State v. Nicholson , 371 N.C. 284 ( 2018 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 319A17
Filed 8 June 2018
STATE OF NORTH CAROLINA
v.
AHMAD JAMIL NICHOLSON
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, ___ N.C. App. ___, 805 S.E.2d 348 (2017), finding prejudicial
error after appeal from a judgment entered on 13 May 2016 by Judge John O. Craig
III in Superior Court, Forsyth County, and granting defendant a new trial. Heard in
the Supreme Court on 13 March 2018.
Joshua H. Stein, Attorney General, by John R. Green, Jr., Special Deputy
Attorney General, for the State-appellant.
Narendra K. Ghosh for defendant-appellee.
HUDSON, Justice.
Here we consider whether a police officer’s decision to briefly detain Defendant
Ahmad Jamil Nicholson for questioning was supported by a reasonable suspicion of
criminal activity. Because we conclude that it was, we reverse the decision of the
Court of Appeals holding otherwise and reinstate defendant’s conviction.
I. FACTUAL AND PROCEDURAL BACKGROUND
STATE V. NICHOLSON
Opinion of the Court
While on patrol at around 4:00 a.m. on 23 December 2015, Lieutenant Damien
Marotz of the Kernersville Police Department noticed a car parked on West Mountain
Street in a turn lane next to a gas station. The car had its headlights on but no turn
signal blinking. As Lt. Marotz pulled his marked patrol vehicle up next to the car, he
saw two men inside, one in the driver’s seat and the other—later identified as
defendant—in the seat directly behind the driver. The windows were down despite
misting rain and a temperature in the 40s. As Lt. Marotz pulled alongside, he saw
defendant pulling down a hood or “toboggan-style mask of some kind . . . with the
holes in the eyes.” Defendant pulled it down to the bridge of his nose but then pushed
it back up when he saw Lt. Marotz.
Lt. Marotz asked the two men whether everything was okay, and they
responded that it was. The driver, Quentin Chavis, explained that the man in the
back seat was his brother and they had been in an argument. Chavis said that the
argument was over and that everything was okay; defendant agreed, saying, “Yes,
Officer, everything’s fine.” Sensing that something was not quite right, however, Lt.
Marotz again asked the pair whether they were okay, and they nodded to indicate
that they were. Then the driver moved his hand near his neck, “scratching or doing
something with his hand,” but Lt. Marotz was unsure what this gesture meant.
Still feeling that something was amiss, Lt. Marotz drove into the gas station
parking lot to observe the situation. After watching as Chavis’s car remained
immobile in the turn lane for another half a minute, Lt. Marotz got out of his patrol
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vehicle and started on foot toward the stopped car. Defendant then stepped out, and
Chavis began to edge the car forward about two feet. Lt. Marotz asked Chavis,
“Where are you going? Are you going to leave your brother just out here?” Chavis
responded, “No. I’m just late for work. I’ve got to get to work.” Lt. Marotz again asked
whether everything was okay, and the two men said “yes,” everything was fine.
Although Chavis said “yes,” he shook his head “no.” This gesture prompted Lt.
Marotz to say to defendant, “Well, your brother here in the driver’s seat is shaking
his head. He’s telling me everything’s not fine. Is everything fine or not? Is everything
good?” Chavis quickly interjected, “No, Officer, everything’s fine. I’ve just got to get
to work.” After Chavis again stressed that he was going to be late for his job, Lt.
Marotz told him, “Okay. Go to work.”
After Chavis drove away, defendant stated to Lt. Marotz, “The store’s right
here. Can I just walk to the store? Please sir?” to which Lt. Marotz responded, “[H]ang
tight for me just a second . . . you don’t have any weapons on you do you?”1 Defendant
said that he had a knife with him that he carried for self-defense, but a frisk of his
person by a backup officer who had just arrived did not reveal a weapon. After
additional questioning, the officers learned defendant’s identity from his ID card and
told him he was “free to go.”
1 This is the point during the interaction at which the Court of Appeals assumed,
without expressly deciding, that defendant was seized for Fourth Amendment purposes.
State v. Nicholson, ___ N.C. App. ____, ___, 805 S.E.2d 348, 356.
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STATE V. NICHOLSON
Opinion of the Court
Later that day, Chavis reported to police that defendant, who was not actually
his brother, had been in the process of robbing him when Lt. Marotz pulled up.
Chavis testified at trial that defendant had flagged him down while he (Chavis) was
on his way to his early morning shift at FedEx and had requested a ride to the gas
station. Once in the car, defendant held a knife to Chavis’s throat and demanded
money. Chavis handed over his debit card just before Lt. Marotz pulled up. Police
later found a steak knife in the back seat of Chavis’s vehicle. During a search of
defendant’s residence, police discovered a knife block containing steak knives that
looked identical to the one found in Chavis’s car, one of which was missing.
On 14 March 2016, the Forsyth County Grand Jury indicted defendant for
robbery with a dangerous weapon. On 4 May 2016, defendant moved to suppress
evidence obtained as a result of his seizure by Lt. Marotz, asserting that defendant
had been unlawfully detained in violation of his rights under the constitutions of the
United States and North Carolina.
Defendant was tried during the criminal session of Superior Court, Forsyth
County, that began on 9 May 2016 before Judge John O. Craig III. At a hearing
conducted that day on defendant’s motion to suppress evidence related to his seizure,
Lt. Marotz was the sole witness. His testimony included the facts set forth above
explaining defendant’s seizure on the morning of 23 December 2015. After hearing
arguments from counsel, the trial court orally denied the motion to suppress without
making specific findings of fact or conclusions of law. Although the trial court
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Opinion of the Court
instructed the State to prepare an order containing findings of fact and conclusions
of law, no such order can be found in the record.
The jury convicted defendant of common law robbery on 12 May 2016, and the
trial court sentenced him to ten to twenty-one months of imprisonment, suspended
for thirty-six months of supervised probation. Defendant appealed, and on 19
September 2017 the Court of Appeals issued a divided opinion in which it ordered a
new trial after concluding that Lt. Marotz lacked reasonable suspicion to detain
defendant for questioning and that the trial court committed prejudicial error by
denying defendant’s suppression motion. State v. Nicholson, ___ N.C. App. ____, ___,
805 S.E.2d 348, 358. The dissenting judge concluded that the trial court had properly
denied the motion because Lt. Marotz did have reasonable suspicion that criminal
activity was afoot when he seized defendant. Id. at ___, 805 S.E.2d at 358 (Murphy,
J., dissenting). The State filed its appeal of right to this Court based on the dissent.
II. ANALYSIS
The State argues that the Court of Appeals erred in concluding that the facts
established at the suppression hearing fell short of demonstrating that Lt. Marotz
had a reasonable, articulable suspicion of criminal activity before he stopped
defendant. Generally, the standard of review in evaluating a trial court’s denial of a
motion to suppress is “whether competent evidence supports the trial court’s findings
of fact and whether the findings of fact support the conclusions of law.” State v.
Jackson, 368 N.C. 75, 78, 772 S.E.2d 847, 849 (2015) (quoting State v. Otto, 366 N.C.
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134, 136, 726 S.E.2d 824, 827 (2012)). In evaluating a trial court’s denial of a motion
to suppress when the facts are not disputed and the trial court did not make specific
findings of fact either orally or in writing, we infer the findings from the trial court’s
decision and conduct a de novo assessment of whether those findings support the
ultimate legal conclusion reached by the trial court.2 Accordingly, we consider
whether the inferred factual findings arising from the uncontested evidence
presented by Lt. Marotz at the suppression hearing support the trial court’s
conclusion that reasonable suspicion existed to justify defendant’s seizure.
As a general matter, “[b]oth the United States and North Carolina
Constitutions protect against unreasonable searches and seizures.” Otto, 366 N.C. at
136, 726 S.E.2d at 827 (citing U.S. Const. amend. IV and N.C. Const. art. I, § 20).
The United States Supreme Court has long held that the Fourth Amendment permits
2 The statute governing motions to suppress evidence provides that the trial court
“must set forth in the record [its] findings of facts and conclusions of law.” N.C.G.S. § 15A-
977(f) (2017). We have noted, however, that in some situations “[a] written determination
setting forth the findings and conclusions is not necessary, but it is the better practice.” State
v. Bartlett, 368 N.C. 309, 312, 776 S.E.2d 672, 674 (2015) (citing State v. Oates, 366 N.C. 264,
268, 732 S.E.2d 571, 574 (2012)). We explained in Bartlett that,
[a]lthough the statute’s directive is in the imperative form, only
a material conflict in the evidence—one that potentially affects
the outcome of the suppression motion—must be resolved by
explicit factual findings that show the basis for the trial court’s
ruling. When there is no conflict in the evidence, the trial court’s
findings can be inferred from its decision. Thus, our cases
require findings of fact only when there is a material conflict in
the evidence and allow the trial court to make these findings
either orally or in writing.
Id. at 312, 776 S.E.2d at 674 (first citing State v. Salinas, 366 N.C. 119, 123-24, 729 S.E.2d
63, 66 (2012); then citing State v. Ladd, 308 N.C. 272, 278, 302 S.E.2d 164, 168 (1983); and
then citing State v. Munsey, 342 N.C. 882, 885, 467 S.E.2d 425, 427 (1996)).
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a police officer to conduct a brief investigatory stop of an individual based on
reasonable suspicion that the individual is engaged in criminal activity. See Terry v.
Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889, 911 (1968).
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.” . . . The
standard takes into account the totality of “the
circumstances—the whole picture.” 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.
Navarette v. California, ___ U.S. ____, ____, 134 S. Ct. 1683, 1687, 188 L. Ed. 2d 680,
686 (2014) (first quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S. Ct.
690, 695, 66 L. Ed. 2d 621, 629 (1981); then quoting id. at 417, 101 S. Ct. at 695, 66
L. Ed. 2d at 629; then quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at
909; and then quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585,
104 L. Ed. 2d 1, 10 (1989)). As this Court has explained, “[t]he 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, 441-42, 446 S.E.2d 67, 70 (1994) (citing,
inter alia, Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906). “This same
standard—reasonable suspicion—applies under the North Carolina Constitution.”
Jackson, 368 N.C. at 78, 772 S.E.2d at 849 (citing Otto, 366 N.C. at 136-37, 726 S.E.2d
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at 827). Therefore, when a criminal defendant files a motion to suppress challenging
an investigatory stop, the trial court can deny that motion only if it concludes, after
considering the totality of the circumstances known to the officer, that the officer
possessed reasonable suspicion to justify the challenged seizure.
The parties here do not dispute that defendant was seized when, after Chavis
drove off, defendant stated to Lt. Marotz, “The store’s right here. Can I just walk to
the store? Please sir?” and Lt. Marotz responded, “[H]ang tight for me just a second .
. . you don’t have any weapons on you do you?” As the Court of Appeals did, we
assume without deciding that defendant was seized at this moment. See Terry, 392
U.S. at 16, 88 S. Ct. at 1877, 20 L. Ed. 2d at 903 (recognizing that a seizure can occur
when an officer “restrains [a person’s] freedom to walk away”).
Here the State contends that the facts known to Lt. Marotz, when viewed
objectively and in their totality, would lead a reasonable officer to suspect that a crime
had just been committed or was in progress. The State points to the following facts,
among others: (1) it was 4:00 a.m.; (2) the vehicle was stopped in the road with no
turn signal on; (3) there were only two people sitting in the car, one in the driver’s
seat and the other directly behind him in the back seat; (4) defendant appeared to be
pulling some sort of toboggan or ski mask down over his face until he saw Lt. Marotz
and pushed it back up; (5) when Lt. Marotz asked whether the occupants were okay,
each said yes, but Chavis made a hand motion at his neck area; (6) after Lt. Marotz
drove into the store parking lot and waited for an additional thirty seconds, the
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Opinion of the Court
vehicle still did not move or display a turn signal; (7) after defendant got out of the
car, Chavis was edging forward and about to leave defendant, who he had just said
was his brother, on the side of the road on a cold, wet night; (8) when Lt. Marotz again
asked whether everything was okay, Chavis shook his head “no” while defendant said
everything was fine; and (9) after Lt. Marotz confronted defendant with the fact that
Chavis shook his head “no,” Chavis quickly stated that everything was okay. All of
this occurred before defendant stated that he wished to go into the store and Lt.
Marotz stopped him to inquire about weapons.
We agree with the State that these circumstances established a reasonable,
articulable suspicion that criminal activity was afoot. These facts strongly suggest
that Chavis had been under threat from defendant, as well as the possibility that
defendant was in the process of robbing Chavis. As we have recently explained,
the reasonable suspicion standard does not require an
officer actually to witness a violation of the law before
making a stop. . . . Terry stops are conducted not only to
investigate past crime but also to halt potentially ongoing
crime, to thwart contemplated future crime, and . . . to
protect the public from potentially dangerous activity.
State v. Heien, 366 N.C. 271, 279, 737 S.E.2d 351, 356-57 (2012) (citations omitted),
aff’d, ___ U.S. ___, 35 S. Ct. 530, 190 L. Ed. 2d 475 (2014). Assessments of reasonable
suspicion are often fact intensive, and courts must always view facts offered to
support reasonable suspicion in their totality rather than in isolation. See United
States v. Arvizu, 534 U.S. 266, 274, 122 S. Ct. 744, 751, 151 L. Ed. 2d 740, 750 (2002)
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(“Although each of the series of acts was ‘perhaps innocent in itself,’ . . . taken
together, they ‘warranted further investigation.’ ” (quoting Terry, 392 U.S. at 22, 88
S. Ct. at 1880-81, 20 L. Ed. 2d at 907)); State v. Williams, 366 N.C. 110, 117, 726
S.E.2d 161, 167 (2012) (“Viewed individually and in isolation, any of these facts might
not support a reasonable suspicion of criminal activity. But viewed as a whole by a
trained law enforcement officer . . . , the responses were sufficient to provoke a
reasonable articulable suspicion that criminal activity was afoot . . . .”).
Here, while each of the above-listed facts might not establish reasonable
suspicion when viewed in isolation, when considered in their totality they could lead
a reasonable officer to suspect that he had just happened upon a robbery in progress.
When viewing all the facts together, innocent explanations for the events that Lt.
Marotz observed seem much less likely than this scenario. If indeed these were two
brothers, why would they be seated one in front of the other like a taxi or rideshare
driver and customer might sit, and why would one brother leave the other on the side
of the road in the middle of a cold, wet night after an argument had ended? And if
everything had been resolved, why would Chavis silently shake his head “no” when
asked whether everything was fine? Add to these questions defendant’s suspicious
behavior involving the toboggan or ski mask3 and it is clear that reasonable suspicion
3 We are not persuaded by defendant’s suggestion that Lt. Marotz’s uncertainty during
cross-examination about whether defendant’s headgear actually had eyeholes is dispositive
to the present analysis. The suspicious fact—just one among other suspicious indicia—was
that defendant was pulling something down over his face and abruptly pushed it back up
when he saw a police officer.
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existed to briefly detain defendant for questioning.4
We also agree with the State that the Court of Appeals majority placed undue
weight on Lt. Marotz’s subjective interpretation of the facts rather than focusing on
how an objective, reasonable officer would have viewed them. During cross-
examination at the suppression hearing, the following exchange occurred in which
defendant’s counsel questioned Lt. Marotz about why he stopped defendant after
permitting Chavis to leave the scene:
Q. So you were continuing to question [defendant]
about an incident that you had already released one of the
parties to?
A. That’s correct.
Q. And you, at that point, had no evidence of any
criminal activity that you were able to objectively point to.
Correct?
A. No. That’s why I was continuing to investigate.
4 We find the drug cases from other jurisdictions cited by defendant unpersuasive
because they are not factually analogous or otherwise helpful to his case. The broader point
defendant appears to make is, as the United States Court of Appeals for the Fourth Circuit
put it, a
concern about the inclination of the Government toward using
whatever facts are present, no matter how innocent, as indicia
of suspicious activity. . . . [A]n officer and the Government must
do more than simply label a behavior as “suspicious” to make it
so. The Government must also be able to either articulate why a
particular behavior is suspicious or logically demonstrate, given
the surrounding circumstances, that the behavior is likely to be
indicative of some more sinister activity than may appear at first
glance.
United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011). We are satisfied that the State is
able to articulate why the set of circumstances and behaviors here was suspicious and “likely
to be indicative of some more sinister activity than may appear at first glance.” Id.
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Q. So you were looking to see if you could find
anything, but you hadn’t yet seen anything?
A. That’s correct. I wanted to make sure that both
your client and also the alleged victim were safe and that
nothing had happened to either one of them.
(Emphases added.) The Court of Appeals majority concluded that this exchange
“confirmed [Lt. Marotz] had no evidence of any criminal activity to which he could
objectively point.” Nicholson, ___ N.C. App. at ___, 805 S.E.2d at 356 (majority
opinion).
It is well established, however, that “[a]n action is ‘reasonable’ under the
Fourth Amendment, regardless of the individual officer’s state of mind, ‘as long as the
circumstances, viewed objectively, justify [the] action.’ ” Brigham City v. Stuart, 547
U.S. 398, 404, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650, 658 (2006) (brackets in
original and first emphasis added) (quoting Scott v. United States, 436 U.S. 128, 138,
98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168, 178 (1978) (second emphasis added)); see also
Ashcroft v. al–Kidd, 563 U.S. 731, 736, 131 S. Ct. 2074, 2080, 179 L. Ed. 2d 1149,
1155-56 (2011) (“Fourth Amendment reasonableness ‘is predominantly an objective
inquiry.’ We ask whether ‘the circumstances, viewed objectively, [justify the
challenged] action.’ If so, that action was reasonable ‘whatever the subjective intent’
motivating the relevant officials.” (first quoting City of Indianapolis v. Edmond, 531
U.S. 32, 47, 121 S. Ct. 447, 457, 148 L. Ed. 2d 333, 347 (2000); then quoting Scott, 436
U.S. at 138, 98 S. Ct. at 1723, 56 L. Ed. 2d at 178 (bracketed language added); and
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then quoting Whren v. United States, 517 U.S. 806, 814, 116 S. Ct. 1769, 1775, 135 L.
Ed. 2d 89, 98 (1996))); Terry, 392 U.S. at 21-22, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906
(“[It] is imperative that the facts be judged against an objective standard: would the
facts available to the officer at the moment of the seizure or the search ‘warrant a
man of reasonable caution in the belief’ that the action taken was appropriate?”).
We have highlighted this principle in several of our decisions. For instance, in
State v. Bone, 354 N.C. 1, 550 S.E.2d 482 (2001), cert. denied, 535 U.S. 940, 122 S. Ct.
1323, 152 L. Ed. 2d 231 (2002), we considered whether an officer had probable cause
to arrest a defendant despite the fact that the officer stated during the suppression
hearing that he did not think he had probable cause to make the arrest. Id. at 10,
550 S.E.2d at 488. We explained that the officer’s “subjective opinion is not material.
Nor are the courts bound by an officer’s mistaken legal conclusion as to the existence
or non-existence of probable cause or reasonable grounds for his actions. The search
or seizure is valid when the objective facts known to the officer meet the standard
required.” Id. at 10, 550 S.E.2d at 488 (quoting State v. Peck, 305 N.C. 734, 741, 291
S.E.2d 637, 641-42 (1982)); see also State v. Riggs, 328 N.C. 213, 218-19, 400 S.E.2d
429, 432-33 (1991) (concluding that an officer’s subjective belief that an informant
whose tip he used to establish probable cause for a search warrant did not meet the
legal definition of a “reliable” informant “does not control” given that “the defendants’
rights ‘are governed by the law, rather than by the officers’ misunderstanding of it’ ”
(quoting State v. Coffey, 65 N.C. App. 751, 758, 310 S.E.2d 123, 128 (1984))).
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Accordingly, we do not consider Lt. Marotz’s subjective analysis of the facts as
probative of whether those facts—viewed objectively—satisfy the reasonable
suspicion standard necessary to support defendant’s seizure.
In a related argument, defendant contends that the Court of Appeals correctly
concluded that the facts did not establish reasonable suspicion “in light of the fact Lt.
Marotz already questioned both Defendant and Chavis twice and subsequently
released Chavis so he could go to work after he assessed the situation and concluded
‘[i]t was a heated argument between two brothers.’ ” Nicholson, ___ N.C. App. at ___,
805 S.E.2d at 356. That is, defendant argues that Lt. Marotz had determined, based
upon Chavis’s and defendant’s responses to his questions, that there was no criminal
activity afoot. But again, the Court of Appeals majority and defendant focus on Lt.
Marotz’s subjective state of mind rather than conducting an objective inquiry.
Whatever personal perspective Lt. Marotz provided on cross-examination about the
stop, the facts support a reasonable inference that, rather than a recent squabble
between brothers, something more sinister had been unfolding when he arrived on
the scene. Moreover, a reasonable officer is not required to accept at face value
statements made during an investigation, especially in light of the other suspicious
circumstances present here.
As the United State States Supreme Court has observed,
[t]he Fourth Amendment does not require a policeman who
lacks the precise level of information necessary for
probable cause to arrest to simply shrug his shoulders and
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allow a crime to occur or a criminal to escape. On the
contrary, Terry recognizes that it may be the essence of
good police work to adopt an intermediate response.
Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 616-
17 (1972) (citing Terry, 392 U.S. at 23, 88 S. Ct. at 1881, 20 L. Ed. 2d at 907). Lt.
Marotz adopted such an approach here. Rather than shrugging his shoulders when
he came upon a concerning situation, he did good police work. He saw signs—some
subtle, some more overt—that something was amiss, and he investigated
appropriately. We will not fault the State for the officer’s subjective characterizations
of the facts at the suppression hearing when, as a legal matter, the undisputed facts
establish reasonable suspicion necessary to justify defendant’s seizure.
III. CONCLUSION
For the foregoing reasons, we reverse the decision of the Court of Appeals and
instruct that court to reinstate the judgment entered by the trial court on 13 May
2016.
REVERSED.
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