in the Court of Appeals 10 April 2019.
by Defendant from judgment entered 2 February 2018 by Judge
Wayland J. Sermons, Jr. in Chowan County, No. 16 CRS 050264
Attorney General Joshua H. Stein, by Assistant Attorney
General Asher P. Spiller, for the State.
Holladay for defendant-appellant.
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.
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.
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
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
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.
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
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
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.
Standard of Review
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
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.
Supreme Court has established the plain error standard of
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
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d
326, 334 (2012) (citations, alterations, and internal
quotation marks omitted).
Denial of Defendant's Motion to Suppress
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.
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 ...