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State Vs Fleming 106 Nc App 165 415 Se2d 782 Nc App 1992

Court of Appeals of North Carolina.
May 5, 1992

Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. H. Alan Pell, Raleigh, for the State.

Robert O’Hale, Asst. Public Defender of the Eighteenth Judicial Dist., Greensboro, for defendant-appellant.
WELLS, Judge.

Defendant argues the trial court erred in denying his motion to suppress. Defendant contends the findings of fact were insufficient to support the trial court’s conclusions of law regarding the reasonableness of the seizure.

In our review of the denial of defendant’s motion to suppress, we must first determine whether there was
competent evidence to support the trial court’s underlying findings of fact.

If the evidence presented was competent, the findings are conclusive and binding on appeal. State v. Cooke, 306 N.C. 132, 291 S.E.2d 618 (1982). We must then determine whether the findings of fact support the trial courts ultimate conclusions of law. Id.

Defendant does not contest whether there was competent evidence to support the findings of the trial court.
Therefore, the findings are conclusive and binding on appeal. State v. Cooke, supra.

The determinative issue before us is whether the findings of fact support the conclusions of law. After hearing
the evidence during the pre-trial hearing, the trial court concluded Officer Williams had articulable grounds for suspicion and therefore had the right to “stop and frisk” the defendant.

Specifically, the trial court concluded that when the officer observed defendant and his companion, (who, based upon Officer Williams’ knowledge, were unfamiliar to the area), in a “high drug area” at twelve o’clock midnight, Officer Williams had articulable grounds to suspect defendant was engaged or had been engaged in criminal conduct and therefore had the right to detain him and search him for weapons.

The trial court further concluded that the evidence was admissible. Defendant contends the evidence presented at the hearing was insufficient for the trial court to conclude Officer Williams had a reasonable articulable suspicion to seize him.

In order to determine if this conclusion of law is supported by the findings, we must examine whether the officer’s actions constituted a seizure, and if so, whether that seizure was legally justified.

A seizure of a person occurs only when (1) an officer has applied actual physical force to the person or, (2) absent physical force, the defendant submits to an officer’s show of authority. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

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, 88 S.Ct. 1868, 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.

The Fourth Amendment to the United States Constitution provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”

U.S. Const. amend. IV. It protects all individuals, those suspected or. known to be offenders as well as the innocent. Go-Batt Importing Co. v, United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931).

This constitutional right of personal security applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969)

Terry, supra, and is applicable to the states through the Fourteenth Amendment. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 [415 S.E.2d 785] (1963); State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970).

The Constitution does not prohibit all searches and seizures; it only protects against unreasonable searches
and seizures. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed,2d 1669 (1960). (Emphasis added.)

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, supra. State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979).

A brief investigative stop of and if so, whether that seizure was legally justified.

A seizure of a person occurs only when
(1) an officer has applied actual physical force to the person or,
(2) absent physical force, the defendant submits to an officer’s show of authority. California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

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, 88 S.Ct. 1868, 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.

The Fourth Amendment to the United States Constitution provides that “[Tjhe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” U.S.

Const. amend. IV. It protects all individuals, those suspected or. known to be offenders as well as the innocent. Go-Batt Importing Co. v, United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931).

This constitutional right of personal security applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969);

Terry, supra, and is applicable to the states through the Fourteenth Amendment. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 [415 S.E.2d 785] (1963); State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970).

The Constitution does not prohibit all searches and seizures; it only protects against unreasonable searches
and seizures. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed,2d 1669 (1960). (Emphasis added.)

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, supra. State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979).

“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.”

State v. Allen, 90 N.C.App. 15, 367 S.E.2d 684 (1988). See also Terry, supra; State v. Thompson, supra. Law enforcement officers are required to have reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Brown v. Texas, 443 U.S. 47, 99 S,Ct. 2637, 61 L.Ed,2d 357 (1979).

Defendant argues that the facts of this case are analogous to those in Brown v. Texas, supra. In Brown, two
police officers observed defendant and another person walking away from one another in an alley. The officers drove into the alley, approached defendant and asked him to identify himself and to explain what he was doing there.

Defendant refused and told the officers they had no right to stop him. One of the officers told defendant he was in a high drug area; the other officer then “frisked” defendant and found nothing. At trial, one officer testified that he had stopped defendant because the situation “looked suspicious and we had never seen that subject in that area before.” Id.

Further, the area where defendant was stopped had a high incidence of drug traffic. The officers never claimed to suspect defendant of any specific misconduct, nor did they have any reason to believe defendant was armed.

The Supreme Court stated that “none of the circumstances preceding the officers’ detention of [defendant]
justified a reasonable suspicion that he was involved in criminal conduct.” Id. There were no facts supporting the officers’ conclusion that the situation in the alley “looked suspicious.”

Id. “The fact that [defendant] was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that [defendant] himself was engaged in criminal conduct.” Id. The Court further concluded that the guarantees of the Fourth Amendment do not allow stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity.

Id. In 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 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 “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 [415 S.E.2d 786] 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 clown 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. Were we to conclude otherwise, we would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches which the Fourth Amendment is specifically designed to protect against. Terry, supra.

As we have determined the initial seizure of defendant was a violation of his Fourth Amendment right against
unreasonable searches and seizures, we next consider the admissibility of the evidence seized thereby. Evidence must be suppressed if its exclusion is required by the protection provided under the United States Constitution. N.C,Gen,Stat, § 15A-974 (1988).

The Fourth Amendment forbids the government from convicting a person of a crime by using evidence
obtained from him by an unreasonable search and seizure. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). See also Davis v. Mississippi, supra, (“illegally seized evidence is inadmissible at trial, however relevant and trustworthy the seized evidence may be as an item of proof.”).

For the foregoing reasons, the evidence obtained by Officer Williams as a result of his unreasonable seizure of defendant is inadmissible.

We are cognizant that there is a significant government interest in eradicating the sale and use of illegal drugs in our society, but we also recognize that, in order to protect our individual liberties, the Fourth Amendment forbids every search that is unreasonable.

As Justice O’Connor wrote in a recent majority opinion, the “court[s] … [are] not empowered to suspend
constitutional guarantees so that the Government may more effectively wage a ‘war on drugs.’ If that war is to be fought, those who fight it must respect the rights of individuals whether or not those individuals are suspected of having committed a crime.” Florida v. Bostick, 501 U,S. 429, 111 S,Ct. 2382, 115 L.Ed.2d 389 (1991).

In conclusion, we hold the trial court erred in denying defendant’s motion to suppress and admitting the
evidence seized from defendant. We therefore reverse the decision of the trial court. This being the only evidence presented by the State in support of defendant’s indictment, we hereby order that defendant’s conviction be vacated.

Since defendant’s first assignment of error is dispositive of this appeal, we decline to address the
constitutionality of the subsequent search of his person for weapons and his other assignment of error.
Judgment vacated.

ARNOLD and EAGLES, JJ., concur.

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