State v. Nicholson, COA17-28

• Court: Court of Appeal of North Carolina (US)
• Citation: 255 N.C.App. 665,805 S.E.2d 348
• Decision Date: 19 September 2017
• Docket Number: No. COA17-28,COA17-28
• Parties: STATE of North Carolina v. Ahmad Jamil NICHOLSON, Defendant.

255 N.C.App. 665
805 S.E.2d 348

STATE of North Carolina
v.
Ahmad Jamil NICHOLSON, Defendant.

No. COA17-28

Court of Appeals of North Carolina.

Filed: September 19, 2017

Attorney General Joshua H. Stein, by Special Deputy Attorney General John R. Green, Jr., for the State.

Patterson Harkavy LLP, Chapel Hill, by Narendra K. Ghosh, for defendant-appellant.

HUNTER, JR., Robert N., Judge.

255 N.C.App. 666

On 4 May 2016, Ahmad Jamil Nicholson ("Defendant") filed a motion to suppress evidence obtained by law enforcement officers following a traffic stop. On 9 May 2016, the trial court orally denied Defendant's motion

805 S.E.2d 350

to suppress.¹ Defendant appeals following a 12 May 2016 verdict convicting him of common law robbery. On appeal, Defendant contends the trial court erred by denying his motion to suppress evidence. We find prejudicial error and grant a new trial for Defendant.

I. Factual and Procedural History

On 14 March 2016, a Forsyth County Grand Jury indicted Defendant for robbery with a dangerous weapon. On 4 May 2016, Defendant filed a written, verified motion to suppress "any and all statements obtained from the defendant" while he was "seized" on the morning of 23 December 2015. On 9 May 2016, the Forsyth County Superior Court called Defendant's case for trial. After addressing other pretrial motions (not in contention on appeal), the trial court heard Defendant's motion to suppress.

In opposition to the motion, the State called Lieutenant Damien Marotz, the arresting officer. Around 4:00 a.m., on 23 December 2015, Lt. Marotz drove west down West Mountain Street in Kernersville, North Carolina. As he approached the intersection of West Mountain Street and West Bodenhamer Street, he noticed a car parked in the road, facing east, just past the Petro 66 gas station. "It was just sitting there in the turn lane, with its headlights on and no turn signals...." There were no reports of criminal activity in the area that morning.²

255 N.C.App. 667

As Lt. Marotz drove towards the stationary car, he saw two African American men inside the car; one man sat in the driver's seat, and the other passenger sat directly behind the driver, with the front passenger seat empty. Lt. Marotz later identified the passenger as Defendant. Although it was "in the 40s" and "misting rain[,]" both windows on the driver's side of the car were down. Defendant began to pull down "a toboggan-style mask of some kind" to approximately "the bridge of [his] nose[,]" but "pushed it back up" as Lt. Marotz pulled up next to the car. However, Lt. Marotz did not know if the garment actually had eyeholes.

Lt. Marotz rolled his window down and asked both men if everything was okay. Both men confirmed everything was okay, and the driver, Quentin Chavis, explained "[Defendant] was his brother and ... they had gotten into an argument and that everything was okay now, that they were not arguing anymore." Defendant agreed, stating, "Yes, Officer, everything's fine."

Lt. Marotz "did not observe a sign of struggle" between the men. However, "something just didn't seem quite right." He asked, again, if the men were sure everything was okay. Both men "[shook] their head[s] and agree[d]" everything was okay. Lt. Marotz noticed Chavis "move[ ] his hand up ... scratching" or "making a motion with his hand[.]" Lt. Marotz specifically recalled this action because he "kept watching everybody's hands to make sure they didn't have any weapons." Lt. Marotz inquired, again, if they needed any help, and the men continued to confirm "everything was fine."

Lt. Marotz drove into the gas station parking lot. He decided to continue watching the car because he "felt like something wasn't quite right" and he "wanted to make sure that they didn't continue to argue[.]" Approximately thirty seconds elapsed, and the car did not move. Lt. Marotz decided to speak with the men again and got out of his car to walk over to them. Lt. Marotz "thought it was odd that they were just still sitting in the middle of the road." Lt. Marotz activated his body-worn camera³ and called for backup.

As Lt. Marotz walked towards the car, Defendant got out of the backseat. Chavis pulled the car forward approximately two feet and stopped. Lt. Marotz called out to Chavis, "Hey. Where are you going? Are you going to leave your brother just out here?" Chavis replied he was late and needed to get to work.

805 S.E.2d 351

255 N.C.App. 668

Again, Lt. Marotz inquired if everything was okay. Initially, both men continued to confirm everything was okay. However, the second time Lt. Marotz inquired, Chavis shook his head, as if to indicate "No." But Defendant continued to say, "No, Officer. Everything is fine." Lt. Marotz responded, "Well, your brother here in the driver's seat is shaking his head. He’s telling me everything's not fine. Is everything fine or not? Is everything good?" Chavis interrupted Lt. Marotz and stated, "No, Officer, everything's fine. I've just got to get to work." Chavis explained he worked at FedEx. Lt. Marotz described Chavis as "hurried" and "just ready to go[,]" noting he "edged the vehicle forward a couple of feet[.]" After Defendant confirmed again everything was okay, Lt. Marotz told the driver, "Okay. Go to work." Lt. Marotz explained "if I wanted to continue the investigation, I could have went [to FedEx]" to speak with Chavis. However, Lt. Marotz did not know the identity of the driver at this time.

Defendant continued to "st[and] there[,]" but stated he was going to go to the store. Lt. Marotz responded, "Hang on a minute.... Do you have any weapons on you?" Lt. Marotz confirmed this was a command, and Defendant was thereafter "detained." He wanted to make sure he was not being followed "with any sort of weapon" and it was not unusual for him to ask such a question, given the darkness and early morning hour. Defendant told Lt. Marotz he had a knife. Defendant explained "he normally carries a knife because he wants to make sure he doesn't get robbed." Lt. Marotz asked Defendant where the knife was, but advised him not to reach for it. Despite Lt. Marotz's instruction, Defendant moved "his hand into his left pants pocket." At that point, Lt. Marotz drew his firearm, but kept it lowered by his side.

Officers Oriana and Feldman arrived on the scene. Defendant removed his hand from his pocket and stated, "Just don't shoot me." Lt. Marotz asked Defendant several times to put his hands on his head and to step out of the road to avoid approaching traffic before he complied. Defendant appeared confused and "slow ... to listen to ... instructions and ... commands." Defendant asked several times, "What am I doing?" Defendant also had "a moderate odor of alcohol on his person, and his speech was slurred."

One of the backup officers asked Defendant where the knife was. Defendant responded, "It's in my waistband" and began to reach for it. Lt. Marotz and the backup officers told Defendant to put his hands back on top of his head. Defendant complied. Officer Feldman performed a pat-down, but he could not locate a knife. Throughout the process, Defendant attempted to lower his hands repeatedly, and officers advised

255 N.C.App. 669

him multiple times to keep his hands on the top of his head. Officer Feldman performed a second pat-down, but he still could not find a knife on Defendant. Lt. Marotz told Defendant they could not locate a knife. Defendant replied, "he didn't have the knife on him, that he used to carry this knife but that sometimes he carries a knife."

Then, Lt. Marotz asked Defendant for his identification.⁴ Officer Feldman provided Defendant's information over the radio. Lt. Marotz continued to question Defendant about "what was going on with him and his brother" because he "wanted to make sure that there wasn't any problems and that he wasn't injured, [and] his brother wasn't injured ... because something did not seem quite right." When asked why he continued to question Defendant when "[he] had no evidence of any criminal activity that [he] was able to objectively point to[,]" Lt. Marotz answered he "wanted to make sure that both [Defendant] and also [Chavis] were safe and that nothing had happened to either one of them."

Officer Oriana also asked Defendant where he lived. Defendant did not answer the question and instead asked several times whether Officer Oriana was going to give him a ride

805 S.E.2d 352

home. Defendant became "angry" and "aggressive." Lt. Marotz instructed Officer Oriana not to give Defendant a ride home because Defendant appeared to be "impaired."

Defendant also made several other statements, including he was late for work and his brother had let him borrow the car so he could go to work. However, Defendant refused to say where he worked, and Defendant's statement regarding borrowing the car "didn't make any sense because [Chavis] was driving the vehicle."

After determining there were no active warrants against Defendant, Lt. Marotz told...