in the Supreme Court on 13 March 2018.
pursuant to N.C. G.S. § 7A-30(2) from the decision of a
divided panel of the Court of Appeals, ___ N.C.App. ___, 805
S.E.2d 348 (2017), finding prejudicial error after appeal
from a judgment entered on 13 May 2016 by Judge John O. Craig
III in Superior Court, Forsyth County, and granting defendant
a new trial.
H. Stein, Attorney General, by John R. Green, Jr., Special
Deputy Attorney General, for the State-appellant.
Narendra K. Ghosh for defendant-appellee.
consider whether a police officer's decision to briefly
detain Defendant Ahmad Jamil Nicholson for questioning was
supported by a reasonable suspicion of criminal activity.
Because we conclude that it was, we reverse the decision of
the Court of Appeals holding otherwise and reinstate
FACTUAL AND PROCEDURAL BACKGROUND
on patrol at around 4:00 a.m. on 23 December 2015, Lieutenant
Damien Marotz of the Kernersville Police Department noticed a
car parked on West Mountain Street in a turn lane next to a
gas station. The car had its headlights on but no turn signal
blinking. As Lt. Marotz pulled his marked patrol vehicle up
next to the car, he saw two men inside, one in the
driver's seat and the other-later identified as
defendant-in the seat directly behind the driver. The windows
were down despite misting rain and a temperature in the 40s.
As Lt. Marotz pulled alongside, he saw defendant pulling down
a hood or "toboggan-style mask of some kind . . . with
the holes in the eyes." Defendant pulled it down to the
bridge of his nose but then pushed it back up when he saw Lt.
Marotz asked the two men whether everything was okay, and
they responded that it was. The driver, Quentin Chavis,
explained that the man in the back seat was his brother and
they had been in an argument. Chavis said that the argument
was over and that everything was okay; defendant agreed,
saying, "Yes, Officer, everything's fine."
Sensing that something was not quite right, however, Lt.
Marotz again asked the pair whether they were okay, and they
nodded to indicate that they were. Then the driver moved his
hand near his neck, "scratching or doing something with
his hand, " but Lt. Marotz was unsure what this gesture
feeling that something was amiss, Lt. Marotz drove into the
gas station parking lot to observe the situation. After
watching as Chavis's car remained immobile in the turn
lane for another half a minute, Lt. Marotz got out of his
patrol vehicle and started on foot toward the stopped car.
Defendant then stepped out, and Chavis began to edge the car
forward about two feet. Lt. Marotz asked Chavis, "Where
are you going? Are you going to leave your brother just out
here?" Chavis responded, "No. I'm just late for
work. I've got to get to work." Lt. Marotz again
asked whether everything was okay, and the two men said
"yes, " everything was fine. Although Chavis said
"yes, " he shook his head "no." This
gesture prompted Lt. Marotz to say to defendant, "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
quickly interjected, "No, Officer, everything's
fine. I've just got to get to work." After Chavis
again stressed that he was going to be late for his job, Lt.
Marotz told him, "Okay. Go to work."
Chavis drove away, defendant stated to Lt. Marotz, "The
store's right here. Can I just walk to the store? Please
sir?" to which Lt. Marotz responded, "[H]ang tight
for me just a second . . . you don't have any weapons on
you do you?" Defendant said that he had a knife with
him that he carried for self-defense, but a frisk of his
person by a backup officer who had just arrived did not
reveal a weapon. After additional questioning, the officers
learned defendant's identity from his ID card and told
him he was "free to go."
that day, Chavis reported to police that defendant, who was
not actually his brother, had been in the process of robbing
him when Lt. Marotz pulled up. Chavis testified at trial that
defendant had flagged him down while he (Chavis) was on his
way to his early morning shift at FedEx and had requested a
ride to the gas station. Once in the car, defendant held a
knife to Chavis's throat and demanded money. Chavis
handed over his debit card just before Lt. Marotz pulled up.
Police later found a steak knife in the back seat of
Chavis's vehicle. During a search of defendant's
residence, police discovered a knife block containing steak
knives that looked identical to the one found in Chavis's
car, one of which was missing.
March 2016, the Forsyth County Grand Jury indicted defendant
for robbery with a dangerous weapon. On 4 May 2016, defendant
moved to suppress evidence obtained as a result of his
seizure by Lt. Marotz, asserting that defendant had been
unlawfully detained in violation of his rights under the
constitutions of the United States and North Carolina.
was tried during the criminal session of Superior Court,
Forsyth County, that began on 9 May 2016 before Judge John O.
Craig III. At a hearing conducted that day on defendant's
motion to suppress evidence related to his seizure, Lt.
Marotz was the sole witness. His testimony included the facts
set forth above explaining defendant's seizure on the
morning of 23 December 2015. After hearing arguments from
counsel, the trial court orally denied the motion to suppress
without making specific findings of fact or conclusions of
law. Although the trial court instructed the State to prepare
an order containing findings of fact and conclusions of law,
no such order can be found in the record.
jury convicted defendant of common law robbery on 12 May
2016, and the trial court sentenced him to ten to twenty-one
months of imprisonment, suspended for thirty-six months of
supervised probation. Defendant appealed, and on 19 September
2017 the Court of Appeals issued a divided opinion in which
it ordered a new trial after concluding that Lt. Marotz
lacked reasonable suspicion to detain defendant for
questioning and that the trial court committed prejudicial
error by denying defendant's suppression motion.
State v. Nicholson, ___ N.C.App. ___, ___, 805
S.E.2d 348, 358. The dissenting judge concluded that the
trial court had properly denied the motion because Lt. Marotz
did have reasonable suspicion that criminal activity was
afoot when he seized defendant. Id. at ___, 805
S.E.2d at 358 (Murphy, J., dissenting). The State filed its
appeal of right to this Court based on the dissent.