In this Forsyth County case, the Court of Appeals considered for a second time defendant’s appeal of his guilty pleas to possession of cocaine, marijuana, and marijuana paraphernalia based upon the trial court’s denial of his motion to suppress. The Court of Appeals affirmed the denial of defendant’s motion to suppress. 

This matter first came before the court in State v. Tabb, 2021-NCCOA-34, 276 N.C. App. 52 (2021) (unpublished), and the facts taken from that decision are presented in pages 2-4 of the slip opinion. The court remanded to the trial court with instructions to consider the sequence of events leading to defendant’s arrest and determine if a show of force and seizure of the driver occurred, where one arresting officer approached the driver’s side of the vehicle while two other officers approached the passenger’s side (where defendant was seated) and noticed marijuana and cash on defendant’s lap. Slip Op. at 4-5. The trial court concluded that the actions of the officers occurred almost simultaneously, and that neither defendant nor the driver would have believed they were seized until defendant was removed from the vehicle. As a result, the trial court concluded the search of defendant was constitutional and again denied his motion to suppress. 

Considering the current matter, the Court of Appeals first noted that defendant failed to raise the argument that the search violated Article 1, § 20 of the North Carolina Constitution in front of the trial court, dismissing this portion of his argument. The court then considered the argument that the officer who approached the driver’s side of the vehicle effected a seizure without proper suspicion, violating the Fourth Amendment. Exploring the applicable precedent, the court explained “[p]olice officers on foot may approach a stationary vehicle with its engine running and its lights turned on in a known area for crimes after midnight to determine if the occupants ‘may need help or mischief might be afoot’ or to seek the identity of the occupants therein or observe any items in plain view without violating our Fourth Amendment jurisprudence.” Id. at 10, citing Brendlin v. California, 551 U.S. 249 (2007), Terry v. Ohio, 392 U.S. 1 (1968), and State v. Turnage, 259 N.C. App. 719 (2018). The court then explained that, even if the driver was seized immediately upon the officer’s “show of force,” the plain view doctrine permitted discovery and admissibility of the marijuana and currency observed by the officers approaching defendant’s side of the vehicle. Slip Op. at 11. The “brief period” between the show of force and the officers recognizing the items on defendant’s lap did not justify granting defendant’s motion to suppress. Id.

The court then turned to defendant’s argument that the officers could not identify the unburnt marijuana as an illegal substance since industrial hemp is legal in North Carolina and is virtually indistinguishable by smell or visual identification. The court disagreed, noting that “there was more present than just the smell or visual identification . . . [t]here was the evidence of drug distribution, the currency beside the marijuana and [d]efendant’s possession of marijuana near his waistband.” Id. at 13-14. Because of the additional evidence to support reasonable suspicion, the court overruled defendant’s argument. 

In this drug case, the trial court erred by denying the defendant’s motion to suppress evidence obtained in a traffic stop. Sometime after 8:40 PM, an officer received a dispatch relating an anonymous report concerning a “suspicious white male,” with a “gold or silver vehicle” in the parking lot, walking around a closed business, Graham Feed & Seed. The officer knew that a business across the street had been broken into in the past and that residential break-ins and vandalism had occurred in the area. When the officer arrived at the location he saw a silver vehicle in the parking lot. The officer parked his vehicle and walked towards the car as it was approaching the parking lot exit. When he shined his flashlight towards the drivers side and saw the defendant, a black male, in the driver’s seat. The defendant did not open his window. When the officer asked the defendant, “What’s up boss man,” the defendant made no acknowledgment and continued exiting the parking lot. The officer considered this behavior a “little odd” and decided to follow the defendant. After catching up to the defendant’s vehicle on the main road, and without observing any traffic violations or furtive movements, the officer initiated a traffic stop. Contraband was found in the subsequent search of the vehicle and the defendant was arrested and charged. The trial court denied the defendant’s motion to suppress the evidence seized as a result of the stop. The defendant was convicted and he appealed. The court determined that the officer’s justification for the stop was nothing more than an inchoate and unparticularized suspicion or hunch. The anonymous tip reported no crime and was only partially correct. Although there was a silver car in the parking lot, the tip also said it could have been gold, and there was no white male in the lot or the vehicle. Additionally, the tip merely described the individual as “suspicious” without any indication as to why, and no information existed as to who the tipster was and what made the tipster reliable. As a result there is nothing inherent in the tip itself to allow a court to deem it reliable and provide reasonable suspicion. Additionally the trial court’s findings of fact concerning the officer’s knowledge about criminal activity refer to the area in general and to no particularized facts. The officer did not say how he was familiar with the area, how he knew that there had been break-ins, or how much vandalism or other crimes had occurred there. Additionally the trial court’s findings stipulated that there was no specific time frame given for when the previous break-ins had occurred. The court rejected the State’s argument that the officer either corroborated the tip or formed reasonable suspicion on his own when he arrived at the parking lot. It noted that factors such as a high-crime area, unusual hour of the day, and the fact that businesses in the vicinity were closed can help to establish reasonable suspicion, but are insufficient given the other circumstances in this case. The State argued that the defendant’s nervous conduct and unprovoked flight supported the officer’s reasonable suspicion. But, the court noted, the trial court did not make either of those findings. The trial court’s findings say nothing about the defendant’s demeanor, other than that he did not acknowledge the officer, nor do they speak to the manner in which he exited the parking lot. The court went on to distinguish cases offered by the State suggesting that reasonable suspicion can be based on a suspect’s suspicious activities in an area known for criminal activity and an unusual hour. The court noted that in those cases the officers were already in the areas in question because they were specifically known and had detailed instances of criminal activity. Here, the officer arrived at the parking lot because of the vague tip about an undescribed white male engaged in undescribed suspicious activity in a generalized area known for residential break-ins and vandalism. The trial court made no findings as to what suspicious activity by the defendant warranted the officer’s suspicion. In fact the officer acknowledged that the defendant was not required to stop when he approached the defendant’s vehicle. The court concluded:

Accordingly, we are unpersuaded by the State’s argument and agree with Defendant that the trial court erred in concluding that Officer Judge had reasonable suspicion to stop him. Though the tip did bring Officer Judge to the Graham Feed & Seed parking lot, where he indeed found a silver car in front of the then-closed business with no one else in its vicinity at 8:40 pm, and although Defendant did not stop for or acknowledge Officer Judge, we do not believe these circumstances, taken in their totality, were sufficient to support reasonable suspicion necessary to allow a lawful traffic stop. When coupled with the facts that (1) Defendant was in a parking lot that did “not have a ‘no trespassing’ sign on its premises”—making it lawful for Defendant to be there; (2) Defendant was not a white male as described in the tip; (3) Defendant’s car was possibly in motion when Officer Judge arrived in the parking lot; (4) Defendant had the constitutional freedom to avoid Officer Judge; and (5) Defendant did not commit any traffic violations or act irrationally prior to getting stopped, there exists insufficient findings that Defendant was committing, or about to commit, any criminal activity.

Concluding otherwise would give undue weight to, not only vague anonymous tips, but broad, simplistic descriptions of areas absent specific and articulable detail surrounding a suspect’s actions.

Reasonable suspicion supported the traffic stop. At the time of the stop it was very late at night; the defendant’s vehicle was idling in front of a closed business; the business and surrounding properties had experienced several break-ins; and the defendant pulled away when the officer approached the car. Considered together, this evidence provides an objective justification for stopping the defendant.

An officer had reasonable suspicion to stop and frisk the defendant when the defendant was in a high crime area and made movements which the officer found suspicious. The defendant was in a public housing area patrolled by a Special Response Unit of U.S. Marshals and the DEA concentrating on violent crimes and gun crimes. The officer in question had 10 years of experience and was assigned to the Special Response Unit. Many persons were banned from the public housing area—in fact the banned list was nine pages long. On a prior occasion the officer heard shots fired near the area. The officer saw the defendant walking normally while swinging his arms. When the defendant turned and “used his right hand to grab his waistband to clinch an item” after looking directly at the officer, the officer believed the defendant was trying to hide something on his person. The officer then stopped the defendant to identify him, frisked him and found a gun in the defendant’s waistband.