in the Court of Appeals 9 August 2017.
by Defendant from judgment entered 13 May 2016 by Judge John
O. Craig, III in Forsyth County Superior Court No. 15 CRS
Attorney General Joshua H. Stein, by Special Deputy Attorney
General John R. Green, Jr., for the State.
Patterson Harkavy LLP, by Narendra K. Ghosh, for
HUNTER, JR., Robert N., Judge.
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 to
suppress. 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.
Factual and Procedural History
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.
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.
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.
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,
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."
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
camera and called for backup.
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
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.
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.
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."
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 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
Lt. Marotz asked Defendant for his
identification. 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."
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 home. Defendant
became "angry" and "aggressive." Lt.
Marotz instructed Officer Oriana not to give Defendant a ride
home because Defendant appeared to be "impaired."
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."
determining there were no active warrants against Defendant,
Lt. Marotz told Defendant, "You're free to go."
Defendant told officers he was going to the store. However,
he remained with Lt. Marotz and the two officers for
approximately another thirty seconds. He asked for a
cigarette and a lighter, but they did not have any. Defendant
started heading towards the store, but one of the officers
informed Lt. Marotz the store was closed. Lt. Marotz called
out to Defendant, "I'm sorry, sir. I didn't
realize the store is closed." The entire encounter
lasted approximately eight to ten minutes.
Marotz confirmed his body-worn camera recorded the entire
encounter, and the video footage "fairly and
accurately" depicted the interaction. The defense
"stipulate[d] for [the] hearing [the video was]
admissible to play." The trial court viewed the video.
arguments from the defense, the trial court denied
Defendant's motion to suppress. The trial court
reconvened on 10 May 2016 and proceeded to trial.
State first called Chavis to testify. On 23 December 2015, at
around 3:00 a.m., Chavis woke up for work. Around 3:40 a.m.,
he drove out of his parents' neighborhood, towards the
intersection of Westlo Drive and Mountain Street. There, he
saw Defendant waving at him. Chavis did not know Defendant.
However, he stopped because he thought Defendant might need
help. Defendant asked for a ride to a nearby gas station.
Chavis told Defendant he could not give him a ride because he
was going to be late for work. Defendant then asked for a
"blunt[, ]" and Chavis told him he did not have
one. When Defendant again asked for a ride, Chavis again
Defendant "just got in the car" and said,
"I'll just sit in the back." Chavis decided to
give Defendant a ride to the gas station because he believed
"[Defendant was] not going to get out because he really
need[ed] a ride" and "it was raining . . . ."
Defendant told Chavis, "I see you're living
good" and he liked his shoes that were in a bag.
Defendant explained that his phone died and he just needed a
arrived "in front of the Petro 66 gas station[.]"
Chavis said, "Here you go, man. Can you just get out
because I'm late for work." At that point, Defendant
placed a knife against Chavis's neck and said,
"Well, let's just make this easy. Give me everything
you have, any money you have." Chavis told Defendant he
did not have any cash. Defendant ordered Chavis to give him
his credit card. Chavis gave Defendant his State
Employees' Credit Union savings card. Defendant asked for
Chavis's pin number, and Chavis told him a fake number.
Defendant then said he would not be able to remember the
number and told Chavis to write it down. Defendant rummaged
through the middle console and found a pen and paper to write
on. Defendant wrote the pin down. Defendant leaned forward and
warned Chavis not to cancel the card. Chavis confirmed he
would not. During this time, Chavis felt "nervous and
scared[, ]" but explained he "was always
taught" not to show any fear "because when you show
fear, that's when -- that's when it makes it easier
for the person."
Defendant moved the knife "as if he was going to stab
[Chavis.]" Defendant said, "he had nothing to
lose" and he "didn't have a problem sticking
[Chavis.]" At that point, Chavis noticed a car
approaching. Defendant "tried to pull his toboggan over
his face[.]" Lt. Marotz pulled up beside the car in the
opposite lane. Chavis spoke with Lt. Marotz, but he did not
tell the officer what was going on because he
"didn't know what the defendant was going to do[,
]" or whether "he still had a knife on him[,
]" and "[t]here was only one
officer." However, Chavis attempted to signal to Lt.
Marotz "to show him that everything wasn't
okay" by "winking real hard . . . to see if he
could identify I was trying to wink at him on
purpose[.]" He also made a "cut throat"
called his mother and told her and his father about the
incident. Then he went to work, arriving at around 4:15 a.m.
Chavis returned home around 6:30 a.m. and then went to the
police station with his father.
arriving at the police station at approximately 7:00 or 7:15
a.m., Chavis conveyed the same story and provided a written
statement. Chavis identified Defendant as the person who
robbed him, from a photographic lineup containing
seven photos. An officer searched
Chavis's car and found a knife in the backseat, behind
the passenger seat. After returning home, Chavis began to
clean out his car and found his bank card in an
"envelope that [ ] had [his] pay stub from
Fedex[.]"Chavis called police to notify them
"[Defendant] didn't take the card. He just left the
Marotz also testified, providing largely the same information
regarding his encounter with Defendant as he did during the
motion to suppress hearing. The State published the
footage from Lt. Marotz's body-worn camera to the jury.
State called Officer Serrin. Officer Serrin largely confirmed
Chavis's testimony regarding their interaction at the
police station. He provided additional details regarding the
knife he seized from Chavis's car, describing it as a
"steak knife." He specifically recalled, "It
had a logo on it, the J. A. Henckels logo on it. I recognized
it because that's the same brand of knife that I
obtaining a warrant for Defendant's arrest, Officer
Serrin and several other officers went to Defendant's
home and obtained permission to search the
home. Officer Serrin found a J.A. Henckels
knife block in the kitchen. "[T]he block [had] two
sections. It had one section for steak knives, and above that
was a section for other cooking knives." A single steak
knife was missing. "[He] pulled out one of the steak
knives out of the block, and it looked identical to the knife
[he] found in [Chavis's] car." When asked, Officer
Serrin admitted the knife seized from Chavis's car looked
much older than the pictures of the knives in the block, but
believed "the latent print dust" contributed to
this appearance. He did not ...