State v. Hemphill

723 S.E.2d 142, 219 N.C. App. 50, 2012 WL 540729, 2012 N.C. App. LEXIS 283

• Court: Court of Appeals of North Carolina
• Decided: February 21, 2012
• Docket: No. COA11-639
• Status: Published

Opinions

McGEE, Judge.

Charlotte-Mecklenburg Police Officer Charles Adkins (Officer Adkins) was dispatched to Auto America, a used car sales business, on 10 February 2010, at approximately 10:10 p.'m., in response to an anonymous call reporting suspicious activity involving two African American men, one wearing a white “hoodie.” Auto America was closed for the day and the gate was closed. Officer Adkins saw Defendant, wearing a white hoodie, peering around a white van. Officer Adkins was in a marked patrol car, and was wearing his standard police uniform. Officer Adkins testified:

As soon as [Defendant] saw me, he began to run. He ran around the left side of the business and continued to run behind the business. As soon as he took off, I chased after him.

As soon as he started running, I began to run after him, and I yelled gave him several verbal commands to stop. I identified myself as a police officer and told him to stop.

He continued to run. He ran around the building. We ran through the car lot, all the parked cars there, and he ran in front- of a Mexican restaurant and behind a dumpster there where I caught him.

Defendant “was trying to hide behind a dumpster” when Officer Adkins caught up with him. Officer Adkins had his Taser out, and put Defendant on the ground. While restraining Defendant with handcuffs, Officer Adkins asked Defendant why he was running. Defendant replied that he was breaking into Auto America and did not want to get caught. When Officer Adkins conducted a pat-down search, he recovered a ten-inch screwdriver from Defendant’s back left pocket and a small wrench from Defendant’s back right pocket. Officer Adkins walked Defendant back to the patrol car and advised Defendant of his Miranda rights. Additional officers arrived on the scene, and located a sledgehammer behind the white van where Officer Adkins had originally spotted Defendant. Near the sledgehammer, the officers found an approximately “three-foot by three-foot ... hole in the wall that went about two feet deep, and it actually punctured through the wooden paneling inside of what appeared to be an office.” Officer Adkins then questioned Defendant about the sledgehammer and the hole in the wall of Auto America. Defendant “stated that he brought the tools earlier in the day and that he hid them so that he could break into the business that night.”

Defendant was charged with attempted felonious breaking and entering, possession of implements of housebreaking, and resisting a public officer. Defendant was also charged with having attained habitual felon status. At trial, Defendant moved to suppress both evidence collected and Defendant’s statements, arguing that the initial detention of Defendant was unconstitutional. Defendant’s motions were denied. A jury found Defendant guilty of attempted felonious breaking or entering, possession of implements of housebreaking, resisting a public officer, and of having attained habitual felon status. Defendant appeals.

I. Motions to Suppress

Defendant argues that the trial court erred in denying his motions to suppress. We disagree.

A. Standard of Review

“[T]he scope of appellate review of an order [on a motion to suppress evidence] is strictly limited to determining whether the trial judge’s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge’s ultimate conclusions of law.” Defendant does not challenge any of the trial court’s findings of fact in the order denying his motion to suppress. Defendant assigns error solely to the trial court’s denial of his motion. Accordingly, the only issues for review are whether the trial court’s findings of fact support its conclusions of law and whether those conclusions of law are legally correct.

State v. Stanley, 175 N.C. App. 171, 174-75, 622 S.E.2d 680, 682 (2005) (citations omitted).

B. Discussion

Following the hearing on Defendant’s motions to suppress, the trial court made the following findings of fact:

1. On February 10th, 2009, Charles Adkins, an officer of the Charlotte-Mecklenburg Police Department, was dispatched to a business located at 6802 South Boulevard in Charlotte, North Carolina. The business was a used car lot.

2. The officer arrived at the business at approximately 10:10 p.m. in response to a suspicious persons call from an unknown citizen. When the officer arrived, the business was closed.

3. The parking lot of the business was lighted. Officer Adkins saw the [Defendant peering around a white van parked at the business. He described the [Defendant as a heavyset black male wearing a white hoody.

4. When Officer Adkins saw the [Defendant, the [Defendant began to run. Officer Adkins gave chase. The [Defendant ran down the side of the office of the used car lot and behind the building toward an adjacent business.

5. Officer Adkins yelled for the [Defendant to stop and identified himself as a police officer. The [Defendant continued to run.

6. Officer Adkins pursued the [Defendant approximately one-eighth of a mile to a dumpster located at the adjacent business. The [Defendant was observed trying to hide behind the dumpster.

7. Officer Adkins subdued the [Defendant on the ground and handcuffed him. While handcuffing the [Defendant, Officer Adkins asked the [Defendant why he ran. The [Djefendant responded, “I didn’t want to get caught because I was breaking into the business.”

8. Officer Adkins patted down the [Djefendant’s person and felt objects in his pockets. The objects were removed from the [Djefendant’s person. They were a wrench and a screwdriver.

9. The officer took the [Djefendant to his patrol car where he was secured. Other police officers arrived at the scene.

10. Office[rJ Adkins and another police officer found a large sledgehammer near the van where the [Djefendant had been observed previously, and the officers saw a large hole in a wall of the office building at the used car lot.

11. Officer Adkins returned to the patrol car and gave the [Djefendant the Miranda rights warning. The [Djefendant indicated he understood the rights and was willing to speak with the officer.

12. In response to questions, the [Djefendant said that he had ridden a bus to the used car lot. The [Djefendant stated that he had brought tools to the location earlier in the day and had hidden them so that he could use them to break into the business.

13. Having placed the [Djefendant under arrest, the officer took the [Djefendant to jail.

14. The [Djefendant never requested an attorney at any time during the questioning by Officer Adkins.

Based upon the foregoing findings of fact, the trial court made the following conclusions of law:

1. When Officer Adkins subdued the [Djefendant behind the dumpster, the officer had a reasonable articulable suspicion that criminal activity had taken place. Based upon the totality of the circumstances observed by the officer, including the time of day, the business where the [Djefendant was observed, the [Djefendant’s actions behind the van and the fact that the [Djefendant attempted to flee, refusing to heed the officer’s directive to stop, Officer Adkins was justified in detaining the [Djefendant and in handcuffing the [Djefendant.

2. Officer Adkins was justified in patting down the [Djefend-ant for his safety under the circumstances. The removal of the screwdriver and wrench from the [Djefendant’s person were the result of the pat-down during an investigative detention based upon a reasonable articulable suspicion.

3. At the time the [Defendant made the statement^] “I didn’t want to get caught because I was breaking into the business,” the [Defendant had not been arrested and was being detained for investigation. Therefore, the Miranda warnings were not required at that point.

4. The subsequent statements made by the [Defendant in response to the officer’s questions were made after the administration of the Miranda warnings and were made freely, voluntarily and with knowledge of the [Defendant’s right to remain silent.

5. The detention of the [Defendant, the seizure of the screwdriver and wrench, and the statements obtained from the [Defendant on February 10th, 2009 did not violate any of the rights of the [Defendant under the Constitution of the United states of America or the Constitution of the State of North Carolina.

6. The [Defendant's statements made to Officer Adkins and the evidence seized from the [Defendant are admissible at the trial of this action.

Based upon the foregoing findings of fact and conclusions of law, it is therefore ordered that the [Defendant's motions to suppress evidence are hereby denied.

We hold that the trial court’s findings of fact support its conclusions of law and ruling that Officer Adkins had a reasonable articula-ble suspicion that criminal activity was afoot at the time Officer Adkins detained Defendant. The unchallenged findings of fact show that Officer Adkins was informed after 10:00 p.m. that there had been a report of suspicious activity at Auto America at a time Auto America was closed for business. When Officer Adkins arrived at Auto America he saw Defendant, who generally matched the description of one of the individuals reported, peering from behind a van parked at Auto America. When Defendant spotted Officer Adkins, Defendant ran away from him. Defendant ignored Officer Adkins when he shouted for Defendant to stop, and Officer Adkins ran after Defendant for about an eighth of a mile. When Officer Adkins caught up with Defendant, Defendant was attempting to hide behind a dumpster. When considered together and in context, these facts were sufficient to raise a reasonable suspicion that criminal activity was afoot, and that Defendant was involved. See State v. Butler, 331 N.C. 227, 234, 415 S.E.2d 719, 723 (1992); State v. Willis, 125 N.C. App. 537, 541-42, 481 S.E.2d 407, 410-11 (1997).

The United States Supreme Court, in discussing the significance of the flight of a defendant, stated:

Headlong it the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.

Illinois v. Wardlow, 528 U.S. 119, 124-25, 145 L. Ed. 2d 570, 576-77 (2000) (citation omitted). The Court further stated:

“[R]efusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not “going about one’s business”; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.

Id. at 125, 145 L. Ed. 2d at 577 (citation omitted). In the present case, Defendant’s flight, combined with the totality of the circumstances, was sufficient to support a reasonable articulable suspicion and the investigatory stop. See State v. Jones, 304 N.C. 323, 329, 283 S.E.2d 483, 486 (1981); Willis, 125 N.C. App. at 541-42, 481 S.E.2d at 410-11.

Defendant argues that the stop was unconstitutional, but does not specifically argue that the pat-down of Defendant incident to the stop was unconstitutional, even if the stop itself was constitutional. We hold that once Officer Adkins felt the screwdriver and wrench during the pat-down, he was justified in removing these items as they constituted both a potential danger to Officer Adkins, and were further suggestive of criminal activity being afoot at Auto America.

II. Miranda Warnings

Defendant also contends that his response to Officer Adkins’s questioning while Defendant was on the ground and being restrained with handcuffs should have been suppressed because Officer Adkins had not “mirandized” Defendant at that time. We agree.

“It is well established that the standard of review in evaluating a trial court’s ruling on a motion to suppress is that the trial court’s findings of fact ‘are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.’ ” “The determination of whether a defendant was in custody, based on those findings of fact, however, is a question of law and is fully reviewable by this Court.”

State v. Johnston, 154 N.C. App. 500, 502, 572 S.E.2d 438, 440 (2002) (citations omitted).

The concurring opinion confuses Fourth Amendment analysis concerning the permissible scope of an investigatory detention with the appropriate Fifth Amendment analysis required to determine whether Miranda warnings are required. The subjective intent of Officer Adkins is of no consequence in the relevant Fifth Amendment analysis. Nor is the reasonableness of Officer Adkins’s actions in the context of detaining Defendant for investigatory or “Terry stop” purposes.

The Miranda Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. “[T]he appropriate inquiry in determining whether a defendant is in ‘custody’ for purposes of Miranda is, based on the totality of the circumstances, whether there was a ‘formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.’ ” Buchanan, 353 N.C. at 339, 543 S.E.2d at 828 (citations omitted). The United States Supreme Court has consistently held that “the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Id. at 341, 543 S.E.2d at 829 (quoting Stansbury v. California, 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994)). “A policeman’s unarticulated plan has no bearing on the question of whether a suspect was ‘in custody’ at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Buchanan, 353 N.C. at 341-42, 543 S.E.2d at 829 (quoting Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)).

Johnston, 154 N.C. App. at 502-03, 572 S.E.2d at 440-41.

As [the United States Supreme Court has] repeatedly emphasized, whether a suspect is “in custody” is an objective inquiry. “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.”

J.D.B. v. N. Carolina, _ U.S _, _, 180 L. Ed. 2d 310, 322 (2011) (citation omitted).

Officer Adkins’s actions in detaining and handcuffing Defendant were reasonable under Fourth Amendment principles. However, Officer Adkins’s questioning of Defendant must be analyzed under Fifth Amendment principles. The only exception carved out of the Miranda rule for custodial interrogation is the public safety exception as recognized in New York v. Quarles, 467 U.S. 649, 81 L. Ed. 2d 550 (1984). Officer Adkins’s asking Defendant why Defendant ran did not implicate Quarles and, therefore, did not constitute the kind of question exempted from the Miranda requirements.

We hold that a reasonable person in Defendant’s position, having been forced to the ground by an officer with a taser drawn and in the process of being handcuffed, would have felt his freedom of movement had been restrained to a degree associated with formal arrest. See State v. Crudup, 157 N.C. App. 657, 659-61, 580 S.E.2d 21, 24-25 (2003). The concurring opinion relies on Crudup, but we find that Crudup supports our position. This Court held in Crudup:

Under the facts of this case, we conclude, as a matter of law, that defendant was in “custody.” The record reveals that defendant was immediately handcuffed and detained as a possible burglary suspect. While handcuffed, defendant was questioned while four officers, including Officer Marbrey, surrounded him. Most assuredly, defendant’s freedom of movement was restrained to the degree associated with a formal arrest. A reasonable person under these circumstances would believe that he was under arrest.

Id. at 659-60, 580 S.E.2d at 24 (citations omitted). We do not find that the number of officers involved, or the degree to which the handcuffing of Defendant had been completed, distinguishes the facts in Crudup from those before us.

We further hold that Officer Adkins’s questioning of Defendant at that time constituted an interrogation. Id. Therefore, the trial court should have granted Defendant’s motion to suppress Defendant’s statements that he was breaking into Auto America and that he ran from Officer Adkins because he did not want to be caught.

However, we also hold that Defendant was not prejudiced by the trial court’s failure to suppress his statements. The trial court found as fact that, after Defendant was formally arrested and given his Miranda rights, Defendant stated that

he had ridden a bus to [Auto America]. . . . [Defendant stated that he had brought tools to the location earlier in the day and had hidden them so that he could use them to break into [Auto America].

Because Defendant admitted his guilt after having been given his Miranda rights, we cannot say that the failure to suppress his pre-Miranda statement was prejudicial or harmful. State v. Tuttle, 33 N.C. App. 465, 470, 235 S.E.2d 412, 415 (1977).

III. Ineffective Assistance of Counsel

Defendant further argues that his attorney was ineffective because his attorney failed to object to the admission of the tools and Defendant’s statements at trial. We disagree.

Having determined that the screwdriver and wrench were properly seized pursuant to a constitutional stop and frisk, and that Defendant was not prejudiced by the admission of his pre-Miranda statements, we further hold that Defendant’s counsel was not ineffective when Defendant’s counsel failed to object to the admission of this evidence at trial.

IV. Resisting an Officer

Finally, Defendant argues that the trial court erred in not dismissing the charge of misdemeanor resisting an officer because the indictment for this charge was fatally defective. We disagree.

N.C. Gen. Stat. § 14-223 states: “If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a Class 2 misdemeanor.” N.C. Gen. Stat. § 14-223 (2011). An indictment charging a violation of N.C.G.S. § 14-223 must, inter alia, “state in a general way the manner in which [the] accused resisted or delayed or obstructed such officer.” State v. Fenner, 263 N.C. 694, 700, 140 S.E.2d 349, 353 (1965) (citations omitted). Defendant argues that the indictment in this case failed to state with sufficient particularity the manner in which Defendant resisted, delayed or obstructed Officer Adkins. The indictment at issue stated in relevant part that Defendant resisted Officer Adkins “by not obeying [Officer Adkins’s] command.”

“An indictment for resisting arrest must only include a general description of the defendant’s actions.” State v. Baldwin, 59 N.C. App. 430, 434, 297 S.E.2d 188, 191 (1982) (citation omitted). In Baldwin, the indictment charged

that [the] defendant “unlawfully and wilfully did resist, delay and obstruct [the officer] ... by struggling with [the officer] and attempting to get free of [the officer’s] grasp.” This indictment was notice to the defendant that he should expect the facts surrounding the arrest to be brought out at trial, including his abusive language.

Id. at 435, 297 S.E.2d at 191-92; see also State v. Lynch, 94 N.C. App. 330, 333-34, 380 S.E.2d 397, 399 (1989). Likewise in the present case, the indictment’s general language was sufficient to put Defendant on notice that the events surrounding his arrest would be brought out at trial. The only evidence presented at trial concerning a command given by Officer Adkins was Officer Adkins’s command for Defendant to stop running, which Defendant failed to heed. We hold that the indictment for resisting arrest was not fatally defective.

No prejudicial error.

Judge CALABRIA concurs. Judge HUNTER, Robert C., concurs in the result with separate opinion.