STATE OF NORTH CAROLINA v. JOHN HEYWOOD FOX
No. 8128SC1367
COURT OF APPEALS OF NORTH CAROLINA
7 September 1982
58 N.C. App. 692
Even if an officer was improperly permitted to express his opinion in a hеaring on a motion to suppress that he had articulated his suspicions which warranted an investigatory stop of defendant, defendant was not prejudiced thereby where there was nothing in the record to rebut the presumption that incompetent evidence was disregarded by the trial judge.
2. Searches and Seizures § 12— investigatory stop of vehicle
An officer had an articulable and reasonable suspicion that defendant might be engaged in criminal activity so as to justify an investigatory stop of defendant‘s vehicle where the officer observed defendant at 12:50 a.m. driving slowly down a dead-end street of locked businessеs previously fraught with property crime; one of the businesses had been broken into that very night; defendant was dressed shabbily but drove a “real nice” 1981 Chevrolet; and although defendant drove within two feet of the officer, defendant did not stop to ask directions or otherwise communicate with the officer but appeared to avoid his gaze.
Judge BECTON dissenting.
APPEAL by defendant from Grist, Judge. Judgment entered 21 October 1981 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 7 June 1982.
Officer R. L. Bryant of the Charlotte Police Department on 1 August 1981, at approximately 12:50 a.m. observed a green 1981 Chevrolet moving south on North Tryon Street. The automobile turned left onto a dead end of Twenty-Seventh Street, where several padlocked businesses were located. Several break-ins had occurred in the area, and Officer Bryant had taken a report of a break-in from one of the businesses that evening. There was no residential housing on that part of the street.
Officer Bryant watched the Chevrolet move very slowly to a gate at the end of the street, stop, turn around, and procеed out of the dead end. Defendant‘s vehicle passed within two feet of Officer Bryant‘s patrol car, but defendant “cocked” his head away from the officer. Officer Bryant testified that he believed defеndant was avoiding eye contact, and that although he thought de
Defendant was indictеd for felonious possession of a stolen vehicle, and, preserving his right of appeal, pled guilty to the charge upon denial of his motion to suppress. He appeals from an order of imprisоnment.
Attorney General Edmisten, by Associate Attorney William H. Borden, for the State.
Ellis M. Bragg for defendant appellant.
MORRIS, Chief Judge.
[1] Defendant argues that the court erred by permitting Officer Bryant to testify at the pretrial hearing on defendant‘s motion to suppress that he “expressed an articulated basis” for stopping defendant, and that it was error to deny defendant‘s motion to suppress evidence obtained pursuant to the stop and detention.
The following exсhange took place on recross examination of Officer Bryant:
I did not arrest the defendant solely because of his appearance, that was not my sole basis. I took into consideration all of the things that I observed with respect to the defendant and the car he was in.
Q. It would be fair to say that based upon everything you observed about him you had a reasonable suspicion that he was engaged in some illegal activity at that time?
MR. BRAGG: Objection.
THE COURT: Overruled. Well, that‘s calling for a conclusion, though.
Q. You have expressed an articulated basis for your suspicions here today? MR. BRAGG: Objection.
THE COURT: Overruled.
A. Yes, sir.
MR. BRAGG: Move to strike the answer.
THE COURT: Overruled. Any other questions?
Defendant contends that the witness should not have been allowed to express his opinion regarding whether he had articulated his suspicions in view of the mandate of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed. 2d 889 (1968), that an officer “must be able to point to specific and articulable fаcts which, taken together with rational inferences from those facts,” id. at 906, warrant an investigatory stop, on the grounds that a nonexpert may not testify as to a question of law. Though it is not apparent to us thаt the officer‘s answer was any more than a statement that he had articulated the facts known to him preceding his stop of the green Chevrolet, we hold that any error that may have occurred in the admission of this testimony was nonprejudicial. Even assuming that the evidence was improperly admitted, we find nothing to rebut the presumption that incompetent evidence was disregarded by the trial judge. See State v. Davis, 290 N.C. 511, 227 S.E. 2d 97 (1976). Moreover, it is clear from the record that the court understood the legal prohibition against conclusory testimony from nonexperts. This assignment of error is overruled.
[2] Defendant maintains by his second assignment that he wаs stopped and detained by Officer Bryant in violation of his constitutional rights and that the court erred by refusing to order that all evidence obtained as a result of the intrusion be suppressed.
A police officer is authorized to stop a person without probable cause to arrest him if he observes unusual conduct making him reasonably suspicious that criminal activity may be afoot, and can point to specific facts that warrant the suspicion. Terry v. Ohio, supra. Our examination of the judge‘s findings of fact, which are based on the evidence and are thus conclusive, satisfies us
Affirmed.
Judge MARTIN concurs.
Judge BECTON dissents.
Judge BECTON dissenting.
In Delaware v. Prouse, 440 U.S. 648, 663, 59 L.Ed. 2d 660, 673, 99 S. Ct. 1391, 1401 (1979), the United States Supreme Court held that
. . . except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unli
censеd or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order tо check his driver‘s license and the registration of the automobile are unreasonable under the Fourth Amendment.
Believing that the majority has failed properly to consider the application of Prouse to the facts of this case, I dissent.
Tо reach its conclusion that Officer Bryant had a reasonable suspicion that defendant might be engaged in criminal activity, the majority relies on State v. Tillett and State v. Smith, 50 N.C. App. 520, 274 S.E. 2d 361, appeal dismissed 302 N.C. 633, 280 S.E. 2d 448 (1981). The Tillett and Smith Court relied upon State v. Thompson, 296 N.C. 703, 252 S.E. 2d 776 (1979). Significantly, Thompson was decided eleven (11) days before Prouse,1 and Tillett and Smith is factually distinguishable from the case sub judice.
There was an arguable basis for stopping Tillett and Smith—Officer Wagner “did not observe an inspection sticker on the vehicle,” 50 N.C. App. at 521, 274 S.E. 2d at 362, as is required by
I am particularly concerned that the majority deems significant the fact that the “[d]efendant was dressed shabbily but drove a ‘reаl nice’ 1981 Chevrolet” and that the defendant “did not stop to ask directions, or otherwise communicate with the officer, though he drove within two feet of Officer Bryant, and appeared to avoid his gaze.” Thе majority‘s reasoning subjects most people
Officer Bryant himself testified that he thought defеndant may have been lost. Based on Delaware v. Prouse, I do not believe Officer Bryant had a reasonable and articulable suspicion that criminal activity was afoot when he observed defendant driving slowly from a dead-еnd street “of locked businesses previously fraught with property crime.” Ante, p. 4.
In my opinion, the defendant‘s motion to suppress the evidence should have been allowed.