{ "id": 4168615, "name": "STATE OF NORTH CAROLINA v. MICHAEL ANTHONY MILLER", "name_abbreviation": "State v. Miller", "decision_date": "2009-07-07", "docket_number": "No. COA08-1530", "first_page": "196", "last_page": "201", "citations": [ { "type": "official", "cite": "198 N.C. App. 196" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "654 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640074 ], "year": 2008, "pin_cites": [ { "page": "757-58" } ], "opinion_index": 0, "case_paths": [ "/se2d/654/0752-01" ] }, { "cite": "656 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640375 ], "year": 2008, "pin_cites": [ { "page": "727", "parenthetical": "citing United States v. Hensley, 469 U.S. 221, 235, 83 L. Ed. 2d 604, 616 (1985)" } ], "opinion_index": 0, "case_paths": [ "/se2d/656/0721-01" ] }, { "cite": "645 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638620 ], "year": 2007, "pin_cites": [ { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0780-01" ] }, { "cite": "623 S.E.2d 11", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634569, 12634570 ], "year": 2005, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0011-01", "/se2d/623/0011-02" ] }, { "cite": "634 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636585 ], "year": 2006, "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/se2d/634/0244-01" ] }, { "cite": "640 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637747, 12637748 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/640/0059-01", "/se2d/640/0059-02" ] }, { "cite": "631 S.E.2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636088 ], "year": 2006, "pin_cites": [ { "page": "206" } ], "opinion_index": 0, "case_paths": [ "/se2d/631/0203-01" ] }, { "cite": "658 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640646 ], "year": 2008, "pin_cites": [ { "page": "504", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0, "case_paths": [ "/se2d/658/0501-01" ] }, { "cite": "458 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "522", "parenthetical": "noting that a suspect who attempts to hide narcotics by making \"evasive maneuvers to avoid detection\" uses evasive actions" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915438 ], "year": 1995, "pin_cites": [ { "page": "398", "parenthetical": "noting that a suspect who attempts to hide narcotics by making \"evasive maneuvers to avoid detection\" uses evasive actions" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0395-01" ] }, { "cite": "188 N.C. App. 42", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156101 ], "year": 2008, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0042-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "24" }, { "page": "908" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "469 U.S. 221", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959006 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "235" }, { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/us/469/0221-01" ] }, { "cite": "188 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156256 ], "year": 2008, "pin_cites": [ { "page": "709", "parenthetical": "citing United States v. Hensley, 469 U.S. 221, 235, 83 L. Ed. 2d 604, 616 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0701-01" ] }, { "cite": "534 U.S. 266", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9108176 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "273" }, { "page": "749-50" } ], "opinion_index": 0, "case_paths": [ "/us/534/0266-01" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "70" }, { "page": "70" } ], "opinion_index": 0 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "441" }, { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "184 N.C. App. 25", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8183865 ], "year": 2007, "pin_cites": [ { "page": "29" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0025-01" ] }, { "cite": "360 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788006 ], "year": 2005, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0110-01" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "179 N.C. App. 297", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8235940 ], "year": 2006, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0297-01" ] }, { "cite": "361 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3742650, 3740178, 3737844, 3741058 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/361/0177-02", "/nc/361/0177-04", "/nc/361/0177-01", "/nc/361/0177-03" ] }, { "cite": "178 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8377534 ], "year": 2006, "pin_cites": [ { "page": "333-34" } ], "opinion_index": 0, "case_paths": [ "/nc-app/178/0330-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "189 N.C. App. 454", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156639 ], "year": 2008, "pin_cites": [ { "page": "458", "parenthetical": "quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0454-01" ] } ], "analysis": { "cardinality": 697, "char_count": 12139, "ocr_confidence": 0.743, "pagerank": { "raw": 6.5754854646575e-08, "percentile": 0.40269760901118173 }, "sha256": "b72a1cc29981f6dfde44dfabf820da098181ced7320036fe6e66ed80107084ab", "simhash": "1:2f1a5e6e5c534aaa", "word_count": 1997 }, "last_updated": "2023-07-14T15:51:23.100841+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL ANTHONY MILLER" ], "opinions": [ { "text": "JACKSON, Judge.\nMichael Anthony Miller (\u201cdefendant\u201d) appeals from a 17 July 2008 judgment against him for felony possession of cocaine and resisting a public officer. Defendant received credit for the entirety of his activated sentence from the 282 days served between arrest and trial. In addition, defendant received twenty-four months of supervised probation. For the reasons stated below, we hold no error.\nOn 9 October 2007, at approximately midnight, Officer Donald Ruppe (\u201cOfficer Ruppe\u201d), observed a passing automobile with a broken headlight while on patrol. Officer Ruppe then \u201cran\u201d the vehicle\u2019s tag and stopped defendant. He approached the vehicle on the passenger side and stated to defendant that his headlight was out. As he spoke to defendant, Officer Ruppe noticed that defendant\u2019s right hand was clenched into a fist. At that point, however, Officer Ruppe was unconcerned with it and took no action. Defendant responded to Officer Ruppe\u2019s assertion by stating that he did not believe that his headlight was broken. Officer Ruppe then requested that defendant get out of the vehicle and see for himself.\nDuring defendant\u2019s inspection of the headlight, Officer Ruppe noticed that defendant still was clenching his hand into a fist and that a white material was protruding from the bottom of it. Concerned that defendant\u2019s hand contained a weapon or narcotics, Officer Ruppe asked him to display the contents of his right hand. Defendant responded (1) by stating that he had nothing in his right hand, and (2) by showing Officer Ruppe the various documents he had in his left hand. Officer Ruppe then commanded defendant to show the contents of his right hand. After this second command, defendant began to back away from Officer Ruppe. Defendant then raised his right hand in a manner that made Officer Ruppe believe that defendant was about to strike him with his closed fist. Officer Ruppe responded by striking the defendant in the upper left thigh with his flashlight.\nFollowing Officer Ruppe\u2019s initial strike, Corporal Hunter, arrived on the scene to assist Officer Ruppe. Officer Ruppe then aimed his taser at defendant. Defendant ignored Officer Ruppe\u2019s continued requests for him to remain still and submit to arrest, so Officer Ruppe tased defendant. Defendant fell to the ground and dropped the contents of his right hand \u2014 a white paper towel containing what Officer Ruppe believed to be a rock of crack cocaine. Subsequent chemical analysis proved that the object which fell was .2 grams of crack cocaine.\nOn appeal, defendant contends that the trial court committed plain error when it denied defendant\u2019s motion to suppress evidence because the evidence purportedly was obtained without reasonable suspicion. We disagree.\nTraditionally, our review of a motion to suppress \u201cis strictly limited to determining whether the trial judge\u2019s underlying findings of fact are supported by competent evidence . . . and whether those factual findings in turn support the judge\u2019s ultimate conclusions of law.\u201d State v. Robinson, 189 N.C. App. 454, 458, 658 S.E.2d 501, 504 (2008) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). \u201cIf the trial court\u2019s conclusions of law are supported by its factual findings, we will not disturb those conclusions on appeal.\u201d State v. Pickard, 178 N.C. App. 330, 333-34, 631 S.E.2d 203, 206, appeal dismissed and disc. rev. denied, 361 N.C. 177, 640 S.E.2d 59 (2006). Further, we review the trial court\u2019s conclusions of law de novo. See State v. Stone, 179 N.C. App. 297, 302, 634 S.E.2d 244, 247 (2006).\nHere, the State correctly notes that defendant failed to object properly to the admission of the narcotics evidence at trial. Accordingly, defendant did not preserve the issue for appellate review pursuant to North Carolina Rules of Appellate Procedure, Rule 10(b)(1) which provides that \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d N.C. R. App. P. 10(b)(1) (2007). Notwithstanding defendant\u2019s failure to object, defendant properly assigned plain error on appeal and presented argument, albeit limited, in support of plain error review in his reply brief. Accordingly, defendant is afforded plain error review pursuant to North Carolina Rules of Appellate Procedure, Rule 10(c)(4), which provides that,\n[i]n criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.\nN.C. R. App. P. 10(c)(4) (2007).\n[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201c \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial\u2019 \u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)) (footnotes omitted) (emphasis in original). Moreover, \u201c[a] reversal for plain error is only appropriate in the most exceptional cases.\u201d State v. Duke, 360 N.C. 110, 138, 623 S.E.2d 11, 29 (2005).\nWe previously have held that, \u201c[a] police officer may effect a brief investigatory seizure of an individual where the officer has reasonable, articulable suspicion that a crime may be underway.\u201d State v. Barnard, 184 N.C. App. 25, 29, 645 S.E.2d 780, 783 (2007). These facts and the inferences drawn therefrom must be \u201cviewed through the eyes of a reasonable, cautious officer, guided by his experience and training.\u201d State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). Additionally, the facts, as viewed by the officer, must be examined in their totality. See United States v. Arvizu, 534 U.S. 266, 273, 151 L. Ed. 2d 740, 749-50 (2002).\nThe Supreme Court has held that police officers are \u201cauthorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop.\u201d State v. Campbell, 188 N.C. App. 701, 709, 656 S.E.2d 721, 727 (2008) (citing United States v. Hensley, 469 U.S. 221, 235, 83 L. Ed. 2d 604, 616 (1985)). Specifically, an officer may \u201cfrisk\u201d a suspect who is at close range if he believes that the suspect is currently armed and dangerous. See Terry v. Ohio, 392 U.S. 1, 24, 20 L. Ed. 2d 889, 908 (1968). Further, although nervous behavior, standing alone, is not sufficient to establish reasonable suspicion, its presence with other facts may be used to establish reasonable suspicion. See State v. Myles, 188 N.C. App. 42, 50, 654 S.E.2d 752, 757-58 (2008). In addition, we have held that evasive actions taken by the defendant may be relevant when examining whether reasonable suspicion was present at the time of a stop. See State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522 (1995) (noting that a suspect who attempts to hide narcotics by making \u201cevasive maneuvers to avoid detection\u201d uses evasive actions).\nHere, Officer Ruppe stated that he believed defendant may have been hiding a weapon. Although he only saw defendant clenching a small piece of white material, Officer Ruppe was aware that small weapons could be concealed within a hand. As he testified at trial, \u201c[w]e are always getting updates on possible weapons .... There\u2019s always something that would fit in a hand[.]\u201d Officer Ruppe used his prior experience and training to infer that the contents of defendant\u2019s right hand may have been a weapon. His inference that a weapon was present went beyond an \u201cunparticularized suspicion or hunch[,]\u201d as our Supreme Court has required. Watkins, 337 N.C. at 442, 446 S.E.2d at 70. Because we previously have held that officers may take necessary steps to ensure their safety, Officer Ruppe acted reasonably when he requested to see what was in defendant\u2019s hand.\nMoreover, Officer Ruppe was led to a reasonable suspicion because of defendant\u2019s (1) erratic answers, (2) evasive actions, (3) continued refusal to show Officer Ruppe the contents of his right fist, and (4) choice to raise his fist in a manner which led Officer Ruppe to believe that defendant was about to strike him.\nFirst, defendant stated multiple times that he only had papers in his left hand. Defendant went on to tell Officer Ruppe, \u201cI ain\u2019t got nothing in my right hand[,]\u201d despite Officer Ruppe\u2019s clear view of the white material clenched in defendant\u2019s right hand. Second, Officer Ruppe commanded that defendant not \u201ctake another step to [defendant\u2019s] vehicle.\u201d At that point, defendant once again attempted to evade Officer Ruppe by stepping towards his vehicle. It was only at that point that Officer Ruppe decided to tase defendant. Third, Officer Ruppe believed that defendant\u2019s conflicting statements about the contents of his hands were meant to distract him while defendant tried to \u201chide [defendant\u2019s right hand] behind his back a little bit.\u201d Officer Ruppe commanded that defendant show the contents of his right hand several times. Each time, defendant refused to open his hands, and, as such, Officer Ruppe was unable to ensure his own safety by searching defendant for weapons. Finally, while Officer Ruppe was commanding defendant to show the contents of his hand, defendant backed away while raising his hand in a manner which made Officer Ruppe believe that \u201che was going to hit me or try to throw the dope away.\u201d Due to defendant\u2019s (1) erratic answers, (2) evasive actions, (3) continued refusal to show Officer Ruppe the contents of his right fist, and (4) choice to raise his fist in a manner which led Officer Ruppe to believe that defendant was about to strike him, we hold that the officer had reasonable suspicion to briefly search the defendant for weapons based upon the totality of the circumstances informed by his training and experience.\nUpon review, the case sub judice does not present the \u201cexceptional\u201d circumstance contemplated by our Supreme Court in Duke and Odom. Accordingly, we hold that the trial court did not commit plain error.\nNo error.\nJudges McGEE and ERVIN concur.", "type": "majority", "author": "JACKSON, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Assistant Attorney General John R. Green, Jr., for the State.", "Faith S. Bushnaq, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL ANTHONY MILLER\nNo. COA08-1530\n(Filed 7 July 2009)\nSearch and Seizure\u2014 refusal to open fist \u2014 evasive answers, threatening gesture \u2014 reasonable suspicion to search for weapons\nThere was no plain error in denying defendant\u2019s, motion to suppress evidence in a prosecution for felonious possession of cocaine and resisting a public officer where defendant was stopped for a broken headlight; the officer saw that there was something in defendant\u2019s closed right fist; defendant was evasive and gave erratic answers, and would not show the officer the contents of his fist; defendant raised his fist in a manner which led the officer to believe he was about to be struck; the officer tased defendant; and defendant dropped a paper towel containing a rock of crack cocaine. The officer had reasonable suspicion to search defendant for weapons based upon the totality of the circumstances informed by his training and experience.\nAppeal by defendant from judgments entered 17 July 2008 by Judge James U. Downs in Rutherford County Superior Court. Heard in the Court of Appeals 20 May 2009.\nAttorney General Roy A. Cooper, III, by Assistant Attorney General John R. Green, Jr., for the State.\nFaith S. Bushnaq, for defendant-appellant." }, "file_name": "0196-01", "first_page_order": 222, "last_page_order": 227 }