State v. Sutton

NO. COA13-841
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Lenoir County
No. 12CRS050866
THOMAS KEITH SUTTON,
Defendant.
On writ of certiorari to review judgment entered on or
about 22 January 2013 by Judge Paul L. Jones in Superior Court,
Lenoir County. Heard in the Court of Appeals 12 December 2013.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General John P. Barkley, for the State.
Public Defender Jennifer Harjo, by Assistant Public
Defender Brendan O’Donnell, for defendant-appellant.
STROUD, Judge.
Defendant appeals an order denying his motion to suppress
and a judgment convicting him of felony carrying a concealed gun
contending that his right “to be free from unreasonable search
and seizure” was violated when a law enforcement officer frisked
him without reasonable suspicion. (Original in all caps.) For
the following reasons, we affirm.
I. Background
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In October of 2012, defendant was indicted for two counts
of “FELONY CARRYING A CONCEALED WEAPON[.]” On 11 January 2013,
defendant filed a motion to suppress moving
for an Order suppressing all evidence,
alleged contraband, defendant’s identity,
and all statements and testimony concerning
the alleged contraband, and as grounds
therefore alleges that said material[]
evidence, and testimony were seized in or
obtained as a result of an illegal stop that
occurred on March 27, 2012, absent
reasonable and articulable suspicion in
violation of his Fourth and Fourteenth
Amendment rights under the United States
Constitution and similar provisions in the
North Carolina Constitution, Article 1,
Section 19.
On 31 January 2013, the trial court denied defendant’s
motion to suppress finding as fact:
1) That the arresting officer, B. Wells,
was employed by the Kinston Department
of Public Safety as a police officer.
Officer B. Wells has more than 10 years
experience in that position. That he
was assigned to the Special Response
Unit and also served as a K-9 Officer.
That as a member of the Special
Response Unit he was assigned to patrol
public housing units located within the
city of Kinston, North Carolina.
2) That prior to March 27th, 2012, the
Special Response Unit patrolled public
housing, along with a task force made
up of US Marshals and Drug Enforcement
Agency, concentrating on viol[ent]
crimes, gun crimes, etc. That in the
past officers have been assaulted by
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individuals in public housing. That
officer B. Wells is trained in the
detection of drugs, weapons and other
general policing tactics.
3) At 14:34 hours (2:34pm) in the
afternoon of March 27, 2012, officer B.
Wells was patrolling near Simon Bright
Apartments, which is one of the public
housing apartments located in Kinston.
Officer Wells had prior experience
hearing shots fired on the East Bright
Street area near Simon Bright
Apartments. That the Kinston
Department of Public Safety enforces a
ban list of over 9 pages of individuals
who are banned from public housing.
4) That on the day in question officer B.
Wells was driving a Ford Crown Victoria
vehicle with the windows down where he
was listening and looking for criminal
activity. While in the 800 block of
East Bright Street Wells observed the
defendant on McDaniel Street, who was
walking normally while swinging his
arms. That the defendant was carrying
a Styrofoam food container in his left
hand.
5) The Court finds as soon as the
defendant starting turning east on
Shine Street, he used his right hand to
grab his waistband to clinch an item.
The Court finds that this was an overt
act which gave reasonable suspicion to
the Public Safety Officer.
6) That officer B. Wells thought the
defendant was trying to hide something
and his posturing made it apparent that
he was concealing something on his
person. That the defendant then began
to look specifically at the officer in
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question, that the reaction of the
defendant created some urgency to stop
to determine who the defendant was and
that he needed to be identified. The
Officer then turned around his vehicle
without lights and siren and stopped
the defendant for questioning.
7) That prior to being frisked, the
officer did not draw a weapon or use
any type of force on the defendant.
That he asked the defendant if he was
carrying a weapon and he doesn’t
remember the response of the defendant.
That the officer performed a Terry
Frisk upon the defendant. A gun was
found on the defendant tucked in his
waistband.
8) That the defendant never stated to the
Officer that he was carrying a weapon.
That the defendant was not handcuffed
and the Officer did not have a weapon
drawn. That the entire process took
probably less than a minute or two.
That the weapon in question was a Ruger
P89 .9mm handgun with a magazine and 7
rounds of ammo, but there was no round
which was chambered inside the weapon
in question.
The trial court concluded:
1) That the stop of the defendant was
legal and did not violate Federal and
State Constitutional Standards. That
the detaining Officer gave reasonable
and articulable grounds for stopping
the defendant that resulted in his
being frisked.
2) That the rights of the defendant . . .
were not violated and therefore
evidence seized may be presented before
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the Jury at trial. That the behavior
and actions of the defendant as well as
the totality of the circumstances form
a further basis for Denying the Motion
to Suppress.
3) The Court has examined the Ruger
handgun in court for size, weight and
concealability to determine if it was
consistent with suppression testimony.
The Court finds that both federal and
state courts have given patrol officers
wide latitude to stop and frisk
defendants based upon an articulable
suspicion.
4) The Court finds that the entire process
of frisking the defendant took less
than 2 minutes for an investigatory
stop. The Court finds the Motion to
Suppress is Denied.
On or about 22 January 2013, the trial court entered a
judgment against defendant for carrying a concealed gun based
upon defendant’s guilty plea; defendant received a suspended
sentence and was placed on 24 months of supervised probation.
Defendant appeals.
II. Petition for Writ of Certiorari
In his plea transcript defendant reserved his right to
appeal “the interlocutory order entered in the above-captioned
case on January 22, 2012, denying his motion to suppress the
March 27, 2012 stop.” In open court, defendant’s attorney
stated “that he would like to appeal the interlocutory order
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entered in this matter today[.]” Defendant never appealed from
his judgment, but he subsequently filed a petition for a writ of
certiorari with this Court because he had failed to properly
appeal from his judgment within the time period allotted. This
Court stated in State v. Franklin,
All of defendant’s issues on appeal are
concerning his motion to suppress, but since
defendant did not file a notice of appeal
from the judgment or after entry of the
written order denying his motion to
suppress, we must first address whether we
have jurisdiction to consider defendant's
appeal. In Miller, this Court stated,
N.C. Gen. Stat. § 15A–979(b)
(2009) states that: An order
finally denying a motion to
suppress evidence may be reviewed
upon an appeal from a judgment of
conviction, including a judgment
entered upon a plea of guilty.
Defendant has failed to appeal
from the judgment of conviction
and our Court does not have
jurisdiction to consider
Defendant’s appeal. In North
Carolina, a defendant’s right to
pursue an appeal from a criminal
conviction is a creation of state
statute. Notice of intent to
appeal prior to plea bargain
finalization is a rule designed to
promote a fair posture for appeal
from a guilty plea. Notice of
Appeal is a procedural appellate
rule, required in order to give
this Court jurisdiction to hear
and decide a case. Although
Defendant preserved his right to
appeal by filing his written
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notice of intent to appeal from
the denial of his motion to
suppress, he failed to appeal from
his final judgment, as required by
N.C.G.S. § 15A–979(b).
Accordingly, the Court dismissed
defendant's appeal. Here, however, while
defendant has not properly provided notice
of appeal, he has petitioned this Court for
a writ of certiorari to consider his appeal.
North Carolina Rule of Appellate
Procedure 21(a) provides,
The writ of certiorari may be
issued in appropriate
circumstances by either appellate
court to permit review of the
judgments and orders of trial
tribunals when the right to
prosecute an appeal has been lost
by failure to take timely action,
or when no right of appeal from an
interlocutory order exists, or for
review pursuant to N.C.G.S. § 15A–
1422(c)(3) of an order of the
trial court denying a motion for
appropriate relief.
Pursuant to Rule 21(a), we grant defendant’s
petition for a writ of certiorari and will
consider the issues presented in his brief
as he lost his right to appeal by failure to
take timely action.
___ N.C. App. ___, ___, 736 S.E.2d 218, 220 (2012) (citations,
quotation marks, and brackets omitted). Accordingly, we grant
defendant’s petition for certiorari.
III. 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
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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. The
trial court’s conclusions of law are fully
reviewable on appeal.
State v. McKinney, ___ N.C. App. ___, ___, 752 S.E.2d 726, 727-
28 (2014) (citations, quotation marks, and ellipses omitted).
IV. Findings of Fact
Defendant challenges portions of findings of facts 5 and 6
as not supported by the competent evidence and also contends
that portions of these findings of fact are actually conclusions
of law.
A. Findings of Fact Supported by Competent Evidence
As to all of defendant’s challenges regarding competent
evidence to support the findings of fact, much of his argument
is devoted to the credibility of the evidence and not
necessarily to its absence. But the credibility of the evidence
is a determination made by the trial court; “the trial court as
finder of the facts may believe or disbelieve all or any part of
the testimony of a witness,” Bowles Distributing Co. v. Pabst
Brewing Co., 80 N.C. App. 588, 592, 343 S.E.2d 543, 545 (1986)
(emphasis added). This Court reviews findings of fact only to
determine if there was competent evidence to support them, not
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whether all of the evidence supported them. See McKinney, ___
N.C. App. at ___, 752 S.E.2d at 727, Bowles Distributing Co., 80
N.C. App. at 592, 343 S.E.2d at 545.
It is said that a picture is worth a thousand words. In
this case, a picture would be worth several thousand words,
since the testimony in this case, the trial court’s order, and
other cases all necessarily use words to the very brief
movements, glances, and body language that tend to form the
basis for many a Terry stop. Lacking a picture of that moment
when Officer Wells observed defendant grabbing at his waistband
or side on 27 March 2012, we will address defendant’s arguments
as to each of these facts.
Defendant challenges the portion of finding of fact 5 that
stated defendant “used his right hand to grab his waistband to
clinch an item” because “Officer Wells’ repeated testimony is
that the defendant clinched his side . . . but he did not ever
testify that the defendant grabbed his waistband.” Defendant
also argues that Officer Wells did not “testify that the
defendant clinched ‘an item.’” Defendant’s arguments are hyper-
technical. Clutching, clinching, and grabbing are all words
which describe the same sort of movement and a person’s
waistband crosses his “side.” Officer Wells testified that
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defendant “clutch[ed] his right side at this time. And it was
very distinct, a clinched fist as well as almost like trying to
hold something on his body” and that the way defendant “was
clinching his side” is the reason he “believe[d] the waistband
would be of interest[.]” Accordingly, Officer Wells’ testimony
supports the challenged portions of finding of fact 5.
Defendant also challenges the portion of finding of fact 6
stating, “That the defendant then began to look specifically at
the officer in question[.]” Defendant directs our attention to
portions of Officer Wells’ testimony which he asserts show that
defendant did not “specifically” look at him. It is true that
it is nearly impossible to know for certain if another person is
actually looking at a particular thing — the observer can tell
only if it looks like they are looking at it. Here the evidence
shows that that is how defendant looked to Officer Wells.
Officer Wells testified that as defendant “rounded . . . his
turn . . . it was almost like he was surprised to see me and
kind of, you know, postured up[;]” “he saw me kind of slow
patrol[;]” and “[i]f he did make eye contact with me it was so
quick. But it was more like he panned around me in my direction
and then kind of –- I know he saw me for a fact that he saw me.
He had to have seen me[.]” Officer Wells’ testimony supports a
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finding of fact that defendant “look[ed] specifically at the
officer in question[.]” The challenged portion of finding of
fact six does not state that defendant and Officer Wells made
eye contact but only that defendant specifically saw Officer
Wells, and Officer Wells’ testimony supports this finding of
fact.
Defendant further challenges the portion of finding of fact
six that provides, “The Officer then turned around his vehicle
without lights and siren and stopped the defendant for
questioning.” Defendant specifically states in his brief that
he “agrees that the evidence supports a finding that the officer
stopped him and that the officer did so without the patrol car’s
lights or siren. It is inaccurate, however, to say or suggest
that the officer stopped the defendant only for questioning.”
Thus, defendant only challenges that there was competent
evidence to support Officer Wells’ mental intent for stopping
defendant. Defendant contends that Officer Wells’ true intent
was not just to question but also to search defendant. Officer
Wells testified that he “was going to stop [defendant] and
identify who he was and see what he was trying to hide on [that]
right side.” Officer Wells’ testimony supports a finding of
fact that his intent was to question defendant, since he would
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presumably ask defendant his identity. “Questioning” defendant
to identify him and frisking him to find out what he was trying
to hide does not mean that Officer Wells planned to do a more
extensive search than would be appropriate based upon reasonable
suspicion. Though the finding of fact could have been more
artfully written or could have contained more details about the
specific types of questions Officer Wells intended to ask, the
general statement that defendant was stopped “for questioning”
is supported by competent evidence. Accordingly, Officer Wells’
testimony supports the challenged portions of finding of fact 5.
These arguments are overruled.
B. Findings of Fact as Conclusions of Law
Defendant also contends that portions of findings of fact 5
and 6 are actually conclusions of law. To the extent that
defendant is correct, we will review them as such. See State v.
Jackson, ___ N.C. App. ___, ___, 727 S.E.2d 322, 329 (2012) (“We
will review conclusions of law de novo regardless of the label
applied by the trial court.” (citation and quotation marks
omitted)).
V. Reasonable Suspicion
Defendant contends that the trial court did not “have
reasonable suspicion, based on specific and articulable facts,
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that the individual is involved in criminal activity” to justify
stopping and frisking defendant. Defendant’s argument is
difficult to summarize in a logical manner because he
essentially takes each separate finding of fact or even portions
thereof and argues that each finding in isolation does not
create reasonable suspicion. It would be extremely difficult to
find reasonable suspicion in any case if it had to be supported
by each individual fact taken in isolation. But “[t]he concept
of reasonable suspicion is not readily, or even usefully,
reduced to a neat set of legal rules. Rather, in determining if
reasonable suspicion existed, the Court must account for the
totality of the circumstances—the whole picture.” State v.
Knudsen, ___ N.C. App. ___, 747 S.E.2d 641, 650-51 (emphasis
added) (citations, quotation marks, and ellipses omitted), disc.
review denied, ___ N.C. ___, 749 S.E.2d 865 (2013). As such, we
will set forth all of the findings of fact and address them as a
whole. See id. at ___, 747 S.E.2d at 651. Furthermore,
defendant also suggests that this Court can essentially make its
own findings of fact based upon the uncontested evidence before
the trial court and supplement the trial court’s findings of
facts for a “whole picture[.]” This is incorrect, as
[o]ur review of a trial court’s denial
of a motion to suppress is strictly limited
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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. The
trial court’s conclusions of law are fully
reviewable on appeal.
McKinney, ___ N.C. App. at ___, 752 S.E.2d at 727-28 (emphasis
added).
Defendant first contends that he was “seized;” this is
true, but merely the start of the analysis. See State v.
Fleming, 106 N.C. App. 165, 169, 415 S.E.2d 782, 784 (1992)
(“When defendant approached Officer Williams, the officer
immediately began to pat him down while simultaneously asking
him questions. Thus, Officer Williams applied actual physical
force to defendant’s person and this action constituted a
seizure. Id. See also Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889(1968). (When a law enforcement officer takes hold of an
individual and pats down the outer surface of his clothing, he
has seized that individual within the meaning of the Fourth
Amendment.) Accordingly, the Fourth Amendment is applicable to
the facts and circumstances in this case.” (quotation marks
omitted)).
The fact that defendant was “seized” then leads to
consideration of the reasonableness of this seizure, considering
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all of the circumstances as
[t]he Constitution does not prohibit
all searches and seizures; it only protects
against unreasonable searches and seizures.
Since Officer Williams’ conduct did not rise
to the level of a traditional arrest
requiring probable cause, his conduct must
be measured in light of the reasonableness
standard established in Terry v. Ohio. A
brief investigative stop of an individual
must be based on specific and articulable
facts as well as inferences from those
facts, viewing the circumstances surrounding
the seizure through the eyes of a reasonable
cautious police officer on the scene, guided
by his experience and training. Law
enforcement officers are required to have
reasonable suspicion, based on objective
facts, that the individual is involved in
criminal activity.
Id. at 169-70, 415 S.E.2d at 785 (citations and quotation marks
omitted).
In order to conduct a warrantless,
investigatory stop, an officer must have
reasonable and articulable suspicion of
criminal activity.
The 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. The only requirement is
a minimal level of objective
justification, something more than
an unparticularized suspicion or
hunch.
The officer’s reasonable suspicion must
arise from his knowledge prior to the time
of the stop.
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State v. Blankenship, ___ N.C. App. ___, ___, 748 S.E.2d 616,
618 (2013) (citations, quotation marks, and brackets omitted).
Defendant argues, based on several different cases which he
contends are on point with this case, that Officer Wells did not
have reasonable suspicion to frisk him. But since the
determination in each case may differ on the subtlest of facts,
and lacking a picture of the moment each defendant was stopped
in these cases as well, we have analyzed the cases identified by
defendant with consideration of both the facts and law, which we
have set out in verbatim fashion in order to emphasis these
differences without unnecessary further commentary. Given the
wealth of binding authority in North Carolina regarding
defendant’s appeal we need not consider the persuasive authority
presented by defendant. Defendant first compares this case to
Fleming wherein
several Greensboro police officers were in
the vicinity of the Ray Warren Homes housing
project. The officers were members of a
tactical division and were operating a drug
suppression program in the project on this
date. Officer J. Williams, a veteran officer
of seventeen years and a member of the
tactical division, described the Ray Warren
Homes project as an area where numerous
arrests for drug violations had been made
and where crack cocaine and other contraband
was sold on a daily basis. At approximately
12:10 a.m., Officer Williams observed
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defendant and another black male standing in
an open area between two apartment buildings
located on Best and Rugby Streets. When
first observed, defendant and his companion
were standing in the open area looking at
the officers located on Best Street.
Officer Williams was out of his vehicle at
the time talking to the other officers.
Officer Williams further testified that the
gentlemen stood there and they watched us
for a few minutes, and then the defendant
and the other young man turned and started
walking towards Rugby Street out of the
area.
When the two young men started walking
the other way, Officer Williams got into his
vehicle and drove around to Rugby Street
where the gentlemen were walking out from
between two buildings. He then observed the
defendant and the other male walking on the
sidewalk along Rugby Street towards him.
Officer Williams told the court he had never
seen either of the two young men in the area
of the housing project. On cross
examination, he admitted he decided to stop
them because he had never seen them.
Officer Williams got out of his vehicle and
asked them to hold it a minute. At this
time, defendant and the other male were
approximately 35 to 40 feet from the
officer. Defendant turned right towards
Best Street, and Officer Williams said, Come
here. Defendant hesitated for approximately
one minute, then both young men complied and
approached the officer.
Officer Williams testified that when
defendant approached he acted real nervous.
Officer Williams asked them to identify
themselves and they both complied; neither
were residents of the Ray Warren Homes
project. When questioned about why he was
in the area, defendant stated a friend had
dropped him off and he was walking through.
When asked if the conversation with
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defendant was before he patted him down,
Officer Williams responded, I was talking to
him as I was patting him down. Officer
Williams felt an object in defendant’s
underwear while he was patting him down.
Officer Williams testified that when he
asked defendant what the object was,
defendant replied crack cocaine. Pursuant
to Officer Williams’ instructions, defendant
subsequently removed the object and placed
it on Officer Williams’ car hood.
Fleming, 106 N.C. App. at 166-67, 415 S.E.2d at 783 (quotation
marks omitted). The defendant made a motion to suppress which
the trial court subsequently denied. Id. at 168, 415 S.E.2d at
784. Defendant appealed. Id. This Court stated in its
analysis,
at the time Officer Williams first observed
defendant and his companion, they were
merely standing in an open area between two
apartment buildings. At this point, they
were just watching the group of officers
standing on the street and talking. The
officer observed no overt act by defendant
at this time nor any contact between
defendant and his companion. Next, the
officer observed the two men walk between
two buildings, out of the open area, toward
Rugby Street and then begin walking down the
public sidewalk in front of the apartments.
These actions were not sufficient to create
a reasonable suspicion that defendant was
involved in criminal conduct, it being
neither unusual nor suspicious that they
chose to walk in a direction which led away
from the group of officers. At this time,
Officer Williams stopped defendant and his
companion and immediately proceeded to ask
them questions while he simultaneously
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patted them down.
We find that the facts in this case are
analogous to those found in Brown. Officer
Williams had only a generalized suspicion
that the defendant was engaged in criminal
activity, based upon the time, place, and
the officer’s knowledge that defendant was
unfamiliar to the area. Should these
factors be found sufficient to justify the
seizure of this defendant, such factors
could obviously justify the seizure of
innocent citizens unfamiliar to the
observing officer, who, late at night,
happen to be seen standing in an open area
of a housing project or walking down a
public sidewalk in a high drug area. This
would not be reasonable.
Considering the facts relied upon by
the officer, together with the rational
inferences which the officer was entitled to
draw therefrom, we conclude they were
inadequate to support the trial court’s
conclusion that Officer Williams had a
reasonable articulable suspicion that
defendant was engaged in criminal activity.
Id. at 170-71, 415 S.E.2d at 785-86 (emphasis added) (quotation
marks omitted). While many of the facts in Fleming are the same
or similar to this case, in Fleming, the defendant did not make
any overt actions, id. at 170, 415 S.E.2d at 785, and here
defendant did when he “used his right hand to grab his waistband
to clinch an item.”
Defendant also directs this Court’s attention to In Re
J.L.B.M., wherein
on patrol at approximately 6:00 p.m. on 6
July 2004, Officer D.H. Henderson (Officer
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Henderson) responded to a police dispatch of
a suspicious person at an Exxon gas station
in Burlington, North Carolina. The only
description given of the person was Hispanic
male. Officer Henderson saw a person in the
gas station parking lot, later identified as
the juvenile, who fit the description of the
person. When the juvenile saw Officer
Henderson, he walked over to a vehicle in
the parking lot, spoke to someone, and then
began walking away from Officer Henderson’s
patrol car. Officer Henderson pulled up
beside the juvenile in an adjoining
restaurant parking lot and stopped the
juvenile. Upon getting out of the patrol
car and speaking with the juvenile, Officer
Henderson noticed a bulge in the juvenile’s
pocket. Officer Henderson patted down the
juvenile for weapons. Officer Henderson
found and seized a dark blue, half-empty
spray can of paint and a box cutter with an
open blade.
176 N.C. App. 613, 615-16, 627 S.E.2d 239, 241 (2006) (quotation
marks omitted). This Court held
that in the present case, like in Fleming,
the stop was unjustified. Officer Henderson
relied solely on the dispatch that there was
a suspicious person at the Exxon gas
station, that the juvenile matched the
Hispanic male description of the suspicious
person, that the juvenile was wearing baggy
clothes, and that the juvenile chose to walk
away from the patrol car. Officer Henderson
was not aware of any graffiti or property
damage before he stopped the juvenile, and
he testified that he noticed the bulge in
the juvenile’s pocket after he stopped the
juvenile.
Id. at 622, 627 S.E.2d at 245 (quotation marks omitted).
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However, unlike in the present case, in In re J.L.B.M., the
defendant was not in an area known for “viol[ent] crimes [and]
gun crimes[;]” the defendant did not change his actions upon
seeing a law enforcement officer, and the defendant took no
actions which made law enforcement believe “defendant was trying
to hide something and . . . made it apparent that he was
concealing something on his person.” Id. at 616, 627 S.E.2d at
241. In In re J.L.B.M., the law enforcement officer did not
even notice the defendant was concealing something until “after
he stopped” him. Id. at 622, 627 S.E.2d at 245. (emphasis
added) Accordingly, In re J.L.B.M., is distinguishable from the
present case.
Defendant also directs our attention to cases where “this
Court has found some physical mannerisms to be a factor
supporting reasonable suspicion, but only in combination with
facts that point to actual criminal activity.” Here, we have
both a high crime area and movements by defendant which Officer
Wells found suspicious. The very location of where defendant
was walking was an area so ridden with crime that it was
patrolled by a Special Response Unit in which Officer Wells
served, which was a part of “a task force made up of US Marshals
and [the] Drug Enforcement Agency” in order to “concentrate[e]
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on viol[ent] crimes [and] gun crimes[.]” Furthermore,
“[o]fficers have been assaulted in the area, Officer Wells has
personally heard shots fired in the area, and “the Kinston
Department of Public Safety enforces a ban list of over 9 pages
of individuals who are banned from public housing.”
Accordingly, these circumstances coupled with defendant’s own
actions are factors in a reasonable suspicion analysis. See
State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522
(1995) (“[A]n officer’s experience and training can create
reasonable suspicion. Defendant’s actions must be viewed through
the officer’s eyes. Our Supreme Court has also noted that the
presence of an individual on a corner specifically known for
drug activity and the scene of multiple recent arrests for
drugs, coupled with evasive actions by defendant are sufficient
to form reasonable suspicion to stop an individual.” (citations
omitted); see generally State v. Butler, 331 N.C. 227, 233-34,
415 S.E.2d 719, 722 (1992) (noting cases where a high crime area
has been a factor in determining reasonable suspicion).
Defendant further contends that “because carrying a
concealed weapon with a valid permit is not illegal in North
Carolina” reasonable suspicion is “undermined” in this case.
Defendant essentially argues that since a person carrying a
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concealed weapon may also have a permit to carry it legally, a
law enforcement officer cannot assume that a person who appears
to have a weapon concealed is doing so illegally. Yet
defendant’s argument is undermined by North Carolina General
Statute § 14-415.11, which addresses exactly what an individual
is required to do if he is legally carrying a concealed weapon
and he is approached by a law enforcement officer:
Any person who has a concealed handgun
permit may carry a concealed handgun unless
otherwise specifically prohibited by law.
The person shall carry the permit together
with valid identification whenever the
person is carrying a concealed handgun,
shall disclose to any law enforcement
officer that the person holds a valid permit
and is carrying a concealed handgun when
approached or addressed by the officer, and
shall display both the permit and the proper
identification upon the request of a law
enforcement officer.
N.C. Gen. Stat. § 14-415.11 (2011). (emphasis added) Thus, a
person who is carrying a concealed weapon legally has an
affirmative obligation to disclose this fact and that he has a
permit to an officer “when approached or addressed by the
officer.” Id.Here, Officer Wells approached defendant and addressed him,
but there is no indication that defendant informed him at any
time that he had any legal right to carry a concealed weapon,
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nor is there any evidence that defendant had a valid concealed
carry permit. The trial court made a finding of fact, which is
not challenged by defendant, “[t]hat the defendant never stated
to the Officer that he was carrying a weapon.” Since North
Carolina General Statute § 14-415.11 requires any person who is
carrying a concealed weapon legally to disclose this fact when
he is “approached” by a law enforcement officer, and defendant
did not make this disclosure, Officer Wells had no reason to
assume that any gun defendant may have tucked into his waistband
was legally carried. See id. In fact, just the opposite would
be true: if defendant was legally carrying a gun, Officer Wells
would expect that he would immediately disclose this information
when he approached defendant and his failure to do so would
raise more suspicion that he was carrying the weapon illegally.
The binding unchallenged findings of fact and those we have
already determined are supported by competent evidence, see
Peters v. Pennington, 210 N.C. App. 1, 13, 707 S.E.2d 724, 733
(2011) (“Unchallenged findings of fact are binding on appeal.”),
support the conclusion that Officer Wells had reasonable
suspicion of criminal activity. Defendant was in a public
housing area that was patrolled by a Special Response Unit and
“a task force made up of US Marshals and [the] Drug Enforcement
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Agency” in order to “concentrat[e] on viol[ent] crimes [and] gun
crimes[.]” Officer Wells was a police officer with ten years of
experience and was assigned to the Special Response Unit where
his responsibilities included patrolling the public housing
area. “[O]fficers have been assaulted” in this area. Many
individuals -- a list of at least nine pages -- are banned from
the public housing area. On a prior occasion Officer Wells had
heard shots fired near the area where he was patrolling on 27
March 2012. On 27 March 2012, Officer Wells saw defendant
“walking normally while swinging his arms.” Defendant turned
and “used his right hand to grab his waistband to clinch an
item” which “was an overt act[ion.]” Officer Wells believed
“defendant was trying to hide something and his posturing made
it apparent that he was concealing something on his person.”
Defendant “look[ed] specifically at” Officer Wells, and
defendant’s reaction created an “urgency to stop” defendant in
Officer Wells in order to identify defendant. Officer Wells
turned his vehicle around, without lights or siren, to stop
defendant in order to ask him questions. Officer Wells did not
draw a weapon or use any type of force with defendant nor did he
handcuff defendant, though he did frisk defendant and found a
gun in defendant’s waistband.
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The State’s arguments were based on several other cases,
but we will not address these as we find Fleming to be more
similar than those presented by the State. In Fleming, as in
this case, the law enforcement officers were experienced
officers involved with a specific law enforcement team assembled
to address a specific crime problem in a specific area.
Fleming, 106 N.C. App. at 166, 415 S.E.2d at 783. In Fleming,
Officer Williams was a seventeen year veteran officer and a
“member[] of a tactical division . . . operating a drug
suppression program” in the vicinity of a housing project where
the defendant was seized; id. at 166-67, 415 S.E.2d at 783,
here, Officer Wells was a ten year veteran officer and “was
assigned to the Special Response Unit . . . assigned to patrol
public housing units . . . along with a task force made up of US
Marshals and [the] Drug Enforcement Agency” in order to
“concentrat[e] on viol[ent] crimes [and] gun crimes[.]” In
Fleming, this Court concluded that Officer Williams did not have
reasonable suspicion to seize the defendant because “at the time
Officer Williams first observed [the] defendant and his
companion, they were merely standing in an open area between two
apartment buildings. At this point, they were just watching the
group of officers standing on the street and talking. The
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officer observed no overt act by defendant[.]” Id. at 170, 415
S.E.2d at 785. This case is different, as Officer Wells saw
defendant “walking normally while swinging his arms[,]” but then
he turned and “used his right hand to grab his waistband to
clinch an item” which “was an overt act[ion.]” Officer Wells
believed “defendant was trying to hide something and his
posturing made it apparent that he was concealing something on
his person.” Defendant “look[ed] specifically at” Officer
Wells, and defendant’s reaction “created some urgency to stop”
defendant in Officer Wells in order to identify defendant.
Here, the trial court specifically found that defendant engaged
in a specific action, “grab[bing] his waistband to clinch an
item[,]” which made Officer Wells believe “defendant was trying
to hide something and his posturing made it apparent that he was
concealing something on his person.” Furthermore, defendant
looked at Officer Wells in such a way that his reaction “created
some urgency” in Officer Wells that defendant needed to be
identified in a high crime area where a list of at least nine
pages of individuals were banned. Accordingly, we conclude that
the findings of fact do support a conclusion of reasonable
suspicion on the part of Officer Wells to stop and frisk
defendant as due to the high crime area, Officer Wells’
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experience and knowledge of the area, and defendant’s behavior,
Officer Wells had a reasonable suspicion both to stop defendant
and frisk him for weapons. See generally State v. Rinck, 303
N.C. 551, 559, 280 S.E.2d 912, 919 (1981) (“If from the totality
of circumstances, a law enforcement officer has reasonable
grounds to believe that criminal activity may be afoot, he may
temporarily detain an individual. If upon detaining the
individual, the officer’s personal observations confirm that
criminal activity may be afoot and suggest that the person
detained may be armed, the officer may frisk him as a matter of
self-protection.” (citations omitted)). As such, the trial
court properly denied defendant’s motion to suppress, and
defendant’s argument is overruled.
VI. Conclusion
For the foregoing reasons, we affirm.
AFFIRMED.
Judges HUNTER, JR., Robert N. and DILLON concur.