In re J.L.B.M., COA05-500.

• Citation: 627 S.E.2d 239
• Decision Date: 21 March 2006
• Docket Number: No. COA05-500.,COA05-500.
• Court: Court of Appeal of North Carolina (US)
• Parties: In the Matter of J.L.B.M., Juvenile.

627 S.E.2d 239

In the Matter of J.L.B.M., Juvenile.

No. COA05-500.

Court of Appeals of North Carolina.

March 21, 2006.

COPYRIGHT MATERIAL OMITTED

Appeal by juvenile from orders entered 2 September 2004 and 20 September 2004 by Judge Bradley R. Allen, Sr. in District Court, Alamance County. Heard in the Court of Appeals 23 January 2006.

Attorney General Roy Cooper, by Assistant Attorney General June S. Ferrell, for the State.

Anne Bleyman, Chapel Hill, for juvenile-appellant.

McGEE, Judge.

J.L.B.M., a juvenile, appeals from orders adjudicating him delinquent, committing him to the Department of Juvenile Justice and Delinquency Prevention for an indefinite period of time, and denying his release from custody pending appeal. For the reasons set forth below, we (1) affirm the adjudication order in part, reverse in part, and remand in part for further findings; and (2) we vacate and remand the commitment order and the order denying release of the juvenile.

Juvenile petitions were filed on 14 July 2004 alleging that J.L.B.M. (the juvenile) was delinquent in that he committed the following acts: (1) set fire to, burned, or caused to be burned a government building in violation of N.C. Gen.Stat. § 14-59; (2) damaged real property in violation of N.C. Gen.Stat. § 14-127; (3) resisted, delayed, and obstructed an officer in violation of N.C. Gen.Stat. § 14-223; and (4) carried a concealed weapon in violation of N.C. Gen.Stat. § 14-269(a1).

Evidence at the hearing tended to show the following: While on patrol at approximately 6:00 p.m. on 6 July 2004, Officer D.H. Henderson (Officer Henderson) responded to a police dispatch of a "suspicious person" at an Exxon gas station in Burlington, North Carolina. The only description given of the person was "Hispanic male." Officer Henderson saw a person in the gas station parking lot, later identified as the juvenile, who fit the description of the person. When the juvenile saw Officer Henderson, he walked over to a vehicle in the parking lot, spoke to someone, and then began walking away from Officer Henderson's patrol car. Officer Henderson pulled up beside the juvenile in an adjoining restaurant parking lot and stopped the juvenile. Upon getting out of the patrol car and speaking with the juvenile, Officer Henderson noticed a bulge in the juvenile's pocket. Officer Henderson patted down the juvenile for weapons. Officer Henderson found and seized a dark blue, half-empty spray can of paint and a box cutter with an open blade. In response to being asked his name, the juvenile replied, "Oscar Lopez."

Officer Henderson transported the juvenile to a nearby shopping center where graffiti had recently been sprayed. Officer Henderson testified that the graffiti, which was blue, read: "Sir 13, Mr. Puppet 213." Officer Henderson testified that the juvenile initially said that "Mr. Puppet" had done the graffiti, and that the juvenile later identified himself as "Mr. Puppet."

Officer Henderson drove the juvenile to the police station, again patted him down, and found fireworks in the juvenile's pocket. Officer Henderson let the juvenile keep the fireworks. The juvenile was placed in an interview room, where several officers questioned him about his name. The juvenile continued to give the name "Oscar Lopez." Officer Wendy P. Jordan (Officer Jordan) recognized the juvenile's face and called him by his real name, "J____." The juvenile replied, "[M]y name is J____ L____ mother f____ M____. You found me out."

The juvenile was eventually left alone in the interview room with the door ajar. Officer R.V. Marsh (Officer Marsh) testified that he noticed the room "got real quiet," and he looked into the room. Officer Marsh saw the juvenile trying to light something with a lighter, then saw a two to three-foot flame come out of the floor and up the wall. Officer Jordan testified that she saw sparks flying. The fireworks left black soot on the floor and wall.

The juvenile presented no evidence. At the close of the hearing, the juvenile made a motion to dismiss, which was denied by the trial court. The trial court adjudicated the juvenile delinquent and entered a disposition committing the juvenile to a period of indefinite commitment. The juvenile appeals.

The juvenile argues more than a dozen assignments of error on appeal, which we will discuss as four issues: whether the trial court erred by (I) denying the juvenile's motion to suppress evidence obtained during a search of the juvenile; (II) denying the juvenile's motion to dismiss each allegation; (III) failing to include a maximum term of commitment in the written order of commitment; and (IV) failing to state in writing the compelling reasons for denying the juvenile's release pending appeal.

We note that at the same time as the trial court entered its disposition order on the four offenses discussed herein, it revoked the juvenile's probation for three prior offenses. Arguably, the juvenile assigned error to this order, but failed to argue it in his brief. As such, it is deemed abandoned. N.C.R.App. P. 28(b)(6).

I.

The juvenile first argues the trial court erred in denying his motion to suppress evidence obtained after the juvenile was stopped and searched by Officer Henderson. The juvenile contends there were insufficient grounds for stopping the juvenile, and therefore any evidence obtained as a result of the stop was inadmissible and should have been suppressed.

A trial court's findings of fact made after a suppression hearing are binding on the appellate courts if supported by competent evidence. State v. Brooks, 337 N.C. 132, 140, 446 S.E.2d 579, 585 (1994). A trial court's conclusions of law are reviewed de novo on appeal. State v. Kincaid, 147 N.C.App. 94, 97, 555 S.E.2d 294, 297 (2001).

In the present case, the trial court made the following relevant findings of fact:

that on or about July 6, 2004 ... Officer Henderson, a 27 year veteran of the Burlington Police Dept. had received a call of a suspicious activity at Coy's Exxon on the corner of Graham-Hopedale Rd. and N. Church St. That location has had numerous calls for shoplifting[,] fights[,] and other activity. Also there is numerous gang and graffiti activity at that end of town. The call was for a suspicious person being a Hispanic male. The officer went specifically to that location and the juvenile matches the description of being a Hispanic male[,] and[,] according to the officer's testimony, he was wearing gang attire, large baggy clothes.

We uphold the trial court's findings, with the exception of the finding that the dispatch call was about "suspicious activity," because Officer Henderson testified that the dispatch was about a "suspicious person" at the Exxon gas station. Officer Henderson testified as follows:

A[T]he [dispatch] call was a suspicious person at the [Exxon] station at the corner of Graham-Hopedale and Church Street.

. . . .

Q What time of the day or night was that?

A It was right before 6 o'clock p.m.

....

A ... I saw a person fitting [the] description in the parking lot at Coy's. When he saw me, he walked over to a vehicle in the parking lot, spoke to somebody and immediately began walking away. As I approached, [I] stopped him in the parking lot next door of Kentucky Fried Chicken.

Q Do you recall the description that you were given of that suspicious person?

A No, I do not, other than Hispanic male.

Officer Henderson continued his testimony during a voir dire:

Q Officer, at the time you got the call about suspicious activity [sic], was any criminal activity alleged?

A Not from what our dispatcher gave us, no.

Q Okay. And did you, up to the point where you stopped [the juvenile], did you ever see him committing any illegal act?

A No, sir.

Q Okay. And you, he was walking away from you, and you asked him to stop and patted him down?

A He looked in my direction and then turned and walked away. Yes, sir.

....

Q And nothing [criminal] in particular with [regard to] [the juvenile] that you know of?

A Other than he was wearing gang attire.

Q What kind of attire was that?

A Large baggy clothes.

Q Is that it?

A I guess that's it.

The trial court further found there was a "reasonable, [articulable] suspicion that some criminal activity may have taken place" and distinguished the present case from State v. Fleming, 106 N.C.App. 165, 415 S.E.2d 782 (1992). Although labeled as findings, these determinations are actually conclusions of law, in that they require the exercise of judgment and application of legal principles. See In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675 (1997). As such, they are reviewable de novo on appeal. See Kincaid, 147 N.C.App. at 97, 555 S.E.2d at 297.

The Fourth Amendment protects the right of individuals to be free from "unreasonable searches and seizures." U.S. Const. amend. IV. This protection is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 1090 (1961). The right to be free from unreasonable searches and seizures applies to seizures of the person, including brief investigatory stops. Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 20 L.Ed.2d 889, 903-905 (1968). "An investigatory stop must be justified by `a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'" State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357, 362 (1979)). Whether an officer had a reasonable suspicion to make an investigatory stop is evaluated under the totality of the circumstances. Id. (citing U.S. v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621, 629 (1981)).

The stop must 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 [the officer's] experience...