{ "id": 8525996, "name": "STATE OF NORTH CAROLINA v. JOHN HEYWOOD FOX", "name_abbreviation": "State v. Fox", "decision_date": "1982-09-07", "docket_number": "No. 8126SC1367", "first_page": "692", "last_page": "697", "citations": [ { "type": "official", "cite": "58 N.C. App. 692" } ], "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": "280 S.E. 2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "302 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569185, 8569130, 8569234, 8569043, 8569082 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0633-04", "/nc/302/0633-03", "/nc/302/0633-05", "/nc/302/0633-01", "/nc/302/0633-02" ] }, { "cite": "274 S.E. 2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "364" } ], "opinion_index": 0 }, { "cite": "50 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2673989 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/50/0520-01" ] }, { "cite": "227 S.E. 2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 511", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561887 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0511-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 4, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/392/0001-01" ] }, { "cite": "37 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554416 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/nc-app/37/0628-01" ] }, { "cite": "422 U.S. 873", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9550 ], "weight": 3, "year": 1975, "opinion_index": 1, "case_paths": [ "/us/422/0873-01" ] }, { "cite": "252 S.E. 2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 1 }, { "cite": "296 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570136 ], "weight": 2, "year": 1979, "opinion_index": 1, "case_paths": [ "/nc/296/0703-01" ] }, { "cite": "440 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187389 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "663" }, { "page": "673" }, { "page": "1401" } ], "opinion_index": 1, "case_paths": [ "/us/440/0648-01" ] }, { "cite": "280 S.E. 2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 1 }, { "cite": "302 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569185, 8569130, 8569234, 8569043, 8569082 ], "year": 1981, "opinion_index": 1, "case_paths": [ "/nc/302/0633-04", "/nc/302/0633-03", "/nc/302/0633-05", "/nc/302/0633-01", "/nc/302/0633-02" ] }, { "cite": "274 S.E. 2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "362" }, { "page": "362" } ], "opinion_index": 1 }, { "cite": "50 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2673989 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "521" }, { "page": "522" } ], "opinion_index": 1, "case_paths": [ "/nc-app/50/0520-01" ] }, { "cite": "392 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6167798 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "22" }, { "page": "906" }, { "page": "1880" } ], "opinion_index": 1, "case_paths": [ "/us/392/0001-01" ] } ], "analysis": { "cardinality": 636, "char_count": 11693, "ocr_confidence": 0.783, "pagerank": { "raw": 2.993449910848083e-07, "percentile": 0.8518988944915321 }, "sha256": "865651f559fd9acb560f81bf85735a21605f2ed4353585883c62b7989a27555d", "simhash": "1:a280d08b377514e6", "word_count": 1921 }, "last_updated": "2023-07-14T18:20:52.636886+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Martin concurs.", "Judge BECTON dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN HEYWOOD FOX" ], "opinions": [ { "text": "MORRIS, Chief Judge.\nDefendant argues that the court erred by permitting Officer Bryant to testify at the pretrial hearing on defendant\u2019s motion to suppress that he \u201cexpressed an articulated basis\u201d for stopping defendant, and that it was error to deny defendant\u2019s motion to suppress evidence obtained pursuant to the stop and detention.\nThe following exchange took place on recross examination of Officer Bryant:\nI did not arrest the defendant solely because of his appearance, that was not my sole basis. I took into consideration all of the things that I observed with respect to the defendant and the car he was in.\nQ. It would be fair to say that based upon everything you observed about him you had a reasonable suspicion that he was engaged in some illegal activity at that time?\nMr. BRAGG: Objection.\nTHE COURT: Overruled. Well, that\u2019s calling for a conclusion, though.\nQ. You have expressed an articulated basis for your suspicions here today?\nMr. BRAGG: Objection.\nThe Court: Overruled.\nA. Yes, sir.\nMR. BRAGG: Move to strike the answer.\nTHE COURT: Overruled. Any other questions?\nDefendant contends that the witness should not have been allowed to express his opinion regarding whether he had articulated his suspicions in view of the mandate of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968), that an officer \u201cmust be able to point to specific and articulable facts which, taken together with rational inferences from those facts,\u201d id. at 906, warrant an investigatory stop, on the grounds that a non-expert may not testify as to a question of law. Though it is not apparent to us that the officer\u2019s answer was any more than a statement that he had articulated the facts known to him preceding his stop of the green Chevrolet, we hold that any error that may have occurred in the admission of this testimony was nonprejudicial. Even assuming that the evidence was improperly admitted, we find nothing to rebut the presumption that incompetent evidence was disregarded by the trial judge. See State v. Davis, 290 N.C. 511, 227 S.E. 2d 97 (1976). Moreover, it is clear from the record that the court understood the legal prohibition against conclusory testimony from nonexperts. This assignment of error is overruled.\nDefendant maintains by his second assignment that he was stopped and detained by Officer Bryant in violation of his constitutional rights and that the court erred by refusing to order that all evidence obtained as a result of the intrusion be suppressed.\nA police officer is authorized to stop a person without probable cause to arrest him if he observes unusual conduct making him reasonably suspicious that criminal activity may be afoot, and can point to specific facts that warrant the suspicion. Terry v. Ohio, supra. Our examination of the judge\u2019s findings of fact, which are based on the evidence and are thus conclusive, satisfies us that Officer Bryant acted within the confines of the Fourth Amendment in making the investigatory stop of defendant\u2019s vehicle. Defendant was driving slowly down a dead-end street of locked businesses previously fraught with property crime. One of the businesses had been broken into, Officer Bryant believed, that very night. The stop occurred at a very early morning hour. Defendant was dressed shabbily but drove a \u201creal nice\u201d 1981 Chevrolet. He did not stop to ask directions, or otherwise communicate with the officer, though he drove within two feet of Officer Bryant, and appeared to avoid his gaze. We upheld the investigatory stop of a vehicle in State v. Tillett and State v. Smith, 50 N.C. App. 520, 274 S.E. 2d 361, appeal dismissed 302 N.C. 633, 280 S.E. 2d 448 (1981), on facts less compelling, perhaps, than these. There, an automobile travelling a dirt road was seen entering a heavily wooded, occasionally unoccupied area at about 9:40 p.m. The officer was aware of reports of \u201cfirelighting\u201d deer in the area. He stopped the vehicle when it emerged from the area. We held it not unreasonable to believe the occupants of the vehicle were engaged in some sort of criminal activity. We hold in the case at bar, as we did in Tillett, that the facts \u201ctogether with the reasonable inferences to be drawn therefrom, when viewed through the eyes of an experienced police officer, . . . justify the reasonable suspicion\u201d that defendant \u201cmight be engaged in or connected with criminal activity.\u201d Id. at 524, 274 S.E. 2d at 364. The assignment of error is, therefore, overruled, and the order allowing the introduction of evidence acquired pursuant to the investigatory stop is\nAffirmed.\nJudge Martin concurs.\nJudge BECTON dissents.", "type": "majority", "author": "MORRIS, Chief Judge." }, { "text": "Judge BECTON\ndissenting.\nIn Delaware v. Prouse, 440 U.S. 648, 663, 59 L.Ed. 2d 660, 673, 99 S.Ct. 1391, 1401 (1979), the United States Supreme Court held that\n. . . except in those situations in which there is at least ar-ticulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver\u2019s license and the registration of the automobile are unreasonable under the Fourth Amendment.\nBelieving that the majority has failed properly to consider the application of Prouse to the facts of this case, I dissent.\nTo reach its conclusion that Officer Bryant had a reasonable suspicion that defendant might be engaged in criminal activity, the majority relies on State v. Tillett and State v. Smith, 50 N.C. App. 520, 274 S.E. 2d 361, appeal dismissed 302 N.C. 633, 280 S.E. 2d 448 (1981). The Tillett and Smith Court relied upon State v. Thompson, 296 N.C. 703, 252 S.E. 2d 776 (1979). Significantly, Thompson was decided eleven (11) days before Prouse, and Tillett and Smith is factually distinguishable from the case sub judice.\nThere was an arguable basis for stopping Tillett and Smith \u2014Officer Wagner \u201cdid not observe an inspection sticker on the vehicle,\u201d 50 N.C. App. at 521, 274 S.E. 2d at 362, as is required by G.S. 20-183.2(a). In the case sub judice, the majority correctly points out that Officer Bryant \u201cdid not observe any traffic or equipment violations,\u201d ante p. 2. Further, in Tillett and Smith, Officer Wagner \u201capproached the vehicle, asked the driver of the vehicle what he was doing[,] . . . shined his flashlight into the vehicle and\u201d simultaneously observed, in Officer Wagner\u2019s opinion, marijuana. 50 N.C. App. at 522, 274 S.E. 2d at 362. In the case sub judice, Officer Bryant observed nothing about defendant to justify the intrusion.\nI am particularly concerned that the majority deems significant the fact that the \u201c[defendant was dressed shabbily but drove a \u2018real nice\u2019 1981 Chevrolet\u201d and that the defendant \u201cdid not stop to ask directions, or otherwise communicate with the officer, though he drove within two feet of Officer Bryant, and appeared to avoid his gaze.\u201d The majority\u2019s reasoning subjects most people on late-night (or even weekend) errands to the grocery store to police detention. The law has yet to deem shoulder-length braids on males or any other non-mainstream lifestyle, even while worn in a Chevrolet, as grounds for suspicious inference. Compare United States v. Brignoni-Ponce, 422 U.S. 873, 45 L.Ed. 2d 607, 95 S.Ct. 2574 (1975), in which the Supreme Court rejected the Border Patrol\u2019s argument that it was lawful to stop cars late at night near the border because the occupants appeared to be of Mexican descent. Further, to construe a \u201ccock\u201d of the head as an intent to avoid a gaze (of the officer) rather than a glare (of the oncoming cruiser\u2019s headlights) is to \u201cinvite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, . . .\u201d Terry v. Ohio, 392 U.S. 1, 22, 20 L.Ed. 2d 889, 906, 88 S.Ct. 1868, 1880 (1968).\nOfficer Bryant himself testified that he thought defendant may have been lost. Based on Delaware v. Prouse, I do not believe Officer Bryant had a reasonable and articulable suspicion that criminal activity was afoot when he observed defendant driving slowly from a dead-end street \u201cof locked businesses previously fraught with property crime.\u201d Ante, p. 4.\nIn my opinion, the defendant\u2019s motion to suppress the evidence should have been allowed.\n. It is also significant to note that the facts in Thompson did not compel unanimity in our appellate courts. Judge Erwin dissented in 37 N.C. App. 628 (1978), and Justice Exum dissented in 296 N.C. 703 (1979).", "type": "dissent", "author": "Judge BECTON" } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney William H. Borden, for the St\u00e1te.", "Ellis M. Bragg for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN HEYWOOD FOX\nNo. 8126SC1367\n(Filed 7 September 1982)\n1. Searches and Seizures \u00a7 44\u2014 motion to suppress \u2014 incompetent evidence at voir dire \u2014 presumption that court disregarded\nEven if an officer was improperly permitted to express his opinion in a hearing on a motion to suppress that he had articulated his suspicions which warranted an investigatory stop of defendant, defendant was not prejudiced thereby where there was nothing in the record to rebut the presumption that incompetent evidence was disregarded by the trial judge.\n2. Searches and Seizures \u00a7 12\u2014 investigatory stop of vehicle\nAn officer had an articulable and reasonable suspicion that defendant might be engaged in criminal activity so as to justify an investigatory stop of defendant\u2019s vehicle where the officer observed defendant at 12:50 a.m. driving slowly down a dead-end street of locked businesses previously fraught with property crime; one of the businesses had been broken into that very night; defendant was dressed shabbily but drove a \u201creal nice\u201d 1981 Chevrolet; and although defendant drove within two feet of the officer, defendant did not stop to ask directions or otherwise communicate with the officer but appeared to avoid his gaze.\nJudge Becton dissenting.\nAppeal by defendant from Grist, Judge. Judgment entered 21 October 1981 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 7 June 1982.\nOfficer R. L. Bryant of the Charlotte Police Department on 1 August 1981, at approximately 12:50 a.m. observed a green 1981 Chevrolet moving south on North Tryon Street. The automobile turned left onto a dead end of Twenty-Seventh Street, where several padlocked businesses were located. Several break-ins had occurred in the area, and Officer Bryant had taken a report of a break-in from one of the businesses that evening. There was no residential housing on that part of the street.\nOfficer Bryant watched the Chevrolet move very slowly to a gate at the end of the street, stop, turn around, and proceed out of the dead end. Defendant\u2019s vehicle passed within two feet of Officer Bryant\u2019s patrol car, but defendant \u201ccocked\u201d his head away from the officer. Officer Bryant testified that he believed defendant was avoiding eye contact, and that although he thought defendant may have simply been lost, defendant did not stop to speak to him. He was also of the opinion that defendant did not \u201cfit in the area\u201d, his hair being styled into \u201cforty or fifty\u201d shoulder length braids, and that he was made suspicious by defendant\u2019s attire. Officer Bryant followed and stopped defendant. He did not observe any traffic or equipment violations. He discovered upon making a license check that defendant did not have a driver\u2019s license, that the Chevrolet automobile was stolen, and that defendant was a prison escapee.\nDefendant was indicted for felonious possession of a stolen vehicle, and, preserving his right of appeal, pled guilty to the charge upon denial of his motion to suppress. He appeals from an order of imprisonment.\nAttorney General Edmisten, by Associate Attorney William H. Borden, for the St\u00e1te.\nEllis M. Bragg for defendant appellant." }, "file_name": "0692-01", "first_page_order": 724, "last_page_order": 729 }