holding that an officer lacked reasonable suspicion to frisk a defendant who was sit *450 ting in an area known to be a center of drug activity without taking evasive action or otherwise engaging in suspicious conduct
How later courts described this case
- holding that an officer lacked reasonable suspicion to frisk a defendant who was sit *450 ting in an area known to be a center of drug activity without taking evasive action or otherwise engaging in suspicious conduct
- holding that an officer lacked reasonable suspicion to frisk a defendant who was sit ting in an area known to be a center of drug activity without taking evasive action or otherwise engaging in suspicious conduct
- noting that the defendant did not flee when approached by the officer and, “[o]ther than being nervous, [the defendant] exhibited no other behavior that would indicate that he was engaged in criminal activity”
Written by the judges who cited it.
The opinion
Judge Martin, Mark D., Judge,
dissenting.
As recently articulated by Judge McGee in In re Whitley, 122 N.C. App. 290 , 468 S.E.2d 610 , disc. review denied, 344 N.C. 437 , 476 S.E.2d 132 (1996), it is well settled “ ‘[a] 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 and cautious police officer on the scene, guided by his experience and training.’ ” Id. at 292, 468 S.E.2d at 612 (quoting State v. Allen, 90 N.C. App. 15, 25 , 367 S.E.2d 684, 689 (1988)). Put simply, an officer must have reasonable suspicion, based on specific and articulable facts, that an individual is involved in criminal activity before performing a pat down search or Terry stop. State v. Fleming, 106 N.C. App. 165, 169-170 , 415 S.E.2d 782, 785 (1992).
In Whitley , the officers received a telephone call stating drug sales were occurring “between two black males on Merrick Street.” *92 Whitley, 122 N.C. App. at 291 , 468 S.E.2d at 611 . The officers found two black males standing in the alleged location of the drug sales. Id. at 292 , 468 S.E.2d at 612 . This Court upheld the subsequent Terry stop because “the telephone call, later corroborated once the officers arrived at the scene, coupled with the nervous body reflexes of respondent are articulable facts which gave rise to a reasonable suspicion that respondent might be armed, dangerous and involved in criminal activity and justified the officer’s search of respondent.” Id.
Likewise, in the present case, Officer Scheppegrell was dispatched to 3101 Nobles Avenue based on an anonymous telephone tip that several black men were selling drugs in the breezeway. At the scene, Officer Scheppegrell, and his fellow officers, noticed three black males, including the defendant, in the breezeway. Officer Scheppegrell approached defendant, who was sitting alone in the stairwell between the first and second floors, while the other officers went upstairs to question the remaining two men.
At Officer Scheppegrell’s request, defendant produced identification indicating he was a resident of the building. Nevertheless, defendant appeared nervous. Officer Scheppegrell testified the other officers informed him the two men in the upper part of the breezeway had a large amount of money, but no drugs. In his experience with drug dealers, Officer Scheppegrell has found one person often holds the money while another person carries the drugs.
Before returning to his car to check for outstanding warrants, Officer Scheppegrell asked defendant if he was carrying any weapons. Defendant responded in the negative and pulled up his shirt to show Officer Scheppegrell his waistband. Officer Scheppegrell proceeded to pat down defendant because, in his experience, drug dealers often carry weapons, some of which are very small and easy to conceal. During this search, Officer Scheppegrell discovered what he readily identified as cocaine.
When considered through “the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training,” Whitley, 122 N.C. App. at 292 , 468 S.E.2d at 612 (quoting Allen, 90 N.C. App. at 25 , 367 S.E.2d at 689 ), the telephone call corroborated by observations at the scene, defendant’s nervousness, and the discovery of a large amount of money on the two other men in the breezeway are articulable facts which establish a reasonable suspicion defendant “might be armed, dangerous and involved in criminal activ *93 ity and justified the officer’s search of [defendant].” See Whitley, 122 N.C. App. at 292 , 468 S.E.2d at 612 . Further, when, as here, an officer is engaged in a lawful search for weapons and he discovers an item which he can immediately identify as contraband, it is lawful for the officer to seize such item. State v. Wilson, 112 N.C. App. 777, 780 , 437 S.E.2d 387, 388 (1993).
Because there is no legal, much less constitutional, distinction between Whitley and the present case, this Court is required to affirm the trial court’s denial of defendant’s motion to suppress. See In re Civil Penalty, 324 N.C. 373, 384 , 379 S.E.2d 30, 36-37 (1989).
Accordingly, I respectfully dissent.