State v. Wilson , 371 N.C. 920 ( 2018 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 295PA17
Filed 21 December 2018
STATE OF NORTH CAROLINA
v.
TERRY JEROME WILSON
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,
unpublished decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 698
(2017), reversing and vacating a judgment entered on 13 April 2016 and reversing an
order denying defendant’s motion to suppress entered on 4 May 2016, both by Judge
John O. Craig, III in Superior Court, Forsyth County. Heard in the Supreme Court
on 27 August 2018.
Joshua H. Stein, Attorney General, by Derrick C. Mertz, Special Deputy
Attorney General, for the State-appellant.
Glenn Gerding, Appellate Defender, and Sterling Rozear, Assistant Appellate
Defender, for defendant-appellee.
MARTIN, Chief Justice.
A SWAT team was sweeping a house so that the police could execute a search
warrant. Several police officers were positioned around the house to create a
perimeter securing the scene. Defendant penetrated this SWAT perimeter, stating
that he was going to get his moped. In so doing, he passed Officer Christian, who was
STATE V. WILSON
Opinion of the Court
stationed at the perimeter near the street. Defendant then kept going, moving up
the driveway and toward the house to be searched. Officer Ayers, who was stationed
near the house, confronted defendant. After a brief interaction, Officer Ayers
searched defendant based on his suspicion that defendant was armed. Officer Ayers
found a firearm in defendant’s pocket. Defendant, who had previously been convicted
of a felony, was arrested and charged with being a felon in possession of a firearm.
Before trial, defendant moved to suppress evidence of the firearm on the grounds that
the search violated, inter alia, his Fourth Amendment right under the United States
Constitution “to be secure . . . against unreasonable searches and seizures.” U.S.
Const. amend. IV. The trial court found that Officer Ayers “had a reasonable and
articulable suspicion that the Defendant might have been armed and presently
dangerous” and denied defendant’s motion. Defendant then pleaded guilty, while
reserving his right to appeal the denial of his motion to suppress.
Defendant appealed. The Court of Appeals held that the search was invalid
because the trial court’s order did not show that the search was supported by
reasonable suspicion. State v. Wilson, ___ N.C. App. ___, 803 S.E.2d 698, 2017 WL
3480940, at *6 (Aug. 15, 2017) (unpublished). The State petitioned this Court for
review, arguing that the Court of Appeals’ reliance on the individualized suspicion
standard was inconsistent with the decision of the Supreme Court of the United
States in Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587 (1981), and that Officer
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Opinion of the Court
Ayers nevertheless reasonably suspected that Defendant was armed. We allowed the
State’s petition for review of this issue.
We hold that the rule in Michigan v. Summers justifies the seizure here
because defendant, who passed one officer, stated he was going to get his moped, and
continued toward the premises being searched, posed a real threat to the safe and
efficient completion of the search. See Bailey v. United States, 568 U.S. 186, 200-01,
133 S. Ct. 1031, 1041-42 (2013) (citing Summers, 452 U.S. at 702-03, 101 S. Ct. at
2594). We also hold that both the search and seizure of defendant were supported by
individualized suspicion and thus did not violate the Fourth Amendment. See Terry
v. Ohio, 392 U.S. 1, 28, 88 S. Ct. 1868, 1883 (1968). We therefore reverse the decision
of the Court of Appeals.
The following facts are not in dispute. At around 11:00 p.m. on 21 March 2014,
officers of the Winston-Salem Police Department executed a search warrant for the
premises at 2300 North Glenn Avenue. This address was a residential lot with a
driveway that was about eighty feet long leading to a house and another building.
While the initial sweep was being conducted by a SWAT team, several uniformed
officers maintained a perimeter at the edge of the property to protect the SWAT team
from outside interference. The officers maintaining the perimeter wore uniforms that
clearly identified them as police officers, as well as safety equipment such as Kevlar
vests and ballistic helmets. In its findings of fact, the trial court stated that the police
presence at 2300 North Glenn Avenue that night was such that it would be clear to
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Opinion of the Court
any passerby that police were engaged in an operation and intended to exclude the
general public from the property. Officers Ayers and Christian were among the
uniformed officers maintaining the perimeter during the search. Officer Ayers knew
the area to be dangerous, having previously responded to discharges of firearms,
narcotics activity, and a shooting at the location of the search.
Defendant walked onto the premises while the SWAT team was still actively
securing the house. Officer Christian was standing near where the driveway
connected to the street, and Officer Ayers was standing farther up the driveway, a
few feet from the house. Officer Ayers saw defendant walk past Officer Christian and
heard defendant say something about wanting to get his moped. Officer Ayers walked
toward defendant and noticed a heavy object in defendant’s pocket. Applying his
training and expertise, Officer Ayers believed that the object was a firearm based on
its size, shape, and apparent weight. Officer Ayers asked defendant if he was
carrying any weapons, and defendant said that he was not. Officer Ayers then told
defendant that he was going to frisk him for weapons and instructed defendant to
turn around. When defendant turned around, Officer Ayers saw the grip of a
handgun protruding from defendant’s pocket. At this point, Officer Ayers seized the
weapon and detained defendant. Defendant was ultimately charged with, and
pleaded guilty to, possession of a firearm by a felon.
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STATE V. WILSON
Opinion of the Court
In its argument to this Court, the State asks us to apply the categorical rule
from Michigan v. Summers to the facts of this case.1 In Summers, the Supreme Court
of the United States reasoned that “for Fourth Amendment purposes, . . . a warrant
to search for contraband founded on probable cause implicitly carries with it the
limited authority to detain the occupants of the premises while a proper search is
conducted.” Summers, 452 U.S. at 705, 101 S. Ct. at 2595. The Supreme Court
justified this rule, at least in part, on the basis that “[t]he risk of harm to both the
police and the occupants is minimized if the officers routinely exercise unquestioned
command of the situation.” Id. at 702-03, 101 S. Ct. at 2594 (citing 2 Wayne R.
LaFave, Search and Seizure § 4.9, at 150-51 (1978)). The Court has further
emphasized three governmental interests that, when taken together, “justify the
1 We disagree with the concurring justice’s contention that the State waived merits
review of the very issue—applicability of the Summers rule—that we accepted for
discretionary review. The record shows that the trial judge considered whether the police
had the authority to stop a person to protect the integrity of a scene during the execution of
a search warrant. This inquiry is substantially equivalent to considering whether the
Summers rule applies, so the trial judge appears to have determined (and we agree) that the
Summers grounds for relief “were . . . apparent from context” and were thus preserved for
appellate review. N.C. R. App. P. 10(a)(1). Furthermore, the State was the appellee at the
Court of Appeals and the Summers rule is an alternate basis in law supporting upholding
the trial court’s decision. Our rules allow an appellee to argue a preserved alternate basis in
law on appeal and that is what the State in fact did at the Court of Appeals. See N.C. R. App.
P. 10(c). Put simply, given that the State prevailed before the trial court and was the appellee
before the Court of Appeals, "[t]he question for review is whether the ruling of the trial court
was correct" rather than "whether the reason given therefor is sound or tenable." State v.
Austin, 320 N.C. 276, 290, 357 S.E.2d 6 41, 650 (citing State v. Blackwell, 246 N.C. 642, 644,
90 S.E.2d 867, 869 (1957)), cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224
(1987). As a result, the State can raise the Summers issue here as the appellant challenging
the Court of Appeals decision.
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Opinion of the Court
detention of an occupant who is on the premises during the execution of a search
warrant: officer safety, facilitating the completion of the search, and preventing
flight.” Bailey, 568 U.S. at 194, 133 S. Ct. at 1038 (citing Summers, 452 U.S. at
702-03, 101 S. Ct. at 2594). The Court has stated that “[a]n officer’s authority to
detain incident to a search is categorical; it does not depend on the ‘quantum of proof
justifying detention or the extent of the intrusion to be imposed by the seizure.’ ”
Muehler v. Mena, 544 U.S. 93, 98, 125 S. Ct. 1465, 1470 (2005) (quoting Summers,
452 U.S. at 705 n.19, 101 S. Ct. at 2595 n.19).
The Supreme Court has further defined the category covered by the Summers
rule on two occasions. First, in Muehler v. Mena, the plaintiff, suing several police
officers, challenged both the use of handcuffs incident to a Summers seizure and the
two- to three-hour duration of the seizure. See id. at 95-96, 125 S. Ct. at 1468-69. In
finding the use of handcuffs permissible, the Court again recognized the need for
police executing a search warrant to “routinely exercise unquestioned command of
the situation.” Id. at 99, 125 S. Ct. at 1470 (quoting Summers, 452 U.S. at 703, 101
S. Ct. at 2594). The Court also held that the seizure was permissible during the
entirety of the execution of the search warrant. See id. at 100, 125 S. Ct. at 1471
(holding that “the 2- to 3-hour detention in handcuffs . . . [did] not outweigh the
government’s continuing safety interests”).
Second, in Bailey v. United States, the Supreme Court was confronted with a
defendant who was arrested almost one mile away from the location being searched.
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Opinion of the Court
See 568 U.S. at 194, 133 S. Ct. at 1038. The Court clarified that “[t]he categorical
authority to detain incident to the execution of a search warrant must be limited to
the immediate vicinity of the premises to be searched.” 568 U.S. at 199, 133 S. Ct. at
1041. Ultimately, the Court held that the seizure in Bailey was unlawful because the
defendant “was detained at a point beyond any reasonable understanding of the
immediate vicinity of the premises in question.” Id. at 201, 133 S. Ct. at 1042. But
the Court has identified several factors that courts can consider “to determine
whether an occupant was detained within the immediate vicinity of the premises to
be searched, including the lawful limits of the premises, whether the occupant was
within the line of sight of his dwelling, the ease of reentry from the occupant’s
location, and other relevant factors.” Id.
Based on this doctrinal trilogy, we can identify three parts of the Summers
rule: “a warrant to search for contraband founded on probable cause implicitly carries
with it the limited authority to detain [(1)] the occupants,” Summers, 452 U.S. at 705,
101 S. Ct. at 2595, (2) who are “within the immediate vicinity of the premises to be
searched,” Bailey, 568 U.S. at 201, 133 S. Ct. at 1042, and (3) who are present “during
the execution of a search warrant,” id. at 194, 133 S. Ct. at 1038 (citing Summers,
452 U.S. at 702-03, 101 S. Ct. at 2594); see also Muehler, 544 U.S. at 102, 125 S. Ct.
at 1472 (holding that “the officers’ detention of Mena in handcuffs during the
execution of the search warrant was reasonable and did not violate the Fourth
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Opinion of the Court
Amendment”). These three parts roughly correspond to the “who,” “where,” and
“when” of a lawful suspicionless seizure incident to the execution of a search warrant.
As we have discussed, the Supreme Court has already provided clear guidance
as to the second and third parts of the Summers rule. And the application of that
guidance to this case is straightforward. No one disputes that defendant was seized
during the execution of a search warrant. It is also evident that defendant was seized
within the immediate vicinity of the premises being searched. Defendant walked past
Officer Christian, who was standing close to where the driveway connected to the
street, and proceeded toward Officer Ayers, who was standing near the house being
searched. When Officer Ayers stopped him, defendant was well within the lawful
limits of the property containing the house being searched. And, had he not been
stopped by police, defendant could easily have accessed the house. Thus the spatial
requirements of the Summers rule were met here. See Bailey, 568 U.S. at 201, 133
S. Ct. at 1042.
As to the remaining part of our formulation of the Summers rule, we
acknowledge that the Supreme Court has not directly resolved the issue of who
qualifies as an “occupant” for the purposes of the Summers rule. Nevertheless, using
the Supreme Court’s reasoning that developed through the trilogy of Summers cases
as our guidepost, we will now attempt to determine the “proper limit [that] accords
with the rationale of the [Summers] rule.” Id.
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STATE V. WILSON
Opinion of the Court
In Bailey, the Supreme Court recognized that the search of a residence “has a
spatial dimension” and that the Summers rule must be limited “to the area in which
an occupant poses a real threat to the safe and efficient execution of a search
warrant.” Id. Notably, this does not confine the Summers rule to the premises
identified in the search warrant, but extends that rule to the immediate vicinity of
those premises. Id. The reasoning in Bailey comports with the justification in
Summers because someone who is sufficiently close to the premises being searched
could pose just as real a threat to officer safety and to the efficacy of the search as
someone who is within the premises. Applying the Supreme Court’s reasoning in
Bailey as to the spatial dimension of a search, we believe that a person is an occupant
for the purposes of the Summers rule if he “poses a real threat to the safe and efficient
execution of a search warrant.” Id.
We believe defendant posed a real threat to the safe and efficient execution of
the search warrant in this case. He approached the house being swept, announced
his intent to retrieve his moped from the premises, and appeared to be armed. It was
obvious that defendant posed a threat to the safe completion of the search. Defendant
argues that he was not an occupant of the premises being searched in the ordinary
sense of the word. Given defendant’s actions here, however, it was apparent to Officer
Ayers that defendant was attempting to enter the area being searched—or, stated
another way, defendant would have occupied the area being searched if he had not
been restrained. This understanding of occupancy is necessary given the Supreme
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Opinion of the Court
Court’s recognition that officers may constitutionally mitigate the risk of someone
entering the premises during a search “by taking routine precautions, for instance by
erecting barricades or posting someone on the perimeter or at the door.” Id. at 195,
133 S. Ct. at 1039. Indeed, if such precautionary measures did not carry with them
some categorical authority for police to detain individuals who attempt to circumvent
them, it is not clear how officers could practically “search without fear that occupants,
who are on the premises and able to observe the course of the search, [would] become
disruptive, dangerous, or otherwise frustrate the search.” Id. at 195, 133 S. Ct. at
1038.
Defendant’s own actions here caused him to satisfy the first part, the “who,” of
the Summers rule. As we have discussed, the second and third parts of the Summers
rule, the “where” and “when,” are also satisfied. The Summers rule, therefore,
justified the seizure of defendant here.
But, because the Supreme Court has only used the Summers rule to justify
detentions incident to the execution of search warrants, see, e.g., Bailey, 568 U.S. at
194, 133 S. Ct. at 1038; Muehler, 544 U.S. at 98, 125 S. Ct. at 1470, we must
determine separately whether the search of defendant’s person was justified. In
Terry v. Ohio, the Supreme Court determined that a brief stop and frisk did not
violate a defendant’s Fourth Amendment rights when “a reasonably prudent man
would have been warranted in believing [the defendant] was armed and thus
presented a threat to the officer’s safety while he was investigating his suspicious
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Opinion of the Court
behavior.” 392 U.S. at 28, 88 S. Ct. at 1883. In other words, an officer may
constitutionally conduct what has come to be called a Terry stop if that officer can
“reasonably . . . conclude in light of his experience that criminal activity may be
afoot.” Id. at 30, 88 S. Ct. at 1884. “The reasonable suspicion standard is a ‘less
demanding standard than probable cause’ and ‘a considerably less [demanding
standard] than preponderance of the evidence.’ ” State v. Bullock, 370 N.C. 256, 258,
805 S.E.2d 671, 674 (2017) (alteration in original) (quoting Illinois v. Wardlow, 528
U.S. 119, 123, 120 S. Ct. 673, 675-76 (2000)). To meet this standard, an officer “must
be able to point to specific and articulable facts” and to “rational inferences from those
facts” justifying the search or seizure at issue. Terry, 392 U.S. at 21, 88 S. Ct. at
1880. “To determine whether reasonable suspicion exists, courts must look at ‘the
totality of the circumstances’ as ‘viewed from the standpoint of an objectively
reasonable police officer.’ ” State v. Johnson, 370 N.C. 32, 34-35, 803 S.E.2d 137, 139
(2017) (citation omitted) (first quoting United States v. Cortez, 449 U.S. 411, 417, 101
S. Ct. 690, 695 (1981); and then quoting Ornelas v. United States, 517 U.S. 690, 696,
116 S. Ct. 1657, 1661-62 (1996)).
“When reviewing a ruling on a motion to suppress, we analyze whether the
trial court’s ‘underlying findings of fact are supported by competent evidence . . . and
whether those factual findings in turn support the [trial court’s] ultimate conclusions
of law.’ ” Bullock, 370 N.C. at 258, 805 S.E.2d at 674 (alterations in original) (quoting
State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).
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STATE V. WILSON
Opinion of the Court
Here, Officer Ayers was the sole witness who testified at the suppression
hearing, and the facts that he testified to were uncontested. Based on that testimony,
the trial court found that the police were conducting a search at a location where
there had been numerous reports of gun violence and were openly maintaining a
perimeter to prevent public access to the property in question during the search.
Defendant then approached the premises during the search, passing one officer in a
manner that “was very unusual for a member of the general public.” Officer Ayers
approached defendant and observed that defendant had something in his pocket.
Based on the size, weight, and shape of the object, Officer Ayers believed that the
object was a gun or other weapon. Defendant told Officer Ayers that he was there to
get his moped and that he was not armed. The trial court concluded that “a
reasonable and prudent police officer would find [defendant’s behavior] unusual” and
that, based on the totality of these circumstances, Officer Ayers “had a reasonable
and articulable suspicion that the Defendant might have been armed and presently
dangerous.”
We find no error in the trial court’s reasoning. Defendant breached a police
perimeter during an active SWAT team sweep. Based on his training, experience,
and observations, it was reasonable for Officer Ayers to suspect that defendant was
armed. Defendant then appeared to lie about being armed. Given the circumstances
of the ongoing search and defendant’s actions, it was reasonable to suspect that
defendant was there to attack police officers on the premises or otherwise violently
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Opinion of the Court
interfere with the execution of the search warrant. Because any such violence would
constitute criminal activity, Officer Ayers had reasonable suspicion, based on these
circumstances, that criminal activity was afoot. See Terry, 392 U.S. at 30, 88 S. Ct.
at 1884. Thus, the trial court correctly denied defendant’s motion to suppress.
In this case, the Court of Appeals erred by focusing solely on one finding of fact
instead of the totality of the circumstances, as Terry requires. See Johnson, 370 N.C.
at 34-35, 803 S.E.2d at 139. The Court of Appeals correctly stated that “ ‘unusual’
behavior does not necessarily equal behavior leading a reasonable officer to believe
criminal activity was afoot.” Wilson, 2017 WL 3480940, at *5. This reasoning,
though, does not take into account the particular unusual behavior at issue here and
the totality of the circumstances surrounding it. These circumstances include police
officers having responded to shootings at and near the house in the past, Officer
Ayers’ observation that defendant was likely armed, and defendant’s apparent lie
about possessing a weapon.2 Combining these circumstances with defendant’s
unusual choice to cross a police perimeter to purportedly retrieve his moped during
an active SWAT team sweep, there were more than enough facts to establish a
reasonable suspicion that criminal activity may have been afoot. See Terry, 392 U.S.
2 The fact that defendant was actually lying is not relevant to a finding of reasonable
suspicion because the lie was not confirmed until after the search. However, the fact that
Officer Ayers had a reasonable suspicion that defendant was armed means that he also had
a reasonable suspicion that defendant was lying when defendant said that he was not armed.
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Opinion of the Court
at 30, 88 S. Ct. at 1884. The warrantless detention and search of defendant therefore
did not violate the Fourth Amendment.
For the reasons stated above, we reverse the decision of the Court of Appeals.
REVERSED.
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Justice HUDSON, concurring in part and concurring in the result in part.
Although I agree with the majority’s decision that defendant’s seizure was
justified here because the circumstances constituted reasonable suspicion that
criminal activity was afoot under the United States Supreme Court’s decision in Terry
v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968), and that
our granting of discretionary review allowed the State to argue whether Michigan v.
Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), applies, I disagree
with the majority on four specific points. First, the majority need not have applied
Summers when the constitutionality of the seizure and subsequent search is wholly
resolved by Terry. Second, the trial court’s colloquy with defendant’s counsel during
the hearing on defendant’s motion to dismiss did not preserve the Summers issue for
our review, because the interchange was not “substantially equivalent” to a Summers
analysis. Third, the “Summers grounds for relief” were not “apparent from the
context” at the trial court, and therefore, the Summers issue was not adequately
preserved for review pursuant to Rule 10(a)(1) of our Rules of Appellate Procedure.
See N.C. R. App. P. 10(a)(1). Finally, in my view our decision in State v. Austin does
not stand for the principle that the State, as an appellee before the Court of Appeals,
can bring an unpreserved constitutional issue for the first time on appeal. 320 N.C.
276, 357 S.E.2d 641, cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224
(1987).
STATE V. WILSON
Hudson, J., concurring in part and concurring in the result in part
Concerning the application of Summers to the facts of this case, I fully agree
with Justice Beasley’s concurring opinion that “[b]ecause the instant case is fully
resolved by application of the familiar and well-settled Terry standard, I would not
extend the Summers rule to justify the search of defendant.” In its opinion, the
majority also concluded that Terry justified both the seizure and the search of
defendant. Therefore, it was unnecessary to apply Summers to the facts here.
With regard to preservation, we have long held that “[c]onstitutional questions
not raised and passed on by the trial court will not ordinarily be considered on
appeal.” State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 (2010) (alteration in
original) (quoting State v. Tirado, 358 N.C. 551, 571, 599 S.E.2d 515, 529 (2004), cert.
denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005)). The majority asserts
that the Summers issue was adequately raised in the trial court by “the trial judge
consider[ing] whether the police had authority to stop a person to protect the integrity
of a scene during the execution of a search warrant.” The majority reasoned that
“[t]his inquiry is substantially equivalent to considering whether the Summers rule
applies, so the trial judge appears to have determined (and we agree) that the
Summers grounds for relief ‘were . . . apparent from context.’ ”
I do not agree that the trial judge’s inquiry with defense counsel at the hearing
on defendant’s motion to suppress substantially equated to the Summers issue. The
inquiry to which the majority references does not demonstrate that the Summers
issue was “raised and passed on” at the hearing on defendant’s motion to suppress.
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STATE V. WILSON
Hudson, J., concurring in part and concurring in the result in part
Davis, 364 N.C. at 301, 698 S.E. 2d at 67 (quoting Tirado, 358 N.C. at 571, 599 S.E.
2d at 529). The majority refers us to a section of the trial transcript in which the trial
court questioned the defendant’s attorney in the following manner:
THE COURT: Right. But isn’t -- if he -- if Mr.
Wilson’s walking up the driveway and part of the purpose
for [the officer] telling him to stop is to protect the integrity
of the scene where the search warrant is taking place,
that’s a sufficient reason just to tell him to stop where he
is, isn’t it?
I mean, if there’s an ongoing search of the premises,
you don’t want a citizen who may or may not be related to
the premises just walking on up there and starting to look
for his moped while they’re trying to conduct the search.
The majority asserts that “this inquiry is substantially equivalent to considering
whether the Summers rule applied.” It is not. It is important to note that the trial
court did not mention Summers in this excerpt, and although it inquired about the
effect that the execution of the search warrant might have on the propriety of the
stop, the trial court did not make any findings of fact or conclusions of law on these
matters.
Also, to the extent the trial court engaged in analysis during this colloquy, the
exchange was not “substantially equivalent” to a Summers analysis. In Summers,
the Court considered: (1) that “[a] neutral and detached magistrate had found
probable cause to believe that the law was being violated in that house and had
authorized a substantial invasion of the privacy of the persons who resided there,”
452 U.S. at 701, 101 S. Ct. at 2593, 69 L. Ed. 2d at 349; (2) “the legitimate law
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STATE V. WILSON
Hudson, J., concurring in part and concurring in the result in part
enforcement interest in preventing flight in the event that incriminating evidence is
found,” id. at 702, 101 S. Ct. at 2594, 69 L. Ed. 2d at 349; (3) that “[t]he risk of harm
to both the police and the occupants is minimized if the officers routinely exercise
unquestioned command of the situation,” id. at 702-03, 101 S. Ct. at 2594, 69 L. Ed.
2d at 350 (citation omitted); (4) that “the orderly completion of the search may be
facilitated if the occupants of the premises are present,” id. at 703, 101 S. Ct. at 2594,
69 L. Ed. 2d at 350; and (5) that “[t]he connection of an occupant to that home gives
the police officer an easily identifiable and certain basis for determining that
suspicion of criminal activity justifies a detention of that occupant,” id. at 703-04, 101
S. Ct. at 2594-95, 69 L. Ed. 2d at 350.
In Bailey v. United States, the Court seemingly limited the interests identified
in Summers to: (1) whether the individual detained was an occupant, (2) officer
safety, (3) facilitating the completion of the search, and (3) preventing flight. See
Bailey, 568 U.S. 186, 195, 133 S. Ct. 1031, 1038, 185 L. Ed. 2d 19, 29 (2013). In
addition, Bailey expressly limited the holding in Summers to cases in which the
person was detained within “the immediate vicinity of the premises to be searched.”
Id. at 199, 133 S. Ct. at 1041, 185 L. Ed. 2d at 32.
Here, even if the trial court’s inquiry could be construed to have considered
and made findings on any of the Summers factors, the court certainly did not make a
finding regarding whether defendant was an occupant of the premises being
searched. The trial court merely stated that “I mean, if there’s an ongoing search of
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STATE V. WILSON
Hudson, J., concurring in part and concurring in the result in part
the premises, you don’t want a citizen who may or may not be related to the premises
just walking up there.” As such, the trial court, in its inquiry, made no findings on
whether or not defendant was an occupant of the premises.
Whether the person detained is an occupant of the premises being searched is
an indispensable aspect of the Summers analysis. See Bailey, 568 U.S. at 200, 133 S.
Ct. at 1041, 185 L. Ed. 2d at 32-33 (stating that in Summers the Court recognized
that “[b]ecause the detention occurs in the individual’s own home, ‘it could add only
minimally to the public stigma associated with the search itself and would involve
neither the inconvenience nor the indignity associated with a compelled visit to the
police station’ ” (emphasis added) (quoting Summers, 452 U.S. at 702, 101 S. Ct. at
2594, 69 L. Ed. 2d at 349)); Muehler v. Mena, 544 U.S. 93, 98, 125 S. Ct. 1465, 1469,
161 L. Ed. 2d 299, 306 (2005) (“In Michigan v. Summers, 452 U.S. 692 (1981), we held
that officers executing a search warrant for contraband have the authority ‘to detain
the occupants of the premises while a proper search is conducted.’ ” (quoting
Summers, 452 U.S. at 705, 101 S. Ct. at 2595, 69 L. Ed. 2d at 351)); Summers, 452
U.S. at 701, 101 S. Ct. at 2593, 69 L. Ed. 2d at 349 (“Of prime importance in assessing
the intrusion is the fact that the police had obtained a warrant to search respondent’s
house for contraband.”) emphases added)). As a result, by failing to find whether
defendant was an occupant of the premises being searched, the trial court, in its
inquiry, failed to engage in an analysis equivalent to Summers. Therefore, in my
view “the Summers grounds for relief” are not “apparent” from the trial court’s
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STATE V. WILSON
Hudson, J., concurring in part and concurring in the result in part
inquiry. N.C. R. App. P. 10(a)(1).
The “Summers grounds for relief” are also not “apparent” from the trial court’s
order denying defendant’s motion to suppress. N.C. R. App. P 10(a)(1). In fact, the
order demonstrates that the Summers issue was not “raised and passed on by the
trial court.” Davis, 364 N.C. at 301, 698 S.E. 2d at 67 (quoting Tirado, 358 N.C. at
571, 599 S.E. 2d at 529). Specifically, the trial court, in its conclusions of law,
analyzed defendant’s detention only under Terry v. Ohio and neither defendant nor
the trial court mentioned Summers. Further, the order contains no findings relevant
to the rule discussed by the majority that a person is an occupant for the purposes of
Summers when the person “poses a real threat to the safe and efficient execution of
a search warrant.” Bailey, 568 U.S. at 201, 133 S. Ct. at 1042, 185 L. Ed. 2d at 33.
Specifically, the trial court’s order made no findings concerning whether defendant
was a threat. Therefore, the majority’s assertions that “[w]e believe defendant posed
a real threat to the safe and efficient execution of the search warrant in this case,”
and “[i]t was obvious that the defendant posed a threat” are not reflected by findings
or conclusions in the actual order.
Lastly, contrary to the majority’s conclusion, our decision in Austin does not
stand for the principle that the State, as the appellee before the Court of Appeals, can
argue an unpreserved constitutional issue. The majority relies on a quote of Austin
in which we stated that “[t]he question for review is whether the ruling of the trial
court was correct and not whether the reason given therefor is sound or tenable.”
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STATE V. WILSON
Hudson, J., concurring in part and concurring in the result in part
Austin, 320 N.C. at 290, 357 S.E. 2d at 650 (citing State v. Blackwell, 246 N.C. 642,
644, 99 S.E.2d 867, 869 (1957)). Although this language may appear to support the
majority’s assertion, this Court in Austin did not allow a party to bring an
unpreserved constitutional argument on appeal.
In Austin, defendant challenged the trial court’s denial of his motion to
suppress, arguing that the trial judge applied an incorrect legal standard on the issue
of whether intoxication invalidated his voluntary consent to a search. See id. at 289-
90, 357 S.E.2d at 649-650. In denying defendant’s motion to suppress, the trial court
concluded that defendant’s intoxication did not invalidate his consent to the search,
because it did not “amount[ ] to a mania as to lead the user to be unconscious of the
meaning of his words.” Id. at 289, 357 S.E. 2d at 650. Defendant contended that this
was an improper legal standard. Id. at 290, 357 S.E.2d at 650. Rejecting defendant’s
argument, this Court reasoned that “[a]ssuming arguendo that the trial court’s
reasoning for denying defendant’s motion to suppress was incorrect, we are not
required on this basis alone to determine that the ruling was erroneous.” Id. at 290,
357 S.E.2d at 650 (citing State v. Gardner, 316 N.C. 605, 342 S.E.2d 872 (1986)). We
added that “[a] correct decision of a lower court will not be disturbed on review simply
because an insufficient or superfluous reason is assigned. 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.” Id. at 290, 357 S.E.2d at 650 (citing Blackwell, 246
N.C. at 644, 99 S.E. 2d at 869). We concluded, ultimately, that “[t]he crucial inquiry
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STATE V. WILSON
Hudson, J., concurring in part and concurring in the result in part
for this Court is admissibility and whether the ultimate ruling was supported by the
evidence.” Id. at 290, 357 S.E.2d at 650.
The facts of Austin, however, are distinguishable from the facts here, because
in Austin defendant explicitly raised the issue of the voluntariness of his consent to
the search before the trial court. See id. at 290, 357 S.E.2d at 650 (“[D]efendant
challenged the voluntariness of his consent on two grounds: his alleged intoxication;
and his low intelligence . . . .”). Therefore, Austin did not involve an unpreserved
constitutional argument. See id. at 290, 357 S.E.2d at 650.
Here, as demonstrated above, the trial court’s inquiry with defendant’s counsel
did not preserve the Summers issue. Further, as demonstrated above, neither the
trial court’s inquiry, nor its order denying defendant’s motion to suppress made the
Summers issue “apparent from the context.” N.C. R. App. P. 10(a)(1). Moreover, the
Summers issue was not “apparent” from the State’s argument before the trial court
on defendant’s motion to suppress. N.C. R. App. P 10(a)(1). The State asserted that
the case was “just as the thrust of the written motion seems to indicate, purely a
Terry issue.” The State then proceeded to frame its constitutional claim as a Terry
issue without ever mentioning Summers. As a result, the majority cannot rely on
Austin for the principle that an unpreserved constitutional issue can be argued for
the first time on appeal. Austin did not abrogate our general rule that
“[c]onstitutional questions not raised and passed on by the trial court will not
ordinarily be considered on appeal.” Davis, 364 N.C. at 301, 698 S.E. 2d at 67
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STATE V. WILSON
Hudson, J., concurring in part and concurring in the result in part
(alteration in original) (quoting Tirado, 358 N.C. at 571, 599 S.E. 2d at 529).
For the above reasons, I agree with the majority that defendant’s detention
was justified under Terry, and that our granting of the State’s petition for
discretionary review allowed it to argue Summers before this Court. However, I
disagree with the majority’s application of Summers here because Terry wholly
resolved the issue of whether the seizure and search of defendant were constitutional,
the trial judge’s colloquy with defense counsel did not adequately preserve the
Summers issue, the Summers issue was not “apparent from the context” of the
discussion in the trial court as Rule 10(a)(1) of our Rules of Appellate Procedure
contemplates, and our decision in Austin does not stand for the principle that an
appellee before the Court of Appeals can bring an unpreserved constitutional issue
for the first time on appeal. Therefore, I respectfully concur in part and concur in the
result in part.
Justice BEASLEY and Justice MORGAN join in this concurring opinion.
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Justice BEASLEY, concurring in the result only.
I join in Justice Hudson’s concurring opinion. Nonetheless, I write separately
to make clear that, regardless of whether the State’s Summers argument was
preserved for appellate review, I would decline to address it in this case. Because the
instant case is fully resolved by application of the familiar and well-settled Terry
standard, I would not extend the Summers rule to justify the search of defendant.
Thus, for the reasons stated below, I concur only in the result reached by the majority.
The majority concludes that “a person is an occupant for the purposes of the
Summers rule if he ‘poses a real threat to the safe and efficient execution of a search
warrant.’ ” Majority Opinion at 9 (quoting Bailey v. United States, 568 U.S. 186, 201,
185 L. Ed. 2d 19, 33 (2013)). In addition to being only tangentially related to the
rationales underlying Summers, this definition suffers from both overbreadth and
vagueness.
In Michigan v. Summers, the Supreme Court held “that a warrant to search
for contraband founded on probable cause implicitly carries with it the limited
authority to detain the occupants of the premises while a proper search is conducted.”
452 U.S. 692, 705, 69 L. Ed. 2d 340, 351 (1981) (footnotes omitted). The Court has
not defined the term “occupants” for purposes of the Summers doctrine, but it did
explicitly state the rationales justifying the categorical rule: (1) the risk of the
occupant fleeing the searched premises if contraband is found; (2) the risk of harm to
law enforcement in the event of “sudden violence or frantic efforts to conceal or
STATE V. WILSON
Beasley, J., concurring in the result
destroy evidence,”1 and (3) the possibility that “the orderly completion of the search
may be facilitated” by the presence of the occupants of the premises. Id. at 702-03,
69 L. Ed. 2d at 349-50.
Given the Court’s stated justifications for Summers’s categorical rule, the term
“occupant” can most reasonably be interpreted as a resident of the searched premises
or a person physically on the premises that are the subject of the search warrant at
the time the search is commenced.2 A nonresident arriving on the scene after the
search has commenced has no reason to flee upon the discovery of contraband, to
attempt to dispose of evidence, to interfere with the search, or to harm law
enforcement officers because, unlike a resident or a person found at the scene when
the officers arrive to conduct the search, evidence of wrongdoing discovered on the
premises could not reasonably be attributed to him.3 Furthermore, the presence of a
1 Notably, the Court did not rely on a generalized officer safety rationale, but on the
specific threat to officers presented by the presence of an individual attempting to destroy or
conceal evidence—someone who would reasonably be implicated in criminal activity should
contraband be found.
2 Such an interpretation would also be consistent with the plain meaning of the word,
see Occupant, Black’s Law Dictionary (10th ed. 2014) (“1. Someone who has possessory rights
in, or control over, certain property or premises. 2. Someone who acquires title by
occupancy.”); Occupant, The American Heritage Dictionary of the English Language 1215 (4th
ed. 2000) (“1. One that occupies a position or place . . . 2. One who has certain legal rights to
or control over the premises occupied; a tenant or owner. 3. Law One that is the first to take
possession of something previously unowned.”), and with the Court’s later language on the
topic, see Bailey v. United States, 568 U.S. 186, 201, 185 L. Ed. 2d 19, 33-34 (2013) (noting
that one factor to consider in determining whether a person is subject to Summers’s
categorical rule is “whether the occupant was within the line of sight of his dwelling”
(emphasis added)). The majority’s definition renders the word “occupant” interchangeable
with terms no more specific than “person” or “individual.”
3 That a nonresident who arrives on the scene after the search commences is not
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STATE V. WILSON
Beasley, J., concurring in the result
nonresident could do little to facilitate the search—a nonresident would not be able
to open locked doors or containers and would have no interest in avoiding “the use of
force that is not only damaging to property but may also delay the completion of the
[search],” as contemplated by the Court in Summers. See id. at 703, 69 L. Ed. 2d at
350. Moreover, the existence of a valid search warrant—the foundation on which
Summers’s categorical rule is built—is premised on a judicial officer’s determination
that “police have probable cause to believe that someone in the home is committing a
crime.” Id. at 703, 69 L. Ed. 2d at 350 (emphasis added). That finding of probable
cause does not extend reasonably to a nonresident or a person who is not in the home
during the search.
The majority’s definition of “occupant” requires no connection whatsoever to
the property that is the subject of a search warrant or the suspected criminal
activity—only that the person detained “poses a real threat to the safe and efficient
execution” of the warrant. It is not unusual for a crowd of curious onlookers to gather
along a police perimeter. How an officer executing a search warrant might
differentiate a person posing a real threat from a neighbor or an innocent bystander
is unclear, as any person in the vicinity of a police search could potentially interfere
with the search or harm officers. Moreover, if an officer were able to conclude that a
categorically subject to suspicionless detention does not mean he cannot be detained. As in
the instant case, law enforcement officers may detain an individual when the totality of the
circumstances supports reasonable suspicion that criminal activity is afoot, and officers may
search him when they reasonably believe he is armed. See Terry v. Ohio, 392 U.S. 1, 30, 20
L. Ed. 2d 889, 911 (1968).
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STATE V. WILSON
Beasley, J., concurring in the result
person posed such a threat, invocation of Summers’s categorical rule would be
unnecessary because, as was the case here, the detention and search of that person
would be justified by Terry.
The majority contends that law enforcement officers’ authority to “mitigate the
risk of someone entering the premises during a search by taking routine precautions,
for instance by erecting barricades or posting someone on the perimeter or at the
door,” gives rise to “some categorical authority for police to detain individuals who
attempt to circumvent them.” Majority Opinion at 9-10 (citations omitted). The
power to exclude, however, is not the same as the power to detain; no Fourth
Amendment issue arises from an individual’s mere exclusion from an area. Law
enforcement officers can, and routinely do, exclude members of the public from
geographical areas for a variety of reasons, including during the execution of search
warrants. The proper response when a person attempts to circumvent officers’
instructions is an entirely separate question from whether all individuals in the
vicinity of an active search—any of whom could conceivably pose a threat to officers—
should be subject to suspicionless detention. Where, as here, an individual does
attempt to bypass a police perimeter, his suspicious behavior likely justifies a Terry
stop. Thus, the majority’s extension of Summers’s categorical rule dramatically
expands the government’s power over individuals but provides no additional
protection for officers in the field.
Accordingly, I concur only in today’s result.
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