STATE OF NORTH CAROLINA
v
.
AKEEM YOUNG
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Marc D. Bernstein, for the State.
Glover & Petersen, P.A., by James R. Glover, for defendant-
appellant.
HUNTER, Judge.
Akeem Akbar Young (“defendant”) appeals the denial of his
motion to suppress resulting in defendant's entry of a plea of
guilty to two counts of robbery with a dangerous weapon. We affirm
the denial of defendant's motion to suppress.
Evidence presented at the hearing on defendant's motion tended
to establish that on 5 October and 19 October 1998, a Western Union
located at the Carr Mill Mall in Carrboro, North Carolina, was
robbed. The first robbery occurred on a Monday, and the
perpetrator used a handgun to facilitate the robbery. The
perpetrator was described as a black male of medium build,
approximately five feet eight inches tall, with a dark complexion
and some facial hair. The 19 October 1998 robbery also occurred on
a Monday, and the perpetrator was again described as a black maleof medium build, approximately five feet eight inches tall and
weighing 150 pounds, approximately late twenties to thirty years of
age, and with light facial hair. He was described as wearing a
denim jacket or shirt. The perpetrator used a knife to facilitate
the robbery.
On the following Monday, 26 October 1998, a call was received
by the 911 call center for the Carrboro Police Department. The
female caller would not identify herself, stating she did not want
to endanger her life or her child's life, but said she knew who had
robbed the Western Union on 5 October and 19 October 1998. She
stated the man was currently in the vicinity of a Wendy's
restaurant near the Western Union and was driving a white 1998
Buick Century. The caller described the man as a black male,
approximately five feet five inches tall, weighing approximately
155 pounds, and with light facial hair and a dark complexion. The
suspect was described as wearing a blue denim shirt over a white
undershirt, black jeans, and yellow and gray tennis shoes. The
caller stated that the man was very dangerous and was currently
armed with a pistol.
Officer Paul Atherton of the Carrboro Police Department
received the information provided by the anonymous caller. He was
familiar with the robberies that had occurred at the Western Union.
Officer Atherton drove to the vicinity of the Wendy's and parked
his vehicle in a parking lot directly across from the restaurant.
While there, Officer Atherton observed a white sedan enter the
Wendy's parking lot. He then drove to the Wendy's in his unmarkedpatrol car, but the white sedan was not there when he arrived.
Officer Atherton circled the block, and as he returned to the
Wendy's, he observed a late model white Buick Century parked in a
parking lot across the street from the Wendy's to the east.
Officer Atherton parked his vehicle approximately fifty yards from
the Buick. Within approximately one minute, he observed defendant,
a black male fitting the description of the suspect, walk to the
white Buick and enter the car. Officer Atherton observed that
defendant was wearing a blue denim shirt over a white shirt, dark
pants, and tennis shoes with yellow on them. He testified
defendant appeared to be approximately five feet eight inches tall.
Defendant pulled out of the parking lot and began traveling
north on Greensboro Street. Officer Atherton followed defendant.
Just after defendant passed Carr Mill Mall, defendant made a left
turn onto East Poplar Street, a one-way street. Defendant began
driving the wrong way down East Poplar Street, which was clearly
marked with both a “One-Way” sign and a “Do Not Enter” sign.
Shortly after making the turn, defendant stopped his vehicle and
executed a three-point turn on East Poplar Street. Defendant then
exited East Poplar Street and proceeded south on Greensboro Street,
the opposite direction from which he had previously been traveling.
Officer Atherton activated his blue lights and made a U-turn
to get behind defendant. Defendant pulled into a parking lot, and
Officer Atherton followed. Officer Atherton testified that as soon
as he pulled in behind defendant, defendant exited his vehicle and
quickly walked towards Officer Atherton's patrol car before hecould exit. Officer Atherton stated that he exited his vehicle as
soon as he could and instructed defendant to “[h]old on.”
Defendant stopped and began clutching his chest, stating that he
needed an ambulance because he had just been robbed. Officer
Atherton asked defendant where he had been robbed, and defendant
responded he had been robbed at the Old Well Apartments near the BP
gas station. Officer Atherton testified that he knew “right then”
defendant was lying, and he proceeded to execute a “very quick
cursory search” of defendant for weapons.
Defendant did not continue to talk about having been robbed,
and “either avoided or ignored” Officer Atherton's questions
regarding the alleged robbery. Another officer who arrived at the
scene asked defendant if he could search his vehicle. Defendant
consented, and hit a remote button which opened the trunk. The
officers recovered a pistol from underneath the driver's seat.
When defendant could not produce a concealed weapons permit, he was
informed that he was being placed under arrest for carrying a
concealed weapon. Defendant resisted the arrest and a struggle
ensued, during which a stainless steel gun magazine fell to the
ground. A Western Union money order linked to one of the robberies
was later recovered from defendant's shirt pocket.
On 5 January 1999, defendant was indicted for two counts of
robbery with a dangerous weapon. On 1 September 1999, defendant
moved to suppress evidence gathered in connection with his arrest
on 26 October 1998. Defendant did not testify at the hearing. On
22 September 1999 the trial court denied defendant's motion. Hethereafter entered a plea of guilty to the two counts in exchange
for the dismissal of two additional charges. Defendant was
sentenced to two consecutive terms of fifty-one to seventy-one
months in prison. He appeals.
Defendant assigns error to the denial of his motion to
suppress, arguing that his stop, detention, and arrest on 26
October 1998 violated his Fourth Amendment right to be free from
unreasonable search and seizure, and therefore, any evidence
recovered as a result must be suppressed. We disagree, and affirm
the trial court's denial of defendant's motion.
“It is well established that the standard of review in
evaluating a trial court's ruling on a motion to suppress is that
the trial court's findings of fact '“are conclusive on appeal if
supported by competent evidence, even if the evidence is
conflicting.”'” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d
823, 826 (2001) (citations omitted). “This deference is afforded
the trial judge because he is in the best position to weigh the
evidence, given that he has heard all of the testimony and observed
the demeanor of the witnesses.” State v. Hughes, 353 N.C. 200,
207, 539 S.E.2d 625, 631 (2000).
Defendant first argues Officer Atherton's traffic stop of
defendant was not legally justified on the basis of probable cause
that defendant had violated N.C. Gen. Stat. § 20-165.1 (1999).
That statute provides:
In all cases where the Department of
Transportation has heretofore, or may
hereafter lawfully designate any highway or
other separate roadway, under its jurisdictionfor one-way traffic and shall erect
appropriate signs giving notice thereof, it
shall be unlawful for any person to willfully
drive or operate any vehicle on said highway
or roadway except in the direction so
indicated by said signs.
N.C. Gen. Stat. § 20-165.1. Defendant argues that although Officer
Atherton testified he stopped defendant based upon defendant's
driving the wrong way on a one-way street, Officer Atherton did not
have probable cause to believe defendant did so “willfully.”
The trial court found that “Officer Atherton had probable
cause to stop the defendant for the commission of a traffic
violation in the officer's presence, a violation of G.S. 20-165.1.”
Although the trial court's findings of fact are generally deemed
conclusive where supported by competent evidence, “a trial court's
conclusions of law regarding whether the officer had reasonable
suspicion [or probable cause] to detain a defendant is reviewable
de novo.” State v. Kincaid, __ N.C. App. __, __, 555 S.E.2d 294,
297 (2001).
We emphasize that in examining the legality of the stop at
issue, Officer Atherton's subjective reasoning is irrelevant, and
the proper inquiry is whether the objective facts support a finding
that probable cause existed to stop defendant. See State v.
McClendon, 350 N.C. 630, 636, 517 S.E.2d 128, 132 (1999) (officer's
subjective motive for traffic stop immaterial; issue is whether
objective evidence presented at suppression hearing supports
finding that stop was legal); State v. Peck, 305 N.C. 734, 741, 291
S.E.2d 637, 641 (1982) (“'[t]he scope of the Fourth Amendment isnot determined by the subjective conclusion of the law enforcement
officer'” (citation omitted)).
“'Willful' as used in criminal statutes means the wrongful
doing of an act without justification or excuse, or the commission
of an act purposely and deliberately in violation of the law.”
State v. Davis, 86 N.C. App. 25, 30, 356 S.E.2d 607, 610 (1987)
(citing State v. Arnold, 264 N.C. 348, 141 S.E.2d 473 (1965)).
“'Willfulness' is a state of mind which is seldom capable of direct
proof, but which must be inferred from the circumstances of the
particular case.” Id. (citation omitted).
We agree with the trial court that the objective evidence
reveals the existence of probable cause to stop defendant for a
violation of N.C. Gen. Stat. § 20-165.1. Although the evidence in
the present case could suggest defendant did not realize he had
turned the wrong way into a one-way street, the evidence is equally
supportive of a finding that defendant used the one-way street to
turn around and begin to proceed in a southerly direction on
Greensboro Street. The evidence established that defendant had
been traveling north on Greensboro Street, and that shortly after
he passed the Carr Mill Mall and the Western Union, he executed an
illegal turn onto East Poplar Street, did a three-point turn on
that street, and then proceeded south on Greensboro Street in the
direction from which he came. The evidence establishes the
existence of probable cause, based on objective facts, that
defendant violated N.C. Gen. Stat. § 20-165.1, thereby permitting
Officer Atherton to stop defendant. See, e.g., McClendon, 350 N.C.at 636, 517 S.E.2d at 132 (violation of traffic statutes
constitutes probable cause to stop vehicle).
In any event, we also hold Officer Atherton was justified in
initiating an investigatory stop of defendant based upon a
reasonable suspicion that defendant was involved in the robberies
of the Western Union. “An 'investigatory stop must be justified by
“a reasonable suspicion, based on objective facts, that the
individual is involved in criminal activity.”'” Kincaid, __ N.C.
App. at __, 555 S.E.2d at 297-98 (citations omitted). “The level
of suspicion required for an investigatory stop . . . is lower than
what is required for a seizure based on probable cause, which is a
suspicion produced by such facts as indicate a fair probability
that the person seized has engaged in or is engaged in criminal
activity.” State v. Schiffer, 132 N.C. App. 22, 26, 510 S.E.2d
165, 167, appeal dismissed and disc. review denied, 350 N.C. 847,
539 S.E.2d 5 (1999). In determining whether reasonable suspicion
exits, a trial court must consider the totality of the
circumstances. Kincaid at __, 555 S.E.2d at 298.
“An anonymous tip can provide reasonable suspicion as long as
it exhibits sufficient indicia of reliability.” Hughes, 353 N.C.
at 207, 539 S.E.2d at 630. An officer is entitled to “. . . 'rely
upon information received through an [anonymous] informant, rather
than upon his direct observations, so long as the informant's
statement is reasonably corroborated by other matters within the
officer's knowledge.'” State v. Bone, 354 N.C. 1, 10, 550 S.E.2d
482, 488 (2001) (citation omitted). In Bone, our Supreme Court held that the detective
sufficiently corroborated information provided by an anonymous
informant that the defendant was the perpetrator of a previous
murder. Id. at 11, 550 S.E.2d at 488. The informant provided
police with the defendant's name and physical description, and
stated that he had entered the victim's apartment through a window
and punched the victim in the face, causing her to bleed from the
ears. Id. at 6, 550 S.E.2d at 485. The detective was able to
verify that the information provided by the informant was correct.
Id. at 11, 550 S.E.2d at 488. In addition, when the detective went
to question the defendant, he observed that the defendant was
wearing the same type of athletic shoes which the detective knew
the murderer to have worn during the crime. Id.
In this case, as in Bone, Officer Atherton had previous
knowledge of the circumstances surrounding the robberies of the
Western Union. Not only was Officer Atherton able to verify that
the information provided by the informant regarding defendant's
description, clothing, vehicle, and location was correct, but he
was able to corroborate the information based upon his previous
knowledge of the Western Union robberies. Officer Atherton viewed
defendant entering his vehicle near the Wendy's parking lot, and
observed that defendant generally met the description of the
perpetrator provided by witnesses to both robberies. The anonymous
tip was therefore sufficiently reliable to allow Officer Atherton
to conduct an investigatory stop of defendant. In so holding, we
note that anonymous tips are one of the most importantinvestigatory tools used by law enforcement to prevent and solve
crimes. Only when their use has been unreasonable should our
courts restrict their use. This assignment of error is overruled.
In his remaining argument, defendant contends that even if
Officer Atherton had legal justification to stop defendant, the
detention exceeded the permissible scope allowed for such a stop.
Again, we disagree. Defendant argues the scope of a valid traffic
stop encompasses a request for a driver's license and registration,
a computer check, and the issuance of a citation, and that Officer
Atherton never pursued the traffic violation upon stopping
defendant. While the evidence is clear that Officer Atherton did
not conduct defendant's stop in the routine fashion of first
requesting defendant's license and registration, defendant's
behavior following the stop was clearly atypical. Officer Atherton
testified he intended to conduct defendant's stop as a routine
traffic stop, but that before he could even exit his patrol car,
defendant had exited his own vehicle and was coming towards him
with some speed. Officer Atherton testified it is “very, very rare
to have somebody come out of the vehicle and approach you at the
speed [defendant] did that morning.” He testified defendant's
unusual behavior caused him to “heighten [his] sense of safety.”
Officer Atherton further testified that he did not initially
ask defendant for his license and registration because defendant
first began stating that he needed an ambulance because he had just
been robbed, which statement Officer Atherton knew to be false
based on his observations of defendant prior to the stop. OfficerAtherton testified the events unfolded very quickly, and with the
knowledge that defendant could be a suspect in an armed robbery and
that an anonymous caller stated the suspect was very dangerous and
currently armed, he conducted a limited pat-down of defendant for
weapons.
“While a routine traffic stop 'does not justify in every
instance a protective search for weapons,' an officer is 'permitted
to conduct a “pat-down” for weapons once the defendant is outside
the automobile . . . if the circumstances give the police
reasonable grounds to believe that the defendant may “be armed and
presently dangerous.”'” State v. Hamilton, 125 N.C. App. 396, 401,
481 S.E.2d 98, 101 (citations omitted) (holding defendant's
behavior in reaching towards his left side before exiting vehicle
sufficient to justify weapons frisk), appeal dismissed and disc.
review denied, 345 N.C. 757, 485 S.E.2d 302 (1997); see also State
v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998)
(following a stop, if an officer “reasonably believes that the
person is armed and dangerous, the officer may frisk the person to
discover a weapon or weapons”); State v. Willis, 125 N.C. App. 537,
542, 481 S.E.2d 407, 411 (1997) (following stop, officer may
conduct weapons frisk for self-protection “'[i]f, after the
detention, [the investigating officer's] personal observations
confirm his apprehension that criminal activity may be afoot and []
that the person may be armed . . . .'” (citation omitted)).
In State v. Alston, 82 N.C. App. 372, 376, 346 S.E.2d 184, 187
(1986), affirmed, 323 N.C. 614, 374 S.E.2d 247 (1988), this Courtheld the following evidence sufficient to warrant an articulable
and objectively reasonable belief that the defendant was
potentially dangerous: the defendant generally matched a
description of a suspect who had committed a previous armed
robbery; the defendant was driving a vehicle similar to that
identified as being used by the perpetrator of the robbery; when
the officer stopped the defendant, the defendant quickly got out of
his vehicle and allowed it to roll back into the police car; and
the officer observed that the defendant was “'acting weird.'” Id.;
see also McClendon, 350 N.C. at 637, 517 S.E.2d at 133 (defendant's
responses to officer's questions following routine traffic stop
sufficient to justify officer's suspicions that criminal activity
afoot).
In the present case, Officer Atherton was justified in an
objectively reasonable belief that defendant could be armed and
potentially dangerous. Defendant matched a description from an
anonymous caller as the perpetrator of two recent armed robberies,
which description was consistent with robbery witnesses'
descriptions of the robber. In any event, the pat-down of
defendant did not yield the evidence which defendant sought to
suppress. Rather, the search of defendant's vehicle which actually
led to defendant's arrest based upon the discovery of the concealed
weapon, was performed pursuant to defendant's consent. Defendant
has not challenged the trial court's finding that he gave the
officers permission to search his vehicle, and the finding is
clearly supported by the evidence. Taken as a whole, the evidence supports the trial court's
findings of fact, and we hold these findings support the conclusion
that defendant's stop, detention and arrest were within the
permissible bounds of the Fourth Amendment. The trial court
therefore did not err in denying defendant's motion to suppress
evidence recovered as a result thereof.
Affirmed.
Judge TYSON concurs.
Judge GREENE concurs in a separate opinion.
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