State v. Mello

HUNTER, JR., Robert N., Judge,

dissenting.

The facts of this c'ase present either the pinnacle of a “hunch” or the absolute minimum threshold for “reasonable suspicion.” The former will not support the initial traffic stop of defendant’s vehicle in this case, while the latter will shower the investigatory stop in issue with all the riches and blessings accompanying a determination that a suspicion was “reasonable” under the United States and North Carolina Constitutions. In my opinion, Officer Pritchard’s testimony shows that he had a “hunch” or “a strong intuitive feeling or a premonition,” The American Heritage College Dictionary 663 (3d ed. 1997), as opposed to a “particularized and objective” suspicion that a drug transaction had taken place. United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981). Accordingly, I dissent.

*452Citizens in this country are protected against “unreasonable searches and seizures” by the Fourth Amendment of the United States Constitution. U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643, 655, 6 L. Ed. 2d 1081, 1090, reh’g denied, 368 U.S. 871, 7 L. Ed. 2d 72 (1961) (Fourth Amendment applicable to states through Fourteenth Amendment). Investigatory stops as authorized by Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968) are constitutional under the Fourth Amendment as long as the officer initiating the stop has a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” Cortez, 449 U.S. at 417-18, 66 L. Ed. 2d at 629. This standard under Terry, also known as “reasonable suspicion,” “is dependent upon both the content of information possessed by police and its degree of reliability.” Alabama v. White, 496 U.S. 325, 330, 110 L. Ed. 2d 301, 309 (1990).

When reviewing the facts and information presented to an officer leading to a Terry stop, we must examine the “totality of the circumstances.” United States v. Sokolow, 490 U.S. 1, 8, 104 L. Ed. 2d 1, 10 (1989). This requires us to examine two elements: (1) whether a trained officer's assessment to make a stop was “based upon all the circumstances” including “objective observations” of “the modes or patterns of operation of certain kinds of lawbreakers”; and (2) whether the officer’s assessment in light of his training “[raised] a suspicion that the particular individual being stopped is engaged in wrongdoing.” Cortez, 449 U.S. at 418, 66 L. Ed. 2d at 629. Under these guiding principles, we must determine whether “[t]he stop [is] 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 his experience and training.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (citations omitted). “The only requirement is a minimal level of objective justification, something more than an ‘unparticularized suspicion or hunch.’ ” Id. at 442, 446 S.E.2d at 70 (quoting Sokolow, 490 U.S. at 7, 104 L. Ed. 2d at 10).

Under the “totality of the circumstances” test, we consider several factors on the part of the accused including a suspect’s nervousness or activity at an unusual hour. See State v. McClendon, 350 N.C. 630, 639, 517 S.E.2d 128, 133 (1999) (concluding that the circumstances gave rise to a reasonable suspicion because the defendant was fidgeting, sweating, breathing rapidly, and avoiding eye contact); Watkins, 337 N.C. at 443, 446 S.E.2d at 70-71 (holding that the police officer had reasonable suspicion when he saw a vehicle moving with *453its lights off in the parking lot of a closed business in a rural area at 3:00 a.m.). We also take into account a defendant’s presence in a high-crime area or whether the defendant engages in unprovoked flight. Illinois v. Wardlow, 528 U.S. 119, 124, 145 L. Ed. 2d 570, 576 (2000). “Headlong flight — wherever it occurs — is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id. Considered individually, none of these factors are alone sufficient, and must be considered within the context of all the facts presented. Cortez, 449 U.S. at 417, 66 L. Ed. 2d at 629; Wardlow, 528 U.S. at 124, 145 L. Ed. 2d at 576.

The majority states that they are constrained, at least in part, to affirm the trial court’s decision in this case based on our Supreme Court’s holding in State v. Butler, 331 N.C. 227, 415 S.E.2d 719 (1992). In Butler, defendant was with a group of people congregated on a corner known for its high drug activity. Butler, 331 N.C. at 231-32, 415 S.E.2d at 721. The officer had conducted daily surveillance of the corner for several months, and during that time had made four to- six drug-related arrests. Id. When the police officers approached the defendant, “upon making eye contact with the uniformed officers, [the] defendant immediately moved away,” which the Court concluded to be “behavior that is evidence of flight[.]” Id. at 233, 415 S.E.2d at 722. In summarizing the facts observed by the officer prior to stopping the defendant, the Court listed:

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

Id. at 233, 415 S.E.2d at 722. In concluding reasonable suspicion existed for the police officer to conduct an investigatory stop of defendant, the Butler Court explained that:

The United States Supreme Court has held that mere presence in a neighborhood frequented by drug users is not, standing alone, a basis for concluding that the defendant was himself engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 52, 61 L. Ed. 2d 357, *454362-63 (1979). Here, however, there was an additional circumstance — 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.

In addition to Butler, the majority cites a plethora of case law in which “reasonable suspicion” was found based on some or all of the specific behaviors or circumstances listed above which can support an officer’s determination to conduct an investigatory stop under Terry. However, the fact remains that “reasonable suspicion” must be based on objective facts. Watkins, 337 N.C. at 442, 446 S.E.2d at 70; Sokolow, 490 U.S. at 7, 104 L. Ed. 2d at 10; Cortez, 449 U.S. at 417, 66 L. Ed. 2d at 628. In order for something to be “objective,” it must have “actual existence or reality” and be “[ujninfluenced by emotion, surmise, or personal prejudice.” The American Heritage Dictionary 857 (2d ed. 1985). While an officer may interpret objective facts through his experience and training, it remains paramount nevertheless that he have a “minimal level of objective justification” in deciding to initiate a Terry stop. Watkins, 337 N.C. at 442, 446 S.E.2d at 70.

In the transcript, the sum total of objective facts presented to the trial court to support this particular Terry stop were: (1) “the area of Chandler and Amanda Place” was considered by Officer Pritchard to be “a well-known drug location with high drug activity that takes place there on a regular basis”; (2) Officer Pritchard watched two familiar but unknown individuals walk to defendant’s vehicle, and put “their hands into the vehicle”; and (3) the unknown individuals ran away when Officer Pritchard turned his cruiser around tóward them, and one of the individuals “ducked” into a nearby house. Defendant committed no traffic offense.

With respect to the contention that “the area of Chandler and Amanda Place” was “a well-known drug location,” the record shows that Officer Pritchard based this opinion on the fact that he had made and assisted in other drug arrests in the same area during his two and half years with the Winston-Salem Police Department.4 According to the transcript, he had made “numerous” arrests in the Chandler and Amanda Place area, though he did not know the specific number of arrests made. When asked if he regularly patrolled the area in which defendant was arrested, he stated that he was assigned to an adjoin*455ing beat at the time. The State offered no other evidence showing that this area was “a well-known drug location.” Moreover, as to the alleged transaction, Officer Pritchard did not see any exchange. In fact, the trial court found that “Officer Pritchard did not see any object or money in their hands, nor did he observe any direct exchange between the individuals and the Defendant or any other persons in the car.” (Emphasis added.)

These observations of the record render Butler inapplicable to this appeal. Officer Pritchard did not have the area in question under daily surveillance, he was not patrolling the exact location of Chandler and Amanda Place on a regular basis at the time of defendant’s arrest, defendant was not congregated with a group of suspected drug offenders under daily police scrutiny, and defendant made no suspicious movements upon the police cruiser turning toward him. Unlike Butler, which contained a laundry list of suspect activity, if we look only at defendant’s actions leading up to Officer Pritchard’s intervention, we are left, only with defendant being approached by two individuals who put their hands into his car in a “well-known drug location.”

In Butler, our Supreme Court cites United States v. Magda, 547 F.2d 756 (2d Cir. 1976), cert. denied, 434 U.S. 878, 54 L. Ed. 2d 157 (1977). Butler, 331 N.C. at 234, 415 S.E.2d at 723. In Magda, a police officer observed two men “exchange something” on a street known for narcotics sales; the area in question was “particularly notorious as a center for drug traffic” and “under 24-hour surveillance” by police. Magda, 547 F.2d at 757-58. The officer actually saw “that each man gave and received something simultaneously.” Id. at 757. After witnessing this exchange, the defendant,. Magda, walked across the street, while Magda’s “companion looked in [the officer’s] direction, turned in a rapid motion and immediately walked away.” Id. at 757-58.

Magda’s holding that someone’s actions other than the defendant’s could be a factor within the context of a Terry analysis was not applicable to the actual holding of Butler. As the Butler Court explained, the defendant was the person who “[left] the corner and walk[ed] away from the officers after making eye contact with them.” Butler, 331 N.C. at 234, 415 S.E.2d at 722-23. However, even assuming that this part of Magda applies to the current appeal through Butler, Magda hardly stands for the proposition that the flight of third persons other than the defendant is singularly sufficient for “reasonable *456suspicion.” Like Butler, the area of the arrest in Magda was subject to constant police scrutiny, and the officer in Magda actually observed an exchange between the individuals suspected of criminal activity. Magda, 547 F.2d at 757-58.

With respect to Officer Pritchard’s testimony that he observed unknown individuals inserting their hands into defendant’s vehicle, the majority cites State v. Summey, 150 N.C. App. 662, 564 S.E.2d 624 (2002) and State v. Clyburn, 120 N.C. App. 377, 462 S.E.2d 538 (1995), and argues that Officer Pritchard had reasonable suspicion based merely on “the appearance of a hand-to-hand drug transaction.” However, in Summey, the arresting officer was conducting a “drug surveillance operation” on the area in question, and the officer “positioned himself in view of a residence which had been the subject of a nuisance abatement proceeding for drug-related activities.” Summey, 150 N.C. App. at 663-64, 564 S.E.2d at 626. “A group of men were standing in the front yard of the residence” at the time the officer was conducting surveillance. Id. Within these facts not present in the current appeal, the Summey Court found “reasonable suspicion” for a Terry stop of the defendant’s vehicle where the officer merely observed

a white Nissan pickup truck with the rear window missing drive toward[] the residence and stop alongside the road. One of the men standing in the yard approached the truck and appeared to engage in a brief conversation with the driver. A few moments later, the man returned to the yard and the truck drove away.

Id.

Clybum is even more distinguishable from the case sub judice. In that case, the record showed:

On the evening of 9 November 1993, Officers R.A. McManus and C.R. Selvey of the Charlotte-Mecklenburg Police Department conducted surveillance in the 1600 block of Remount Road. Both officers were aware of the area’s reputation for drug activity and had previously made drug arrests in the vicinity. While positioned in an unmarked car, the officers observed three black males standing in front of a vacant duplex across the street. Officer McManus testified that he observed several “meetings” whereby the three men were approached by individuals on foot who would speak briefly to one of the black males. During each “meeting,” the indi*457vidual would disappear behind the duplex with the same black male, later identified as the defendant. The other two males remained in front of the duplex as if acting as lookouts. Each time the defendant reappeared, the other two men conferred with him. Officers McManus and Selvey had observed similar “meetings” during their years on the police force. Based on their training and experience, both officers testified that in their opinions the “meetings” were drug transactions.

Clyburn, 120 N.C. App. at 378, 462 S.E.2d at 539. After the surveilling officers witnessed this activity, they conducted a Terry stop of the defendant’s car after witnessing a passenger in the car engage in similar activity. Id.

Absent Officer Pritchard’s observing an actual exchange inside defendant’s car in this case, I believe the above case law amply demonstrates that the circumstantial evidence necessary for “reasonable suspicion” is substantially higher than (1) presence in a “drug location” and (2) the flight of third persons from an approaching police cruiser. Were the fleeing individuals the defendants in this appeal, their actions would certainly bear the indicia of guilt prescribed by our United States Supreme Court. Wardlow, 528 U.S. at 124, 145 L. Ed. 2d at 576. However, because they are not, my contention is that their actions gave Officer Pritchard “a strong intuitive feeling or a premonition” in light of his prior, and not then existing, experience at Chandler and Amanda Place with respect to defendant. While I recognize that such strong intuitions are a valuable tool in an officer’s execution of his duties, they nonetheless amount to a mere “hunch,” and are insufficient under the guarantees of the Fourth Amendment. Sokolow, 490 U.S. at 7, 104 L. Ed. 2d at 10. More importantly, however, they are insufficient to support the trial court’s conclusion of law that Officer Pritchard had reasonable suspicion to believe that defendant was involved in a drug transaction.

As such, because the trial court’s conclusion of law as to reasonable suspicion is based on insufficient objective facts, and given that no case law otherwise binds this Court to a contrary result, I would reverse defendant’s conviction.

. The trial court’s order shows that Officer Pritchard had three and a half years of experience, but a reading of the transcript shows that the arrest of defendant happened about a year prior to the hearing.