An unpublished opinion of the North Carolina Court of Appeals does not constitute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.



                               NO. COA13-1285
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 3 June 2014


STATE OF NORTH CAROLINA

      v.                                      Brunswick County
                                              No. 12 CRS 50537-39
TRISTAN McNEIL



      Appeal by Defendant from judgment and commitment entered 7

May 2013 by Judge Mary Ann Tally in Brunswick County Superior

Court.     Heard in the Court of Appeals 5 March 2014.


      Attorney General Roy Cooper, by Associate Attorney General
      Gayle L. Kemp, for the State.

      Kimberly P. Hoppin for Defendant.


      DILLON, Judge.


      Defendant Tristan McNeil appeals from a judgment entered

upon his plea of no contest to one charge of trafficking in

cocaine, contending that the trial court erred in denying his

motion to suppress evidence obtained                during a search of his

person.    We affirm.

                    I. Factual & Procedural Background

      Defendant was arrested on 4 February 2012, when Officer
                                           -2-
Ricky Smith of the Brunswick County Sheriff’s Department found

cocaine mixed with marijuana during a search of Defendant.                            On

21 May 2012, Defendant was indicted on a number of drug-related

charges, including trafficking in cocaine by possession.                            On 3

May 2013, Defendant filed a motion to suppress the illegal drugs

discovered by Officer Smith during his search.                     On 6 May 2013, a

hearing      on    Defendant’s     motion    was       conducted   before   Superior

Court Judge Mary Ann Tally.                  Judge Tally       denied Defendant’s

motion to suppress on 7 May 2013.

       Judge Tally’s findings of fact, as recited in open court1,

tended      to    show    the   following.        On    4   February   2012,       police

officers in Brunswick County established a checkpoint at the

intersection of Old Shallotte Road and Union School Road for the

purpose of checking for Chapter 20 motor vehicle violations, as

well   as    other       violations   of   law.        At   approximately      5   p.m.,

Officer Ricky Smith noticed Defendant’s vehicle approaching the

1
   Judge Tally did not enter a written order, but instead
announced the rationale for her decision to deny Defendant’s
motion from the bench. We have held that on consideration of a
motion to suppress, the trial court’s “findings and conclusions
must be in the form of a written order unless (1) the trial
court provides its rationale from the bench, and (2) there are
no material conflicts in the evidence at the suppression
hearing.”   State v. Dahlquist, __ N.C. App. __, __, 752 S.E.2d
665, 666 (2013) (citation and quotation marks omitted). In the
present case, however, Defendant does not challenge the
propriety of the trial court’s decision to articulate its
rationale in open court.
                                            -3-
checkpoint from approximately 300 yards away.                          Officer Smith

observed Defendant’s vehicle abruptly make a left turn into a

dirt driveway that led to a trailer.                    Officer Smith knew the

occupants of the trailer and was distantly related to them.

       Officer      Smith     left    the    checkpoint       to    investigate      why

Defendant’s vehicle had turned into the driveway.                      Officer Smith

proceeded to the driveway; he saw Defendant’s vehicle parked

near    the    trailer      and    Defendant      walking    towards   the   trailer.

Officer Smith did not recognize Defendant, who was a large man

wearing a long, untucked shirt over his jeans.                         Officer Smith

noticed that Defendant’s vehicle displayed a South Carolina tag.

       Officer Smith called out to Defendant, asking him where he

was coming from.          Defendant responded that he was there to visit

his    mother.       Officer       Smith,   as    previously       stated,   knew    the

trailer occupants and thus knew that Defendant’s mother did not

live in the trailer.              Ms. Holden, who lived in the trailer, came

outside       and   informed      Officer    Smith    that    she   had   never     seen

Defendant       before.       At    some    point    during   the    encounter,      Ms.

Holden told Officer Smith that there had been break-ins in the

area.

       Officer Smith conducted a pat-down of Defendant for safety,

checking for weapons.              Officer Smith asked Defendant whether he
                                                -4-
had    anything      on    him    that     he      should     know       about.     Defendant

answered, “No,” then volunteered to empty his pockets.                                Officer

Smith instructed Defendant to place the contents of his pockets

on the hood of Officer Smith’s police car.                                Defendant reached

into    one    of    his    pockets       and      pulled     out    a    large     amount   of

currency,       which      he    placed       on   the     hood     of    the     police    car.

Defendant then          reached again into                 one of his pockets,             while

turning       away   from       Officer       Smith.         Officer      Smith    instructed

Defendant not to turn away; however, Defendant continued to turn

away,     prompting         Officer       Smith       to     grab     Defendant’s         shirt.

Subsequently, Officer Smith noticed                         Defendant getting nervous

and walking towards his own vehicle, leaving the currency on the

police car hood.                He instructed Defendant to come back, but

Defendant did not do so.                  Eventually, Defendant complied with

Officer    Smith’s         commands      to     put    his    hands       behind    his    back.

Officer Smith noticed a large bulge still present in one of

Defendant’s pockets.             He was unable to determine the contents of

the pocket when he felt it from the outside.                               He reached into

the pocket and pulled out cellophane material, which contained

cocaine mixed with marijuana and another large sum of money.

       Based on these findings, the trial court concluded, inter

alia, that Officer Smith had possessed reasonable suspicion to
                                         -5-
investigate Defendant’s abrupt left-hand turn into the driveway

in   view     of    the   police     checkpoint;    that     Officer         Smith     had

possessed       reasonable    suspicion     to    continue    his       investigation

when Defendant lied about visiting his mother at the trailer;

and that Officer Smith had acted reasonably when he reached into

Defendant’s pocket to determine the nature of the bulge that he

had observed in that area.

       Following      the    trial    court’s     denial     of    his       motion    to

suppress, Defendant entered a plea of no contest to the count of

trafficking in cocaine by possession, preserving his right to

appeal    the      court’s   denial    of   his   motion     to    suppress.           The

remaining       charges      were     dismissed     as     part     of       the      plea

arrangement.         The trial court sentenced Defendant to a prison

term     of    thirty-five      to    forty-two     months        and    a    fine      of

$50,000.00.        Defendant appeals.

                                II. Jurisdiction

       Defendant has filed a petition for writ of certiorari with

this Court, conceding a jurisdictional defect in his notice of

appeal.       Specifically, Defendant gave notice of appeal from the

trial court’s denial of his motion to suppress, but failed to

give notice of appeal with respect to the judgment entered upon

his guilty plea.             We exercise our discretion, however,                     and,
                                        -6-
pursuant    N.C.R.        App.   P.   21(a)(1),       address    the     merits    of

Defendant’s appeal.         State v. McKoy, 171 N.C. App. 636, 638, 615

S.E.2d 319, 320 (2005).

                                  III. Analysis

      Defendant contends that the trial court erred in denying

his motion to suppress the evidence found on his person without

a search warrant.           More specifically, Defendant contends that

the   search    was   in    violation    of    his   rights     under    the    Fourth

Amendment      of   the    United     States    Constitution,       in    that    the

investigatory stop and ensuing search of his person was invalid

under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968).

      “[T]he scope of appellate review of an order [regarding a

motion to suppress] is strictly limited to determining whether

the trial [court]’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 [court]’s ultimate conclusions of law.”                   Dahlquist, __ N.C.

App. at __, 752 S.E.2d at 666 (citation and quotation marks

omitted) (alteration in original).              After careful review of the

trial court’s findings and conclusions, we affirm.

                           B. The Investigatory Stop

      Defendant       first      challenges          the   validity        of     the
                                          -7-
investigatory stop conducted by Officer Smith.                       Specifically,

Defendant argues that the trial court failed to make findings

sufficient to support the conclusion that Officer Smith had the

reasonable suspicion necessary to conduct an investigatory stop

of Defendant under the circumstances.                 We disagree.

    Our      Supreme    Court       has    held       that    avoiding    a   police

checkpoint    on   a   public       roadway     may   give    rise   to   reasonable

suspicion    and   justify      a    subsequent       Terry   search.      State   v.

Griffin, 366 N.C. 473, 749 S.E.2d 444 (2013);                   State v. Foreman,

351 N.C. 627, 527 S.E.2d 921 (2000).                    In Griffin, as in this

case, the defendant “approached a checkpoint marked with blue

flashing lights.”       Griffin, 366 N.C. at 477, 749 S.E.2d at 447.

Citing Foreman and United States v. Smith, 396 F.3d 579 (4th

Cir. 2005), our Supreme Court confirmed that “this Court and the

Fourth Circuit have held that even a legal turn, when viewed in

the totality of the circumstances, may give rise to reasonable

suspicion.”    Griffin, 366 N.C. at 477, 749 S.E.2d at 447.

    In Foreman, our Supreme Court observed that while “a legal

turn, by itself, is not sufficient to establish a reasonable,

articulable suspicion, a legal turn in conjunction with other

circumstances, such as the time, place and manner in which it is

made, may constitute a reasonable, articulable suspicion which
                                    -8-
could justify an investigatory stop.”             351 N.C. at 631, 527

S.E.2d at 923 (emphasis in original).        As in Griffin, the police

officer in Foreman “observed a ‘quick left turn’ away from the

checkpoint at the precise point where the driver of the vehicle

would have first become aware of its presence.”             351 N.C. at

630, 527 S.E.2d at 923.      Our Supreme Court held

      that it is reasonable and permissible for an officer
      to monitor a checkpoint’s entrance for vehicles whose
      drivers may be attempting to avoid the checkpoint, and
      it necessarily follows that an officer, in light of
      and pursuant to the totality of the circumstances or
      the checkpoint plan, may pursue and stop a vehicle
      which has turned away from a checkpoint within its
      perimeters for reasonable inquiry to determine why the
      vehicle turned away.

Id. at 632-33, 527 S.E.2d at 924.

      In Smith, as in the present case, a police officer followed

the defendant’s vehicle after it turned down a private driveway

in an apparent attempt to avoid a checkpoint, and upon entering

the driveway, the officer found the vehicle parked.           The Fourth

Circuit Court of Appeals explained that the officer reasonably

could have inferred that the defendant “was attempting to evade

the   police   checkpoint”   and   upheld   the   reasonableness   of   the

search.   Smith, 396 F.3d at 585-87.

      As our Supreme Court has explained,

      [r]easonable suspicion is a “less demanding standard
      than   probable   cause  and   requires  a   showing
                                            -9-
       considerably less than preponderance of the evidence.”
       Only “‘some minimal level of objective justification’”
       is required.     This Court has determined that the
       reasonable suspicion standard requires that “[t]he
       stop . . . 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.”
       Moreover, “[a] court must consider ‘the totality of
       the circumstances—the whole picture’ in determining
       whether a reasonable suspicion” exists.

State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643, 645 (2008)

(citations omitted).

       In    the     present    case,      we   believe     that      Officer    Smith’s

observation of Defendant maneuvering his vehicle into a driveway

and     away       from   the     police     checkpoint,       combined        with   the

additional         circumstances     as     set    forth      in     the     unchallenged

portion       of    the   trial     court’s       findings,        “constitute[d]     [a]

reasonable,          articulable        suspicion”      that         “justif[ied]     an

investigatory stop.”            Foreman, 351 N.C. at 631, 527 S.E.2d at

923.     More specifically, upon observing Defendant turn into the

driveway, Officer Smith engaged in the inquiry that our Supreme

Court       held    reasonable     in      Foreman.        Then,      when    questioned

concerning his presence outside the trailer, Defendant informed

Officer Smith that he was there to visit his mother, a statement

Officer Smith knew to be false given his relationship with the

occupants of that same trailer.                 We hold that, in light of these
                                        -10-
circumstances, the trial court correctly determined that Officer

Smith’s investigatory stop of Defendant was justified.

                         C. The Scope of the Search

      Defendant       next   contends   that,   even   if   the   investigatory

stop was valid, Officer Smith’s search of Defendant’s person

that ensued      exceeded the scope        permissible under       Terry.        We

disagree.

      The United States         Supreme Court has held that a police

officer’s observation of a bulge in a defendant’s clothing may

permit the officer to conclude that the defendant is “armed and

thus pose[s] a serious and present danger to the safety of the

officer.”      Pennsylvania v. Mimms, 434 U.S. 106, 110–11, 54 L.

Ed.2d 331 (1977).            Moreover, in United States v. Baker, the

Fourth Circuit explained that a pat-down search is not “the only

permissible method of conducting a Terry search.”                 78 F.3d 135,

138   (4th     Cir.    1996).      Instead,     “the   reasonableness       of   a

protective search depends on the factual circumstances of each

case.”   Id.

      We believe that the unchallenged findings of fact made by

the trial court – for example, that Defendant was a large man;

that Officer Smith could not discern whether the contents of one

of Defendant’s pockets included a weapon when he came in contact
                                        -11-
with the bulge during his pat-down of Defendant; that Defendant

only     removed   a     single      object     from    his    pockets      when    he

volunteered to empty his pockets; that Defendant turned away

from     Officer   Smith      while    reaching        into   his     pocket;      that

Defendant appeared extremely nervous and refused to obey Officer

Smith’s instructions until threatened by Officer Smith with a

taser; and that Officer Smith was the only officer on the scene

– were sufficient to sustain the trial court’s conclusion that

Officer Smith’s search of Defendant was reasonable under Terry.

       Defendant cites State v. Beveridge, 112 N.C. App. 688, 436

S.E.2d 912 (1993), in support of his contention that Officer

Smith’s search of the area where he felt a large bulge was

unreasonable.      Defendant’s reliance on Beveridge is misplaced.

In   Beveridge,    the      police    officer    reached      into    a    detainee’s

pocket after determining from a pat-down that the contents did

not include a weapon, but rather a cylinder-shaped object that

the officer suspected contained drugs.                  Id. at 696, 436 S.E.2d

at 916.     This Court concluded that the officer’s actions were

overly    intrusive    on    grounds    that     the    officer      was   no   longer

acting with the purpose of determining whether the detainee was

armed with a weapon at the time he reached into the detainee’s

pocket.     Id.    In the present case, however, Officer Smith was
                                 -12-
unable to determine whether the contents of Defendant’s pocket

included a weapon at the moment he came into contact with the

bulge,   after   which   Defendant      exhibited   furtive,     evasive

behavior, acted nervously and reached into the pocket himself

while simultaneously turning away from Officer Smith.          See State

v. Willis, 125 N.C. App. 537, 543, 481 S.E.2d 407, 411 (1997).

Accordingly, Beveridge is distinguishable and is of no help to

Defendant in the present case.

                          IV.    Conclusion

    For the foregoing reasons, we hold that the trial court did

not err in denying Defendant’s motion to suppress.

    AFFIRMED.

    Judges BRYANT and STEPHENS concur.

    Report per Rule 30(e).
