State v. McClure ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-273
Filed: 20 October 2015
Cabarrus County, Nos. 12 CRS 54564; 14 CRS 600
STATE OF NORTH CAROLINA,
v.
MARICO ANTWAIN MCCLURE
Appeal by defendant from order entered 4 November 2014 by Judge W. Erwin
Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 9
September 2015.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde,
for the State.
Economos Law Firm, PLLC, by Larry C. Economos, for defendant-appellant.
CALABRIA, Judge.
Marico Antwain McClure (“defendant”) appeals from an order denying his
motion to suppress evidence arising from an investigatory stop because the officers
lacked a reasonable, articulable suspicion. We affirm.
I. Background
STATE V. MCCLURE
Opinion of the Court
On 26 August 2012, Officer Paul Kluttz (“Officer Kluttz”) of the Concord Police
Department (“CPD”) was on patrol when he responded to a call to investigate a
missing person at a convenience store known as Danny’s. At approximately 9:00
p.m., Officer Kluttz arrived at Danny’s, located near the intersection of North Church
Street and Buffalo Street in Concord, a high-crime area with frequent illegal drug
activity and prostitution. There he spotted the suspected missing person, a white
female, in Danny’s well-lit parking lot, leaning against the building and facing the
front of a parked SUV. Officer Kluttz parked his patrol car in a parking space two
places to the right of the SUV. The female never looked at him. Officer Kluttz then
observed the female speaking to the SUV driver and read her lips as she asked, “Do
you have crack?” He also observed the female reach into her brassiere. When the
female looked toward Officer Kluttz, she seemed shocked to see him. Then she looked
directly back toward the SUV, which immediately backed out of its parking space and
quickly left the parking lot.
At the same time, Officer Dustin Wilhoit (“Officer Wilhoit”) of the CPD drove
into Danny’s parking lot and observed the SUV leaving quickly. Officer Kluttz
radioed Officer Wilhoit that he suspected a potential drug transaction and ordered
Officer Wilhoit to stop the SUV to investigate. Officer Wilhoit observed the SUV
driving at a high rate of speed as it exited the parking lot, turning left onto Church
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STATE V. MCCLURE
Opinion of the Court
Street, and right onto Buffalo Street. Officer Wilhoit activated his blue lights and
stopped the SUV on Buffalo Street.
Meanwhile, Officer Kluttz approached the female at Danny’s. She admitted
asking the driver of the SUV if he had any marijuana and that she reached into her
brassiere because she kept her money there, but she denied asking defendant for
crack cocaine. Officer Kluttz then drove to where Officer Wilhoit stopped the SUV on
Buffalo Street.
Officer Wilhoit approached the driver’s side of the SUV and asked defendant
for his driver’s license. Defendant appeared angry with the officers. Defendant lifted
the lid to the center console of the vehicle and then quickly slammed it shut, stating
his driver’s license was at home. Officer Wilhoit grew suspicious of the contents in
the center console and asked defendant to step outside the SUV. After unsuccessfully
asking defendant at least five more times to produce his driver’s license, the officers
placed defendant under arrest for failure to furnish his driver’s license and placed
him into a patrol car.
Since the SUV was stopped on a busy street, Officer Wilhoit requested a tow
truck to remove it from the roadway. Officer Kluttz then performed a search of the
area immediately around the driver’s seat of the SUV. The center console contained
two handguns wrapped in a plastic bag and defendant’s driver’s license inside a
wallet.
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STATE V. MCCLURE
Opinion of the Court
Defendant was indicted for possession of a firearm by a felon, carrying a
concealed gun, and providing fictitious information to an officer. On 14 January 2013,
defendant filed a motion to suppress the evidence seized from his vehicle. After a
suppression hearing, the trial court entered a written order on 4 November 2014
denying defendant’s motion. That same day, defendant pled guilty to all three counts
listed on the indictment and reserved his right to appeal the trial court’s order
denying his motion to suppress. The trial court sentenced defendant to a minimum
of 9 months and a maximum of 20 months to be served in the North Carolina Division
of Adult Correction. Defendant appeals.
II. Standard of Review
Our review of a trial court’s denial of a motion to suppress is “strictly limited
to determining whether the trial judge’s underlying findings of fact are supported by
competent evidence, in which event they are conclusively binding on appeal, and
whether those factual findings in turn support the judge’s ultimate conclusions of
law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court's
conclusions of law . . . are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200,
208, 539 S.E.2d 625, 631 (2000).
III. Motion to Suppress
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STATE V. MCCLURE
Opinion of the Court
Defendant contends the trial court erred by denying his motion to suppress
evidence arising from the investigatory stop because the officers lacked a reasonable,
articulable suspicion. We disagree.
“Both the United States and North Carolina Constitutions protect against
unreasonable searches and seizures.” State v. Otto, 366 N.C. 134, 136, 726 S.E.2d
824, 827 (2012) (citations omitted). An investigatory traffic stop of an automobile is
considered a “‘seizure[.]’” Id. at 136-37, 726 S.E.2d at 827. “[R]easonable suspicion
is the necessary standard for traffic stops[.]” State v. Styles, 362 N.C. 412, 414, 665
S.E.2d 438, 440 (2008) (quotation marks and citation omitted). Therefore, the
investigatory stop of an automobile “must be justified by ‘a reasonable suspicion,
based on objective facts, that the individual is involved in criminal activity.’” State v.
Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (quoting Brown v. Texas, 443
U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979)).
In determining whether an officer has the requisite reasonable suspicion to
justify an investigatory stop, this Court “must consider ‘the totality of the
circumstances—the whole picture[.]’” Id. at 441, 446 S.E.2d at 70 (citation omitted).
An investigatory stop “must be based on specific and articulable facts, as well as the
rational inferences from those facts, as viewed through the eyes of a reasonable,
cautious officer, guided by his experience and training.” Id. “Reasonable suspicion
is a less demanding standard than probable cause and requires a showing
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STATE V. MCCLURE
Opinion of the Court
considerably less than preponderance of the evidence.” Styles, 362 N.C. at 414, 665
S.E.2d at 439 (quotation marks and citation omitted). “The only requirement is a
minimal level of objective justification, something more than an ‘unparticularized
suspicion or hunch.’” State v. Mello, 200 N.C. App. 437, 444, 684 S.E.2d 483, 488
(2009) (quoting United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)).
“[A]n individual’s presence in a suspected drug area coupled with evasive action may
provide an adequate basis for the reasonable suspicion necessary for an investigatory
stop.” State v. McKnight, __ N.C. App. __, __, 767 S.E.2d 689, 694, disc. review denied,
772 S.E.2d 727 (2015) (citations omitted).
In the instant case, according to the unchallenged findings of fact: (1)
defendant and the female were in a place well-known for illegal drug activity; (2) the
female asked defendant if he had any crack cocaine; (3) the female reached into her
brassiere and (4) looked shocked when she locked eyes with Officer Wilhoit and
realized he was observing her; and (5) immediately after the female turned and
looked back toward defendant, he quickly exited Danny’s parking lot. Officer Kluttz
testified that Danny’s parking lot was well-lit and that he was only twelve to fifteen
feet away from the female. With an unobstructed view of her, Officer Kluttz observed
her speak to defendant, ask him for drugs, and reach into her brassiere. Officer
Wilhoit testified that based on his training and experience, “females that use . . .
street drugs will carry money, drugs, drug paraphernalia stuffed inside their bra.”
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STATE V. MCCLURE
Opinion of the Court
These circumstances, in addition to Officer Kluttz’s observation that defendant’s
vehicle quickly exited Danny’s parking lot immediately after the female discovered
his presence, as well as Officer Wilhoit’s observation of defendant’s vehicle leaving
the parking lot quickly, sufficiently supported the requisite reasonable suspicion
required to conduct an investigatory stop of defendant’s vehicle for potential drug
activity.
By considering the totality of the circumstances, we conclude the officers had
the requisite reasonable suspicion to make a lawful, investigatory stop. Therefore,
we need not address defendant’s other issue on appeal as to whether competent
evidence existed to support the trial court’s finding that defendant’s vehicle exceeded
the speed limit after leaving Danny’s parking lot. This is because notwithstanding
the trial court’s finding that defendant was speeding, reasonable suspicion existed to
justify the investigatory stop. Accordingly, the trial court did not err in denying
defendant’s motion to suppress and any evidence resulting from the stop need not be
suppressed on this basis.
IV. Conclusion
The officers had numerous objective facts to support their reasonable suspicion
to stop defendant’s vehicle. Defendant was in a high-crime area with frequent illegal
drug activity, and Officer Kluttz observed what, based on his training and experience,
amounted to a potential drug transaction that warranted further investigation. He
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Opinion of the Court
observed the female ask defendant for drugs, reach into her brassiere, and appear
shocked once she realized a uniformed officer was observing her. These factors, in
conjunction with what Officer Kluttz reasonably could have inferred to be evasive
action taken by defendant quickly exiting Danny’s parking lot immediately after his
presence was detected, were sufficient to justify an investigatory stop of defendant’s
vehicle for potential illegal drug activity. Therefore, the trial court properly denied
defendant’s motion to suppress, and its order is affirmed.
AFFIRMED.
Judges STROUD and INMAN concur.
Report per Rule 30(e).
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