{ "id": 4233574, "name": "STATE OF NORTH CAROLINA v. ROBERT LEE EARL JOE", "name_abbreviation": "State v. Joe", "decision_date": "2011-07-05", "docket_number": "No. COA10-1037", "first_page": "148", "last_page": "159", "citations": [ { "type": "official", "cite": "213 N.C. App. 148" } ], "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": "656 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640334, 12640335 ], "weight": 2, "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0281-01", "/se2d/656/0281-02" ] }, { "cite": "362 N.C. 89", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12640330, 12640331, 12640332, 12640333, 12640334, 12640211, 12640351 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/656/0279-02", "/se2d/656/0280-01", "/se2d/656/0280-02", "/se2d/656/0280-03", "/se2d/656/0281-01", "/se2d/655/0406-01", "/se2d/656/0592-02" ] }, { "cite": "649 S.E.2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639267 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "650" }, { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0646-01" ] }, { "cite": "663 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641562 ], "weight": 13, "year": 2008, "pin_cites": [ { "page": "870" }, { "page": "871" }, { "page": "869" }, { "page": "871" }, { "page": "871" }, { "page": "871" }, { "page": "871" } ], "opinion_index": 0, "case_paths": [ "/se2d/663/0866-01" ] }, { "cite": "365 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "604" } ], "opinion_index": 0 }, { "cite": "321 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2569966 ], "year": 1988, "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0633-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-173", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "185 N.C. App. 701", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8212517 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "706" }, { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0701-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-223", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "334" } ], "opinion_index": 0 }, { "cite": "62 L. Ed. 2d 143", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "444 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11384974, 11385039 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0907-01", "/us/444/0907-02" ] }, { "cite": "252 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "296 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570136 ], "year": 1979, "pin_cites": [ { "page": "706" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0703-01" ] }, { "cite": "94 L. Ed. 513", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1949, "opinion_index": 0 }, { "cite": "338 U.S. 839", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3940009, 3949892 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/us/338/0839-02", "/us/338/0839-01" ] }, { "cite": "93 L. Ed. 1879", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1949, "pin_cites": [ { "page": "1890" } ], "opinion_index": 0 }, { "cite": "338 U.S. 160", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3943769 ], "year": 1949, "pin_cites": [ { "page": "175-76" } ], "opinion_index": 0, "case_paths": [ "/us/338/0160-01" ] }, { "cite": "411 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "195" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523891 ], "year": 1991, "pin_cites": [ { "page": "728" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0724-01" ] }, { "cite": "245 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "684" } ], "opinion_index": 0 }, { "cite": "295 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563177 ], "year": 1978, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0361-01" ] }, { "cite": "322 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "145", "parenthetical": "quoting State v. Sanders, 295 N.C. 361, 376, 245 S.E.2d 674, 684 (1978)" } ], "opinion_index": 0 }, { "cite": "312 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750239 ], "year": 1984, "pin_cites": [ { "page": "260", "parenthetical": "quoting State v. Sanders, 295 N.C. 361, 376, 245 S.E.2d 674, 684 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0251-01" ] }, { "cite": "490 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605100 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "7" }, { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/us/490/0001-01" ] }, { "cite": "449 U.S. 411", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716341 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "417" }, { "page": "629" }, { "page": "441-42" } ], "opinion_index": 0, "case_paths": [ "/us/449/0411-01" ] }, { "cite": "443 U.S. 47", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179718 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "51" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/us/443/0047-01" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "70", "parenthetical": "quoting Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979)" } ], "opinion_index": 0 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "year": 1994, "pin_cites": [ { "page": "441", "parenthetical": "quoting Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979)" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "407 U.S. 143", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9137003 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "146" }, { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/us/407/0143-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "16" }, { "page": "903" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "501 U.S. 429", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108039 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "434", "parenthetical": "citation and quotation marks omitted" }, { "page": "398", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/us/501/0429-01" ] }, { "cite": "446 S.E.2d 579", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "585-86" } ], "opinion_index": 0 }, { "cite": "337 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2550000 ], "year": 1994, "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0132-01" ] }, { "cite": "555 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "299", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 94", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9378179 ], "year": 2001, "pin_cites": [ { "page": "100", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0094-01" ] }, { "cite": "466 U.S. 210", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196728 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "215" }, { "page": "254" } ], "opinion_index": 0, "case_paths": [ "/us/466/0210-01" ] }, { "cite": "548 S.E.2d 768", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "771" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434172 ], "year": 2001, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0335-01" ] }, { "cite": "380 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1989, "pin_cites": [ { "page": "399" }, { "page": "397" }, { "page": "397" }, { "page": "399" }, { "page": "399" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 330", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527137 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "334" }, { "page": "330-31" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0330-01" ] }, { "cite": "191 N.C. App. 485", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160078 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "489" }, { "page": "491" }, { "page": "487" }, { "page": "490" }, { "page": "491" } ], "opinion_index": 0, "case_paths": [ "/nc-app/191/0485-01" ] }, { "cite": "158 L. Ed. 2d 382", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2004, "opinion_index": 0 }, { "cite": "541 U.S. 951", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5902496, 5898721, 5877540, 5878309, 5929606, 5926599, 3634284, 5904463, 5878770, 5906811, 5910424, 5901144, 5872665, 5928027, 5913245 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/us/541/0951-08", "/us/541/0951-13", "/us/541/0951-05", "/us/541/0951-15", "/us/541/0951-02", "/us/541/0951-11", "/us/541/0951-12", "/us/541/0951-01", "/us/541/0951-10", "/us/541/0951-09", "/us/541/0951-14", "/us/541/0951-06", "/us/541/0951-03", "/us/541/0951-07", "/us/541/0951-04" ] }, { "cite": "589 S.E.2d 133", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491873, 491779, 491689, 491626, 491853, 491503, 491442, 491510, 491831 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0579-04", "/nc/357/0579-03", "/nc/357/0579-02", "/nc/357/0579-08", "/nc/357/0579-09", "/nc/357/0579-01", "/nc/357/0579-06", "/nc/357/0579-05", "/nc/357/0579-07" ] }, { "cite": "N.C. Gen. Stat. \u00a7 142-23", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "583 S.E.2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "pin_cites": [ { "page": "612" }, { "page": "612" }, { "page": "612" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8955618 ], "weight": 3, "pin_cites": [ { "page": "294" }, { "page": "294" }, { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0284-01" ] } ], "analysis": { "cardinality": 1104, "char_count": 26002, "ocr_confidence": 0.745, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7515413060761458 }, "sha256": "93d68bc14b6629d98e667348ef072ad53eabdc60289c7f9e5e39991687716b2d", "simhash": "1:3363f57b777b8143", "word_count": 4282 }, "last_updated": "2023-07-14T21:51:58.983312+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER, ROBERT C. and ERVIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT LEE EARL JOE" ], "opinions": [ { "text": "STEPHENS, Judge.\nI. Procedural History\nOn 24 October 2008, the State charged Defendant Robert Lee Earl Joe with resisting, delaying, and obstructing Winston-Salem Police Officer J.E. Swaim and possession with the intent to sell and deliver cocaine. Defendant was subsequently indicted by a grand jury on these charges, as well as having attained habitual felon status.\nOn 31 March 2009, Defendant filed a motion to suppress all evidence seized in a search of Defendant after his arrest on 24 October 2008. Defendant alleged that Swaim was \u201cwithout probable cause and/or lacked reasonable suspicion to order [] Defendant to stop/detain him.\u201d Defendant also filed a motion to dismiss the charge of resist, delay, or obstruct (\u201cRDO\u201d).\nThe State called the matter for trial on 18 May 2010 before the Honorable Patrice A. Hinnant. Before the jury was impaneled, an evidentiary hearing was held on Defendant\u2019s motions. The trial court orally granted Defendant\u2019s motions on that date, whereupon the State dismissed the possession of cocaine charge and the habitual felon indictment. By written order entered 19 May 2010, the trial court dismissed the RDO charge, suppressed all evidence obtained as a result of Swaim\u2019s stop or arrest of Defendant, and ordered that \u201call charges, inclusive of the habitual felon indictment[,] are hereby dismissed.\u201d\nFrom the trial court\u2019s order, the State appeals.\nII. Evidence\nAt the hearing on the motions to suppress and dismiss, the State offered the following evidence: Swaim testified that on the date of the incident at issue, he was a police officer on the street crimes unit of the Winston-Salem Police Department. That unit patrolled high crime areas and attempted to address prostitution, alcohol, and drug violations. Swaim had personally investigated more than 200 drug-related crimes and made over 100 drug-related arrests in the previous year. Swaim had also assisted other officers with narcotics investigations and been involved in surveillance operations for narcotics investigations.\nOn the afternoon of 24 October 2008, Swaim was patrolling the Greenway Avenue Homes apartment complex, located at the intersection of Gilmer Avenue and Inverness Street. He had personally made \u201cno less than 10 drug arrests\u201d in that area, including one that month, and had assisted with \u201cno less than 50 of those same type[s] of investigations in that area.\u201d Swaim was aware of citizen complaints \u201cmainly [for] illegal drugs\u201d in the apartment complex.\nSwaim and other officers were riding in an unmarked Ford van, commonly known as \u201cthe jump-out van.\u201d Swaim was dressed in a black t-shirt with the word \u201cPolice\u201d written in yellow, bold letters on the front and back, and was wearing his duty belt, pistol, radio, handcuffs, and badge.\nAt approximately 2:00 p.m., as the van drove down Inverness Street, Swaim saw a black male, later identified as Defendant, wearing a red shirt and a navy blue jacket with the hood over his head, standing alone at the corner of the apartment building on Inverness Street. The weather was cloudy, \u201cchilly, and it was raining.\u201d\nWhen the van was approximately 50 feet from Defendant, Defendant \u201clooked up.\u201d His eyes \u201cgot big when he seen [sic] the van, and he immediately turned and walked behind the apartment building].]\u201d Swaim got out of the van and \u201cwalked behind the apartment building to, you know, engage in a consensual conversation\u201d with Defendant. When Swaim got behind the building, he saw Defendant running away. Swaim yelled \u201cpolice\u201d several times in a loud voice to get Defendant to stop. However, Defendant kept running so Swaim began to chase him.\nSwaim chased Defendant for about two or three city blocks and continued to yell \u201c[p]olice, stop].]\u201d Swaim lost sight of Defendant for a short while, but when Swaim reached 30th Street, he saw Defendant sitting \u201cwith his back against a house beside the air conditioning unit, like he was trying to hide.\u201d Defendant appeared to be \u201cmanipulating something to the left with his hand[.]\u201d Swaim walked toward Defendant and ordered him to put his hands up, but Defendant did not comply. Swaim grabbed Defendant\u2019s arm, put him \u201con his chest on the ground and handcuffed him[,]\u201d and placed him under arrest for resisting a public officer. Swaim then checked the area around where Defendant had been seated and found a clear, plastic bag containing an off-white, rock-like substance that was consistent with crack cocaine.\nDefendant introduced as exhibits a map of Winston-Salem and a list of 16 known drug locations in the city.\nIII. Discussion\nA. Dismissal of the Resist, Delay, or Obstruct Charge\nThe State first argues that the trial court erred in dismissing the RDO charge because \u201cthere was probable cause to support that [Defendant ignored [Swaim\u2019s] lawful command to stop.\u201d We disagree with the State\u2019s argument.\nAt the outset, we note that, in its brief on appeal, the State asserts that \u201c[t]here is simply no authority in Chapter 15A of the General Statutes that authorizes dismissal pre-trial when dismissal concerns the sufficiency of the evidence.\u201d While we agree with this statement, in this case, the trial court\u2019s consideration of Defendant\u2019s motion to dismiss the RDO charge on the merits was invited error upon which the State cannot now attempt to seek relief.\nThe following exchange took place between the trial court, the State, and defense counsel when the proceedings in this case began:\nTHE COURT: Court is ready.\n[THE STATE]: Your Honor, the [S]tate is calling the next matter for trial, which is the matter of Mr. Robert Joe, which begins on page 2 of our calendar at line 6 through line 7.\nAnd at this point the defense \u2014 well, the defense and [S]tate have various motions, and the defense has filed several that I believe will require an evidentiary hearing.\nAnd what I would propose would be to begin with a hearing in connection with the defense motion to suppress, which was filed March 31, 2009. And I believe the same evidence would support a discussion of the motion to dismiss the resisting public officer charge which was filed July 6, 2009.\n[DEFENSE COUNSEL]: That\u2019s correct, Your Honor.\n[THE STATE]: There is another motion to suppress a confession, but I believe that involves a separate set of facts and that would be best addressed after we address these initial\u2014\nTHE COURT: When was that one filed?\n[THE STATE]: That one was filed June 30th, 2009. And then depending on how that goes, we have some other motions that are non evidentiary.\nTHE COURT: Okay.\n[THE STATE]: With your permission, I\u2019d like to address that motion to suppress and motion to dismiss first.\n[DEFENSE COUNSEL]: Your Honor, I would ask that we sequester the witnesses.\nTHE COURT: Allowed.\n(WITNESSES LEAVE THE COURTROOM.)\n[THE STATE]: And, Your Honor, in just a moment the [S]tate will call Officer Swaim for testimony in connection with these motions.\nIt is readily apparent that the State invited consideration of Defendant\u2019s motion to dismiss the RDO charge on the merits. Moreover, the State actively participated in the ensuing evidentiary hearing on Defendant\u2019s motion without any objection to the procedure used. Furthermore, on appeal, the State does not assert that it possesses additional evidence relevant to the RDO charge which it was denied the opportunity to present at the hearing. In light of these circumstances, we conclude that the trial court did not err in hearing Defendant\u2019s motion to dismiss.\nThe elements of the offense of resisting, delaying, or obstructing a public officer are:\n1) that the victim was a public officer;\n2) that the defendant knew or had reasonable grounds to believe that the victim was a public officer;\n3) that the victim was discharging or attempting to discharge a duty of his office;\n4) that the defendant resisted, delayed, or obstructed the victim in discharging or attempting to discharge a duty of his office; and\n5) that the defendant acted willfully and unlawfully, that is intentionally and without justification or excuse.\nState v. Dammons, 159 N.C. App. 284, 294, 583 S.E.2d 606, 612 (citing N.C. Gen. Stat. \u00a7 142-23), disc. review denied, 357 N.C. 579, 589 S.E.2d 133 (2003), cert. denied, 541 U.S. 951, 158 L. Ed. 2d 382 (2004). \u201cThe third element of the offense presupposes lawful conduct of the officer in discharging or attempting to discharge a duty of his office.\u201d State v. Sinclair, 191 N.C. App. 485, 489, 663 S.E.2d 866, 870 (2008). While an individual\u2019s flight from a lawful investigatory stop \u201cmay provide probable cause to arrest an individual for violation of [N.C. Gen. Stat. \u00a7] 14-223[,]\u201d State v. Lynch, 94 N.C. App. 330, 334, 380 S.E.2d 397, 399 (1989), an individual\u2019s flight from a consensual encounter or from an unlawful investigatory stop does not supply such probable cause. See Sinclair, 191 N.C. App. at 491, 663 S.E.2d at 871.\nThe Fourth Amendment to the Constitution of the United States guarantees \u201c[t]he right of the people to be secure . . . against unreasonable searches and seizures.\u201d U.S. Const, amend. IV. The Fourth Amendment is applicable to the States through the Due Process Clause of the Fourteenth Amendment. See State v. Milien, 144 N.C. App. 335, 339, 548 S.E.2d 768, 771 (2001).\nA mere consensual encounter with a police officer does not trigger Fourth Amendment protections. INS v. Delgado, 466 U.S. 210, 215, 80 L. Ed. 2d 247, 254 (1984). Thus, a police officer may approach an individual in public to ask him or her questions and even request consent to search his or her belongings, \u201cso long as a reasonable person would understand that he or she could refuse to cooperate.\u201d State v. Kincaid, 147 N.C. App. 94, 100, 555 S.E.2d 294, 299 (2001) (citation and quotation marks omitted). Neither reasonable suspicion nor probable cause is required for a police officer to engage in a consensual encounter with an individual, State v. Brooks, 337 N.C. 132, 142, 446 S.E.2d 579, 585-86 (1994), and the individual is at liberty \u201cto disregard the police and go about his business[.]\u201d Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398 (1991) (citation and quotation marks omitted).\nA \u201cseizure\u201d entitling an individual to the protections of the Fourth Amendment may be either a \u201cstop\u201d or an \u201carrest.\u201d Terry v. Ohio, 392 U.S. 1, 16, 20 L. Ed. 2d 889, 903 (1968). An investigatory \u201cstop\u201d is \u201c[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information!.]\u201d Adams v. Williams, 407 U.S. 143, 146, 32 L. Ed. 2d 612, 617 (1972). An \u201cinvestigatory stop must be justified by \u2018a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.\u2019 \u201d State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (quoting Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979)). To determine whether reasonable suspicion exists, a court \u201cmust consider \u2018the totality of the circumstances \u2014 the whole picture.\u2019 \u201d Id. (quoting United States v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981)).\nThe stop must be 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. The only requirement is a minimal level of objective justification, something more than an \u201cunparticularized suspicion or hunch.\u201d\nId. at 441-42, 446 S.E.2d at 70 (quoting United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989)).\n\u201c \u2018When a law enforcement officer, by word or actions, indicates that an individual must remain in the officer\u2019s presence . . ., the person is for all practical purposes under arrest if there is a substantial imposition of the officer\u2019s will over the person\u2019s liberty.\u2019 \u201d State v. Zuniga, 312 N.C. 251, 260, 322 S.E.2d 140, 145 (1984) (quoting State v. Sanders, 295 N.C. 361, 376, 245 S.E.2d 674, 684 (1978)). An officer must have probable cause to effectuate a warrantless arrest. State v. Mills, 104 N.C. App. 724, 728, 411 S.E.2d 193, 195 (1991). \u201cProbable cause exists where \u2018the facts and circumstances within [the officers\u2019] knowledge, and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that\u2019 an offense has been or is being committed.\u201d Id. (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 1890, reh\u2019g denied, 338 U.S. 839, 94 L. Ed. 513 (1949)).\nIn State v. Sinclair, a police officer and another plain-clothes law enforcement agent observed Sinclair sitting in a chair \u201camong six to ten other people\u201d outside a bowling alley, which was \u201c \u2018 a local hangout\u2019 \u201d and a \u201cknown drug activity area.\u201d Sinclair, 191 N.C. App. at 487, 663 S.E.2d at 869. The officer approached Sinclair and said, \u201c \u2018[L]et me talk to you.\u2019 \u201d Id. \u201c[Sinclair] stood up out of his chair, took two steps toward [the officer], and said, \u2018Oh, you want to search me again, huh?\u2019 [Sinclair] did not sound irritated or agitated, \u2018[j]ust normal.\u2019 \u201d Id. The officer replied, \u201cYes, sir,\u201d and continued walking toward Sinclair. Id. Sinclair \u201cstopped ten or twelve feet from [the officer], \u2018quickly shoved both of his hands in his front pockets and then removed them,\u2019 . . . made his hands into fists and took a defensive stance.\u201d Id. As the officer got closer, Sinclair said, \u201c \u2018Nope. Got to go,\u2019 and \u2018took off running\u2019 across an adjacent vacant lot.\u201d Id. The officers chased Sinclair and soon after took him into custody. Id.\nThis Court concluded that, \u201cconsidering all the circumstances surrounding the encounter prior to [Sinclair\u2019s] flight, a reasonable person would have felt at liberty to ignore [the officer\u2019s] presence and go about his business [,]\u201d and that \u201c[Sinclair\u2019s] flight from a consensual encounter cannot be used as evidence that [Sinclair] was resisting, delaying, or obstructing [the officer] in the performance of his duties.\u201d Id. at 491, 663 S.E.2d at 871. Accordingly, there was no evidence that Sinclair acted \u201c \u2018unlawfully, that is ... without justification or excusef,]\u2019 \u201d id. at 491, 663 S.E.2d at 871 (quoting Dammons, 159 N.C. App. at 294, 583 S.E.2d at 612), and this Court concluded that the trial court erred in denying Sinclair\u2019s motion to dismiss the charge of resisting a public officer. Id.\nThis Court further determined that \u201ceven if [the officer] was attempting to effectuate an investigatory stop, there are insufficient \u2018specific and articulable facts, which taken together with rational inferences from those facts, reasonably warranted] [the] intrusion.\u2019 \u201d Id. (quoting State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907, 62 L. Ed. 2d 143 (1979)).\nIn State v. Lynch, plain-clothes officers who were on patrol in an unmarked police car observed Lynch on a street corner around 5:30 p.m. and \u201cmistakenly believed\u201d that Lynch was a person for whom they \u201chad warrants to arrest . . . for sale or delivery of cocaine.\u201d Lynch, 94 N.C. App. at 330-31, 380 S.E.2d at 397. Shortly thereafter, the officers stopped a vehicle that Lynch had entered and one of the officers \u201capproached the car, identified himself as a police officer, and asked [Lynch] to identify himself. [Lynch] did not respond, jumped out of the car, and attempted to flee.\u201d Id. at 331, 380 S.E.2d at 397. The officers apprehended Lynch and, after a brief struggle, took him into custody, initially arresting him for resisting public officers. Id.\nThis Court determined that, since the officers had \u201ca reasonable basis to stop [Lynch] and require him to identify himself\u2019 to ascertain whether he was the named subject in their arrest warrants, \u201cthe officers were lawfully discharging a duty of their office.\u201d Id. at 333, 380 S.E.2d at 399. Accordingly, based on the evidence of Lynch\u2019s flight from a lawful investigatory stop and his brief struggle after his arrest, this Court upheld Lynch\u2019s conviction under N.C. Gen. Stat. \u00a7 14-223. Id. at 334, 380 S.E.2d at 399.\nThe circumstances in the present case are analogous to those in Sinclair and distinguishable from those in Lynch. Here, Swaim approached the apartment complex at 2:00 on a rainy, chilly afternoon. Defendant was standing on the comer, dressed appropriately in a jacket with the hood over his head. There was no evidence that Swaim had had prior dealings with Defendant. Although Swaim described the apartment complex as a known drag area where he had made drug-related arrests in the past, Swaim had no specific information about drag activity at the complex on that date. When Defendant saw the jump-out van approaching, \u201chis eyes got big\u201d and he turned and walked behind the apartment building. Swaim got out of the van and walked behind the apartment to \u201cengage in a consensual conversation\u201d with Defendant.\nWhen Swaim rounded the corner of the apartment building, he observed Defendant running. Swaim chased Defendant and yelled several times that he was a police officer. After chasing Defendant for several blocks, and losing sight of him for a brief period, Swaim found Defendant squatting beside an air conditioning unit, apparently manipulating something to the left with his hand. Swaim grabbed Defendant\u2019s arm, put him in handcuffs, and placed him under arrest for resisting a public officer.\nConsidering all the circumstances surrounding the encounter prior to Defendant\u2019s flight, we conclude that a reasonable person would have felt at liberty to ignore Swaim\u2019s presence and go about his business. See Sinclair, 191 N.C. App. at 490, 663 S.E.2d at 871. At the time Defendant turned and walked behind the apartment building, Swaim was still inside the van, and a reasonable person would not have felt compelled to wait on the street corner in the rain to determine if an officer inside the van desired to talk with him. Furthermore, the State acknowledged that Swaim exited the van and rounded the comer of the apartment building not with the intent to effectuate an investigatory stop but, rather, to \u201cengage in a consensual conversation\u201d with Defendant.\nAs \u201cDefendant\u2019s flight from a consensual encounter cannot be used as evidence that Defendant was resisting, delaying, or obstructing [Swaim] in the performance of his duties[,]\u201d Sinclair, 191 N.C. App. at 491, 663 S.E.2d at 871, there is no evidence that Defendant acted \u201cunlawfully, that is . . . without justification or excuse.\u201d Dammons, 159 N.C. App. at 294, 583 S.E.2d at 612. With the State\u2019s acquiescence in the court\u2019s consideration of Defendant\u2019s motion as a pre-trial procedure, the trial court did not err in granting Defendant\u2019s motion to dismiss the charge of resisting a public officer. The State\u2019s argument is overruled.\nB. Dismissal of Possession of Cocaine Charge and Habitual Felon Indictment\nThe State further argues that the trial court erred in dismissing the felony possession of cocaine charge and habitual felon indictment. Specifically, the State argues that even if the motions to suppress and to dismiss the RDO charge were properly granted, the trial court was without the authority to dismiss the felony possession of cocaine charge and habitual felon indictment. We disagree with the State\u2019s argument.\n\u201cThe granting of a motion to suppress does not mandate a pretrial dismissal of the underlying indictments.\u201d State v. Edwards, 185 N.C. App. 701, 706, 649 S.E.2d 646, 650, disc. review denied, 362 N.C. 89, 656 S.E.2d 281 (2007). Thus, where a motion to suppress has been granted, the State may elect to dismiss any or all charges or proceed to trial without the suppressed evidence and attempt to establish a prima facie case. Id. The State may dismiss charges\nby entering an oral dismissal in open court before or during the trial, or by filing a written dismissal with the clerk at any time. The clerk must record the dismissal entered by the prosecutor and note in the case file whether a jury has been impaneled or evidence has been introduced.\nN.C. Gen. Stat. \u00a7 15A-931 (2009). If the State elects to proceed, a defendant may move to dismiss at the close of the State\u2019s evidence and renew his motion at the close of all evidence. N.C. Gen. Stat. \u00a7 15-173 (2005).\nIn this case, after hearing the evidence and the arguments of counsel on Defendant\u2019s motions to suppress and to dismiss the RDO charge, the following exchange took place between the trial court, the defense attorney, and the prosecutor:\nTHE COURT: Court is ready.\nIn marginally looking at the Sinclair case, the court will allow the defense motion.\n[THE STATE]: Both motions, Your Honor?\nTHE COURT: Yes.\n[DEFENSE COUNSEL]: Thank you, Your Honor.\n[THE STATE]: Well, in that case, I believe that we are done. And as a result, I believe that the [S]tate would be unable to proceed with the case in chief, so 1 guess, procedurally, entering a dismissal by the court is the result of allowing these motions?\nTHE COURT: Okay.\n[THE STATE]: Is that right?\nTHE COURT: I think that\u2019s right.\n[THE STATE]: And then as a result of that, the [S]tate would not pursue tibe habitual felon indictment. And I\u2019ll provide the paperwork.\n[DEFENSE COUNSEL]: Thank you, Madam D.A.\nThe State could have elected to pursue the possession of cocaine charge despite the suppression of the alleged cocaine. However, the State clearly announced in open court that it \u201cwould be unable to proceed with the case in chief\u2019 as a result of the trial court\u2019s allowing Defendant\u2019s motions and indicated its intention to dismiss the possession of cocaine charge. The State further announced that it \u201cwould not pursue the habitual felon indictment\u201d and that it would \u201cprovide the paperwork.\u201d Although the State was not required to dismiss the possession of cocaine charge or the habitual felon indictment, the State elected to do so \u201cby entering an oral dismissal in open court before . . . the trialf.]\u201d N.C. Gen. Stat. \u00a7 15A-931.\nCiting State v. Edwards, supra, the State argues that the trial court \u201cexceeded its authority in deciding that the State could not make its case at trial\u201d and \u201cinvaded the province of the prosecution[.]\u201d The State\u2019s argument fails.\nIn Edwards, defendant was charged with four drugrelated offenses. Defendant filed a motion to suppress the evidence seized as the result of a search warrant executed on his residence. The trial court granted defendant\u2019s motion to suppress and dismissed the indictments ex mero motu. Edwards, 185 N.C. App. at 702, 649 S.E.2d at 648.\nUnlike in Edwards where the trial court presupposed the State\u2019s inability to proceed to trial as a result of the suppression of the evidence, the State in this case affirmatively announced in open court that it could not make its case at trial as a result of the evidence being suppressed and indicated its intention to dismiss the possession of cocaine charge as well as the habitual felon indictment. The State\u2019s argument is overruled.\nC. Motion to Suppress\nThe State further argues that the trial court erred in granting Defendant\u2019s motion to suppress. Because we are without jurisdiction to hear this issue, the State\u2019s argument is dismissed.\n\u201cThe State may appeal an order by the superior court granting a motion to suppress as provided in [N.C. Gen. Stat. \u00a7] 15A-979.\u201d N.C. Gen. Stat. \u00a7 15A-1445 (2009). Pursuant to N.C. Gen. Stat. \u00a7 15A-979,\n[a]n 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.\nN.C. Gen. Stat. \u00a7 15A-979(c) (2009).\nIn this case, after the trial court granted Defendant\u2019s motion to suppress, the State voluntarily dismissed the possession of cocaine charge and the habitual felon indictment. The State\u2019s subsequent appeal to this court, arguing that the dismissals were erroneous, has been overruled. See supra. As a dismissal by the State is \u201ca simple and final dismissal which terminates the criminal proceedings under that indictmentf,]\u201d State v. Lamb, 321 N.C. 633, 641, 365 S.E.2d 600, 604 (1988), the criminal proceedings under the possession of cocaine and habitual felon indictments have been terminated. Because there is no longer any case which the suppressed evidence is \u201cessential to[,]\u201d this Court has no jurisdiction to review and decide the State\u2019s argument. Accordingly, the argument is dismissed.\nAFFIRMED.\nJudges HUNTER, ROBERT C. and ERVIN concur.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Derrick G. Mertz, for the State.", "Glover & Petersen, P.A., by Ann B. Petersen, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT LEE EARL JOE\nNo. COA10-1037\n(Filed 5 July 2011)\n1. Police Officers\u2014 resist, delay, or obstruct an officer \u2014 consensual encounter \u2014 motion to dismiss properly granted\nThe trial court did not err in a resisting, delaying, or obstructing an officer (RDO) case by granting defendant\u2019s motions to suppress evidence and dismiss the charge. The State invited consideration of defendant\u2019s motion to dismiss the RDO charge on the merits and considering all the circumstances surrounding the police officer\u2019s encounter with defendant prior to his flight, a reasonable person would have felt at liberty to ignore the officer\u2019s presence and go about his business.\n2. Drugs\u2014 possession of cocaine \u2014 resist, delay, or obstruct an officer \u2014 habitual felon \u2014 voluntary dismissal\nThe trial court did not err in a resisting, delaying, or obstructing an officer (RDO), felony possession of cocaine, and habitual felon case by dismissing the felony possession of cocaine charge and habitual felon indictment. The State voluntarily dismissed the possession of cocaine charge and the habitual felon indictment, and the State\u2019s argument that the dismissals were erroneous was overruled.\nAppeal by the State from order entered 19 May 2010 by Judge Patrice A. Hinnant in Forsyth County Superior Court. Heard in the Court of Appeals 22 February 2011.\nAttorney General Roy Cooper, by Assistant Attorney General Derrick G. Mertz, for the State.\nGlover & Petersen, P.A., by Ann B. Petersen, for Defendant." }, "file_name": "0148-01", "first_page_order": 158, "last_page_order": 169 }