State v. Horton

• Decision Date: 02 April 2019
• Docket Number: No. COA18-997,COA18-997
• Citation: 264 N.C.App. 711,826 S.E.2d 770
• Parties: STATE of North Carolina v. Xavier Lamar HORTON, Defendant.
• Court: North Carolina Court of Appeals

264 N.C.App. 711

826 S.E.2d 770

STATE of North Carolina

v.Xavier Lamar HORTON, Defendant.

No. COA18-997

Court of Appeals of North Carolina.

Filed: April 2, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General Ashish K. Sharda, for the State.

Grace Tisdale & Clifton, PA, Winston-Salem, by Michael A. Grace, Greer B. Taylor, and Christopher R. Clifton, for Defendant-Appellant.

INMAN, Judge.

Defendant Xavier Lamar Horton ("Defendant") appeals his convictions for possession with intent to sell or deliver cocaine, possession of a stolen firearm, possession of a firearm by a felon, and attaining habitual felon status. Defendant argues that his motion to suppress evidence obtained in a traffic stop was erroneously denied, contending that the police officer who conducted the stop lacked reasonable suspicion that he was committing, or about to commit, a crime. After thorough review of the record and applicable law, we reverse the trial court's order denying the motion to suppress and vacate Defendant's convictions.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant pled guilty to all charges following the trial court's denial of his motion to suppress. The record and the evidence introduced at trial, consisting of the suppression hearing and Defendant's plea colloquy, tended to show the following:

Sometime after 8:40 pm on 25 November 2016, Officer Nathan Judge ("Officer Judge") of the Graham Police Department in Alamance County received a dispatch call relaying 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.¹ Officer Judge knew that another business across the street experienced a break-in in the past and that there were previous residential break-ins and vandalism in the area.²

When Officer Judge arrived at Graham Feed & Seed, he discovered a silver Nissan Altima in the parking lot in front of the business. He saw no one walking in the parking lot. After parking near the southern area exit of the parking lot, Officer Judge stepped out of his patrol vehicle and walked toward the silver car "as [it] was approaching" the exit.³ When Officer Judge was "within arm's length" of the vehicle, he shined his flashlight toward the closed window of the driver's side of the vehicle and saw Defendant, a black male, in the driver's seat. Defendant did not lower the vehicle window. Officer Judge asked Defendant, "What's up boss man?" Defendant "made no acknowledgement," but merely displayed a "blank expression on his face," and continued to exit the parking lot.

Officer Judge considered Defendant's behavior to be a "little odd," and decided to follow Defendant because he "didn't know what [he] had." After catching up to Defendant's vehicle onto the main road, without "observ[ing] any bad driving, traffic violations, criminal offenses, or furtive movements," Officer Judge activated his patrol lights and siren to initiate a traffic stop.

After Defendant pulled over and stopped his vehicle and lowered the driver's side window, Officer Judge approached, "immediately smelled a strong odor of marijuana and air fresheners," noticed a female passenger in the vehicle, and called for officer assistance. Officer Judge asked Defendant for his license and registration. Defendant admitted that he did not have his license and provided his name and date of birth. The front seat passenger stated that the vehicle was registered in her name.⁴

After Officer Judge began searching the vehicle, Defendant admitted marijuana would be found in the center console. Officer Judge found marijuana in the console. He also found several plastic baggies containing a "white powder[y] substance" and large amounts of cash in an open purse on the front passenger floorboard, additional baggies with white powdery substance and the top of a scale with white powder residue in the center console, and a stolen black Sig Sauer 9 millimeter firearm in the glove compartment. Officer Judge then arrested Defendant and took him to the police station. Defendant eventually admitted possessing the firearm and admitted that the cash found in the vehicle—totaling $1,292—came from drug sales.

On 31 July 2017, Defendant was indicted for possession of a stolen firearm, possession of a firearm by a felon, possession with intent to sell or deliver cocaine, possession of less than one-half ounce of marijuana, maintaining a vehicle used to keep and sell cocaine and marijuana, and attaining habitual felon status. On 15 March 2018, Defendant filed a motion to suppress evidence seized as a result of the stop. The motion came on for hearing on 19 March 2018 and Officer Judge was the only testifying witness. After the parties concluded their arguments, the trial court orally denied Defendant's motion, concluding that Officer Judge had formed a reasonable articulable suspicion to justify stopping Defendant. The trial court entered this ruling in a written order on 10 April 2018.

After the trial court denied his motion to suppress, Defendant pled guilty to all charges except those for maintaining a vehicle to keep and sell cocaine and marijuana and possession of less than one-half ounce of marijuana, which were dismissed pursuant to a plea agreement. The trial court consolidated the cocaine and firearms charges into one judgment and sentenced Defendant to the presumptive range of 77 to 105 months’ imprisonment, with credit given for 1 day spent in confinement; and ordered him to pay a total of $1,627.50 in restitution and court costs. Defendant filed written notice of appeal on 23 April 2018.⁵

II. ANALYSIS

A. Jurisdiction

As a preliminary matter, we address whether this Court has jurisdiction to hear Defendant's appeal from the superior court's order denying his motion to suppress.

Upon a guilty plea, a defendant has the right to appeal an order denying a motion to suppress evidence so long as it is "an appeal from a judgment of conviction." N.C. Gen. Stat. § 15A-979(b) (2017). If the defendant merely appeals the denial of his motion, rather than the final judgment, this Court lacks jurisdiction over the appeal. See State v. Miller , 205 N.C. App. 724, 725, 696 S.E.2d 542, 543 (2010) ("Although Defendant preserved his right to appeal by filing his written notice of intent to appeal from the denial of his motion to suppress, he failed to appeal from his final judgment, as required by [ Section] 15A-979(b).").

Here, though Defendant timely filed written notice of appeal, the notice, much like in Miller , attempts to appeal the trial court's "Order denying his Motion to Suppress Evidence" instead of the judgment underlying his convictions. We thus conclude that Defendant's notice was deficient and he failed to properly preserve his right to appeal.

Nonetheless, we have "the option ‘to exercise our discretion to treat [D]efendant's appeal as a petition for certiorari’ in order to reach the merits" of his argument. State v. McNeil , ––– N.C. App. ––––, ––––, 822 S.E.2d 317, 321 (2018) (quoting State v. Phillips , 149 N.C. App. 310, 314, 560 S.E.2d 852, 855 (2002) ) (alterations in original). Therefore, pursuant to N.C. Gen. Stat. § 7A-32(c), we will "treat [D]efendant's appeal as a petition for certiorari and grant the writ to address the merits of this appeal." Phillips , 149 N.C. App. at 314, 560 S.E.2d at 855.

B. Reasonable Suspicion for the Traffic Stop

The sole issue on appeal is whether the trial court erred in denying Defendant's motion to suppress evidence resulting from the traffic stop. In reviewing the denial of a defendant's motion to suppress, we "determine whether there was competent evidence to support the trial court's underlying findings of fact" and "whether the findings of fact support the trial court's ultimate conclusions of law." State v. Fleming , 106 N.C. App. 165, 168, 415 S.E.2d 782, 784 (1992). We review the trial court's conclusions of law de novo , "consider[ing] the matter anew and freely substitut[ing] [our] own judgment for that of the trial court." State v. Knudsen , 229 N.C. App. 271, 281, 747 S.E.2d 641, 649 (2013).

Generally, "the United States and North Carolina Constitutions protect an individual against unreasonable searches and seizures." State v. Otto , 366 N.C. 134, 136, 726 S.E.2d 824, 827 (2012) (citing U.S. Const. amend. IV ; N.C. Const. art. I, § 20 ). In analyzing what constitutes a "reasonable seizure," the United States Supreme Court has consistently held that "a police officer may effect a brief investigatory seizure of an individual where the officer has reasonable, articulable suspicion that a crime may be underway."

State v. Barnard , 184 N.C. App. 25, 29, 645 S.E.2d 780, 783 (2007) (citing Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968) ). Traffic stops are considered seizures " ‘even though the purpose of the stop is limited and the resulting detention quite brief.’ " State v. Murray , 192 N.C. App. 684, 687, 666 S.E.2d 205, 207 (2008) (quoting Delaware v. Prouse , 440 U.S. 648, 653, 99 S.Ct. 1391, 1393, 59 L.Ed.2d 660, 667 (1979) ).

Reasonable suspicion is "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. Watkins , 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). "A court must consider the totality of the circumstances—the whole picture—in determining whether a reasonable suspicion to make an investigatory stop exist[ed]." State v. Campbell , 359 N.C. 644, 664, 617 S.E.2d 1, 14 (2005) (quotations and citation omitted). While reasonable suspicion is easier than proving probable cause, "and requires a showing considerably less than preponderance of the evidence," State v. Barnard , 362 N.C. 244, 247, 658 S.E.2d 643, 645 (2008) (citation and quotation marks omitted), there must be enough suspicion "to assure that an individual's reasonable...