State v. Thorpe

NO. COA13-791

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2014

STATE OF NORTH CAROLINA

v. Durham County
No. 10 CRS 62009
DEVINE DRAKKAR THORPE

Appeal by defendant from order entered 28 July 2011 by Judge

Orlando Hudson and judgment entered 3 August 2011 by Judge Carl R.

Fox in Durham County Superior Court. Heard in the Court of Appeals

12 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General
Melissa H. Taylor, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate
Defender Paul M. Green, for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Devine Thorpe (“Defendant”) appeals from the denial of his

motion to suppress, arguing (1) that the conduct and duration of

his detention constituted a warrantless arrest that required

probable cause; (2) that statements taken at the police station

after his arrest were impermissible fruits of the unlawful arrest;

(3) that Defendant’s statement taken in a police car was done in

violation of Miranda v. Arizona, 384 U.S. 436 (1966); (4) that

Defendant’s statements to the arresting officer were coerced; and
 -2-

(5) that Defendant’s statements taken at the police station were

also taken in violation of the United States Supreme Court’s ruling

in Missouri v. Seibert, 542 U.S. 600 (2004).

We conclude that the trial court failed to make adequate

findings to permit review of its determination that Defendant was

not placed under arrest when he was detained for nearly two hours.

Specifically, on remand the trial court must make appropriate

findings about whether Officer Mellown diligently pursued his

investigation so as to justify an extended detention.

I. Facts & Procedural History

On 7 February 2011, Defendant was indicted in Durham County

on one count of Felonious Breaking and/or Entering and one count

of Conspiracy to Commit Felonious Breaking and Entering. On 25

April 2011, Defendant moved to suppress the oral and written

statements he made to investigating officers, alleging that they

were taken in violation of his Fourth, Fifth, Sixth and Fourteenth

Amendment rights. The State moved to dismiss Defendant’s motion.

Durham Superior Court Judge Orlando Hudson held a suppression

hearing on Defendant’s motion on 29 June 2011. The trial court

denied Defendant’s motion to suppress orally at the hearing and

filed a written order on 28 July 2011. The transcript of the

hearing tended to show the following facts.
 -3-

T.J. Mellown (“Officer Mellown”) is an investigator with the

Durham County Sheriff’s Office, where he has worked since August

1997. Officer Mellown testified that on 10 December 2010, he was

on duty as radio calls were made about the incident around 11:00

a.m. Officer Mellown said there were “various calls on the radio

that there had been a subject who had been found shot” and that a

residence was broken into in the southern part of Durham County.

Officer Mellown also said there were conflicting radio reports of

multiple subjects fleeing the scene. Officer Mellown said he heard

that a number of other officers were heading to the scene, so

instead he went to Duke Hospital arriving around 11:00 a.m.

Officer Mellown previously worked in emergency medicine and said

I’ve seen situations like this that have
happened before where people have been shot
during the commission of a crime. My
experience has been that, lots of times,
people will drive themselves to the hospital.
I thought that if one person had been shot,
there was a chance that other people had been
shot, and so I went to the ER to see if anybody
would show up.

When Officer Mellown reached Duke Hospital, he testified that

he parked his vehicle in front of the emergency department and

stepped inside the hospital. Officer Mellown told the security

guards why he was present and that he “was waiting to see if anyone

would show up from this incident.” Officer Mellown said he began
 -4-

“calling the emergency departments over at Durham Regional

Hospitals and also at UNC Hospitals” to ask them to contact him if

anyone arrived in a personally owned vehicle with a gunshot wound.

After “approximately ten minutes,” Officer Mellown testified

he saw a white Dodge Charger pull in front of the emergency room.

Officer Mellown said two men, Defendant and Gary Brady (“Brady”),

pulled a critically injured passenger from the front passenger

seat. Officer Mellown believed the man was shot and said “it

looked like he was going to die in about the next hour or so.”

Officer Mellown saw Defendant as one of the men pulling the

passenger from the car, although he “wasn’t sure what his role was

in relation to this incident at all,” but that he had a “hunch”

that Defendant was involved.

Officer Mellown said he was concerned about the safety of

Defendant and the public, and so he attempted to detain Defendant

and the other young man as they approached the front of the

hospital. Officer Mellown frisked both Defendant and Brady,

although he “did not know what was going on” at that time. Officer

Mellown said Defendant and Brady were “very emotionally charged

up. They were upset, they were excited. When I tried to tell

them that I needed to pat them down, that I needed to figure out

what was going on before anything else happened, there was a lot
 -5-

of yelling back and forth.” Officer Mellown said Defendant and

Brady “told [him] that [he] did not have the right to detain them,

that [he] didn’t have the right to pat them down.” Officer Mellown

said it took a few minutes to calm everyone down to a level where

he could proceed. Officer Mellown then performed a pat down and

found no weapons on Defendant or Brady. During the pat down,

Officer Mellown noticed a gunshot wound to Brady’s arm and

subsequently Brady was taken by the Duke nursing staff for

treatment.

Officer Mellown said he then handcuffed Defendant, took

Defendant to his police car, put Defendant in the front passenger

seat, and then sat in the driver’s seat next to Defendant. Officer

Mellown told Defendant “he was being detained, and I had to find

out what was going on before I knew what to do.” Officer Mellown

explicitly told Defendant he was not under arrest, but also said

Defendant was not free to leave his vehicle.

Officer Mellown said Defendant “made no verbal threats,” but

that Defendant “was edging into personal space” while Officer

Mellown was frisking Brady. Officer Mellown did not provide

Miranda warnings at that time to Defendant, and began asking where

the man who was shot came from, Defendant’s date of birth, and

other demographic questions. Defendant responded to Officer
 -6-

Mellown’s questioning by telling him he was playing “video games

with some people on the house on Rowena Avenue, and that he

[received] a phone call saying that his cousin had been shot in

some area behind Parkwood, and that he went there, picked up his

cousin, and drove him to the hospital.” Officer Mellown said he

went through this story a few times with Defendant, who at that

point did not admit to anything beyond that statement. Officer

Mellown’s “concern[s] about gang reprisals kind of went away after

[Defendant] told me where they picked up the gentleman who had

been shot at.”

After ten or fifteen minutes of questioning, Officer Mellown

placed Defendant with one of the security guards at the hospital,

and “left him sort of in the care of him,” while Defendant was

still handcuffed. Officer Mellown then went to speak with Brady,

saying that there was not a “solemn decision that [Defendant] was

going to be arrested” at that time. Defendant was not placed under

formal arrest until he was taken to the police station at around

1 p.m.

Officer Mellown said he placed Defendant under formal arrest

because he received “statements from some of the other persons

involved as to why they had been there . . . that they were involved

in breaking into the residence, that this was related to the
 -7-

shooting for which I had gone out to the ER.” Officer Mellown

also researched the location of Rowena Avenue and said Defendant’s

statements of traveling from Rowena to Parkwood to retrieve his

wounded cousin were not feasible given the timing and sequence of

events. Officer Mellown also spoke with Brady, who stated that

“they” were driving around, broke into a home, and were shot.

After Brady was given Miranda warnings, he declined to make any

further statements.

Defendant was transported by other officers in a “marked car,

with the cage in the back” to the police station. At the police

station, Defendant was advised that he was under arrest and given

Miranda warnings. Defendant asked why he was under arrest and

began to cry once being informed he was under arrest. Officer

Mellown was present during the videotaped interview and was

accompanied by Sergeant Davis. Officer Mellown said Sergeant Davis

raised his voice during the interview, pointed his finger at

Defendant, and told Defendant to cooperate with Officer Mellown.

Defendant waived his Miranda rights at that time orally and shortly

after by written waiver. After the videotaping ceased, Officer

Mellown asked Defendant to clarify his statement to add an

admission of breaking and entering, which Officer Mellown said

Defendant admitted during their conversation.
 -8-

In the videotaped interview, Officer Mellown said Defendant

admitted to taking part in the breaking and entering of the home:

He told me that he had spent the night at a
house on Ruby Ridge, which is a small housing
development in eastern Durham, and that he had
spent the night there. Some people came over
and woke him up at, I believe, about 8:30 in
the morning.

They asked him to -- they asked him to drive
them around. Eventually, they drove to a small
area behind Parkwood, where they asked him to
let them off at a small house that he described
as, I think, being tucked back in the woods.

He drove around a little bit. They gave him a
call on a cell phone. He drove back to the
area, and found that his -- I believe the
gentleman’s name was Omari Eubanks had been
shot in the back. And he was lying on the --
on the yard outside one of the neighboring
residences.

And, I’m sorry, I’m not sure if it was Omari
that he picked up or the other one. But one of
his companions had been shot in the back, was
lying in the -- in the yard in a nearby house.

. . . .

Initially in the car, he just told me that he
had been playing video games on Rowena Avenue
and that he received a phone call, drove to
Parkwood and drove around, found where his
cousin had been shot, picked him up and drove
him to -- drove him to Duke.

When we Mirandized him and he made a
statement, he changed that to he took these
-- his companions to, I believe, a Shell
station that was off of Highway 54 near
Southpoint, dropped them off at the Shell
 -9-

station.

We kind of explored that a little bit further,
and he told me that he actually picked them
-- or they actually left Ruby Ridge, started
driving around, found the house that was
tucked back in in [sic] the woods.

He dropped them off at the house, drove around
for a few minutes, got a phone call to come
pick up his cousin, who had been shot, drove
back to the residence, picked up his cousin
and then drove to Duke.

Defendant was indicted on 7 February 2011. On 25 April 2011

Defendant filed a motion to suppress his statements made to Officer

Mellown and at the police station, which was denied on 28 July

2011 via written order. In the trial court’s written order, the

trial court made the following findings of fact:

1. On or about December 10, 2010 at or about
11:19 a.m., Investigator Mellown of the Durham
Police Department arrived at Duke Emergency
Department.

2. At or about 11:30 a.m. Investigator
Mellown was standing in the area near the
entrance to the waiting room when he saw two
black males dragging a third black male from
a white Dodge Charger. Investigator Mellown
observed that the black male being dragged
from the car was “limp and appeared to have a
diminished level of consciousness.”

3. After emergency room staff took that
third person to the patient care area for
treatment, Investigator Mellown attempted to
detain the other two persons. The other two
persons were “both aggressive, belligerent,
and noncompliant with orders.”
 -10-

4. Investigator Mellown was able to
determine that the shorter of the two persons
had been shot in the arm. A security officer
escorted him to the triage nurse for
treatment, and the other person, subsequently
identified as defendant Devine Thorpe, was
handcuffed and searched.

5. After approximately ten minutes,
Defendant had calmed down to the point where
Investigator Mellown was able to talk to him
without raising his voice. Investigator
Mellown escorted Defendant to his vehicle, and
placed him in the front passenger’s seat.
Defendant remained handcuffed.

6. Investigator Mellown advised Defendant
that “he was not under arrest, but that I was
going to be detaining him until I could
determine what was taking place. I told him
that I did not know why he was there, or why
his friend had been shot, and that I had to
find out what was going on before I knew how
to proceed with this situation.”

7. In response, Defendant told Investigator
Mellown his name and date of birth. Defendant
also stated that “he was at this residence at
1134 Rowena Ave when he got a call from someone
stating that his cousin had been shot. This
person told Thorpe to go pick up his cousin
near Parkwood. Thorpe said that he drove to
Parkwood and found his brother lying on the
side of the road. He stated that he put his
cousin in the car, and then drove to Duke.
Thorpe clarified his story to tell me that his
cousin’s name was Omari Mitchell.”

8. Investigator Mellown told Defendant that
he was having a hard time working out a time
line of these events, and asked him to tell
him again what happened. Defendant stated the
same thing.
 -11-

9. After approximately fifteen minutes,
Investigator Mellown escorted Defendant back
to the security office at the Emergency Room
and left him with a security guard.

10. It is unclear how long Defendant remained
held in the security office until Investigator
Mellown took Defendant down to the police
station.

11. At approximately 1:18 p.m. Investigator
Mellown advised Defendant of his Miranda
Rights.

12. At or about 1:20 p.m. Defendant signed
the waiver of his rights form. He then made
a statement that “This morning I woke up and
was asked to ride with Omari, James, and Feet.
An [sic] we rode to Parkwood where a lot of
houses were and I let them out of the car. So
they get out and I pulled off. After about 20
mins,[sic] I get a phone call saying that
Omari, James, and Feet has [sic] been shot.
So, I turn the car around and drive through
parkwood [sic] to find them as I come to an
entersection [sic] I see Omari laying in the
road and I helped him in the car and took him
to the hospital. /s/ Devin Thorpe 9-24-1990.”

The trial court then made the following conclusions of law:

1. Investigator Mellown had reasonable
suspicion to detain the Defendant and perform
an investigative stop.

2. The Defendant was not in custody at the
time he gave his first statement to Detective
Mellown.

3. No Miranda warning was necessary during
the investigative stop of the defendant at
Duke Hospital.
 -12-

4. The Defendant’s statements to Detective
Mellown at Duke Hospital were voluntarily
made.

5. The defendant was later placed under
arrest.

6. The Defendant waived his Miranda Rights
orally and in written form.

7. The Defendant’s statements made after he
waived his right to remain silent were
voluntarily given.

8. Based on the totality of the
circumstances, no threat or promises induced
the Defendant to make his confession.

9. None of the [Defendant’s] substantive
rights were denied by law enforcement during
the investigation and arrest of the Defendant.

On 3 August 2011, Defendant entered a negotiated guilty plea

to both counts of the indictment before Judge Carl R. Fox, but

reserved his right to appeal. The factual basis of the plea stated

that on 10 December 2010 at around 11 a.m., Timothy Nelson, Omari

Mitchell, and Gary Brady broke into Charles Dellerman’s

(“Dellerman”) home. Dellerman, a photographer by profession, was

asleep for around five hours prior to his alarm sounding at that

time, as he had worked late the night before. When Dellerman

awoke, he heard dogs barking and “a crash and a bang.” Dellerman

was confused as to the noise’s origin, but then heard “another

bang.” Dellerman retrieved his .45 caliber Taurus firearm and
 -13-

proceeded downstairs to investigate the noises. As he descended,

Dellerman “continued to hear rummaging.” Dellerman continued to

the room where he performed his photographic work and heard someone

say “Get him.”

Dellerman immediately began “blazing” and discharged several

shots. Dellerman later said that there were three individuals in

his home, all of whom he hit with his gunshots. Neighbors also

reported seeing two individuals limping down the street. The plea

also recounted that Defendant was not present at the time Dellerman

shot the three intruders, and that he later retrieved Omari

Mitchell, who was shot in the abdomen, and brought him to the

hospital. Dellerman was not charged, as “he felt like his life

was threatened” when the three individuals were within his home.

The other three codefendants all pled guilty prior to Defendant’s

plea.

Defendant was found a Prior Record Level I offender with no

prior convictions. On 9 August 2011, the trial court sentenced

Defendant to a five to six-month suspended sentence suspended for

thirty months of supervised probation. Defendant also was

sentenced to fifty hours of community service and required to pay

restitution. Defendant was also required to enroll in a graduate
 -14-

equivalency degree program leading to obtaining his high school

diploma.

Defendant filed a timely, but defective written notice of

appeal of the order denying suppression on 8 August 2011. See

N.C. R. App. P. 4(a). This Court dismissed Defendant’s appeal on

18 September 2012 for lack of jurisdiction due to the defective

notice of appeal. State v. Thorpe, COA12-229, 731 S.E.2d 862,

2012 WL 4078409 at *1–2 (N.C. Ct. App. 2012) (unpublished).

Specifically, Defendant appealed from the denial of the motion to

suppress, but did not appeal the trial court’s judgment, which

left this Court without jurisdiction to hear the appeal. Id.

(citing State v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542,

542 (2010)). Defendant then filed a petition for writ of

certiorari, which this Court granted on 15 October 2012.

II. Jurisdiction & Standard of Review

Except as provided in subsections (a1) and
(a2) of this section and G.S. 15A-979, and
except when a motion to withdraw a plea of
guilty or no contest has been denied, the
defendant is not entitled to appellate review
as a matter of right when he has entered a
plea of guilty or no contest to a criminal
charge in the superior court, but he may
petition the appellate division for review by
writ of certiorari.

N.C. Gen. Stat. § 15A-1444(e) (2013). However, “[a]n order finally

denying a motion to suppress evidence may be reviewed upon an
 -15-

appeal from a judgment of conviction, including a judgment entered

upon a plea of guilty.” N.C. Gen. Stat. § 15A-979(b) (2013). As

Defendant previously did not appeal the trial court’s judgment, a

writ of certiorari was required, which Defendant obtained and this

Court granted. N.C. R. App. P. 21.

Defendant argues that the trial court erred in denying his

motion to suppress based on Fourth and Fifth Amendment violations.

In considering a trial court’s ruling on a motion to suppress,

this Court must consider whether the lower court’s findings of

fact are supported by competent evidence, though its factual

findings are binding where the appellant does not challenge them.

State v. Richmond, ___ N.C. App. ___, ___, 715 S.E.2d 581, 583

(2011). This Court must then determine whether the trial court’s

conclusions of law are supported by its findings of fact. State

v. Milien, 144 N.C. App. 335, 339, 548 S.E.2d 768, 771 (2001).

However, “a trial court’s conclusions of law as to whether law

enforcement had reasonable suspicion or probable cause to detain

a defendant are reviewable de novo.” State v. Baublitz, Jr., 172

N.C. App. 801, 806, 616 S.E.2d 615, 619 (2005).

III. Analysis

Defendant argues that his statements taken while he was in

Officer Mellown’s car were taken in violation of the Fourth
 -16-

Amendment. Defendant also argues that the subsequent statements

made at the police station were taken in violation of the Fourth

Amendment because they were fruits of impermissible police

conduct. We conclude that the trial court failed to make adequate

findings to justify its conclusion that defendant was not under

arrest, given his nearly two-hour detention. Accordingly, we

reverse the order denying defendant’s motion to suppress and remand

to allow the trial court to make adequate findings on this issue.

Therefore, we do not address Defendant’s remaining arguments.

A. Seizure and Arrest of Defendant

Defendant first argues that Detective Mellown seized

Defendant and functionally arrested Defendant without a warrant.

Defendant argues that such an arrest was illegal, as it required

probable cause not present in this case, and any resulting evidence

is subject to the exclusionary rule under Wong Sun v. United

States, 371 U.S. 471 (1963). We agree.

The Fourth Amendment of the United States Constitution

prohibits unreasonable searches and seizures. U.S. Const. amend.

IV. This prohibition applies to the states through the Due Process

Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643,

655 (1961). Article I, Section 20 of the North Carolina

Constitution similarly prohibits unreasonable searches and
 -17-

seizures. State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254,

260 (1984). There are generally two types of “seizures” under the

Fourth Amendment: “(1) arrests and (2) investigatory stops.”

Milien, 144 N.C. App. at 339, 548 S.E.2d at 771. Arrests require

that the arresting officer have “probable cause,” whereas

investigatory stops do not. Id.

Under the standard first laid out in Terry v. Ohio, 392 U.S.

1 (1968), officers temporarily detaining someone for investigatory

purposes only require “reasonable suspicion of criminal activity.”

Florida v. Royer, 460 U.S. 491, 498 (1983). The detaining officer

“must be able to articulate something more than an ‘inchoate and

unparticularized suspicion, or ‘hunch.’” United States v.

Sokolow, 490 U.S. 1, 7 (1989). The officer’s reasonable suspicion

must be based on specific and articulable
facts, as well as the rational inferences from
those facts, as viewed through the eyes of a
reasonable, cautious officer, guided by [the
officer’s] experience and training.

State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). In

reviewing the validity of a Terry stop, the Court must consider

“the totality of the circumstances.” Id. (quoting United States v.

Cortez, 449 U.S. 411, 417 (1981)).

Even if a brief detention is justified under Terry and its

progeny, “[t]he characteristics of the investigatory stop,
 -18-

including its length, the methods used, and any search performed

should be the least intrusive means reasonably available to

effectuate the purpose of the stop.” State v. Carrouthers, ___

N.C. App. ___, ___, 714 S.E.2d 460, 464, disc. rev. denied 365

N.C. 361, 718 S.E.2d 392 (2011) (alteration in original, quotation

marks and citations omitted). “It is the State’s burden to

demonstrate that the seizure it seeks to justify on the basis of

a reasonable suspicion was sufficiently limited in scope and

duration to satisfy the conditions of an investigative seizure.”

Royer, 460 U.S. at 500. “Where the duration or nature of the

intrusion exceeds the permissible scope, a court may determine

that the seizure constituted a de facto arrest that must be

justified by probable cause.” Milien, 144 N.C. App. at 340, 548

S.E.2d at 772.

In sum, the reasonableness of the methods used in the

investigatory stop depends on the circumstances. Id. (“The scope

of the intrusion permitted will vary to some extent with the

particular facts and circumstances of each case.” (citation and

quotation marks omitted)). During a Terry stop, police can use

“measures of force such as placing handcuffs on suspects, placing

the suspect in the back of police cruisers, drawing weapons, and

other forms of force typically used during an arrest.” State v.
 -19-

Campbell, 188 N.C. App. 701, 709, 656 S.E.2d 721, 727

(2008)(quotation marks and citation omitted).

This Court has held that the use of handcuffs is permissible

to “‘maintain the status quo.’” Id. at 709, 727 (quoting United

States v. Hensley, 469 U.S. 221, 235 (1985)). Additionally, in

Carrouthers, this Court outlined some of the circumstances in which

handcuffs might be reasonable, including when “(1) the suspect is

uncooperative . . . or (6) the suspects outnumber the officers.”

Carrouthers, ___ N.C. App. at ___, 714 S.E.2d at 465 (quotation

marks and citations omitted).

Here, the trial court made three findings of fact relevant to

the initial detention of Defendant:

2. At or about 11:30 a.m. Investigator Mellown
was standing in the area near the entrance to
the waiting room when he saw two black males
dragging a third black male from a white Dodge
Charger. Investigator Mellown observed that
the black male being dragged from the car was
“limp and appeared to have a diminished level
of consciousness.”

3. After emergency room staff took that third
person to the patient care area for treatment,
Investigator Mellown attempted to detain the
other two persons. The other two persons were
“both aggressive, belligerent, and
noncompliant with orders.”

4. Investigator Mellown was able to determine
that the shorter of the two persons had been
shot in the arm. A security officer escorted
him to the triage nurse for treatment, and the
 -20-

other person, subsequently identified as
defendant Devine Thorpe, was handcuffed and
searched.

As a result of these facts, the trial court concluded that

“Investigator Mellown had reasonable suspicion to detain the

Defendant and perform an investigative stop.”

Here, Officer Mellown’s initial use of handcuffs was

reasonable under the circumstances. Both Defendant and his

companion were acting aggressively. Officer Mellown was dealing

initially with two individuals, while being the only police officer

present. Officer Mellown then led Defendant, still handcuffed, to

his car and placed Defendant in the front passenger seat. When

dealing with aggressive, noncooperative individuals, handcuffs and

placing the suspect in the officer’s car are acceptable methods of

effecting an investigatory stop. See Carrouthers, ___ N.C. App.

at ___, 714 S.E.2d at 464–65. Thus, the stop was not simply a de

facto arrest as a result of Officer Mellown’s initial use of

handcuffs or the placement of Defendant in his car.

However, the length of Defendant’s detention may have turned

the investigative stop into a de facto arrest, necessitating

probable cause by Officer Mellown for the detention. An

investigative stop becomes a de facto arrest requiring probable

cause when its “duration or nature . . . exceeds the permissible
 -21-

scope” of a Terry stop. Milien, 144 N.C. App. at 340, 548 S.E.2d

at 772.

One of the key elements of a valid Terry stop is brevity.

United States v. Place, 462 U.S. 696, 709 (1983) (“[T]he brevity

of the invasion of the individual’s Fourth Amendment interests is

an important factor.”); see Milien, 144 N.C. App. at 340, 548

S.E.2d at 772 (“‘[A]n investigative detention must be temporary

and last no longer than is necessary.’” (emphasis added) (quoting

Royer, 460 U.S. at 500)).

The Supreme Court of the United States has never approved a

Terry stop lasting nearly two hours. Place, 462 U.S. at 709–10

(“[W]e have never approved a seizure of the person for the

prolonged 90-minute period involved here[.]”); but see Illinois v.

McArthur, 531 U.S. 326, 332 (2001) (holding that preventing

defendant from re-entering his home, where probable cause existed

showing that drugs were in the defendant’s house, was reasonable

when the police were waiting for a warrant to search the house).

However, the Supreme Court has never adopted an outer limit to the

permissible duration of a Terry stop. Place, 462 U.S. at 709.

To assess whether a seizure under Terry is excessive, the

court must decide whether the police could have “minimized the

intrusion” by more diligently pursuing their investigation through
 -22-

other means. Id. According to the United States Supreme Court,

a reviewing court should

examine whether the police diligently pursued
a means of investigation that was likely to
confirm or dispel their suspicions quickly,
during which time it was necessary to detain
the defendant.

United States v. Sharpe, 470 U.S. 675, 686 (1985). Thus, it is

only when the police unnecessarily prolong the seizure that an

otherwise valid investigative stop becomes a de facto arrest. See

id.

In Place, the Supreme Court invalidated a seizure which lasted

for approximately ninety minutes. Place, 462 U.S. at 709. In

that case, DEA agents seized the defendant’s bags as he deplaned

in New York’s La Guardia Airport and waited for the narcotics dogs

to arrive. Id. at 698–99. The Court reasoned that the since the

DEA knew that Place was on his way to New York, they had ample

time to prepare the narcotics dogs for Place’s arrival, which would

have obviated the need to hold him without probable cause for a

ninety-minute period. Id. at 709–10. Therefore, the Court

concluded that the government could have pursued their

investigation through more expeditious means and the ninety-minute

seizure was unconstitutional. Id. at 710.
 -23-

Here, the trial judge found that the initial conversation

between Defendant and Officer Mellown lasted “approximately

fifteen minutes” and that Defendant was at the police station by

1:18pm (less than two hours after the first encounter between

Officer Mellown and the Defendant). Officer Mellown told Defendant

that he was going to be detained until Officer Mellown could

“determine what was taking place.” It is unclear precisely how

long Defendant was held between the end of his conversation with

Officer Mellown in the car and his formal arrest at the police

station, but it is clear that Defendant was in handcuffs during

this entire period, even after he had calmed down.

Additionally, the trial judge made no findings about what

Officer Mellown was doing from the time he “escorted” Defendant to

the security office to the point at which he was placed under

arrest. Therefore, on the record before us we cannot say that the

nearly two-hour delay was reasonably necessary for Officer

Mellown’s investigation. See id. (holding a two-hour restraint

while waiting for a warrant was reasonable where “the record

reveals [that] this time period was no longer than reasonably

necessary”).

Although length in and of itself will not normally convert an

otherwise valid seizure into a de facto arrest, where the detention
 -24-

is more than momentary, as here, there must be some strong

justification for the delay to avoid rendering the seizure

unreasonable. See McArthur, 531 U.S. at 332 (two-hour seizure

reasonable when waiting for search warrant); Place, 462 U.S. at

709 (“The [90-minute] length of the detention of respondent’s

luggage alone precludes the conclusion that the seizure was

reasonable in the absence of probable cause.” (emphasis added));

Royer, 460 U.S. at 500 (“The scope of the detention must be

carefully tailored to its underlying justification.”). This

detention lasted longer than the normal Terry stop. See, e.g.,

State v. Sanchez, 147 N.C. App. 619, 626, 556 S.E.2d 602, 608

(2001), disc. rev. denied 355 N.C. 220, 560 S.E.2d 358 (2002)

(five-minute detention); State v. Cornelius, 104 N.C. App. 583,

590, 410 S.E.2d 504, 509 (1991), disc. rev. denied 331 N.C. 119,

414 S.E.2d 762 (1992) (considering a ten-minute investigative

stop). Here, without any factual findings addressing the

justifications for the extended detention, we cannot properly

review whether the trial court erred in concluding that defendant

was not under arrest.

The evidence contained in the transcript of the suppression

hearing would support a finding that Officer Mellown went almost

immediately from speaking with Defendant to interviewing Brady.
 -25-

During this conversation, Brady admitted to Officer Mellown that

“they had gone out to go into a house.” This evidence could

support a finding that Officer Mellown was not unnecessarily

delaying Defendant’s detention. Thus, the trial judge could

justifiably conclude that Officer Mellown was diligently pursuing

his investigation. See Cornelius, 104 N.C. App. at 590, 410 S.E.2d

at 509 (ten-minute delay permissible where “the officers acted

diligently in their investigation”). If the trial judge does so

find, a conclusion that the detention was not unnecessarily

prolonged might also be justified. Therefore, we remand the case

for findings on whether the extended detention was justified, and

if it was not, whether and when Officer Mellown developed probable

cause to arrest Defendant. As a result, we do not address the

remainder of Defendant’s arguments.

IV. Conclusion

For the reasons stated above, the trial court’s denial of

Defendant’s motion to suppress is

REVERSED AND REMANDED IN PART FOR FURTHER FINDINGS OF FACT

AND CONCLUSIONS OF LAW.

Judges STROUD and DILLON concur.