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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1207


Filed: 5 June 2007


v .                         Forsyth County
                            Nos. 05 CRS 58613
                                05 CRS 26448

    Appeal by defendant from judgment entered 10 April 2006 by Judge Edwin G. Wilson, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 9 May 2007.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Scott T. Stroud, for the State.

    M. Alexander Charns, for defendant-appellant.

    JACKSON, Judge.

    On 13 July 2005, at approximately 1:30 a.m., Officer B.P. Dawson (“Officer Dawson”) of the Winston-Salem Police Department responded to a report of an alarm call at the Mount Zion Church (“the church”). Officer Dawson, who reported to the dispatcher that he would respond as back-up, was less than a block away from the church at the time of the call and responded within thirty seconds. Meanwhile, Officer Merritt, who was the primary officer dispatched, confirmed that there had been a break-in at the church.
    While establishing a perimeter around the area of the church, Officer Dawson observed Carl D. Hogg (“defendant”) and another man walking at a quick pace in the opposite direction of the church. The men were approximately 150 to 200 yards away from the church,and Officer Dawson did not observe anyone else in the area. Because of the time of night and because they were the only people in close proximity to the church, Officer Dawson pulled his patrol vehicle alongside both men and asked them to stop. Defendant and the other man appeared to ignore Officer Dawson's request and continued to walk away. Officer Dawson pulled up closer to the men and again asked, “[D]o you mind if I stop and talk to you for a second[?]” Defendant and the other man turned around, and defendant responded, “[W]ho us?” Officer Dawson stated that he wished to speak with them, and after reporting his location to the dispatcher, Officer Dawson exited his patrol vehicle. Officer Dawson informed the men that he had received word of an alarm and asked them if they had heard anything. He then asked both men for their names, and defendant, though unable to produce identification, verbally provided his name, birth date, and address.
    After running a background check, Officer Dawson discovered that defendant was wanted for a probation violation. Thereafter, Officer Dawson placed defendant under arrest and conducted a search of defendant's person , whereupon Officer Dawson discovered cocaine in defendant's possession. Defendant was not placed in handcuffs prior to his arrest , and Officer Dawson testified that twenty minutes elapsed from the time defendant initially was stopped until the time he was arrested ; defendant, in turn, testified that it lasted “at least about a [sic] hour.”    On 22 August 2005, defendant was indicted for possession of cocaine and as an habitual felon. Defendant filed a motion to suppress , which the trial court denied on 10 April 2006. Defendant pleaded guilty to possession of cocaine and stipulated to the status of habitual felon. The trial court found defendant had a prior record level of IV and sentenced defendant to a minimum term of 101 months and a maximum term of 131 months imprisonment. Defendant gave notice of appeal in open court of the denial of his motion to suppress.
    On appeal, defendant contends that the trial court erred by not granting defendant's motion to suppress the cocaine on the grounds that the cocaine was discovered as a result of an unconstitutional search or seizure. We disagree.
    The standard of review from a motion to suppress is well- established:
        Review of a trial court's denial of a motion to suppress is limited to a determination whether the trial court's findings of fact are supported by competent evidence and whether those findings support the trial court's ultimate conclusions of law. The trial court's findings are conclusive if supported by competent evidence, even if the evidence is conflicting.

State v. Sutton, 167 N.C. App. 242, 244, 605 S.E.2d 483, 484.85 (2004) (internal citation omitted), appeal dismissed and disc. rev. denied, 359 N.C. 326, 611 S.E.2d 847 (2005). “[A] trial court's conclusions of law as to whether law enforcement had reasonable suspicion or probable cause to detain a defendant are reviewable denovo.” State v. Baublitz, 172 N.C. App. 801, 806, 616 S.E.2d 615, 619 (2005).
    Defendant contends that he was seized when Officer Dawson initiated the encounter on 13 July 2005 and that this seizure was not based upon a reasonable suspicion as required by the Fourth Amendment. However, as our Supreme Court has explained, “'[l]aw enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.'” State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13 (2005) (alteration in original) (quoting United States v. Drayton, 536 U.S. 194, 200, 153 L. Ed. 2d 242, 251 (2002)), cert. denied, __ U.S. __, 164 L. Ed. 2d 523 (2006). Rather, “[s]eizure of a person within the meaning of the Fourth Amendment occurs 'only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'” Id. (quoting United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509 (1980)). In other words,
        a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. . . . Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some wayrestrained the liberty of a citizen may we conclude that a 'seizure' has occurred.

Id. (internal quotation marks and citations omitted) (emphasis added).
    In the case sub judice, defendant acknowledged during the hearing on his motion to suppress that the encounter was consensual. Specifically, the following colloquy took place during direct examination:
        DEFENSE COUNSEL: Did you feel as though you were able to leave?

        DEFENDANT: Well, we had to wait for information.

        DEFENSE COUNSEL: But did you feel as though you were able to leave?

        DEFENDANT: I could have but I stayed . . . .

(Emphasis added). Therefore, by defendant's own admission, Officer Dawson's investigatory stop was consensual, and when an encounter is consensual, “no reasonable suspicion is required” for the stop. State v. West, 119 N.C. App. 562, 566, 459 S.E.2d 55, 57.58 (quoting Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398 (1991)), appeal dismissed and disc. rev. denied, 341 N.C. 656, 462 S.E.2d 524 (1995).
    The trial court, however, did not base its ruling on the fact that defendant's encounter with Officer Dawson was consensual and thus not subject to Fourth Amendment scrutiny. Rather, the court stated, “I will find that the police officer did have reasonable articulable suspicion for a brief investigatory stop and the motion to suppress is denied.” Nevertheless, because the trial courtreached the correct result in denying defendant's motion to suppress, the ruling will not be disturbed even though the court may not have based its ruling on the correct reason. See State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650 (“A correct decision of a lower court will not be disturbed on review simply because an insufficient or superfluous reason is assigned. The question for review is whether the ruling of the trial court was correct and not whether the reason given therefor[e] is sound or tenable.”), cert. denied, 484 U.S. 916, 98 L. Ed.2d 224 (1987).
    No Error.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

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