State v Gastson, (02-1183) 07/01/2003

Appeal by defendant from judgment entered 19 February 2002 by Judge Albert Diaz in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 June 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General W. Dale Talbert, for the State.

William B. Gibson for defendant-appellant.

    EAGLES, Chief Judge.

    James Williams Gastson (“defendant”) appeals from judgment entered on jury verdict finding him guilty of resisting a public officer and trafficking in cocaine. After careful consideration of the briefs and record, we discern no error.
    At trial, the State's evidence tended to show that the Charlotte-Mecklenburg Police Department received complaints about drug traffic at Almay Court, an apartment complex in Mecklenburg County, for approximately two to three months. On 23 August 2001, after receiving some complaints about drug activity, the Charlotte- Mecklenburg Police Department performed a “drug sweep” at Almay Court. Officer Ernest Chipman (“Officer Chipman”) testified thata “drug sweep” is when “[w]e just go out and any possible suspects that we come up with, we see if we can get a consent to search to see if we can find any drugs.” At approximately 12:30 a.m., an unmarked police car drove through the Almay Court area to determine if people were outside. Officer Chipman and other police officers then began to walk into Almay Court from behind the apartment buildings while marked police cars drove into the area and parking lots. Defendant was standing in a parking lot at Almay Court and there were five other people standing approximately fifteen to twenty feet from defendant. There was one car parked on the side of the road and a person was standing and leaning into the car talking to an occupant of the car.
    As the marked police cars drove into Almay Court, Officer Chipman saw defendant start to run toward the back of an apartment building. Officer Chipman ran after him and yelled for defendant to stop. Defendant continued to run but responded, “[w]hy do I need to stop.” As defendant attempted to climb over a fence, Officer Chipman grabbed defendant and pulled him off the fence. Defendant “jerked away” from Officer Chipman and began to run again, back towards Almay Court. Officer Chipman again chased defendant and “tackled him into a group of trees.” Officer William Parks (“Officer Parks”) saw defendant and Officer Chipman “struggling.” Officer Parks grabbed defendant, handcuffed him, and “patted [defendant] down for weapons.” Officer Parks did not find a weapon. Officer Parks then walked defendant to the parking lot to conduct a search incident to the arrest. Officer Parks foundtwo bags of crack cocaine in defendant's right pants pocket and one bag of crack cocaine in his left side pants pocket. Defendant also had $924.37 in his possession.
    Defendant was charged with resisting a public officer and trafficking in drugs. The matter was heard at the 18 February 2002 Criminal Session of Mecklenburg County Superior Court before Judge Albert Diaz. The jury returned guilty verdicts for both charges. The trial court consolidated the charges for judgment and sentenced defendant to a minimum term of imprisonment of 35 months to a maximum term of 42 months. Defendant appeals.
    On appeal, defendant contends that the trial court erred in denying his motion to dismiss the resisting a public officer charge and that defendant's trial counsel's failure to move to suppress the cocaine deprived defendant of effective assistance of counsel. After careful consideration, we disagree.
    Defendant first contends that the trial court erred in denying his motion to dismiss the resisting a public officer charge. Defendant argues that police officers did not have reasonable suspicion to stop and search him and that his subsequent arrest was illegal. Defendant further argues that he is allowed to flee from an unlawful arrest. We are not persuaded.
    “The Fourth Amendment to the Constitution of the United States and Section 20 of Article I of the North Carolina Constitution prohibits unreasonable searches and seizures.” State v. Sanchez, 147 N.C. App. 619, 623, 556 S.E.2d 602, 606 (2001), disc. review denied, 355 N.C. 220, 560 S.E.2d 358 (2002). This also applies to “seizures of the person, including brief investigatory detentions.” State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69-70 (1994).
    “[I]n order to detain an individual, the police must have a reasonable suspicion of criminal activity based upon known and objective facts.” State v. Lynch, 94 N.C. App. 330, 333, 380 S.E.2d 397, 399 (1989). “When an officer observes conduct which leads him reasonably to believe that criminal conduct may be afoot, he may stop the suspicious person to make reasonable inquiries.” State v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998). The trial court must consider the totality of the circumstances in determining whether reasonable suspicion exists. State v. Kincaid, 147 N.C. App. 94, 97, 555 S.E.2d 294, 298 (2001).
        The 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 “unparticularized suspicion or hunch.”

Watkins, 337 N.C. at 441-42, 446 S.E.2d at 70 (citations omitted). “An investigatory stop does not constitute an unreasonable seizure nor violate an individual's Constitutional rights if: the officers' actions are both 'justified at the inception, and . . . reasonably related in scope to the circumstances which justified the interference in the first place.'” State v. Swift, 105 N.C. App. 550, 554-55, 414 S.E.2d 65, 68 (1992) (citations omitted). The following factors can be considered in determining whether an officer had reasonable suspicion to perform an investigatory stop: activity at an unusual hour, Watkins, 337 N.C. at 442, 446 S.E.2dat 70; nervousness of a person, State v. McClendon, 350 N.C. 630, 638, 517 S.E.2d 128, 134 (1999); location in a high crime area, Illinois v. Wardlow, 528 U.S. 119, 124, 145 L. Ed. 2d 570, 576 (2000), and unprovoked flight, id. at 125, 145 L. Ed. 2d at 577.
    Here, we conclude that Officer Chipman possessed reasonable suspicion to justify an investigatory stop of defendant. At the time of the arrest, Officer Chipman had worked for the Charlotte- Mecklenburg Police Department for approximately nine years. During that time, Officer Chipman attended several “drug schools” which included drug interdiction and drug identification training. Officer Chipman had been involved in approximately 150 drug arrests and had performed surveillance operations. Officer Chipman testified that the Charlotte-Mecklenburg Police Department had received complaints regarding drug activity at Almay Court for two to three months prior to 23 August 2001, including some received the week of 23 August 2001. Officer Chipman further testified that at approximately 12:30 a.m. defendant was standing in the parking lot along with five other people approximately fifteen to twenty feet away and that there was no one else out on the street except on that block. When the marked police vehicles entered Almay Court, Officer Chipman saw defendant immediately began to run away from the parking lot. Based on the totality of the circumstances, Officer Chipman possessed reasonable suspicion to perform an investigatory stop of defendant.
    Here, the indictment charging defendant with resisting a public officer states that:        [O]n or about the 23rd day of August, 2000, in Mecklenburg County, [defendant] did unlawfully and wilfully resist, delay, and obstruct [Officer] Chipman, a public officer holding the office of Charlott-Mecklenburg [sic] Police Officer, by running from the officer. At the time, the officer was discharging a duty of the office, to wit: investigating drug activity.

    G.S. § 14-223 (2001) states that “[i]f any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.” “The conduct proscribed under G.S. [§] 14-223 is not limited to resisting an arrest but includes any resistance, delay, or obstruction of an officer in the discharge of his duties.” Lynch, 94 N.C. App. at 332, 380 S.E.2d at 398. “Flight from a lawful investigatory stop 'may provide probable cause to arrest an individual for violation of G.S. [§] 14-223.'” Swift, 105 N.C. App. at 554, 414 S.E.2d at 68 (citation omitted).
    Here, defendant continued to flee after being ordered to stop by Officer Chipman. After Officer Chipman grabbed hold of defendant at the fence, defendant then “jerked” free of Officer Chipman and ran away again. Officer Chipman had to “tackle” defendant to stop him. When ruling on a motion to dismiss, the trial court must view all the evidence in the light most favorable to the State. Lynch, 94 N.C. App. at 334, 380 S.E.2d at 399. This continued flight by defendant after being ordered to stop and being prevented from climbing a fence provided probable cause to arrest defendant for violating G.S. § 14-223. See Swift, 105 N.C. App. at554, 414 S.E.2d at 68; Lynch, 94 N.C. App. at 334, 380 S.E.2d at 399. Accordingly, the trial court did not err in denying defendant's motion to dismiss.
    Defendant next contends that his trial counsel's failure to move to suppress the evidence obtained as a result of his arrest constitutes ineffective assistance of counsel. We do not agree.
    “A defendant's right to counsel includes the right to effective assistance of counsel.” State v. Grooms, 353 N.C. 50, 64, 540 S.E.2d 713, 722 (2000), cert. denied, 534 U.S. 838, 151 L. Ed. 2d 54 (2001). Defendant must satisfy a two-prong test to prove ineffective assistance of counsel. State v. Gainey, 355 N.C. 73, 112, 558 S.E.2d 463, 488, cert. denied, __ U.S. __, 154 L. Ed. 2d 165 (2002). “First, he must show that counsel's performance fell below an objective standard of reasonableness. Second, once defendant satisfies the first prong, he must show that the error committed was so serious that a reasonable probability exists that the trial result would have been different.” Id. (citations omitted).
    Here, defendant's trial counsel did not move to suppress the evidence obtained as a result of defendant's arrest. Because we have concluded that defendant's arrest was legal, the police were entitled to search defendant incident to that arrest. Even if we assume that defendant's trial counsel's performance was deficient, there is no reasonable probability that the outcome would be different had trial counsel moved to suppress.
    Defendant received a fair trial free from prejudicial error.    No error.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

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