State v. Harris , 95 N.C. App. 691 ( 1989 )

384 S.E.2d 50 (1989)

STATE of North Carolina
v.
Sterling Payton HARRIS alias Davy Ray Bolder.

No. 8818SC1295.

Court of Appeals of North Carolina.

October 3, 1989.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. George W. Boylan, Raleigh, for the State.

Asst. Public Defender Frederick G. Lind, Greensboro, for defendant-appellant.

ORR, Judge.

Although defendant entered a guilty plea to both charges for possession of a firearm by a felon and habitual felon, he preserved his appeal under G.S. 15A-979(b) from the denial of his motion to suppress the evidence of the seizure of the gun from his person and his statement to police officers that he had a gun. Defendant contends that the trial court erred in denying his motion to suppress because the gun and his statement were obtained through an unlawful search and seizure, thereby violating his rights under the Fourth and Fourteenth Amendments to the United States Constitution and under the North Carolina Constitution. We find no error.

In support of his argument, defendant cites Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), reh'g denied, 444 U.S. 1049, 100 S. Ct. 741, 62 L. Ed. 2d 737 (1980). In Ybarra, police officers searched Ybarra, a patron in a public tavern, pursuant to a search warrant issued to search the premises and the bartender named "Greg." The officers found drugs in Ybarra's pocket. The Supreme Court overturned Ybarra's conviction on the basis of absence of probable cause to search any patron, and stated that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person." Id. 444 U.S. at 91, 100 S. Ct. at 342, 62 L.Ed.2d at 245. The Court explained that the Ybarra search was unlawful because "[it] was not supported by a reasonable belief that he was armed and presently dangerous." Id. at 92-93, 100 S. Ct. at 343, 62 L.Ed.2d at 246. In Ybarra, there was no suspicion that defendant Ybarra was anything more than a patron in a public place.

In the case sub judice, it is clear that the Greensboro police officers had "reasonable belief" that persons in room 145 may have been armed and dangerous. Detectives Evers and Pearman testified that based upon their professional experiences, weapons are found on persons or on the premises in at least 85 percent of the searches they conduct when drugs are involved. Moreover, they testified that they knew the subject of their search warrant was in room 145, the subject was wanted on drug related charges, and that there had been several persons entering and leaving room 145 on the night of 7 April 1988, which indicated to them that a drug transaction may have transpired.

We now turn to whether the search and seizure of defendant in the case before us was in fact lawful under the Fourth Amendment.

The Fourth Amendment allows reasonable searches and seizures based upon probable cause. In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the Supreme Court made clear delineations between a "seizure" (arrest) and a "stop" and between a "frisk" and a "search." In Terry, the Court created a narrow exception to the probable cause requirement which allows a law enforcement officer, for his own protection and safety, to conduct a pat-down (or "frisk") to find weapons he reasonably believes or suspects are then in the possession of the person he "stopped." Id. The officer conducting the search must be able to articulate specific facts, which combined with rational inferences therefrom, reasonably warrant the intrusion. Id. at 27, 88 S. Ct. at 1883, 20 L.Ed.2d at 909.

The Terry exception was allowed based upon police necessity to act quickly to insure that the person stopped is not armed with a weapon that would be used against the police or others in close proximity. The scope of this exception confines itself to an intrusion reasonably designed to discover weapons or other items that could be used as weapons. Id. at 30, 88 S. Ct. at 1884, 20 L.Ed.2d at 911. The Court justified this by stating, "it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Id. at 24, 88 S. Ct. at 1881, 20 L.Ed.2d at 908.

Since Terry, there have been a number of cases testing the limits of Terry. See Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979) and Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981). Many courts, in evaluating the reasonableness of a search and seizure or stop and frisk, have emphasized their need to consider "whether the police are acting in a swiftly developing situation and not indulge in unrealistic second-guessing." United States v. Sharpe, 470 U.S. 675, 686, 105 S. Ct. 1568, 1575, 84 L. Ed. 2d 605, 616 (1985).

In this State, the courts have followed these principles to the letter, and have found that it is well within the law to conduct a frisk of a defendant for weapons when it is strictly limited to determination of whether that defendant was armed. See State v. Peck, 305 N.C. 734, 291 S.E.2d 637 (1982) and State v. Long, 37 N.C.App. 662, 246 S.E.2d 846, disc. rev. denied and appeal dismissed, 295 N.C. 736, 248 S.E.2d 866 (1978). Applying these rules of law to the case before us, we find that the Greensboro police officers acted in compliance with the standards articulated above.

First, the evidence tended to show that the officers and detectives involved had reasonable suspicion that the occupants of room 145 were armed or within reach of weapons. The officers knew the subject of the search warrant, Bernard Hobson, and knew he was wanted on drug related charges. The police officers also knew that there had been significant traffic in and out of room 145, and they suspected the traffic was related to drug dealing of some kind.

Second, the evidence established that at least two of the detectives involved believed that weapons would be found on or near persons in this type of suspected drug situation, based upon their previous experiences that weapons were found in at least 85 percent of similar situations. These are exactly the kinds of "reasonably articulated facts combined with rational inferences therefrom" that Terry allows.

Third, the Greensboro police officers acted in a "swiftly developing situation." The door to room 145 opened, and it was mandatory for the officers' safety and others that the room, persons inside the room, and persons in immediate proximity to the room be secured to find Bernard Hobson. Although it may have been clear to at least one police officer that defendant was not Mr. Hobson, it was not necessarily clear to Officer Tolley and Detective Pearman. Moreover, even if it had been clear to them that defendant was not Mr. Hobson, under Terry and other cases cited, they were within the limits of the law to stop and frisk defendant. They had no way of knowing whether defendant would leave the premises or perhaps turn around and start shooting.

Defendant next argues that his statement to Officer Tolley and Detective Pearman was involuntary and therefore should be suppressed under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We disagree.

In New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984), the Supreme Court made a public safety exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence. In Quarles, a police officer apprehended and frisked a rape suspect. Upon discovering that the suspect wore an empty shoulder holster, the officer handcuffed the suspect and asked him where the gun was. The suspect responded, "[t]he gun is over there." Id. 467 U.S. at 652, 104 S. Ct. at 2629, 81 L.Ed.2d at 554.

The Supreme Court stated that Miranda warnings are not required in a situation where "police officers ask questions reasonably prompted by a concern for the public safety." Id. at 656, 104 S. Ct. at 2631, 81 L.Ed.2d at 557.

In the case sub judice, we find that Detective Pearman's question to defendant falls squarely within the Quarles exception. Detective Pearman was frisking defendant when he asked the question. It was clearly a question "prompted by a concern for the public safety" and not a question protected by Miranda, one "designed solely to elicit testimonial evidence from a suspect." Id. 467 U.S. at 658-59, 104 S. Ct. at 2633, 81 L.Ed.2d at 559.

For the reasons set forth above, we affirm.

Affirmed.

HEDRICK, C.J., and LEWIS, J., concur.