Filed: 18 September 2007
Search and Seizure_frisk of black male_mere generalized suspicion
The trial court erred by denying defendant's motion to suppress evidence from a frisk
which led to a conviction for aiding and abetting an armed robbery of a convenience store. It
cannot be concluded, under all the circumstances, that the officer had more than a hunch or
generalized suspicion; upholding the decision below would be holding, in effect, that the police
could stop any black male found within a quarter of a mile of a robbery in the time immediately
after a robbery committed by a black male.
Appeal by defendant from judgment entered 8 December 2005 by
Judge Donald M. Jacobs in Wake County Superior Court. Heard in
the Court of Appeals 9 May 2007.
Attorney General Roy Cooper, by Assistant Attorney General
David L. Elliott, for the State.
Brannon Strickland, PLLC, by Anthony M. Brannon, for
Defendant Russell Antoine Cooper appeals from his conviction
of robbery with a firearm. His sole argument on appeal is that
the trial court erred in denying his motion to suppress evidence
seized from his person during a warrantless search. Defendant
was stopped and frisked by a Raleigh police officer shortly after
an armed robbery at a nearby convenience store. Defendant
contends that the officer lacked reasonable articulable suspicion
of criminal activity, and, therefore, the stop and frisk did not
fall within Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S.
Ct. 1868 (1968). More specifically, defendant asserts: "A black man walking
in the vicinity of a store robbery is not suspicious behavior,
without something else." Because we agree that the totality of
the circumstances known to the officer could, at best, only give
rise to a generalized suspicion of criminal activity, the stop
and frisk in this case was not justified by Terry. Accordingly,
we hold that the trial court erred in denying the motion to
Standard of Review
In reviewing the denial of a motion to suppress, we
determine whether the trial court's findings of fact are
supported by competent evidence and whether those findings in
turn support the trial court's conclusions of law. State v.
, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Findings
of fact are "conclusive on appeal if supported by competent
evidence, even if the evidence is conflicting." State v. Eason
336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994), cert. denied
U.S. 1096, 130 L. Ed. 2d 661, 115 S. Ct. 764 (1995). Defendant,
in this case, does not challenge the findings of fact on appeal,
and they are, therefore, binding. State v. Carter
, 184 N.C. App.
706, 711, 646 S.E.2d 846, 850 (2007) ("Here, defendant has not
assigned error to any of the findings of fact in the trial
court's ruling, and, consequently, those findings are binding on
The trial court made the following findings of fact
following the suppression hearing. In the late afternoon on 17
April 2005, Officer A.B. Smith, a Raleigh police officer, was
traveling south on Capital Boulevard when he heard a report over
his radio that an armed robbery had taken place at a convenience
store in Mini City. The robber was described as a black male.
Officer Smith also heard over his radio that another officer had
seen a black male walking on Lake Ridge Drive shortly after the
Officer Smith turned onto Deanna Drive to begin a sweep of
the area in hopes of locating an individual meeting the
description of the robber. The robber had reportedly left the
rear of the store, heading in the general direction of the area
that Officer Smith was searching. The officer knew that there
was a path running approximately from the store through woods to
Lake Ridge Drive. Officer Smith approached the intersection of
Deanna Drive and Lake Ridge Drive approximately five minutes
after the robbery.
At that time, Officer Smith saw a black male near where the
path exited onto Lake Ridge Drive. From the time Officer Smith
turned off Capital Boulevard until this point, the officer had
seen no one else. He drove close to the black male _ who was
defendant _ and motioned to him to approach the car. In
response, defendant walked over to the car. For the purpose of
obtaining information relating to the robbery, Officer Smith
asked defendant to place his hands on the top of the patrol car. After defendant did so, Officer Smith began to frisk defendant
and found a concealed handgun. He then arrested defendant for
carrying a concealed weapon. The frisk took place five to 10
minutes after the robbery and a quarter of a mile away from the
location of the robbery.
Although the trial court made no further findings of fact,
the State's evidence tended to show the following. After
arresting defendant, Officer Smith took defendant to the Mini
City convenience store for a "show up." The cashier did not
recognize defendant as the robber. Following the "show up,"
defendant was taken to the Raleigh Police Department's District
23 Substation for questioning. Defendant ultimately confessed
that he had met Markell Baltimore in the woods and lent Baltimore
his gun to commit the Mini City convenience store robbery. After
Baltimore robbed the store, he again met defendant in the woods.
Baltimore returned the gun to defendant and gave him some of the
money he robbed from the store.
On 2 May 2005, defendant was indicted with aiding and
abetting Baltimore's armed robbery. Defendant was tried on 5
December 2005 in Wake County Superior Court. During the trial,
defendant moved to suppress evidence seized from his person
during the stop and frisk at the intersection of Lake Ridge Drive
and Deanna Drive. The trial court denied defendant's motion,
concluding that Officer Smith stopped defendant "based on
articulable, reasonable suspicion" and that the frisk occurred
for the officer's safety. The jury found defendant guilty, andthe trial court sentenced him to a presumptive range term of 57
to 78 months imprisonment. Defendant timely appealed to this
Defendant's sole argument on appeal is that the trial court
erred in denying his motion to suppress. Since defendant does
not challenge the trial court's findings of fact, the question
before this Court is whether those findings support the trial
court's conclusion that Officer Smith had a reasonable
articulable suspicion sufficient to justify an investigatory stop
and frisk under Terry
As this Court recently stated, Terry
established that "[a]
police officer may effect a brief investigatory seizure of an
individual where the officer has reasonable, articulable
suspicion that a crime may be underway." State v. Barnard
N.C. App. 25, 29, 645 S.E.2d 780, 783 (2007). Whether an officer
had sufficient reasonable suspicion to make an investigatory stop
is determined based on the totality of the circumstances. State
, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994). In
conducting this review, we must bear in mind that:
[t]he 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
at 441-42, 446 S.E.2d at 70 (internal citations omitted)
(quoting United States v. Sokolow
, 490 U.S. 1, 7, 104 L. Ed. 2d
1, 10, 109 S. Ct. 1581, 1585 (1989)).
We note that neither defendant's brief nor the State's brief
are particularly helpful since both cite only to cases involving
generalized discussions of the standards rather than to cases
applying those standards to circumstances similar to those
involved in this case. We start our discussion with State v.
, 106 N.C. App. 165, 415 S.E.2d 782 (1992), frequently
cited by defendants because this Court concluded, in that case,
that the officer lacked reasonable articulable suspicion.
, this Court addressed a stop and frisk that
occurred at 12:10 a.m. in an area in which drugs were sold on a
daily basis. During the frisk, the defendant was found to have
crack cocaine on his person. This Court set out the following
In the case now before us, at the time
Officer Williams first observed defendant and
his companion, they were merely standing in
an open area between two apartment buildings.
At this point, they were just watching the
group of officers standing on the street and
talking. The officer observed no overt act
by defendant at this time nor any contact
between defendant and his companion. Next,
the officer observed the two men walk
two buildings, out of the open area, toward
Rugby Street and then begin walking
public sidewalk in front of the apartments.
at 170, 415 S.E.2d at 785. The Court concluded, based on
these facts, that the officer who stopped and searched the
defendant "had only a generalized suspicion that the defendantwas engaged in criminal activity, based upon the time, place, and
the officer's knowledge that defendant was unfamiliar to the
at 171, 415 S.E.2d at 785.
The Court further observed:
Should these factors be found sufficient to
justify the seizure of this defendant, such
factors could obviously justify the seizure
of innocent citizens unfamiliar to the
observing officer, who, late at night, happen
to be seen standing in an open area of a
housing project or walking down a public
sidewalk in a "high drug area." This would
not be reasonable.
, 415 S.E.2d at 785-86. The Court, therefore, concluded:
Considering the facts relied upon by the
officer, together with the rational
inferences which the officer was entitled to
draw therefrom, we conclude they were
inadequate to support the trial court's
conclusion that Officer Williams had a
reasonable articulable suspicion that
defendant was engaged in criminal activity.
Were we to conclude otherwise, we would
invite intrusions upon constitutionally
guaranteed rights based on nothing more
substantial than inarticulate hunches which
the Fourth Amendment is specifically designed
to protect against.
, 415 S.E.2d at 786 (emphasis added).
This Court subsequently relied upon Fleming
in State v.
, 124 N.C. App. 84, 478 S.E.2d 789 (1996), in which a Terry
search had also revealed drugs in the defendant's possession. In
, however, officers had actually received "an anonymous tip
that several men were dealing drugs in the breezeway in which the
defendant was sitting." Id.
at 90, 478 S.E.2d at 792. When
officers arrived at the location, they found the defendant
sitting on the steps of the breezeway, which officers knew wasoutside his apartment building; he did not leave, but rather
cooperated generally with the officers. Id.
The Court observed
that "[o]ther than being nervous, [the defendant] exhibited no
other behavior that would indicate that he was engaged in
criminal activity." Id.
Although this Court acknowledged that the anonymous tip
, this Court concluded:
In light of the totality of
circumstances, we conclude that this pat-down
search was not justified. The anonymous tip
referred simply to several black men located
in the apartment complex breezeway; it was
not specific to defendant. Furthermore,
although defendant was in an area known for
drug activity, this area was also his
residence, a fact known to the officer prior
to the search. When questioned, defendant
was cooperative and did not flee the scene.
He was wearing a jersey and shorts neither of
which could easily conceal a weapon. In
fact, when asked if he had a weapon,
defendant lifted his shirt to show that he
did not. Defendant also did not make any
sudden or suspicious gestures which would
suggest that he had a weapon.
at 90-91, 478 S.E.2d at 793. The Court, therefore, concluded
that "[t]his pat-down search was an unreasonable intrusion upon
defendant's Fourth Amendment right to personal security and
privacy," and "[t]he trial court erred in denying defendant's
motion to suppress the evidence thereby obtained." Id.
478 S.E.2d at 793.
Most recently, this Court found Fleming
analogous in In re
, 176 N.C. App. 613, 627 S.E.2d 239 (2006). In J.L.B.M.
a dispatch reported a "suspicious person described as a Hispanic
at 620, 627 S.E.2d at 244. The description includedno information regarding age, height, weight, other physical
characteristics, or clothing. Id.
The officer, who stopped and
frisked the juvenile, "did not observe the juvenile committing
any criminal acts, nor had there been other reports of any
criminal activity in the area that day." Id.
at 621, 627 S.E.2d
at 244. In addition, the juvenile was stopped at approximately
6:00 p.m. on a summer evening in front of an open business. Id.
The Court reasoned: "Even viewed through the eyes of a
reasonable, cautious officer, the facts relied on by Officer
Henderson are inadequate to show more than an unparticularized
suspicion or hunch that the juvenile was involved in criminal
at 621-22, 627 S.E.2d at 245 (internal citation
omitted). The Court stated further:
We hold that in the present case, like
, the stop was unjustified.
Officer Henderson relied solely on the
dispatch that there was a suspicious person
at the Exxon gas station, that the juvenile
matched the "Hispanic male" description of
the suspicious person, that the juvenile was
wearing baggy clothes, and that the juvenile
chose to walk away from the patrol car.
Officer Henderson was not aware of any
graffiti or property damage before he stopped
the juvenile, and he testified that he
noticed the bulge in the juvenile's pocket
after he stopped the juvenile.
at 622, 627 S.E.2d at 245. As a result, the Court held that
the trial court erred in denying the juvenile's motion to
suggested, some cases have found reasonable
articulable suspicion for a stop and frisk when there was a
report that a crime occurred nearby and circumstances relating tothe defendant matched the report. In State v. Thompson
, 296 N.C.
703, 707, 252 S.E.2d 776, 779, cert. denied
, 444 U.S. 907, 62 L.
Ed. 2d 143, 100 S. Ct. 220 (1979), our Supreme Court held that
circumstances supporting reasonable suspicion for an
investigatory stop of a van included the officers' knowledge of
recent break-ins in the vicinity involving a van; the van's being
parked at 12:30 a.m. in a public parking area in an isolated part
of New Hanover County; and the occupants' engaging in
considerable activity around the van. Similarly, in State v.
, 87 N.C. App. 261, 264, 360 S.E.2d 500, 502 (1987), this
Court affirmed the denial of a motion to suppress when (1)
officers received a report of a burglary involving four black
males; (2) 20 minutes after the burglary, they spotted a car
containing four black males within 200 to 400 yards of the site
of the burglary; and (3) some of the stolen property had been
found in a field between the burglarized home and the car's
location. See also In re Whitley
, 122 N.C. App. 290, 292, 468
S.E.2d 610, 612 (reasonable suspicion existed when police
received telephone call reporting that two black males were
selling drugs on Merrick Street, police found defendant and
another black male at that location, and defendant exhibited
"nervous body reflexes"), disc. review denied
, 344 N.C. 437, 476
S.E.2d 132 (1996).
Although, in this case, Officer Smith had received a report
of an armed robbery about a quarter of a mile away, we believe
this case more closely resembles Fleming
, and J.B.L.M.
, and Whitley
. Indeed, this case is
materially indistinguishable from Rhyne
The report indicated only that a black male had committed
the armed robbery _ a description that fits a substantial
percentage of our population. There was no further description
as to age, physical characteristics, or clothing. In contrast,
, the report specified four black males, while in
, the call had referred to two black males at a particular
In this case, defendant was simply walking down a public
street in April at 6:30 p.m. Officer Smith did not observe
defendant engaging in any suspicious behavior or mannerisms, and
defendant cooperated fully. Moreover, defendant did not appear
nervous when approached by Officer Smith. In Thompson
, the parties were stopped late at night. In
, the van was in a suspicious location and the parties
were engaged in suspicious behavior. In Whitley
, the defendant
was obviously nervous.
The State relies significantly on the fact that there was a
path in defendant's vicinity that led to the area near the
convenience store. Officer Smith, however, had no information
suggesting that defendant had been on that path or any facts that
could be construed as indicating defendant was coming from that
path. Further, Officer Smith could not even say that the robber
had fled the store in the general direction of the path. By way
of contrast, in Williams
, before stopping the four men, officershad found some of the stolen goods in a field that lay directly
between the robbed house and where the men were found in their
In this case, we cannot conclude, under all the
circumstances, that Officer Smith had more than a hunch or a
generalized suspicion. If we were to uphold the decision below,
then we would, in effect, be holding that police, in the time
frame immediately following a robbery committed by a black male,
could stop any black male found within a quarter of a mile of the
robbery. As this Court stated in Fleming
, "[t]his would not be
reasonable." 106 N.C. App. at 171, 415 S.E.2d at 786.
We, therefore, hold that the trial court erred in denying
defendant's motion to suppress the evidence obtained from his
person during the Terry
frisk. Although defendant recites the
law regarding the fruit of the poisonous tree, see State v. Pope
333 N.C. 106, 113-14, 423 S.E.2d 740, 744 (1992), he does not
specifically apply that doctrine to this case, but instead asks
the Court to "vacate the judgment against Mr. Cooper, reverse the
trial court's order denying the motion to suppress, and remand to
the trial court with instructions to grant the motion to suppress
and for further proceedings." We, therefore, do not address
whether the "fruit of the poisonous tree" doctrine requires
dismissal of the charge against defendant. We reverse the
judgment below and remand for further proceedings.
Reversed and remanded.
Judges HUNTER and ELMORE concur.
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