State v Johnson
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e . NO. COA10-1293 NORTH CAROLINA COURT OF APPEALS Filed: 2 August 2011 STATE OF NORTH CAROLINA v. Pitt County No. 09 CRS 60157 KERRY ALLEN JOHNSON Appeal by defendant from judgment entered 17 May 2010 by Judge W. Russell Duke, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 23 March 2011. Attorney General Roy Cooper, by Special General Daniel S. Johnson, for the State. Deputy Attorney James W. Carter for defendant-appellant. BRYANT, Judge. Because the police officer s initial encounter with defendant was consensual, no seizure was made; however, when the officer had specific, articulable facts that defendant was carrying a concealed weapon, he was permitted to frisk defendant to discover the weapon. Accordingly, we affirm the order of the -2trial court denying defendant s motion to suppress the weapon obtained. On 23 October 2009, at 9:40 p.m., a patrol officer with the Greenville Police Department received a dispatch that a female caller in MacGregor assistance. building Two Village black 910. As men the Apartments were caller requested standing entered near her approached and attempted to talk with her. described as having shoulder-length front building, of they She was frightened and requested that the police check things out. was the police One of the men dread locks, a red shirt, and possibly armed. The officer arrived at the apartment complex within five minutes. When he pulled his vehicle into the complex, he observed two African-American males walking in a direction away from his car. One had shoulder-length dreads and was wearing a red shirt. The officer asked the two men to come over to his patrol car. The officer explained that he had come to the scene in response to a call reporting a suspicious person ; they were in the described description of area; and the person one of them reported. matched Upon the request, physical the man wearing the red shirt provided an ID which identified him as Kerry A. Johnson, Jr., defendant. -3The officer asked defendant if he had any weapons; defendant responded that he had a gun in his waistband. Bowen secured whereupon handgun. and he defendant felt handcuffs distinct and feature of frisked a handle him, of a The officer removed an unloaded .22 caliber handgun arrested Defendant, the with Officer who defendant was a for carrying convicted felon a concealed on house weapon. arrest, was charged with possession of a firearm by a felon. On 18 February 2010, defendant filed a pre-trial motion to suppress the weapon seized. of a hearing on the On 17 May 2010, at the conclusion matter, the trial court orally denied defendant s motion (a written order was subsequently entered). Defendant entered into a plea agreement, pleading guilty to one count of possession of a firearm by a felon while specifically reserving suppress. his right to appeal the denial of his motion to On 17 May 2010, the trial court entered judgment in accordance with the plea agreement and sentenced defendant to an active term of 15 to 18 months in the custody of the North Carolina Department of Correction. Defendant appeals. ____________________________ On appeal, defendant contends that the trial court erred in denying his motion to suppress evidence obtained as a result of a warrantless search because the law enforcement officer lacked a reasonable, articulable suspicion of unlawful activity -4justifying the initial stop and seizure. Defendant further contends he was seized at the time Officer Bowmen asked to speak to him, and any evidence obtained as a result of the seizure was fruit of the poisonous tree. We disagree. In reviewing a trial court s order on a motion to suppress, this Court s review is limited to a determination of whether the court's findings are supported by competent evidence, even if the evidence is conflicting, and in turn, whether findings support the court s conclusions of law. those State v. Veazey, ___ N.C. App. ____, ____, 689 S.E.2d 530, 532 (2009) (citation omitted). Where, however, the trial court s findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal. State v. White, 184 N.C. App. 519, 523, 646 S.E.2d 609, 611 (2007) (citation omitted). The question for review is whether the ruling of the trial court was correct and not whether the reason given therefor is sound or tenable. State v. Bone, 354 N.C. 1, 8, 550 S.E.2d 482, 486 (2001) (citation omitted). No one is protected by the Constitution against the mere approach of police officers in a public place. State v. Brooks, 337 N.C. 132, 141, 446 S.E.2d 579, 585 (1994) (citation omitted). [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another -5public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398 (1991) (citation omitted). [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. Id. at 434, 115 L. Ed. 2d at 398 (internal citation and quotations omitted). In State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005), law enforcement was called to check on a suspicious individual who was sitting in a vehicle near a store about to close. at 659, 617 S.E.2d at 11. individual drove away. Id. When law enforcement arrived, the The reporting officer did not activate her blue lights or siren but followed the vehicle to a nearby gas station. Id. at 659-60, 617 S.E.2d at 11. When the defendant stopped and walked from his car, the officer, then approximately ten feet away, asked if he could speak with her. They spoke at the rear of the defendant s vehicle. Id. at 660, 617 defendant s S.E.2d at 11. The officer asked for the driver s license and motor vehicle registration. The defendant -6conceded that he did not have identification but gave his name and date of birth, and stated that the vehicle belonged to a friend, though he could not recall the friend s name. At this point [the officer] had not told [the] defendant he could not leave, and [the] defendant had consented to speak with her. [The officer] had not restrained [the] defendant s freedom to walk away. [T]he suspicion encounter [was] [was] consensual required. Id. at 663, and no 617 reasonable S.E.2d at (quoting Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398). 14 The officer asked the defendant to hold up and she would be back up with him after she called dispatch to check the status of his driver s license. Id. at 660, 617 S.E.2d at 11. The defendant was soon arrested for driving without an operator s license. Id. at 661, 617 S.E.2d at 12. On appeal, the defendant contended that he was seized in violation of his constitutional rights when the law enforcement officer detained him without a reasonable suspicion of criminal activity. Id. at 659, 617 S.E.2d at 11. Assuming arguendo that [the officer s] telling [the] defendant to hold up and she would be back up with him would have led a reasonable person to believe that under the circumstances he was not free to leave, we conclude that at that point [the officer] had a reasonable, articulable suspicion that defendant was engaged in criminal activity warranting further investigation. Id. at 663-64, 617 S.E.2d at 14. -7 [T]his Court has described those stops that can be made upon the basis of a investigatory stops. S.E.2d 438, 447 reasonable, articulable suspicion as State v. Styles, 362 N.C. 412, 427, 665 (2008) (citations omitted and emphasis suppressed). A court must consider the totality of the circumstances--the whole picture in determining whether a reasonable suspicion to make an investigatory stop exists. 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. State v. (internal Steen, 352 citations N.C. 227, omitted); 238, 536 compare, S.E.2d State v. 1, 8 (2000) Fleming, 106 N.C. App. 165, 170, 415 S.E.2d 782, 785 (1992) ( The officers never claimed to suspect [the] defendant of any specific misconduct, nor did they have any reason to believe defendant was armed. (citing Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357 (1979))). 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. If he reasonably believes that the person is armed and dangerous, the officer may frisk the person to discover a weapon or weapons. State v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998) (citing Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968)). -8Where a citizen comes forward to inform law enforcement of criminal activity, there exists strong indicia of reliability. State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991) ( The fact that [the citizen-informant] was named and identified as [the warrant law enforcement affidavit officer s] provided the informant magistrate in the with search enough information to permit him to determine that [the informant] was reliable. ). Here, a Department private to report citizen an called encounter the between Greenville herself Police and two African-American men standing outside of an apartment complex in the evening hours of 23 October 2009. She stated that she heard what she believed to be the clicking sound of a pistol, she requested that law enforcement investigate, and she provided her contact information to the dispatcher. Shortly thereafter, a Greenville police officer arrived at the apartment complex. trial court made the following unchallenged findings of fact: 6. [The officer] called out to the two males . . . in a manner that he assumed made it clear to the two males that he wished for them to stop and respond to his call and at that time the two males stopped and turned to approach [the officer]. [The officer] requested that the Defendant identify himself and asked the Defendant for an ID. [The officer] then explained to the Defendant why he was there and asked the Defendant if he, the Defendant, had any weapon on his person. The -9Because the compliance encounter would be lacked any indication compelled, as that defendant defendant s had not been restrained or told he could not leave, we hold the encounter was consensual, and reasonable suspicion was not necessary. Campbell, 359 N.C. at 663, 617 S.E.2d at 14. found that handgun when on his See The trial court questioned, defendant stated that he had a person. Based on the totality of the circumstances the caller s report that despite not seeing a weapon, she heard the clicking of a statement that handgun, specific, articulable he was carrying facts on a which pistol, and defendant s to the base officer a had reasonable suspicion that defendant was carrying a concealed weapon. The officer conducted a frisk and felt the distinct feature of a handle of a handgun. The handgun was removed and defendant was arrested for carrying a concealed weapon. Defendant s argument that the law enforcement officer lacked reasonable suspicion to justify defendant s seizure is overruled, and the trial court order denying defendant s motion to suppress evidence obtained as a result of the warrantless search is affirmed. 348 N.C. at 275, 498 S.E.2d at 600. Affirmed. Judges ELMORE and GEER concur. Report per Rule 30(e). See Pearson,
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
