{ "id": 9080989, "name": "STATE OF NORTH CAROLINA v. CORNELIUS KEITH SMITH", "name_abbreviation": "State v. Smith", "decision_date": "2002-05-21", "docket_number": "No. COA01-836", "first_page": "317", "last_page": "326", "citations": [ { "type": "official", "cite": "150 N.C. App. 317" } ], "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": "142 L. Ed. 2d 212", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 0 }, { "cite": "525 U.S. 912", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11123459, 11123400, 11123241, 11123564, 11123533, 11123437, 11123217, 11123283, 11123508, 11123318, 11123382, 11123416, 11123350, 11123259, 11123484 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/us/525/0912-11", "/us/525/0912-08", "/us/525/0912-02", "/us/525/0912-15", "/us/525/0912-14", "/us/525/0912-10", "/us/525/0912-01", "/us/525/0912-04", "/us/525/0912-13", "/us/525/0912-05", "/us/525/0912-07", "/us/525/0912-09", "/us/525/0912-06", "/us/525/0912-03", "/us/525/0912-12" ] }, { "cite": "149 F.3d 1171", "category": "reporters:federal", "reporter": "F.3d", "opinion_index": 0 }, { "cite": "948 F. Supp. 562", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 47264 ], "year": 1996, "pin_cites": [ { "page": "565-66" } ], "opinion_index": 0, "case_paths": [ "/f-supp/948/0562-01" ] }, { "cite": "458 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "522" }, { "page": "522", "parenthetical": "citations omitted" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915438 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "398" }, { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0395-01" ] }, { "cite": "444 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537289 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0601-01" ] }, { "cite": "436 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "915-16" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523524 ], "year": 1993, "pin_cites": [ { "page": "693-95" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0688-01" ] }, { "cite": "508 U.S. 366", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12205 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "372-73", "parenthetical": "citations omitted" }, { "page": "343-44", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/us/508/0366-01" ] }, { "cite": "481 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "410" }, { "page": "411", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 537", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11869305 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "540" }, { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0537-01" ] }, { "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": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "83 L. Ed. 2d 804", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 1 }, { "cite": "469 U.S. 1127", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12087975, 12088015, 12087889, 12088091, 12087932 ], "year": 1985, "opinion_index": 1, "case_paths": [ "/us/469/1127-03", "/us/469/1127-04", "/us/469/1127-01", "/us/469/1127-05", "/us/469/1127-02" ] }, { "cite": "455 So.2d 1112", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7626897, 7626994 ], "year": 1984, "pin_cites": [ { "page": "1114", "parenthetical": "determining that a search beneath clothing is unauthorized unless a pat-down of outer clothing is first conducted that indicates the presence of a concealed weapon, because a pat-down might reveal that the suspicious bulge is soft and could not be a weapon" } ], "opinion_index": 1, "case_paths": [ "/so2d/455/1112-01", "/so2d/455/1112-02" ] }, { "cite": "789 So.2d 79", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11080992 ], "year": 2001, "pin_cites": [ { "page": "86", "parenthetical": "concluding that a deputy's action in removing a baseball cap from the defendant's head and shaking it out exceeded the scope of a permissible Terry pat-down search" } ], "opinion_index": 1, "case_paths": [ "/so2d/789/0079-01" ] }, { "cite": "345 Md. 460", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 400124 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "469" }, { "page": "753", "parenthetical": "warning that, \"[i]f a pat-down reveals no weapon-like objects ... the risk of harm to the officer is no longer of sufficient magnitude to outweigh the individual's competing interest in personal security, and the police officer may not further intrude upon the suspect\"" }, { "page": "470" }, { "page": "754", "parenthetical": "holding that the officer exceeded the scope of a permissible Terry search where, after an initial pat-down disclosed no weapons, the officer pulled the defendant's shirt up and discovered cocaine concealed in the waistband of the defendant's pants" } ], "opinion_index": 1, "case_paths": [ "/md/345/0460-01" ] }, { "cite": "460 U.S. 491", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195479 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "500" }, { "page": "238" } ], "opinion_index": 1, "case_paths": [ "/us/460/0491-01" ] }, { "cite": "559 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "831", "parenthetical": "quoting Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238 (1983)" } ], "opinion_index": 1 }, { "cite": "148 N.C. App. 702", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9368144 ], "year": 2002, "pin_cites": [ { "page": "706", "parenthetical": "quoting Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238 (1983)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/148/0702-01" ] }, { "cite": "142 L. Ed. 2d 212", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 1 }, { "cite": "525 U.S. 912", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11123459, 11123400, 11123241, 11123564, 11123533, 11123437, 11123217, 11123283, 11123508, 11123318, 11123382, 11123416, 11123350, 11123259, 11123484 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/us/525/0912-11", "/us/525/0912-08", "/us/525/0912-02", "/us/525/0912-15", "/us/525/0912-14", "/us/525/0912-10", "/us/525/0912-01", "/us/525/0912-04", "/us/525/0912-13", "/us/525/0912-05", "/us/525/0912-07", "/us/525/0912-09", "/us/525/0912-06", "/us/525/0912-03", "/us/525/0912-12" ] }, { "cite": "149 F.3d 1171", "category": "reporters:federal", "reporter": "F.3d", "opinion_index": 1 }, { "cite": "948 F. Supp. 562", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 47264 ], "year": 1996, "pin_cites": [ { "page": "566" } ], "opinion_index": 1, "case_paths": [ "/f-supp/948/0562-01" ] }, { "cite": "444 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "336 N.C. 601", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2537289 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/nc/336/0601-01" ] }, { "cite": "436 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "915-16" } ], "opinion_index": 1 }, { "cite": "112 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523524 ], "year": 1993, "pin_cites": [ { "page": "694-95" } ], "opinion_index": 1, "case_paths": [ "/nc-app/112/0688-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 6, "year": 1968, "pin_cites": [ { "page": "30" }, { "page": "911" }, { "page": "29" }, { "page": "910-11" }, { "page": "26, 29" }, { "page": "909-11" } ], "opinion_index": 1, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "545 F.2d 1191", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1014770 ], "year": 1976, "pin_cites": [ { "page": "1193" } ], "opinion_index": 1, "case_paths": [ "/f2d/545/1191-01" ] }, { "cite": "597 F.2d 187", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 385933 ], "year": 1979, "pin_cites": [ { "page": "191" } ], "opinion_index": 1, "case_paths": [ "/f2d/597/0187-01" ] }, { "cite": "139 L. Ed. 2d 643", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1998, "opinion_index": 1 }, { "cite": "522 U.S. 1051", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11587235, 11587364, 11587109, 11587334, 11587142, 11587048, 11587305, 11587212, 11587087, 11587125, 11587190, 11587063, 11587163, 11587035, 11587389 ], "year": 1998, "opinion_index": 1, "case_paths": [ "/us/522/1051-11", "/us/522/1051-14", "/us/522/1051-05", "/us/522/1051-13", "/us/522/1051-07", "/us/522/1051-02", "/us/522/1051-12", "/us/522/1051-10", "/us/522/1051-04", "/us/522/1051-06", "/us/522/1051-09", "/us/522/1051-03", "/us/522/1051-08", "/us/522/1051-01", "/us/522/1051-15" ] }, { "cite": "78 F.3d 135", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 94630 ], "year": 1996, "pin_cites": [ { "page": "138" } ], "opinion_index": 1, "case_paths": [ "/f3d/78/0135-01" ] }, { "cite": "98 Cal.Rptr. 316", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1971, "pin_cites": [ { "page": "318-19", "parenthetical": "concluding that an officer's conduct in reaching inside the defendant's coat and seizing a bag of marijuana was an impermissible intrusion where the officer failed to first conduct a Terry pat-down" } ], "opinion_index": 1 }, { "cite": "439 F. Supp. 515", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5735829 ], "year": 1977, "pin_cites": [ { "page": "519" } ], "opinion_index": 1, "case_paths": [ "/f-supp/439/0515-01" ] } ], "analysis": { "cardinality": 955, "char_count": 22969, "ocr_confidence": 0.741, "pagerank": { "raw": 2.135771028113528e-07, "percentile": 0.766463411573416 }, "sha256": "b0eaf3b8714cde5807ebf5163cdb07cb583ae444e1eb2cb2d2376fa79890b399", "simhash": "1:1ff3976306c3056d", "word_count": 3755 }, "last_updated": "2023-07-14T19:52:10.836930+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge GREENE concurs.", "Judge TIMMONS-GOODSON dissents in a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. CORNELIUS KEITH SMITH" ], "opinions": [ { "text": "HUNTER, Judge.\nCornelius Keith Smith (\u201cdefendant\u201d) appeals the trial court\u2019s denial of his motion to suppress. We affirm.\nThe following is a summary of the pertinent facts and procedural history. On 4 August 2000, Officer Loren Lewis, a sergeant with the Oak Island Police Department, participated in the stop of a motor vehicle pursuant to a road block to check drivers for intoxication. Officer Lewis immediately recognized both the driver of the vehicle, Bria Bishop, and defendant, who was sitting in the front passenger seat. Officer Lewis testified that he had been \u201cdealing with Ms. Bishop . . . since she was a juvenile\u201d and that she had not been cooperative in his prior experiences with her. He also testified that he recognized defendant:\nI had seen the Defendant previously in court, in District Court and Superior Court for \u2014 if I recall correctly, one incident was a shooting and also his face has been on photographs that have come across my desk as officer \u2014 kind of an officer safety bulletin or such.\nAccording to Officer Lewis, upon stopping the vehicle, defendant\nseemed to be uneasy. He \u2014 he had his hand in between the seat and the door. He was looking straight ahead and trying not to turn, you know, away or towards us. He had his other hand on his leg just kind of looking left to right[,] kind of nervous acting.\nBishop voluntarily consented to a search of the car, at which point, according to Officer Lewis, defendant\u2019s demeanor changed:\nHe just seemed to get more nervous whenever I talked to him. He darted toward \u2014 or turned his face toward her. You know, I said, \u201cWhat are you. doing?\u201d He just turned directly. She turned back and there was a couple of gazes back and forth but no words spoken, just kind of shaky.\nBecause defendant had his hand by his leg, and based on what Officer Lewis knew about defendant and his history, Officer Lewis became concerned that there might be a weapon in the car. He then asked Bishop and defendant to exit the car.\nA deputy sheriff took control of Bishop while Officer Lewis watched over defendant. According to Officer Lewis, defendant \u201chad his right hand pushed against his front right pocket as if he was concealing or covering something.\u201d Officer Lewis then took hold of defendant\u2019s right hand and pulled it away from defendant\u2019s body. Officer Lewis observed a bulge in defendant\u2019s right front pocket, which was slightly smaller than a tennis ball. However, defendant was wearing a long, \u201cheavy canvas type shirt\u201d which covered defendant\u2019s pants pocket, preventing Officer Lewis from directly viewing the outside of the pants pocket.\nOfficer Lewis asked Detective Vining, who was assisting him, to take defendant\u2019s left hand. Officer Lewis testified that his primary concern at this point was that defendant might have a weapon in his pocket. According to Officer Lewis, during this time defendant\nwas kind of moving his feet shifting, not really pulling away from us but kind of moving into a position that he could take flight, in my opinion. He would turn and kind of \u2014 just moving different directions trying to see which way \u2014 he was looking around to see who was behind him, looking to see who was holding on to him, more or less sizing up the situation.\nOfficer Lewis then lifted up defendant\u2019s shirt and, without entering defendant\u2019s pants pocket, was immediately able to observe a large plastic bag containing cocaine. Officer Lewis took possession of the cocaine and placed defendant in handcuffs. He then conducted a full pat-down of defendant because he was \u201cstill concerned that he may have a weapon on him based on what I knew about him.\u201d\nDefendant was indicted and charged with one count of possession with intent to sell and deliver five grams of cocaine, pursuant to N.C. Gen. Stat. \u00a7 90-95 (1999). Defendant moved to suppress the cocaine as evidence on the grounds that the search and seizure which produced the evidence constituted a violation of his constitu-' tional rights. A hearing was conducted on 3 January 2001 consisting only of the testimony of Officer Lewis. Following Officer Lewis\u2019 testimony, defendant argued that Officer Lewis\u2019 conduct extended beyond the permissible scope of a Terry frisk for weapons. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968). The State conceded that by lifting up defendant\u2019s shirt, Officer Lewis did commit a \u201cslight violation of the Terry frisk.\u201d However, the State contended that Officer Lewis\u2019 conduct was permissible given: that Officer Lewis was familiar with Bishop, who had been uncooperative in the past; that Officer Lewis was familiar with defendant\u2019s \u201cprevious violent behavior\u201d because Officer Lewis had \u201cseen flyers come across [his] desk warning officers about this Defendant\u201d; and that defendant appeared nervous.\nAt the close of the hearing, the trial court made the following pertinent findings of fact in open court:\nAnd that while the officer was talking with the driver, [defendant] kept making movements with his hands around a pants pocket.\nUpon being removed from the vehicle, the Defendant acted nervous, looked around, and continued to hold his hand in front of the pocket as if to conceal something.\nThat the officer was familiar with the Defendant, both as a prior defendant and as a person who could be dangerous to police officers.\nThe officer became concerned for his safety and conducted a search of the area of the pocket by simply raising the shirt to determine whether something was in the pocket or not. At which point, he found in plain view the cocaine.\nThe trial court concluded as a matter of law that the search did not violate defendant\u2019s constitutional rights, and therefore denied defendant\u2019s motion to suppress. Following the denial of his motion to suppress, defendant pled guilty and judgment was entered against him. Pursuant to N.C. Gen. Stat. \u00a7 15A-979(b) (1999), defendant preserved his right to appeal the judgment against him based upon the denial of the motion to suppress.\nOn appeal, defendant contends that the trial court erred in denying the motion to suppress. Our review of a motion to suppress is limited to a determination of whether the trial court\u2019s findings of fact are supported by competent evidence, and whether those findings in turn support the trial court\u2019s conclusions of law. State v. Willis, 125 N.C. App. 537, 540, 481 S.E.2d 407, 410 (1997).\nDefendant does not challenge the stop of the vehicle in which defendant was a passenger. Nor does defendant argue that Officer Lewis would have been prohibited from conducting a pat-down of defendant\u2019s outer clothing. Rather, defendant challenges the manner of the search of defendant which produced the cocaine that formed the basis for the charge against him.\n[S]earches and seizures \u201c \u2018conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment \u2014 subject only to a few specifically established and well delineated exceptions.\u2019 \u201d One such exception was recognized in Terry v. Ohio, which held that \u201cwhere a police officer observes unusual conduct which leads Mm reasonably to conclude in light of his experience that criminal activity may be afoot. . . [,]\u201d the officer may briefly stop the suspicious person and make \u201creasonable inquiries\u201d aimed at confirming or dispelling his suspicions.\nTerry further held that \u201c[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,\u201d the officer may conduct a patdown search \u201cto determine whether the person is in fact carrying a weapon.\u201d \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 Rather, a protective search \u2014 permitted without a warrant and on the basis of reasonable suspicion less than probable cause \u2014 must be strictly \u201climited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.\u201d If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.\nMinnesota v. Dickerson, 508 U.S. 366, 372-73, 124 L. Ed. 2d 334, 343-44 (1993) (citations omitted). Similarly, this Court has held:\nIn the context of most \u201cinvestigatory stops,\u201d police officers may perform only a limited frisk, or pat-down, of a suspect to discover any weapons which might be present. This limited frisk may take place, \u201c [i] f, after the detention, [the investigating officer\u2019s] personal observations confirm his apprehension that criminal activity may be afoot and [] that the person may be armed....\u201d In such a situation, the limited frisk is a function of \u201cself-protection.\u201d\nWillis, 125 N.C. App. at 542, 481 S.E.2d at 411 (citations omitted).\nA Terry frisk generally contemplates a limited pat-down of the outer clothing of an individual. See, e.g., State v. Beveridge, 112 N.C. App. 688, 693-95, 436 S.E.2d 912, 915-16 (1993), affirmed, 336 N.C. 601, 444 S.E.2d 223 (1994). Defendant contends, and the State appears to concede, that Officer Lewis\u2019 conduct in lifting defendant\u2019s shirt to expose the pocket of his pants without defendant\u2019s consent extended beyond the scope permissible pursuant to a Terry frisk. Thus, the question here is whether the circumstances were sufficient to warrant a search beyond that allowed pursuant to a Terry frisk.\nWhether a non-consensual search that goes beyond a pat-down of the outer clothing is improper requires a court to determine \u201cwhether the degree of intrusion [was] reasonably related to the events that took place.\u201d State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522 (1995).\n\u201cIn determining whether or not conduct is unreasonable, \u2018[t]here is no slide-rule formula,\u2019 and \u2018[e]ach case must turn on its own relevant facts and circumstances.\u2019 In determining reasonableness, courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.\u201d\nId. at 399, 458 S.E.2d at 522 (citations omitted).\nHere, the record indicates that Officer Lewis was presented with the following circumstances: (1) he recognized defendant from multiple court proceedings, one of which involved \u201ca shooting\u201d; (2) he also recognized defendant from photographs in police safety bulletins; (3) defendant consistently covered his pants pocket with his hand as if attempting to hide something; (4) defendant appeared \u201cuneasy\u201d and became more nervous when Officer Lewis asked for permission to search the car; (5) once defendant\u2019s hand was moved, Officer Lewis saw a bulge in defendant\u2019s pants that was slightly smaller than a tennis ball; (6) once Officer Lewis moved defendant\u2019s hand and saw the bulge, defendant appeared anxious and moved his feet and shifted as if he were \u201csizing up the situation\u201d; and (7) Officer Lewis was concerned that defendant might have a weapon in his pocket. It was at this point that Officer Lewis lifted defendant\u2019s long, \u201cheavy canvas type shirt\u201d to expose the outside of defendant\u2019s pants pocket. Officer Lewis did not have to reach inside of defendant\u2019s pocket in order to discover the cocaine. Moreover, Officer Lewis still conducted a pat-down search of defendant, even after lifting his shirt and removing the cocaine, which fact indicates that Officer Lewis was not imper-missibly seeking to discover evidence in lifting defendant\u2019s shirt, but rather was seeking to determine whether defendant was in possession of a weapon. The trial court entered findings consistent with these facts, which findings were supported by the evidence presented at the hearing. Based upon these findings, the trial court concluded that defendant\u2019s constitutional rights had not been violated and denied the motion to suppress.\nWe hold that the trial court did not err in concluding that Officer Lewis\u2019 action in lifting defendant\u2019s shirt, under the specific circumstances here, was \u201creasonably related to the events that took place.\u201d Watson, 119 N.C. App. at 398, 458 S.E.2d at 522; see U.S. v. Edmonds, 948 F. Supp. 562, 565-66 (E.D. Va. 1996) (where defendant, seen standing next to a parked car with lights and engine off in tow-away zone in high-crime area at 10:30 p.m., acted nervous in response to police officer\u2019s request that he lift his shirt, officer did not exceed permissible scope of weapons search under Terry in drawing his weapon and lifting defendant\u2019s shirt), affirmed, 149 F.3d 1171 (4th Cir.), cert. denied, 525 U.S. 912, 142 L. Ed. 2d 212 (1998). Thus, we affirm the trial court\u2019s order denying the motion to suppress.\nAffirmed.\nJudge GREENE concurs.\nJudge TIMMONS-GOODSON dissents in a separate opinion.", "type": "majority", "author": "HUNTER, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\ndissenting.\nBecause I conclude that Officer Lewis\u2019 actions in exceeding the permissible scope of a Terry search are not justified under the circumstances presented by the instant case, I respectfully dissent from the majority opinion. I would hold that, because Officer Lewis\u2019 act of lifting defendant\u2019s shirt without first performing a pat-down to ascertain the presence of a weapon constituted an unreasonable search, the trial court erred in denying his motion to suppress.\nThe majority opinion agrees with both parties that Officer Lewis\u2019 conduct extended beyond the scope of a permissible search pursuant to Terry. Terry authorized only a \u201ccarefully limited search of the outer clothing\u201d for weapons. Terry, 392 U.S. at 30, 20 L. Ed. 2d at 911. Nothing in Terry or its progeny permits a law enforcement officer conducting a Terry frisk to routinely remove or lift an outer layer of clothing, or a clothing accessory, in order to search beneath such clothing or accessory. This is because the purpose of permitting a limited pat-down search is not to discover evidence, but rather to allow a law enforcement officer to determine whether a defendant is in possession of a weapon. See id. at 29, 20 L. Ed. 2d at 910-11. A search for weapons must be narrow in scope and limited to that which is necessary for the discovery of weapons that are readily accessible. See id. at 26, 29, 20 L. Ed. 2d at 909-11. It is well established that \u201c \u2018investigative methods employed [during an investigative search] should be the least intrusive means reasonably available to verify or dispel the officer\u2019s suspicion in a short period of time.\u2019 \u201d State v. Allison, 148 N.C. App. 702, 706, 559 S.E.2d 828, 831 (2002) (quoting Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229, 238 (1983)) (alteration in original).\nAlthough the majority opinion sets forth the circumstances surrounding Officer Lewis\u2019 search of defendant in great detail, it offers no explanation as to why Officer Lewis could not have first conducted a Terry frisk of defendant to determine whether the bulge in defendant\u2019s pocket was a weapon or other dangerous object. As such, the majority opinion presents no valid justification for Officer Lewis\u2019 actions in lifting defendant\u2019s shirt without first performing a limited pat-down search of defendant\u2019s outer clothing. Had Officer Lewis conducted such a pat-down, he would have likely concluded, from feeling the soft bulge in defendant\u2019s pocket, that defendant was not concealing a weapon. At that point, one of two avenues was open to Officer Lewis. First, had Officer Lewis been able to conclude with certainty, from his experience, that the bulge he felt in defendant\u2019s pocket was illegal contraband, he would have been entitled to seize it. See, e.g., State v. Beveridge, 112 N.C. App. 688, 694-95, 436 S.E.2d 912, 915-16 (1993), affirmed, 336 N.C. 601, 444 S.E.2d 223 (1994). Alternatively, had Officer Lewis been unable to conclude that the bulge was contraband, he would not have been entitled to engage in any further intrusion upon defendant, and he would not have been justified in lifting defendant\u2019s shirt in order to view the outside of defendant\u2019s pants pocket as he did here. See State v. Smith, 345 Md. 460, 469, 693 A. 2d 749, 753 (1997) (warning that, \u201c[i]f a pat-down reveals no weapon-like objects ... the risk of harm to the officer is no longer of sufficient magnitude to outweigh the individual\u2019s competing interest in personal security, and the police officer may not further intrude upon the suspect\u201d).\nCourts in other jurisdictions addressing the issue of searches conducted without the benefit of an initial pat-down have generally concluded that such searches violate the Fourth Amendment. See, e.g., State v. Isidore, 789 So.2d 79, 86 (La.App. 4 Cir. 2001) (concluding that a deputy\u2019s action in removing a baseball cap from the defendant\u2019s head and shaking it out exceeded the scope of a permissible Terry pat-down search); Jamison v. State, 455 So.2d 1112, 1114 (Fla.App. 4 Dist. 1984) (determining that a search beneath clothing is unauthorized unless a pat-down of outer clothing is first conducted that indicates the presence of a concealed weapon, because a pat-down might reveal that the suspicious bulge is soft and could not be a weapon), cert. denied, 469 U.S. 1127, 83 L. Ed. 2d 804 (1985); United States v. Hairston, 439 F. Supp. 515, 519 (N.D. Ill. 1977) (holding that, where the officer stopped the defendant for a traffic violation, recognized him as being recently released from prison, and noticed a bulge in the defendant\u2019s trousers, the officer\u2019s act of reaching into the defendant\u2019s pants and pulling out a pistol without first conducting a pat-down was an unreasonable search and beyond that minimally necessary to insure safety); Smith, 345 Md. at 470, 693 A.2d at 754 (holding that the officer exceeded the scope of a permissible Terry search where, after an initial pat-down disclosed no weapons, the officer pulled the defendant\u2019s shirt up and discovered cocaine concealed in the waistband of the defendant\u2019s pants); People v. Aviles, 21 C.A.3d 230, 234, 98 Cal.Rptr. 316, 318-19 (1971) (concluding that an officer\u2019s conduct in reaching inside the defendant\u2019s coat and seizing a bag of marijuana was an impermissible intrusion where the officer failed to first conduct a Terry pat-down).\nIn contrast, cases in which courts have permitted intrusion by a law enforcement officer without requiring an initial pat-down tend to involve additional exigent circumstances creating an increased risk to the officer. See, e.g., U.S. v. Baker, 78 F.3d 135, 138 (4th Cir. 1996) (holding that the officer\u2019s act of directing the defendant to raise his shirt, which revealed a handgun, was reasonable under the circumstances where the defendant first gave chase to the officer, then lied to the officer, and where the officer observed a triangular-shaped bulge beneath the defendant\u2019s shirt), cert. denied, 522 U.S. 1051, 139 L. Ed. 2d 643 (1998); United States v. Thompson, 597 F.2d 187, 191 (9th Cir. 1979) (concluding that an officer\u2019s act of reaching into the defendant\u2019s coat pocket for a weapon was a permissible limited intrusion based upon the defendant\u2019s repeated efforts to reach into his pocket despite the officers\u2019 warnings not to, coupled with the officer\u2019s inability to determine from the pat-down whether the pocket of a bulky coat contained a weapon); United States v. Hill, 545 F.2d 1191, 1193 (9th Cir. 1976) (holding that the lifting of the defendant\u2019s shirt was not overly intrusive under Terry where the defendant was stopped shortly after and within five hundred feet of an armed bank robbery and where the bulge in the defendant\u2019s clothing was consistent with the shape and size of a weapon); U.S. v. Edmonds, 948 F. Supp. 562, 566 (E.D.Va. 1996) (holding that, where the officer found the defendant sitting in a parked car with the lights and engine off in a tow-away zone located in a high-crime area at 10:30 p.m., and where the defendant acted nervously in response to the officer\u2019s request that he lift his shirt, the officer did not exceed the permissible scope of a weapons search under Terry in drawing his weapon and lifting defendant\u2019s shirt), affirmed, 149 F.3d 1171 (4th Cir. 1998), cert. denied, 525 U.S. 912, 142 L. Ed. 2d 212 (1998).\nIn the instant case, defendant was stopped in connection with a road block check for intoxicated drivers. At no point did defendant indicate that he might reach for a weapon on his person or pose any threat of harm to Officer Lewis. Moreover, according to Officer Lewis, the bulge in defendant\u2019s pants was \u201cslightly smaller than a tennis ball\u201d and was therefore inconsistent with the presence of a weapon such as a gun or a knife. Such circumstances do not warrant an overly intrusive search beneath defendant\u2019s outer clothing, especially where a pat-down of defendant\u2019s outer clothing might have quickly and easily dispelled Officer Lewis\u2019 suspicions that defendant was in possession of a weapon.\nFor the reasons stated herein, I would hold that Officer Lewis\u2019 actions violated defendant\u2019s Fourth Amendment right to be free from unreasonable searches, and I would therefore vacate the judgment against defendant, reverse the trial court\u2019s order denying the motion to suppress, and remand to the trial court with instructions to grant the motion to suppress and for further proceedings.", "type": "dissent", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General Marvin R. Waters, for the State.", "A. Michelle FormyDuval for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CORNELIUS KEITH SMITH\nNo. COA01-836\n(Filed 21 May 2002)\nEvidence\u2014 motion to suppress \u2014 cocaine\nThe trial court did not err in an intent to sell and deliver cocaine case under N.C.G.S. \u00a7 90-95 by denying defendant\u2019s motion to suppress evidence of cocaine seized in a non-consensual search that went beyond a pat-down of defendant\u2019s clothing after the stop of a vehicle in which defendant was a passenger, because the officer\u2019s action in lifting defendant\u2019s shirt under the specific circumstances of this case was reasonably related to the events that took place when: (1) the officer recognized defendant from multiple court proceedings, including a shooting; (2) the officer recognized defendant from photographs in police safety bulletins; (3) defendant consistently covered his pants pocket with his hand as if attempting to hide something; (4) defendant appeared uneasy and became more nervous when the officer asked for permission to search the car; (5) once defendant\u2019s hand was moved, the officer saw a bulge in defendant\u2019s pants that was slightly smaller than a tennis ball; (6) once the officer moved defendant\u2019s hand and saw the bulge, defendant appeared anxious and moved his feet and shifted as if he were sizing up the situation; and (7) the officer was concerned that defendant might have a weapon in his pocket.\nJudge Timmons-Goodson dissenting.\nAppeal by defendant from judgment entered 6 March 2001 by Judge D. Jack Hooks, Jr. in Brunswick County Superior Court. Heard in the Court of Appeals 23 April 2002.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General Marvin R. Waters, for the State.\nA. Michelle FormyDuval for defendant-appellant." }, "file_name": "0317-01", "first_page_order": 347, "last_page_order": 356 }