Opinion
No. COA09-1143
Filed 21 September 2010 This case not for publication
Appeal by defendant from judgment entered 26 May 2009 by Judge Donald W. Stephens in Person County Superior Court. Heard in the Court of Appeals 23 February 2010.
Attorney General Roy Cooper, by Assistant Attorney General Amanda P. Little, for State. Guy J. Loranger, for defendant.
Person County Nos. 08 CRS 52692 08 CRS 52715.
Defendant Ricky Jovon Horton appeals from a judgment imposing a probationary sentence upon him based upon his pleas of guilty to two counts of felonious larceny. On appeal, Defendant contends that Judge W. Osmond Smith, III ("trial court") erred by denying his motion to suppress evidence obtained during a frisk of his person and that Judge Stephens erred by requiring him to pay restitution despite the absence of competent evidence as to the proper amount of restitution. After careful consideration of the record in light of the applicable law, we conclude that the trial court's findings of fact are not sufficient to permit us to determine the extent to which investigating officers had the reasonable articulable suspicion needed to justify an investigatory detention of Defendant and that this case should be remanded to the Superior Court of Person County for further proceedings not inconsistent with this opinion. With that exception, we conclude that Judge Stephens' judgment should remain undisturbed.
I. Factual Background A. Substantive Facts
On 14 November 2008, Ralph Covert telephoned the Person County Sheriff's Office for the purpose of reporting a break-in at his residence. Mr. Covert stated that, upon entering the front door of his residence, he could hear someone running out of the rear door. Sheriff's Investigator Todd Dunn responded to the call, which he received at about lunchtime.
Upon arriving in the vicinity of Mr. Covert's residence approximately 15 minutes after the reported break-in, Officer Dunn spotted Defendant, who was then sixteen years old, walking next to a home roughly 150 yards away from Mr. Covert's residence and approximately 150 yards from the point at which Officer Dunn was located. Officer Dunn was driving an unmarked vehicle with a blue light on the dash and a siren and was traveling at 5 to 10 miles per hour. Defendant was the only person in the area, since most residents of that neighborhood are at work at that time of day. According to Officer Dunn, the location at which he observed Defendant was not a high crime area.
Officer Dunn testified that, as soon as Defendant made eye contact with him, Defendant ran in the opposite direction. After Defendant ran, Officer Dunn decided to pursue him. As Officer Dunn followed Defendant in his vehicle, he called for backup. Following a short pursuit, Officer Dunn apprehended Defendant, handcuffed him, and frisked him for weapons. During that process, Officer Dunn found a pocket knife in Defendant's right front pocket, several cell phones in his left pocket and various compact discs in his right rear pocket.
A short time later, Sergeant Oakley, who had initially traveled to Mr. Covert's residence, arrived at the site of Defendant's detention with information concerning the items that had been taken during the break-in. According to Sergeant Oakley, some of the items that Officer Dunn had taken from Defendant matched a list of items that had been taken from Mr. Covert's residence. After making that discovery, the officers opened the cell phone that had been seized from Defendant and discovered that Mr. Covert's name was listed on the phone. At that point, the officers placed Defendant under arrest. The following day, investigating officers discovered that other items seized from Defendant had been taken from another residence at which a breaking and entering had also been reported.
B. Procedural Facts
On 14 November 2008, a Warrant for Arrest charging Defendant with feloniously breaking or entering into Mr. Covert's residence and felonious larceny following that breaking or entering was issued in File No. 08 CR 52692. On 17 November 2008, a Warrant for Arrest was issued in File No. 08 CR 52715 charging Defendant with feloniously breaking or entering into the residence of Michael Clayton, felonious larceny following that breaking or entering, and damage to Mr. Clayton's real property. On 9 February 2009, the Person County grand jury returned bills of indictment charging Defendant with two counts of felonious breaking and entering and felonious larceny in connection with break-ins occurring at the residences of Mr. Covert and Mr. Clayton.
On 3 March 2009, Defendant filed two pretrial motions to suppress, one of which was directed at "any and all statements made by Defendant to law enforcement officers, and any and all evidence stemming from these statements," and the other of which was directed toward "any and all items seized from the Defendant." At a suppression hearing held on 13 March 2009, the trial court granted Defendant's motion to suppress statements that he had made to investigating officers on the grounds that he had been given adult Miranda warnings rather than the warnings required to be administered to juvenile suspects. On the other hand, the trial court denied Defendant's motion to suppress the evidence seized at the time that Defendant was frisked.
On 26 May 2009, Defendant entered pleas of guilty pursuant to a negotiated arrangement to one count of felonious larceny in File No. 08 CrS 52692 and one count of felonious larceny in File No. 08 CrS 52715 before Judge Stephens. In return for Defendant's guilty pleas, the State voluntarily dismissed one count of trespass on railroad right of way in File No. 08 CrS 52502, one count of felonious breaking and entering in File No. 08 CrS 52692, one count of injury to real property in File No. 08 CrS 52693 and one count of felonious breaking and entering and injury to real property in File No. 08 CrS 52715. At the time that he entered his guilty pleas, Defendant reserved the right to seek appellate review of the denial of his suppression motion. Based upon Defendant's guilty pleas, Judge Stephens found that Defendant had no prior record points and should be sentenced as a Level I offender. As a result, Judge Stephens consolidated Defendant's convictions for judgment and sentenced Defendant to a minimum term of 6 months and a maximum term of 8 months imprisonment in the custody of the North Carolina Department of Correction. However, Judge Stephens suspended Defendant's sentence and placed Defendant on supervised probation for 24 months subject to the usual terms and conditions of probation and the additional conditions that he pay the costs, $600 in restitution, and attorneys fees; obtain his G.E.D.; submit to warrantless searches for stolen goods, controlled substances, and contraband; submit breath, urine or blood samples for the purpose of drug or alcohol testing upon request; and avoid contact with any of the "victims." Defendant noted an appeal to this Court from the judgment imposed by Judge Stephens.
II. Analysis
On appeal, Defendant contends that the trial court erred by denying his motion to suppress the evidence obtained at the time that he was frisked by investigating officers on the grounds that the investigative detention to which he was subjected "was neither justified at its inception nor permissible in its scope" and that Judge Stephens erred in requiring him to pay restitution on the grounds that Judge Stephens' restitution order lacked adequate evidentiary support. With the exception of our determination that the trial court erred by failing to make adequate findings and conclusions to support its conclusion that Officer Dunn had a reasonable, articulable suspicion for his investigatory detention of Defendant and that this case should be remanded to the Person County Superior Court for additional findings of fact and conclusions of law, we find no error in the proceedings below.
A. Search and Seizure Issue 1. Standard of Review
The scope of review utilized in examining an appellate challenge to the denial of a defendant's motion to suppress is well-established. At bottom, "`[t]his Court must determine whether [the] findings of fact support the trial court's conclusions of law, and if so, the trial court's conclusions of law are binding on appeal.'" State v. Hendrickson, 124 N.C. App. 150, 153, 476 S.E.2d 389, 391 (1996) (quoting State v. West, 119 N.C. App. 562, 565, 459 S.E.2d 55, 57, disc. review denied, 341 N.C. 656, 462 S.E.2d 524 (1995)), appeal dismissed and disc. review improvidently allowed, 346 N.C. 273, 485 S.E.2d 45 (1997). In making the required determination, the trial court's "findings of fact are treated as conclusive on appeal in the event that they are supported by competent evidence, even if the record contains evidence that would support a different finding." State v. Simmons, ___ N.C. App. ___, ___, 688 S.E.2d 28, 30 (2010) (citing State v. Downing, 169 N.C. App. 790, 794, 613 S.E.2d 35, 38 (2005)). Such "deference is afforded the trial judge because he [or she] is in the best position to weigh the evidence, given that he [or she] has heard all of the testimony and observed the demeanor of the witnesses." State v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 631 (2000). "In the event that the trial court's factual findings have adequate evidentiary support, the relevant question on appeal becomes whether the trial court's conclusions of law embody a correct legal standard and are supported by its factual findings." Simmons, ___ N.C. App. at ___, 688 S.E.2d at 30 (citing State v. Coplen, 138 N.C. App. 48, 52, 530 S.E.2d 313, 317, cert. denied, 352 N.C. 677, 545 S.E.2d 438 (2000)). As a result, the trial court's conclusions of law are subject to de novo review. State v. Edwards, 185 N.C. App. 701, 702, 649 S.E.2d 646, 648, disc. review denied, 362 N.C. 89, 656 S.E.2d 281 (2007).
2. Trial Court's Order
In denying Defendant's suppression motion, the trial court made the following findings of fact:
1. The defendant is charged with felonious breaking or entering (2 counts), felonious larceny (2 counts) and injury to real property (2 counts).
2. On November 14, 2008, Person County Sheriff's Office Investigator Deputy Sheriff Todd Dunn, while on duty, received a call from his communications officer directing him to respond to the area of Crystal View Lane in Roxboro upon a report of a breaking or entering in the Crystal View Lane area with further report of a suspect running out of the subject premises.
3. The officer responded to the Crystal View Lane area, taking approximately fifteen (15) minutes for him to arrive. Upon arriving at that area, the officer observed a black male that he estimated to be approximately eighteen (18) years of age, wearing black jeans and a black "hoodie" at a location approximately 150 yards from the residence of the breaking or entering. As soon as the subject suspect saw the officer, (the suspect made eye contact with the officer) the suspect "took off running." The officer pursued the suspect in his unmarked Ford Explorer Sheriff's Office vehicle. The suspect was the only person observed by the officer to be in the area.
4. In pursuing the suspect, the officer drove his vehicle through a yard, while observing the suspect run into another yard, with the pursuit taking a maximum of fifteen (15) seconds. After the suspect had run approximately 75 yards, the suspect stopped for the officer.
5. Upon stopping of the suspect, the officer immediately handcuffed the defendant and performed a Terry frisk, pat-down for the officer's safety. In conducting the pat-down, the officer felt two bulky objects in a pocket or pockets of the defendant, later determining same to be cell phones. The officer felt additional objects in pockets of the defendant and the officer retrieved several cell phones and a knife from the pockets of the defendant as he took them out of the defendant's pockets to determine the contents thereof and check for weapons. As the officer handcuffed the suspect and conducted the Terry frisk, the officer informed the suspect that he was being detained as a suspect in a breaking or entering. The officer felt round compact discs in the right rear pocket(s) of the defendant, but did not immediately remove such items until finding out that items reported as being stolen from the break-in were consistent with what the officer had discovered upon the suspect. Within approximately 1-1 ½ minutes of the officer's pat-down of the suspect, another officer arrived at the scene and informed the original officer of the report of cell phones having been stolen from the residence upon the break-in.
6. The suspect was later determined to be the defendant, Ricky Jovon Horton.
Based upon these findings of fact, the trial court made the following conclusions of law:
1. The officer, at the time and place aforesaid, with the information that he had and in consideration of the totality of the circumstances, had valid cause and reason to stop the suspect and detain the suspect for further investigation surrounding the crime of breaking or entering and larceny. The totality of the circumstances based upon the facts as set forth above gave the officer reasonable and articulable suspicion that criminal activity was afoot and that stopping of the suspect and detention thereof for further investigatory purposes was reasonable and justified under the circumstances and the law.
2. Evidence obtained from the defendant subsequent to his stop on November 14, 2008, except as to statements of the defendant as addressed by a separate order of the Court herein, was not obtained in violation of any of the defendant's rights under the Constitution of the United States or the Constitution of North Carolina; nor was same obtained in violation of any of the statutory rights of the defendant. The stop, detention, seizure, and search of the defendant by the officer on November 14, 2008 was reasonable, valid, and permissible under the Constitution of the United States and the Constitution of North Carolina.
3. The exclusion of such evidence as obtained, except for the statements of the defendant as referenced above, is not required by the Constitutions or our statutes.
As a result, the trial court denied Defendant's suppression motion.
3. Initial Detention
According to the Fourth Amendment to the United States Constitution, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655, 6 L. Ed. 2d 1081, 1090, 81 S. Ct. 1684, 1691, (1961), United States citizens have a constitutional right to be free from unreasonable searches and seizures. "This protection `applies to seizures of the person, including brief investigatory detentions.'" State v. Campbell, 188 N.C. App. 701, 704-05, 656 S.E.2d 721, 724 (quoting State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994)), appeal dismissed, 362 N.C. 364, 664 S.E.2d 311 (2008). "An investigatory stop must be justified by `a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity.'" Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (quoting Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362, 99 S. Ct. 2637, ___ (1979)). In other words, "in order to conduct a warrantless, investigatory stop, an officer must have reasonable and articulable suspicion of criminal activity." Hughes, 353 N.C. at 206-07, 539 S.E.2d at 630 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
A court must consider "the totality of the circumstances — the whole picture"[ — ]in determining whether a reasonable suspicion to make an investigatory stop exists. U.S. v. Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629, [ 101 S. Ct. 690, 695](1981). 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, [ 88 S. Ct. at 1880]; 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, [ 100 S. Ct. 220] (1979). The only requirement is a minimal level of objective justification, something more than an "unparticularized suspicion or hunch." U.S. v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10, [ 109 S. Ct. 1581, 1586] (1989).
Watkins, 337 N.C. at 441-42, 446 S.E.2d at 70. "When determining whether an officer had reasonable suspicion to conduct an investigative stop, the trial court may properly consider such factors as: (1) activity at an unusual hour; (2) nervousness of an individual; (3) an area's disposition toward criminal activity; and (4) unprovoked flight." State v. Blackstock, 165 N.C. App. 50, 58, 598 S.E.2d 412, 417 (2004) (citing State v. Roberts, 142 N.C. App. 424, 429, 542 S.E.2d 703, 707 (2001); State v. Parker, 137 N.C. App. 590, 600-02, 530 S.E.2d 297, 304 (2000)), disc. review denied and appeal dismissed, 359 N.C. 283, 610 S.E.2d 208 (2005). In addition, an officer may consider the suspect's proximity to the crime scene and the extent to which others were present in the vicinity. Campbell, 188 N.C. App. at 706, 656 S.E.2d at 725. Standing alone, none of these factors justify a finding of reasonable suspicion. United States v. Cortez, 449 U.S. 411, 417-18, 66 L. Ed. 2d 621, 628-29, 101 S. Ct. 690, 695 (1981). Instead, all factors must be considered in context. Id.
In concluding that Officer Dunn had a reasonable, articulable suspicion that Defendant was engaged in criminal conduct, the trial court appears to have relied on Defendant's proximity to the break-in some fifteen minutes after it had been reported, the fact that Defendant ran upon making eye contact with Officer Dunn, and the fact that there was no one else in the vicinity at the time. However, in State v. Cooper, 186 N.C. App. 100, 649 S.E.2d 664 (2007), disc. review denied, 362 N.C. 476, 666 S.E.2d 761 (2008), this Court held that the fact that Defendant, an African-American male, was seen walking on a public street a quarter mile away from the site of a robbery that had been committed by someone of his gender and race about five minutes earlier did not support the officer's decision to conduct an investigatory detention of Defendant. In reaching this conclusion, this Court stated that, "[i]f we were to uphold the decision below, then we would, in effect, be holding that police, in the time frame immediately following a robbery committed by a black male, could stop any black male found within a quarter of a mile of the robbery." Id. at 107, 649 S.E.2d at 669. Given our decision in Cooper, mere proximity to the scene of the crime (particularly in the absence of any description of the alleged perpetrator) shortly after the commission of that crime, while relevant, does not, without more, suffice to support an investigatory detention.
In addition to Defendant's spatial and temporal proximity to the scene of the break-in, the trial court appears to have relied on the fact that Defendant fled from Officer Dunn after making eye contact with him to support its denial of Defendant's suppression motion. It is well-established that "unprovoked flight upon noticing the police" in "an area of heavy narcotics trafficking" is sufficient to justify an investigative detention. Wardlow, 528 U.S. at 124, 145 L. Ed. 2d at 576, 120 S. Ct. at 676; see also State v. Mitchell, 358 N.C. 63, 69, 592 S.E.2d 543, 547 (2004) (holding that a defendant's flight from a police checkpoint marked by flashing blue lights and the presence of multiple officers wearing traffic vests "gave Officer Falls reasonable articulable suspicion to stop defendant"); State v. Butler, 331 N.C. 227, 233, 415 S.E.2d 719, 722 (1992) (holding that the necessary reasonable articulable suspicion to justify an investigatory detention existed when a defendant located in a center of drug activity walked away from a uniformed officer after making contact with him). "Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." Wardlow, 528 U.S. at 124, 145 L. Ed. 2d at 576, 120 S. Ct. at 676.
The fact that Officer Dunn did not see anyone else in the vicinity at the time that he encountered Defendant does not strike us as particularly helpful to the performance of the required analysis given that ample time had elapsed since Mr. Covert reported the break-in at his residence to permit others in addition to the perpetrator to enter the area.
However, while flight from a "clearly identified law enforcement officer may furnish sufficient ground for a limited investigative stop," such flight must result from noticing the police. 4 W. LaFave, Search and Seizure § 9.5(f) (2004). See also United States v. Golab, 325 F.3d 63, 67 (1st Cir. 2003) (affirming a district court's decision to grant the defendant's suppression motion on the grounds that there was evidentiary support for the district court's finding that "it was highly unlikely that the driver could have recognized the agents' unmarked car as a law enforcement vehicle"); Marshall v. Teske, 284 F.3d 765, 771 (7th Cir. 2002) (stating that it was "doubtful that the officers had even reasonable suspicion to stop Marshall" given that he "did what any sane person would do if he saw masked men with guns [who turned out to be police officers] running toward him," which was "[run] like hell"); In re A.F., 875 A.2d 633, 635-36 (2004) (distinguishing the case under consideration there from Wardlow because "the facts do not clearly establish, and the trial court did not find, either that A.F. fled or that he recognized the officers' unmarked car as a police vehicle when it turned into the street"). Although Defendant fled after making eye contact with Officer Dunn from a distance of 150 yards and although the record reflects that there was a blue light mounted on the dashboard of Officer Dunn's unmarked car, the trial court's factual findings do not address the issue of whether Defendant "noticed the police" at the time of his flight.
Findings that Defendant was observed in the immediate vicinity of Mr. Covert's residence within a relatively short time after the break-in coupled with "unprovoked" flight upon "noticing the police" would clearly support the trial court's conclusion that Officer Dunn had a reasonable articulable suspicion sufficient to justify his decision to detain Defendant. However, the trial court's findings of fact are not sufficient to establish that Defendant fled upon "noticing the police." While the trial court found as a fact that Officer Dunn was driving an unmarked Ford Explorer, it did not mention Officer Dunn's testimony that he had a blue light on his dashboard or that Defendant was 150 yards from his vehicle when Officer Dunn and Defendant made eye contact in its factual findings. Moreover, the trial court's findings of fact did not directly address the extent to which Defendant "noticed the police" at the time of his "unprovoked flight." As a result, the trial court's findings of fact do not permit us to determine the extent, if any, to which Officer Dunn had the reasonable articulable suspicion necessary to support an investigatory detention of Defendant and suggest that the trial court made its determination of the extent to which Officer Dunn's investigatory detention of Defendant was proper by applying the facts to an inaccurate understanding of the applicable law.
The entire purpose of the requirement enunciated in N.C. Gen. Stat. § 15A-977(d) (2009) to the effect that trial judges make findings of fact and conclusions of law in orders ruling on suppression motions is to permit "meaningful appellate review of the decision." State v. Horner, 310 N.C. 274, 279, 311 S.E.2d 281, 285 (1984). Despite the well-established principle that, "[i]f there is no material conflict in the evidence on voir dire, it is not error to admit the challenged evidence without making specific findings of fact," State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980), and the fact that the evidence concerning the presence of a blue light on the dashboard of Officer Dunn's Ford Explorer and the distance between Officer Dunn and Defendant at the time that they made eye contact was not in dispute, the ultimate issue of whether Defendant "noticed the police" at the time that he ran is not addressed in the trial court's findings. Thus, in view of the trial court's failure to determine whether Defendant "noticed the police" at the time that he fled and the fact that this determination is critical to the proper resolution of the issues raised by Defendant's suppression motion, we are unable to determine whether Officer Dunn had a reasonable articulable suspicion for detaining Defendant.
In State v. McKinney, 361 N.C. 53, 63, 637 S.E.2d 868, 875 (2006), the Supreme Court confronted a situation in which "the trial court's order contained limited findings of fact," none of which "indicate[d] whether the trial court would have found the evidence seized pursuant to the warrant admissible even if the tainted evidence had been excised from the warrant application." In light of that fact, the Supreme Court "decline[d] to speculate as to the probable outcome . . . had the trial court analyzed the validity of the search warrant based only on the legally obtained information in the affidavit." Id. at 65, 637 S.E.2d at 876. Thus, the Supreme Court remanded the case "to the trial court for further proceedings consistent with this opinion." Id. We believe that a similar result is appropriate in this case.
As a result, in light of the trial court's failure to make factual findings concerning certain issues directly relevant to the issue of whether Defendant's "unprovoked flight" resulted from the fact that he "noticed the police" and the fact that the trial court does not appear to have considered the extent, if any, to which Defendant "noticed the police" in determining that Officer Dunn had reasonable articulable suspicion for detaining Defendant, we conclude that this case should be remanded to the trial court for the making of additional findings of fact and conclusions of law concerning (1) the extent, if any, to which Defendant was able to ascertain that Officer Dunn was a police officer given the distance between the two men and the fact that the only visible evidence of Officer Dunn's status as a law enforcement officer was the presence of a blue light on his dashboard and (2) the extent, if any, to which Defendant "noticed" that Officer Dunn was a law enforcement officer at the time of his "unprovoked flight." In the event that the trial court concludes that Defendant did not have adequate notice that Officer Dunn was a law enforcement officer at the time that he ran, Defendant's suppression motion should be allowed. In the event that Defendant was adequately on notice that Officer Dunn was an officer of the law at the time of his flight, Defendant's suppression motion should be denied. If the trial court concludes that Defendant's motion to suppress is allowed, Defendant should be granted a new trial.
4. Scope of the Investigatory Detention
In addition, Defendant argues that the investigating officers exceeded the permissible scope of any investigatory detention that they were lawfully entitled to undertake after Officer Dunn caught Defendant. We disagree.
Assuming that "a police officer observes unusual conduct which leads him [or her] to reasonably conclude in light of his [or her] experience that criminal activity may be afoot and that the persons with whom he [or she] is dealing may be armed and presently dangerous" and "where nothing in the initial stages of the encounter serves to dispel his [or her] reasonable fear for his [or her] own or other's safety, he [or she] is entitled for the protection of himself [or herself] and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him [or her]." Terry, 392 U.S. at 30, 20 L. Ed. 2d at 911, 88 S. Ct. at 1884-1885. "If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband [or evidence of a crime], its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context." Minnesota v. Dickerson, 508 U.S. 366, 375-76, 124 L. Ed. 2d 334, 346, 113 S. Ct. 2130, 2137 (1993).
In the context of most "investigatory stops," police officers may perform only a limited frisk, or pat-down, of a suspect to discover any weapons which might be present. Butler, 331 N.C. at 234, 415 S.E.2d at 723. This limited frisk may take place, "[i]f, after the detention, [the investigating officer's] personal observations confirm his apprehension that criminal activity may be afoot and [] that the person may be armed. . . ." State v. Peck, 305 N.C. 734, 741, 291 S.E.2d 637, 641 (1982) (quoting State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d 502, 507 (1973)). In such a situation, the limited frisk as a function of "self-protection." Id.
State v. Willis, 125 N.C. App. 537, 542, 481 S.E.2d 407, 411 (1997). Thus, an officer conducting an investigatory detention is entitled to pat down or frisk the detainee for his or her own safety in the course of engaging in the future investigative activities that he or she is authorized to take.
Although Defendant argues that, once he had been handcuffed, he no longer posed any danger to Officer Dunn and the other investigating officers and that, because of this fact, the frisk or pat-down to which he was subjected exceeded the allowable scope of an investigatory detention, we conclude that the record does not support this contention. As the trial court's findings clearly indicate, Defendant fled upon making eye contact with Officer Dunn. Officer Dunn had to pursue Defendant in his Ford Explorer and crossed at least one yard in that process. At the time that Officer Dunn patted Defendant down, there were no other officers present. Under that set of circumstances, even though Officer Dunn had already handcuffed Defendant, we conclude that the trial court properly determined that Officer Dunn was entitled to frisk Defendant for his own safety.
In addition, Defendant contends that Officer Dunn's "act of removing two cell phones from [Defendant's] front pocket and opening one to examine its contents went beyond the permissible scope of the frisk" and "constituted a search `separate and apart' from the limited weapons frisk permitted by Terry." In support of this contention, Defendant points to Officer Dunn's decision to remove two cell phones from his left front pocket at the time that he frisked Defendant. According to Officer Dunn, Defendant "had a bulky item in the left front pocket, so I had to remove those, to make sure there was nothing else in there," particularly given that "he had the knife in his right front pocket." Although Officer Dunn admitted that the items in Defendant's left front pocket "felt like cell phones," he was not able to be certain of the identity of these items and whether they posed a danger until he actually ascertained what they were. Officer Dunn could reasonably believe that an object that "felt like" a cell phone might be something else, like another knife." For that reason, the trial court did not err by concluding that Officer Dunn did not exceed the permissible scope of his investigatory detention of Defendant by removing the cell phones from Defendant's left front pocket in order to protect his own safety. As a result, in the event that the trial court concludes on remand that Officer Dunn had a reasonable articulable suspicion that Defendant was engaged in criminal activity, its findings and conclusions concerning the scope of the investigatory detention conducted by Officer Dunn should remain undisturbed.
In addition, Defendant challenges the investigating officer's decision to open one of the cell phones found in Defendant's possession, at which point they discovered that it bore Mr. Covert's name. Given that the cell phone in question was not opened until after Officer Dunn received word that cell phones had been taken during the course of the break-in at Mr. Covert's residence, it is clear that Officer Dunn had probable cause for believing that this cell phone might be evidence of a crime at the time that it was opened.
B. Restitution Award
Secondly, Defendant contends that Judge Stephens erred by ordering him to pay $600.00 in restitution on the grounds that the restitution award was not supported by competent evidence. We disagree.
Although Defendant did not object to Judge Stephens' decision to require him to pay restitution as a condition of probation at the time that judgment was imposed, his failure to lodge such an objection is not, contrary to the State's argument, an inherent bar to our consideration of Defendant's challenge to Judge Stephens' restitution award. As we clearly stated in State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233 (2004) (citing State v. Reynolds, 161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003)), although "defendant did not specifically object to the trial court's entry of an award of restitution, this issue is deemed preserved for appellate review under N.C. Gen. Stat. § 15A-1446(d)(18)." See also State v. Replogle, 181 N.C. App. 579, 584, 640 S.E.2d 757, 761 (2007). As a result, despite the State's argument to the contrary, Defendant's failure to lodge a contemporaneous objection at the time of sentencing does not bar appellate review of his challenge to Judge Stephens' restitution award.
"When sentencing a defendant convicted of a criminal offense, the court shall determine whether the defendant shall be ordered to make restitution to any victim of the offense in question." N.C. Gen. Stat. § 15A-1340.34(a) (2009). Restitution may be awarded as a condition of probation. N.C. Gen. Stat. § 15A-1343(d) (2009). "In the absence of an agreement or stipulation between defendant and the State, evidence must be presented in support of an award of restitution." State v. Buchanan, 108 N.C. App. 338, 341, 423 S.E.2d 819, 821 (1992). "[T]he amount of restitution [established] by the trial court must be supported by evidence adduced at trial or at sentencing." State v. Wilson, 340 N.C. 720, 726, 459 S.E.2d 192, 196 (1995); see also State v. Daye, 78 N.C. App 753, 756, 338 S.E.2d 557, 560 (stating that "[a]n order of restitution as a condition of work-release must be supported by evidence adduced at trial or sentencing" (citing State v. Killian, 37 N.C. App. 234, 238, 245 S.E.2d 812, 815-16 (1978))), aff'd per curiam, 318 N.C. 502 (1986). "The unsworn statement of the prosecutor is insufficient to support the amount of restitution ordered." Shelton, 167 N.C. App. at 233, 605 S.E.2d at 233 (citing Buchanan, 108 N.C. App. at 341, 423 S.E.2d at 821); see also Replogle, 181 N.C. App. at 584, 640 S.E.2d at 761 (stating that "this Court has held that the `unsworn statements of the prosecutor . . . [do] not constitute evidence and cannot support the amount of restitution recommended'" (quoting Buchanan, 108 N.C. App. at 341, 423 S.E.2d at 821)). In addition, there must be something more than a "guess or conjecture as to an appropriate amount of restitution." Daye, 78 N.C. App. at 758, 338 S.E.2d at 561.
Although Defendant argues that Judge Stephens' restitution award lacks adequate record support, we conclude that Defendant stipulated or agreed to the amount of restitution awarded by the trial court. Although his plea agreement with the State did not specify an amount of restitution that Defendant would be required to pay, it did clearly provide that the judgment imposed upon Defendant would include a requirement that he make restitution. In addition, we believe that the following colloquy establishes that Defendant agreed to the amount of restitution awarded by Judge Stephens:
[COURT]: Restitution was $600?
[PROSECUTOR]: That's correct.
[COURT]: According to your restitution worksheet?
[PROSECUTOR]: Yes. He is a record level one.
[COURT]: For felony sentencing purposes.
[PROSECUTOR]: Yes, your Honor.
[COURT]: Do you dispute any of that?
[DEF. COUNS.]: No, your Honor.
. . . .
[DEF. COUNS.]: I would just ask that you consider imposing requirements more along the lines of getting his G.E.D. along with paying back restitution.
. . . .
[COURT]: Do you agree with what your lawyer said?
[DEFENDANT]: Yes, sir.
Under this set of circumstances, we conclude that both Defendant and his counsel agreed to the amount of restitution that Defendant was required to pay as a condition of probation. As a result, given Defendant's express acceptance of the amount of restitution awarded by the trial court, Judge Stephens did not err by requiring Defendant to make restitution in the amount of $600.00 as a condition of probation. Buchanan, 108 N.C. App. at 341, 423 S.E.2d at 821.
III. Conclusion
Thus, we conclude that, given the trial court's failure to make sufficient findings and conclusions to permit us to determine the extent, if any, to which Officer Dunn lawfully detained Defendant prior to the discovery of various items taken from Mr. Covert's residence, this matter should be remanded to the trial court for additional proceedings not inconsistent with this opinion. With that one exception, we find no error in the proceedings leading to the entry of the judgment imposed upon Defendant by Judge Stephens.
NO ERROR IN PART, REMANDED IN PART.
Judges MCGEE and GEER concur.
Report per Rule 30(e)