An unpublished opinion of the North Carolina Court of Appeals does not constitute 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