IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-752-2
Filed: 5 March 2019
Mecklenburg County, No. 14 CRS 232320
THE STATE OF NORTH CAROLINA,
v.
TERANCE GERMAINE MALACHI, Defendant.
Appeal by Defendant by writ of certiorari from judgment entered 28 January
2016 by Judge Yvonne M. Evans in Mecklenburg County Superior Court. Heard in
the Court of Appeals 25 January 2017, decided 25 January 2017, reversed by the
Supreme Court of North Carolina 7 December 2018 and remanded to the Court of
Appeals.
Attorney General Joshua H. Stein, by Special Deputy Attorney General John R.
Green, Jr., for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Constance
E. Widenhouse, for Defendant-Appellant.
INMAN, Judge.
The trial court did not commit plain error by allowing evidence of a handgun a
police officer removed from the waistband of a man in the course of stopping, seizing,
and frisking him after forming a reasonable articulable suspicion that the suspect
may have been engaged in unlawful conduct and was armed and dangerous.
STATE V. MALACHI
Opinion of the Court
Terance Germaine Malachi (“Defendant”) appeals from his conviction for
possession of a firearm by a felon following a jury trial and a related conviction for
attaining habitual felon status. This is this Court’s second decision regarding
Defendant’s appeal, to resolve an issue not addressed in our initial decision.
Defendant argues that the trial court committed plain error by allowing the
jury to hear evidence obtained as a result of an unconstitutional stop and seizure of
Defendant. After careful review of the record and applicable law, we conclude that
Defendant has failed to demonstrate plain error.
Factual and Procedural Background
An expanded summary of the factual and procedural background of this appeal
can be found in our initial decision in State v. Malachi, ___ N.C. App. ___, 799 S.E.2d
645 (2017), rev’d and remanded, ___ N.C. ___, 821 S.E.2d 407 (2018). Below we
summarize the facts and procedure pertinent to the single issue before us.
The evidence at trial tended to show the following:
Shortly after midnight on 14 August 2014, the Charlotte-Mecklenburg Police
Department received a 911 call from an anonymous caller. The caller told the
dispatcher that in the rear parking lot of a gas station located at 3416 Freedom Drive
in Charlotte, North Carolina, an African American male wearing a red shirt and black
pants had just placed a handgun in the waistband of his pants.
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Officer Ethan Clark, in uniform and a marked car, first responded to the call.
Officer Clark’s arrival was followed almost immediately by Officer Jason Van Aken.
Officer Clark saw about six to eight people standing in the parking lot, including a
person who matched the description provided to the dispatcher and who was later
identified as Defendant.
When Officer Clark got out of his car, Defendant looked directly at him,
“bladed, turned his body away, [and] started to walk away.” Officer Clark
immediately approached Defendant and grabbed his arm. Officer Van Aken held
Defendant’s other arm and the two officers walked Defendant away from the crowd
of people. Defendant was squirming. Officer Clark told Defendant to relax. Prior to
this, neither officer spoke with Defendant.
Officer Clark placed Defendant in handcuffs and told him that he was not
under arrest. Officer Van Aken then frisked Defendant and pulled a revolver from
his right hip waistband. As the two officers seized the revolver, a third officer, Officer
Kevin Hawkins, arrived. The officers then told Defendant he was under arrest and
placed him in the back of Officer Clark’s patrol vehicle.
Defendant was tried before a jury on charges of carrying a concealed weapon
and possession of a firearm by a felon. Before evidence was presented, Defendant
filed a motion to suppress all evidence of the revolver and argued that a police officer
may not legally stop and frisk anyone based solely on an anonymous tip that simply
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Opinion of the Court
described the person’s location and description but that did not report any illegal
conduct by the person. The trial court denied the motion. The State presented the
challenged evidence at trial without objection by Defendant.
The jury returned a verdict of not guilty on the charge of carrying a concealed
weapon and guilty of possession of a firearm by a felon. Defendant then pleaded
guilty, pursuant to N.C. v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970), to attaining
habitual felon status. The trial court sentenced Defendant in the mitigated range to
100 to 132 months of imprisonment.
Analysis
Defendant argues that the trial court committed plain error by allowing the
jury to hear evidence of the revolver police removed from his waistband in the course
of stopping and frisking him in violation of his Fourth Amendment rights. Defendant
concedes that because, after the trial court denied his motion to suppress this
evidence, his trial counsel did not object when the evidence was offered at trial, our
review is limited to plain error analysis. Our Supreme Court has recently reiterated
the standards applicable to plain error review:
[T]o demonstrate that a trial court committed plain error,
the defendant must show that a fundamental error
occurred at trial. To show fundamental error, 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. Further, . . . because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
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Opinion of the Court
affect[s] the fairness, integrity or public reputation of the
judicial proceedings.
State v. Maddux, ___ N.C. ___, ___, 819 S.E.2d 367, 371 (2018) (citations and
quotation marks omitted) (second alteration in original). In applying this standard
to the denial of a motion to suppress, “[o]ur review . . . is ‘strictly limited to
determining whether the trial judge’s underlying findings of fact are supported by
competent evidence, in which event they are binding on appeal, and whether those
factual findings in turn support the judge’s ultimate conclusions of law.’ ” State v.
Williams, ___ N.C. App. ___, ___, 786 S.E.2d 419, 425 (2016) (quoting State v. Cooke,
306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). Those conclusions of law are
reviewable de novo. Williams, ___ N.C. App. at ___, 786 S.E.2d at 425.
We hold that the trial court did not err, much less commit plain error, in
denying Defendant’s motion to suppress. This case is fundamentally controlled by
Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968), in which the Supreme Court of the
United States held a police officer did not violate the Fourth Amendment to the
United States Constitution when he stopped an individual and frisked him for
weapons without probable cause. 392 U.S. at 30-31, 20 L. Ed. 2d at 911. Under Terry,
a stop-and-frisk of an individual passes constitutional muster if: (1) the stop, at its
initiation, was premised on a reasonable suspicion that crime may have been afoot;
and (2) the officer possessed a reasonable suspicion that the individual involved was
armed and dangerous. See, e.g., State v. Johnson, 246 N.C. App. 677, 686, 783 S.E.2d
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753, 760 (2016) (noting that “[p]ursuant to Terry, [an officer’s] frisk of [a] defendant
may only be justified by [these] two independent criteria”). Thus, Officers Clark and
Van Aken lawfully stopped and frisked Defendant if they possessed reasonable
suspicion: (1) that Defendant may have been involved in criminal activity at the time
of the stop; and (2) that Defendant was armed and dangerous.
To satisfy the first element, the officer’s reasonable suspicion must be
“supported by articulable facts that criminal activity ‘may be afoot.’ ” United States
v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989) (emphasis added). Although
“[t]he concept of reasonable suspicion, like probable cause, is not ‘readily, or even
usefully, reduced to a neat set of legal rules[,]’ ” it is not without limitation and
definition:
The officer, of course, must be able to articulate something
more than an “inchoate and unparticularized suspicion or
‘hunch.’ ” The Fourth Amendment requires “some minimal
level of objective justification” for making the stop. That
level of suspicion is considerably less than proof of
wrongdoing by a preponderance of the evidence. We have
held that probable cause means “a fair probability that
contraband or evidence of a crime will be found,” and the
level of suspicion required for a Terry stop is obviously less
demanding than that for probable cause.
Id. (citations omitted). Whether or not probable cause existed to execute the stop is
determined “after considering the totality of circumstances known to the officer.”
State v. Jackson, 368 N.C. 75, 78, 772 S.E.2d 847, 849 (2015).
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STATE V. MALACHI
Opinion of the Court
Binding precedent requires the conclusion that the anonymous tip was
insufficient, by itself, to supply Officer Clark with reasonable suspicion to stop
Defendant. Although he was able to identify Defendant based on the tip, it did not
indicate any illegal activity sufficient to give rise to reasonable suspicion standing
alone:
[a]n accurate description of a subject’s readily observable
location and appearance [in an anonymous tip] is of course
reliable in this limited sense: It will help the police
correctly identify the person whom the tipster means to
accuse. Such a tip, however, does not show that the tipster
has knowledge of concealed criminal activity. The
reasonable suspicion here at issue requires that a tip be
reliable in its assertion of illegality, not just in its tendency
to identify a determinate person.
Florida v. J.L., 529 U.S. 266, 272, 146 L. Ed. 2d 254, 261 (2000). In J.L., police
received an anonymous tip that a young black male in a plaid shirt waiting at a bus
stop was carrying a firearm. Id. at 268, 146 L. Ed. 2d at 258. Officers arrived at the
scene, identified an individual matching that description, and, with “no reason to
expect . . . illegal conduct” or any “threatening or unusual movements” on anyone’s
part, stopped the individual and frisked him, discovering a gun. Id. The defendant,
a juvenile, was charged with possessing a firearm without a license and possessing a
firearm while under the age of 18. Id. at 269, 146 L. Ed. 2d at 259. The Supreme
Court held that this stop and frisk violated the Fourth Amendment, as the
anonymous tip failed to reliably indicate illegal possession of a firearm such that it,
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STATE V. MALACHI
Opinion of the Court
standing alone, could provide reasonable suspicion to institute a Terry stop. Id. at
274, 146 L. Ed. 2d at 262.
But the officers’ suspicion in this case was based on more than an anonymous
tip. Unlike in J.L., the record below and the trial court’s findings disclose facts
beyond the anonymous tip to support Officer Clark’s reasonable suspicion that
Defendant illegally possessed a firearm, including those facts specifically identified
by the Supreme Court as lacking in that case. The unchallenged findings of fact made
by the trial court and the uncontroverted evidence disclose that Officer Clark arrived
on the scene in full uniform and a marked police car before making eye contact with
Defendant. As Officer Clark was exiting his car, the Defendant “turned his body in
such a way as to prevent the officer from observing a weapon.” Officer Clark testified
that he was trained “on . . . some of the characteristics of armed suspects[,]” and that
this kind of turn was known as “blading,” as “[w]hen you have a gun on your hip you
tend to blade it away from an individual. One of the indicators [of an armed person]
is you turn and have your body between the other person and the firearm you’re
carrying.” Defendant next began to move away. Officer Van Aken, who by then was
on the scene, approached Defendant with Officer Clark; at no point prior to or during
the approach did Defendant inform the officers that he was lawfully armed as
required by our concealed carry statutes. See N.C. Gen. Stat. § 14-415.11(a) (2017)
(“[W]henever the person is carrying a concealed handgun, [the person] shall disclose
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Opinion of the Court
to any law enforcement officer that the person . . . is carrying a concealed handgun
when approached or addressed by the officer[.]” (emphasis added)).1
Although we are unable to identify a prior North Carolina appellate decision
holding reasonable suspicion existed under these particular facts, each individual fact
present here has been cited to support a conclusion of reasonable suspicion as part of
a totality of the circumstances analysis. See, e.g., State v. Butler, 331 N.C. 227, 233,
415 S.E.2d 719, 722 (1992) (“[U]pon making eye contact with the uniformed officers,
defendant immediately moved away, behavior that is evidence of flight[.]”); State v.
Garcia, 197 N.C. App. 522, 529, 677 S.E.2d 555, 559 (2009) (“Factors to determine
whether reasonable suspicion existed include . . . unprovoked flight.” (citation
omitted)); State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522 (1995) (“[A]n
1 Defendant argues that the trial court failed to make specific findings of fact that Defendant
was aware that Officer Clark was a police officer, that he was aware Officer Clark was approaching
him, or that he had time to speak with officers Clark and Van Aken before his seizure. However, the
uncontroverted evidence of record shows that: (1) Defendant looked Officer Clark in the eyes; (2)
Officer Clark was in full uniform and a marked vehicle; (3) Defendant “squared” to Officer Clark when
he looked at him before blading his body; and (4) Defendant began to move away from Officer Clark
as he was exiting the vehicle and approaching Defendant. There was no evidence introduced that
Defendant was facing away from Officer Clark when he arrived, only that Defendant “bladed” by
turning away, placing his body between Officer Clark and the firearm; Officer Clark testified that
“when [he] exited [his] vehicle is when [Defendant] turned and bladed his body away.” Thus, there is
no evidence establishing that Clark approached Defendant from behind rather than from the side, or
that Defendant walked away in the direct opposite direction from Officer Clark rather than a
perpendicular one, such that Defendant would be unaware of his advance. Defendant declined to
introduce any conflicting evidence as to what transpired, and “[i]n that event, the necessary findings
are implied from the admission of the challenged evidence.” State v. Vick, 341 N.C. 569, 580, 461
S.E.2d 655, 661 (1995). As we must view this uncontroverted evidence in the light most favorable to
the State, State v. Hunter, 208 N.C. App. 506, 509, 703 S.E.2d 776, 779 (2010), the trial court found
those facts concerning the issues identified by Defendant, to the extent that any were necessary, by
implication in admitting the evidence.
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STATE V. MALACHI
Opinion of the Court
officer’s experience and training can create reasonable suspicion. Defendant’s actions
must be viewed through the officer’s eyes.” (citation omitted)); State v. Sutton, 232
N.C. App. 667, 681-82, 754 S.E.2d 464, 473 (2014) (holding that the defendant’s
“posturing [which] made it apparent that he was concealing something on his person”
and subsequent failure to comply with Section 14-415.11(a) when approached, in
addition to other facts in a totality of the circumstances analysis, gave rise to
reasonable suspicion to conduct an investigatory stop). Given Defendant’s “blading”
after making eye contact with Officer Clark in his marked car and uniform,
Defendant’s movements away from Officer Clark as he was being approached, Officer
Clark’s training in identifying armed suspects, and Defendant’s failure to comply
with Section 14-415.11(a) when approached by the officers, we hold that the officers
had reasonable suspicion under the totality of the circumstances to conduct an
investigatory stop of Defendant in response to the tip identifying him as possessing a
firearm at the gas station.
We now turn to whether the officers possessed reasonable suspicion that
Defendant was armed and dangerous such that they were lawfully permitted to frisk
him. We hold that such reasonable suspicion existed in accordance with North
Carolina precedent and persuasive federal authority. In State v. Rinck, 303 N.C. 551,
280 S.E.2d 912 (1981), the North Carolina Supreme Court observed that “[i]f upon
detaining [an] individual [pursuant to a lawful Terry stop], the officer’s personal
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Opinion of the Court
observations confirm that criminal activity may be afoot and suggest that the person
detained may be armed, the officer may frisk him as a matter of self-protection.” 303
N.C. at 559, 280 S.E.2d at 919 (citations omitted). This is certainly true where the
officer has reasonable suspicion to believe the individual seized is unlawfully armed.
See Sutton, 232 N.C. App. at 683-84, 754 S.E.2d at 474 (holding that facts giving rise
to reasonable suspicion that the defendant was unlawfully carrying a firearm also
supported a reasonable suspicion that the defendant was armed and dangerous).
The United States Court of Appeals for the Fourth Circuit has held, in an en
banc decision, that an officer may lawfully conduct a frisk following a Terry stop if he
“reasonably suspect[s] that the person is armed and therefore dangerous. . . . [T]he
risk of danger is created simply because the person, who was forcibly stopped, is
armed.” United States v. Robinson, 846 F.3d 694, 700, cert. denied, 138 S. Ct. 379,
199 L. Ed. 2d 277 (2017) (underline in original). The Fourth Circuit also rejected the
argument, raised by Defendant here, that a state’s laws allowing for the public
carrying of firearms might deprive the officer of reasonable suspicion:
[T]he risk inherent in a forced stop of a person who is
armed exists even when the firearm is legally possessed.
The presumptive lawfulness of an individual’s gun
possession in a particular State does next to nothing to
negate the reasonable concern an officer has for his own
safety when forcing an encounter with an individual who
is armed with a gun and whose propensities are unknown.
Id. at 701 (citing United States v. Rodriguez, 739 F.3d 481, 491 (10th Cir. 2013)).
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STATE V. MALACHI
Opinion of the Court
As set forth supra, Officers Clark and Van Aken had reasonable suspicion to
believe that Defendant unlawfully possessed a firearm at the time they stopped him.
This reasonable suspicion of unlawful possession, coupled with Defendant’s
struggling during the stop and his continued failure to inform the officers that he was
armed as required by Section 14-415.11(a), convince us that the officers also
possessed reasonable suspicion to frisk him as a potentially armed and dangerous
individual. Sutton, 232 N.C. App. at 683-84, 754 S.E.2d at 474.
Conclusion
For the above reasons, we hold the trial court did not err, much less commit
plain error, in denying Defendant’s motion to suppress or in allowing the jury to hear
evidence challenged in the motion to suppress.
NO PLAIN ERROR.
Judges ARROWOOD and HAMPSON concur.
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