in the Court of Appeals 27 February 2019.
by Defendant from Judgment entered 10 April 2018 by Judge
James K. Roberson in Alamance County Superior Court No.
16CRS55920, 16CRS55921, 17CRS1851.
Attorney General Joshua H. Stein, by Assistant Attorney
General Ashish K. Sharda, for the State.
Tisdale & Clifton, PA, by Michael A. Grace, Greer B.
Taylor, and Christopher R. Clifton, for Defendant-Appellant.
Xavier Lamar Horton ("Defendant") appeals his
convictions for possession with intent to sell or deliver
cocaine, possession of a stolen firearm, possession of a
firearm by a felon, and attaining habitual felon status.
Defendant argues that his motion to suppress evidence
obtained in a traffic stop was erroneously denied, contending
that the police officer who conducted the stop lacked
reasonable suspicion that he was committing, or about to
commit, a crime. After thorough review of the record and
applicable law, we reverse the trial court's order
denying the motion to suppress and vacate Defendant's
FACTUAL AND PROCEDURAL BACKGROUND
pled guilty to all charges following the trial court's
denial of his motion to suppress. The record and the evidence
introduced at trial, consisting of the suppression hearing
and Defendant's plea colloquy, tended to show the
after 8:40 pm on 25 November 2016, Officer Nathan Judge
("Officer Judge") of the Graham Police Department
in Alamance County received a dispatch call relaying an
anonymous report concerning a "suspicious white
male," with a "gold or silver vehicle" in the
parking lot, walking around a closed business, Graham Feed
& Seed. Officer Judge knew that another business
across the street experienced a break-in in the past and that
there were previous residential break-ins and vandalism in
Officer Judge arrived at Graham Feed & Seed, he
discovered a silver Nissan Altima in the parking lot in front
of the business. He saw no one walking in the parking lot.
After parking near the southern area exit of the parking lot,
Officer Judge stepped out of his patrol vehicle and walked
toward the silver car "as [it] was approaching" the
exit. When Officer Judge was "within
arm's length" of the vehicle, he shined his
flashlight toward the closed window of the driver's side
of the vehicle and saw Defendant, a black male, in the
driver's seat. Defendant did not lower the vehicle
window. Officer Judge asked Defendant, "What's up
boss man?" Defendant "made no
acknowledgement," but merely displayed a "blank
expression on his face," and continued to exit the
Judge considered Defendant's behavior to be a
"little odd," and decided to follow Defendant
because he "didn't know what [he] had." After
catching up to Defendant's vehicle onto the main road,
without "observ[ing] any bad driving, traffic
violations, criminal offenses, or furtive movements,"
Officer Judge activated his patrol lights and siren to
initiate a traffic stop.
Defendant pulled over and stopped his vehicle and lowered the
driver's side window, Officer Judge approached,
"immediately smelled a strong odor of marijuana and air
fresheners," noticed a female passenger in the vehicle,
and called for officer assistance. Officer Judge asked
Defendant for his license and registration. Defendant
admitted that he did not have his license and provided his
name and date of birth. The front seat passenger stated that
the vehicle was registered in her name.
Officer Judge began searching the vehicle, Defendant admitted
marijuana would be found in the center console. Officer Judge
found marijuana in the console. He also found several plastic
baggies containing a "white powder[y] substance"
and large amounts of cash in an open purse on the front
passenger floorboard, additional baggies with white powdery
substance and the top of a scale with white powder residue in
the center console, and a stolen black Sig Sauer 9 millimeter
firearm in the glove compartment. Officer Judge then arrested
Defendant and took him to the police station. Defendant
eventually admitted possessing the firearm and admitted that
the cash found in the vehicle-totaling $1, 292-came from drug
July 2017, Defendant was indicted for possession of a stolen
firearm, possession of a firearm by a felon, possession with
intent to sell or deliver cocaine, possession of less than
one-half ounce of marijuana, maintaining a vehicle used to
keep and sell cocaine and marijuana, and attaining habitual
felon status. On 15 March 2018, Defendant filed a motion to
suppress evidence seized as a result of the stop. The motion
came on for hearing on 19 March 2018 and Officer Judge was
the only testifying witness. After the parties concluded
their arguments, the trial court orally denied
Defendant's motion, concluding that Officer Judge had
formed a reasonable articulable suspicion to justify stopping
Defendant. The trial court entered this ruling in a written
order on 10 April 2018.
the trial court denied his motion to suppress, Defendant pled
guilty to all charges except those for maintaining a vehicle
to keep and sell cocaine and marijuana and possession of less
than one-half ounce of marijuana, which were dismissed
pursuant to a plea agreement. The trial court consolidated
the cocaine and firearms charges into one judgment and
sentenced Defendant to the presumptive range of 77 to 105
months' imprisonment, with credit given for 1 day spent
in confinement; and ordered him to pay a total of $1, 627.50
in restitution and court costs. Defendant filed written
notice of appeal on 23 April 2018.
preliminary matter, we address whether this Court has
jurisdiction to hear Defendant's appeal from the superior
court's order denying his motion to suppress.
guilty plea, a defendant has the right to appeal an order
denying a motion to suppress evidence so long as it is
"an appeal from a judgment of conviction." N.C.
Gen. Stat. § 15A-979(b) (2017). If the defendant merely
appeals the denial of his motion, rather than the final
judgment, this Court lacks jurisdiction over the appeal.
See State v. Miller, 205 N.C.App. 724, 725, 696
S.E.2d 542, 543 (2010) ("Although Defendant preserved
his right to appeal by filing his written notice of intent to
appeal from the denial of his motion to suppress, he failed
to appeal from his final judgment, as required by [Section]
though Defendant timely filed written notice of appeal, the
notice, much like in Miller, attempts to appeal the
trial court's "Order denying his Motion to Suppress
Evidence" instead of the judgment underlying his
convictions. We thus conclude that Defendant's notice was
deficient and he failed to properly preserve his right to
we have "the option 'to exercise our discretion to
treat [D]efendant's appeal as a petition for
certiorari' in order to reach the merits" of his
argument. State v. McNeil, __ N.C.App. __, __, 822
S.E.2d 317, 321 (2018) (quoting State v. Phillips,
149 N.C.App. 310, 314, 560 S.E.2d 852, 855 (2002))
(alterations in original). Therefore, pursuant to N.C. Gen.
Stat. § 7A-32(c), we will "treat [D]efendant's
appeal as a petition for certiorari and grant the writ to
address the merits of this appeal." Phillips,
149 N.C.App. at 314, 560 S.E.2d at 855.
Reasonable Suspicion for the Traffic Stop
sole issue on appeal is whether the trial court erred in
denying Defendant's motion to suppress evidence resulting
from the traffic stop. In reviewing the denial of a
defendant's motion to suppress, we "determine
whether there was competent evidence to support the trial
court's underlying findings of fact" and
"whether the findings of fact support the trial
court's ultimate conclusions of law." State v.
Fleming, 106 N.C.App. 165, 168, 415 S.E.2d 782, 784
(1992). We review the trial court's conclusions of law
de novo, "consider[ing] the matter anew and
freely substitut[ing] [our] own judgment for that of the
trial court." State v. Knudsen, 229 N.C.App.
271, 281, 747 S.E.2d 641, 649 (2013).
"the United States and North Carolina Constitutions
protect an individual against unreasonable searches and
seizures." State v. Otto, 366 N.C. 134, 136,
726 S.E.2d 824, 827 (2012) (citing U.S. Const. amend. IV;
N.C. Const. art. I, § 20). In analyzing what constitutes
a "reasonable seizure," the United States Supreme
Court has consistently held that "a police officer may
effect a brief investigatory seizure of an individual where
the officer has reasonable, articulable suspicion that a
crime may be underway." State v. Barnard, 184
N.C.App. 25, 29, 645 S.E.2d 780, 783 (2007) (citing Terry
v. Ohio, 392 U.S. 1, 21, 20 L.Ed.2d 889, 906 (1968)).
Traffic stops are considered seizures" 'even though
the purpose of the stop is limited and the resulting