{ "id": 9126768, "name": "STATE OF NORTH CAROLINA v. MICHAEL D. GRAHAM", "name_abbreviation": "State v. Graham", "decision_date": "2002-03-05", "docket_number": "No. COA01-338", "first_page": "215", "last_page": "221", "citations": [ { "type": "official", "cite": "149 N.C. App. 215" } ], "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": "524 S.E.2d 815", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "817" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 524", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240854 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0524-01" ] }, { "cite": "536 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "863" }, { "parenthetical": "Emphasis omitted" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12129481 ], "year": 2000, "pin_cites": [ { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0484-01" ] }, { "cite": "412 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172008 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "227" }, { "page": "862-63" } ], "opinion_index": 0, "case_paths": [ "/us/412/0218-01" ] }, { "cite": "200 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "174", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "284 N.C. 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560586 ], "year": 1973, "pin_cites": [ { "page": "143", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0137-01" ] }, { "cite": "488 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "214" } ], "opinion_index": 0 }, { "cite": "346 N.C. App. 794", "category": "reporters:state", "reporter": "N.C. App.", "year": 1997, "pin_cites": [ { "page": "799" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 579, "char_count": 12461, "ocr_confidence": 0.749, "pagerank": { "raw": 2.5752632111730803e-07, "percentile": 0.8166312012785302 }, "sha256": "1a84acee14f85b4e1372807aef9afcb5962160ec1eeb12d40910629dbcb16ec6", "simhash": "1:8b61f2737717c9e4", "word_count": 2058 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and THOMAS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL D. GRAHAM" ], "opinions": [ { "text": "WYNN, Judge.\nDefendant Michael D. Graham conditionally pled guilty to the charge of possession of cocaine reserving for this Court the issue of whether the trial court properly denied his motion to suppress the evidence of cocaine seized from his person. He also contends that the trial court erred by considering a prior district court prayer for judgment as a countable prior conviction for felony sentencing. We affirm the trial court\u2019s decisions.\nOn 21 December 1999 at about 2:30 a.m., three Winston-Salem Police Officers \u2014 James, Dew, and Best \u2014 responded to an anonymous tip reporting drug activity at an apartment in Winston-Salem. Pertinent to this appeal, the officers entered the apartment with the consent of a person in apparent control, stated their intentions to search for drugs and conducted a pat-down of the occupants for weapons. The officers testified that during their search, they noticed that defendant continuously reached into his pants\u2019 pocket. Officer James asked defendant whether he had anything in his pocket and he replied, no. Thereafter, Officer James asked defendant for permission to search his pocket. The trial court found that the defendant stood up and gestured in a manner so as to indicate consent for Officer James to search him. Upon checking his pocket, Officer James found a folded twenty dollar bill which she unraveled and discovered crack cocaine inside.\nIn denying defendant\u2019s motion to suppress, the trial court orally made the following findings:\nThe Court will find that on or about December 21st, 1999, at approximately 2:30 a.m., Officer James of the Winston-Salem Police Department, a veteran of seven years at that time with the police department, accompanied by two other officers including Officer Dew for whom Officer James was the training coach at that time, received a call concerning drug activities in an apartment at 1325 Oak Street. They were dispatched to answer that call. That they proceeded to that location. That they arrived at that location, saw the door open and several people inside and fights on.\nThat they approached and knocked and a female [Ms. Aiken] came to the door and indicated that she didn\u2019t leave [sic] there and the apartment was not hers and she didn\u2019t reside there and had control of the apartment. They asked consent to come in and search and look for drugs. That she allowed them to do so. That once inside, they saw several people and that Officer James informed them that they would each be searched for drugs.\nThey were patted down for weapons. None were found. That they did a cursory search of the residence. Found a hand gun that had not been used in any illegal activity and that Officer James found some small residue of cocaine and Ms. Aiken indicated that it was not hers.\nThey did not tell anybody they could not leave. They were in uniforms wearing weapons, which were not drawn and remained in their holsters. That nobody attempted to leave. That Officer James noted continuously while Officer Dew [sic] was doing his search that the defendant was fidgeting with his lower pants pocket. That she was concerned about a weapon and that she approached him and asked him if she could search his pocket or look in his pocket. That the defendant stood up and raised his arms and gestured in a way that Officer James took to mean consent. That he did not orally consent but he stood up and raised his arms and gestured in such a manner.\nThat she checked in his pocket and found a twenty dollar bill folded up with a lump in it and that because of her training arid experience as an officer, that was consistent with the way drugs are at times concealed or packaged and she unfolded the twenty dollar bill, without the consent of the defendant, and field tested it and treated it positive for cocaine. That she arrested the defendant.\nThe Court will find as fact that the officers were extremely courteous and professional as were the suspects and occupants.\nBased on the findings of fact, the trial court concluded as a matter of law\nthat none of the defendant\u2019s constitutional rights under the United States Constitution or the federal constitution or the state constitution were violated by the search and seizure. The Court will conclude that the defendant consented to the search of his pocket. That none of his statutory rights were violated. That the search was knowingly and willfully and voluntarily consented to and the court will deny the motion to suppress.\nOn appeal, defendant contends that the trial court erred by denying his motion to suppress the crack cocaine evidence seized from his person because it was obtained without his consent and without any of the court-recognized exigent circumstances that would have allowed him to be searched without a warrant. He argues that the officers did not obtain consent from him to search his person because he did not affirmatively and clearly indicate his permission, as required by N.C. Gen. Stat. \u00a7 15A-221.\nConsent searches have long been recognized as a \u201cspecial situation excepted from the warrant requirement, and a search is not unreasonable within the meaning of the Fourth Amendment when lawful consent to the search is given.\u201d State v. Smith, 346 N.C. App. 794, 799, 488 S.E.2d 210, 214 (1997). \u201cConsent to search, freely and intelligently given, renders competent the evidence thus obtained. \u201d State v. Frank, 284 N.C. 137, 143, 200 S.E.2d 169, 174 (1973) (citations omitted). \u201c[T]he question whether consent to a search was in fact \u2018voluntary\u2019 or was the product of duress or coercion, expressed or implied, is a question of fact to be determined from the totality of all the circumstances.\u201d Schneckloth v. Bustamonte, 412 U.S. 218, 227, 36 L. Ed. 2d 854, 862-63 (1973).\nN.C. Gen. Stat. \u00a7 15A-221(b) (1999) provides the statutory definition of consent:\nDefinition of \u201cConsent\u201d. \u2014 As used in this Article, \u201cconsent\u201d means a statement to the officer, made voluntarily and in accordance with the requirements of G.S. 15A-222, giving the officer permission to make a search.\n(Emphasis supplied). In determining whether under the totality of the circumstances defendant\u2019s nonverbal response in this case constituted a statement within the meaning of consent under N.C. Gen. Stat. \u00a7 15A-221(b), we are guided by Black\u2019s Law Dictionary definition of the word \u201cstatement\u201d as \u201ca verbal assertion or nonverbal conduct intended as an assertion.\u201d Black\u2019s Law Dictionary, 1416 (7th ed. 1999). Thus, a statement need not be in writing nor orally made. Rather, the use of nonverbal conduct intended to connote an assertion is sufficient to constitute a statement.\nIn the case sub judice, the trial court conducted an extensive voir dire and heard testimony concerning the events surrounding whether defendant voluntarily consented to the search. The record reveals that defendant\u2019s consent to the search of his person was acquired by Officer James. According to the record, when Officer James asked defendant if she could check his pocket, he \u201cstood up and raised his hands away from his body accompanied by a gesture which Officer James took to mean consent.\u201d Shortly thereafter, defendant allowed Officer James to search his pants\u2019 pocket. Viewing this evidence under the totality of the circumstances, we hold that the trial court properly determined that defendant voluntarily consented to a search of his person.\nSecondly, defendant argues that he did not consent to Officer James unfolding the twenty dollar bill she retrieved from his pants pocket. To determine whether the incriminating nature of the crack cocaine that was found in the twenty dollar bill was immediately apparent and therefore, probable cause existed to seize it, we must again consider the totality of the circumstances. See State v. Briggs, 140 N.C. App. 484, 493, 536 S.E.2d 858, 863 (2000). \u201cWhen the facts and circumstances within the officer\u2019s knowledge are sufficient to warrant a person of reasonable caution in the belief that the item may be contraband, probable cause exists.\u201d Id. (Emphasis omitted).\nIn the present case, the police officers were responding to a tip that reported drug activity at the apartment. It was routine for the officers to pat down people for weapons in cases involving drug activity. In the apartment, they found a hand gun and residue of cocaine. Both officers observed defendant acting unusual by continuously fidgeting with his pocket. Officer James, concerned that defendant might have a weapon, searched defendant\u2019s pants pocket. While conducting the search of defendant\u2019s pocket, the officer found a twenty dollar bill that was folded and had a lump in it. Based on the officer\u2019s training, experience and the circumstances, we affirm the trial court\u2019s determination that it was reasonable for the officer to believe that the twenty dollar bill contained a controlled substance. Accordingly, we uphold the trial court\u2019s conclusion that under the totality of the circumstances, the facts were sufficient to justify a search of defendant\u2019s pants pocket, seizure of the twenty dollar bill, and unraveling the bill.\nIn his final argument, defendant contends that it was error for the trial court to count his district court prayer for judgment continued in a prior case as a countable prior conviction for felony sentencing under Level 2. We disagree.\nN.C. Gen. Stat. \u00a7 15A-1340.H(7) (1999) provides that \u201c[a] person has a prior conviction when, on the date a criminal judgment is entered, the person being sentenced has been previously convicted of a crime.\u201d N.C. Gen. Stat. \u00a7 15A-1331(b) (1999) provides that \u201c[f]or the purpose of imposing sentence, a person has been convicted when he has been adjudged guilty or has entered a plea of guilty or no contest.\u201d\nIn State v. Hatcher, 136 N.C. App. 524, 524 S.E.2d 815 (2000), our Court held that the defendant was convicted of a prior offense when he entered a plea of no contest and for which prayer for judgment was continued, even though no final judgment had been entered, for purposes of assignment of a prior record level for sentencing. Since our Court has \u201cinterpreted N.C. Gen. Stat. \u00a7 15A-1331(b) to mean that formal entry of judgment is not required in order to have a conviction,\u201d we hold that the trial court did not err in its assessment of prior record points in determining the prior record level for sentencing defendant. Id., 136 N.C. App. at 527, 524 S.E.2d at 817.\nNo error.\nJudges HUDSON and THOMAS concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for the State. '", "Stowers & James, P.A., by Paul M. James, III, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL D. GRAHAM\nNo. COA01-338\n(Filed 5 March 2002)\n1. Searches and Seizures\u2014 consent \u2014 nonverbal gesture\nThe trial court properly concluded in a cocaine prosecution that defendant had voluntarily consented to a search of his person where an officer asked defendant if he could check his pocket, and defendant stood up and raised his hands away from his body accompanied by a gesture which the officer took to mean consent. The use of nonverbal conduct intended to connote an assertion is sufficient to constitute a statement wihin the meaning of consent under N.C.G.S. \u00a7 15A-221(b).\n2. Searches and Seizures\u2014 folded bill containing crack cocaine \u2014 totality of circumstances \u2014 search justified\nThe trial court correctly concluded in a cocaine prosecution that the facts were sufficient for officers to search defendant\u2019s pants pocket and unfold a twenty-dollar bill found therein where the officers responded to a tip reporting drug activity at an apartment; it was routine for officers to pat down people for weapons in cases involving drug activity; an officer found a hand gun and the residue of cocaine in the apartment; officers saw defendant fidgeting with his pocket; an officer searched defendant\u2019s pocket for a weapon and found a folded twenty-dollar bill with a lump in it; and there was crack cocaine inside the bill.\n3. Sentencing\u2014 record points \u2014 prayer for judgment continued\nThe trial court did not err when sentencing defendant for cocaine possession by assessing prior record points for a district court prayer for judgment continued. A formal entry of judgment is not required in order to have a conviction. N.C.G.S. \u00a7 15A-1331(b).\nAppeal by defendant from judgment entered 11 October 2000 by Judge William H. Freeman in Superior Court, Forsyth County. Heard in the Court of Appeals on 23 January 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Neil Dalton, for the State. '\nStowers & James, P.A., by Paul M. James, III, for the defendant-appellant." }, "file_name": "0215-01", "first_page_order": 249, "last_page_order": 255 }