State v. Jackson, COA13–743.
| Decision Date | 20 May 2014 |
| Docket Number | No. COA13–743.,COA13–743. |
| Citation | 758 S.E.2d 39 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Tiyoun Jimek JACKSON. |
OPINION TEXT STARTS HERE
Appeal by Defendant from order entered 10 January 2013 by Judge C.W. Bragg and judgment entered 22 January 2013 by Judge A. Robinson Hassell in Guilford County Superior Court. Heard in the Court of Appeals 5 February 2014.
Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster III, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for Defendant.
In this appeal, Defendant Tiyoun Jimek Jackson challenges the trial court's denial of his motion to suppress evidence discovered by Officer Timothy D. Brown of the Greensboro Police Department following an investigatory stop of Defendant on the night of 9 April 2012.
The order denying Defendant's motion to suppress includes the following pertinent findings of fact:
1. [Officer] Brown is and has been an officer for the Greensboro Police Department since August 15, 2009.
2. Officer Brown based on training and experience is familiar with marijuana and other narcotic drugs.
3. Officer Brown was on duty and in uniform on Monday, April 9, 2012.
4. Prior to April 9, 2012, Officer Brown had on two occasions contact with [D]efendant....
5. On the first occasion, Officer Brown investigating a report of the discharging of a firearm spoke with [D]efendant ... concerning that incident and recovered from him a stolen firearm.
6. Approximately two months prior to April 9, 2012, Officer Brown was investigating a breaking and entering in the area of Lombardi Street in Greensboro, North Carolina and again came into contact with [D]efendant....
7. ... [D]efendant ... was standing with 3 to 4 individuals in the area of the reported breaking and entering.
8. As Officer Brown approached he could smell the odor of marijuana.
9. Officer Brown conducted a search of the individuals including [D]efendant....
10. Officer Brown did find an amount of marijuana, but not on the person of [D]efendant....
11. On April 9, 2012, Officer Brown was assigned and was patrolling zone 450 in a marked patrol car.
12. Officer Brown at approximately 9:00 pm was patrolling in the vicinity of Kim's Mart located at 2200 Phillips Avenue.
13. Based on Officer Brown's experience as a Greensboro Police Officer he knows that the immediate area outside of Kim's Mart has been the location of hundreds of narcotic investigations some resulting in arrests.
14. Officer Brown has personally made drug arrests in the immediate area of Kim's Mart.
15. Officer Brown is personally aware that hand-to-hand drug transactions have taken place on the sidewalk and street directly adjacent to Kim's Mart as well as inside Kim's Mart.
16. At approximately 9:00 pm on April 9, 2012 Officer Brown saw [D]efendant ... and Curtis M. Benton standing near the newspaper dispenser outside of Kim's Mart.
17. Two days prior Officer Brown conducted a motor vehicle stop in which Curtis M. Benton was riding.
18. During the motor vehicle stop, Officer Brown noticed the smell of marijuana coming from the car.
19. [D]efendant ... and Curtis M. Benton upon spotting Officer Brown in his marked patrol car stopped talking and dispersed.
20. [D]efendant ... went to the East and walked into Kim's Mart and Curtis M. Benton walked away, in the opposite direction, to the West.
21. Officer Brown testified that his training and experience indicate that upon the approach of a law enforcement officer, two individuals engaged in a drug transaction will separate and walk away in opposite directions.
22. Officer Brown continued past Kim's Mart and down Phillips Avenue.
23. After losing sight of [D]efendant ... and Curtis M. Benton, Officer Brown made a u-turn and headed back up Phillips Avenue toward Kim's Mart.
24. As Officer Brown again approached Kim's Mart, [D]efendant ... and Curtis M. Benton were again standing in front of Kim's Mart approximately 20 feet from where Officer Brown saw them originally.
25. Officer Brown pulled into the parking lot at Kim's Mart.
26. As Officer Brown was pulling into the parking lot at Kim's Mart, [D]efendant ... and Curtis M. Benton again separated and began walking away in opposite directions.
27. As [D]efendant ... was walking away from Kim's Mart, he came within 5–10 feet of Officer Brown's patrol car.
28. Officer Brown wanted to speak with [D]efendant ... about possible drug activity.
29. Officer Brown asked [D]efendant ... to place his hands on the patrol car....
30. [D]efendant ... placed his hands on the front left fender of Officer Brown's patrol car.
Based on these findings, the court concluded “[t]hat based on the totality of the circumstances ... Officer Brown had a reasonable and articulable suspicion that criminal activity was afoot” and “was legally permitted to make a brief investigatory stop of [D]efendant[.]” The court further found and concluded that Defendant thereafter “consented to a search of his person by Officer Brown” which led to the discovery of a handgun.1
While reserving the right to appeal the denial of his motion, seeN.C. Gen.Stat. § 15A–979(b) (2013), Defendant pled guilty on 7 January 2013 to possession of a firearm by a felon, possession of a firearm with an altered serial number, and conspiracy to possess with intent to sell or deliver marijuana. The trial court consolidated Defendant's offenses for judgment, suspended a prison sentence of twelve to twenty-four months, and placed him on twenty-four months of supervised probation.
Defendant has filed a petition for writ of certiorari, acknowledging a jurisdictional defect in his notice of appeal, to wit, that he did not initially appeal from the final judgment as required by N.C.R.App. P. 4(b), but rather appealed only from the denial of his suppression motion. See State v. Miller, 205 N.C.App. 724, 725, 696 S.E.2d 542, 542 (2010) ( appeal for lack of jurisdiction where the “[d]efendant did file ... a written notice of appeal from the denial of efendant's motion to suppress, but efendant did not appeal from his judgment of conviction”) (internal quotation marks omitted). Further, Defendant gave oral notice of appeal thirteen days after the judgment was filed, rather than at trial as required by N.C.R.App. P. 4(a)(1). See State v. Hammonds, –––N.C.App. ––––, ––––, 720 S.E.2d 820, 823 (2012) ().
As a result, Defendant's “right to prosecute an appeal has been lost by [his] failure to take timely action[.]” N.C.R.App. P. 21(a)(1). The State has neither moved to dismiss Defendant's appeal nor opposed our review by writ of certiorari. Accordingly, we grant the requested writ and review Defendant's challenges to the denial of his suppression motion on the merits.
Defendant argues that the court erred in denying his motion to suppress because Officer Brown lacked the reasonable articulable suspicion of criminal activity needed to justify an investigatory stop. See, e.g., State v. Battle, 109 N.C.App. 367, 370, 427 S.E.2d 156, 158 (1993) (citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889, 911 (1968)). Because the stop was unlawful, Defendant further contends that his subsequent consent to Officer Brown's search of his person was invalid. We agree.
In reviewing the denial of a motion to suppress, our task is to determine “whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law.” State v. Biber, 365 N.C. 162, 167–68, 712 S.E.2d 874, 878 (2011) (citation omitted). Findings not challenged by Defendant “are deemed to be supported by competent evidence and are binding on appeal.” Id. (citation omitted). We review de novo a trial court's conclusion of law that an “officer had reasonable suspicion to detain a defendant[.]” State v. Kincaid, 147 N.C.App. 94, 97, 555 S.E.2d 294, 297 (2001) (citation omitted).
Here, Defendant challenges only finding of fact 5, which states that Officer Brown recovered a stolen gun from Defendant during a prior encounter with Defendant and another individual. The evidence, however, shows that, although Officer Brown did recover a stolen firearm during that encounter, “[D]efendant was not the one that was actually charged in that[.]” This finding of fact is not supported by competent evidence, and, accordingly, we do not consider it in analyzing Defendant's challenge to the trial court's ultimate conclusion that Officer Brown had a reasonable suspicion of criminal activity justifying an investigatory stop.2
State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69–70 (1994) (). Accordingly, “[a]n investigatory stop must be justified by ‘a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.’ ” Id. at 441, 446 S.E.2d at 70 (quoting Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357, 362 (1979)). “A court must consider the totality of the circumstances—the whole picture in determining whether a reasonable suspicion to make an investigatory stop exists.” Id. (citation and internal quotation marks omitted). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an...
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State v. Jackson
...did not establish reasonable suspicion for Officer Brown to conduct an investigatory stop of defendant. State v. Jackson, ––– N.C.App. ––––, ––––, 758 S.E.2d 39, 46 (2014). The State appealed to this Court as a matter of right.ANALYSIS The sole issue presented in this appeal is whether the ......
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State v. Benton
...that the stop of the defendant in that case, Tiyoun Jimek Jackson, was not supported by reasonable suspicion. ––– N.C.App. ––––, ––––, 758 S.E.2d 39, 46 (2014). Based on its opinion in Jackson,the Court of Appeals concluded that the stop of the defendant in this companion case, Curtis Mario......