{ "id": 12168477, "name": "STATE OF NORTH CAROLINA v. TIYOUN JIMEK JACKSON", "name_abbreviation": "State v. Jackson", "decision_date": "2014-05-20", "docket_number": "No. COA13-743", "first_page": "80", "last_page": "92", "citations": [ { "type": "official", "cite": "234 N.C. App. 80" } ], "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": "610 S.E.2d 208", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632550 ], "year": 2005, "pin_cites": [ { "parenthetical": "holding that reasonable suspicion existed where the defendant and a companion were observed loitering at a closed shopping center shortly before midnight, and, upon seeing law enforcement officers, hurriedly returned to (heir vehicle, which was parked out of general public view" } ], "opinion_index": 0, "case_paths": [ "/se2d/610/0208-01" ] }, { "cite": "359 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3801765, 3804487, 3799722, 12632555, 12632556, 3798897, 12632561, 3803379, 3804087, 3795738, 3799903 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0283-05", "/nc/359/0283-08", "/nc/359/0283-07", "/se2d/610/0375-01", "/se2d/610/0375-02", "/nc/359/0283-04", "/se2d/610/0377-02", "/nc/359/0283-06", "/nc/359/0283-03", "/nc/359/0283-01", "/nc/359/0283-02" ] }, { "cite": "627 S.E.2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635296 ], "year": 2006, "pin_cites": [ { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0239-01" ] }, { "cite": "598 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "418" } ], "opinion_index": 0 }, { "cite": "165 N.C. App. 50", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8995726 ], "year": 2004, "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/nc-app/165/0050-01" ] }, { "cite": "280 S.E.2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "916-20", "parenthetical": "holding that circumstances supporting a reasonable basis for a stop included the defendants walking along a road at an \"unusual hour\" of approximately 1:35 a.m." } ], "opinion_index": 0 }, { "cite": "303 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574927 ], "year": 1981, "pin_cites": [ { "page": "555-60", "parenthetical": "holding that circumstances supporting a reasonable basis for a stop included the defendants walking along a road at an \"unusual hour\" of approximately 1:35 a.m." } ], "opinion_index": 0, "case_paths": [ "/nc/303/0551-01" ] }, { "cite": "735 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "366 N.C. 396", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4354595, 4349098, 4353549, 4350542, 4350255, 4359608, 4359098, 4351709, 4352894 ], "year": 2012, "opinion_index": 0, "case_paths": [ "/nc/366/0396-04", "/nc/366/0396-07", "/nc/366/0396-08", "/nc/366/0396-02", "/nc/366/0396-03", "/nc/366/0396-06", "/nc/366/0396-05", "/nc/366/0396-09", "/nc/366/0396-01" ] }, { "cite": "729 S.E.2d 120", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "125" } ], "opinion_index": 0 }, { "cite": "707 F.3d 531", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3537402 ], "weight": 2, "year": 2013, "pin_cites": [ { "page": "540", "parenthetical": "citation and internal quotation marks omitted" }, { "page": "539" } ], "opinion_index": 0, "case_paths": [ "/f3d/707/0531-01" ] }, { "cite": "143 L. Ed. 2d 1013", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1999, "pin_cites": [ { "parenthetical": "noting that evidence obtained as the result of illegal police conduct must be suppressed" } ], "opinion_index": 0 }, { "cite": "526 U.S. 1133", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11199169, 11199267, 11198885, 11198728, 11198826, 11199120, 11199313, 11199058, 11198934, 11199000, 11198777, 11199226, 11198686, 11199359 ], "year": 1999, "pin_cites": [ { "parenthetical": "noting that evidence obtained as the result of illegal police conduct must be suppressed" } ], "opinion_index": 0, "case_paths": [ "/us/526/1133-10", "/us/526/1133-12", "/us/526/1133-05", "/us/526/1133-02", "/us/526/1133-04", "/us/526/1133-09", "/us/526/1133-13", "/us/526/1133-08", "/us/526/1133-06", "/us/526/1133-07", "/us/526/1133-03", "/us/526/1133-11", "/us/526/1133-01", "/us/526/1133-14" ] }, { "cite": "506 S.E.2d 711", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "716" } ], "opinion_index": 0 }, { "cite": "349 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571701 ], "year": 1998, "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0243-01" ] }, { "cite": "481 S.E.2d 407", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "411" }, { "page": "411" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 537", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11869305 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "542" }, { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0537-01" ] }, { "cite": "754 S.E.2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2014, "pin_cites": [ { "page": "471-72", "parenthetical": "\"While many of the facts in Fleming are the same or similar to this case, in Fleming, the defendant did not make any overt actions, and here [the] defendant did when he used his right hand to grab his waistband to clinch an item.\"" }, { "page": "466" } ], "opinion_index": 0 }, { "cite": "415 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "722" } ], "opinion_index": 0 }, { "cite": "331 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500771 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "233" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0227-01" ] }, { "cite": "176 N.C. App. 613", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301421 ], "year": 2006, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0613-01" ] }, { "cite": "415 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "785", "parenthetical": "emphasis added" }, { "page": "785", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 165", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314046 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "170-71", "parenthetical": "emphasis added" }, { "page": "170" }, { "page": "170" }, { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0165-01" ] }, { "cite": "458 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1995, "pin_cites": [ { "page": "522", "parenthetical": "citation omitted; emphasis added" }, { "page": "522", "parenthetical": "italics added" }, { "page": "522" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915438 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "398", "parenthetical": "citation omitted; emphasis added" }, { "page": "398" }, { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/nc-app/119/0395-01" ] }, { "cite": "726 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "167", "parenthetical": "citation and internal quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "366 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4352259 ], "year": 2012, "pin_cites": [ { "page": "116-17", "parenthetical": "citation and internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/366/0110-01" ] }, { "cite": "443 U.S. 47", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179718 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "51" }, { "page": "362" }, { "parenthetical": "citation and internal quotation marks omitted" }, { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/us/443/0047-01" ] }, { "cite": "446 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "69-70", "parenthetical": "citations, internal quotation marks, and ellipsis omitted" }, { "page": "70" } ], "opinion_index": 0 }, { "cite": "337 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549311 ], "year": 1994, "pin_cites": [ { "page": "441", "parenthetical": "citations, internal quotation marks, and ellipsis omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0437-01" ] }, { "cite": "555 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "297", "parenthetical": "citation 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": "97", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0094-01" ] }, { "cite": "712 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2011, "pin_cites": [ { "page": "878", "parenthetical": "citation omitted" }, { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "365 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4153463 ], "year": 2011, "pin_cites": [ { "page": "167-68", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0162-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "30" }, { "page": "911" } ], "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "427 S.E.2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "158", "parenthetical": "citing Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911 (1968)" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 367", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525490 ], "year": 1993, "pin_cites": [ { "page": "370", "parenthetical": "citing Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911 (1968)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0367-01" ] }, { "cite": "720 S.E.2d 820", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "823", "parenthetical": "granting writ of certiorari after dismissing an appeal for inadequate notice where the defendant's counsel attempted to give oral notice of appeal to the trial court days after the trial and not \"at trial\" as required by Rule 4" } ], "opinion_index": 0 }, { "cite": "696 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "542", "parenthetical": "dismissing appeal for lack of jurisdiction where the \"[defendant did file... a written notice of appeal from the denial of [the defendant's motion to suppress, but [the defendant did not appeal from his judgment of conviction\"" } ], "opinion_index": 0 }, { "cite": "205 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 3734705 ], "year": 2010, "pin_cites": [ { "page": "725", "parenthetical": "dismissing appeal for lack of jurisdiction where the \"[defendant did file... a written notice of appeal from the denial of [the defendant's motion to suppress, but [the defendant did not appeal from his judgment of conviction\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/205/0724-01" ] }, { "cite": "415 S.E.2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "723", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "331 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500771 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "234", "parenthetical": "emphasis added" }, { "page": "233" } ], "opinion_index": 1, "case_paths": [ "/nc/331/0227-01" ] }, { "cite": "415 S.E.2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "785" } ], "opinion_index": 1 }, { "cite": "106 N.C. App. 165", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314046 ], "year": 1992, "pin_cites": [ { "page": "171" } ], "opinion_index": 1, "case_paths": [ "/nc-app/106/0165-01" ] }, { "cite": "458 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "522" } ], "opinion_index": 1 }, { "cite": "119 N.C. App. 395", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11915438 ], "year": 1995, "pin_cites": [ { "page": "398" } ], "opinion_index": 1, "case_paths": [ "/nc-app/119/0395-01" ] } ], "analysis": { "cardinality": 1068, "char_count": 28476, "ocr_confidence": 0.719, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24685261573165077 }, "sha256": "a809754d05b546c5337f72e05e3a21fe001300b8c5c626a89e8d48231922abfc", "simhash": "1:298954e37c47ed4f", "word_count": 4590 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BRYANT concurs." ], "parties": [ "STATE OF NORTH CAROLINA v. TIYOUN JIMEK JACKSON" ], "opinions": [ { "text": "STEPHENS, Judge.\nProcedural and Factual Background\nIn this appeal, Defendant Tiyoun Jimek Jackson challenges the trial court\u2019s denial of his motion to suppress evidence discovered by Officer Timothy D. Brown of the Greensboro Police Department following an investigatory stop of Defendant on the night of 9 April 2012.\nThe order denying Defendant\u2019s motion to suppress includes the following pertinent findings of fact:\n1. [Officer] Brown is and has been an officer for the Greensboro Police Department since August 15, 2009.\n2. Officer Brown based on training and experience is familiar with marijuana and other narcotic drugs.\n3. Officer Brown was on duty and in uniform on Monday, April 9, 2012.\n4. Prior to April 9, 2012, Officer Brown had on two occasions contact with [Defendant....\n5. On the first occasion, Officer Brown investigating a report of the discharging of a firearm spoke with [Defendant . . . concerning that incident and recovered from him a stolen firearm.\n6. Approximately two months prior to April 9, 2012, Officer Brown was investigating a breaking and entering in the area of Lombardi Street in Greensboro, North Carolina and again came into contact with [Defendant....\n7. ... [Defendant... was standing with 3 to 4 individuals in the area of the reported breaking and entering.\n8. As Officer Brown approached he could smell the odor of marijuana.\n9. Officer Brown conducted a search of the individuals including [Defendant....\n10. Officer Brown did find an amount of marijuana, but not on the person of [Defendant....\n11. On April 9, 2012, Officer Brown was assigned and was patrolling zone 450 in a marked patrol car.\n12. Officer Brown at approximately 9:00 pm was patrolling in the vicinity of Kim\u2019s Mart located at 2200 Phillips Avenue.\n13. Based on Officer Brown\u2019s experience as a Greensboro Police Officer he knows that the immediate area outside of Kim\u2019s Mart has been the location of hundreds of narcotic investigations some resulting in arrests.\n14. Officer Brown has personally made drug arrests in the immediate area of Kim\u2019s Mart.\n15. Officer Brown is personally aware that hand-to-hand drug transactions have taken place on the sidewalk and street directly adjacent to Kim\u2019s Mart as well as inside Kim\u2019s Mart.\n16. At approximately 9:00 pm on April 9, 2012 Officer Brown saw [Defendant . . . and Curtis M. Benton standing near the newspaper dispenser outside of Kim\u2019s Mart.\n17. Two days prior Officer Brown conducted a motor vehicle stop in which Curtis M. Benton was riding.\n18. During the motor vehicle stop, Officer Brown noticed the smell of marijuana coming from the car.\n19. [Defendant. . . and Curtis M. Benton upon spotting Officer Brown in his marked patrol car stopped talking and dispersed.\n20. [Defendant . . . went to the East and walked into Kim\u2019s Mart and Curtis M. Benton walked away, in the opposite direction, to the West.\n21. Officer Brown testified that his training and experience indicate that upon the approach of a law enforcement officer, two individuals engaged in a drug transaction will separate and walk away in opposite directions.\n22. Officer Brown continued past Kim\u2019s Mart and down Phillips Avenue.\n23. After losing sight of [Defendant . . . and Curtis M. Benton, Officer Brown made a u-tum and headed back up Phillips Avenue toward Kim\u2019s Mart.\n24. As Officer Brown again approached Kim\u2019s Mart, [Defendant . . . and Curtis M. Benton were again standing in front of Kim\u2019s Mart approximately 20 feet from where Officer Brown saw them originally.\n25. Officer Brown pulled into the parking lot at Kim\u2019s Mart.\n26. As Officer Brown was pulling into the parking lot at Kim\u2019s Mart, [Defendant . . . and Curtis M. Benton again separated and began walking away in opposite directions.\n27. As [Defendant... was walking away from Kim\u2019s Mart, he came within 5-10 feet of Officer Brown\u2019s patrol car.\n28. Officer Brown wanted to speak with [Defendant. . . about possible drug activity.\n29. Officer Brown asked [Defendant ... to place his hands on the patrol car....\n30. [Defendant . . . placed his hands on the front left fender of Officer Brown\u2019s patrol car.\nBased on these findings, the court concluded \u201c[t]hat based on the totality of the circumstances . . . Officer Brown had a reasonable and articulable suspicion that criminal activity was afoot\u201d and \u201cwas legally permitted to make a brief investigatory stop of [D]efendant[.]\u201d The court further found and concluded that Defendant thereafter \u201cconsented to a search of his person by Officer Brown\u201d which led to the discovery of a handgun.\nWhile reserving the right to appeal the denial of his motion, see N.C. Gen. Stat. \u00a7 15A-979(b) (2013), Defendant pled guilty on 7 January 2013 to possession of a firearm by a felon, possession of a firearm with an altered serial number, and conspiracy to possess with intent to sell or deliver marijuana. The trial court consolidated Defendant\u2019s offenses for judgment, suspended a prison sentence of twelve to-twenty-four months, and placed him on twenty-four months of supervised probation.\nAppellate Jurisdiction\nDefendant has filed a petition for writ of certiorari, acknowledging a jurisdictional defect in his notice of appeal, to wit, that he did not initially appeal from the final judgment as required by N.C.R. App. P. 4(b), but rather appealed only from the denial of his suppression motion. See State v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542, 542 (2010) (dismissing appeal for lack of jurisdiction where the \u201c[defendant did file... a written notice of appeal from the denial of [the defendant's motion to suppress, but [the defendant did not appeal from his judgment of conviction\u201d) (internal quotation marks omitted). Further, Defendant gave oral notice of appeal thirteen days after the judgment was filed, rather than at trial as required by N.C.R. App. P. 4(a)(1). See State v. Hammonds, _ N.C. App. _, _, 720 S.E.2d 820, 823 (2012) (granting writ of certiorari after dismissing an appeal for inadequate notice where the defendant\u2019s counsel attempted to give oral notice of appeal to the trial court days after the trial and not \u201cat trial\u201d as required by Rule 4).\nAs a result, Defendant\u2019s \u201cright to prosecute an appeal has been lost by [his] failure to take timely action[.]\u201d N.C.R. App. P. 21(a)(1). The State has neither moved to dismiss Defendant\u2019s appeal nor opposed our review by writ of certiorari. Accordingly, we grant the requested writ and review Defendant\u2019s challenges to the denial of his suppression motion on the merits.\nMotion to Suppress\nDefendant argues that the court erred in denying his motion to suppress because Officer Brown lacked the reasonable articulable suspicion of criminal activity needed to justify an investigatory stop. See, e.g., State v. Battle, 109 N.C. App. 367, 370, 427 S.E.2d 156, 158 (1993) (citing Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911 (1968)). Because the stop was unlawful, Defendant further contends that his subsequent consent to Officer Brown\u2019s search of his person was invalid. We agree.\nIn reviewing the denial of a motion to suppress, ourtask is to determine \u201cwhether competent evidence supports the trial court\u2019s findings of fact and whether the findings of fact support the conclusions of law.\u201d State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citation omitted). Findings not challenged by Defendant \u201care deemed to be supported by competent evidence and are binding on appeal.\u201d Id. (citation omitted). We review de novo a trial court\u2019s conclusion of law that an \u201cofficer had reasonable suspicion to detain a defendant^]\u201d State v. Kincaid, 147 N.C. App. 94, 97, 555 S.E.2d 294, 297 (2001) (citation omitted).\nHere, Defendant challenges only finding of fact 5, which states that Officer Brown recovered a stolen gun from Defendant during a prior encounter with Defendant and another individual. The evidence, however, shows that, although Officer Brown did recover a stolen firearm during that encounter, \u201c[Defendant was not the one that was actually charged in that[.]\u201d This finding of fact is not supported by competent evidence, and, accordingly, we do not consider it in analyzing Defendant\u2019s challenge to the trial court\u2019s ultimate conclusion that Officer Brown had a reasonable suspicion of criminal activity justifying an investigatory stop.\n\u201cThe Fourth Amendment protects the right of the people against unreasonable searches and seizures. It is applicable to the states through the Due Process Clause of the Fourteenth Amendment. It applies to seizures of the person, including brief investigatory detentions[.]\u201d State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994) (citations, internal quotation marks, and ellipsis omitted). Accordingly, \u201c[a]n investigatory stop must be justified by \u2018a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.\u2019 \u201d Id. at 441, 446 S.E.2d at 70 (quoting Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979)). \u201cA court must consider the totality of the circumstances \u2014 the whole picture in determining whether a reasonable suspicion to make an investigatory stop exists.\u201d Id. (citation and internal quotation marks omitted). \u201cThis process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.\u201d State v. Williams, 366 N.C. 110, 116-17, 726 S.E.2d 161, 167 (2012) (citation and internal quotation marks omitted). However, case law has drawn clear limits on what inferences are constitutionally permissible when an officer observes a citizen in an area known for illegal drug activity or other criminal activity.\n\u201c[T]he presence of an individual on a comer specifically known for drug activity and the scene of multiple recent arrests for drugs, coupled with evasive actions by [a] defendant^ is] sufficient to form reasonable suspicion to stop an individual.\u201d State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522 (1995) (citation omitted; emphasis added). While what constitutes an \u201cevasive action\u201d has never been explicitly defined, a careful review of case law from this State\u2019s appellate courts and from the United States Supreme Court reveals that merely walking away from one\u2019s companion in the presence of law enforcement officers cannot be considered an evasive action which, when coupled with one\u2019s presence in an area known for drug sales or other illegal activity, will support the warrantless stop of a citizen.\nFor example, in State v. Fleming,\nat the time [the o]ffi!cer . . . first observed [the] defendant and his companion, they were merely standing in an open area between two apartment buildings [in a \u201chigh drug area\u201d]. At this point, they were just watching the group of officers standing on the street and talking. The officer observed no overt act by [the] defendant at this time nor any contact between [the] defendant and his companion. Next, the officer observed the two men walk between two buildings, out of the open area, toward Rugby Street and then begin walking down the public sidewalk in front of the apartments. These actions were not sufficient to create a reasonable suspicion that [the] defendant was involved in criminal conduct, it being neither unusual nor suspicious that they chose to walk in a direction which led away from the group of officers.\n106 N.C. App. 165, 170-71, 415 S.E.2d 782, 785 (1992) (emphasis added). Thus, walking away from law enforcement officers with one\u2019s companion after watching law enforcement officers is not suspicious and, even when coupled with being present in an area known for drugs, cannot create the reasonable suspicion needed to justify a stop. Id.; see also In re J.L.B.M., 176 N.C. App. 613, 620, 627 S.E.2d 239, 245 (2006) (holding there was no reasonable suspicion where an officer \u201crelied solely on the dispatch that there was a suspicious person at the Exxon gas station, that the juvenile matched the \u2018Hispanic male\u2019 description of the suspicious person, that the juvenile was wearing baggy clothes, and that the juvenile chose to walk away from the patrol car\u201d).\nIn Brown, two police officers observed [the] defendant and another person walking away from one another in an alley. The officers drove into the alley, approached [the] defendant and asked him to identify himself and to explain what he was doing there. [The defendant refused and told the officers they had no right to stop him. One of the officers told [the] defendant he was in a high drug area; the other officer then frisked [the] defendant and found nothing. At trial, one officer testified that he had stopped [the] defendant because the situation looked suspicious and he had never seen that subject in that area before. Further, the area where [the] defendant was stopped had a high incidence of drug traffic. The officers never claimed to suspect [the] defendant of any specific misconduct, nor did they have any reason to believe [the] defendant was armed.\nFleming, 106 N.C. App. at 170, 415 S.E.2d at 785 (internal quotation marks omitted) (discussing the circumstances present in Brown, which did not create the reasonable suspicion needed to sustain a stop). Thus, walking away from one\u2019s companion in the presence of law enforcement officers, even when coupled with being present in an area known for drugs, cannot create reasonable suspicion.\nIn contrast, in State v. Butler, the circumstances relevant to a determination of reasonable suspicion were:\n1) [the] defendant was seen in the midst of a group of people congregated on a comer known as a \u201cdmg hole\u201d; 2) [the officer] had had the comer under daily surveillance for several months; 3) [the officer] knew this comer to be a center of dmg activity because he had made four to six drug-related arrests there in the past six months; 4) [the officer] was aware of other arrests there as well; 5) [the] defendant was a stranger to the officers; 6) upon making eye contact with the uniformed officers, [the] defendant immediately moved away, behavior that is evidence of flight; and 7) it was [the officer\u2019s] experience that people involved in dmg traffic are often armed.\n331 N.C. 227, 233, 415 S.E.2d 719, 722 (1992). The Court specifically distinguished the circumstances in Butler from those in Brown by noting \u201can additional circumstance \u2014 [the] defendant\u2019s immediately leaving the comer and walking away from the officers after making eye contact with them.\u201d Id. at 234, 415 S.E.2d at 722-23 (emphasis added). The Court constmed these actions as \u201cbehavior that is evidence of Jlight[.]\u2019\u2019 Id. at 233, 415 S.E.2d at 722 (emphasis added). Thus, making eye contact with an officer before immediately turning and walking away in a manner which suggests an attempt to flee, when coupled with being present in an area known for drugs, will establish reasonable suspicion to sustain a stop.\nIn Watson, upon the approach of law enforcement officers, the \u201cdefendant immediately attempted to enter the convenience store to avoid detention . . . [and] made evasive maneuvers to avoid detection, i.e., putting the drugs in his mouth, attempting to swallow the drugs by drinking Coca-Cola and attempting to go into the store[.]\u201d 119 N.C. App. at 398, 458 S.E.2d at 522 (italics added). The defendant\u2019s attempt to swallow drugs, coupled with his presence in an area known for drags, created reasonable suspicion for a stop. Id. In State v. Sutton, the defendant\u2019s evasive action was \u201cclinch[ing]\u201d something in a waistband and posturing to conceal an item from a nearby officer. _ N.C. App. _, _, 754 S.E.2d 464, 471-72 (2014) (\u201cWhile many of the facts in Fleming are the same or similar to this case, in Fleming, the defendant did not make any overt actions, and here [the] defendant did when he used his right hand to grab his waistband to clinch an item.\u201d). Similarly, in State v. Willis, the circumstances supported a determination of reasonable suspicion when a defendant \u201cleft a suspected drug house just before [a] search warrant was executed[,]... [took] evasive action when he knew he was being followed[,] . . . [and] exhibited nervous behavior.\u201d 125 N.C. App. 537, 542, 481 S.E.2d 407, 411 (1997). Thus, overt, evasive behaviors such as attempting to destroy contraband, behaving nervously while being followed, or concealing items from the view of officers, when coupled with being present in high crime areas, can create reasonable suspicion.\nHere, the unchallenged findings of fact reveal that the following circumstances led to Officer Brown\u2019s stop of Defendant: (1) it was approximately 9:00 p.m.; (2) the area around Kim\u2019s Mart was known for illegal drug sales and had been the location of numerous drug-related arrests; (3) Defendant and a companion were standing together in front of Kim\u2019s Mart; (4) when the men saw Officer Brown\u2019s car, they began walking in opposite directions and Defendant entered Kim\u2019s Mart; (5) when Officer Brown turned his car around and returned, the two men were again standing together in front of Kim\u2019s Mart; and (6) when Officer Brown pulled into the store parking lot, Defendant and his companion again walked away from each other, with Defendant walking toward Officer Brown.\nThus, the totality of the relevant circumstances here consists of nothing more than (1) being in an area known for drug sales and (2) walking away from a companion in the presence of an officer twice. Defendant\u2019s presence with a companion at Kim\u2019s Mart, a location known for drug sales, cannot create reasonable suspicion to support a stop. See Brown, 443 U.S. at 52, 61 L. Ed. 2dat 365 (\u201cThere is no indication in the record that it was unusual for people to be in the alley. The fact that [the defendant] was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that [the defendant] himself was engaged in criminal conduct. In short, the [defendant\u2019s] activity was no different from the activity of other pedestrians in that neighborhood.\u201d). As discussed supra, that Defendant walked away from his companion after seeing Officer Brown, even in a known drug area, cannot create reasonable suspicion. See Fleming, 106 N.C. App. at 170, 415 S.E.2d at 785. Nothing in the findings of fact suggests that Defendant took any \u201cevasive\u201d action or engaged in behavior that could be construed as flight such as trying to swallow drugs, see Watson, 119 N.C. App. at 398, 458 S.E.2d at 522; concealing something from Officer Brown, see Sutton, _ N.C. App. at _, 754 S.E.2d at 466; making eye contact with the. officer and then immediately walking away, see Butler, 331 N.C. at 234, 415 S.E.2d at 722-23; or behaving nervously while being followed. See Willis, 125 N.C. App. at 542, 481 S.E.2d at 411.\nOn the contrary, Defendant\u2019s actions were anything but evasive or evidence of flight. Finding of fact 27 notes that, as Defendant \u201cwas walking away from Kim\u2019s Mart, he came within 5-10 feet of. . . Brown\u2019s patrol car.\u201d Here, as in Fleming, Officer Brown observed no overt act by Defendant nor any contact between Defendant and his companion that would suggest Defendant was engaged in, or about to engage in, criminal activity of any kind, including illegal drug activity. He simply saw two young men standing in front of a convenience store move away from each other twice. In sum, the United States Supreme Court, our own North Carolina Supreme Court, and previous panels of this Court have consistently held that these circumstances cannot create the reasonable suspicion required to permit police intrusion upon the liberty of our State\u2019s citizens.\nHaving determined that the initial investigatoiy stop was unlawful, we need not consider whether Defendant\u2019s consent to Officer Brown\u2019s search of his person was valid. See State v. Guevara, 349 N.C. 243, 249, 506 S.E.2d 711, 716 (1998), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013 (1999) (noting that evidence obtained as the result of illegal police conduct must be suppressed). The order denying Defendant\u2019s motion to suppress is reversed and the judgment entered upon Defendant\u2019s guilty plea is vacated.\nREVERSED and VACATED.\nJudge BRYANT concurs.\n. A subsequent search of Benton yielded \u201ca bag containing a multitude of smaller bags of marijuana.\u201d\n. We note that no evidence was introduced and no finding of fact was made that Defendant had any criminal history, much less that Officer Brown was aware of any previous criminal activity by Defendant. Further, even had such evidence been introduced, \u201ca prior criminal record is not, standing alone, sufficient to create reasonable suspicion.\u201d United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (citation and internal quotation marks omitted). As for the findings of fact concerning Benton\u2019s criminal history, \u201c[t]here is no reasonable suspicion merely by association.\u201d Id. at 539; see also State v. Smith, _ N.C. App. _, _, 729 S.E.2d 120, 125 (noting that \u201ca person\u2019s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person\u201d) (citations and internal quotation marks omitted), disc. review denied, 366 N.C. 396, 735 S.E.2d 190 (2012).\n. In contrast, simply observing law enforcement officers before walking away from them does not support a determination of reasonable suspicion. See Fleming, 106 N.C. App. at 170, 415 S.E.2d at 785 (finding no reasonable suspicion where the defendant and his companion \u201cwere just watching the group of officers standing on the street and talking\u201d before walking away). Here, finding of fact 19 simply states that Defendant and his companion dispersed \u201cupon spotting\u201d Officer Brown in his marked patrol car. No finding of fact states that Defendant made eye contact with Officer Brown, and no testimony at the suppression hearing would have supported such a finding. Indeed, Officer Brown testified that, at the time he saw Defendant and his companion outside Kim\u2019s Mart, it was \u201cdark\u201d and that, \u201cas soon as they observed my police vehicle, you had [Defendant... walk east, as if he was walking into the store. And then [his companion] actually walked west, away from the store.\u201d\n. The time of the stop, 9:00 p.m., cannot be considered a suspicious time to be at Kim\u2019s Mart, since that establishment was apparently open for business. See, e.g., State v. Rinck, 303 N.C. 551, 555-60, 280 S.E.2d 912, 916-20 (1981) (holding that circumstances supporting a reasonable basis for a stop included the defendants walking along a road at an \u201cunusual hour\u201d of approximately 1:35 a.m.); State v. Blackstock, 165 N.C. App. 50, 59, 598 S.E.2d 412, 418 (2004), appeal dismissed and disc, review denied, 359 N.C. 283, 610 S.E.2d 208 (2005) (holding that reasonable suspicion existed where the defendant and a companion were observed loitering at a closed shopping center shortly before midnight, and, upon seeing law enforcement officers, hurriedly returned to (heir vehicle, which was parked out of general public view).", "type": "majority", "author": "STEPHENS, Judge." }, { "text": "DILLON, Judge,\ndissenting.\nI agree with the majority that the trial court\u2019s Finding of Fact 5\u2014 the only finding challenged by Defendant\u2014is not supported by the evidence of record. However, because I believe that the remaining findings are sufficient to support the court\u2019s conclusion that Officer Brown possessed the reasonable suspicion requisite to justify an investigatory stop under the circumstances, I respectfully dissent.\nAs the majority points out, we have held that \u201cthe presence of an individual on a comer specifically known for drug activity and the scene of multiple recent arrests for drags, coupled with evasive actions by [a] defendant^] are sufficient to form reasonable suspicion to stop an individual.\u201d State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522 (1995). Defendant does not dispute the trial court\u2019s findings that Officer Brown was aware that Kim\u2019s Mart\u2014where the stop in question occurred \u2014was a high-crime area, where numerous drug transactions had taken place and where Officer Brown had made a number of drug-related arrests. The sole issue, therefore, is whether the trial court\u2019s remaining findings are sufficient to establish that Defendant engaged in \u201cevasive actions\u201d sufficient to give rise to reasonable suspicion.\nThis court has held, as the majority points out, that an individual\u2019s action in merely walking away from one\u2019s companion cannot be considered evasive action sufficient to form reasonable suspicion. State v. Fleming, 106 N.C. App. 165, 171, 415 S.E.2d 782, 785 (1992). However, as the majority also points out, our Supreme Court has held that there is reasonable suspicion to justify an\u2019 investigatory stop where an individual who walks away from his companion in a high-crime area does so \u201cafter making eye contact\u201d with a police officer. State v. Butler, 331 N.C. 227, 234, 415 S.E.2d 719, 723 (1992) (emphasis added).\nI believe that Defendant\u2019s actions here were more evasive than those of the defendant in Butler, and, accordingly, I believe that we are compelled to conclude that Officer Brown conducted a valid stop under the circumstances. Unlike Fleming, where the defendant simply walked away from the police, here Defendant engaged in a sequence of suspicious behaviors upon observing Officer Brown\u2019s patrol car. For instance, the trial court found that \u201cDefendant. . . and [his companion] upon spotting Officer Brown in his marked patrol car stopped talking and dispersed [from the front of Kim\u2019s Mart].\u201d (Emphasis added.) This unchallenged finding is comparable to the key finding in Butler that the defendant \u201cupon making eye contact with the uniformed officers . . . moved away.\u201d Butler, 331 N.C. at 233, 415 S.E.2d at 722. Additionally, the trial court found that Officer Brown continued driving past Kim\u2019s Mart and lost sight of Defendant and his companion before executing a U-turn and driving back toward Kim\u2019s Mart, where he observed Defendant and his companion once again standing together. Finally, the trial court found that when Officer Brown pulled into the Kim\u2019s Mart parking lot, Defendant and his companion again dispersed.\nAny one of Defendant\u2019s actions, standing alone, might not satisfy the requirements of the Fourth Amendment to conduct a Terry stop. However, I believe that Defendant\u2019s actions, when considered in their totality, namely: (1) that Defendant and his companion split up upon spotting Officer Brown\u2019s patrol car drive by Kim\u2019s Mart the first time; (2) that Defendant and his companion reconvened once Officer Brown was out of site; and (3) that Defendant and his companion split up a second time upon observing Officer Brown driving back towards Kim\u2019s Mart\u2014 were certainly more evasive than the actions of the defendant in Butler. Accordingly, I believe that Officer Brown conducted a valid investigatory stop of Defendant in the present case, and I would affirm the trial court on this basis.", "type": "dissent", "author": "DILLON, Judge," } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster III, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TIYOUN JIMEK JACKSON\nNo. COA13-743\nFiled 20 May 2014\n1. Appeal and Error\u2014failure to file written appeal\u2014untimely oral appeal\u2014writ of certiorari granted\nWhere defendant had lost his right to appeal the trial court\u2019s order denying his motion to suppress by failing to file a written appeal from the order and failing to enter timely oral notice of appeal, defendant\u2019s writ of certiorari was granted and the Court of Appeals reviewed defendant\u2019s appeal on the merits.\n2. Search and Seizure\u2014reasonable articulable suspicion\u2014insufficient evidence\nThe trial court erred by denying defendant\u2019s motion to suppress. The finding of fact that the officer had recovered a stolen gun from defendant during a prior encounter with defendant was not supported by the evidence. Furthermore, under the totality of the circumstances, the police officer lacked the reasonable articulable suspicion of criminal activity needed to justify an investigatory stop. Moreover, because the stop was unlawful, defendant\u2019s subsequent consent to the officer\u2019s search of his person was invalid.\nDILLON, Judge, dissenting.\nAppeal by Defendant from order entered 10 January 2013 by Judge C.W. Bragg and judgment entered 22 January 2013 by Judge A. Robinson Hassell in Guilford County Superior Court. Heard in the Court of Appeals 5 February 2014.\nAttorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster III, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for Defendant." }, "file_name": "0080-01", "first_page_order": 90, "last_page_order": 102 }