State v. Horton , 264 N.C. App. 711 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-997
Filed: 2 April 2019
Alamance County, No. 16CRS55920, 16CRS55921, 17CRS1851
STATE OF NORTH CAROLINA
v.
XAVIER LAMAR HORTON, Defendant.
Appeal by Defendant from Judgment entered 10 April 2018 by Judge James
K. Roberson in Alamance County Superior Court. Heard in the Court of Appeals 27
February 2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Ashish K.
Sharda, for the State.
Grace Tisdale & Clifton, PA, by Michael A. Grace, Greer B. Taylor, and
Christopher R. Clifton, for Defendant-Appellant.
INMAN, Judge.
Defendant Xavier Lamar Horton (“Defendant”) appeals his convictions for
possession with intent to sell or deliver cocaine, possession of a stolen firearm,
possession of a firearm by a felon, and attaining habitual felon status. Defendant
argues that his motion to suppress evidence obtained in a traffic stop was erroneously
denied, contending that the police officer who conducted the stop lacked reasonable
suspicion that he was committing, or about to commit, a crime. After thorough review
STATE V. HORTON
Opinion of the Court
of the record and applicable law, we reverse the trial court’s order denying the motion
to suppress and vacate Defendant’s convictions.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant pled guilty to all charges following the trial court’s denial of his
motion to suppress. The record and the evidence introduced at trial, consisting of the
suppression hearing and Defendant’s plea colloquy, tended to show the following:
Sometime after 8:40 pm on 25 November 2016, Officer Nathan Judge (“Officer
Judge”) of the Graham Police Department in Alamance County received a dispatch
call relaying an anonymous report concerning a “suspicious white male,” with a “gold
or silver vehicle” in the parking lot, walking around a closed business, Graham Feed
& Seed.1 Officer Judge knew that another business across the street experienced a
break-in in the past and that there were previous residential break-ins and
vandalism in the area.2
When Officer Judge arrived at Graham Feed & Seed, he discovered a silver
Nissan Altima in the parking lot in front of the business. He saw no one walking in
the parking lot. After parking near the southern area exit of the parking lot, Officer
Judge stepped out of his patrol vehicle and walked toward the silver car “as [it] was
1 No evidence was introduced for when Officer Judge received the call or when he arrived at
the business’ parking lot.
2 No evidence was introduced as to when these alleged crimes occurred.
-2-
STATE V. HORTON
Opinion of the Court
approaching” the exit.3 When Officer Judge was “within arm’s length” of the vehicle,
he shined his flashlight toward the closed window of the driver’s side of the vehicle
and saw Defendant, a black male, in the driver’s seat. Defendant did not lower the
vehicle window. Officer Judge asked Defendant, “What’s up boss man?” Defendant
“made no acknowledgement,” but merely displayed a “blank expression on his face,”
and continued to exit the parking lot.
Officer Judge considered Defendant’s behavior to be a “little odd,” and decided
to follow Defendant because he “didn’t know what [he] had.” After catching up to
Defendant’s vehicle onto the main road, without “observ[ing] any bad driving, traffic
violations, criminal offenses, or furtive movements,” Officer Judge activated his
patrol lights and siren to initiate a traffic stop.
After Defendant pulled over and stopped his vehicle and lowered the driver’s
side window, Officer Judge approached, “immediately smelled a strong odor of
marijuana and air fresheners,” noticed a female passenger in the vehicle, and called
for officer assistance. Officer Judge asked Defendant for his license and registration.
Defendant admitted that he did not have his license and provided his name and date
of birth. The front seat passenger stated that the vehicle was registered in her name.4
3 The trial court’s findings of fact are unclear as to whether the vehicle was already in motion
on or before Officer Judge’s arrival.
4 The trial court’s findings of fact do not mention that there was a passenger.
-3-
STATE V. HORTON
Opinion of the Court
After Officer Judge began searching the vehicle, Defendant admitted
marijuana would be found in the center console. Officer Judge found marijuana in
the console. He also found several plastic baggies containing a “white powder[y]
substance” and large amounts of cash in an open purse on the front passenger
floorboard, additional baggies with white powdery substance and the top of a scale
with white powder residue in the center console, and a stolen black Sig Sauer 9
millimeter firearm in the glove compartment. Officer Judge then arrested Defendant
and took him to the police station. Defendant eventually admitted possessing the
firearm and admitted that the cash found in the vehicle—totaling $1,292—came from
drug sales.
On 31 July 2017, Defendant was indicted for possession of a stolen firearm,
possession of a firearm by a felon, possession with intent to sell or deliver cocaine,
possession of less than one-half ounce of marijuana, maintaining a vehicle used to
keep and sell cocaine and marijuana, and attaining habitual felon status. On 15
March 2018, Defendant filed a motion to suppress evidence seized as a result of the
stop. The motion came on for hearing on 19 March 2018 and Officer Judge was the
only testifying witness. After the parties concluded their arguments, the trial court
orally denied Defendant’s motion, concluding that Officer Judge had formed a
reasonable articulable suspicion to justify stopping Defendant. The trial court
entered this ruling in a written order on 10 April 2018.
-4-
STATE V. HORTON
Opinion of the Court
After the trial court denied his motion to suppress, Defendant pled guilty to all
charges except those for maintaining a vehicle to keep and sell cocaine and marijuana
and possession of less than one-half ounce of marijuana, which were dismissed
pursuant to a plea agreement. The trial court consolidated the cocaine and firearms
charges into one judgment and sentenced Defendant to the presumptive range of 77
to 105 months’ imprisonment, with credit given for 1 day spent in confinement; and
ordered him to pay a total of $1,627.50 in restitution and court costs. Defendant filed
written notice of appeal on 23 April 2018.5
II. ANALYSIS
A. Jurisdiction
As a preliminary matter, we address whether this Court has jurisdiction to
hear Defendant’s appeal from the superior court’s order denying his motion to
suppress.
Upon a guilty plea, a defendant has the right to appeal an order denying a
motion to suppress evidence so long as it is “an appeal from a judgment of conviction.”
N.C. Gen. Stat. § 15A-979(b) (2017). If the defendant merely appeals the denial of
his motion, rather than the final judgment, this Court lacks jurisdiction over the
appeal. See State v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542, 543 (2010)
5 Defendant did not give oral notice of appeal, as his counsel stipulated to the trial court that,
“once the [State] and I have worked out the findings of fact, once [the trial judge] sign[s] it, then we’ll
give notice of appeal at that time.” Defendant only reserved his right to appeal in open court, and the
trial court’s judgment stated as such.
-5-
STATE V. HORTON
Opinion of the Court
(“Although Defendant preserved his right to appeal by filing his written notice of
intent to appeal from the denial of his motion to suppress, he failed to appeal from
his final judgment, as required by [Section] 15A-979(b).”).
Here, though Defendant timely filed written notice of appeal, the notice, much
like in Miller, attempts to appeal the trial court’s “Order denying his Motion to
Suppress Evidence” instead of the judgment underlying his convictions. We thus
conclude that Defendant’s notice was deficient and he failed to properly preserve his
right to appeal.
Nonetheless, we have “the option ‘to exercise our discretion to treat
[D]efendant’s appeal as a petition for certiorari’ in order to reach the merits” of his
argument. State v. McNeil, __ N.C. App. __, __, 822 S.E.2d 317, 321 (2018) (quoting
State v. Phillips, 149 N.C. App. 310, 314, 560 S.E.2d 852, 855 (2002)) (alterations in
original). Therefore, pursuant to N.C. Gen. Stat. § 7A-32(c), we will “treat
[D]efendant’s appeal as a petition for certiorari and grant the writ to address the
merits of this appeal.” Phillips, 149 N.C. App. at 314, 560 S.E.2d at 855.
B. Reasonable Suspicion for the Traffic Stop
The sole issue on appeal is whether the trial court erred in denying Defendant’s
motion to suppress evidence resulting from the traffic stop. In reviewing the denial
of a defendant’s motion to suppress, we “determine whether there was competent
evidence to support the trial court’s underlying findings of fact” and “whether the
-6-
STATE V. HORTON
Opinion of the Court
findings of fact support the trial court’s ultimate conclusions of law.” State v.
Fleming, 106 N.C. App. 165, 168, 415 S.E.2d 782, 784 (1992). We review the trial
court’s conclusions of law de novo, “consider[ing] the matter anew and freely
substitut[ing] [our] own judgment for that of the trial court.” State v. Knudsen, 229
N.C. App. 271, 281, 747 S.E.2d 641, 649 (2013).
Generally, “the United States and North Carolina Constitutions protect an
individual against unreasonable searches and seizures.” State v. Otto, 366 N.C. 134,
136, 726 S.E.2d 824, 827 (2012) (citing U.S. Const. amend. IV; N.C. Const. art. I, §
20). In analyzing what constitutes a “reasonable seizure,” the United States Supreme
Court has consistently held that “a police officer may effect a brief investigatory
seizure of an individual where the officer has reasonable, articulable suspicion that a
crime may be underway.” State v. Barnard, 184 N.C. App. 25, 29, 645 S.E.2d 780,
783 (2007) (citing Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906 (1968)). Traffic
stops are considered seizures “ ‘even though the purpose of the stop is limited and the
resulting detention quite brief.’ ” State v. Murray, 192 N.C. App. 684, 687, 666 S.E.2d
205, 207 (2008) (quoting Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 667
(1979)).
Reasonable suspicion is “based on specific and articulable facts, as well as the
rational inferences from those facts, as viewed through the eyes of a reasonable,
-7-
STATE V. HORTON
Opinion of the Court
cautious officer, guided by his experience and training.”6 State v. Watkins, 337 N.C.
437, 441, 446 S.E.2d 67, 70 (1994). “A court must consider the totality of the
circumstances—the whole picture—in determining whether a reasonable suspicion
to make an investigatory stop exist[ed].” State v. Campbell, 359 N.C. 644, 664, 617
S.E.2d 1, 14 (2005) (quotations and citation omitted). While reasonable suspicion is
easier than proving probable cause, “and requires a showing considerably less than
preponderance of the evidence,” State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643,
645 (2008) (citation and quotation marks omitted), there must be enough suspicion
“to assure that an individual’s reasonable expectation of privacy is not subject to
arbitrary invasions solely at the unfettered discretion of officers in the field.” Brown
v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979).
Because Defendant does not challenge the trial court’s findings of fact, they
“are deemed to be supported by competent evidence and are binding on appeal.” State
v. Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36 (2004). We need only
determine whether the trial court’s findings support its conclusion of law that Officer
Judge had reasonable suspicion to stop Defendant.
The trial court made the following relevant findings of fact:
1. On or about November 25, 2016, Officer Nathan Judge
6 Our Supreme Court in State v. Nicholson, 371 N.C. 284, 293, 813 S.E.2d 840, 846 (2018),
recently reemphasized the principle that a police officer’s subjective thoughts are irrelevant when
reviewing whether reasonable suspicion objectively existed. “Accordingly, we do not consider [Officer
Judge’s] subjective analysis of the facts as probative of whether those facts—viewed objectively—
satisfy the reasonable suspicion standard necessary to support [D]efendant’s seizure.” Id.
-8-
STATE V. HORTON
Opinion of the Court
with the Graham Police Department received a call from
Communications that a tip came in of a suspicious white
male walking around the business of Graham Feed &
Seed . . . ;
2. That the tip also included a suspicious gold or silver
vehicle in the parking lot of the business;
3. That there was no description of what the suspicious
activity was and no timeframe as to how long the caller
observed this suspicious activity;
4. That the tip came in around 8:40p.m. at night;
5. That before Officer Judge arrived to the business, he was
familiar with the area and knew that there had been
residential break-ins in the area, the business across the
street had been broken into, and there had been vandalism
in the area;
6. That the officer did not testify to a specific time frame
when the previous break-ins had occurred;
7. That when Officer Judge arrived, he saw a silver car in
the parking lot in front of the business;
8. That the business was closed and there were no other
cars in the parking lot;
9. That Officer Judge did not see anyone walking around
the business and did not see anyone outside of the vehicle;
10. That the business does not a have a “no trespassing”
sign on its premises;
11. That Officer Judge pulled his vehicle onto the southern
part of the parking lot of the Graham Feed & Seed, exited
his patrol car, retrieved his flashlight and approached the
silver car as the silver car was approaching the roadway,
near the exit of the parking lot;
12. That Officer Judge approached the silver car, shone
[sic] a flashlight into the face of the driver, and said “What’s
up boss man”?;
13. That the windows on the silver car were closed;
14. That Officer Judge could not see inside the silver car
except when he shined his flashlight into the face of the
driver;
15. That the driver made no acknowledgment of the officer,
and left the parking lot of the business;
16. That Officer Judge acknowledged that [Defendant] was
-9-
STATE V. HORTON
Opinion of the Court
not required to stop when the officer approached
[D]efendant’s vehicle;
17. That Officer Judge was within arm’s length of the silver
vehicle at this time;
18. That Defendant is a black male;
19. That Officer Judge then followed the silver vehicle
because he didn’t know what he had;
20. That Officer Judge knew that other officers park their
patrol cars in the gravel parking lot after hours for various
reasons;
21. That Officer Judge did not know if this vehicle was in
the process of turning around in the parking lot;
22. That between the time of following the silver vehicle
and before effectuating the stop, Officer Judge did not
observe any bad driving, traffic violations, criminal
offenses, or furtive movements;
23. That Defendant stopped appropriately when Officer
Judge activated his blue lights.
We hold that Officer Judge’s justification for conducting the traffic stop of Defendant
was nothing more than an “inchoate and unparticularized suspicion or ‘hunch.’ ”
United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 7 (1989) (quotation and
citations omitted).
“Where the justification for a warrantless stop is information provided by an
anonymous informant, a reviewing court must assess whether the tip at issue
possessed sufficient indicia of reliability to support the police intrusion on a detainee’s
constitutional rights.” State v. Johnson, 204 N.C. App. 259, 263, 693 S.E.2d 711, 715
(2010) (citing Illinois v. Gates, 462 U.S. 213, 76 L. E. 2d 527 (1983)). Indices of
reliability can come in two forms: (1) the tip itself provides enough detail and
information to establish reasonable suspicion, or (2) though the tip lacks independent
- 10 -
STATE V. HORTON
Opinion of the Court
reliability, it is “buttressed by sufficient police corroboration.” State v. Hughes, 353
N.C. 200, 208, 539 S.E.2d 625, 630 (2000). Absent corroboration, an anonymous tip
rarely supports reasonable suspicion because, “[u]nlike a tip from a known informant
whose reputation can be assessed and who can be held responsible if [the] allegations
turn out to be fabricated, an anonymous tip alone seldom demonstrates the
informant’s basis of knowledge or veracity.” Florida v. J.L., 529 U.S. 266, 270, 146
L. Ed. 2d 254, 260 (2000) (quotations and citations omitted). As stated by our
Supreme Court in Hughes:
[A]n accurate description of a subject’s readily observable
location and appearance is of course reliable in this limited
sense: It will help the police correctly identify the person
whom the tipster means to accuse. Such a tip, however,
does not show that the tipster has knowledge of concealed
criminal activity. The reasonable suspicion here at issue
requires that a tip be reliable in its assertion of illegality,
not just in its tendency to identify a determinate person.
Hughes, 353 N.C. at 209, 539 S.E.2d at 632 (quoting J.L., 529 U.S. at 272, 146 L. E.
2d at 261). Consequently:
The type of detail provided in the [anonymous] tip and
corroborated by the officers is critical in determining
whether the tip can supply the reasonable suspicion
necessary for the stop. Where the detail contained in the
tip merely concerns identifying characteristics, an officer’s
confirmation of these details will not legitimize the tip.
Johnson, 204 N.C. App. at 264, 693 S.E.2d at 715.
In Hughes, police officers received an anonymous tip that a person named
- 11 -
STATE V. HORTON
Opinion of the Court
“Markie” would be arriving in Jacksonville from New York City by bus around 5:30
pm, possessing marijuana and cocaine. 353 N.C. at 201, 539 S.E.2d at 627. The tip
described Markie as a “dark-skinned Jamaican from New York who weighs over three
hundred pounds,” about “six foot, one inch tall or taller,” about 20-30 years old, and
would be “clean cut with a short haircut and wearing baggy pants.” Id. at 201-02,
539 S.E.2d at 627. The informant stated that Markie “sometimes” travelled to
Jacksonville on weekends before it got dark, “sometimes” took a taxi from the bus
station, “sometimes” had an overnight bag, and “would be headed to North Topsail
Beach.” Id. at 202, 539 S.E.2d at 627. When the officers reached the bus station,
they saw a bus from Rocky Mount, rather than New York City, arrive around 3:50
pm. Id. The officers saw the defendant, who “matched the exact description [they]
had been given and was carrying an overnight bag,” not exiting the bus but entering
a taxi. The taxi traveled toward a highway intersection where, depending on which
way the taxi turned, would lead to either Wilmington or Topsail Beach. Id. at 202,
539 S.E.2d at 628. The officers stopped the taxi before it reached the intersection.
Id. The Hughes court concluded that, “[w]ithout more, these details [were]
insufficient corroboration because they could apply to many individuals,” as the
information was “peppered with uncertainties and generalities.” Id. at 209, 539
S.E.2d at 632.
In Johnson, officers received an anonymous tip that a “black male wearing a
- 12 -
STATE V. HORTON
Opinion of the Court
white t-shirt and blue shorts was selling illegal narcotics and guns” out of a blue
Mitsubishi on a street corner in a local housing community. 204 N.C. App. at 260-61,
693 S.E.2d at 713. The tipster provided a vehicle license plate number, WT 3456, but
did not provide a name of the suspect. Id. Before the officers arrived at the described
location, the tipster called back and informed the officers that the suspect left the
area, “but would return shortly.” Id. at 261, 693 S.E.2d at 713. The officers then
stationed themselves near one of the only two entryways into the neighborhood and
waited. Id. Soon thereafter, the officers saw a blue Mitsubishi, with license plate
number WTH 3453, being driven by a black male wearing a white T-shirt. Id.
Through a plate check, the officers discovered that it was registered to a black male
whose driver’s license had been suspended. Id. An officer stopped the defendant
about “100 yards from the original area mentioned in the tip.” Id. at 261, 693 S.E.2d
at 714. We held that the stop was not based on reasonable suspicion because the tip
“offered few details of the alleged crime, no information regarding the informant’s
basis of knowledge, and scant information to predict the future behavior of the alleged
perpetrator.” Id. at 263, 693 S.E.2d at 714-15. Thus, because of “the failure of the
officers to corroborate the tip’s allegations,” it lacked sufficient indicia of reliability to
justify the stop. Id. at 263, 693 S.E.2d at 715.
The anonymous tip that led Officer Judge to stop Defendant reported no crime
and was only partially correct. Although there was in fact a silver car in the business’
- 13 -
STATE V. HORTON
Opinion of the Court
parking lot around 8:40 pm, the tip also said it could have been gold and there was
no white male in the parking lot or in the vehicle. Additionally, not only did the tip
provide substantially less detail than the tips in Hughes and Johnson, it merely
described the individual as “suspicious” without any indication as to why, and no
information existed as to who the tipster was and what made the tipster reliable.
Like in Hughes and Johnson, “there [is] nothing inherent in the tip itself to allow a
court to deem it reliable and to provide [Officer Judge] with the reasonable suspicion
necessary to effectuate a stop.” Johnson, 204 N.C. App. at 264-65, 693 S.E.2d at 716.
The vague tip that led Officer Judge to stop Defendant and the other
circumstances in this case are similar to those this Court has previously held were
insufficient to support reasonable suspicion for a traffic stop. Murray, 192 N.C. App.
at 684, 666 S.E.2d at 205; State v. Chlopek, 209 N.C. App. 358, 704 S.E.2d 563 (2011).
Murray arose from the following facts: At around 3:40 am, an officer was performing
a property check of an industrial park “as part of a ‘problem oriented policing
project’ . . . following reports of break-ins of vehicles and businesses.” 192 N.C. App.
at 684, 666 S.E.2d at 206. When the officer rounded one of the buildings, he saw the
defendant’s car leave an area the officer had already checked. Id. at 684-85, 666
S.E.2d at 206. The officer followed the vehicle and made a traffic stop without
observing any illegal activity or traffic violation. Id. at 685, 666 S.E.2d at 206.
Similarly in Chlopek, at 12:05 am, officers were in a partially-developed subdivision
- 14 -
STATE V. HORTON
Opinion of the Court
conducting a separate traffic stop when they noticed the defendant’s vehicle heading
from the subdivision entrance in the direction of undeveloped lots. 209 N.C. App. at
358-59, 704 S.E.2d at 564. One of the officers thought that the defendant “seemed a
little nervous in his manner [in] observing” the officers. Id. at 359, 704 S.E.2d at 564.
Prior to the unrelated stop, the officers “had been put on notice that there had been
a large number of copper thefts from” undeveloped portions of other subdivisions, but
had received no such reports for that subdivision. Id. When the defendant’s vehicle
returned to the subdivision entrance, the officers stopped the defendant’s car. Id.
In both Murray and Chlopek, we held that officers lacked reasonable suspicion
to stop defendants because the majority, if not all, of the trial court’s findings related
to the mere generalized description of the area. See Murray, 192 N.C. App. at 689,
666 S.E.2d at 208 (“Officer Arthur never articulated any specific facts about the
vehicle itself . . .; instead, all of the facts relied on by the trial court . . . were general
to the area . . . and would justify the stop of any vehicle there.” (emphasis in
original)); Chlopek, 209 N.C. App. at 363, 704 S.E.2d at 567 (“[A]s in Murray, the facts
relied upon by the trial court in concluding that reasonable suspicion existed were
general to the area[.]”).
Here, much like in Murray and Chlopek, the trial court’s findings of fact
concerning Officer Judge’s knowledge about criminal activity refer to the area in
general and refer to no particularized facts. Officer Judge did not articulate how he
- 15 -
STATE V. HORTON
Opinion of the Court
was “familiar with the area,” how he “knew that there had been residential
break-ins,” or how much “vandalism” and other crimes had been occurring. The
findings also stipulated that there was no “specific time frame [given for] when the
previous break-ins had occurred.”
Nor can we agree with the State’s argument that Officer Judge either
corroborated the tip or formed reasonable suspicion of his own accord when he arrived
at the parking lot. The State points to factors noted in the trial court’s findings that
have historically been cited in the totality of the circumstances analysis to support
establishment of reasonable suspicion. See Illinois v. Wardlow, 528 U.S. 119, 124,
145 L. E. 2d 570, 576 (2000) (high-crime area); State v. Fields, 195 N.C. App. 740,
744, 673 S.E.2d 765, 768 (2009) (unusual hour of the day); Watkins, 337 N.C. at 443,
446 S.E.2d at 71 (businesses in vicinity were closed). Although these factors, in other
contexts, can help establish reasonable suspicion, they are insufficient given the other
circumstances in this case.
The State asserts that Defendant’s “nervous conduct” and “unprovoked flight”
supported Officer Judge’s reasonable suspicion. But the trial court did not make
either of those findings, and it is not within the authority of this Court to do so. In
resolving a motion to suppress, the trial court “is entrusted with the duty to hear
testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then
based upon those findings, render a legal decision.” State v. Cooke, 306 N.C. 132, 134,
- 16 -
STATE V. HORTON
Opinion of the Court
291 S.E.2d 618, 620 (1982). We consider only the “cold, written record” before us. Id.
at 135, 291 S.E.2d at 620 (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597,
601 (1971)). The trial court’s findings speak nothing of Defendant’s demeanor—other
than his lack of acknowledgement of Officer Judge—or the manner in which
Defendant drove and exited the parking lot. The State’s argument in this respect is
unconvincing.
The State also relies on prior decisions for the general proposition that
reasonable suspicion can be based on a suspect’s suspicious activities in an area
known for criminal activity at an unusual hour. In State v. Blackstock, officers were
patrolling in an unmarked vehicle as part of a “Crime Abatement Team” in an area
where “statistical data indicated [the] area had a problem with robberies and break-in
enterings.” 165 N.C. App. 50, 53, 598 S.E.2d 412, 414 (2004). Around 11:45 pm, the
officers found two men walking along the front of closed businesses in a strip mall.
Id. The men walked very slowly and kept looking in and out of the businesses’
windows. Id. at 53, 598 S.E.2d at 415. When a clearly marked police cruiser arrived
at the scene, the two men “immediately turned around” and “immediately began to
walk hurriedly backward.” Id. The two men eventually entered a vehicle which was
concealed from public view along the perimeter of the strip mall. Id. As the officers
followed the two men, the vehicle drove slowly through a gas station and a fast-food
restaurant parking lot without stopping, while the man in the passenger seat kept
- 17 -
STATE V. HORTON
Opinion of the Court
looking back at the officers following them. Id. We concluded, based on a litany of
factors including that the strip mall had been “targeted by law enforcement officers
as a high crime area,” the officers had reasonable suspicion to stop the two men. Id.
at 59, 598 S.E.2d at 418.
In State v. Butler, a detective saw the defendant “in the midst of a group of
people congregated on a corner known as a ‘drug hole,’ ” where the detective had been
conducting “daily surveillance for several months.” 331 N.C. 227, 233, 415 S.E.2d
719, 722 (1992). The detective had made four to six drug-related arrests on the same
corner in the previous six months. Id. After the detective and the defendant made
eye contact, the defendant “immediately moved away,” which the detective construed
to indicate flight. Id. The detective then stopped the defendant and asked him for
his identification. Our Supreme Court concluded that the criminal activity in the
area, taken together with the detective’s experience and observation of the
defendant’s reaction to police presence, rendered the stop constitutional. Id. at 232,
415 S.E.2d at 721.
In State v. Fox, at about 12:50 am, an officer observed the defendant’s vehicle
travelling down a dead-end street “where several padlocked businesses were located.”
58 N.C. App. 692, 692, 294 S.E.2d 410, 411 (1982). The officer knew several break-ins
had occurred in the area and had taken a report of a break-in from one of the
businesses that evening. Id. The officer watched the vehicle stop and turn around,
- 18 -
STATE V. HORTON
Opinion of the Court
and, when the vehicle was passing the officer’s patrol car, the defendant “cocked” his
head away. Id. The officer stopped the defendant’s vehicle absent any observed
traffic violations. We held that the officer had reasonable suspicion for the stop. Id.
at 695, 294 S.E.2d at 413.
In State v. Tillett, at approximately 9:40 pm, an officer was patrolling alone in
a “ ‘heavily wooded’ area containing summer cottages,” with only one of which being
occupied at the time. 50 N.C. App. 520, 521, 274 S.E.2d 361, 362 (1981). The officer
was aware of frequents reports of “firelighting” deer at that time of year. Id. That
night, it was raining and the officer was driving down a narrow, one-way dirt road
that made it difficult for two vehicles to pass each other. Id. The officer spotted a car
carrying the defendant and a passenger and “did not observe an inspection sticker on
the vehicle.” Id. The officer did not stop the defendant’s car, as it was “his intention
[] to allow the vehicle to go to the [lone] occupied dwelling” in the area. Id. After the
officer continued on for about “fix or six miles,” he spotted the defendant’s car coming
out of the wooded area. The officer then stopped his patrol vehicle in front of the car
and put his lights on. Id. at 521-22, 274 S.E.2d at 362. We concluded that, based on
the facts found by the trial court, the officer would not have been unreasonable in
thinking that the defendant and his passenger were “firelighting” deer or
burglarizing the unoccupied homes. Id. at 524, 274 S.E.2d at 364.
Unlike the facts in Blackstock, Butler, Fox, and Tillett—where the officers were
- 19 -
STATE V. HORTON
Opinion of the Court
already in areas because they were specifically known and had detailed instances of
criminal activity—Officer Judge arrived at the parking lot because of a vague tip
about an undescribed white male engaged in undescribed suspicious activity in a
generalized area known for “residential break-ins” and “vandalism.”
The trial court made no findings as to what suspicious activity by Defendant
warranted Officer Judge’s suspicion. The trial court found that when Officer Judge
approached Defendant’s car and called out to him, Defendant made “no
acknowledgement.” Officer Judge admitted at trial that “[D]efendant was not
required to stop” when he approached him. While it might seem socially peculiar—
possibly uncouth—that someone, like Defendant here, would ignore a police officer’s
confrontation, such an attempt by Officer Judge at a “consensual encounter” provided
Defendant the “liberty ‘to disregard [Officer Judge] and go about his business.’ ” State
v. Sinclair, 191 N.C. App. 485, 489, 663 S.E.2d 866, 870 (2008) (quoting Florida v.
Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398 (1991)).
Accordingly, we are unpersuaded by the State’s argument and agree with
Defendant that the trial court erred in concluding that Officer Judge had reasonable
suspicion to stop him. Though the tip did bring Officer Judge to the Graham Feed &
Seed parking lot, where he indeed found a silver car in front of the then-closed
business with no one else in its vicinity at 8:40 pm, and although Defendant did not
stop for or acknowledge Officer Judge, we do not believe these circumstances, taken
- 20 -
STATE V. HORTON
Opinion of the Court
in their totality, were sufficient to support reasonable suspicion necessary to allow a
lawful traffic stop. When coupled with the facts that (1) Defendant was in a parking
lot that did “not have a ‘no trespassing’ sign on its premises”—making it lawful for
Defendant to be there; (2) Defendant was not a white male as described in the tip; (3)
Defendant’s car was possibly in motion when Officer Judge arrived in the parking lot;
(4) Defendant had the constitutional freedom to avoid Officer Judge; and (5)
Defendant did not commit any traffic violations or act irrationally prior to getting
stopped, there exists insufficient findings that Defendant was committing, or about
to commit, any criminal activity.
Concluding otherwise would give undue weight to, not only vague anonymous
tips, but broad, simplistic descriptions of areas absent specific and articulable detail
surrounding a suspect’s actions.
REVERSED AND VACATED.
Judges DILLON and COLLINS concur.
- 21 -