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State v. Holley

Court of Appeals of North Carolina

September 3, 2019

STATE OF NORTH CAROLINA
v.
KENNETH TYRELL HOLLEY, Defendant.

          Heard in the Court of Appeals 10 April 2019.

          Appeal by Defendant from judgment entered 2 February 2018 by Judge Wayland J. Sermons, Jr. in Chowan County, No. 16 CRS 050264 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Asher P. Spiller, for the State.

          Sarah Holladay for defendant-appellant.

          MURPHY, JUDGE.

         A defendant's flight from a lawful investigatory stop may provide law enforcement officers with probable cause to arrest the defendant for resisting, delaying, or obstructing a public officer. However, a defendant's flight from a consensual encounter with officers or from an unlawful investigatory stop that is unsupported by reasonable suspicion does not provide an officer with probable cause to arrest the defendant for that offense. Here, the officer lacked reasonable suspicion to effect a lawful investigatory stop; thus, Defendant's flight from that encounter did not provide the officer with probable cause to arrest him for resisting, delaying, or obstructing a public officer. Defendant's arrest was therefore unlawful and in violation of the Fourth Amendment.

         Evidence obtained as a result of an unlawful seizure is generally inadmissible in a criminal prosecution of the individual subjected to unconstitutional conduct. However, property voluntarily abandoned by a defendant before a seizure has occurred is not fruit of that seizure and may be admitted as evidence. A person is not seized while in flight from an unlawful investigatory stop, but rather only when that person submits to the show of authority. The evidence at trial established that the firearm sought to be admitted by the State was voluntarily abandoned by Defendant prior to him being seized by officers. Defendant fails to show error, much less plain error, in its admission at trial.

         BACKGROUND

         On 14 June 2016, Police Chief Jay Fortenbery ("Chief Fortenbery") of the Edenton Police Department received a call from an informant from whom he had previously received information approximately two to three times. The informant reported that "a drug deal had just gone down at the corner store which is located at Granville Street and Carteret Street and that two guys had left walking that were involved in it and they were headed down Granville Street." The informant described the two men as "two black males" and that "one was wearing a black T-shirt and one was wearing a white shirt." Chief Fortenbery was familiar with the area described by the informant, stating, "[w]e have had several arrests at that location for narcotics in the area" and that he recalled three narcotics arrests he personally made in that area.

         Chief Fortenbery sent out a radio transmission to other officers regarding reported suspicious activity near the corner store. Chief Fortenbery did not communicate the identity of the informant, his or her reliability, or the contents of what the informant reported. Officer Jeff Church ("Officer Church"), also of the Edenton Police Department, was approximately three blocks away from that location and responded to Chief Fortenbery's radio transmission. Officer Church was also familiar with the area, having responded to issues at that location ranging from "loitering" and "loud music" to "shots fired" at a vehicle. Upon arriving at the location in his marked patrol car, Officer Church observed "two black males, one wearing a white shirt, [and] one wearing a black shirt walking [on the sidewalk] towards North Broad Street away from the store." Officer Church stated the men saw him arrive and park in his marked patrol car. The man in the white shirt, later identified as Defendant, walked to the driveway of a home and "went to the first door that was available[.]" As Defendant was touching the door handle of the home, Officer Church yelled for Defendant to stop, at which time Defendant looked at Officer Church and ran.

         As Officer Church gave chase, Defendant attempted to jump over a fence in a wooded area north of the home. After an unsuccessful attempt, Defendant "pulled out a handgun out of his waistband[, ]" and Officer Church could see the firearm in Defendant's right hand. Officer Church radioed other officers and reported that Defendant had a firearm and provided the officers with a description of Defendant and the direction in which Defendant was traveling. Defendant again attempted to jump the fence and was successful, causing Officer Church to lose sight of Defendant as he fled.

         Officer Austin Wynn ("Officer Wynn") responded to the "radio traffic" about these events and went to the street Officer Church reported Defendant was heading towards. Officer Wynn did not see Defendant and returned to the street where Defendant was initially seen before fleeing. On this street, Officer Wynn observed Defendant walking and noted that Defendant "was very sweaty[] and had a lot of grass on him from head to toe." Officer Wynn asked Defendant to stop and provide identification, and Defendant continued to walk. After Officer Wynn asked

         Defendant to stop "a few more times[, ]" Defendant did so. Officer Wynn contacted Officer Church over the radio, and Officer Church joined Officer Wynn and Defendant. Officer Church confirmed Defendant was the individual who fled. Defendant was placed under arrest for resisting, delaying, or obstructing a public officer. The firearm was not found on Defendant's person.

         The K-9 unit was called in to assist in the search along the "flight path" for the firearm Officer Church observed on Defendant's person. A black firearm was "tucked up underneath a shed, an outbuilding, and there was foliage overtop of it." Defendant was subsequently indicted on 18 July 2016 for possession of a firearm by a felon, and the State later dismissed the resisting, delaying, or obstructing a public officer charge. Defendant filed a motion to suppress evidence which the trial court denied after a pretrial hearing. Defendant did not object to the introduction of the evidence at trial. A jury convicted Defendant of being a felon in possession of a firearm, and the trial court sentenced Defendant to 22 to 36 months' imprisonment. Defendant gave oral notice of appeal.

         ANALYSIS

         A. Standard of Review

         When a defendant challenges the denial of a motion to suppress evidence, our review is limited to determining "whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law." State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011). If supported by competent evidence, the trial court's findings of fact are conclusive on appeal "even if the evidence is conflicting." State v. Hammonds, 370 N.C. 158, 161, 804 S.E.2d 438, 441 (2017) (citation and internal quotation marks omitted). Similarly, unchallenged findings of fact are binding on appeal. Biber, 365 N.C. at 168, 712 S.E.2d at 878. "Conclusions of law are reviewed de novo and are subject to full review." Id. Under a de novo review, we consider the matter anew, freely substituting our own judgment for that of the trial court. Id.

         Generally, when a defendant fails to object to the admission of evidence at trial, he or she completely waives appellate review of his or her Fourth Amendment claims regarding that evidence. See State v. Miller, 371 N.C. 266, 273, 814 S.E.2d 81, 85 (2018). However, where a defendant has moved to suppress evidence and "both sides have fully litigated the suppression issue at the trial court stage," but the defendant fails to object to its admission at trial, we apply plain error review. Id. at 272, 814 S.E.2d at 85; State v. Grice, 367 N.C. 753, 755, 764, 767 S.E.2d 312, 315, 320, cert. denied, __ U.S. __, 192 L.Ed.2d. 882 (2015). Here, Defendant filed a motion to suppress the firearm but failed to object to its admission at trial. Accordingly, we review for plain error.

         Our Supreme Court has established the plain error standard of review:

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice-that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations, alterations, and internal quotation marks omitted).

         B. Denial of Defendant's Motion to Suppress

         The trial court denied Defendant's motion to suppress the firearm, concluding the arrest for resisting, delaying, or obstructing a public officer was supported by probable cause and that the evidence seized was available for trial. We conclude the trial court erred in its conclusion that the arrest was supported by probable cause.

         1. Legal Principles

         The Fourth Amendment protects "[t]he right of the people to be secure in their persons . . . against unreasonable . . . seizures." U.S. Const. amend. IV. An arrest is, of course, a seizure protected by the Fourth Amendment, and law enforcement officers who make a warrantless arrest are required to have probable cause that the individual has committed a criminal offense. Biber, 365 N.C. at 168, 712 S.E.2d at 879. "Probable cause is defined as those facts and circumstances within an officer's knowledge and of which he had reasonably trustworthy information which are sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense." Id. at 168-69, 712 S.E.2d at 879 (citation and internal quotations marks omitted); Beck v. Ohio, 379 U.S. 89, 91, 13 L.Ed.2d 142, 145 (1964). While probable cause "does not demand any showing that such a belief be correct or more likely true than false" and only requires a "practical, nontechnical probability[, ]" Texas v. Brown, 460 U.S. 730, 742, 75 L.Ed.2d 502, 514 (1983) (citation and internal quotation marks omitted), "a finding of probable cause must be supported by more than mere suspicion." State ...


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