An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
NORTH CAROLINA COURT OF APPEALS
2 November 2010
STATE OF NORTH CAROLINA
Nos. 07 CRS 60136, 75096
ANTOINE JARROD WATKINS
Appeal by defendant from judgment entered 2 November 2009 by
Judge Ripley E. Rand in Wake County Superior Court.
Heard in the
Court of Appeals 25 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General
Stanley G. Abrams, for the State.
James H. Monroe for defendant-appellant.
MARTIN, Chief Judge.
Defendant appeals from the judgment entered upon his plea of
guilty to possession of cocaine and to having attained habitual
Defendant argues that one of the findings of fact
contained in the trial court’s order denying his motion to suppress
is not supported by the evidence, and that the remaining findings
of fact do not support the trial court’s conclusion that officers
had a reasonable suspicion to seize him.
At about 1:00 a.m. on 24 August 2007, defendant was sitting in
the driver’s seat of his parked pickup truck in the parking lot of
a Raleigh convenience store.
Officers Brent Howard and S.R. Best,
-2as well as several other officers, were patrolling the area in an
unmarked white van.
Officer Howard had substantial experience
testified that it was known as a “high drug” area.
The store was
closed, but the chain that normally blocked the entrance to the
parking lot had been removed.
A “no trespassing” sign was posted
on the store’s door.
When the officers noticed defendant in the driver’s seat of
the truck parked at the closed convenience store, they pulled into
the parking lot and parked behind the truck.
Three officers got
out of the van, and defendant got out of the truck and began
quickly walking away from the officers.
Officer Best said, “Hey,
Let me talk to you for a second.”
At that point,
defendant put an object in his mouth with his right hand and began
to drink water.
Both Officer Howard and Officer Best, based on
their experience in drug interdiction, believed that defendant’s
actions were consistent with someone trying to conceal drugs by
suspects attempt to conceal drugs in this manner “probably a
After defendant placed the object in his mouth and began to
drink the water, Officer Best said, “Police, stop,” but defendant
continued to walk away.
The officers caught up to defendant and
detained him by grabbing him by his arms.
Defendant began to spit
the water out of his mouth, and the officers observed a small,
plastic bag that appeared to contain cocaine in the puddle of water
-3that defendant spit out of his mouth.
After they confirmed that
Later, defendant admitted that he was swallowing
narcotics, but claimed that the drug was marijuana rather than
On 16 October 2009, defendant filed a written motion to
suppress any evidence obtained as a result of the 24 August 2007
Defendant claimed that officers lacked a reasonable
suspicion that he was involved in any illegal activity at the time
they seized him.
The matter came on for a hearing on 2 November
At the suppression hearing, the State offered testimony from
Officer Best and Officer Howard.
Officer Best was cross-examined
on the issue of whether there were “no trespassing signs” posted at
the convenience store:
Q: I believe you testified in response to Mr.
Wilson’s questions you weren’t sure if the no
trespassing sign was up there as of August of
Department’s prepared sign. To my knowledge
there have always been signs there.
assigned as a beat officer there as beat 2402
a number of years before I was corporal.
There have always been no trespassing signs on
the property. Sometimes the ones on the gates
are removed, but the building has always had a
no trespassing sign.
At the conclusion of the hearing, the trial court announced in open
court that it had denied the motion to suppress, and on 29 December
2009, the trial court entered a written order denying defendant’s
motion to suppress.
In its written order, the trial court found
-4that “[p]rior to August 24, 2007, Officer Best had seen a ‘No
Trespassing’ sign posted outside the store on several occasions and
believed the sign to have been there and visible on August 24,
The trial court concluded that, based on the totality of
defendant was engaged in criminal activity when they seized him.
Following the trial court’s oral denial of his motion to
suppress, defendant pled guilty to possession of cocaine and to
having attained habitual felon status.
In return for defendant’s
plea, the State agreed to a mitigated-range sentence of 80 to 105
Defendant preserved his right to appeal the
denial of his motion to suppress as a condition of his plea.
trial court imposed a mitigated-range term of 80 to 105 months
conclusion of the plea hearing.
We address defendant’s two arguments on appeal together,
because they are both related to the denial of his motion to
Defendant contends that the trial court’s finding of
fact number six, specifically that Officer Best observed a “no
trespassing” sign at the store, is not supported by the evidence,
and that the remaining findings of fact do not support the trial
court’s conclusion that the officers had a reasonable suspicion to
“‘The scope of appellate review of an order [concerning
suppression of evidence] is strictly limited to determining whether
the trial judge’s underlying findings of fact are supported by
-5competent evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the
judge’s ultimate conclusions of law.’”
State v. Bell, 156 N.C.
App. 350, 353, 576 S.E.2d 695, 697 (2003)(quoting State v. Cooke,
306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)(citations omitted)).
“Indeed, an appellate court accords great deference to the
trial court in this respect because it is entrusted with the duty
to hear testimony, weigh and resolve any conflicts in the evidence,
find the facts, and, then based upon those findings, render a legal
constitutional violation of some kind has occurred.”
conclusions of law are supported by its factual findings, we will
not disturb those conclusions on appeal.”
State v. Pickard, 178
N.C. App. 330, 333-34, 631 S.E.2d 203, 206 (citations omitted),
appeal dismissed and disc. review denied, 361 N.C. 177, 640 S.E.2d
Here, we hold that Officer Best’s testimony supports the trial
court’s finding that Officer Best saw a “no trespassing” sign
posted at the store both on, and prior to, 24 August 2007.
trespassing” sign posted at the convenience store on 24 August
2007, Officer Best plainly stated, “[t]o my knowledge there have
always been signs there.
I was assigned as a beat officer there as
beat 2402 a number of years before I was corporal.
always been no trespassing signs on the property.
-6ones on the gates are removed, but the building has always had a no
Officer Best’s testimony thus supports the
trial court’s finding that Officer Best observed a “no trespassing”
sign at the store.
Even assuming, arguendo, that the finding regarding the “no
trespassing” sign is not supported by the evidence, we conclude
that the trial court’s remaining findings of fact support its
conclusion that officers had a reasonable suspicion to seize
defendant, because the seizure did not rely solely on suspicion
that defendant had committed the offense of trespassing.
The trial court’s remaining unchallenged findings of fact are
“‘presumed to be correct’” by this Court on appeal.
N.C. App. at 334, 631 S.E.2d at 206 (quoting Inspirational Network,
Inc. v. Combs, 131 N.C. App. 231, 235, 506 S.E.2d 754, 758 (1998)).
“[T]he trial court’s conclusions of law must be legally correct,
reflecting a correct application of applicable legal principles to
the facts found.”
State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d
350, 357 (1997)(citing State v. Payne, 327 N.C. 194, 208-09, 394
S.E.2d 158, 166 (1990), cert. denied, 498 U.S. 1092, 112 L. Ed. 2d
An individual is seized by a police officer and is thus within
the protection of the Fourth Amendment when the officer’s conduct
“would ‘have communicated to a reasonable person that he was not at
liberty to ignore the police presence and go about his business.’”
Florida v. Bostick, 501 U.S. 429, 437, 115 L. Ed. 2d 389, 400
(1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 100 L.
-7Ed. 2d 565, 569 (1988)).
In reviewing whether a particular police
encounter constitutes a seizure, a reviewing court must consider
the totality of the circumstances.
“‘No one is protected by the Constitution against the mere
Streeter, 283 N.C. 203, 208, 195 S.E.2d 502, 506 (1973) (quoting
“[P]olice officers may approach individuals in public to ask them
questions and even request consent to search their belongings, so
long as a reasonable person would understand that he or she could
refuse to cooperate.”
State v. Brooks, 337 N.C. 132, 142, 446
S.E.2d 579, 585-86 (1994) (citations omitted).
Here, applying the totality of the circumstances approach, we
conclude that the officers did not seize defendant, within the
meaning of the Fourth Amendment, until they ordered him to stop and
physically detained him.
Initially, when the officers approached
defendant’s truck, he began to walk away.
Best asked defendant, “Hey, hold up.
At that point, Officer
Let me talk to you for a
second.” Officers had in no way physically restrained defendant or
commanded him to stop, and defendant was free to continue to walk
away from the officers, which he did.
Accordingly, the officers
had not yet seized defendant.
As defendant continued to walk away from the officers, they
saw him put his right hand up to his mouth and quickly drink water.
defendant had been ordered to stop and physically restrained by
officers, was he seized for Fourth Amendment purposes, and officers
initiated an investigatory stop.
“An investigatory stop must be justified by ‘a reasonable
involved in criminal activity.’”
State v. Watkins, 337 N.C. 437,
441, 446 S.E.2d 67, 70 (1994) (quoting Brown v. Texas, 443 U.S. 47,
51, 61 L. Ed. 2d 357, 362 (1979)).
“Terry v. Ohio and its progeny
investigatory stop, an officer must have reasonable and articulable
suspicion of criminal activity.”
State v. Hughes, 353 N.C. 200,
206-07, 539 S.E.2d 625, 630 (2000) (citing Terry v. Ohio, 392 U.S.
1, 20 L. Ed. 2d 889 (1968)).
Our Supreme Court has held:
A court must consider “the totality of the
determining whether a reasonable suspicion to
make an investigatory stop exists.
Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621,
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. Terry, 392 U.S. at 21-22, 20 L. Ed.
2d at 906; State v. Thompson, 296 N.C. 703,
706, 252 S.E.2d 776, 779, cert. denied, 444
U.S. 907, 62 L. Ed. 2d 143 (1979).
Watkins, 337 N.C. at 441-42, 446 S.E.2d at 70.
Here, we hold that the evidence and the trial court’s findings
of fact support the trial court’s conclusion that officers had a
Officers observed defendant sitting alone in his truck
at 1:00 a.m., parked in the parking lot of a closed convenience
store in an area known for drug activity. When officers approached
defendant, he walked away from them.
After officers tried to
engage defendant in conversation, they observed him attempt to
swallow items in a manner that officers recognized, based on their
experience in drug interdiction, as a means drug suspects employed
to conceal evidence.
At this point, a reasonable officer would
have had reason to believe that criminal activity was afoot, and to
Only after that point did officers discover the
Accordingly, we hold that the trial court properly denied
defendant’s motion to suppress the evidence discovered as a result
of his seizure, and we affirm the judgment.
Judges ELMORE and JACKSON concur.
Report per Rule 30(e).