State v. Jackson

NO. COA13-743

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Guilford County
Nos. 12 CRS 24372, 74225, 74227
TIYOUN JIMEK JACKSON

Appeal by Defendant from order entered 10 January 2013 by

Judge C.W. Bragg and judgment entered 22 January 2013 by Judge

A. Robinson Hassell in Guilford County Superior Court. Heard in

the Court of Appeals 5 February 2014.

Attorney General Roy Cooper, by Assistant Attorney General
J. Aldean Webster III, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance E. Widenhouse, for Defendant.

STEPHENS, Judge.

Procedural and Factual Background

In this appeal, Defendant Tiyoun Jimek Jackson challenges

the trial court’s denial of his motion to suppress evidence

discovered by Officer Timothy D. Brown of the Greensboro Police

Department following an investigatory stop of Defendant on the

night of 9 April 2012.
 -2-
The order denying Defendant’s motion to suppress includes

the following pertinent findings of fact:

1. [Officer] Brown is and has been an
officer for the Greensboro Police
Department since August 15, 2009.

2. Officer Brown based on training and
experience is familiar with marijuana and
other narcotic drugs.

3. Officer Brown was on duty and in uniform
on Monday, April 9, 2012.

4. Prior to April 9, 2012, Officer Brown had
on two occasions contact with [D]efendant
. . . .

5. On the first occasion, Officer Brown
investigating a report of the discharging
of a firearm spoke with [D]efendant . . .
concerning that incident and recovered
from him a stolen firearm.

6. Approximately two months prior to April
9, 2012, Officer Brown was investigating
a breaking and entering in the area of
Lombardi Street in Greensboro, North
Carolina and again came into contact with
[D]efendant . . . .

7. . . . [D]efendant . . . was standing with
3 to 4 individuals in the area of the
reported breaking and entering.

8. As Officer Brown approached he could
smell the odor of marijuana.

9. Officer Brown conducted a search of the
individuals including [D]efendant . . . .

10. Officer Brown did find an amount of
marijuana, but not on the person of
 -3-
[D]efendant . . . .

11. On April 9, 2012, Officer Brown was
assigned and was patrolling zone 450 in a
marked patrol car.

12. Officer Brown at approximately 9:00 pm
was patrolling in the vicinity of Kim’s
Mart located at 2200 Phillips Avenue.

13. Based on Officer Brown’s experience as a
Greensboro Police Officer he knows that
the immediate area outside of Kim’s Mart
has been the location of hundreds of
narcotic investigations some resulting in
arrests.

14. Officer Brown has personally made drug
arrests in the immediate area of Kim’s
Mart.

15. Officer Brown is personally aware that
hand-to-hand drug transactions have taken
place on the sidewalk and street directly
adjacent to Kim’s Mart as well as inside
Kim’s Mart.

16. At approximately 9:00 pm on April 9, 2012
Officer Brown saw [D]efendant . . . and
Curtis M. Benton standing near the
newspaper dispenser outside of Kim’s
Mart.

17. Two days prior Officer Brown conducted a
motor vehicle stop in which Curtis M.
Benton was riding.

18. During the motor vehicle stop, Officer
Brown noticed the smell of marijuana
coming from the car.

19. [D]efendant . . . and Curtis M. Benton
upon spotting Officer Brown in his marked
patrol car stopped talking and dispersed.
 -4-

20. [D]efendant . . . went to the East and
walked into Kim’s Mart and Curtis M.
Benton walked away, in the opposite
direction, to the West.

21. Officer Brown testified that his training
and experience indicate that upon the
approach of a law enforcement officer,
two individuals engaged in a drug
transaction will separate and walk away
in opposite directions.

22. Officer Brown continued past Kim’s Mart
and down Phillips Avenue.

23. After losing sight of [D]efendant . . .
and Curtis M. Benton, Officer Brown made
a u-turn and headed back up Phillips
Avenue toward Kim’s Mart.

24. As Officer Brown again approached Kim’s
Mart, [D]efendant . . . and Curtis M.
Benton were again standing in front of
Kim’s Mart approximately 20 feet from
where Officer Brown saw them originally.

25. Officer Brown pulled into the parking lot
at Kim’s Mart.

26. As Officer Brown was pulling into the
parking lot at Kim’s Mart, [D]efendant
. . . and Curtis M. Benton again
separated and began walking away in
opposite directions.

27. As [D]efendant . . . was walking away
from Kim’s Mart, he came within 5-10 feet
of Officer Brown’s patrol car.

28. Officer Brown wanted to speak with
[D]efendant . . . about possible drug
activity.
 -5-
29. Officer Brown asked [D]efendant . . . to
place his hands on the patrol car . . . .

30. [D]efendant . . . placed his hands on the
front left fender of Officer Brown’s
patrol car.

Based on these findings, the court concluded “[t]hat based on

the totality of the circumstances . . . Officer Brown had a

reasonable and articulable suspicion that criminal activity was

afoot” and “was legally permitted to make a brief investigatory

stop of [D]efendant[.]” The court further found and concluded

that Defendant thereafter “consented to a search of his person

by Officer Brown” which led to the discovery of a handgun.1

While reserving the right to appeal the denial of his

motion, see N.C. Gen. Stat. § 15A-979(b) (2013), Defendant pled

guilty on 7 January 2013 to possession of a firearm by a felon,

possession of a firearm with an altered serial number, and

conspiracy to possess with intent to sell or deliver marijuana.

The trial court consolidated Defendant’s offenses for judgment,

suspended a prison sentence of twelve to twenty-four months, and

placed him on twenty-four months of supervised probation.

Appellate Jurisdiction

1
A subsequent search of Benton yielded “a bag containing a
multitude of smaller bags of marijuana.”
 -6-
Defendant has filed a petition for writ of certiorari,

acknowledging a jurisdictional defect in his notice of appeal,

to wit, that he did not initially appeal from the final judgment

as required by N.C.R. App. P. 4(b), but rather appealed only

from the denial of his suppression motion. See State v. Miller,

205 N.C. App. 724, 725, 696 S.E.2d 542, 542 (2010) (dismissing

appeal for lack of jurisdiction where the “[d]efendant did file

. . . a written notice of appeal from the denial of [the

d]efendant’s motion to suppress, but [the d]efendant did not

appeal from his judgment of conviction”) (internal quotation

marks omitted). Further, Defendant gave oral notice of appeal

thirteen days after the judgment was filed, rather than at trial

as required by N.C.R. App. P. 4(a)(1). See State v. Hammonds,

__ N.C. App. __, __, 720 S.E.2d 820, 823 (2012) (granting writ

of certiorari after dismissing an appeal for inadequate notice

where the defendant’s counsel attempted to give oral notice of

appeal to the trial court days after the trial and not “at

trial” as required by Rule 4).

As a result, Defendant’s “right to prosecute an appeal has

been lost by [his] failure to take timely action[.]” N.C.R.

App. P. 21(a)(1). The State has neither moved to dismiss

Defendant’s appeal nor opposed our review by writ of certiorari.
 -7-
Accordingly, we grant the requested writ and review Defendant’s

challenges to the denial of his suppression motion on the

merits.

Motion to Suppress

Defendant argues that the court erred in denying his motion

to suppress because Officer Brown lacked the reasonable

articulable suspicion of criminal activity needed to justify an

investigatory stop. See, e.g., State v. Battle, 109 N.C. App.

367, 370, 427 S.E.2d 156, 158 (1993) (citing Terry v. Ohio, 392

U.S. 1, 30, 20 L. Ed. 2d 889, 911 (1968)). Because the stop was

unlawful, Defendant further contends that his subsequent consent

to Officer Brown’s search of his person was invalid. We agree.

In reviewing the denial of a motion to suppress, our task

is to determine “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) (citation omitted). Findings

not challenged by Defendant “are deemed to be supported by

competent evidence and are binding on appeal.” Id. (citation

omitted). We review de novo a trial court’s conclusion of law

that an “officer had reasonable suspicion to detain a
 -8-
defendant[.]” State v. Kincaid, 147 N.C. App. 94, 97, 555

S.E.2d 294, 297 (2001) (citation omitted).

Here, Defendant challenges only finding of fact 5, which

states that Officer Brown recovered a stolen gun from Defendant

during a prior encounter with Defendant and another individual.

The evidence, however, shows that, although Officer Brown did

recover a stolen firearm during that encounter, “[D]efendant was

not the one that was actually charged in that[.]” This finding

of fact is not supported by competent evidence, and,

accordingly, we do not consider it in analyzing Defendant’s

challenge to the trial court’s ultimate conclusion that Officer

Brown had a reasonable suspicion of criminal activity justifying

an investigatory stop.2

2
We note that no evidence was introduced and no finding of fact
was made that Defendant had any criminal history, much less that
Officer Brown was aware of any previous criminal activity by
Defendant. Further, even had such evidence been introduced, “a
prior criminal record is not, standing alone, sufficient to
create reasonable suspicion.” United States v. Black, 707 F.3d
531, 540 (4th Cir. 2013) (citation and internal quotation marks
omitted). As for the findings of fact concerning Benton’s
criminal history, “[t]here is no reasonable suspicion merely by
association.” Id. at 539; see also State v. Smith, __ N.C. App.
__, __, 729 S.E.2d 120, 125 (noting that “a person’s mere
propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause to
search that person”) (citations and internal quotation marks
omitted), disc. review denied, 366 N.C. 396, 735 S.E.2d 190
(2012).
 -9-
“The Fourth Amendment protects the right of the people

against unreasonable searches and seizures. It is applicable to

the states through the Due Process Clause of the Fourteenth

Amendment. It applies to seizures of the person, including

brief investigatory detentions[.]” State v. Watkins, 337 N.C.

437, 441, 446 S.E.2d 67, 69-70 (1994) (citations, internal

quotation marks, and ellipsis omitted). Accordingly, “[a]n

investigatory stop must be justified by ‘a reasonable suspicion,

based on objective facts, that the individual is involved in

criminal activity.’” Id. at 441, 446 S.E.2d at 70 (quoting

Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979)).

“A court must consider the totality of the circumstances – the

whole picture in determining whether a reasonable suspicion to

make an investigatory stop exists.” Id. (citation and internal

quotation marks omitted). “This process allows officers to draw

on their own experience and specialized training to make

inferences from and deductions about the cumulative information

available to them that might well elude an untrained person.”

State v. Williams, 366 N.C. 110, 116-17, 726 S.E.2d 161, 167

(2012) (citation and internal quotation marks omitted).

However, case law has drawn clear limits on what inferences are

constitutionally permissible when an officer observes a citizen
 -10-
in an area known for illegal drug activity or other criminal

activity.

“[T]he presence of an individual on a corner specifically

known for drug activity and the scene of multiple recent arrests

for drugs, coupled with evasive actions by [a] defendant[, is]

sufficient to form reasonable suspicion to stop an individual.”

State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522

(1995) (citation omitted; emphasis added). While what

constitutes an “evasive action” has never been explicitly

defined, a careful review of case law from this State’s

appellate courts and from the United States Supreme Court

reveals that merely walking away from one’s companion in the

presence of law enforcement officers cannot be considered an

evasive action which, when coupled with one’s presence in an

area known for drug sales or other illegal activity, will

support the warrantless stop of a citizen.

For example, in State v. Fleming,

at the time [the o]fficer . . . first
observed [the] defendant and his companion,
they were merely standing in an open area
between two apartment buildings [in a “high
drug area”]. At this point, they were just
watching the group of officers standing on
the street and talking. The officer
observed no overt act by [the] defendant at
this time nor any contact between [the]
defendant and his companion. Next, the
 -11-
officer observed the two men walk between
two buildings, out of the open area, toward
Rugby Street and then begin walking down the
public sidewalk in front of the apartments.
These actions were not sufficient to create
a reasonable suspicion that [the] defendant
was involved in criminal conduct, it being
neither unusual nor suspicious that they
chose to walk in a direction which led away
from the group of officers.

106 N.C. App. 165, 170-71, 415 S.E.2d 782, 785 (1992) (emphasis

added). Thus, walking away from law enforcement officers with

one’s companion after watching law enforcement officers is not

suspicious and, even when coupled with being present in an area

known for drugs, cannot create the reasonable suspicion needed

to justify a stop. Id.; see also In re J.L.B.M., 176 N.C. App.

613, 620, 627 S.E.2d 239, 245 (2006) (holding there was no

reasonable suspicion where an officer “relied solely on the

dispatch that there was a suspicious person at the Exxon gas

station, that the juvenile matched the ‘Hispanic male’

description of the suspicious person, that the juvenile was

wearing baggy clothes, and that the juvenile chose to walk away

from the patrol car”).

In Brown, two police officers observed [the]
defendant and another person walking away
from one another in an alley. The officers
drove into the alley, approached [the]
defendant and asked him to identify himself
and to explain what he was doing there.
[The d]efendant refused and told the
 -12-
officers they had no right to stop him. One
of the officers told [the] defendant he was
in a high drug area; the other officer then
frisked [the] defendant and found nothing.
At trial, one officer testified that he had
stopped [the] defendant because the
situation looked suspicious and he had never
seen that subject in that area before.
Further, the area where [the] defendant was
stopped had a high incidence of drug
traffic. The officers never claimed to
suspect [the] defendant of any specific
misconduct, nor did they have any reason to
believe [the] defendant was armed.

Fleming, 106 N.C. App. at 170, 415 S.E.2d at 785 (internal

quotation marks omitted) (discussing the circumstances present

in Brown, which did not create the reasonable suspicion needed

to sustain a stop). Thus, walking away from one’s companion in

the presence of law enforcement officers, even when coupled with

being present in an area known for drugs, cannot create

reasonable suspicion.

In contrast, in State v. Butler, the circumstances relevant

to a determination of reasonable suspicion were:

1) [the] defendant was seen in the midst of
a group of people congregated on a corner
known as a “drug hole”; 2) [the officer] had
had the corner under daily surveillance for
several months; 3) [the officer] knew this
corner to be a center of drug activity
because he had made four to six drug-related
arrests there in the past six months; 4)
[the officer] was aware of other arrests
there as well; 5) [the] defendant was a
stranger to the officers; 6) upon making eye
 -13-
contact with the uniformed officers, [the]
defendant immediately moved away, behavior
that is evidence of flight; and 7) it was
[the officer’s] experience that people
involved in drug traffic are often armed.

331 N.C. 227, 233, 415 S.E.2d 719, 722 (1992). The Court

specifically distinguished the circumstances in Butler from

those in Brown by noting “an additional circumstance — [the]

defendant’s immediately leaving the corner and walking away from

the officers after making eye contact with them.” Id. at 234,

415 S.E.2d at 722-23 (emphasis added). The Court construed

these actions as “behavior that is evidence of flight[.]” Id.

at 233, 415 S.E.2d at 722 (emphasis added). Thus, making eye

contact with an officer before immediately turning and walking

away in a manner which suggests an attempt to flee, when coupled

with being present in an area known for drugs, will establish

reasonable suspicion to sustain a stop.3

3
In contrast, simply observing law enforcement officers before
walking away from them does not support a determination of
reasonable suspicion. See Fleming, 106 N.C. App. at 170, 415
S.E.2d at 785 (finding no reasonable suspicion where the
defendant and his companion “were just watching the group of
officers standing on the street and talking” before walking
away). Here, finding of fact 19 simply states that Defendant
and his companion dispersed “upon spotting” Officer Brown in his
marked patrol car. No finding of fact states that Defendant
made eye contact with Officer Brown, and no testimony at the
suppression hearing would have supported such a finding.
Indeed, Officer Brown testified that, at the time he saw
Defendant and his companion outside Kim’s Mart, it was “dark”
 -14-
In Watson, upon the approach of law enforcement officers,

the “defendant immediately attempted to enter the convenience

store to avoid detention . . . [and] made evasive maneuvers to

avoid detection, i.e., putting the drugs in his mouth,

attempting to swallow the drugs by drinking Coca-Cola and

attempting to go into the store[.]” 119 N.C. App. at 398, 458

S.E.2d at 522 (italics added). The defendant’s attempt to

swallow drugs, coupled with his presence in an area known for

drugs, created reasonable suspicion for a stop. Id. In State

v. Sutton, the defendant’s evasive action was “clinch[ing]”

something in a waistband and posturing to conceal an item from a

nearby officer. __ N.C. App. __, __, 754 S.E.2d 464, 471-72

(2014) (“While many of the facts in Fleming are the same or

similar to this case, in Fleming, the defendant did not make any

overt actions, and here [the] defendant did when he used his

right hand to grab his waistband to clinch an item.”).

Similarly, in State v. Willis, the circumstances supported a

determination of reasonable suspicion when a defendant “left a

suspected drug house just before [a] search warrant was

executed[,] . . . [took] evasive action when he knew he was

and that, “as soon as they observed my police vehicle, you had
[D]efendant . . . walk east, as if he was walking into the
store. And then [his companion] actually walked west, away from
the store.”
 -15-
being followed[,] . . . [and] exhibited nervous behavior.” 125

N.C. App. 537, 542, 481 S.E.2d 407, 411 (1997). Thus, overt,

evasive behaviors such as attempting to destroy contraband,

behaving nervously while being followed, or concealing items

from the view of officers, when coupled with being present in

high crime areas, can create reasonable suspicion.

Here, the unchallenged findings of fact reveal that the

following circumstances led to Officer Brown’s stop of

Defendant: (1) it was approximately 9:00 p.m.;4 (2) the area

around Kim’s Mart was known for illegal drug sales and had been

the location of numerous drug-related arrests; (3) Defendant and

a companion were standing together in front of Kim’s Mart; (4)

when the men saw Officer Brown’s car, they began walking in

opposite directions and Defendant entered Kim’s Mart; (5) when

4
The time of the stop, 9:00 p.m., cannot be considered a
suspicious time to be at Kim’s Mart, since that establishment
was apparently open for business. See, e.g., State v. Rinck,
303 N.C. 551, 555-60, 280 S.E.2d 912, 916-20 (1981) (holding
that circumstances supporting a reasonable basis for a stop
included the defendants walking along a road at an “unusual
hour” of approximately 1:35 a.m.); State v. Blackstock, 165 N.C.
App. 50, 59, 598 S.E.2d 412, 418 (2004), appeal dismissed and
disc. review denied, 359 N.C. 283, 610 S.E.2d 208 (2005)
(holding that reasonable suspicion existed where the defendant
and a companion were observed loitering at a closed shopping
center shortly before midnight, and, upon seeing law enforcement
officers, hurriedly returned to their vehicle, which was parked
out of general public view).
 -16-
Officer Brown turned his car around and returned, the two men

were again standing together in front of Kim’s Mart; and (6)

when Officer Brown pulled into the store parking lot, Defendant

and his companion again walked away from each other, with

Defendant walking toward Officer Brown.

Thus, the totality of the relevant circumstances here

consists of nothing more than (1) being in an area known for

drug sales and (2) walking away from a companion in the presence

of an officer twice. Defendant’s presence with a companion at

Kim’s Mart, a location known for drug sales, cannot create

reasonable suspicion to support a stop. See Brown, 443 U.S. at

52, 61 L. Ed. 2dat 365 (“There is no indication in the record

that it was unusual for people to be in the alley. The fact

that [the defendant] was in a neighborhood frequented by drug

users, standing alone, is not a basis for concluding that [the

defendant] himself was engaged in criminal conduct. In short,

the [defendant’s] activity was no different from the activity of

other pedestrians in that neighborhood.”). As discussed supra,

that Defendant walked away from his companion after seeing

Officer Brown, even in a known drug area, cannot create

reasonable suspicion. See Fleming, 106 N.C. App. at 170, 415

S.E.2d at 785. Nothing in the findings of fact suggests that
 -17-
Defendant took any “evasive” action or engaged in behavior that

could be construed as flight such as trying to swallow drugs,

see Watson, 119 N.C. App. at 398, 458 S.E.2d at 522; concealing

something from Officer Brown, see Sutton, __ N.C. App. at __,

754 S.E.2d at 466; making eye contact with the officer and then

immediately walking away, see Butler, 331 N.C. at 234, 415

S.E.2d at 722-23; or behaving nervously while being followed.

See Willis, 125 N.C. App. at 542, 481 S.E.2d at 411.

On the contrary, Defendant’s actions were anything but

evasive or evidence of flight. Finding of fact 27 notes that,

as Defendant “was walking away from Kim’s Mart, he came within

5-10 feet of . . . Brown’s patrol car.” Here, as in Fleming,

Officer Brown observed no overt act by Defendant nor any contact

between Defendant and his companion that would suggest Defendant

was engaged in, or about to engage in, criminal activity of any

kind, including illegal drug activity. He simply saw two young

men standing in front of a convenience store move away from each

other twice. In sum, the United States Supreme Court, our own

North Carolina Supreme Court, and previous panels of this Court

have consistently held that these circumstances cannot create

the reasonable suspicion required to permit police intrusion

upon the liberty of our State’s citizens.
 -18-
Having determined that the initial investigatory stop was

unlawful, we need not consider whether Defendant’s consent to

Officer Brown’s search of his person was valid. See State v.

Guevara, 349 N.C. 243, 249, 506 S.E.2d 711, 716 (1998), cert.

denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999) (noting that

evidence obtained as the result of illegal police conduct must

be suppressed). The order denying Defendant’s motion to

suppress is reversed and the judgment entered upon Defendant’s

guilty plea is vacated.

REVERSED and VACATED.

Judge BRYANT concurs.

Judge DILLON dissents in a separate opinion.
 NO. COA13-743

NORTH CAROLINA COURT OF APPEALS

Filed: 20 May 2014

STATE OF NORTH CAROLINA

v. Guilford County
Nos. 12 CRS 24372
TIYOUN JIMEK JACKSON 12 CRS 74225, 74227

DILLON, Judge, dissenting.

I agree with the majority that the trial court’s Finding of

Fact 5 – the only finding challenged by Defendant – is not

supported by the evidence of record. However, because I believe

that the remaining findings are sufficient to support the

court’s conclusion that Officer Brown possessed the reasonable

suspicion requisite to justify an investigatory stop under the

circumstances, I respectfully dissent.

As the majority points out, we have held that “the presence

of an individual on a corner specifically known for drug

activity and the scene of multiple recent arrests for drugs,

coupled with evasive actions by [a] defendant[,] are sufficient

to form reasonable suspicion to stop an individual.” State v.

Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522 (1995).

Defendant does not dispute the trial court’s findings that

Officer Brown was aware that Kim’s Mart – where the stop in
 -2-
question occurred – was a high-crime area, where numerous drug

transactions had taken place and where Officer Brown had made a

number of drug-related arrests. The sole issue, therefore, is

whether the trial court’s remaining findings are sufficient to

establish that Defendant engaged in “evasive actions” sufficient

to give rise to reasonable suspicion.

This court has held, as the majority points out, that an

individual’s action in merely walking away from one’s companion

cannot be considered evasive action sufficient to form

reasonable suspicion. State v. Fleming, 106 N.C. App. 165, 171,

415 S.E.2d 782, 785 (1992). However, as the majority also

points out, our Supreme Court has held that there is reasonable

suspicion to justify an investigatory stop where an individual

who walks away from his companion in a high-crime area does so

“after making eye contact” with a police officer. State v.

Butler, 331 N.C. 227, 234, 415 S.E.2d 719, 723 (1992) (emphasis

added).

I believe that Defendant’s actions here were more evasive

than those of the defendant in Butler; and, accordingly, I

believe that we are compelled to conclude that Officer Brown

conducted a valid stop under the circumstances. Unlike Fleming,

where the defendant simply walked away from the police, here
 -3-
Defendant engaged in a sequence of suspicious behaviors upon

observing Officer Brown’s patrol car. For instance, the trial

court found that “Defendant . . . and [his companion] upon

spotting Officer Brown in his marked patrol car stopped talking

and dispersed [from the front of Kim’s Mart].” (Emphasis

added.) This unchallenged finding is comparable to the key

finding in Butler that the defendant “upon making eye contact

with the uniformed officers . . . moved away.” Butler, 331 N.C.

at 233, 415 S.E.2d at 722. Additionally, the trial court found

that Officer Brown continued driving past Kim’s Mart and lost

sight of Defendant and his companion before executing a U-turn

and driving back toward Kim’s Mart, where he observed Defendant

and his companion once again standing together. Finally, the

trial court found that when Officer Brown pulled into the Kim’s

Mart parking lot, Defendant and his companion again dispersed.

Any one of Defendant’s actions, standing alone, might not

satisfy the requirements of the Fourth Amendment to conduct a

Terry stop. However, I believe that Defendant’s actions, when

considered in their totality, namely: (1) that Defendant and his

companion split up upon spotting Officer Brown’s patrol car

drive by Kim’s Mart the first time; (2) that Defendant and his

companion reconvened once Officer Brown was out of site; and (3)
 -4-
that Defendant and his companion split up a second time upon

observing Officer Brown driving back towards Kim’s Mart – were

certainly more evasive than the actions of the defendant in

Butler. Accordingly, I believe that Officer Brown conducted a

valid investigatory stop of Defendant in the present case, and I

would affirm the trial court on this basis.