Earlier this month, the court of appeals decided State v. Joe, __ N.C. App. __ (2011) (Stephens, J.). A Winston-Salem officer was patrolling a drug-infested apartment complex at 2:00 in the afternoon. The defendant was standing by the corner of a building in the complex, and when he saw the officer approach in his vehicle, his eyes “got big” and he walked behind the building. The officer followed, and the defendant ran. The officer chased him for several blocks, caught him, and arrested him. The officer found a bag of crack cocaine nearby. The defendant was charged with resisting, delaying, and obstructing the officer; with PWISD cocaine; and with being a habitual felon. He moved to suppress the drugs and to dismiss the R/D/O charge, arguing that his flight from the officer didn’t justify the officer’s decision to arrest him. The trial judge granted the motion, suppressed all evidence from the arrest, and dismissed the R/D/O charge. The state appealed, and the court of appeals affirmed the dismissal of the R/D/O charge. Initially, it agreed with the state that “[t]here is simply no authority in Chapter 15A of the General Statutes that authorizes dismissal pre-trial [based on] the sufficiency of the evidence,” but it said that the state could not rely on that argument because it had acquiesced in the trial judge’s decision to consider the motion to dismiss. On the merits of the dismissal ruling, the court followed State v. Sinclair, 191 N.C. App. 485 (2008), which held that a suspect’s flight from a consensual encounter does not provide probable cause to arrest the suspect for R/D/O. As an aside, Sinclair is one of my favorite cases of all time, because it involves a defendant with the street name of PooSack. If you’ve been involved in a case where the defendant had a nickname that bad, feel free to share it in a comment. Returning to Joe, The court of appeals also construed a somewhat confusing exchange between the prosecutor and the trial judge as being an oral dismissal by the state of the drug and habitual felon charges. Accordingly, it refused to consider the state’s appeal of the suppression issue, because there were no charges remaining in connection with which the suppressed evidence could be introduced: R/D/O was dismissed by the court, and the remaining charges by the state. The lesson for prosecutors is that when a judge grants a motion to suppress, don’t dismiss the charges unless you are sure that you aren’t going to appeal the decision. The defendant probably caught a break in this case, because I doubt that the court would have affirmed the suppression order. Although the defendant was free to avoid or decline a consensual encounter with police, by running away from the officer, he almost certainly provided reasonable suspicion to support an investigative stop. (See my prior post here about running from the police.) The Sinclair case made this distinction when it noted that the “Defendant’s . . . flight may have contributed to a reasonable suspicion that criminal activity was afoot thereby justifying an investigatory stop,” even though it did not amount to R/D/O.
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