{ "id": 11363387, "name": "STATE OF NORTH CAROLINA v. TYWUAN DANNELL GREEN", "name_abbreviation": "State v. Green", "decision_date": "2001-11-06", "docket_number": "No. COA00-1165", "first_page": "702", "last_page": "708", "citations": [ { "type": "official", "cite": "146 N.C. App. 702" } ], "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": "536 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2000, "pin_cites": [ { "page": "859" }, { "page": "859" }, { "page": "861-62" }, { "page": "862" }, { "page": "863" }, { "page": "863-64" }, { "page": "864" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129481 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc-app/140/0484-01" ] }, { "cite": "476 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "392", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11888822 ], "year": 1996, "pin_cites": [ { "page": "155", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0150-01" ] }, { "cite": "322 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "146", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "312 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750239 ], "year": 1984, "pin_cites": [ { "page": "261", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0251-01" ] }, { "cite": "437 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "389-90", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 777", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523954 ], "year": 1993, "pin_cites": [ { "page": "782", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0777-01" ] }, { "cite": "142 L. Ed. 2d 106", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "525 U.S. 853", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11095652, 11095812, 11095366, 11095751, 11095399, 11095561, 11095339, 11095443, 11095928, 11095605, 11095702, 11095510, 11095480, 11095866 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/525/0853-09", "/us/525/0853-12", "/us/525/0853-02", "/us/525/0853-11", "/us/525/0853-03", "/us/525/0853-07", "/us/525/0853-01", "/us/525/0853-04", "/us/525/0853-14", "/us/525/0853-08", "/us/525/0853-10", "/us/525/0853-06", "/us/525/0853-05", "/us/525/0853-13" ] }, { "cite": "495 S.E.2d 669", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "347 N.C. 508", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551065 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0508-01" ] }, { "cite": "519 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "772", "parenthetical": "citing State v. Mickey, 347 N.C. 508, 495 S.E.2d 669, cert. denied, 525 U.S. 853, 142 L. Ed. 2d 106 (1998)" }, { "page": "772" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 216", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239870 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "219", "parenthetical": "citing State v. Mickey, 347 N.C. 508, 495 S.E.2d 669, cert. denied, 525 U.S. 853, 142 L. Ed. 2d 106 (1998)" }, { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0216-01" ] }, { "cite": "148 L. Ed. 2d 992", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "531 U.S. 1165", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9783616, 9783489, 9784512, 9784931, 9785068, 9784364, 9784782, 9784238, 9785236, 9783863, 9783992, 9784122, 9784638 ], "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/531/1165-02", "/us/531/1165-01", "/us/531/1165-08", "/us/531/1165-11", "/us/531/1165-12", "/us/531/1165-07", "/us/531/1165-10", "/us/531/1165-06", "/us/531/1165-13", "/us/531/1165-03", "/us/531/1165-04", "/us/531/1165-05", "/us/531/1165-09" ] }, { "cite": "532 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "501" } ], "opinion_index": 0 }, { "cite": "352 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685022 ], "year": 2000, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0489-01" ] }, { "cite": "543 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "826", "parenthetical": "quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001) (citation omitted)" } ], "opinion_index": 0 }, { "cite": "353 N.C. 332", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135584 ], "year": 2001, "pin_cites": [ { "page": "336", "parenthetical": "quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001) (citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0332-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 683, "char_count": 14835, "ocr_confidence": 0.762, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.3334613330738587 }, "sha256": "3f70022e1170be285360d38a0a567bca2d2c9fd2a2fc3ae82803b427f2fe7607", "simhash": "1:b7094420667e555c", "word_count": 2387 }, "last_updated": "2023-07-14T17:14:58.205856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and TYSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TYWUAN DANNELL GREEN" ], "opinions": [ { "text": "HUNTER, Judge.\nTywuan Dannell Green (\u201cdefendant\u201d) appeals the trial court\u2019s denial of his motion to suppress, resulting in his plea of guilty to one count of possession with intent to sell and deliver a controlled substance. We affirm the trial court\u2019s denial of defendant\u2019s motion to suppress.\nThe evidence presented during the hearing of defendant\u2019s motion to suppress tended to establish the following. On 3 July 1999, Sergeant Steve Mozingo (\u201cSgt. Mozingo\u201d), of the Wayne County Sheriff\u2019s Department, was on routine patrol as a member of the department\u2019s Aggressive Criminal Enforcement Unit designed to control street narcotics. At approximately 11:30 p.m., Sgt. Mozingo and another officer were patrolling an area of known drug activity in their patrol car. As the officers approached an intersection where drug transactions are common and arrests are routinely made, they observed three people congregated at the intersection.\nSgt. Mozingo testified that as he approached the three in his patrol car, he observed defendant bend down as though setting something on the ground. Defendant then began to walk away from where he had been standing. Sgt. Mozingo noticed a beer bottle on the ground near where defendant had been standing. The bottle was lying on its side, and beer was flowing out of the bottle. Sgt. Mozingo exited his vehicle and asked defendant to return to where the beer bottle lay. Sgt. Mozingo testified that he wanted to verify defendant was not engaged in underage drinking, since defendant appeared to be under twenty-one years of age.\nAs defendant turned to face Sgt. Mozingo, he placed his right hand into his front pants pocket. Sgt. Mozingo requested defendant remove his hand for safety reasons, and defendant complied. Sgt. Mozingo asked defendant his age, to which defendant replied he was twenty-two years old. Sgt. Mozingo requested verification of defendant\u2019s age. Defendant responded that his identification was in his vehicle parked nearby. Sgt. Mozingo asked defendant what he had placed in his front pants pocket. Defendant responded, \u201c[nothing.\u201d Sgt. Mozingo then asked defendant if he would consent to a pat down. Defendant replied, \u201cI ain\u2019t got nothing,\u201d and raised his hands above his head. As defendant raised his arms, his shirt rose above his waistband, revealing approximately two inches of a plastic baggie sticking out of his pants pocket. Sgt. Mozingo testified that based on his \u201cprior experience and training, and knowing how drugs are packaged, [he] retrieved it and found [] green vegetable matter which appeared to ... be marijuana.\u201d\nSgt. Mozingo went to retrieve his citation book from his patrol car, whereupon Corporal Mack Stapps (\u201cCorporal Stapps\u201d) monitored defendant. Corporal Stapps observed defendant adjusting his jaw as though he had something in his mouth. Corporal Stapps asked defendant what was in his mouth. Defendant responded that he did not have anything in his mouth, whereupon Corporal Stapps observed \u201cseveral dark looking objects with white specks in them.\u201d Corporal Stapps requested that defendant spit out the objects, and defendant complied. Defendant spit out several green-colored baggies containing what Corporal Stapps observed to be crack cocaine.\nDefendant introduced evidence from Dana Lamb (\u201cLamb\u201d), who testified that she was an eye-witness to the interaction between defendant and the officers. Lamb testified that the officers were \u201charassing\u201d defendant, that defendant never raised his arms above his head, and that the officers searched defendant without his consent.\nAt the close of the evidence, the trial court entered an order denying defendant\u2019s motion to suppress the drug evidence. Following the denial of his motion, defendant entered a guilty plea to one count of possession with intent to sell and deliver cocaine in violation of N.C. Gen. Stat. \u00a7 90-95(a)(l) (1999). Defendant was sentenced to a minimum of six months\u2019 and a maximum of eight months\u2019 imprisonment. Defendant appeals the denial of his motion to suppress pursuant to N.C. Gen. Stat. \u00a7 15A-979(b) (1999).\nDefendant argues: (1) the trial court\u2019s findings of fact were not supported by the evidence; and (2) the trial court erred in denying the motion to suppress because Sgt. Mozingo lacked probable cause to seize the plastic baggie protruding from defendant\u2019s pants.\nDefendant first argues that the trial court\u2019s finding of fact number eleven is unsupported by the evidence presented at the hearing. The trial court found as follows:\n10. At that time [that defendant raised his hands] Sgt. Mozingo saw in plain view a plastic baggie commonly used for wrapping sandwiches, and also, according to his education and experience, is used for the packaging and re-packaging of controlled substances, in particular marijuana.\n11. Sgt. Mozingo further testified that this baggie appeared to have some green vegetable material in it, which his education and training indicated to him to be marijuana.\nDefendant argues that it is implicit in finding of fact number eleven that Sgt. Mozingo observed the marijuana-like substance in the baggie while the baggie was still protruding from defendant\u2019s pants and prior to its seizure. Sgt. Mozingo\u2019s testimony at the suppression hearing established that he did not observe the marijuana-like substance until he had removed the baggie from defendant\u2019s pants.\nAlthough the trial court\u2019s findings of fact could be more clear as to when Sgt. Mozingo observed the marijuana-like substance, finding of fact number eleven is clearly supported by the evidence. Sgt. Mozingo did testify that he observed in the baggie a green vegetable material which he recognized as marijuana based on his education, experience and training. We decline to draw implications from the trial court\u2019s finding beyond its plain words.\nDefendant next argues that the trial court erred in denying his motion to suppress because Sgt. Mozingo did not have probable cause to seize the baggie from defendant\u2019s pants. We disagree. \u201c[I]n evaluating a trial court\u2019s ruling on a motion to suppress . . . the trial court\u2019s findings of fact \u201c \u2018are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.\u201d \u2019 \u201d State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (quoting State v. Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000), cert. denied, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001) (citation omitted)). Having determined the challenged finding of fact is supported by competent evidence, we address whether the findings of fact support the denial of defendant\u2019s motion to suppress.\nThe State argues that Sgt. Mozingo had the right to seize the plastic baggie from defendant\u2019s pants because defendant consented to a search when he raised his arms. Regardless of whether defendant consented to a search, the raising of his arms brought the plastic baggie into Sgt. Mozingo\u2019s plain view. We hold that Sgt. Mozingo\u2019s seizure of the plastic baggie was justified under the \u201cplain view\u201d exception to the Fourth Amendment. Under this doctrine,\npolice may seize contraband or evidence if (1) the officer was in a place where he had a right to be when the evidence was discovered; (2) the evidence was discovered inadvertently; and (3) it was immediately apparent to the police that the items observed were evidence of a crime or contraband.\nState v. Graves, 135 N.C. App. 216, 219, 519 S.E.2d 770, 772 (1999) (citing State v. Mickey, 347 N.C. 508, 495 S.E.2d 669, cert. denied, 525 U.S. 853, 142 L. Ed. 2d 106 (1998)).\nDefendant concedes the evidence presented was sufficient to satisfy the first two prongs of the plain view doctrine. Sgt. Mozingo had the right to briefly detain defendant for questioning as to whether defendant was involved in underage drinking. Moreover, Sgt. Mozingo\u2019s discovery of the plastic baggie was not the result of any deliberate search. The baggie was revealed inadvertently when defendant raised his arms. We therefore focus only on the requirement that it was immediately apparent to Sgt. Mozingo that the plastic baggie was evidence of a crime or contraband.\nOur courts have defined the term \u201cimmediately apparent\u201d as being satisfied where \u201c \u2018 . the police have probable cause to believe that what they have come upon is evidence of criminal conduct.\u201d \u2019 \u201d Graves, 135 N.C. App. at 219, 519 S.E.2d at 772 (quoting State v. Wilson, 112 N.C. App. 777, 782, 437 S.E.2d 387, 389-90 (1993) (citation omitted)). \u201c \u2018Probable cause exists where the \u201cfacts and circumstances within their [the officers\u2019] knowledge . . . [are] sufficient in themselves to warrant a man of reasonable caution in the belief that\u201d an offense has been or is being committed.\u2019 \u201d Id. (quoting State v. Zuniga, 312 N.C. 251, 261, 322 S.E.2d 140, 146 (1984) (citation omitted)). \u201c \u2018The circumstances leading to [a] seizure \u201cshould be viewed as a whole through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.\u201d \u2019 \u201d Id. (quoting State v. Hendrickson, 124 N.C. App. 150, 155, 476 S.E.2d 389, 392 (1996) (citation omitted)).\nIn State v. Briggs, 140 N.C. App. 484, 536 S.E.2d 858 (2000), this Court recently addressed the \u201cimmediately apparent\u201d requirement within the context of the plain feel doctrine. In that case, the defendant was stopped in his vehicle at a routine license checkpoint. Id. at 486, 536 S.E.2d at 859. In conducting a pat-down search for weapons, the officer felt a cylindrical shape in defendant\u2019s pocket that appeared to be a cigar holder. Id. at 487, 536 S.E.2d at 859. Knowing that cigar holders are frequently used to store controlled substances, the officer removed and opened the cigar holder from defendant\u2019s pocket, revealing several rocks of crack cocaine. Id.\nThis Court noted that there exists a split of authority among states as to whether containers themselves can be immediately apparent as contraband. Id. at 489-90, 536 S.E.2d at 861-62. We further noted prior case law from this State fails to fall neatly into either category. Id. at 491, 536 S.E.2d at 862. We therefore determined the best approach for analyzing the issue is a totality of the circumstances inquiry. Id. at 493, 536 S.E.2d at 863. We stated that the determination of probable cause in such instances \u201cdoes not require hard and fast certainty by an officer, but involves more of a common-sense determination. . . . [T]hat involves considering the evidence as understood by those versed in the field of law enforcement under the circumstances then existing.\u201d Id.\nIn reviewing the totality of the circumstances in that case, we considered evidence that the defendant was stopped late at night and in a high crime area; the officer recognized the defendant as someone who had previously been arrested for a drug offense; the officer smelled cigar fumes in the defendant\u2019s car, which he believed to be masking the smell of drugs; the defendant\u2019s eyes were red and glassy; and the officer\u2019s experience made him aware that cigar holders are commonly used to store controlled substances. Id. at 493-94, 536 S.E.2d at 863-64. We concluded the officer \u201chad sufficient information to warrant a person of reasonable caution in the belief that the item he detected contained contraband.\u201d Id. at 494, 536 S.E.2d at 864.\nIn the present case, Sgt. Mozingo came upon defendant late at night in an area known for drug activity and at a particular intersection known for drug transactions and arrests. Defendant and two other people were congregated at the intersection. As the officers approached, defendant bent down, then began to walk away from the intersection. When asked by Sgt. Mozingo to return to where he had been standing, defendant immediately placed his hand in his front pants pocket, requiring that Sgt. Mozingo order him to remove his hand for safety reasons. When defendant later raised his arms, Sgt. Mozingo saw in plain view approximately two inches of a plastic baggie. Sgt. Mozingo testified that before seizing the baggie, he believed it contained a controlled substance because \u201c[t]hat\u2019s the way we find it packaged every day, in clear plastic bags. I\u2019ve been through several narcotics classes and they show us the packaging of narcotics; plus numerous arrests made using the same type bags.\u201d\nUpon review of the totality of the circumstances, we hold the evidence sufficient to satisfy the third prong of the plain view doctrine, that it was immediately apparent to Sgt. Mozingo that the plastic baggie was evidence of a crime or contraband. The plastic baggie containing marijuana was properly admitted into evidence, and the trial court did not err in denying defendant\u2019s motion to suppress. We therefore need not address defendant\u2019s additional argument that the cocaine baggies recovered from his mouth must also be suppressed as \u201cfruit of the poisonous tree.\u201d\nAffirmed.\nJudges WYNN and TYSON concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Special Deputy Attorney General George W. Boylan, for the State.", "Adrian M. Lapas for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TYWUAN DANNELL GREEN\nNo. COA00-1165\n(Filed 6 November 2001)\nSearch and Seizure\u2014 motion to suppress \u2014 drugs\u2014plain view\nThe trial court did not err in a possession with intent to sell and deliver a controlled substance case by denying defendant\u2019s motion to suppress drug evidence which resulted in defendant\u2019s guilty plea in a situation where an officer inadvertently discovered a plastic baggie of drugs on defendant\u2019s body when defendant raised his arms in response to the officer\u2019s ordering defendant to remove his hands from his front pants pocket for safety reasons, because the totality of circumstances reveals that: (1) the officer saw in plain view approximately two inches of a plastic baggie sticking out of defendant\u2019s pants; (2) the officer testified that before seizing the baggie, he believed it contained a controlled substance since that is the way the officer finds it packaged every day, he saw the same packaging of narcotics in his narcotics classes, plus he had made numerous drug arrests with the same type bags; (3) the officer testified he observed in the baggie a green vegetable material which he recognized as marijuana based on his education, experience, and training; (4) the officer had probable cause to seize the baggie from defendant\u2019s pants, regardless of whether defendant consented to a search when he raised his arms, since the raising of defendant\u2019s arms brought the plastic baggie into the officer\u2019s plain view; and (5) the officer came upon defendant late at night in an area known for drug activity and at a particular intersection known for drug transactions and arrests.\nAppeal by defendant from judgment entered 15 March 2000 by Judge Benjamin G. Alford in Wayne County Superior Court. Heard in the Court of Appeals 12 September 2001.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General George W. Boylan, for the State.\nAdrian M. Lapas for defendant-appellant." }, "file_name": "0702-01", "first_page_order": 734, "last_page_order": 740 }