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State v. Sutton

Court of Appeals of North Carolina

March 4, 2014

STATE of North Carolina
Thomas Keith SUTTON, Defendant.

Heard in the Court of Appeals 12 December 2013.

Page 465

On writ of certiorari to review judgment entered on or about 22 January 2013 by Judge Paul L. Jones in Superior Court, Lenoir County.

Attorney General Roy A. Cooper, III, by Assistant Attorney General John P. Barkley, for the State.

Public Defender Jennifer Harjo, by Assistant Public Defender Brendan O'Donnell, for defendant-appellant.

STROUD, Judge.

Defendant appeals an order denying his motion to suppress and a judgment convicting him of felony carrying a concealed gun contending that his right " to be free from unreasonable search and seizure" was violated when a law enforcement officer frisked him without reasonable suspicion. (Original in all caps.) For the following reasons, we affirm.

I. Background

In October of 2012, defendant was indicted for two counts of " FELONY CARRYING A CONCEALED WEAPON[.]" On 11 January 2013, defendant filed a motion to suppress moving

for an Order suppressing all evidence, alleged contraband, defendant's identity, and all statements and testimony concerning the alleged contraband, and as

Page 466

grounds therefore alleges that said material[ ] evidence, and testimony were seized in or obtained as a result of an illegal stop that occurred on March 27, 2012, absent reasonable and articulable suspicion in violation of his Fourth and Fourteenth Amendment rights under the United States Constitution and similar provisions in the North Carolina Constitution, Article 1, Section 19.

On 31 January 2013, the trial court denied defendant's motion to suppress finding as fact:

1) That the arresting officer, B. Wells, was employed by the Kinston Department of Public Safety as a police officer. Officer B. Wells has more than 10 years experience in that position. That he was assigned to the Special Response Unit and also served as a K-9 Officer. That as a member of the Special Response Unit he was assigned to patrol public housing units located within the city of Kinston, North Carolina.
2) That prior to March 27th, 2012, the Special Response Unit patrolled public housing, along with a task force made up of U.S. Marshals and Drug Enforcement Agency, concentrating on viol[ent] crimes, gun crimes, etc. That in the past officers have been assaulted by individuals in public housing. That officer B. Wells is trained in the detection of drugs, weapons and other general policing tactics.
3) At 14:34 hours (2:34pm) in the afternoon of March 27, 2012, officer B. Wells was patrolling near Simon Bright Apartments, which is one of the public housing apartments located in Kinston. Officer Wells had prior experience hearing shots fired on the East Bright Street area near Simon Bright Apartments. That the Kinston Department of Public Safety enforces a ban list of over 9 pages of individuals who are banned from public housing.
4) That on the day in question officer B. Wells was driving a Ford Crown Victoria vehicle with the windows down where he was listening and looking for criminal activity. While in the 800 block of East Bright Street Wells observed the defendant on McDaniel Street, who was walking normally while swinging his arms. That the defendant was carrying a Styrofoam food container in his left hand.
5) The Court finds as soon as the defendant starting turning east on Shine Street, he used his right hand to grab his waistband to clinch an item. The Court finds that this was an overt act which gave reasonable suspicion to the Public Safety Officer.
6) That officer B. Wells thought the defendant was trying to hide something and his posturing made it apparent that he was concealing something on his person. That the defendant then began to look specifically at the officer in question, that the reaction of the defendant created some urgency to stop to determine who the defendant was and that he needed to be identified. The Officer then turned around his vehicle without lights and siren and stopped the defendant for questioning.
7) That prior to being frisked, the officer did not draw a weapon or use any type of force on the defendant. That he asked the defendant if he was carrying a weapon and he doesn't remember the response of the defendant. That the officer performed a Terry Frisk upon the defendant. A gun was found on the defendant tucked in his waistband.
8) That the defendant never stated to the Officer that he was carrying a weapon. That the defendant was not handcuffed and the Officer did not have a weapon drawn. That the entire process took probably less than a minute or two. That the weapon in question was a Ruger P89 .9mm handgun with a magazine and 7 rounds of ammo, but there was no round which was chambered inside the weapon in question.

The trial court concluded:

1) That the stop of the defendant was legal and did not violate Federal and State Constitutional Standards. That the detaining Officer gave reasonable and articulable

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grounds for stopping the defendant that resulted in his being frisked.
2) That the rights of the defendant ... were not violated and therefore evidence seized may be presented before the Jury at trial. That the behavior and actions of the defendant as well as the totality of the circumstances form a further basis for Denying the Motion to Suppress.
3) The Court has examined the Ruger handgun in court for size, weight and concealability to determine if it was consistent with suppression testimony. The Court finds that both federal and state courts have given patrol officers wide latitude to stop and frisk defendants based upon an articulable suspicion.
4) The Court finds that the entire process of frisking the defendant took less than 2 minutes for an investigatory stop. The Court finds the Motion to Suppress is Denied.

On or about 22 January 2013, the trial court entered a judgment against defendant for carrying a concealed gun based upon defendant's guilty plea; defendant received a suspended sentence and was placed on ...

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