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    "judges": [
      "Judges BRYANT and ERVIN concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. FAWN QUEONEZ PHIFER"
    ],
    "opinions": [
      {
        "text": "ELMORE, Judge.\nFawn Quenez Phifer (defendant) appeals from a judgment entered upon a guilty plea of possession of a firearm by a felon and habitual felon status, sentencing him 70 to 96 months imprisonment. Prior to entering his guilty plea, defendant unsuccessfully moved to suppress evidence of a firearm found on his person. Defendant preserved the right to appeal the suppression ruling prior to his guilty plea. After careful consideration, we conclude that defendant\u2019s motion to suppress should have been granted. We therefore reverse the trial court\u2019s denial of the suppression motion and vacate the judgments entered upon defendant\u2019s guilty plea.\nI. Background\nAround 2:00 P.M. on 16 January 2011, Officer Wesley Lane of the Salisbury Police Department was driving his patrol car on East Cemetery Street when he observed two men walking in the road around the 500 block. That portion of the road was known as a high crime area with shootings, drug complaints, drug transactions, and fights. There had also been numerous complaints of people walking down the middle of the road and not moving for oncoming traffic. Officer Lane approached the men, and asked them to stand in front of his patrol car. One of the men complied with Officer Lane\u2019s command; the other man, who was later identified as defendant, did not. Rather, defendant kept moving around, and he asked Officer Lane the reason for the stop. Officer Lane explained that a city ordinance and state law mandated that a person may not walk in the street or impede traffic. Defendant kept moving back and forth and refused to stand still. According to Officer Lane, defendant appeared \u201chyper\u201d and was \u201cpacing\u201d nervously. Officer Lane told both men that he was going to give them a warning and check for outstanding warrants, of which he found none. Officer Lane then informed both men that he was going to frisk them for weapons. He asked defendant if he had any weapons on him, and defendant replied \u201cyes, but it\u2019s not mine.\u201d Officer Lane then asked defendant to put his hands on the hood of the car, handcuffed him, and patted him down. Officer Lane found a firearm in defendant\u2019s pocket, and he placed defendant under arrest.\nOn 16 January 2011, defendant was indicted with possession of a firearm by a felon and of habitual felon status. On 8 May 2012, defendant filed a motion to suppress evidence relating to the firearm found on his possession. In that motion, defendant argued that \u201c[t]he seizure of defendant upon the public street... was an investigatory stop not justified by reasonable suspicion and based upon objective facts that [he] was involved in criminal activity\u201d and thus violated his constitutional rights.\nOn 10 May 2012, the trial court entered an order denying defendant\u2019s motion. In that order, the trial court concluded that \u201cthe stop and arrest were legitimate\u201d because defendant violated G.S. 20-174.1, a statute which prohibits a person from standing in the street in such as a manner as to impede the regular flow of traffic. Defendant then pled guilty, preserving his right to appeal the trial court\u2019s order denying his motion to suppress. Defendant was then sentenced to 70-96 months imprisonment, and he now appeals both the 10 May 2012 order and the judgment entered upon his guilty plea.\nII. Analysis\nHaving preserved his right to challenge the suppression ruling, defendant now presents three arguments on appeal. He argues 1) that the trial court erred in denying his motion to suppress, 2) that the trial court erred in its interpretation of N.C. Gen. Stat. \u00a7 20-174.1, and 3) that the trial court\u2019s order denying his suppress motion was insufficient. We agree that the trial court erred when it denied defendant\u2019s motion to suppress, thus we will not address the remaining issues.\nOur review of a trial court\u2019s denial of 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). \u201cThe trial court\u2019s conclusions of law . . . are fully reviewable on appeal.\u201d State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).\nHere, defendant sought to suppress evidence relating to a firearm discovered on his person following a frisk by Officer Lane. Police limitations on the search of a person without a warrant in limited circumstances were first articulated in Terry v. Ohio:\nwhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous... and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others\u2019 safety, he is entitled for the protection of himself ... to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons ... and any weapons seized may properly be introduced in evidence against the person from whom they were taken.\n392 U.S. 1, 30-31, 20 L. Ed. 2d 889, 911 (1968). Since Terry, our Supreme Court has elaborated that in North Carolina, \u201c[a]n officer has reasonable suspicion if a reasonable, cautious officer, guided by his experience and training, would believe that criminal activity is afoot based on specific and articulable facts, as well as the rational inferences from those facts.\u201d State v. Williams, _ N.C. _, _, 726 S.E.2d 161, 167 (2012) (internal quotations and citations omitted).\nHere, the trial court\u2019s findings of'fact establish that Officer Lane stopped defendant \u201cto warn [him] about impeding the flow of traffic[.]\u201d After issuing this warning, Officer Lane \u201cwanted to frisk the defendant because of his suspicious behavior.\u201d That suspicious behavior was being that defendant \u201cappeared to be nervous and kept moving back and forth.\u201d Defendant argues that the fact that he was moving around and appeared \u201cnervous\u201d was \u201cnot legally significant or sufficient to justify his continued detention and search.\u201d We agree.\nIn State v. Pearson, our Supreme Court held that a nonconsensual search of the person is not justified by the mere presence of \u201cnervous and excited\u201d behavior around police. 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998). In Pearson, not only was the suspect nervous, but he also made inconsistent statements to police when questioned and had an odor of alcohol on his breath. Id. at 276, 498 S.E.2d at 600. Regardless, our Supreme Court nonetheless held that the officers lacked reasonable articulable suspicion that the defendant was armed and dangerous. Id. at 276-77, 298 S.E.2d at 600-01.\nIn State v. McClendon, our Supreme Court clarified that \u201c[nervousness, like all other facts, must be taken in light of the totality of the circumstances.\u201d 350 N.C. 630, 638, 517 S.E.2d 128, 134 (1999). In that case, the suspect was so nervous that he \u201cexhibited more than ordinary nervousness; [he] was fidgety and breathing rapidly, sweat had formed on his forehead, he would sigh deeply, and he would not make eye contact with the officer.\u201d Id. Our Supreme Court held that his nervousness combined with other factors, like his inability to state the owner of the vehicle in which he was driving, gave the officers reasonable suspicion to search him. Id. at 637, 517 S.E.2d at 133. In applying McClendon, this Court has held that while extreme nervousness can be a factor considered by police in examining the totality of the circumstances, nervous behavior alone is not sufficient to establish reasonable suspicion. See, e.g., State v. Myles, 188 N.C. App. 42, 50, 654 S.E.2d 752, 757-58, aff\u2019d, 362 N.C. 344, 661 S.E.2d 732 (2008) (\u201cAlthough our Supreme Court previously has stated nervousness can be a factor in determining whether reasonable suspicion exists, our Supreme Court has never said nervousness alone is sufficient to determine whether reasonable suspicion exists when looking at the totality of the circumstances.\u201d).\nTurning to the order at issue here, the findings of fact make no mention of any factors in addition to defendant\u2019s nervousness which might have given rise to reasonable suspicion for the search. In fact, the findings indicate that \u201cthis was not a drug interdiction stop,\u201d \u201c[t]here is no evidence of any drug buy,\u201d defendant was \u201cmerely walking down the street,\u201d \u201cno traffic was actually impeded by\u201d defendant, and defendant was \u201cvery cooperative and did not offer any resistance\u201d to Officer Lane. Therefore, we agree with defendant that the nervous pacing of a suspect, temporarily detained by an officer to warn him not to walk in the street, is insufficient to warrant further detention and search. Accordingly, we conclude that the trial court erred in denying defendant\u2019s motion to suppress. As such, we vacate the judgment and reverse the order.\nVacated and reversed.\nJudges BRYANT and ERVIN concur.",
        "type": "majority",
        "author": "ELMORE, Judge."
      }
    ],
    "attorneys": [
      "Leslie C. Rawls for defendant.",
      "Attorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jemigan, for the State."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. FAWN QUEONEZ PHIFER\nNo. COA12-1124\nFiled 2 April 2013\nSearch and Seizure \u2014 reasonable suspicion \u2014 nervous pacing\u2014 insufficient to justify detention\nThe trial court erred in a possession of a firearm by a felon case by denying defendant\u2019s motion to suppress. The fact that defendant was moving around and appeared nervous after he had been temporarily detained by an officer and warned about impeding the flow of traffic was not sufficient to justify his continued detention and search.\nAppeal by defendant from judgment entered 10 May 2012 by Judge Larry G. Ford in Rowan County Superior Court. Heard in the Court of Appeals 27 February 2013.\nLeslie C. Rawls for defendant.\nAttorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jemigan, for the State."
  },
  "file_name": "0359-01",
  "first_page_order": 369,
  "last_page_order": 373
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