IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-96
Filed: 17 December 2019
Mecklenburg County, 17CRS201621-22
STATE OF NORTH CAROLINA
v.
BRYAN XAVIER JOHNSON, Defendant.
Appeal by Defendant from Judgment entered 26 June 2018 by Judge Forrest
D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 4
September 2019.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Douglas
W. Corkhill, for the State.
Kimberly P. Hoppin for Defendant-Appellant.
INMAN, Judge.
Bryan Xavier Johnson (“Defendant”) appeals his convictions following guilty
pleas to felony cocaine possession and misdemeanor possession of drug
paraphernalia. Defendant argues the trial court erred in denying a motion to
suppress evidence supporting these convictions because the police officer who
searched Defendant’s vehicle (1) lacked reasonable suspicion to conduct the search
and (2) unlawfully extended the duration of the traffic stop. After thorough review of
the record and applicable law, we hold that Defendant has failed to demonstrate
error.
STATE V. JOHNSON
Opinion of the Court
I. FACTUAL AND PROCEDURAL BACKGROUND
The record and the evidence introduced at the suppression hearing tend to
show the following:
At about 12:45 am on 14 January 2017, Officer Elliot Whitley (“Officer
Whitley”) and Sergeant Visiano of the Charlotte-Mecklenburg Police Department
were traveling on Central Avenue in Charlotte in a single patrol car. Officer Whitley
described the location as a high-crime area, where he has been involved in numerous
drug and firearm cases.
During their patrol, Officer Whitley observed Defendant’s black Dodge
Charger. Sergeant Visiano ran a computer database search of the license plate
number and discovered that it was registered to a different vehicle. Officer Whitley
then initiated a traffic stop of Defendant’s vehicle. Defendant stopped “fairly
immediately.”
As Officer Whitley approached the driver’s side of Defendant’s vehicle, he
noticed Defendant raising his hands in the air and holding them outside the window
of the vehicle. Based on his seven years of experience, including almost five years
with particular involvement in drug crimes, Officer Whitley took notice that
Defendant was raising his hands because “sometimes it can mean [that the person
has] a gun.”
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Opinion of the Court
Officer Whitley asked Defendant for his license and registration and stated
that he stopped him because his vehicle tag was registered to an Acura MDX. Officer
Whitley also asked Defendant if he had a firearm; Defendant responded that he did
not. As Defendant was looking for his license and the vehicle registration, he
explained to Officer Whitley that he had just purchased the vehicle that day.
Defendant handed Officer Whitley his license out of his wallet and then searched in
the center console to retrieve the registration and the bill of sale. As Defendant was
searching in the console, Officer Whitley noticed him “blading his body,” as if he were
“trying to conceal something that [was] to his right.” Although Defendant was
cooperative throughout this process, he appeared “very nervous . . . like his heart
[was] beating out of his chest a little bit.” Defendant eventually provided the
paperwork, including an apparent bill of sale. Officer Whitley returned to the patrol
car to run Defendant’s information through law enforcement databases. Defendant
remained in his vehicle and Sergeant Visiano stood near the right passenger door
during this time.
While reviewing Defendant’s information on law enforcement databases,
Officer Whitley learned that from 2003 to 2009, Defendant was charged with violent
crimes of robbery with a dangerous weapon, conspiracy to commit robbery with a
dangerous weapon, assault with a deadly weapon with the intent to kill, and
discharging a weapon into occupied property. Officer Whitley testified that, of
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Opinion of the Court
Defendant’s criminal history, he recalled that there were two convictions, the most
recent occurring in 2009. Considering the totality of the circumstances, including
Defendant’s placement of his hands, blading of his body, nervous behavior, and
criminal history, Officer Whitley believed that Defendant “was armed and dangerous
at that point.”
Officer Whitley directed Defendant to step out of the vehicle and stand behind
the vehicle on the driver’s side. With Sergeant Visiano and two other officers who
had arrived behind him, Officer Whitley conducted a consensual frisk of Defendant’s
person, which did not reveal a weapon. Officer Whitley then searched the “lungeable
areas” of the vehicle, over the objection of Defendant. Although no weapon was
discovered in the vehicle, Officer Whitley found cocaine in the center console and
placed Defendant under arrest.
On 14 January 2017, Defendant was charged with felony possession with the
intent to sell or deliver cocaine and misdemeanor possession of drug paraphernalia.
On 25 September 2017, Defendant was indicted on a charge of felony possession of
cocaine.
Defendant filed a motion to suppress the evidence seized as a result of the
search, arguing that Officer Whitley lacked authority to search his vehicle. A hearing
on the motion was held on 26 June 2018. Officer Whitley was the sole witness and
the only other evidence presented was a video of the stop and search captured by
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Officer Whitley’s audio-visual body camera. The trial court denied Defendant’s
motion, and Defendant then entered guilty pleas to felony possession of cocaine and
misdemeanor possession of drug paraphernalia, reserving the right to appeal the
denial of his motion to suppress. The trial court entered judgment, sentencing
Defendant to 8 to 19 months’ imprisonment, but suspended that sentence and placed
Defendant on supervised probation for 24 months.
Defendant appeals.1
II. ANALYSIS
A. Standard of Review
“When reviewing a motion to suppress, the trial court’s findings of fact are
conclusive and binding on appeal if supported by competent evidence.” State v.
Fields, 195 N.C. App. 740, 742-43, 673 S.E.2d 765, 767 (2009). Unchallenged findings
of fact are presumed to be supported by competent evidence. State v. Roberson, 163
N.C. App. 129, 132, 592 S.E.2d 733, 735-36 (2004). The trial court’s conclusions of
law are reviewed de novo. Fields, 195 N.C. App. at 743, 673 S.E.2d at 767.
Here, the trial court made the following relevant findings of fact:
1. That on January 14, 2017, Officer E. Whitley was licensed,
sworn, and on duty, and was acting as a patrol officer
conducting traffic control near Central Ave. and N. Sharon
1 Defendant petitions this Court to issue a writ of certiorari in the event that we determine
any defect in his appeal exists. Because Defendant specifically reserved his right to appeal before
entering his guilty plea and gave oral notice of appeal thereafter, his appeal is properly before us,
rendering his petition moot. State v. Crandall, __ N.C. App. __, __, 786 S.E.2d 789, 792 (2016).
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Opinion of the Court
Amity Rd. in Charlotte, Mecklenburg County, North
Carolina.
2. That based on his training and experience working in that
area for 7 years, the above mentioned area is considered by
Officer Whitley to be a high crime area.
3. That while Officer Whitley observed a black Dodge
Charger on N. Sharon Amity Rd. his partner ran the
license plate through Department of Motor Vehicle (DMV)
on that particular vehicle.
4. That upon searching the vehicle in the DMV database,
officers learned that the license plate displayed on the
black Dodge Charger had been issued to an Acura MDX
vehicle.
5. That when the tag appeared to be fictitious, Officer
Whitley initiated a traffic stop to investigate further.
6. That when Officer Whitley initiated the traffic stop, the
driver stopped fairly immediately and pulled into a Burger
King parking lot.
7. That the Defendant was the driver and sole passenger of
the black Dodge Charger.
8. That after the Defendant stopped, he raised both of his
hands in the air upon the officer’s approach.
9. That Officer Whitley observed the Defendant’s hands in
the air, and based on Officer Whitley’s training and
experience, he believed that the gesture of raising one’s
hands in the car can indicate that a person has a gun inside
the vehicle.
10. That based on his training and experience, Officer Whitley
was on alert about the possible presence of a gun.
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Opinion of the Court
11. That when Officer Whitley explained that the stop was
conducted for the fictitious tag, the Defendant immediately
provided an explanation and told Officer Whitley that he
had purchased the vehicle earlier that day.
12. That the Defendant presented Officer Whitley with
documentation, one of which appeared to be a Bill of Sale.
13. That Officer Whitley asked the Defendant whether he had
a gun and the Defendant indicated that he did not.
14. That Officer Whitley went to his patrol vehicle to check the
Defendant’s information in NCID, including his criminal
history, and to run the VIN of the vehicle.
15. That Officer Whitley described that each step mentioned
in finding 14 is part of Officer Whitley’s routine practice
during a traffic stop.
16. That when Officer Whitley observed the Defendant’s
record, there was an indication of a criminal history
including: Robbery with a Dangerous Weapon, Conspiracy
to Commit Robbery with a Dangerous Weapon, Assault
with a Deadly Weapon with the Intent to Kill, and
Discharging a Weapon into Occupied Property.
17. That Officer Whitley reasonably had concerns for his
safety.
18. That when Officer Whitley returned to the vehicle, he
asked the Defendant to step out.
19. That once the Defendant had exited the vehicle, Officer
Whitley conducted a frisk of the Defendant for weapons
and did not find any weapons.
20. That Officer Whitley asked for the Defendant’s consent to
frisk the vehicle for weapons, which the Defendant denied.
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Opinion of the Court
21. That the Defendant questioned the officer about why he
would need to frisk the car.
22. That Officer Whitley conducted a weapons frisk of the
lungeable areas of the Defendant’s car without consent of
the Defendant.
23. That during that weapons frisk, Officer Whitley found a
substance in a plastic baggie in the center console which
appeared to be an illegal substance.
24. That after Officer Whitley completed the weapons frisk,
the Defendant was placed under arrest.
B. Sufficiency of the Findings
Defendant first argues that portions of the trial court’s findings are not
supported by competent evidence. In reviewing the competency of the evidence, we
afford “great deference to the trial court in this respect because it is entrusted with
the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the
facts, and . . . render a legal decision” based on those facts. State v. Cooke, 306 N.C.
132, 134, 291 S.E.2d 618, 619-20 (1982).
Defendant argues finding of fact 10—that “based on his training and
experience, Officer Whitley was on alert about the possible presence of a gun”—is not
supported by either Officer Whitley’s testimony or the video evidence. Officer Whitley
testified that, in his experience, when people raise their hands in the manner
Defendant did, there is the possibility of a firearm being present. This testimony
supports the trial court’s finding.
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Opinion of the Court
Defendant also challenges finding of fact 17 that “Officer Whitley reasonably
had concerns for his safety.” This “finding,” however, is a conclusion of law that
requires de novo review, without deference to the trial court. See State v. Campola,
__ N.C. App. __, __, 812 S.E.2d 681, 687 (2018) (“If the trial court labels as a finding
of fact what is in substance a conclusion of law, we review that ‘finding’ de novo.”
(citation omitted)). “As a general rule, . . . any determination requiring the exercise
of judgment or the application of legal principles is more properly classified as a
conclusion of law,” while findings of fact normally involve “logical reasoning through
the evidentiary facts.” In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675
(1997) (quotations and citation omitted). This “finding” is akin to the reasonable
suspicion framework establishing when a police officer can reasonably search a
suspect. See Terry v. Ohio, 392 U.S. 1, 27, 20 L. Ed. 2d 889, 909 (1968) (“[T]he issue
is whether a reasonably prudent man in the circumstances would be warranted in
the belief that his safety or that of others was in danger.” (emphasis added)).
C. Reasonable Suspicion to Search the Vehicle
In addition to determining that Officer Whitley had a reasonable concern for
his safety when he first spoke with Defendant, the trial court concluded, in relevant
part, as follows:
1. That the motion of having hands up upon an officer’s
approach does not automatically incriminate an individual
by itself, and the Defendant’s action of showing his hands
was reasonable. However, based on an officer’s experience,
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Opinion of the Court
it is reasonable for an officer to infer that the motion of
hands up upon an officer’s approach could indicate the
presence of a weapon.
2. That based on the totality of [the] circumstances,
including but not limited to: the Defendant’s hands in the
air upon the Officer’s approach, and the Defendant’s prior
criminal history, that the limited frisk of the lungeable
areas of the vehicle was justified.
Defendant contends that these conclusions are not supported by the findings of fact.
We disagree.
Both the federal and North Carolina constitutions protect an individual’s right
to be free from unreasonable government searches and seizures absent probable
cause. State v. Cabbagestalk, __ N.C. App. __, __, 830 S.E.2d 5, 9 (2019) (citing U.S.
Const. amend. IV; N.C. Const. art. I, § 20). Exceptions to the requirement of probable
cause include the Terry stop-and-frisk exception, which allows a police officer to stop
and briefly search a suspect and the area within the suspect’s grasp for weapons 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.” State v. Malachi, __ N.C. App. __, __,
825 S.E.2d 666, 669 (2019) (citing Terry, 392 U.S. 1, 30-31, 20 L. Ed. 2d at 911)
(emphasis added).
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
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reasonable, cautious officer, guided by his experience and training.” State v. Barnard,
362 N.C. 244, 247, 658 S.E.2d 643, 645 (2008) (quotation marks and citation omitted).
No fact is viewed in isolation, but rather a court “must consider the totality of the
circumstances—the whole picture in determining whether a reasonable suspicion
exists.” State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 438, 440 (2008) (quotation
marks and citations omitted). Reasonable suspicion “is a less demanding standard
than probable cause and requires a showing considerably less than preponderance of
the evidence,” Illinois v. Wardlow, 528 U.S. 119, 123, 145 L. Ed. 2d 570, 576 (2000)
(quotation marks omitted), needing only “some minimal level of objective
justification.” Styles, 362 N.C. at 414, 665 S.E.2d at 439 (quotation marks and
citations omitted).
Although originally applied to searches of a suspect’s person, the second prong
of the Terry analysis has been extended to encompass brief and limited searches of a
vehicle, “even after the subject is removed from the vehicle.” State v. Minor, 132 N.C.
App. 478, 481, 512 S.E.2d 483, 485 (1999). As explained by the United States
Supreme Court:
[T]he search of the passenger compartment of an
automobile, limited to those areas in which a weapon may
be placed or hidden, is permissible if the police officer
possesses a reasonable belief based on specific and
articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant the officers
in believing that the suspect is dangerous and the suspect
may gain immediate control of weapons. . . . If, while
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Opinion of the Court
conducting a legitimate Terry search of the interior of the
automobile, the officer should, as here, discover contraband
other than weapons, he clearly cannot be required to ignore
the contraband, and the Fourth Amendment does not
require its suppression in such circumstances.
Michigan v. Long, 463 U.S. 1032, 1049-50, 77 L. Ed. 2d 1201, 1220 (1983) (quotation
marks and citations omitted) (emphasis added). In other words, we review the
frisking of a vehicle the same way we would analyze an officer’s frisk of a person.
Minor, 132 N.C. App. at 481, 512 S.E.2d at 485. Because Defendant challenges the
search of his vehicle, but not the traffic stop, we only address whether Officer Whitley
had reasonable suspicion that Defendant was armed and dangerous.2
The facts that the trial court considered in denying Defendant’s motion to
suppress have all been established as “articulable facts” utilized in supporting an
officer’s reasonable suspicion. Here, the evidence shows that it was late at night,
State v. Watkins, 337 N.C. 437, 442-43, 446 S.E.2d 67, 70-71 (1994); the stop occurred
in a high-crime area, Wardlow, 528 U.S. at 124, 145 L. Ed. 2d at 576; Defendant
exhibited a hand gesture, State v. King, 206 N.C. App. 585, 590, 696 S.E.2d 913, 916
2 Defendant does not challenge the evidence supporting the trial court’s finding of fact that
Officer Whitley searched the “lungeable areas” of Defendant’s vehicle. See State v. Edwards, 164 N.C.
App. 130, 137, 595 S.E.2d 213, 218 (2004) (handcuffing the defendant and placing him on the curb did
not prevent “the possibility of him gaining immediate control of the handgun” found in the vehicle);
State v. Braxton, 90 N.C. App. 204, 209, 368 S.E.2d 56, 59 (1988) (“[T]hose areas of a passenger
compartment of a motor vehicle where weapons might be hidden may be searched if the facts, coupled
with rational inferences drawn therefrom, reasonably warrant an officer’s belief that a suspect is
dangerous and may gain control of weapons.”). Defendant simply challenges Officer Whitley’s
reasonable suspicion to search any part of Defendant’s vehicle based on a suspicion that he was armed
and dangerous.
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(2010); Defendant appeared highly nervous, State v. Willis, 125 N.C. App. 537, 542,
481 S.E.2d 407, 411 (1997); Defendant “bladed” his body to shield something from
being seen, Malachi, __ N.C. App. at __, 825 S.E.2d at 671; and Defendant had a
violent criminal history involving weapons. State v. Malunda, 230 N.C. App. 355,
360, 749 S.E.2d 280, 284 (2013).
Though the trial court’s findings do not note what time the stop occurred, that
Defendant appeared nervous, or that Defendant bladed his body when reaching into
the console, because that evidence was uncontradicted, we may imply those findings
from the ruling of the court and include them in our reasonable suspicion calculus.
Campola, __ N.C. App. at __, 812 S.E.2d at 690; see also State v. Bartlett, 368 N.C.
309, 312, 776 S.E.2d 672, 674 (2015) (“When there is no conflict in the evidence, the
trial court’s findings can be inferred from its decision.”).
Defendant likens this case to State v. Minor, 132 N.C. App. 478, 481, 512 S.E.2d
483, 485 (1999), in which we analyzed the defendant’s hand movements and the
officers’ decision to leave the defendant in the vehicle for an extended period of time
prior to the search. In Minor, at about 4:00 in the afternoon, a police officer pulled
over the vehicle in which the defendant was a passenger because its temporary tag
was illegible. Id. at 480, 512 S.E.2d at 484. When the officer activated his blue
emergency lights, he saw the defendant “move his hand toward the center console of
the car.” Id. Once the car stopped, the officer frisked the driver and started talking
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to him. While that was going on, another officer on the scene saw the defendant “put
his hand on the door handle as if to emerge from the car, but [then] dropped his hand
and remained in the car when he saw” the officer looking at him. Id. It was not until
the other officer finished speaking with the driver that the defendant was removed
from the vehicle and frisked for weapons. Although a frisk of the defendant’s person
revealed nothing, the officers found a handgun in the interior of the vehicle and found
crack cocaine upon a further search of the defendant’s pocket incident to his arrest.
Id. We held in Minor that the officers’ decision to leave the defendant in the vehicle
until the officer conversing with the driver was finished, despite the defendant’s hand
movements, cut against the finding that “the officers supposedly feared” that the
defendant was armed and dangerous. Id. at 483, 512 S.E.2d at 486.
Minor is readily distinguishable from this case. Officer Whitley witnessed a
vehicle with a mismatched tag driving around midnight in an area where the officer
had investigated “[n]umerous drug cases as well as firearm cases.” Defendant then
raised his hands out of the window, a gesture Officer Whitley has found in his
experience increases the probability that a firearm is present. Defendant was also
“very nervous” and contorted his body in such a way that made it seem like he was
trying to hide something from Officer Whitley’s vantage point. Though Officer
Whitley was suspicious at this point, it was not until he learned of Defendant’s violent
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weapons-related criminal history that he then decided to frisk Defendant and the
lungeable areas of the vehicle.
Citing a decision by the Fourth Circuit Court of Appeals, Defendant asserts
that raising one’s hands out of the window is a “show of respect and an attempt to
avoid confrontation” similar to that of “a young man[] keeping his eyes down during
a police encounter.” United States v. Massenburg, 654 F.3d 480, 489 (4th Cir. 2011).
Massenburg is neither binding nor persuasive.3 The officers in Massenburg thought,
and the trial court agreed, that the suspect was acting nervously when he refused to
make eye contact with them during their request to search him. Id. The Fourth
Circuit disagreed, writing that a lack of eye contact brings little weight to a
determination as to nervousness because “the Government often argues just the
reverse: that it was suspicious when an individual looks or stares back at [officers].”
Id. (quotation marks and citation omitted) (alteration in original).
Here, Defendant is not potentially vulnerable to such a catch-22 as the
defendant in Massenburg and this Court has established that raising one’s hands in
a similar fashion is a factor to be considered in determining whether reasonable
suspicion justified a search. See King, 206 N.C. App. at 590, 696 S.E.2d at 916
(holding reasonable suspicion existed to search the defendant when considering, inter
3 While decisions from other jurisdictions are not binding, “we may consider such decisions as
persuasive authority” if found to be instructive. State v. Fernandez, __ N.C. App. __, __, 808 S.E.2d
362, 367 n.1 (2017) (citing Carolina Power & Light Co. v. Emp’t Sec. Comm’n of N.C., 363 N.C. 562,
569, 681 S.E.2d 776, 780 (2009)).
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alia, “the unusual gesture of [the d]efendant placing his hands out of his window.”).
While it could be construed that a suspect who has his hands up means to convey his
concession to police authority, decisions following Terry have long held that
reasonable suspicion is circumstance-dependent and that each factor, no matter how
individually innocent or inconsequential, must be viewed in conjunction with all other
factors. State v. Mangum, __ N.C. App. __, __, 795 S.E.2d 106, 119 (2016). And as to
the notion of Defendant possibly having a gun by the raising of his hands, courts are
encouraged to “credit the practical experience of officers,” like Officer Whitley, “who
observe on a daily basis what transpires on the street.” State v. Johnson, 246 N.C.
App. 677, 692, 783 S.E.2d 753, 764 (2016) (quotations, citations, and alterations
omitted). It is not within our purview to “indulge in unrealistic second-guessing” of
what reasonable officers should have done in light of their past histories in similar
scenarios. United States v. Sharpe, 470 U.S. 675, 686, 84 L. Ed. 2d 605, 616 (1985).
In viewing the express and implied facts through the totality of the
circumstances, we affirm the trial court’s conclusion that, at the time of the search,
reasonable suspicion existed that Defendant was armed and dangerous. We
acknowledge that Defendant responded to each of Officer Whitley’s requests and
commands and cooperated with him. However, “even in the face of an otherwise
cooperative defendant who present[s] no obvious signs of carrying a weapon,” State v.
McRae, 154 N.C. App. 624, 630, 573 S.E.2d 214, 219 (2002), Officer Whitley was
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entitled to rely on his experience and training and “formulate ‘common sense
conclusions’ about ‘the modes or patterns of operation of certain kinds of lawbreakers’
in reasoning that” Defendant may have been armed. Johnson, 246 N.C. App. at 692,
783 S.E.2d at 764 (quoting State v. Butler, 331 N.C. 227, 234, 415 S.E.2d 719, 723
(1992)).
C. Extension of the Stop
Defendant also argues that Officer Whitley unlawfully extended the duration
of the traffic stop. Because we have already determined that Officer Whitley had
reasonable suspicion to conduct the search for weapons following the discovery of
Defendant’s criminal history, Defendant’s argument is overruled.4 See State v. Myles,
188 N.C. App. 42, 45, 654 S.E.2d 752, 754 (2008) (“Once the original purpose of the
stop has been addressed, there must be grounds which provide a reasonable and
articulable suspicion in order to justify further delay.” (quotations and citation
omitted)).
III. CONCLUSION
For the foregoing reasons, we hold that Defendant has failed to demonstrate
that the trial court erred in denying his motion to suppress.
4 Defendant concedes that Officer Whitley’s criminal history check was a lawful precautionary
safety measure. See State v. Bullock, 370 N.C. 256, 258, 805 S.E.2d 671, 674 (2017) (“ ‘[T]he almost
simultaneous computer check of a person’s criminal record, along with his or her license and
registration, is reasonable and hardly intrusive.’ ” (quoting United States v. McRae, 81 F.3d 1528, 1536
n.6 (10th Cir. 1996)).
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NO ERROR.
Judge BERGER concurs.
Judge MURPHY dissents in a separate opinion.
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No. COA19-96 – State v. Johnson
MURPHY, Judge, dissenting.
The officer did not have reasonable suspicion Defendant was armed and
dangerous to support his search of Defendant’s vehicle and I must respectfully dissent
from the Majority’s opinion to the contrary.
The Majority correctly sets out our binding rule regarding Terry searches of a
vehicle’s interior being appropriate where the officer has reasonable suspicion the
suspect is armed and dangerous:
[T]he search of the passenger compartment of an
automobile, limited to those areas in which a weapon may
be placed or hidden, is permissible if the police officer
possesses a reasonable belief based on “specific and
articulable facts which, taken together with the rational
inferences from those facts, reasonably warrant” the
officers in believing that the suspect is dangerous and the
suspect may gain immediate control of weapons.
Michigan v. Long, 463 U.S. 1032, 1049, 77 L. Ed. 2d 1201 (1983). However, I disagree
with the Majority’s analysis of the “articulable facts” of Defendant’s case and cannot
conclude that, under the circumstances, the police officer here possessed a reasonable
belief that Defendant was dangerous.
The Majority concludes, in relevant part, “[t]he facts that the trial court
considered in denying Defendant’s motion to suppress have all been established as
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‘articulable facts’ utilized in supporting an officer’s reasonable suspicion.” In support
of this statement, the Majority cites the following facts: (1) “it was late at night” when
Defendant was pulled over; (2) “the stop occurred in a high-crime area”; (3)
“Defendant exhibited a hand gesture”; (4) “Defendant appeared highly nervous”; (5)
“Defendant ‘bladed’ his body to shield something from being seen”; and (6) “Defendant
had a violent criminal history involving weapons.” These facts were largely not found
by the trial court and are not reflected in the record.
The Majority correctly notes that, “[w]hen there is no conflict in the evidence,
the trial court’s findings can be inferred from its decision.” State v. Bartlett, 368 N.C.
309, 312, 776 S.E.2d 672, 674 (2015). In Bartlett, our Supreme Court reaffirmed the
principle that, when the evidence is undisputed, certain findings can be inferred from
the trial court’s decision without the entry of formal findings of fact. Id. For example,
implicit in a trial court’s conclusion that a Defendant’s statement to SBI agents must
be suppressed because he did not initiate the dialogue with the officers is the finding
that the Defendant did not initiate such a dialogue. State v. Munsey, 342 N.C. 882,
885, 467 S.E.2d 425, 427 (1996). This rule does not, however, give our appellate
courts carte blanche to imply findings of fact in every instance, and I believe the
Majority’s reliance on the rule in this case is a misapplication of our jurisprudence.
See Moses v. Bartholomew, 238 N.C. 714, 718, 78 S.E.2d 923, 926 (1953) (internal
citation omitted) (“[The trier of facts] is the sole judge of the credibility and weight of
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the evidence. As a consequence, it may accept or reject the testimony of a witness,
either in whole or in part, depending solely upon whether it believes or disbelieves
the same.”).
As the Majority notes, the trial court did not enter findings of fact that
Defendant appeared nervous—let alone “highly” nervous—or that he bladed his
body—let alone that he did so “to shield something from being seen”—during the stop
at issue. Based on the record, I cannot agree with the Majority that these findings
may be inferred from the trial court’s ruling. Unlike the trial courts in Bartlett and
Munsey, the trial court here entered detailed findings of fact to support its conclusion
that the officer had reasonable suspicion to believe Defendant was armed and
dangerous. In entering those findings, the trial court did not enter findings regarding
Defendant’s purported nervousness or “blading” of his body, and I do not infer such
findings from the trial court’s ruling in this case. Inferring additional findings, ones
that go beyond what the trial court actually found, to rescue an otherwise insufficient
ruling of the trial court is a perversion of the rule our Supreme Court described in
Bartlett.
Additionally, I disagree with the Majority’s reliance on State v. King, 206 N.C.
App. 585, 590, 696 S.E.2d 913, 916 (2010), which is a case with facts that are
distinguishable from those here. In King, the defendant held “both of his hands out
of the window as [the officer] approached the vehicle, and without any question or
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STATE V. JOHNSON
Opinion of the Court
inquiry, [the d]efendant immediately told [the officer] that he had a gun sitting on
the dashboard.” King, 206 N.C. App at 587, 696 S.E.2d at 914. In weighing the
factual circumstances supporting the officer’s reasonable suspicion that the
defendant was dangerous, we stated:
The combination of this loaded handgun, the late hour, the
odd manner by which Defendant and his passenger
continued to look at Cecil as they passed the officer, and
the unusual gesture of Defendant placing his hands out of
his window, gave rise to far more than a hunch that
Defendant might have been armed.
Id. at 590, 696 S.E.2d at 916. The Majority cites King as support for its contention
that “Defendant made a hand gesture” that supported the officer’s reasonable
suspicion that he was armed and dangerous. I do not disagree that Defendant’s “hand
gesture” may enter our calculus, but I note the facts of King are distinguishable from
those here, where Defendant raised his hands when the officer approached and then
acted politely and cooperatively for the remainder of the stop.
Here, where the Majority lists six “articulable facts” supporting the officer’s
reasonable suspicion Defendant was armed and dangerous, I see far fewer facts to
support such a conclusion. Defendant was pulled over late at night5 in what the
officer described as a “high crime area,” that he raised his hands in a manner the
officer believed was “sometimes” or “potentially” indicative of possession of a firearm,
5 This is another fact that the trial court did not specifically find. However, the time of a traffic
stop is a verifiable and purely objective fact that I am much more comfortable relying upon without a
formal finding from the trial court.
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STATE V. JOHNSON
Opinion of the Court
and that he had a criminal record that included violent offenses involving weapons.
Those facts do not provide a sufficient basis from which the officer may have
reasonably suspected Defendant to be armed and dangerous.
I believe the Majority would agree that a holding that any traffic stop that
occurs late at night in a “high crime area” is grounds for a Terry frisk of the stopped
vehicle—even just the areas within the driver’s immediate reach—grants officers
overbroad authority to search. When I add to that scenario the combined weight of
Defendant’s action of raising his hands upon being pulled over and his criminal
record, the facts of this case are still not enough for me to conclude the officer could
articulate, based on demonstrable facts, reasonable suspicion Defendant was armed
and dangerous at the time the officer decided to conduct his search. Specifically, in
regard to his criminal record, Defendant had paid his debt to society for his previous
transgressions and convictions are not meant to be a lifetime scarlet letter or
permanent justification for police to treat that individual with a different class of
liberty under our State or Federal Constitutions. I respectfully dissent.
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State v. Johnson
Combined Opinion