Opinion
No. COA12–707.
2013-04-2
STATE of North Carolina v. Robert Henry GAFFNEY.
Attorney General Roy Cooper, by Associate Attorney General Erica Garner, for the State. Guy J. Loranger for defendant.
Appeal by defendant from order entered 14 February 2012 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 January 2013. Attorney General Roy Cooper, by Associate Attorney General Erica Garner, for the State. Guy J. Loranger for defendant.
HUNTER, ROBERT C., Judge.
Robert Henry Gaffney (“defendant”) was charged with one count of possession of a schedule II controlled substance and one count of possession of drug paraphernalia. After the trial court denied his pretrial motion to suppress evidence, defendant entered an Alford plea. After careful review, we affirm the trial court's order.
Background
The evidence at the pretrial motion to suppress hearing established the following: Around 11:15 on 21 December 2010, Officers Chad Denton and Michael Anderson of the Charlotte–Mecklenburg Police Department were patrolling North Tryon Street in Charlotte in a marked police vehicle. Officer Denton heard “several gunshots” and proceeded to drive to the area that the officers “thought the gunshots were coming from.” On the way, Officer Denton observed defendant standing on the side of the road and noted that defendant was “the only occupant in that particular area of the roadway ... in close proximity of where [he] heard gunshots.” After pulling the car over, Officer Denton asked defendant if he had heard the gunshots. Defendant stated that he did not hear the gunshots, and Officer Denton asked “for his consent to conduct a pat down based on the gunshots.” Defendant refused to give consent, but Officer Denton “conducted a pat down for [his] safety for weapons on [defendant's] outer garments.” As Officer Denton patted defendant down, he felt, based on his training and experience, “what was immediately apparent” as a crack pipe in defendant's pants pocket. Officer Denton arrested defendant and conducted a search incident to arrest. During the search, Officer Denton discovered a container in defendant's jacket pocket that contained “two suspected rocks of crack cocaine.”
On 1 November 2011, defendant filed a motion to suppress all evidence obtained as a result of the 21 December 2010 search. On 14 February 2012, the Honorable W. Robert Bell held a pretrial hearing on defendant's motion. The trial court made oral findings of fact in accord with the factual background and denied defendant's motion to suppress the evidence. Defendant entered an Alford plea and expressly reserved his right to appeal the trial court's denial of his motion to suppress. Defendant was sentenced to a minimum of four months and a maximum of five months imprisonment; however, the trial court suspended the sentence and placed defendant on supervised probation for twelve months. Defendant appeals.
Notice of Appeal
As an initial matter, we must determine whether defendant's purported oral notice of appeal was sufficient. While defendant gave oral notice of the denial of his motion to suppress in open court after he entered his Alford plea, he did not appeal from his judgment of conviction. Specifically, defendant's counsel stated at the conclusion of the suppression hearing, “[r]espectfully we would enter notice of appeal with regard to the motion.”
Pursuant to N.C. Gen.Stat. § 15A–979(b) (2011), “[a]n order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty.” Here, while defendant gave notice of appeal with regard to the denial of his motion to suppress, he failed to provide notice of appeal from his conviction. Thus, his notice of appeal was not proper under N.C. Gen.Stat. § 15A–979(b), and we are without jurisdiction to hear it. State v. Miller, 205 N.C.App. 724, 725, 696 S.E.2d 542, 543 (2010) (holding that because the defendant did not appeal the final judgment of conviction, only the denial of his motion to suppress, the Court “d[id] not have jurisdiction to hear [the][d]efendant's appeal, and [the] appeal must be dismissed”); see also State v. McCoy, 171 N.C.App. 636, 638, 615 S.E.2d 319, 320,appeal dismissed,360 N.C. 73, 622 S.E.2d 626 (2005). However, defendant filed a petition for writ of certiorari in the event that the Court determined that his notice of appeal was improper, which we grant and review defendant's arguments on appeal.
Arguments
Defendant's sole argument on appeal is that the trial court erred by denying defendant's motion to suppress evidence because the evidence was seized as the result of an unlawful stop. We disagree.
Our review of a trial court's denial of a motion to suppress is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent 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. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “The trial court's conclusions of law ... are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
“The Fourth Amendment, applicable to the states through the Fourteenth Amendment, protects the right of people to be free from unreasonable searches and seizures.” State v. Campbell, 188 N.C.App. 701, 704, 656 S.E.2d 721, 724 (2008). “An investigatory stop must be justified by ‘a reasonable suspicion, based on objective facts, that the individual is 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)). Whether a police officer had reasonable suspicion to justify a stop is based on the totality of the circumstances. Id.
In support of his argument that the stop was unlawful, defendant cites the case of State v. Cooper, 186 N.C.App. 100, 649 S.E.2d 664 (2007). In Cooper, during the late afternoon, a police officer received a report that an armed robbery had taken place at a convenience store; the robber was reported as being a black male. Id. at 101, 649 S.E.2d at 665. The officer received another report that a black male, later identified as the defendant, was walking on Lake Ridge Drive shortly after the robbery. Id. at 101–02, 649 S.E.2d at 665. The State contended that there was a well-used path connecting the convenience store with Lake Ridge Drive. Id. at 102, 649 S.E.2d at 665. The officer drove to Lake Ridge Drive and stopped the defendant for the purpose of obtaining information about the robbery. Id. at 102, 649 S.E.2d at 665–66. He also frisked defendant, finding a concealed handgun. Id. The stop and frisk took place about a quarter of a mile away from the convenience store. Id. Although the trial court concluded that the stop was reasonable, this Court reversed, holding that the officer had nothing “more than a hunch or a generalized suspicion” that the defendant committed a criminal act. Id. at 107, 649 S.E.2d at 669. Specifically, this Court noted that the only circumstances surrounding the stop were that the defendant was walking on a public street at 6:30 p.m. and that the suspect was identified as a black male. Id. at 107, 649 S.E.2d at 668. The Court noted that there were no facts presented at the hearing that the defendant had used the path or that the robbery suspect had left the convenience store in the direction of the path. Id. at 107, 649 S.E.2d at 669.
In contrast, the State in the present case contends that the stop was justified by reasonable suspicion, and that this Court's decision in Campbell is controlling. In Campbell, 188 N.C.App. at 702, 656 S.E.2d at 723, at approximately 3:40 a.m., an officer responded to a report of a breaking and entering that was in progress. While responding to the report, the officer observed the defendant riding his bicycle about a quarter of a mile from the location of the breaking and entering. Id. The officer did not observe any other individuals in the area. Id. Instead of stopping, the officer proceeded to the alleged breaking and entering but radioed other officers about the defendant's location. Id. Another officer saw the defendant “coming from the area that the burglary came out of[,]” and she stopped and frisked him. Id. at 702–03, 656 S.E.2d at 723. Although the Court noted that proximity to a crime scene, without more, is not enough to establish reasonable suspicion, citing Cooper, it concluded that under the totality of the circumstances, the defendant's proximity to the crime scene, the time of day, and the absence of other people in the area gave the officer reasonable suspicion to stop the defendant. Id. at 706–08,656 S.E.2d at 725–27.
We agree with the State and conclude that Officer Denton had reasonable suspicion to stop defendant based on our holding in Campbell. In the present case, the trial court made the following findings of fact: (1) defendant was stopped at 11:15 p.m.; (2) the officers heard gunshots within a couple of blocks of their location, but at least 100 yards away; (3) in responding to the gunshots, the officers saw defendant walking on a street in the area that they believed the gunshots came from; and (4) defendant was the only individual in the area. Under the totality of the circumstances, as in Campbell, the trial court's findings—specifically, defendant's proximity to the area where the officers heard the gunshots come from; the time of day, late at night; and the absence of other individuals in the area—gave Officer Denton reasonable suspicion to stop defendant.
Moreover, the presence of these three factors makes this case distinguishable from Cooper. In Cooper, 186 N.C.App. at 107, 649 S.E.2d at 669, while the defendant was stopped in close proximity to the alleged crime, about a quarter mile away, there was no evidence that the defendant had used the path connecting the convenience store and Lake Ridge Drive or that the defendant was the only individual in the area. Id. In addition, the defendant was not stopped at an unusual time but in the late afternoon, approximately 6:30 p.m. Id. at 107, 649 S.E.2d at 668. Finally, the only thing seemingly to link the defendant with the suspect was the fact that they were both black males, “a description that fits a substantial percentage of our population.” Id. In contrast, here, defendant was not only stopped in close proximity to the area where the gunshots came from, but he was also the only person in the area and was stopped late at night. Thus, these factors, in totality, are what make the officers' stop of defendant more than a hunch or generalized suspicion. See id. at 107, 649 S.E.2d at 669.
On appeal, defendant puts forth no argument that the resulting frisk was unreasonable. Even if an officer's investigatory stop of a defendant is reasonable, whether the officer may frisk or pat the defendant down requires a separate analysis. See State v. Sanchez, 147 N.C.App. 619, 625, 556 S.E.2d 602, 607 (2001) (“If upon detaining the individual, the officer's personal observations confirm that criminal activity may be afoot and suggest that the person detained may be armed, the officer may frisk him as a matter of self-protection.”) However, since defendant did not challenge the constitutionality of the resulting frisk, we will not address this issue on appeal.
We note that had we addressed this issue, we would have concluded that the frisk was also reasonable. Here, Officer Denton stopped defendant because he believed defendant could have been the person who fired the gun. Thus, based on these personal observations and for his own self-protection, see State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d 502, 507 (1973), Officer Denton was authorized to frisk defendant.
AFFIRMED. Judges McGEE and ELMORE concur.
Report per Rule 30(e).