IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1183
Filed: 5 July 2016
Guilford County, No. 14 CRS 81446-47
STATE OF NORTH CAROLINA
v.
JAMISON CHRISTOPHER GOINS
Appeal by Defendant from judgment entered 29 May 2015 by Judge Richard
S. Gottleib in Superior Court, Guilford County. Heard in the Court of Appeals 31
March 2016.
Attorney General Roy Cooper, by Assistant Attorney General Shawn R. Evans,
for the State.
Willis Johnson & Nelson PLLC, by Drew Nelson, for Defendant.
McGEE, Chief Judge.
Jamison Christopher Goins (âDefendantâ) was indicted on 8 September 2014
for possession of a firearm by a felon, possession with intent to sell or deliver
marijuana, felony possession of marijuana, and possession of drug paraphernalia.
The charges against Defendant resulted from evidence obtained following a stop of
Defendantâs vehicle, a Hyundai Elantra (âthe Elantraâ), just after midnight on the
morning of 14 July 2014. Officer A.T. Branson (âOfficer Bransonâ) and Officer T.B.
Cole (âOfficer Coleâ) (together, âthe officersâ), of the Greensboro Police Department,
STATE V. GOINS
Opinion of the Court
were patrolling in the vicinity of the Spring Manor Apartment Complex (âthe
apartment complexâ) late on 13 July 2014 and into 14 July 2014. At some time prior
to 14 July 2014, Officer Branson was talking to the manager of the apartment
complex concerning an unrelated matter when the manager stated to him: ââThe
apartment complex is getting bad again,â . . . and she also mentioned that she received
word from residents in the apartment complex that the occupants of Apartment 408
were involved in both the sale and use of illegal narcotics.â âApartment 408â was
actually a building comprised of multiple apartments. Both officers testified the
apartment complex was situated in a high-crime drug area, and Officer Cole referred
to the apartment complex as âbasically an open-air drug market.â
Just after midnight on 14 July 2014, the officers were driving a marked police
car (âthe police carâ) and decided to drive through the parking lot of Spring Valley
Shopping Center (âthe shopping centerâ), which was directly across the street from
the apartment complex. Officer Branson was driving the police car, and he turned
the police car so that its headlights were focused in the direction of the apartment
complex. At the suppression hearing, Officer Cole testified:
Not long after I began looking, we noticed a white Hyundai
Elantra pull into the [apartment] complex and proceed
very slowly through.
I observed no one out in the parking lot, no other vehicles
running. As I made â as I watched the Elantra and it came
around the u-shaped driveway, I noticed an individual
[(âthe manâ)] standing outside building 408. I advised
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Opinion of the Court
Officer Branson to pay attention to [the man] and the
[Elantra].
As [the Elantra] came around the corner and became â or
drove closer to [the man] and that building, 408, I noticed
[the man] turn and look towards our police car, because our
headlights at that point had basically turned to the point
that we were lighting his direction.
He looked at us, looked back at the Elantra, looked at us
again, and then shouted something at the passenger side,
whatever â that was the side facing him â toward the
Elantra. At that point [the man] began to back away and
head back into the apartment complex.
The [Elantra] sped up and pulled out of the parking lot. I
told Officer Branson to stick with the [Elantra], because
you canât get both. After that we decided, based on the
totality of the circumstances and the reasonable suspicion
that we had at that time, that we would go ahead and
conduct a traffic stop on the [Elantra].1
Officer Branson testified he observed the Elantra driving slowly around the
âU-shapedâ drive of the apartment complex parking lot; observed the man standing
outside building 408, illuminated by the headlights of the police car; observed the
man âlook in [the] direction [of the police car] and look back at the . . . Elantra, which
was [by then] almost in front of [the man;]â was informed by Officer Cole that Officer
1 The dissenting opinion cites additional testimony by Officer Cole that the man standing in
front of building 408 âwarned [Defendant] that we were across the street, and they drove out and
left[,]â and that the man âyelled something to them, which caused them to speed up and leave the
complex[.]â It is clear from all the testimony that Officer Cole suspected or believed that the man may
have warned Defendant of police presence. There is not record evidence to support any definitive
statement that the man warned Defendant of police presence, or that Defendant understood any âyellâ
from the man to be a warning of police presence.
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Opinion of the Court
Cole had âheard someone yell[;]â then observed the Elantra increase its speed and
âquicklyâ exit the apartment complex parking lot; and observed the man turn around
and enter apartment building 408. The officers then initiated the stop of the Elantra
based upon a belief that there was reasonable suspicion that the occupants of the
Elantra and the man were about to conduct an illegal drug transaction.2 As a result
of this stop, the officers discovered that Defendant was in possession of a firearm,
marijuana, and drug paraphernalia.
Defendant moved to suppress all evidence obtained as a result of the stop based
upon his argument that there was not reasonable suspicion sufficient to justify the
stop. Defendantâs motion was heard on 13 April 2015, and was denied by order
entered 15 April 2015. Defendant preserved his right to appeal the denial of his
motion to suppress, and entered guilty pleas for the charges of possession of a firearm
by a felon, possession with intent to sell or distribute marijuana, and possession of
drug paraphernalia. The charge of possession of marijuana was dismissed pursuant
to the plea agreement. Defendant was sentenced to a cumulative eighteen to forty
months, the sentences were suspended, and Defendant was placed on supervised
probation. Defendant appeals.
Defendant argues that the trial court erred in denying his motion to suppress
all evidence obtained pursuant to the stop of the Elantra on 14 July 2014. We agree.
2 The officers could not see inside the Elantra, so they did not know how many occupants it
contained, nor could they observe any actions of Defendant, who was in fact the sole occupant.
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Opinion of the Court
Defendant specifically argues the following: (1) the record evidence did not
support the trial courtâs finding that Defendantâs actions constituted âflight,â (2) that
the trial court erred in that there was insufficient evidence of any nexus between the
police presence and Defendantâs action in exiting the parking lot of the apartment
complex â and that there was no evidence, nor finding, that Defendant noticed the
officers across the street, and (3) there was insufficient evidence supporting
reasonable suspicion that criminal activity was afoot.
Our standard of review is as follows:
â[T]he scope of appellate review of [a denial of a motion to
suppress] is strictly limited to determining whether the
trial judgeâs 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 judgeâs ultimate conclusions of law.â A
trial courtâs factual findings are binding on appeal âif there
is evidence to support them, even though the evidence
might sustain findings to the contrary.â We review the
trial courtâs conclusions of law de novo.
State v. Mello, 200 N.C. App. 437, 439,
684 S.E.2d 483, 486 (2009) (citations omitted).
Our Supreme Court has discussed the obligations and prerequisites for making
a vehicle stop consistent with the Fourth Amendment:
The Fourth Amendment protects individuals âagainst
unreasonable searches and seizures.â The North Carolina
Constitution provides similar protection. A traffic stop is a
seizure âeven though the purpose of the stop is limited and
the resulting detention quite brief.â Such stops have âbeen
historically viewed under the investigatory detention
framework first articulated in Terry v. Ohio[.]â Despite
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Opinion of the Court
some initial confusion following the United States Supreme
Courtâs decision in Whren v. United States, . . . courts have
continued to hold that a traffic stop is constitutional if the
officer has a âreasonable, articulable suspicion that
criminal activity is afoot.â
Reasonable suspicion is a âless demanding standard than
probable cause and requires a showing considerably less
than preponderance of the evidence.â Only ââsome minimal
level of objective justificationââ is required. This Court has
determined that the reasonable suspicion standard
requires that â[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.â
Moreover, â[a] court must consider âthe totality of the
circumstancesâthe whole pictureâ in determining whether
a reasonable suspicionâ exists.
State v. Barnard, 362 N.C. 244, 246-47,
658 S.E.2d 643, 645 (2008) (citations omitted).
â[T]he âconstitutionality of a traffic stop depends on the objective facts, not the officerâs
subjective motivation[.]ââ State v. Heien,
366 N.C. 271, 276,
737 S.E.2d 351, 354
(2012) (citations omitted). The trial courtâs determination of whether the totality of
the circumstances supports a reasonable suspicion that the defendant might be
engaged in criminal activity is a conclusion of law subject to de novo review. State v.
Wilson,
155 N.C. App. 89, 93-94,
574 S.E.2d 93, 97 (2002). Furthermore, the trial
courtâs conclusions of law based on the totality of circumstances ââmust be legally
correct, reflecting a correct application of applicable legal principles to the facts
found.ââ State v. Barden,
356 N.C. 316, 332,
572 S.E.2d 108, 121 (2002) (citations
omitted).
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Opinion of the Court
In order to evaluate the trial courtâs conclusion that the stop in the present
case was justified, we begin with the United States Supreme Court opinion Illinois v.
Wardlow, 528 U.S. 119,
145 L. Ed. 2d 570 (2000), which recognized that âflightâ from
police presence can be a factor in support of finding reasonable suspicion:
On September 9, 1995, Officers Nolan and Harvey were
working as uniformed officers in the special operations
section of the Chicago Police Department. The officers
were driving the last car of a four-car caravan converging
on an area known for heavy narcotics trafficking in order
to investigate drug transactions. The officers were
traveling together because they expected to find a crowd of
people in the area, including lookouts and customers.
As the caravan passed 4035 West Van Buren, Officer Nolan
observed respondent Wardlow standing next to the
building holding an opaque bag. Respondent looked in the
direction of the officers and fled. Nolan and Harvey turned
their car southbound, watched him as he ran through the
gangway and an alley, and eventually cornered him on the
street.
Id. at 121-22,
145 L. Ed. 2d at 574-75.
It was in this context that Officer Nolan decided to
investigate Wardlow after observing him flee. An
individualâs presence in an area of expected criminal
activity, standing alone, is not enough to support a
reasonable, particularized suspicion that the person is
committing a crime. But officers are not required to ignore
the relevant characteristics of a location in determining
whether the circumstances are sufficiently suspicious to
warrant further investigation. Accordingly, we have
previously noted the fact that the stop occurred in a âhigh
crime areaâ among the relevant contextual considerations
in a Terry analysis.
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Opinion of the Court
In this case, moreover, it was not merely respondentâs
presence in an area of heavy narcotics trafficking that
aroused the officersâ suspicion, but his unprovoked flight
upon noticing the police. Our cases have also recognized
that nervous, evasive behavior is a pertinent factor in
determining reasonable suspicion. Headlong flightâ
wherever it occursâis the consummate act of evasion: It is
not necessarily indicative of wrongdoing, but it is certainly
suggestive of such. In reviewing the propriety of an
officerâs conduct, courts do not have available empirical
studies dealing with inferences drawn from suspicious
behavior, and we cannot reasonably demand scientific
certainty from judges or law enforcement officers where
none exists. Thus, the determination of reasonable
suspicion must be based on commonsense judgments and
inferences about human behavior. We conclude Officer
Nolan was justified in suspecting that Wardlow was
involved in criminal activity, and, therefore, in
investigating further.
Such a holding is entirely consistent with our decision in
Florida v. Royer, 460 U.S. 491 (1983), where we held that
when an officer, without reasonable suspicion or probable
cause, approaches an individual, the individual has a right
to ignore the police and go about his business. And any
ârefusal to cooperate, without more, does not furnish the
minimal level of objective justification needed for a
detention or seizure.â But unprovoked flight is simply not
a mere refusal to cooperate. Flight, by its very nature, is
not âgoing about oneâs businessâ; in fact, it is just the
opposite. Allowing officers confronted with such flight to
stop the fugitive and investigate further is quite consistent
with the individualâs right to go about his business or to
stay put and remain silent in the face of police questioning.
Id. at 124-25, 145 L. Ed. 2d at 576-77 (citations omitted). In Wardlow, the uniformed
officers involved were part of a four-car caravan entering an area of âheavy narcotics
traffickingâ for the purpose of policing illegal drug activity. The officers anticipated
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Opinion of the Court
there would be large numbers of people in the area and expected âlookoutsâ to be
present, ready to alert those persons of police presence. The officers observed the
defendant standing near a building holding an opaque bag in his hands. When the
defendant noticed the officers, he fled on foot. The United States Supreme Court
discussed this behavior by the defendant as follows: âHeadlong flightâwherever it
occursâis the consummate act of evasion: It is not necessarily indicative of
wrongdoing, but it is certainly suggestive of such.â Id. at 124,
145 L. Ed. 2d at 576.
The Wardlow Court then clarified how this behavior was different than that in earlier
opinions, in which it had made clear that, absent reasonable suspicion to detain a
person, â[t]he person approached . . . need not answer any question put to him; indeed,
he may decline to listen to the questions at all and may go on his way.â Florida v.
Royer,
460 U.S. 491, 497-98,
75 L. Ed. 2d 229, 236 (1983) (citation omitted). Refusing
to stop for the police and âgoing about oneâs businessâ cannot, absent more, justify
detention. However:
Flight, by its very nature, is not âgoing about oneâs
businessâ; in fact, it is just the opposite. Allowing officers
confronted with such flight to stop the fugitive and
investigate further is quite consistent with the individualâs
right to go about his business or to stay put and remain
silent in the face of police questioning.
Wardlow, 528 U.S. at 125,
145 L. Ed. 2d at 577.
In the present matter, the trial court heard the testimonies of the officers.
Officer Branson testified that he based his reasonable suspicion on the following:
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Opinion of the Court
Time of night, prior info given by the manager about
Apartment 408, and knowing that the complex is a high
drug crime area, as well as the business in that
intersection, suspicious travel, nobody entering or exiting
the [Elantra] as it traveled through the apartment
complex, being alerted, that an individual called out as the
[Elantra] was traveling through and once that call was
made by the individual the [Elantra] exited more rapidly
than it began -- or than it was traveling, and then the quick
exit upon that.
Officer Cole testified as follows:
Not long after I began looking, we noticed a white Hyundai
Elantra pull into the complex and proceed very slowly
through. I observed no one out in the parking lot, no other
vehicles running. As I made -- as I watched the Elantra
and it came around the u-shaped driveway, I noticed an
individual standing outside building 408. I advised Officer
Branson to pay attention to that subject and the [Elantra].
As it came around the corner and became -- or drove closer
to that subject and that building, 408, I noticed the subject
turn and look towards our police car, because our
headlights at that point had basically turned to the point
that we were lighting his direction. He looked at us, looked
back at the Elantra, looked at us again, and then shouted
something at the passenger side, whatever -- that was the
side facing him -- toward the Elantra. At that point he
began to back away and head back into the apartment
complex. The [Elantra] sped up and pulled out of the
parking lot. I told Officer Branson to stick with the
[Elantra], because you canât get both. After that we
decided, based on the totality of the circumstances and the
reasonable suspicion that we had at that time, that we
would go ahead and conduct a traffic stop on the [Elantra].
As in Wardlow, the officers in the present case testified that Defendant was in an
area of high crime and drug activity. However, the testimony in Wardlow suggested
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Opinion of the Court
a much more active drug scene than the testimony in the present case. Officer
Branson testified that the manager of the apartment complex had informed him:
âThe apartment is getting bad again,â referring -- Iâm
assuming that she was referring to general activity, but
she made specific mention to building 408 and that she
believes the individuals, through what other residents
have told her, that they are involved in the use and sale of
illegal narcotics.
In Wardlow, the defendant was seen holding an opaque bag, which officers believed
might contain illegal drugs. In the present case, although Defendant was seen
driving in the direction of the apartment building that officers had been told might
be the site of drug transactions, officers did not observe Defendant, nor the man, in
possession of a container typical of the type used to carry illegal drugs.
Defendantâs mere presence in an area known for criminal narcotics activity
could not, standing alone, have provided the reasonable suspicion necessary for the
officers to initiate the stop of the Elantra. As in Wardlow, the outcome in the present
case is determined by the presence or absence of additional circumstances sufficient
to rise to the level of reasonable suspicion. In Wardlow, the defendant fled on foot
after observing uniformed police officers approaching, and the causal link between
the approach of the police and the âunprovoked flightâ of the defendant was easily
drawn. In the present case, that link is not as readily ascertainable. Officers Branson
and Cole both testified they could not see Defendant in his vehicle; they could not
observe Defendantâs behavior or actions, other than by observing the Elantra itself.
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Opinion of the Court
Q. At the point that you were looking at . . . my client
driving around the parking lot there. Did you see him
with any guns or drugs?
A. No, sir. I was across the street.
Q. Okay. Did you see him with any paraphernalia?
A. No, sir.
Q. Okay. Did you see him with any money?
A. This is why I conducted the investigative stop.
Q. Did you see him try to destroy anything?
A. No, sir.
Q. Did you see him try to conceal anything?
A. No, sir. But this all stems back to I canât see inside of
a vehicle from across West Meadowview Road.
Further, there was no evidence to indicate Defendant personally observed the police
car across the street before he left the parking lot of the apartment complex.
Evidence of flight is much clearer in situations such as those in Wardlow,
where a defendantâs actions consisted of running away from police on foot, than is the
evidence in the present matter. Officer Branson testified that Defendantâs driving
âraised [his] suspicion to fleeing upon police presence, although there wasnât like a
running flight or extreme changing from driving slowly through the [apartment]
complex to speeding up as our police vehicle was observed.â (Emphasis added).
Defendant did not break any traffic laws in his exit from the apartment complex; the
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Opinion of the Court
stop of the Elantra was based solely on the officersâ suspicion that Defendant had
been driving through the apartment complex in order to make a drug-related
transaction. As this Court has stated in Mello,
merely leaving a drug-ridden area in a normal manner is
not sufficient to justify an investigatory detention. See In
re J.L.B.M., 176 N.C. App. 613, 619â22,
627 S.E.2d 239,
243â45 (2006) (holding that information that a suspicious
person wearing baggy clothes had been seen in a drug-ridden area and that he walked away upon the approach of
law enforcement officers did not suffice to support an
investigatory detention); State v. Roberts, 142 N.C. App.
424, 430, n. 2,
542 S.E.2d 703, 708, n. 2 (2001) (stating that
âevidence that Defendant walked away from [a police
officer] after he asked Defendant to stop is not evidence
that Defendant was attempting to flee from [the police
officer] and, thus, indicates nothing more than Defendantâs
refusal to cooperateâ); State v. Rhyne, 124 N.C. App. 84, 89â
91, 478 S.E.2d 789, 791â93 (1996) (holding that an officer
lacked reasonable suspicion to frisk a defendant who was
sitting in an area known to be a center of drug activity
without taking evasive action or otherwise engaging in
suspicious conduct); State v. Fleming, 106 N.C. App. 165,
170â71, 415 S.E.2d 782, 785 (1992) (holding that the fact
that defendant was standing in an open area between two
apartment buildings and walked away upon the approach
of law enforcement officers did not justify an investigatory
detention).
Mello, 200 N.C. App. at 449-50,
684 S.E.2d at 492.
In Mello, this Court held that the challenged stop was proper based upon the
following facts:
At approximately 10:30 a.m. on 26 August 2006, Officer
Pritchard was patrolling the area of Chandler and Amanda
Place when he observed a vehicle driven by Defendant stop
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Opinion of the Court
about fifteen to twenty yards away. At that time, Officer
Pritchard watched âtwo other individuals approach the
vehicle putting their hands into the vehicle;â however, he
did not see any exchange or transfer of money. Officer
Pritchard had not previously seen Defendant, but he
recognized the two men standing outside the vehicle. He
did not, however, know their names or whether he had
previously arrested them. Officer Pritchard characterized
the area of Chandler and Amanda Place as âa very wellknown drug locationâ where he had previously made drug-related arrests.
Based on his observation of the interaction between
Defendant and the two individuals who approached his
vehicle, Officer Pritchard suspected that he had witnessed
a âdrug transaction,â something he had seen on numerous
prior occasions. After seeing the episode at Defendantâs
automobile, Officer Pritchard drove a short distance before
turning around. At that point, the two individuals fled the
area, with one of them quickly entering a house. In
addition, Defendant started driving away from the area in
the opposite direction from that in which Officer Pritchard
was traveling. According to Officer Pritchard, Defendant
did not commit any traffic offense as he attempted to drive
away. Officer Pritchard turned around again and stopped
Defendantâs vehicle.
Id. at 438,
684 S.E.2d at 485. The Mello Court reasoned:
The fact that the two pedestrians fled in the immediate
aftermath of an interaction with Defendant that could be
reasonably construed as a hand-to-hand drug transaction
which took place in âa well[-]known drug location with high
drug activityâ would clearly have raised a reasonable
suspicion in the mind of a competent and experienced law
enforcement officer that further investigation was
warranted; the fact that Defendant did not drive away at a
high rate of speed or take some other obvious evasive action
himself does not change that fact. The federal and state
constitutions do not, under existing decisional authority,
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Opinion of the Court
require more in order for a valid investigatory detention to
take place.
Id. at 450-51,
684 S.E.2d at 492-93. These factors are similar to those relied upon in
Wardlow â except that the flight from the police was by the defendant in Wardlow,
whereas in Mello the flight was by the individuals who were conducting the
suspicious activity with the defendant.
By contrast, in the present case, the officers suspected that Defendant might
be approaching the man outside building 408 to conduct a drug transaction, but
unlike in Mello, Defendant and the man were not observed conducting any suspicious
activity together. The man standing outside building 408 did not approach the
Elantra and did not reach his hand inside the Elantra. Although Officer Cole testified
he suspected the man saw the police car and then yelled a warning to Defendant, the
man and Defendant were never in close contact with each other. As with the
defendant in Mello, Defendant in the present case drove away from the scene in a
lawful manner. However, unlike in Mello, the man standing near the Elantra did not
flee upon seeing the police â he simply turned around and walked into the apartment
building. The manner in which Defendant left the parking lot of the apartment
complex cannot be reasonably described as âheadlong flight.â In Wardlow, Mello, and
other cases in which âflightâ has been used to render legal a stop that would have
otherwise been illegal, the officers readily observed actual flight, and based their
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Opinion of the Court
reasonable suspicion of criminal activity upon a totality of circumstances which
included actual observed flight.
The dissenting opinion objects to our distinction between âactual flightâ and
âsuspected flight.â We simply make a distinction between evidence sufficient to
support a finding that a defendant was attempting to evade police contact and
evidence that can only support a suspicion or conjecture that a defendant was
attempting to evade police contact. Suspicion or conjecture that a defendant might
have been attempting to flee police presence, absent additional suspicious
circumstances, is insufficient to support reasonable suspicion that someone leaving a
known drug area was engaged in criminal activity. See, e.g., In re J.L.B.M., 176 N.C.
App. 613, 621-22,
627 S.E.2d 239, 245 (2006); State v. Fleming,
106 N.C. App. 165,
170-71,
415 S.E.2d 782, 785 (1992). In each of the cases cited in the dissenting opinion
there were additional elements involved, which served to raise what could have been
categorized as a mere suspicion of alleged flight to a reasonable inference that flight
had actually occurred. State v. Jackson,
368 N.C. 75, 80,
772 S.E.2d 847, 850 (2015)
(emphasis added) (âIn making this determination, we are mindful of the dangers
identified by defendant in his brief and at oral argument of making the simple act of
walking in oneâs own neighborhood a possible indication of criminal activity. Here,
defendant was walking in, and âthe stop occurred in[,] a âhigh crime areaâ [which is]
among the relevant contextual considerations in a Terry analysis.â However, we do
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Opinion of the Court
not hold that those circumstances, standing alone, suffice to establish the existence
of reasonable suspicion. Here, in contrast, the trial court based its conclusion on more
than defendantâs presence in a high crime and high drug area. The findings of fact
show defendant stood at 9:00 p.m. in a specific location known for hand-to-hand drug
transactions that had been the site of many narcotics investigations; defendant and
Benton split up and walked in opposite directions upon seeing a marked police vehicle
approach; they came back very near to the same location once the patrol car passed;
and they walked apart a second time upon seeing Officer Brownâs return.3 We
conclude that these facts go beyond an inchoate suspicion or hunch[.]â); State v.
Butler, 331 N.C. 227, 233,
415 S.E.2d 719, 722 (1992) (emphasis added) (â1) defendant
was seen in the midst of a group of people congregated on a corner known as a âdrug
holeâ; 2) Hedges had had the corner under daily surveillance for several months; 3)
Hedges knew this corner to be a center of drug activity because he had made four to
six drug-related arrests there in the past six months; 4) Hedges was aware of other
arrests there as well; 5) defendant was a stranger to the officers [who had been
surveilling this corner for months]; 6) upon making eye contact with the uniformed
3 In Jackson, the defendant and his companion twice split up and walked away from a known
high drug transaction location upon seeing the police car approaching. The evidence that the
defendant in Jackson was engaging in evasive behavior was much stronger than the evidence
presently before us.
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Opinion of the Court
officers, defendant immediately moved away,4 behavior that is evidence of flight[.]â);
State v. Willis, 125 N.C. App. 537, 542,
481 S.E.2d 407, 411 (1997) (emphasis added)
(âDefendant left a suspected drug house just before the search warrant was executed.
Defendant set out on foot and took evasive action when he knew he was being followed.
And, at the suppression hearing, Detective Sholar testified that defendant had
exhibited nervous behavior.â). Each of these cases presents additional indicia of
potential criminal activity and flight absent from the case presently before us.
Further, there must be some nexus between a suspectâs âflightâ and the
presence of the police, and that âflightâ must reasonably demonstrate âevasive
action.â State v. White, 214 N.C. App. 471, 479-80,
712 S.E.2d 921, 928 (2011); see
also J.L.B.M.,
176 N.C. App. at 622,
627 S.E.2d at 245 (holding there was no
reasonable suspicion where an officer ârelied solely on the dispatch that there was a
suspicious person at the Exxon gas station, that the juvenile matched the âHispanic
maleâ description of the suspicious person, that the juvenile was wearing baggy
clothes, and that the juvenile chose to walk away from the patrol carâ); Fleming,
106
N.C. App. at 170-71,
415 S.E.2d at 785 (âIn the case now before us, 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
4 In Butler, there was direct evidence of cause and effect between the defendant noticing the
officers and his immediate decision to move away from the officers. Further, there was additional nonflight evidence supporting a finding of reasonable suspicion. In the present case, there is only
conjecture that Defendant might have seen the police car across the street.
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Opinion of the Court
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.â); cf., State v. Jackson, 368 N.C. 75, 80,
772 S.E.2d 847,
850-51 (2015) (citation omitted) (Supreme Court reversed this Courtâs determination
that no reasonable suspicion existed because âthe trial court based its conclusion on
more than defendantâs presence in a high crime and high drug area. The findings of
fact show defendant stood at 9:00 p.m. in a specific location known for hand-to-hand
drug transactions that had been the site of many narcotics investigations; defendant
and Benton split up and walked in opposite directions upon seeing a marked police
vehicle approach; they came back very near to the same location once the patrol car
passed; and they walked apart a second time upon seeing Officer Brownâs return. We
conclude that these facts go beyond an inchoate suspicion or hunch and provide a
âparticularized and objective basis for suspecting [defendant] of [involvement in]
criminal activity.ââ).
- 19 -
STATE V. GOINS
Opinion of the Court
In the present case, the officers observed activity which made them suspect
that Defendantâs actions in leaving the apartment complex might constitute flight,
and then this suspicion of flight was used in turn to support the suspicion that
criminal activity was afoot. We hold that the record evidence does not support the
trial courtâs finding that Defendant âfledâ from the officers. We further hold, on these
facts, that the suspicion of flight from an area of known illegal narcotics activity, in
the form of accelerating the Elantra in a lawful manner and driving away from the
apartment complex, without more, did not justify the stop of the Elantra and the
detention of Defendant. Contrary to the assertion in the dissenting opinion, our
holding is not based solely upon the insufficiency of the evidence to support the trial
courtâs finding of âflight,â but upon the totality of the circumstances in this case. The
circumstances in the present case do not include the kind of additional suspicious
activity required to form a reasonable suspicion â unlike the circumstances present
in Wardlow, Jackson, Butler, Willis, and similar opinions. We reverse the trial courtâs
denial of Defendantâs motion to suppress and remand to the trial court for further
action consistent with this opinion.
REVERSED AND REMANDED.
Judge INMAN concurs.
Judge TYSON dissents with separate opinion.
- 20 -
No. COA15-1183 â State v. Goins
TYSON, Judge, dissenting.
These experienced officers had reasonable, articulable, and objective suspicion
to initiate a lawful investigatory stop of Defendantâs vehicle, based upon the totality
of the circumstances. The trial judgeâs underlying findings of fact are supported by
competent evidence, and are conclusively binding on appeal. These findings support
the trial judgeâs ultimate conclusions of law to deny Defendantâs motion to suppress.
The majorityâs conclusion to reverse the trial courtâs order is unduly focused
upon their characterization of Defendantâs flight, while disregarding the âtotality of
the circumstances.â Their conclusion ignores or minimizes all the surrounding
factors, and is contrary to controlling decisions of the Supreme Court of the United
States, the Supreme Court of North Carolina, and this Court. See United States v.
Cortez, 449 U.S. 411, 417,
66 L. Ed. 2d 621, 629 (1981). I respectfully dissent.
I. Standard of Review
[T]he scope of appellate review of [a denial of a motion to
suppress] is strictly limited to determining whether the
trial judgeâs 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 judgeâs ultimate conclusions of law.
State v. Cooke, 306 N.C. 132, 134,
291 S.E.2d 618, 619 (1982) (citations omitted).
A trial courtâs findings of fact are binding on appeal âif there is evidence to
support them, even though the evidence might sustain findings to the contrary.â
STATE V. GOINS
TYSON, J., dissenting
Adams v. Tessener, 354 N.C. 57, 63,
550 S.E.2d 499, 503 (2001) (emphasis supplied)
(citations and quotation marks omitted).
II. Analysis
âAn investigatory stop must be justified by âa reasonable suspicion, based on
objective facts, that the individual is involved in criminal activity.ââ State v. Watkins,
337 N.C. 437, 441,
446 S.E.2d 67, 70 (1994) (quoting Brown v. Texas,
443 U.S. 47, 51,
61 L. Ed. 2d 357, 362 (1979)). A court must consider âthe totality of the
circumstancesâthe whole pictureâ to determine whether reasonable suspicion to
make an investigatory stop exists. Cortez,
449 U.S. at 417,
66 L. Ed. 2d at 629.
An investigatory stop is reviewed for âspecific 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.â State v. Mello, 200 N.C. App.
437, 443-44,
684 S.E.2d 483, 488 (2009) (citing Terry v. Ohio,
392 U.S. 1, 21-22,
20 L.
Ed. 2d 889, 906 (1968)). âThe only requirement is a minimal level of objective
justification, something more than an âunparticularized suspicion or hunch.ââ Mello,
200 N.C. App. at 444,
684 S.E.2d at 488 (quoting United States v. Sokolow,
490 U.S.
1, 7,
104 L. Ed. 2d 1, 10 (1989)).
The Supreme Court of the United States has held an individualâs mere
presence in a neighborhood frequented by drug users is an insufficient basis, standing
alone, for concluding a defendant himself is engaged in criminal activity. Brown, 443
2
STATE V. GOINS
TYSON, J., dissenting
U.S. at 52, 61 L. Ed. 2d at 362-63. However, an individualâs flight from uniformed
law enforcement officers is an additional factual circumstance, within âthe totality of
the circumstancesâ which may be used to support a reasonable suspicion of criminal
activity. See State v. Butler,
331 N.C. 227, 234,
415 S.E.2d 719, 722-23 (1992) (holding
defendantâs presence on specific corner known for drug activity, coupled with fact that
âdefendant immediately moved awayâ upon making eye contact with officers, was
sufficient suspicion for officers to make a lawful stop).
At Defendantâs suppression hearing, Officer Cole testified he observed a
vehicle enter the Spring Manor apartment complex. Officer Cole stated: âThe car
proceeded through the parking lot slowly, never stopping, though, at any particular
building. Once I noticed the individual standing outside of [building] 408, it appeared
that he was waiting on that vehicle.â No other individuals were outside of building
408, the immediate area or in the parking lot at that time after midnight.
Officer Cole continued to testify: âAs that car came around the corner, thatâs
when [the individual standing outside] noticed us and looked at the vehicle. When
the vehicle made the turn he yelled something to them, which caused them to speed
up and leave the complex, and he backed up and went back into the apartment.â
Officer Cole testified he believed âthat car was coming to visit that individual
standing outside 408â and intended âto either purchase or sell illegal drugs.â The
individual outside of building 408 âwarned [Defendant] that [the officers] were across
3
STATE V. GOINS
TYSON, J., dissenting
the street, and they drove out and left and [the individual standing outside] went
back into his apartment.â These articulated and reasonable suspicions are an
unbroken chain of events and were based on Officer Coleâs training and experience.
Officer Cole testified to âseven-plus years as an experienced Greensboro police officerâ
and had prior knowledge of illegal narcotics being sold out of apartment building 408.
Officer Branson also testified he was aware of illegal activities taking place in
the Spring Manor apartment complex, prior to the date in question. Officer Branson
testified the apartment complex manager reported other residents had specifically
mentioned individuals in building 408 were involved in the use and sale of illegal
narcotics.
Officer Branson testified he observed âthe individual [outside of building 408]
yelling and then looking back at [Defendantâs] vehicle, and at that point [Defendant]
increased his speed and exited the parking lot much more rapidly than he was
traveling initially.â After the yell, he saw the unbroken sequence of the vehicle
âchang[e] from driving slowly through the complex to speeding up as our police vehicle
was observed.â The person who had yelled, âbacked up and went back into the
apartment [408].â Officer Branson testified this behavior âraised [his] suspicion to
fleeing upon police presence.â From the time of the event until the stop, the officers
never lost sight of the vehicle with Defendant inside.
4
STATE V. GOINS
TYSON, J., dissenting
Based on these officersâ testimonies, the trial court made the following
pertinent findings of fact:
5) . . . Officers Branson and Cole were in a highly visible,
marked, Greensboro Police Department patrol vehicle and
located in the Spring Valley Shopping Center parking lot
area, directly across the street from the Spring Manor
apartment complex.
6) Prior to 14 July 2014, Officer Cole had made numerous
illegal drug arrests in the Spring Manor apartment
complex and in the immediate area of the Spring Manor
apartment complex.
7) As of 14 July 2014, Officer Cole knew that the Spring
Manor apartment complex and its immediate surrounding
area was an âopen air drug market.â
8) Prior to 14 July 2014, the manager of the Spring Manor
apartment complex informed Officer Branson that the
Spring Manor apartments were getting worse, and
specifically identified apartment [building] 408 as a place
for using illegal drugs and for the sale and distribution of
illegal drugs.
9) Prior to 14 July 2014, Officer Branson was aware of
numerous crimes that had been committed in the Spring
Manor apartment complex.
10) As of 14 July 2014, Officers Branson and Cole knew
that the Spring Manor apartment complex was in a high
drug and crime-ridden area.
....
12) On Monday morning at approximately 12:15 a.m. on
14 July 2014, Officers Branson and Cole observed a white,
Hyundai Elantra (âElantraâ), enter the Spring Manor
5
STATE V. GOINS
TYSON, J., dissenting
apartment complex parking lot, circling the parking lot at
a very slow rate of speed.
13) Officers Branson and Cole observed that the Elantra
never pulled into any parking space or stopped anywhere
but instead drove at a very slow rate of speed toward the
area of Spring Manor apartment [building] 408.
14) Almost simultaneously to observing the Elantra as set
forth above, Officers Branson and Cole observed a male
directly in front of Spring Manor apartment [building] 408.
15) Thereafter, Officers Branson and Cole observed said
male directly in front of Spring Manor apartment
[building] 408 look directly at their highly visible, marked,
Greensboro Police Department patrol vehicle that was in
plain view and only a short distance away from said male.
16) Officers Branson and Cole next observed said male,
after identifying their Greensboro Police Department
patrol vehicle as set forth above, look directly at the
Elantra, which was by then only a short distance away
from said male, and make a loud warning noise, which was
heard by Officer Cole.
17) Immediately after making said warning noise as set
forth above, Officers Branson and Cole observed the
Elantra accelerate and quickly exit the Spring Manor
apartment complex and flee the area unprovoked, and flee
from Officers Branson and Cole unprovoked.
Based on these findings of fact, the trial court concluded:
1) Based on the totality of the circumstances, the State has
proven by a preponderance of the credible and believable
evidence that the investigatory stop of the Elantra driven
by Defendant in this case was 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.
6
STATE V. GOINS
TYSON, J., dissenting
2) Based on the totality of the circumstances, . . . the
investigatory stop of the Elantra driven by Defendant was
legal and valid, and that Officers Branson and Cole had a
reasonable and articulable suspicion for making the
investigatory stop of said Elantra.
3) Based on the totality of the circumstances, . . . Officers
Branson and Cole had a reasonable suspicion supported by
articulable facts that criminal activity may be afoot.
Considering these undisputed facts and the officersâ testimonies at Defendantâs
suppression hearing, the trial courtâs findings of fact, particularly that the officers
âobserved [Defendant] accelerate and quickly exit the Spring Manor apartment
complex and flee the area,â are amply supported by competent record evidence. These
findings of fact in turn support the trial courtâs conclusion of law that the officers had
âa reasonable suspicion . . . that criminal activity may be afootâ to justify their
investigative stop of Defendantâs vehicle. Mello, 200 N.C. App. at 439,
684 S.E.2d at
486.
The majorityâs protestations to the contrary, their reversal of the trial courtâs
ruling apparently turns on a notion of, and fictional distinction between, âsuspectedâ
versus âactualâ flight and not from the âtotality of the circumstances.â No precedents
lend support to this contrived distinction. See State v. Jackson, 368 N.C. 75, 80,
772
S.E.2d 847, 850 (2015) (holding reasonable suspicion justified investigatory stop
where defendant stood âin a specific location known for hand-to-hand drug
transactionsâ and defendant and another âsplit up and walked in opposite directions
upon seeing a marked police vehicle approach); Butler,
331 N.C. at 234,
415 S.E.2d
7
STATE V. GOINS
TYSON, J., dissenting
at 722-23 (holding defendantâs presence in neighborhood frequented by drug users,
coupled with him immediately leaving the corner and walking away after making eye
contact with officers, constituted reasonable suspicion to conduct investigatory stop);
In re I.R.T., 184 N.C. App. 579, 585-86,
647 S.E.2d 129, 134-35 (2007) (holding officer
had reasonable grounds to conduct investigatory stop where juvenile in known high
drug area began walking away as officer approached him, while keeping his head
turned away from officer); State v. Willis,
125 N.C. App. 537, 542,
481 S.E.2d 407, 411
(1997) (holding officers had reasonable suspicion to conduct investigatory stop of
defendant where he was seen leaving a suspected drug house and officers observed
him âexhibit[ing] nervous behaviorâ when he knew he was being followed). Whether
Defendantâs speed exceeded the posted speed limit or violated some other motor
vehicle law is not determinative of Defendantâs flight from the known drug area.
Considering the past history of drug activity and arrests at the Spring Manor
Apartments, the time, place, manner, the unbroken sequence of observed events,
Defendantâs actions upon being warned and the âtotality of the circumstances,â the
officersâ testimonies and the trial courtâs findings of fact âgo beyond an inchoate
suspicion or hunch and provide a particularized and objective basis for suspecting
defendant of involvement in criminal activity.â Jackson, 368 N.C. at 80, 772 S.E.2d
at 850-51 (citation and internal quotation marks omitted). The trial court correctly
found and concluded the officers had a reasonable and articulable suspicion, based
8
STATE V. GOINS
TYSON, J., dissenting
upon the totality of the circumstances, to conduct a lawful investigatory stop of
Defendantâs vehicle. The trial court did not err by denying Defendantâs motion to
suppress evidence recovered as a result of the lawful investigatory stop.
III. Conclusion
The trial courtâs findings of fact are supported by competent testimonial and
record evidence. These findings of fact are âconclusively binding on appeal[.]â Cooke,
306 N.C. at 134,
291 S.E.2d at 619. These findings of fact in turn support the trial
courtâs ultimate conclusions citing the âtotality of the circumstancesâ that the officers
had reasonable suspicion to conduct a lawful investigatory stop of Defendantâs
vehicle. The trial courtâs findings of fact are binding upon this Court on appeal where
âthere is evidence to support them, even though the evidence might sustain findings
to the contrary.â Adams,
354 N.C. at 63,
550 S.E.2d at 503.
I vote to affirm the trial courtâs denial of Defendantâs motion to suppress and
find no error in Defendantâs convictions or the judgment entered thereon. I
respectfully dissent.
9
