Opinion
No. COA15–197.
01-19-2016
STATE of North Carolina v. Garrett Devin HATCH, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Shawn R. Evans, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel L. Spiegel, for Defendant–Appellant.
Attorney General Roy Cooper, by Assistant Attorney General Shawn R. Evans, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel L. Spiegel, for Defendant–Appellant.
Opinion
Appeal by Defendant from judgment entered 24 September 2014 by Judge Orlando F. Hudson in Superior Court, Durham County. Heard in the Court of Appeals 21 September 2015. Durham County, No. 13 CRS 059675.
McGEE, Chief Judge.
Garrett Devin Hatch (“Defendant”) appeals from a judgment entered upon a guilty plea to felonious carrying of a concealed gun and to resisting a public officer. We affirm.
The evidence tended to show that Durham police officers Joseph M. Stewart (“Officer Stewart”) and B.E. Chambers (“Officer Chambers”) (collectively “the officers”) arrived at Apartment A, located at the end of Building 6 (“Apartment 6–A”), in an apartment complex located at 200 Seven Oaks Road in Durham, North Carolina, at approximately 3:20 p.m. on 1 October 2013. Officer Stewart had ten years of experience in law enforcement. Officer Chambers had almost six years of experience with the Durham Police Department investigating assaults, weapons violations, domestic disturbances, break-ins, larcenies, and drug complaints. The officers responded to an e-mail complaint received by the Durham Chief of Police indicating there was “drug activity” at Apartment 6–A in that apartment complex. Officer Chambers testified that, before he and Officer Stewart went to Apartment 6–A, Officer Stewart “was specific [that] the complaint [concerned] a specific apartment and individuals reported to be standing out[side] of that specific apartment selling drugs.”
The officers, who were dressed in uniform, parked their patrol car and approached Apartment 6–A. Officer Chambers, who had worked in the district in which the apartment complex was located for the entirety of his tenure with the Durham Police Department, testified that that specific apartment complex “ha[d] been consistently the high crime area for weapons violations and drug complaints and drug violations.” Officer Chambers also testified that the apartment complex had been a site for “some serious robberies,” that there had been “lots of break-ins” there and the police department had “got[ten] lots of drug calls there by citizens and management at the apartment complex that [he] directly responded to and investigated,” and that it “was that bad” that management made arrangements for an off-duty officer to be assigned to the apartment complex.
As the officers approached Apartment 6–A (“the apartment”), they observed five individuals outside the apartment; two were sitting on the stoop in front of the door to the apartment, and three were standing on the sidewalk in front of the stoop. Defendant was one of the men standing on the sidewalk. When the officers were fifteen to twenty yards from the apartment, Officer Stewart “clearly saw” one of the seated men from the stoop take “something and toss [ ] it over the porch” with his right hand as the officers continued to approach the apartment. When they reached the apartment, Officer Stewart stepped up onto the stoop and announced that they were there because “[they] had a drug complaint .” By the time Officer Stewart stepped onto the stoop and announced the reason that the officers were there, Defendant “had kind of snuck around” or “eased, kind of, around the side of the building,” although Defendant was still “well within earshot” as the officers explained that they were there to investigate “a drug complaint.” Officer Chambers, who was on the sidewalk and about an arm's length from the stoop, had Defendant in his sightline as Defendant sidled around the corner of the building. Officer Chambers then leaned around the corner of the building and asked Defendant: “[S]ir, do you live here?” Upon hearing the question, Defendant looked back at Officer Chambers and “then immediately took off running.”
Officer Chambers pursued Defendant as he ran into the parking lot and instructed Defendant “several times to stop,” but Defendant did not comply and “continued running.” Officer Chambers then tracked Defendant as he ran towards an individual who had just arrived in the apartment complex, had parked his vehicle, and was walking from the parking lot to one of the apartment buildings. Upon seeing Defendant running towards him, the individual “looked back and kind of ran into [his] apartment and [Defendant] actually ran onto [the individual's] back porch. [The individual] ran in[to his apartment], slammed the door, quick. And then [Defendant] ran back out into the parking lot.” Defendant then “kept running,” and Officer Chambers intercepted him and again ordered Defendant to stop “or [he] was going to deploy [his] Taser.” When Defendant did not yield to Officer Chambers's instruction, the officer deployed his Taser. Defendant “still kept continuing to get up and tr[ied] to flee” while Officer Chambers instructed Defendant to put his hands behind his back. Because Defendant continued to try to get up and get back onto his feet, Officer Chambers tased Defendant again, which sent a five-second jolt of electricity into “the barbs [that] were still in” Defendant.
When Officer Chambers asked Defendant if he “had anything on him that would hurt [the officer,]” Defendant responded that he “had a gun on him.” Officer Chambers then retrieved a “small semi-automatic pistol” from Defendant's rear pants pocket. Additionally, Officer Stewart later determined that the item he had observed one of the men toss from the stoop was “a bag containing several smaller bags of marijuana.”
Defendant was indicted for felonious carrying of a concealed gun without a permit while off of his own premises, as well as resisting, delaying, or obstructing a public officer whom Defendant knew to be a police officer while the officer was attempting to detain Defendant in reference to the investigation of unlawful drug possession and distribution. Defendant moved to suppress the evidence obtained by law enforcement as a result of the arrest and all statements made by Defendant while in police custody on the basis that Defendant was engaged in a consensual encounter with the police and was “free to disengage” from that encounter, and that “circumstances did not provide officers with reasonable suspicion necessary to justify an investigatory stop” or with probable cause to place Defendant under arrest.
The trial court entered an order denying Defendant's motion to suppress, which order enumerated sixty-three findings of fact and concluded that the officer had reasonable and articulable suspicion to stop and detain Defendant and had probable cause to detain, search, and arrest Defendant. Defendant entered a guilty plea to felonious carrying of a concealed gun and to resisting a public officer. The trial court imposed a consolidated term of three to thirteen months' imprisonment, suspended for eighteen months of supervised probation. Defendant appeals.
The scope of appellate review of a trial court's ruling on 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).
Defendant contends the trial court erred by denying his motion to suppress because the State's evidence was obtained pursuant to an unlawful seizure. Defendant argues that the officers did not have legal justification to seize or arrest him after he fled the apartment that was the subject of the drug complaint because his flight was from a consensual encounter with law enforcement officers, or, alternatively, from the officers' purportedly unlawful attempted investigatory stop. We disagree.
“No one is protected by the Constitution against the mere approach of police officers in a public place,” State v. Streeter, 283 N.C. 203, 208, 195 S.E.2d 502, 506 (1973) (internal quotation marks omitted), and “[m]ere police questioning does not constitute a seizure.” State v. Sinclair, 191 N.C.App. 485, 490, 663 S.E.2d 866, 871 (2008) (internal quotation marks omitted). “Such encounters are consensual,” State v. Kincaid, 147 N.C.App. 94, 100, 555 S.E.2d 294, 299 (2001) (internal quotation marks omitted), and “[n]either reasonable suspicion nor probable cause is required for a police officer to engage in a consensual encounter with an individual, [since] the individual is at liberty to disregard the police and go about his business[.]” State v. Joe, 213 N.C.App. 148, 153, 711 S.E.2d 842, 845 (2011) (third alteration in original) (citation and internal quotation marks omitted), vacated in part on other grounds per curiam, 365 N.C. 538, 723 S.E.2d 339, appeal after remand, 222 N.C.App. 206, 730 S.E.2d 779 (2012). The “crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.” Sinclair, 191 N.C.App. at 490, 663 S.E.2d at 871 (internal quotation marks omitted).
Conversely, “[a]n investigatory stop is a brief stop of a suspicious individual[ ] in order to determine his identity or to maintain the status quo momentarily while obtaining more information .” State v. White, 214 N.C.App. 471, 476, 712 S.E.2d 921, 925 (2011) (second alteration in original) (internal quotation marks omitted). An officer conducts an investigatory stop “to diligently pursue[ ] a means of investigation that [i]s likely to confirm or dispel [his] suspicions quickly.” Id. at 476, 712 S.E.2d at 926 (first and third alterations in original) (internal quotation marks omitted). “The Fourth Amendment permits brief investigative stops ... when a law enforcement officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity.” State v. Jackson, 368 N.C. 75, 78, 772 S.E.2d 847, 849 (2015) (omission in original) (internal quotation marks omitted). “The reasonable suspicion necessary to justify such a stop is dependent upon both the content of information possessed by [the officer] and its degree of reliability. The standard takes into account the totality of the circumstances—the whole picture.” Id. (internal quotation marks omitted). “Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” Id. (internal quotation marks omitted). “This same standard—reasonable suspicion—applies under the North Carolina Constitution.” Id. Such a 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. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994), appeal after remand, 120 N.C.App. 804, 463 S.E.2d 802 (1995). Further, it is “well established under state and federal law” that, although “mere presence in a high crime area is not sufficient to support a reasonable suspicion that an individual is involved in criminal activity, an individual's presence in a suspected drug area coupled with evasive action may provide an adequate basis for the reasonable suspicion necessary for an investigatory stop.” State v. McKnight, ––– N.C.App. –––, –––, 767 S.E.2d 689, 694 (2015), disc. review denied, 368 N.C. 264, 772 S.E.2d 727 (2015); White, 214 N.C.App. at 479–80, 712 S.E.2d at 928; State v. Willis, 125 N.C.App. 537, 542, 481 S.E.2d 407, 411 (1997).
Defendant directs our attention to State v. White, 214 N.C.App. 471, 712 S.E.2d 921 (2011), State v. Sinclair, 191 N.C.App. 485, 663 S.E.2d 866 (2008), and State v. Joe, 213 N.C.App. 148, 711 S.E.2d 842 (2011), in support of his assertion that his flight from the officers in the present case was merely from a consensual encounter in a high-crime area and, thus, did not justify his arrest for resisting a public officer.
In White, this Court determined that the “the only articulable facts to support an investigatory stop were that the police officers were responding to a complaint of loud music and [the detective who testified, Detective Edwards,] regarded the area as a high-crime area in which he had made previous drug arrests.” White, 214 N.C.App. at 479, 712 S.E.2d at 927. “Detective Edwards testified that he did not see [the d]efendant engaged in any suspicious activity and did not see any device capable of producing loud music. [The d]efendant was merely standing outside at night, with two or three other men.” Id. This Court determined that such facts “d[id] not provide reasonable suspicion necessary to justify an investigatory stop of [the d]efendant[, and a]s such, the encounter that Detective Edwards was attempting to make with [the d]efendant would have been a consensual encounter, an encounter that [the d]efendant would have been free to ignore.” Id. “Had the officers attempted an investigatory stop on these facts, [this Court concluded that] the stop [and subsequent arrest] would be unlawful,” id., because the officer “would not have been attempting to discharge a duty of his office, an essential element of the statutory offense of resisting, delaying, or obstructing a public officer,” id. (internal quotation marks omitted), and because the defendant's “subsequent flight from a consensual encounter or from an unlawful investigatory stop [could not] be used to justify his arrest for resisting, delaying, or obstructing a public officer.” Id. at 479, 712 S.E.2d at 927–28.
Although the State correctly noted that “presence in a suspected drug area, coupled with evasive action, may provide the reasonable suspicion necessary for an investigatory stop,” id. at 479–80, 712 S.E.2d at 928, this Court determined in White that the State “failed to establish a nexus between [the d]efendant's flight and the police officers' presence,” id. at 480, 712 S.E.2d at 928, because the State “provided no evidence that [the d]efendant's flight was in response to the officer's presence.” Id. Instead, the evidence showed only that “the officers arrived in an unmarked car, after dark, and parked thirty-five feet away from [the d]efendant on the opposite side of a dumpster;” “the officers were responding to a complaint of loud music and did not see any evidence of a radio near [the d]efendant indicat[ing] that some other activity was occurring in the area to which [the d]efendant could have been reacting;” and there was no testimony “to indicate whether [the d]efendant knew the police were present before he began running,” id., and no testimony that the defendant “made eye contact with the officers, or even looked in the direction of the officers.” Id.
In Sinclair, just before 4:00 p.m., a police officer “received information about drug activity” at a bowling alley that was a “local hangout” and a “known drug activity area.” Sinclair, 191 N.C.App. at 486–87, 663 S.E.2d at 868–69 (internal quotation marks omitted). The officer responded to the scene in an unmarked vehicle, and was met by other officers, who arrived in a couple of marked vehicles. Id. at 487, 663 S.E.2d at 869. The officer was not wearing a law enforcement uniform and was wearing khaki pants and a burgundy polo shirt with a police badge embroidered on the front. Id. The officer saw the defendant “sitting outside the bowling alley in a chair among six to ten other people,” parked his unmarked vehicle sixteen to twenty feet from the defendant, exited the vehicle, and started walking toward the defendant. Id. As the officer approached the defendant and said, “ ‘[L]et me talk to you,’ “ the defendant stood up out of his chair, took two steps towards the officer and said, “ ‘Oh, you want to search me again, huh?’ “ in a non-confrontational tone, since the officer had searched the defendant on a previous occasion. Id. The defendant then stopped ten or twelve feet from the officer, “quickly shoved both of his hands in his front pockets and ... removed them,” “made his hands into fists and took a defensive stance,” and then, as the officer got closer to the defendant, said, “ ‘Nope. Got to go,’ and ‘took off running’ across an adjacent vacant lot.” Id. “The police gave chase, quickly apprehended the defendant, and charged [the defendant] with resisting a public officer.” White, 214 N .C.App. at 477, 712 S.E.2d at 926 (citing Sinclair, 191 N.C.App. at 487, 663 S.E.2d at 869). This Court determined in Sinclair that, “considering all the circumstances surrounding the encounter prior to [the d]efendant's flight, a reasonable person would have felt at liberty to ignore [the officer's] presence and go about his business,” Sinclair, 191 N.C.App. at 490, 663 S.E.2d at 871, because there was “no evidence that [the detective] made any show of force or otherwise communicated to [the d]efendant that cooperation was required[; the officer] merely approached [the d]efendant, asked if he could talk to him, and informed [the d]efendant that he wanted to search him.” Id. Thus, this Court concluded that, because “[a] reasonable person would not have felt compelled to comply with [the officer's] request,” id., “the encounter between the officer and the defendant was consensual and the defendant was free to ignore the officer's request.” White, 214 N.C.App. at 478, 712 S.E.2d at 927 (citing Sinclair, 191 N.C.App. at 490–91, 663 S.E.2d at 871).
Finally, in Joe, an officer was patrolling an apartment complex that was located in an area in which he had “personally made no less than 10 drug arrests,” had “assisted with no less than 50 of those same type[s] of investigations,” and was “aware of citizen complaints mainly [for] illegal drugs.” Joe, 213 N.C.App. at 150, 711 S.E.2d at 843–44 (internal quotation marks omitted). The officer, who was riding with other officers “in an unmarked Ford van, commonly known as ‘the jump-out van,’ “ id. at 150, 711 S.E.2d at 844, saw the defendant standing alone at the corner of the apartment complex, and, when the van was approximately fifty feet from the defendant, the defendant “looked up,” his eyes “got big when he seen [sic] the van, and he immediately turned and walked behind the apartment building[.]” Id. (alterations in original) (internal quotation marks omitted). The officer, by his own testimony, got out of the van and “walked behind the apartment building to, you know, engage in a consensual conversation” with the defendant, and the defendant started running away. Id. (emphasis added) (internal quotation marks omitted). After giving chase for a few city blocks, the officer found the defendant sitting with his back against a house beside an air conditioning unit “like he was trying to hide,” and saw the defendant “manipulating something to the left with his hand.” Id. (internal quotation marks omitted). The officer placed the defendant under arrest for resisting a public officer and found “a clear plastic bag containing an off-white, rocklike substance that was consistent with crack cocaine” in the area where the defendant had been attempting to hide. Id.
After “[c]onsidering all the circumstances surrounding the encounter prior to [the d]efendant's flight, [this Court] conclude[d] that a reasonable person would have felt at liberty to ignore [the officer's] presence and go about his business,” id. at 156, 711 S.E.2d at 847, and so concluded that the defendant fled only from a consensual encounter. Id. Since, at the time the defendant in Joe turned and walked behind the apartment building, the officer was still inside the van, this Court concluded that “a reasonable person would not have felt compelled to wait on the street corner in the rain to determine if an officer inside the van desired to talk with him.” Id. Furthermore, this Court recognized that “the State acknowledged that [the officer] exited the van and rounded the corner of the apartment building not with the intent to effectuate an investigatory stop but, rather, to ‘engage in a consensual conversation’ with [the d]efendant.” Id.
However, we find White, Sinclair, and Joe—where defendants merely fled from consensual encounters—distinguishable from the present case because we conclude that the circumstances of the present case, when considered in their totality, gave the officers reasonable suspicion to effectuate a lawful investigatory stop of Defendant. Here, the officers were dispatched to a specific apartment in response to a written complaint received by the Chief of Police that reported there were individuals standing outside of a specific apartment selling drugs. The officers, who had years of experience investigating such matters, were dispatched to the apartment identified in the complaint, which was located on the corner of an apartment complex that had been “consistently the high crime area for weapons violations and drug complaints and drug violations,” and was a location about which the police department “got lots of drug calls” and to which the officers had a history of directly responding and investigating.
When the officers, dressed in their law enforcement uniforms, arrived on scene in the afternoon hours and approached the apartment that was the subject of the complaint, the officers observed five men standing in front of the apartment and “clearly saw” one of the men toss something over the side of the porch, which was later determined to be a bag containing smaller bags of marijuana. Upon their arrival at the stoop of the apartment, the officers announced they were there to investigate “a drug complaint.” Although Defendant began inching away from the stoop and around the corner of the building as the officers approached the apartment, Officer Stewart testified that Defendant was “well within earshot” of his announcement that the officers were there to investigate a drug complaint.
When Officer Chambers, who had positioned himself on the sidewalk to monitor the two men on the sidewalk in front of the apartment and Defendant as he sidled around the building, leaned around the building and asked Defendant if he lived at the apartment, Defendant made eye contact with Officer Chambers and then “immediately took off running,” despite the officer's repeated instructions to stop. Thus, the officers observed Defendant, “not simply in a general high crime area,” but at a specific apartment complex known for drug activity and in front of a specific apartment that had been reported to the police as being a location at which drug activity was conducted by the individuals standing in front of the apartment. See State v. Butler, 331 N.C. 227, 233, 415 S.E.2d 719, 722 (1992). The officers also observed one of the individuals, with whom Defendant was standing, toss something away from the stoop as the uniformed officers approached the group and announced that the purpose of their presence was to investigate a drug complaint. Finally, after making eye contact with Officer Chambers, Defendant fled the scene, rather than briefly stop to answer the officer's question about whether he was a resident of the apartment. Thus, based on the specific and articulable facts known to the officers, we conclude that the officers had the reasonable suspicion necessary to conduct a lawful investigatory stop of Defendant.
Defendant next contends that, because Officer Chambers's seizure of Defendant—in which the officer tased Defendant to stop and detain him—was an arrest, the reasonable suspicion necessary for the officers' lawful investigatory stop of Defendant was not sufficient justification for his arrest for resisting a public officer. “[A] reasonable suspicion of illegal activity is not sufficient to justify an arrest, as the Fourth Amendment requires the police to have probable cause before making an arrest.” State v. Mello, 200 N.C.App. 561, 568, 684 S.E.2d 477, 482 (2009), aff'd per curiam, 364 N.C. 421, 700 S.E.2d 224 (2010). Nevertheless, while a defendant's flight from an unlawful attempt to arrest him could not be considered as a circumstance to establish probable cause for the arrest, a defendant's flight from a lawful investigatory stop may provide probable cause to arrest an individual for resisting a public officer in violation of N.C. Gen.Stat. § 14–223. State v. Lynch, 94 N.C.App. 330, 334, 380 S.E.2d 397, 399 (1989). In the present case, since we have already determined that the officers were conducting a lawful investigatory stop of Defendant at the time he fled, we further conclude that the officers had probable cause to effectuate a warrantless arrest of Defendant for resisting an officer. See, e.g., State v. McNeill, 54 N.C.App. 454, 456, 283 S.E.2d 565, 566–67 (1981).
AFFIRMED.
Judges ELMORE and DAVIS concur.
Report per Rule 30(e).