{
  "id": 4173206,
  "name": "STATE OF NORTH CAROLINA v. ANTONIO WILLIAMS",
  "name_abbreviation": "State v. Williams",
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    "judges": [
      "Judge BEASLEY concurs.",
      "Judge HUNTER, JR. concurs in the result."
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    "parties": [
      "STATE OF NORTH CAROLINA v. ANTONIO WILLIAMS"
    ],
    "opinions": [
      {
        "text": "STEPHENS, Judge.\nI. Procedural History and Factual Background\nOn 13 November 2007, Defendant was indicted on a charge of felony possession of cocaine. On 30 July 2008, Defendant filed a pretrial motion to suppress the cocaine seized as a result of a search of his person. Defendant\u2019s motion was heard on 13 August 2008 in Forsyth County Superior Court.\nThe State\u2019s evidence presented at the hearing tended to show the following: On 28 July 2007, Officer K.K. Wade (\u201cOfficer Wade\u201d) of the Winston-Salem Police Department was patrolling an area around West Academy Street. Officer Wade testified that around that time, officers had been advised to look for 30-day vehicle tags, as many had been stolen around the city.\nAt approximately 1:30 a.m., Officer Wade observed Defendant driving a vehicle displaying a 30-day tag he suspected was expired because it was dirty and worn. While Officer Wade ran the tag in his computer, he followed Defendant\u2019s vehicle. Before the response came back, Defendant pulled into a driveway in the 1100 block of West Academy Street. Officer Wade did not activate his blue lights or siren, nor did he give any other indication for Defendant to stop.\nOnce Defendant pulled into the driveway, Officer Wade pulled over to the curb on the other side of the street. When Officer Wade approached Defendant\u2019s vehicle, he recognized Defendant\u2019s passenger, as he had previously arrested her for narcotics possession and prostitution.\nOfficer Wade asked Defendant about the status of the 30-day tag, and Defendant told him it was expired. Officer Wade then asked Defendant for his license, and Defendant handed him an expired registration and admitted that he did not have a driver\u2019s license. Officer Wade asked Defendant to step out of the vehicle to speak with him. Officer Wade and Defendant walked to the sidewalk area behind the vehicle, at which point Officer Wade told Defendant that he recognized Defendant\u2019s passenger and \u201cknew what kind of activity she was involved in.\u201d Officer Wade asked if Defendant had any outstanding warrants and if Defendant had any drugs on him, to which Defendant responded, \u201cno.\u201d Defendant then consented to a search of his person, which revealed what appeared to be cocaine.\nBased on the foregoing evidence, Judge Craig granted Defendant\u2019s motion to suppress the cocaine seized by Officer Wade, concluding that because \u201cno additional reasonable suspicion of additional criminal activity existed, the officer\u2019s request for consent to search the defendant\u2019s person exceeded the scope of the stop, and the prolonged detention of [Defendant violated the 4th Amendment.\u201d The State gave oral notice of appeal in open court on 18 August 2008, when the court reconvened. On 11 February 2009, the State filed a certification of its appeal with the trial court pursuant to N.C. Gen. Stat. \u00a7 15A-979(c) (2007) (\u201cAn order by the superior court granting a motion to suppress prior to trial is appealable to the appellate division of the General Court of Justice prior to trial upon certificate by the prosecutor to the judge who granted the motion that the appeal is not taken for the purpose of delay and that the evidence is essential to the case.\u201d).\nII. Discussion\nA. Notice of Appeal\nDefendant argues that the State\u2019s alleged failure to comply with N.C. R. App. P. 4(a) precludes the State\u2019s appeal in this instance. Rule 4(a) provides that notice of appeal in criminal cases may be given by \u201cgiving oral notice of appeal at trial\u201d or by filing a written notice of appeal. N.C. R. App. P. 4(a). Defendant argues that because there was no trial at which the State could have given oral notice and the State failed to file written notice of appeal, the State has failed to preserve its right to appeal.\nDefendant\u2019s interpretation of the phrase \u201cat trial\u201d in Rule 4(a)(1) is misguided. Defendant would have this Court hold that oral notice of appeal given in open court is insufficient in the absence of a full trial. Defendant\u2019s interpretation is unreasonably narrow and is contrary to the law of this State. See State v. Turner, 305 N.C. 356, 359, 289 S.E.2d 368, 370 (1982) (allowing an appeal of a trial court\u2019s grant of a motion to suppress evidence where the State \u201cgave oral notice of appeal in open court\u201d); State v. Lay, 56 N.C. App. 796, 798, 290 S.E.2d 405, 406, disc. review denied, 306 N.C. 390, 294 S.E.2d 216 (1982) (finding that the State gave proper notice of appeal of a grant of a motion to suppress by \u201cgiving oral notice of appeal on . . . the day judgment was entered\u201d). The State\u2019s oral notice of appeal given in open court when the court reconvened five days after the conclusion of the pretrial hearing is sufficient to comply with N.C. R. App. P. 4(a)(1). Defendant\u2019s argument is overruled.\nB. Motion to Suppress\nWe turn now to the State\u2019s contention that the trial court erred in granting Defendant\u2019s motion to suppress because the encounter between Officer Wade and Defendant does not constitute a \u201cseizure,\u201d and thus falls outside the ambit of the Fourth Amendment. The scope of appell\u00e1te review of a ruling upon a motion to suppress is \u201cstrictly limited to determining whether the trial judge\u2019s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge\u2019s ultimate conclusions of law.\u201d State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). For the reasons which follow, we conclude that the trial court erred in granting the motion to suppress.\nAn encounter between a law enforcement officer and a citizen does not implicate the Fourth Amendment\u2019s prohibition against unreasonable searches and seizures in the absence of a \u201cseizure\u201d of the person. Florida v. Royer, 460 U.S. 491, 498, 75 L. Ed. 2d 229, 236 (1983) (\u201cIf there is no detention \u2014 no seizure within the meaning of the Fourth Amendment \u2014 then no constitutional rights have been infringed.\u201d). In Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389 (1991), the Supreme Court of the United States held that\na seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free \u201cto disregard the police and go about his business,\u201d [California v. Hodari D., 499 U.S. 621, 628, 113 L. Ed. 2d 690 (1991)], the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in [Terry v. Ohio, 392 U.S. 1, 19, n. 16, 20 L. Ed. 2d 889, 905, n. 16 (1968)]: \u201cObviously, not all personal intercourse between policemen and citizens involves \u2018seizures\u2019 of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a \u2018seizure\u2019 has occurred.\u201d\nId. at 434, 115 L. Ed. 2d at 398. Even in the absence of any suspicion that an individual is engaged in criminal activity, law enforcement officers may \u201cpose questions, ask for identification, and request consent to search . . . provided they do not induce cooperation by coercive means.\u201d United States v. Drayton, 536 U.S. 194, 201, 153 L. Ed. 2d 242, 251 (2002).\nAbsent physical force, a seizure occurs only if, \u201ctaking into-account all of the circumstances surrounding the encounter, the police conduct would \u2018have communicated' to a reasonable person that he was not at liberty to ignore the police presence and go about his business.\u2019 \u201d Bostick, 501 U.S. at 437, 115 L. Ed. 2d at 400 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 100 L. Ed. 2d 565, 569 (1988)).\nExamples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer\u2019s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.\nUnited States v. Mendenhall, 446 U.S. 544, 554-55, 64 L. Ed. 2d 497, 509-10 (internal citations omitted), reh\u2019g denied, 448 U.S. 908, 65 L. Ed. 2d 1138 (1980).\nHere, the trial court found that Defendant was seized within the meaning of the Fourth Amendment and that Officer Wade\u2019s subsequent search of Defendant was illegal based on this Court\u2019s holdings in State v. Myles, 188 N.C. App. 42, 654 S.E.2d 752 (2008) and State v. Parker, 183 N.C. App. 1, 644 S.E.2d 235 (2007). These cases are inapposite to the present case, however. In both Myles and Parker, a law enforcement officer initiated a stop of Myles\u2019 and Parker\u2019s vehicles after observing the commission of traffic infractions, and then detained the defendants for questioning about matters both related and unrelated to the traffic stop. Myles, 188 N.C. App. at 43-44, 654 S.E.2d at 753-54; Parker, 183 N.C. App. at 3-4, 644 S.E.2d at 238-39. Thus, the defendants in Myles and Parker were clearly seized within the meaning of the Fourth Amendment, and the validity of their detention was thereby squarely raised as an issue of constitutional proportion.\nIn the present case, however, Officer Wade did not initiate a traffic stop. Defendant did not pull into the driveway as a result of any show of authority from Officer Wade. Although Officer Wade suspected that Defendant\u2019s 30-day tag was expired, he did not receive confirmation of this until he was speaking with Defendant. There is no evidence that Officer Wade exerted any physical force or engaged in any show of authority during his brief encounter with Defendant. Accordingly, the holdings of Myles and Parker under the Fourth Amendment are not relevant to the facts of this case.\nOur analysis instead is informed by this Court\u2019s recent decision in State v. Isenhour, - N.C. App. -, 670 S.E.2d 264 (2008). In Isenhour, two law enforcement officers were patrolling the area near a fast food restaurant parking lot, which was known for drug and prostitution activity. Id. at-, 670 S.E.2d at 266. The officers observed defendant and a passenger sitting in a car in the back comer of the parking lot, and noticed that neither the defendant nor his passenger had exited from the car during a ten-minute period. Id. The officers pulled up in a marked patrol car and parked approximately eight feet away from the defendant\u2019s car. Id. The officers approached the defendant\u2019s car and asked to speak with the defendant. Id. After becoming suspicious of the defendant\u2019s explanation for his presence in the parking lot, one officer asked the defendant to exit the vehicle, patted down the defendant, and received consent to conduct a search of the defendant\u2019s vehicle, which revealed illegal narcotics. Id.\nOur Court held that the encounter between the officers and the defendant did not constitute a seizure for Fourth Amendment purposes. In concluding that the defendant was free to leave the scene at any time during the encounter, our Court noted: (1) that the defendant was free to drive away from the officers, as the patrol car did not physically block the defendant\u2019s car; (2) that \u201cnothing else in [the officer\u2019s] behavior or demeanor amounted to the \u2018show of force\u2019 necessary for a seizure to occur[;]\u201d (3) that the officers did not create \u201cany real \u2018psychological barriers\u2019 to [the] defendant\u2019s leaving\u201d such as activating their siren or blue lights, removing guns from their holsters, or using threatening language; and (4) \u201cthat the encounter proceeded in a non-threatening manner and that [the] defendant was cooperative at all times.\u201d Id. at \u2014, 670 S.E.2d at 268; see also State v. Christie, 96 N.C. App. 178, 184, 385 S.E.2d 181, 184 (1989) (finding there was no seizure because police officers \u201cdid not display any weapons; they did not use threatening language or a compelling tone of voice; and they did not block or inhibit [the] defendant in any way from refusing to answer their questions or leavfing] the [scene]\u201d).\nLikewise in the present case, the encounter between Defendant and Officer Wade did not constitute a seizure under the Fourth Amendment. Officer Wade parked his patrol car on the opposite side of the street from the driveway in which Defendant was parked, and thus did not physically block Defendant\u2019s vehicle from leaving the scene. Further, Officer Wade did not activate the siren or blue lights on his patrol car. There is no evidence that he removed his gun from its holster, or used any language or displayed a demeanor suggesting that Defendant was not free to leave. As was the case in Isenhour, it appears that the encounter between Officer Wade and Defendant \u201cproceeded in a non-threatening manner and that [Defendant was cooperative at all times.\u201d Id. at-, 670 S.E.2d at 268. A reasonable person in these circumstances \u201cwould feel free \u2018to disregard the police and go about his business[.]\u2019 \u201d Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398. We thus conclude that the encounter between Officer Wade and Defendant was entirely consensual, and Fourth Amendment scrutiny is not triggered.\nBased on the foregoing, we hold that Defendant was not \u201cseized\u201d within the meaning of the Fourth Amendment. Accordingly, the trial court committed reversible error in granting Defendant\u2019s motion to suppress. In light of this holding, we need not address the State\u2019s remaining arguments. The order of the trial court is\nREVERSED.\nJudge BEASLEY concurs.\nJudge HUNTER, JR. concurs in the result.\n. Officer Wade testified that approximately one to two minutes passed from the time he began the conversation with Defendant until he found the crack cocaine in Defendant\u2019s pocket.\n. We note that because our opinion in Isenhour was entered on 16 December 2008, the trial court did not have the benefit of this opinion when its order was entered on 13 November 2008, nunc pro tunc 13 August 2008.",
        "type": "majority",
        "author": "STEPHENS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.",
      "Glover & Petersen, P.A., by Ann B. Petersen, for DefendantAppellee."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ANTONIO WILLIAMS\nNo. COA09-388\n(Filed 22 December 2009)\n1. Appeal and Error\u2014 notice \u2014 sufficient\nThe State\u2019s oral notice of appeal of the trial court\u2019s decision to grant defendant\u2019s motion to suppress complied with N.C. R. App. P. 4(a)(1). The notice was given in open court when the court reconvened five days after the conclusion of the pretrial suppression hearing.\n2. Constitutional Law\u2014 encounter not a seizure \u2014 erroneous suppression of evidence\nThe trial court committed reversible error in granting defendant\u2019s motion to suppress cocaine found on his person. Because the encounter between the police officer and defendant did not constitute a \u201cseizure,\u201d the encounter did not implicate the Fourth Amendment prohibition against unreasonable searches and seizures. The order of the trial court was reversed.\nAppeal by the State from order dated 13 November 2008, nunc pro tunc 13 August 2008, by Judge John O. Craig in Superior Court, Forsyth County. Heard in the Court of Appeals 17 September 2009.\nAttorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.\nGlover & Petersen, P.A., by Ann B. Petersen, for DefendantAppellee."
  },
  "file_name": "0566-01",
  "first_page_order": 594,
  "last_page_order": 600
}
