\u2019s pocket was cocaine. We hold that Officer Faulkenberry\u2019s search was no more intrusive than necessary because the incriminating character of the contraband substance was \u201cimmediately apparent\u201d to him. We also distinguish this case from Dickerson because Officer Faulkenberry was in the midst of a weapon\u2019s search when he felt the contraband, whereas in Dickerson the officer had already convinced himself that defendant\u2019s pocket did not contain a weapon. We find that the facts of this case are distinguishable from those in Dickerson and affirm the trial court\u2019s denial of defendant\u2019s motion to suppress.\nAffirmed.\nJudges WELLS and MARTIN concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Associate Attorney General E. Lee Turner, Jr., for the State.", "Harold J. Bender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTONIO DEMETRIUS WILSON, Defendant\nNo. 9326SC46\n(Filed 7 December 1993)\n1. Searches and Seizures \u00a7 82 (NCI4th)\u2014 warrantless search and seizure of defendant \u2014reasonable suspicion by police officer \u2014pat-down search proper\nAn officer had reasonable suspicion to seize defendant and to perform a pat-down search where the officer was in the area because police had received an anonymous phone call that individuals were dealing drugs at an apartment complex; the police were familiar with the area and knew that when a squad car entered the parking lot at one end of the breezeway, the suspects would run out the other end; when the officer\u2019s squad car pulled into the parking lot, defendant and several other individuals attempted to flee the scene; and the officer testified that as a seven-year veteran of the force, it was his experience that weapons were frequently involved in drug transactions.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 42, 43.\n2. Searches and Seizures \u00a7 58 (NCI4th)\u2014 pat-down search \u2014 contraband felt \u2014 \u201cplain feel\u201d doctrine \u2014nature of contraband immediately apparent to officer\nAn officer\u2019s search of defendant was no more intrusive than was necessary to assure himself that defendant was not dangerous where the officer was called to the scene to investigate alleged drug dealings; the officer had made prior drug arrests in his seven years of service; the officer was in the midst of a weapons search when he felt the contraband; upon using his tactile senses, the officer had probable cause to believe that the contraband in defendant\u2019s pocket was cocaine; and the character of the substance was immediately apparent to the officer.\nAm Jur 2d, Searches and Seizures \u00a7\u00a7 88, 103.\nAppeal by defendant from order entered in open court on 3 August 1992 by Judge Marcus Johnson in Mecklenburg County Superior Court. Heard in the Court of Appeals 5 October 1993.\nAttorney General Michael F. Easley, by Associate Attorney General E. Lee Turner, Jr., for the State.\nHarold J. Bender, for defendant-appellant." }, "file_name": "0777-01", "first_page_order": 807, "last_page_order": 813 }