State Carolina v. White

712 S.E.2d 921

STATE of North Carolina

v.Maurice Donnell WHITE.

No. COA10–1143.

Court of Appeals of North Carolina.

Aug. 16, 2011.

OPINION TEXT STARTS HERE

Appeal by Defendant from denial of motions to suppress entered 17 April 2009 by Judge Shannon R. Joseph and 1 October 2009 by Judge R. Stuart Albright and judgment entered 12 May 2010 by Judge John O. Craig, III in Moore County Superior Court. Heard in the Court of Appeals 24 March 2011.

Attorney General Roy Cooper, by Assistant Attorney General Jay L. Osborne, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for Defendant-appellant.

HUNTER, JR., ROBERT N., Judge.

Maurice Donnell White (“Defendant”) appeals the denial of his motions to suppress evidence in connection with his warrantless arrest for possession with intent to sell and deliver cocaine, and possession of cocaine. Defendant asserts (1) the trial court erred in finding the police conducted a lawful investigatory stop based on reasonable suspicion of criminal activity, and (2) the trial court erred in denying his motions to suppress evidence obtained from an unlawful investigatory stop in violation of the Fourth Amendment of the United States Constitution and analogous provisions of the North Carolina Constitution. We reverse.

I. Facts & Procedural History

The State's evidence tended to show the following. On the 2:00 p.m. to midnight shift of 15 August 2008, Detective Brian Edwards and Sergeant Jack Austin of the Southern Pines Police Department were on patrol in an unmarked white Dodge Durango. Sometime after dark, the officers received a report from dispatch complaining of loud music near the corner of Coates Street and Shaw Avenue. Although this location is at the center of Brookside Park Apartments, the report did not identify the apartment complex or a specific apartment within it as the source of the music complaint, nor did it identify the person who made the complaint. Additionally, Coates Street intersects Shaw Avenue at two locations, but the report did not specify either intersection as the subject of the loud music complaint.

Detective Edwards testified that he had been to the Brookside Park Apartments on “several occasions throughout the evening” and had made between fifty and one hundred drug arrests there in the past. He also stated he was aware of other arrests made at that location by other officers of his department, and thus he believed it to be a high-crime area.

Responding to the loud music complaint, Detective Edwards saw three or four men, including Defendant, standing near a dumpster near the intersection of Coates and Shaw Streets. The officer did not recognize any of these men, but decided to question them about the loud music. As Detective Edwards turned from Shaw Avenue on to Coates Street, he stopped his vehicle about thirty-five feet from the men and on the opposite side of the dumpster.

The officers were dressed in cargo pants and blue polo shirts with “Police” written in black letters on the back and an embroidered badge on the front left chest. The officers' car was unmarked with no labels, decals, or exterior lights. Detective Edwards testified that as he was exiting the vehicle and turning to close the door, he heard Sergeant Austin yell, “Stop! Police[,]” and he “took off running around the back side of the vehicle.” Detective Edwards then “ran to the opposite side of the Dumpster so [he] could see[,]” and observed Sergeant Austin chasing a black male up Shaw Avenue. Detective Edwards gave pursuit behind Sergeant Austin.

As he pursued Defendant, Detective Edwards shouted for Defendant to stop. After running approximately one hundred and fifty yards, Defendant tripped and fell to the ground. Detective Edwards then “jumped on top of him,” rolled Defendant on his side and handcuffed him. Sergeant Austin then arrived and helped Defendant to his feet. After Defendant stood, Sergeant Austin noticed a small bag on the ground and told Detective Edwards, “There's a bag of crack there next to you.” Detective Edwards visually identified the bag's contents as crack cocaine.

Defendant was charged with (1) possession with intent to sell and deliver cocaine, (2) possession of cocaine, and (3) resisting, delaying, and obstructing a public officer pursuant to N.C. Gen.Stat. § 14–223. On 8 December 2008, a grand jury issued indictments on the first two charges, but did not return an indictment for the charge of resisting, delaying, and obstructing a public officer.

On 15 January 2009, Defendant filed a Motion to Suppress the State's evidence arguing that on the night in question Defendant was not engaging in any activity that would provide reasonable suspicion necessary to justify his seizure. He also argued the police officers' recovery of the substance the State contended to be cocaine was the result of an unlawful seizure. The Motion came on for a hearing on 18 February 2009 in Moore County Superior Court, Judge Shannon R. Joseph presiding.

At the suppression hearing, Detective Edwards testified that before he stopped his car and exited the vehicle, he did not hear any music, and did not see any noise-producing device near the men. When asked by the trial court why he stopped where the men were gathered, he replied, “[w]e were given the call that there was loud music at the corner of Coates and Shaw Avenue.” When asked by the trial court whether there was loud music at this location, he reiterated that he heard no loud noises. After cross-examination, the trial court asked what Detective Edwards saw the men doing as he approached; he replied, “They were congregating in between the apartment and the trash can area.” He did not see any weapons, there was no exchange of hands that would indicate a possible drug transaction, and he was unable to identify any of the men prior to arresting Defendant. Sergeant Austin did not testify at the hearing.

The trial court denied Defendant's Motion to Suppress during the 18 February 2009 hearing (and by Order entered 21 April 2009) and found, inter alia: Defendant's flight from the scene was unprovoked; after Defendant fell and before standing again, Detective Edwards arrested Defendant for resisting, delaying, and obstructing an officer; after Defendant was returned to standing, Detective Edwards and Officer Austin observed a plastic bag of rock cocaine where Defendant had been lying on the ground; and Detective Edwards had personal knowledge that the area at issue is a high-crime area. The trial court concluded that considering the totality of the circumstances the police had reasonable suspicion to believe criminal activity was afoot, and that none of Defendant's state or federal constitutional rights had been violated.

Defendant filed a Supplemental Motion to Suppress the State's evidence on 16 April 2009. In this motion, Defendant argued that the trial court, following the 18 February 2009 suppression hearing, did not rule on whether probable cause existed for Defendant's arrest. Defendant further argued that on the night of his arrest, he was not engaged in any activity that would provide Detective Edwards with probable cause necessary to justify his seizure. Accordingly, Defendant sought to have the trial court suppress the State's evidence derived from Defendant's seizure.

Relying on the transcript from the hearing on Defendant's first motion to suppress, Judge R. Stuart Albright denied the Supplemental Motion in an Order entered 1 October 2009. In this Order, the trial court incorporated the findings of fact from the previous hearing and concluded that Detective Edwards had “reasonable suspicion to justify his stop and detention of the Defendant,” and had “probable cause to charge Defendant with resisting, delaying, or obstructing a public officer.” Defendant filed a notice of intent to appeal the denial of the suppression motions prior to the entry of an Alford guilty plea, on 30 March 2010, to one count of possession with intent to sell and distribute cocaine.

II. Jurisdiction & Standard of Review

Defendant has an appeal of right to this Court pursuant to N.C. Gen.Stat. § 7A–27(b) (2009) and N.C. Gen.Stat. § 15A–979(b) (2009) (“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.”). We review the trial court's order regarding a motion to suppress to determine if competent evidence supports the trial court's findings of fact and whether the findings of fact support its conclusion of law. State v. Edwards, 185 N.C.App. 701, 702, 649 S.E.2d 646, 648 (2007). The trial court's conclusions of law are subject to de novo review. Id.

III. Analysis

Defendant argues the trial court erred in concluding the police had reasonable suspicion to conduct an investigatory stop and in denying his Motion to Suppress the State's evidence obtained pursuant to his unlawful seizure. We agree and reverse the trial court's Orders.

As an initial matter, we note Defendant incorrectly asserts he was seized at the moment Sergeant Austin exited his car and yelled, “Stop! Police[,]” and thereby violated his Fourth Amendment right to be free from unreasonable seizures. While a show of authority is required for a Fourth Amendment seizure to occur, that alone is not sufficient. See California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690, 699 (1991) (explaining that even though an officer's pursuit constituted a show of authority enjoining the defendant to halt, because the defendant did not comply, he was not seized until he was tackled).

“An individual is seized by a police officer and is thus within the protection of the Fourth Amendment when the officer's conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” State v. Icard, 363 N.C. 303, 308, 677 S.E.2d 822, 826 (2009) (quotation marks...