State v. Johnson

• Court: Supreme Court of North Carolina
• Decided: August 13, 2021
• Docket: 3A20
• Status: Published

Opinion

IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-85

No. 3A20

Filed 13 August 2021

STATE OF NORTH CAROLINA

v. BRYAN XAVIER JOHNSON

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, 269 N.C. App. 76 (2019), finding no error after appeal from an

order denying defendant’s Motion to Suppress entered on 29 June 2018 by Judge

Forrest D. Bridges in Superior Court, Mecklenburg County. Heard in the Supreme

Court on 22 March 2021.

Joshua H. Stein, Attorney General, by Kristin J. Uicker, Assistant Attorney General, for the State-appellee.

Kimberly P. Hoppin for defendant-appellant.

MORGAN, Justice.

¶1 Defendant’s appeal requires this Court to review the trial court’s order denying

defendant’s motion to suppress evidence of a bag of narcotics seized from his vehicle

during a traffic stop on 14 January 2017. The dispositive question on appeal is

whether the law enforcement officers conducting a search for weapons on defendant’s

person and in the areas of defendant’s vehicle under his immediate control possessed

the requisite reasonable suspicion to initiate such a warrantless search pursuant to STATE V. JOHNSON

Opinion of the Court

Terry v. Ohio, 392 U.S. 1 (1968). Because we hold that the law enforcement officer

who conducted the traffic stop presented articulable facts at the suppression hearing

which gave rise to a reasonable suspicion that defendant was armed and dangerous,

the trial court did not commit error in denying defendant’s request to suppress the

controlled substances which were discovered as a result of the search of the areas of

defendant’s vehicle which were under defendant’s immediate control.

I. Factual and Procedural Background

¶2 As a seven-year veteran of the Charlotte-Mecklenburg Police Department

(CMPD) and a member of the law enforcement agency’s Crime Reduction Unit, Officer

Whitley was conducting patrol operations in the early morning hours of 14 January

2017 in a location of the city that he described at the suppression hearing as a “very

high crime area.” Officer Whitley and his partner, Sergeant Visiano, were traveling

along Central Avenue in the Hickory Grove section of Charlotte when they observed

a black Dodge Charger. While Officer Whitley continued to operate their patrol

vehicle, Sergeant Visiano ran the license plate displayed on the Dodge Charger

through the agency’s computer system and discovered that the license plate was

actually registered to an Acura MDX. Having determined that the tag displayed on

the Dodge Charger was “fictitious,” Officer Whitley initiated a traffic stop, and the

two vehicles pulled into a Burger King parking lot.

¶3 While approaching the driver’s side of the Dodge Charger, Officer Whitley STATE V. JOHNSON

noticed that the car’s occupant had raised his hands in the air. It was determined

that the individual in the Dodge Charger was defendant. Officer Whitley

subsequently testified at the suppression hearing that he had observed persons

raising their hands in such a manner ten to twenty times previously and that, based

upon his experience which included specialized training in recognizing armed

individuals, this behavior can “sometimes . . . mean that they have a gun.” Officer

Whitley conversed with defendant at the driver’s window as defendant remained

seated in the Dodge Charger, while Sergeant Visiano positioned himself at the

passenger side window in order to see defendant’s right side. Officer Whitley asked

for defendant’s driver’s license and registration and inquired about the possible

presence of any weapons in the vehicle; defendant denied the presence of such items.

Officer Whitley explained that the mismatched license plate served as the reason for

the traffic stop, prompting defendant to volunteer that defendant had just purchased

the Dodge Charger in a private sale that day and that defendant knew that the

displayed tag did not belong to the vehicle that he was driving. Defendant readily

produced his driver’s license but had to search for the car’s registration and bill of

sale in the center console of the vehicle. Officer Whitley testified at the suppression

hearing that during this interaction, defendant “seemed very nervous . . . like his

heart is beating out of his chest a little bit. He was very nervous.” Further, as

defendant reached into the center console to find the requested documentation, STATE V. JOHNSON

Officer Whitley recalled during his testimony that defendant was “blading [his body]

. . . as if he is trying to conceal something that is to his right, as if he’s using his body

to distance what I can see from what he’s doing.” This appeared odd to Officer

Whitley, who testified at the suppression hearing that while “typically people

obviously reach and turn” to retrieve items from the center consoles of their vehicles,

defendant did so “to the extent where his shoulders were completely off the seat.”

¶4 “[A]t this point,” Officer Whitley testified, defendant’s positioning of his hands

above his head as the officers approached his vehicle, his nervousness, and the

“blading” of his body as he reached into the center console were “adding up as . . .

characteristics of an armed subject.” After defendant produced a bill of sale for the

Dodge Charger from the center console, Officer Whitley left defendant in the driver’s

seat of the vehicle while defendant spoke with Sergeant Visiano. Meanwhile, Officer

Whitley returned to his patrol car in order to process the information and paperwork

provided by defendant through multiple law enforcement intelligence databases,

which is “a standard practice for every traffic stop that” the officer conducts.

Information gathered from Officer Whitley’s search of North Carolina’s CJLEADS

system—a database which details a person’s history of contacts with law enforcement

in the form of a list of criminal charges filed against the individual—indicated that

defendant had been charged with multiple violent crimes and offenses related to

weapons from the years 2003 through 2009. While he could not offer testimony as to STATE V. JOHNSON

which charges against defendant had resulted in convictions, Officer Whitley testified

that the “trend in violent crime” revealed by the CJLEADS search, combined with

the “holding up of the hands, as well as the blading of the body,” and the fact that

defendant appeared very nervous, “led [the officer] to believe that he was armed and

dangerous at that point.”

¶5 Officer Whitley exited his patrol car, returned to defendant’s vehicle, and asked

defendant to step out of the Dodge Charger, with the intent of conducting a frisk of

defendant’s person and a search of the vehicle. Defendant got out of his car and went

to the rear door on the driver’s side of the vehicle at Officer Whitley’s request before

defendant consented to be frisked by the law enforcement officer for weapons. A pat

down of defendant’s clothing revealed no weapons or other indicia of contraband. At

this point, Officer Whitley walked to the rear of defendant’s Dodge Charger and asked

for defendant’s consent to search the vehicle. Defendant refused to grant such

consent. Officer Whitley then explained that the officers were going to conduct a

limited search of defendant’s vehicle nonetheless based on defendant’s “criminal

history . . . and some other things.” While defendant continued to protest the search

of the Dodge Charger, Officer Whitley left him with Sergeant Visiano and began a

search of the front driver’s side of defendant’s vehicle. Immediately upon opening the

unlocked center console, Officer Whitley discovered a baggie of “[w]hat appeared to

be powder cocaine” and removed the suspected contraband from the vehicle. After STATE V. JOHNSON

completing his search of the area of the vehicle immediately behind the driver’s seat,

Officer Whitley placed defendant under arrest.

¶6 On 14 January 2017, defendant was charged with the felonious offense of

possession with intent to sell or deliver cocaine and the misdemeanor offense of

possession of drug paraphernalia, and was formally indicted by a Mecklenburg

County grand jury for possession of cocaine on 25 September 2017.

¶7 Defendant filed a motion to suppress on 16 May 2018, which came on for

hearing before the Honorable Forrest D. Bridges in Superior Court, Mecklenburg

County, on 26 June 2018. Officer Whitley testified about the course of events which

resulted in defendant’s arrest. Additionally, the trial court viewed Officer Whitley’s

body camera recording of the incident after defendant’s counsel stipulated to the

video’s admissibility. After hearing arguments from counsel for the State and

defendant, the trial court denied defendant’s motion to suppress. While defendant

initially indicated a desire to proceed to trial, he agreed to plead guilty to felony

possession of cocaine and misdemeanor possession of drug paraphernalia after a short

recess before the jury was selected. The trial court accepted defendant’s guilty plea

and noted for the record that defendant had preserved his right to appeal the trial

court’s earlier ruling on defendant’s motion to suppress.

¶8 The trial court then asked the State’s attorney to prepare an order reflecting

the details of the hearing on defendant’s motion to suppress. In providing direction STATE V. JOHNSON

regarding the desired contents of the order, the trial court recounted the factual basis

upon which it had concluded that Officer Whitley had established the reasonable

suspicion necessary to conduct a Terry search1 of defendant’s vehicle. In open court,

the trial court recalled the manner in which Officer Whitley had conducted the traffic

stop in the location which the officer had described as a high-crime area and the

officer’s discovery of defendant’s prior charges, upon researching the state’s criminal

record databases, for robbery with a dangerous weapon, assault with a deadly weapon

with the intent to kill, and discharging a weapon into occupied property. The trial

court noted that defendant raised his hands out of the window of the Dodge Charger

as Officer Whitley approached, which had put the officer “on alert for the possible

presence of a gun within the vehicle.” In addition, the trial court explained that, while

Officer Whitley reasonably believed that defendant’s maneuver to raise his hands out

of the car’s window could indicate the presence of a gun, defendant had acted

appropriately in holding his hands up and out of the window “in this day and time,”

and such conduct was not to be considered independently incriminating. The trial

court entered a written order dated 29 July 2018 which included the above findings

and concluded:

2. That based on the totality of [the] circumstances, including but not limited to: the [d]efendant’s hands in the air upon the Officer’s approach, and the [d]efendant’s prior

1 A shorthand reference commonly used to describe a warrantless search which is

performed pursuant to the principles stated in Terry v. Ohio, 392 U.S. 1 (1968). STATE V. JOHNSON

criminal history, that the limited frisk of the lungeable areas of the vehicle was justified.

3. That the Officer’s scope of the frisk was properly limited only to areas where the [d]efendant would have had access to retrieve a weapon if he chose to do so.

¶9 Defendant was sentenced to a term of 8 to 19 months in prison, which was

suspended for 24 months of supervised probation. Defendant appealed to the North

Carolina Court of Appeals, where a divided panel issued its decision on 17 December

2019 affirming the trial court’s denial of defendant’s motion to suppress. Defendant

appeals to this Court as a matter of right pursuant to N.C.G.S. § 7A-30(2) based upon

the dissenting opinion filed in the lower appellate court’s consideration of this matter.

II. Analysis

¶ 10 Defendant argues before this Court that several of the trial court’s findings

and conclusions announced in open court and reproduced in the subsequent written

order in which the trial court denied defendant’s motion to suppress were not

supported by the evidence. In removing these disputed findings and conclusions from

the trial court’s contemplation, defendant contends that Officer Whitley did not have

a reasonable suspicion that defendant was armed, that the Terry search of

defendant’s vehicle represented an unconstitutional extension of the traffic stop, and

that this Court’s correction of the trial court’s supposed error should result in an

outcome which vacates the trial court’s order and overturns defendant’s conviction.

We disagree with defendant’s assertions and address them in turn. STATE V. JOHNSON

A. Standard of Review

¶ 11 We review a party’s challenges to a trial court’s findings of fact to ascertain

whether those findings are supported by any competent evidence, the presence of

which will render such findings binding on appeal. State v. Reed, 373 N.C. 498, 507

(2020). The trial court’s conclusions of law, including the ultimate conclusion as to

whether a law enforcement officer had the constitutional authority to conduct a Terry

frisk of a defendant’s vehicle, are reviewed on a de novo basis. Id.

B. Trial Court’s Findings and Conclusions

¶ 12 As an initial matter, defendant complains of the consideration by the Court of

Appeals of Officer Whitley’s uncontroverted testimony concerning defendant’s

nervousness and the “blading” of defendant’s body as defendant accessed the center

console of his vehicle, as well as the lower appellate court’s recognition that the traffic

stop took place late at night. To bolster his position, defendant observes that the trial

court did not make express findings concerning these factors. Although North

Carolina statutory law establishes that, “in making a determination whether or not

evidence shall be suppressed,” the trial court is required to “make findings of fact and

conclusions of law which shall be included in the record, pursuant to [N.C.]G.S. [§]

15A-977(f)[,]” N.C.G.S. § 15A-974(b) (2019), nonetheless the reduction of the trial

court’s considerations to a written order is not required. State v. Oates, 366 N.C. 264,

268 (2012) (“While a written determination is the best practice, nevertheless STATE V. JOHNSON

[N.C.G.S. § 15A-977(f)] does not require that these findings and conclusions be in

writing.”). In the present case, the trial court, in its discretion, included a recitation

of some of the evidence before the tribunal in its written order and specifically noted

the sufficiency of the evidence to establish reasonable suspicion in the mind of the

officer to support a Terry search, which involved the trial court’s evaluation of factors

which “includ[ed] but [was] not limited to” the factors listed in the written order.

“Although [N.C.G.S. § 15A-974(b)’s] directive is in the imperative form, only a

material conflict in the evidence” requires a trial court to make “explicit factual

findings that show the basis for the trial court’s ruling.” State v. Bartlett, 368 N.C.

309, 312 (2015) (citing State v. Salinas, 366 N.C. 119, 123–24 (2012)). Thus, “[w]hen

there is no conflict in the evidence,” an appellate court may infer a trial court’s

findings in support of its decision on a motion to suppress so long as that unconflicted

evidence was within the trial court’s contemplation. Bartlett, 368 N.C. at 312 (citing

State v. Munsey, 342 N.C. 882, 885 (1996)). In applying these enunciated principles

to the instant case, the Court of Appeals did not wrongly infer from the

uncontroverted evidence before the trial court adduced at the suppression hearing

and the subsequent findings and conclusions which the trial court entered in its

order, that the factors—among other factors—of Officer Whitley’s testimony about

defendant’s nervousness, defendant’s “blading” of his body, and the late hour of the

traffic stop constituted circumstances which provided reasonable suspicion for the STATE V. JOHNSON

Terry search to be conducted. The lack of controverted evidence at the suppression

hearing strengthened the trial court’s ability to choose the evidentiary facts and the

resulting persuasive factors which the trial court elected to expressly include in its

order.

¶ 13 Furthermore, defendant does not contest the evidence, in the form of Officer

Whitley’s testimony and the body camera footage viewed by the trial court, regarding

defendant’s nervousness and defendant’s maneuver of “blading” his body; rather,

defendant opts to attempt to contextualize these behavioral displays by

characterizing defendant’s emotional and physical issues during his interaction with

Officer Whitley. In this regard, defendant merely attempts to relitigate the veracity

of Officer Whitley’s interpretation of defendant’s conduct. “The weight, credibility,

and convincing force of such evidence is for the trial court, who is in the best position

to observe the witnesses and make such determinations.” Macher v. Macher, 188 N.C.

App. 537, 540, aff’d per curiam, 362 N.C. 505 (2008). The trial court in this matter

was “the sole judge of the credibility and weight of the evidence,” and it was free to

“accept or reject the testimony of a witness, either in whole or in part, depending

solely upon whether it believes or disbelieves the same.” Moses v. Bartholomew, 238

N.C. 714, 718 (1953). For this Court to accept defendant’s invitation to reinterpret

Officer Whitley’s suppression hearing testimony, when the original interpretation of

defendant’s conduct made by the officer on scene has already been evaluated by the STATE V. JOHNSON

trial court in a manner contemplated by, and consistent with, the operational

structure of our legal system, would be to ignore the trial court’s status as “the sole

judge of the credibility of the witnesses and of the weight of their testimony.” State v.

Johnson, 230 N.C. 743, 745 (1949).

¶ 14 Likewise, defendant does not challenge the evidentiary basis for the trial

court’s consideration of Officer Whitley’s discovery of defendant’s criminal history as

a contributing factor to the officer’s development of reasonable suspicion to justify the

officer’s execution of a Terry search; instead, defendant submits that the evidence

“did not support a finding that Officer Whitley had reasonable concerns for his safety

based on [defendant’s] prior criminal history.” Additionally, defendant endeavors to

fortify his impression that the officer’s concerns for the officer’s safety were not

supported by the evidence of the officer’s awareness of defendant’s criminal history

at the time of the traffic stop by emphasizing that the officer did not fully recall at

the suppression hearing all of the details and the outcomes of defendant’s criminal

history, which therefore negated the manifestation of reasonable suspicion in the

mind of the officer during Officer Whitley’s interaction with defendant. Again, like

defendant’s concerns about Officer Whitley’s observance of defendant’s nervousness

and “blading” of his body, this amounts to defendant’s renewed invitation for our

Court to substitute our judgment regarding the veracity and accuracy of a witness’s

testimony for the determination of a trial court which occupied “the best position to STATE V. JOHNSON

observe the witnesses and make such determinations.” Macher, 188 N.C. App. at 540

(quoting Freeman v. Freeman, 155 N.C. App. 603, 608 (2002)). Here, Officer Whitley

testified without contravention that he “discovered that the defendant did have a

history, violent history, related to firearms” in the form of various charges extending

from 2003 to 2009, which the officer described as a “trend in violent crime” that, in

conjunction with the other evidentiary facts already discussed, “led [him] to believe

that [defendant] was armed and dangerous at that point.” Defendant’s position from

this cosmetically different, yet fundamentally identical, premise is also without

merit.

¶ 15 By way of review, the unconflicted evidence introduced by the State at the

hearing conducted by the trial court on defendant’s motion to suppress—that (1) the

traffic stop occurred late at night (2) in a high-crime area, with (3) defendant

appearing “very nervous” to the detaining officer to the point that it “seem[ed] like

his heart [was] beating out of his chest a little bit[,]” with (4) defendant “blading his

body” as he accessed the Dodge Charger’s center console, and (5) defendant’s criminal

record indicating a “trend in violent crime” and weapons-related charges—was

sufficient for the trial court to make findings of fact and conclusions of law that the

investigating law enforcement officer had reasonable suspicion to conduct a Terry

search of defendant’s person and in areas of defendant’s vehicle under defendant’s

immediate control for the officer’s safety. STATE V. JOHNSON

C. Reasonable Suspicion for the Terry Search

¶ 16 Both the Fourth Amendment to the Constitution of the United States and

article I, section 20 of the North Carolina Constitution protect private citizens against

unreasonable searches and seizures. State v. Otto, 366 N.C. 134, 136 (2012). Traffic

stops are considered seizures subject to the strictures of these provisions and are

“historically reviewed under the investigatory detention framework first articulated

in Terry v. Ohio.” Id. at 136–37 (quoting State v. Styles, 362 N.C. 412, 414 (2008));

Reed, 373 N.C. at 507. Law enforcement officers may initiate a traffic stop if the

officer has a “reasonable, articulable suspicion that criminal activity is afoot.” Styles,

362 N.C. at 414 (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). The

reasonableness of a traffic stop is determined “by examining (1) whether the traffic

stop was lawful at its inception, and (2) whether the continued stop was ‘sufficiently

limited in scope and duration to satisfy the conditions of an investigative seizure.’ ”

Reed, 373 N.C. at 507 (citations omitted) (quoting Florida v. Royer, 460 U.S. 491, 500

(1983)). Once the traffic stop is initiated, a law enforcement officer may conduct a

limited search of the passenger compartment of the vehicle so long as the officer

develops a reasonable suspicion that the suspect of the traffic stop is armed and

dangerous. Terry, 392 U.S. at 27. The Supreme Court of the United States has

extended the reasonable suspicion standard originally established in Terry to allow

for these limited searches: STATE V. JOHNSON

[T]he search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on “specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant” the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.

Michigan v. Long, 463 U.S. 1032, 1049 (1983) (quoting Terry, 392 U.S. at 21).

Reasonable suspicion demands more than a mere “hunch” on the part of the officer

but requires “less than probable cause and considerably less than preponderance of

the evidence.” State v. Williams, 366 N.C. 110, 117 (2012). In any event, reasonable

suspicion requires only “some minimal level of objective justification,” Styles, 362

N.C. at 414 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)), and arises from

“specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant” the intrusion presented by the limited search of the

vehicle, Terry, 392 U.S. at 21.

¶ 17 As discussed above, competent evidence exists in the record of the suppression

hearing that Officer Whitley encountered a “very nervous” individual—specifically,

defendant—late at night in a high-crime area. The officer saw defendant “blade” his

body by way of defendant’s assumption of a physical position which the officer

interpreted to be an effort by defendant to conceal defendant’s entry into the vehicle’s

center console. “All [of] these things,” Officer Whitley testified, were “adding up as,

from my training and experience, as characteristics of an armed suspect.” Also, upon STATE V. JOHNSON

Officer Whitley’s return to his patrol car in order to conduct a criminal records check

of defendant, the officer obtained information about defendant’s criminal history that

solidified the existence of reasonable suspicion for the officer to conduct a Terry

search, based on the belief developed by Officer Whitley that defendant was armed

and dangerous.

¶ 18 Standing alone, defendant’s criminal record for which defendant has already

paid his debt to society does not constitute reasonable suspicion and hence cannot

singly serve as a basis for the law enforcement officer who effected the traffic stop to

conduct a Terry search of the passenger compartment of defendant’s vehicle.2

Likewise, defendant’s mere presence in a high-crime area does not solely provide the

officer with the necessary reasonable suspicion to authorize the officer to order

defendant to exit the vehicle so that the officer can look for weapons. See State v.

Jackson, 368 N.C. 75, 80 (2015). Similarly, defendant’s nervousness does not in and

of itself amount to reasonable suspicion when displayed to a detaining officer. State

v. Pearson, 348 N.C. 272, 276 (1998). However, we do not assess each of these factors,

specifically articulated by Officer Whitley in this case, in isolation. See Jackson, 368

2 However, a law enforcement officer’s specific knowledge of a suspect’s felonious criminal convictions alters the reasonable suspicion inquiry when the officer (1) conducts a lawful investigative stop of the suspect for the very conduct which serves as the basis for those criminal convictions (albeit this circumstance is not present here), and (2) testifies that based on the training and experience of the officer, the felonious conduct for which defendant has been convicted and is currently being investigated is normally associated with the possession of weapons. State v. McGirt, 122 N.C. App. 237, 240 (1996), aff’d per curiam, 345 N.C. 624 (1997). STATE V. JOHNSON

N.C. at 80. We examine the totality of the circumstances surrounding Officer

Whitley’s interaction with defendant in order to achieve a comprehensive analysis as

to whether the officer’s conclusion that defendant may have been armed and

dangerous was reasonable. Id. In the case at bar, in which the officer rendered

uncontroverted testimony that he conducted a late-night traffic stop of defendant’s

vehicle in a high-crime area and encountered defendant who acted very nervous,

appeared to purposely hamper the officer’s open view of defendant’s entry into the

vehicle’s center console, and possessed a criminal history which depicted a “trend in

violent crime,” we conclude that the officer’s suspicion of defendant’s potentially

armed and dangerous status was reasonable. Therefore, Officer Whitley operated

within the bounds of both the Fourth Amendment to the Constitution of the United

States and article I, section 20 of the North Carolina Constitution in removing

defendant from the Dodge Charger and searching the area of the vehicle’s passenger

compartment that was within defendant’s control for weapons.

¶ 19 In determining that the aforementioned factors were sufficient to constitute

reasonable suspicion for the officer’s Terry search based on the totality of the

circumstances, we have purposely and expressly removed from the assemblage of

factors which were considered by the trial court to establish reasonable suspicion the

factor gleaned from Officer Whitley’s uncontroverted testimony that defendant’s act

of raising his hands and extending them from the driver’s side window, so that STATE V. JOHNSON

defendant’s hands could readily be seen by the approaching officers, was interpreted

by Officer Whitley as a sign that there could be the presence of a firearm in the

vehicle. The officer testified at the suppression hearing that defendant’s placement of

defendant’s hands figured into the officer’s belief that defendant “was armed and

dangerous at that point.” The Court of Appeals, in giving deference to the officer’s

right “to rely on his experience and training” and to the trial court’s order, included

this factor of “raising one’s hands” as defendant did in the present case to be properly

considered in the totality of the circumstances which resulted in the existence of the

officer’s reasonable suspicion to execute the Terry search. Johnson, 269 N.C. App. at

85–86.

¶ 20 In his brief, defendant’s appellate counsel argues that defendant’s action of

raising defendant’s hands and clearly exposing them to the officers as they neared

defendant’s vehicle during the traffic stop should be construed differently than Officer

Whitley, the trial court, and the Court of Appeals did:

In this case, the trial court commended [defendant] for raising his hands and placing them out the window upon being stopped by officers . . . . He was praised by the trial court for taking action considered helpful to avoid getting shot, but this same action was found to establish, in part, the basis for a frisk for weapons. This presents an unjust choice.

¶ 21 We do not need, nor choose, to address any such real or perceived conundrum

with regard to the existence of reasonable suspicion for the Terry search because in STATE V. JOHNSON

this Court’s view, the factor of defendant’s raised hands upon the officer’s effectuation

of the traffic stop is unnecessary to consider for the purpose of the establishment of

reasonable suspicion in light of the totality of the circumstances which include the

other factors comprising the officer’s reasonable suspicion which collectively have

already been deemed by this Court to be sufficient in the present case. Like the

Fourth Circuit Court of Appeals, we harbor some “concern about the inclination of

the [State] toward using whatever facts are present, no matter how innocent, as

indicia of suspicious activity.” State v. Nicholson, 371 N.C. 284, 291 n.4 (2018)

(quoting United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011)). Nonetheless, for

the purpose of our legal analysis as to the State’s establishment of the existence of

reasonable suspicion for the officer’s Terry search, we conclude that the totality of the

circumstances supports the trial court’s ultimate conclusion that such reasonable

suspicion existed, even after this Court eliminates defendant’s gesture of raising his

hands as a factor.

D. Extension of the Stop

¶ 22 Lastly, defendant contends that Officer Whitley’s search of defendant’s vehicle

after discovering defendant’s criminal history represented an unconstitutional

extension of the traffic stop because “it seems evident that Officer Whitley was

satisfied that a traffic citation for displaying a fictitious tag was not warranted under

the circumstances as he did not issue such a citation.” Therefore, defendant posits STATE V. JOHNSON

that the officer’s subsequent Terry frisk of defendant’s person and accompanying

search of defendant’s vehicle were not in furtherance of the officers’ safety while

fulfilling the purpose of the traffic stop itself, but were instead independent

investigative actions targeting other unarticulated suspicions of criminal activity. In

defendant’s view, since Officer Whitley did not demonstrate a reasonable suspicion

prior to leaving defendant to conduct the criminal records check, coupled with the

officer’s inability to form reasonable suspicion to justify the Terry search based on

defendant’s criminal history alone, then the officer’s decision to search defendant

after the juncture when defendant assumes that Officer Whitley had decided not to

charge defendant for the traffic violation constituted an unlawful extension of the

traffic stop. This description mischaracterizes the timing of Officer Whitley’s

interactions with defendant and disregards the totality of the circumstances which

yielded the factors upon which Officer Whitley formed the reasonable suspicion

required to conduct the limited Fourth Amendment search.

¶ 23 “[T]he duration of a traffic stop must be limited to the length of time that is

reasonably necessary to accomplish the mission of the stop, unless reasonable

suspicion of another crime arose before that mission was completed.” State v. Bullock,

370 N.C. 256, 257 (2017) (citations omitted). While this rule describes the temporal

nature of the scope of a constitutionally appropriate traffic stop, the exercise of “police

diligence ‘includes more than just the time needed to issue a citation.’ ” Reed, 373 STATE V. JOHNSON

N.C. at 509 (quoting Bullock, 370 N.C. at 257). To ensure that the exercise of such

enterprise by law enforcement remains within the confines of the Fourth

Amendment, however, “an investigation unrelated to the reasons for the traffic stop

must not prolong the roadside detention.” Reed, 373 N.C. at 509. In order to prolong

a traffic stop beyond the amount of time necessary to investigate and address the

reason for the stop itself, the detaining officer must “possess a justification for doing

so other than the initial traffic violation that prompted the stop in the first place.” Id.

at 510 (quoting United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008)). The

development of a reasonable suspicion that a suspect may be armed in the normal

course of an investigation into the basis for a traffic stop provides one such

justification. Id. (quoting Branch, 537 F.3d at 336, to explain that prolonging a traffic

stop “requires either the driver’s consent or a reasonable suspicion that illegal activity

is afoot”).

¶ 24 Here, Officer Whitley testified that after observing that defendant exhibited

some of the characteristics of an armed subject, the officer returned to the officer’s

patrol car in order to conduct a records check of defendant and of the vehicle itself to

confirm the veracity of defendant’s statements as to the ownership of the car. Such a

course of action on the part of Officer Whitley is readily recognized as a proper

function of the police during traffic stops which are effected under the Fourth

Amendment, and the officer’s deeds were directly related to addressing the purpose STATE V. JOHNSON

of the stop itself. Rodriguez v. United States, 575 U.S. 348, 355 (2015). The officer’s

activities were not, as represented by defendant, exercises of the officer which were

external to the traffic stop, nor did they prolong the stop beyond the mission’s

purpose. Although Officer Whitley testified that he did not intend to arrest defendant

for the minor traffic infraction of a fictitious license plate which served as the impetus

for the traffic stop, the officer did not testify—inconsistent with defendant’s self-

serving assumption—that the officer had already made a determination to refrain

from charging defendant for the traffic violation at the time that the officer was

engaged in the process of performing the records check. The officer’s declination to

issue a citation to defendant for the traffic offense, with only defendant’s speculation

as to the timing of the officer’s decision to refrain from charging defendant with the

violation in the dearth of any evidence to support defendant’s theory, does not equate

to a conclusion that the officer unreasonably prolonged the traffic stop. This is

particularly true in light of the testimony rendered by Officer Whitley as to the actual

chain of events and the observations by the officer which culminated in the Terry

search. The officer represented at the suppression hearing that the records check was

a standard aspect of any traffic stop that he conducted. The information obtained by

the officer from the records check disclosed defendant’s “trend in violent crime.”

¶ 25 The entirety of the sequence of events which was started by virtue of Officer

Whitley’s initiation of a traffic stop of defendant’s vehicle in order to investigate an STATE V. JOHNSON

apparent license plate violation, during which the officer’s interaction with defendant

featured behavioral cues by defendant that prompted Officer Whitley to consider that

defendant might be armed, which in turn led the officer to particularly note during

the officer’s routine records check that he performed pursuant to every traffic stop

that he effectuated that defendant’s criminal history indicated a “trend in violent

crime,” thus compelling Officer Whitley to believe that defendant was “armed and

dangerous” and establishing reasonable suspicion in the officer’s mind so as to justify

a Terry frisk of defendant’s person and a Terry search of defendant’s vehicle for

weapons in areas that were subject to defendant’s direct and immediate control,

demonstrate that there was not an unconstitutional extension of the traffic stop. In

light of these facts, we adopt the observant phrase employed by the Supreme Court

of the United States, “[c]learly this case does not involve any delay unnecessary to

the legitimate investigation of the law enforcement officers.” United States v. Sharpe,

470 U.S. 675, 687 (1985).

III. Conclusion

¶ 26 Based upon the foregoing factual background, procedural background, and

analysis, we affirm the holding of the Court of Appeals finding no error in the trial

court’s order denying defendant’s motion to suppress in agreement with the

conclusion of the Court of Appeals as modified by our discussion in this opinion.

AFFIRMED. STATE V. JOHNSON

Justice BERGER did not participate in the consideration or decision of this

case. Chief Justice NEWBY concurring.

¶ 27 I agree with the well-reasoned majority opinion that the evidence it considers

was sufficient for the trial court to find Officer Whitley had reasonable suspicion to

justify the limited Terry search for weapons in the area immediately surrounding

defendant. Although not needed to resolve this case, however, I do not believe this

Court should remove from the analysis defendant’s gesture of raising his hands out

of his car window. Like other movements, which may be innocent standing alone,

with the proper testimony the act of raising one’s hands can be a factor to support an

officer’s reasonable suspicion.

¶ 28 The trial court here found:

8. That after the Defendant stopped, he raised both of his hands in the air upon the officers’ approach.

9. That Officer Whitley observed the Defendant’s hands in the air, and based on Officer Whitley’s training and experience, he believed that the gesture of raising one’s hands in the air can indicate that a person has a gun inside the vehicle.

10. That based on his training and experience, Officer Whitley was on alert about the possible presence of a gun.

Based on these findings, the trial court concluded:

1. That the motion of having hands up upon an officer’s approach does not automatically incriminate an individual by itself, and the Defendant’s action of showing his hands was reasonable. However, based on an officer’s experience, it is reasonable for an officer to infer that the motion of hands up upon an officer’s approach could indicate the presence of a weapon. STATE V. JOHNSON

Newby, C.J., concurring

Thus, based on Officer Whitley’s testimony, the trial court included defendant’s action

of raising his hands as a factor to support reasonable suspicion.

¶ 29 The trial court properly considered all the relevant factors to determine that

Officer Whitley had reasonable suspicion justifying the limited Terry search for a

weapon. In determining whether reasonable suspicion exists, this Court “consider[s]

‘the totality of the circumstances—the whole picture,’ ” State v. Watkins, 337 N.C.

437, 441, 446 S.E.2d 67, 70 (1994) (quoting United States v. Cortez, 449 U.S. 411, 417,

101 S. Ct. 690, 695 (1981)), including the perspective “of a reasonable, cautious officer,

guided by his experience and training,” State v. Styles, 362 N.C. 412, 414, 665 S.E.2d

438, 439 (2008) (quoting Watkins, 337 N.C. at 441, 446 S.E.2d at 70). Other courts

have found that a defendant’s raised hands can support reasonable suspicion for a

limited Terry search. See Clark v. Clark, 926 F.3d 972, 979 (8th Cir. 2019) (concluding

that the defendant’s action of “pull[ing] over and put[ting] his hands outside the

driver’s side window” supported reasonable suspicion for a Terry investigatory

seizure and search of the defendant’s vehicle for a gun); State v. King, 206 N.C. App.

585, 590, 696 S.E.2d 913, 916 (2010) (holding that “the unusual gesture of

[the d]efendant placing his hands out of his window” supported reasonable suspicion

for a limited Terry search); cf. State v. Mbacke, 365 N.C. 403, 404–10, 721 S.E.2d 218,

219–22 (2012) (analogizing the “reasonable to believe” standard from Arizona v. Gant,

556 U.S. 332, 129 S. Ct. 1710 (2009), to the Terry reasonable suspicion standard to STATE V. JOHNSON

conclude that officer had reason to believe the defendant’s vehicle contained

additional evidence of the offense of arrest to justify search for handgun while the

defendant was detained outside the vehicle based on, inter alia, the defendant’s

furtive behavior of lowering hands off the steering wheel), cert. denied, 568 U.S. 864,

133 S. Ct. 224 (2012). Therefore, I believe the trial court properly relied on defendant’s

raised hands as a factor in finding the existence of reasonable suspicion. Otherwise,

I fully concur with the majority opinion. Justice EARLS dissenting.

¶ 30 The sole question before this Court is whether, under “the totality of the

circumstances as viewed from the standpoint of an objectively reasonable police

officer,” State v. Wilson, 371 N.C. 920, 926 (2018) (cleaned up) (quoting State v.

Johnson, 370 N.C. 32, 34–35 (2017)), it would be reasonable for an officer “to believe

that he [was] dealing with an armed and dangerous individual” after initiating a

traffic stop of Bryan Xavier Johnson. Terry v. Ohio, 392 U.S. 1, 27 (1968). The

majority answers in the affirmative. To reach this conclusion, the majority converts

a jumble of subjective, innocuous, or irrelevant facts into indicia of dangerousness.

The result is a decision inconsistent with the Fourth Amendment and which fails to

consider the racial dynamics underlying reasonable suspicion determinations.

Therefore, I respectfully dissent.

I. Reasonable suspicion under Terry

¶ 31 According to the majority, five factors contribute to the reasonable belief that

Johnson was armed and dangerous under Terry: “(1) the traffic stop occurred late at

night (2) in a high-crime area, with (3) defendant appearing ‘very nervous’ to the

detaining officer to the point that it ‘seem[ed] like his heart [was] beating out of his

chest a little bit[,]’ with (4) defendant ‘blading his body’ as he accessed the Dodge

Charger’s center console, and (5) defendant’s criminal record indicating a ‘trend in

violent crime’ and weapons-related charges.” The majority repeatedly asserts that STATE V. JOHNSON

Earls, J., dissenting

although no one individual factor may be sufficient to justify the search “standing

alone,” these factors are sufficient when viewed collectively under the “totality of the

circumstances.” Although I agree with the majority that Terry demands a flexible,

holistic approach, I cannot join the majority in its refusal to enforce the limits

imposed by the Fourth Amendment on the State’s authority to conduct warrantless

searches. Facts which individually do not contribute to reasonable suspicion in

isolation should not be accorded outsized significance merely because they appear

alongside other facts which also do not contribute to reasonable suspicion. Even

viewed under the “totality of the circumstances,” I would hold that the State has

failed to meet its burden of proving that an objective officer would reasonably believe

Johnson was armed and dangerous at the time Officer Whitley initiated the search

of his vehicle.

1. Presence in a “high crime area” late at night

¶ 32 At the suppression hearing, Officer Whitley described the area in which he

apprehended Johnson as a “very high crime area, where we have a lot of narcotic

sales.” A defendant’s presence in a “high crime area” can sometimes be “among the

relevant contextual considerations in a Terry analysis.” Illinois v. Wardlow, 528 U.S.

119, 124 (2000) However, a defendant’s presence in a “high crime area” is only

probative when it is paired with conduct suggesting the defendant’s presence is in

some way connected to the criminal conduct known to occur in that area. There must STATE V. JOHNSON

be some basis for suspecting the individual was someone other than one of the

countless innocent people whose daily routines involve spending time in a “high crime

area” for the individual’s mere presence to be relevant.

¶ 33 Thus, in State v. Butler, it was not the defendant’s mere presence on a street

corner the arresting officer “knew . . . to be a center of drug activity” which contributed

to reasonable suspicion, it was the defendant’s presence coupled with the fact that

the defendant “was seen in the midst of a group of people congregated on a corner

known as a ‘drug hole’ ” and that “upon making eye contact with the uniformed

officers, [the] defendant immediately moved away, behavior that is evidence of flight.”

331 N.C. 227, 233 (1992). Similarly, in State v. Jackson, the defendant’s presence in

a “high crime area” contributed to reasonable suspicion because the defendant “stood

at 9:00 p.m. in a specific location known for hand-to-hand drug transactions . . .

walked in [the] opposite direction[ ] upon seeing a marked police vehicle approach . . .

came back very near to the same location once the patrol car passed . . . [and] walked

[away] a second time upon seeing [the police officer] return.” 368 N.C. 75, 80 (2015).

In both cases, it was the combination of a defendant’s presence in a “high crime area”

with behavior suggestive of the defendant’s personal involvement in the area’s

criminal activities which made the defendant’s geographic location relevant under

Terry.

¶ 34 By contrast, in this case, Johnson did not do anything to suggest his presence STATE V. JOHNSON

in a “high crime area” was in any way motivated by or connected to the alleged

prevalence of drug trafficking in that neighborhood. He was simply driving his vehicle

down Central Avenue in Charlotte. He was stopped because the license plate on his

vehicle was not registered to the type of vehicle he was driving. He was not observed

interacting with suspected drug dealers, visiting places where drug transactions were

known to occur, or attempting to evade the police. Nothing Officer Whitley observed

distinguished Johnson from the many other people who undoubtedly pass through

this “high crime area” with no intention of doing anything other than getting from

one location to the next. In my view, this renders Johnson’s physical location

irrelevant to the Terry analysis.

¶ 35 There is nothing reasonable about believing that an individual is armed and

dangerous merely because he drove his vehicle down a particular street, no matter

where that street is located. The majority’s rejoinder that Johnson’s location is

probative when considered “in the totality of the circumstances” does not answer the

question of why Johnson’s presence in this particular location in any way suggested

he was armed and dangerous. Johnson’s conduct did nothing to convert Officer

Whitley’s generalized observation about the nature of the area into a reasonable,

particularized, and individualized suspicion regarding Johnson. The majority’s

position risks “making the simple act of [driving] in one’s own neighborhood a possible

indication of criminal activity.” Jackson, 368 N.C. at 80. STATE V. JOHNSON

¶ 36 In his brief, Johnson does not appear to directly challenge the trial court’s

implied finding of fact that the area he was travelling through was fairly

characterized as a “high crime area.” However, in a different case, it may be necessary

for this Court to define what a “high crime area” is, what competent evidence is

necessary to support the finding that a defendant was located in one, and the

circumstances under which a defendant’s presence in a “high crime area” supports an

officer’s reasonable suspicion that he is armed and dangerous.

¶ 37 For example, the First Circuit has held that in order for a defendant’s location

in a “high crime area” to contribute to reasonable suspicion, the government is

required to present evidence tending to prove “(1) [a] nexus between the type of crime

most prevalent or common in the area and the type of crime suspected in the instant

case, (2) limited geographic boundaries of the ‘area’ or ‘neighborhood’ being evaluated,

and (3) temporal proximity between evidence of heightened criminal activity and the

date of the stop or search at issue.” United States v. Wright, 485 F.3d 45, 53–54 (1st

Cir. 2007) (citations omitted). Further, while it is certainly appropriate to credit “the

testimony of police officers[ ] describing their experiences in the area” in determining

whether an area is a “high crime area,” I would agree with the First Circuit that we

should also look to data and other sources of information to ensure the reasonableness

inquiry at the heart of the Terry analysis remains tethered to objective facts. Id. at

54; see also N. Mariana Islands v. Crisostomo, 2014 WL 7072149, at *2 (N. Mar. I. STATE V. JOHNSON

Dec. 12, 2014) (“[A]n officer’s confident body language and tone of voice are not

enough to prove a high-crime claim. Allowing such a finding solely through

unsubstantiated testimony (no matter how confidently stated) would give police the

power to transform ‘any area into a high crime area based on their unadorned

personal experiences.’ ” (quoting United States v. Montero-Camargo, 208 F.3d 1122,

1143 (9th Cir. 2000))).

¶ 38 Further, I share the concern expressed by many courts that encouraging

reliance on undefined, amorphous signifiers like “high crime area” as a proxy for

suspected criminal activity risks subjecting identifiable racial minority communities

to disproportionate, invasive, and unlawful searches. See, e.g., United States v.

Caruthers, 458 F.3d 459, 467 (6th Cir. 2006) (“[L]abeling an area ‘high-crime’ raises

special concerns of racial, ethnic, and socioeconomic profiling.”); Montero-Camargo,

208 F.3d at 1138 (“The citing of an area as ‘high-crime’ requires careful examination

by the court, because such a description, unless properly limited and factually based,

can easily serve as a proxy for race or ethnicity.”). There is research demonstrating

that the reported rate of crime in a particular geographic area is driven not only by

the actual incidence of criminal conduct in that area, but also by law enforcement’s

choices regarding where and how to conduct enforcement activities. See Sandra G.

Mayson, Bias in, Bias Out, 128 Yale L.J. 2218, 2253 (2019) (“Blacks are more likely

than others to be arrested in almost every city for almost every type of crime. STATE V. JOHNSON

Nationwide, black people are arrested at higher rates for crimes as serious as murder

and assault, and as minor as loitering and marijuana possession.”); see also K. Babe

Howell, Prosecutorial Discretion and the Duty to Seek Justice in an Overburdened

Criminal Justice System, 27 Geo. J. Legal Ethics 285, 298 (2014) (“It is the police who

choose what areas to target, who respond to calls, and who make the initial decision

whether to make an arrest or issue an informal warning when minor misconduct

occurs.”). My concern is especially acute in this case because Officer Whitley “did not

observe [defendant] engage in any type of behavior that is consistent with [the

criminal] activity” thought to occur with greater frequency in the area where he was

apprehended. United States v. Beauchamp, 659 F.3d 560, 570 (6th Cir. 2011).

¶ 39 I have similar concerns regarding the majority’s reliance on the fact that “the

traffic stop took place late at night.” It is correct that this Court has previously held

the time of night when a stop occurs to be “an appropriate factor for a law enforcement

officer to consider in formulating a reasonable suspicion.” State v. Watkins, 337 N.C.

437, 442 (1994). Yet we have also recognized a difference between being present late

at night in a place where it is expected people might be found at that hour and being

present late at night somewhere where one’s presence is anomalous. Thus, in

Watkins, we distinguished between a defendant “standing in an open area between

two apartment buildings . . . in Greensboro, an urban area, shortly after midnight”

and a defendant who was observed “proceeding slowly on a dead-end street of locked STATE V. JOHNSON

businesses at 12:50 a.m. in an area with a high incidence of property crime.” Id. The

latter circumstance was indicative of reasonable suspicion while the former was not.

There must be some other objective basis from which to infer that the individual is

travelling late at night for a nefarious purpose and is not just a parent heading home

to tuck his or her children in after a late-night shift.

¶ 40 In this case, there is no evidence indicating Johnson’s presence or behavior was

unusual or alarming for the place and hour. There is no evidence that individuals

who drive down Central Avenue late at night are disproportionately likely to be

armed and dangerous. Nor is there any evidence that individuals who possess guns

and present a danger to law enforcement officers tend to travel at night. Cf. United

States v. Williams, 808 F.3d 238, 249 (4th Cir. 2015) (“This record does not make an

evidentiary connection between nocturnal travel and drug trafficking . . . . Absent

such a connection, that the traffic stop of [the defendant] occurred at about 12:37 a.m.

does not contribute to a reasonable, articulable suspicion for extending the otherwise-

completed traffic stop . . . .”). Accordingly, I would hold that neither the location nor

the time of the traffic stop contribute to a reasonable suspicion that Johnson was

armed and dangerous under Terry.

2. Nervousness

¶ 41 We have previously held that nervousness can be “an appropriate factor to

consider when determining whether a basis for a reasonable suspicion exists.” State STATE V. JOHNSON

v. McClendon, 350 N.C. 630, 638 (1999). But nervousness only supports an officer’s

reasonable suspicion when it is something “more than ordinary nervousness.” Id. at

639. “This Court has expressly determined that general nervousness is not significant

to reasonable suspicion analysis because many people become nervous when stopped

by a [law enforcement officer].” State v. Reed, 373 N.C. 498, 515 (2020) (cleaned up)

(emphasis added) (quoting State v. Pearson, 348 N.C. 272, 276 (1998)). We have

treated nervousness as supporting an officer’s reasonable suspicion when the

defendant “was fidgety and breathing rapidly, sweat had formed on his forehead, he

would sigh deeply, and he would not make eye contact with the officer,” but we also

explained that when “the nervousness of the defendant [is] not remarkable . . . it

d[oes] not support a reasonable suspicion.” McClendon, 350 N.C. at 639.

¶ 42 None of the twenty-four findings of fact contained in the trial court’s order on

the motion to suppress included any reference to Johnson’s alleged nervousness.

While the trial court was not required by statute to reduce all its findings to writing,

it goes beyond the scope of appellate review to accord deference to a supposed fact

based solely on the officer’s observations of the witness’s demeanor, when the trial

court itself made no such finding. Silence by the trial court is not endorsement of the

witness’ veracity nor does it give the appellate court any guidance as to the weight to

accord that testimony.

¶ 43 Finally, even if it is proper to consider evidence not incorporated into any of STATE V. JOHNSON

the trial court’s express findings of fact, the record does not support the conclusion

that Johnson was unusually or remarkably nervous. The only evidence attesting to

Johnson’s level of nervousness is Officer Whitley’s testimony that he “seemed very

nervous and to the point of where, as you can imagine, his heart’s beating, but it

seems like his heart is beating out of his chest a little bit. He was very nervous. . . .

you could see his heart rising in his chest.” However, Johnson did not exhibit any

physical symptoms of anything other than an ordinary response to an understandably

stressful situation. He did not act in an inexplicable or aberrant manner, he did not

appear disoriented or disheveled, and he did not do anything other than respond to

Officer Whitley’s questions appropriately and intelligibly. Absent any evidence that

Johnson was inordinately nervous, Officer Whitley’s bare assertion that Johnson was

“very nervous” in no way contributes to the reasonable suspicion that he was armed

¶ 44 Other courts have expressed skepticism regarding the probative value of an

officer’s observation that the defendant was nervous during a traffic stop. See, e.g.,

United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994) (“We have repeatedly

held that nervousness is of limited significance in determining reasonable suspicion

and that the government’s repetitive reliance on the nervousness of either the driver

or passenger as a basis for reasonable suspicion ‘in all cases of this kind must be

treated with caution.’ ” (cleaned up) (quoting United States v. Millan-Diaz, 975 F.2d STATE V. JOHNSON

720, 722 (10th Cir. 1992))). And with good reason. Common sense tells us it is not at

all surprising that an individual might look and feel nervous, even “very nervous,”

when interacting with a law enforcement officer in this context. See, e.g., United

States v. Beck, 140 F.3d 1129, 1139 (8th Cir. 1998) (“It certainly cannot be deemed

unusual for a motorist to exhibit signs of nervousness when confronted by a law

enforcement officer.”); United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997) (“It

is certainly not uncommon for most citizens—whether innocent or guilty—to exhibit

signs of nervousness when confronted by a law enforcement officer.”); State v.

Schlosser, 774 P.2d 1132, 1138 (Utah 1989) (“When confronted with a traffic stop, it

is not uncommon for drivers and passengers alike to be nervous and excited and to

turn to look at an approaching police officer.”). Even physical manifestations of

nervousness do not necessarily warrant the inference that an individual is hiding

something. See State v. Anderson, 258 Neb. 627, 641 (2000) (“Trembling hands, a

pulsing carotid artery, difficulty locating a vehicle registration among documents in

a glove box, and hesitancy to make eye contact are signs of nervousness which may

be displayed by innocent travelers who are stopped and confronted by an officer.”).

¶ 45 Our traditional distinction between general nervousness—which does not

support an officer’s reasonable suspicion—and extreme nervousness—which may

support an officer’s reasonable suspicion—reflects this reality. The majority’s

decision to rely upon Johnson’s nervousness in this case, based solely upon Officer STATE V. JOHNSON

Whitley’s testimony that he observed Johnson’s heart “beating out of his chest a little

bit,” erodes that distinction and turns an entirely understandable physiological

response into a ground for conducting a warrantless search.

¶ 46 There are numerous completely innocent reasons why any person might be

nervous during a traffic stop. There are also specific reasons why someone who looks

like Johnson—a large Black man—might be especially nervous during a traffic stop.

Black people are more likely than white people to be pulled over while driving, more

likely than white people to be subjected to investigatory stops, and more likely than

white people to be shot and killed by law enforcement officers.1 Any driver who has

followed the news in recent years would have learned the names of numerous people

of color killed during or after routine traffic stops. These encounters can be fraught

under any circumstance and especially so when the driver fears that one false step

might cost him his life. Thus, I cannot agree with the majority that Johnson’s

purported level of apparent nervousness, as described by the officer’s testimony in

1 See, e.g., Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police

Stops Across the United States, 4 Nature Hum. Behav. 736, 736 (July 2020), https://doi.org/10.1038/s41562-020-0858-1 (“We assessed racial disparities in policing in the United States by compiling and analysing a dataset detailing nearly 100 million traffic stops . . . . Our results indicate that police stops and search decisions suffer from persistent racial bias . . . .”); Wesley Lowery, A Disproportionate Number of Black Victims in Fatal Traffic Stops, Washington Post (Dec. 24, 2015), https://www.washingtonpost.com/national/a- disproportionate-number-of-black-victims-in-fatal-traffic-stops/2015/12/24/c29717e2-a344- 11e5-9c4e-be37f66848bb_story.html (finding that one third of all individuals shot and killed during traffic stops in 2015 were Black, “making the roadside interaction one of the most common precursors to a fatal police shooting of a black person in 2015”). STATE V. JOHNSON

this case, can support a rational inference that he was armed and dangerous.

3. Blading

¶ 47 The majority holds that Officer Whitley’s testimony Johnson was “blading [his

body] . . . as if he [was] trying to conceal something” contributes to reasonable

suspicion under Terry. To be precise, this fact—which the trial court did not explicitly

find—is based entirely upon Officer Whitley’s perception that Johnson did not reach

into his center console in the way Officer Whitley believed a driver “typically” would.

I do not dispute that “an obvious attempt to hide or to evade the authorities can be a

factor in the calculus of reasonable suspicion.” United States v. Woodrum, 202 F.3d 1,

7 (1st Cir. 2000). However, I disagree with the majority that Officer Whitley’s

subjective perception that Johnson “bladed” his body contributes to reasonable

suspicion in this case.

¶ 48 The significance of Johnson’s motion in retrieving his paperwork from the

center console of his vehicle lies entirely in the meaning a reasonable officer would

ascribe to the motion, not in the motion itself. “[N]ot every slouch, crouch, or other

supposedly furtive movement justifies a stop. The proper inquiry is case-specific and

context-contingent, and the surrounding circumstances ordinarily will tell the tale.”

Id. (citation omitted). Here, Johnson’s body movement is probative only insofar as a

reasonable officer would perceive his movement to be an effort to shield a weapon

from view. For this reason, it is notable that when Johnson supposedly “bladed” his STATE V. JOHNSON

body to shield the contents of his center console from Officer Whitley’s view, there

was another officer standing on the other side of the vehicle looking in through the

passenger side window. Further, it is not as if Johnson’s movements were unnatural

or disconnected from the events of that moment. He was a large man reaching across

his body while remaining seated in his vehicle. The fact that he lifted his shoulders

off the seat to do is not a reason to conclude he was armed and dangerous.

¶ 49 We should be hesitant to rely so completely on the subjective perceptions of an

individual officer whose interpretation of a body motion that is not inherently

suspicious is the sole basis for the conclusion that Johnson’s movements contributed

to reasonable suspicion. We should be especially hesitant to do so when the trial court

did not enter an express finding of fact that Johnson “bladed” his body. This Court is

not a factfinding tribunal, and it stretches both our competence and authority when

we “[i]nfer[ ] additional findings, ones that go beyond what the trial court actually

found, to rescue an otherwise insufficient ruling of the trial court.” State v. Johnson,

269 N.C. App. 76, 88–89 (2019) (Murphy, J., dissenting).2 Further, “an officer’s

impression of whether a movement was ‘furtive’ may be affected by unconscious racial

2 The majority asserts that it is appropriate to imply facts not expressly found by the

trial court because the trial court noted its ruling was “based on the totality of [the] circumstances, including but not limited to [the enumerated facts].” Similarly, the majority argues its factfinding endeavor is appropriate because Officer Whitley’s testimony was “uncontroverted.” But uncontroverted testimony is not the same as an established fact—it is for the trial court to “itself determine what pertinent facts are actually established by the evidence before it.” Coble v. Coble, 300 N.C. 708, 712 (1980). STATE V. JOHNSON

biases,” which is an additional reason to leave factfinding, which often involves

credibility determinations, to the trial court. Floyd v. City of New York, 959 F. Supp.

2d 540, 578 (S.D.N.Y. 2013).

¶ 50 Even if it is proper to treat Officer Whitley’s testimony regarding Johnson’s

“blading” his body as an express finding of fact, this fact adds little to the reasonable

suspicion calculus. Cf. State v. Johnson, 2006 WI App 15, ¶ 18, 288 Wis. 2d 718, 709

N.W.2d 491, aff’d, 2007 WI 32, 299 Wis. 2d 675, 729 N.W.2d 182 (concluding that the

defendant’s “furtive” movements did not support reasonable suspicion he was armed

and dangerous because “[t]he officers pulled [the defendant] over for traffic violations

. . . and not for a crime[,]” and the officers “had no prior contacts with [the defendant]

that would suggest that he would be armed or otherwise dangerous”). This Court has

never before recognized “blading” as a behavior which gives rise to the reasonable

inference that an individual is armed and dangerous. In the only other Court of

Appeals decision previously recognizing “blading” as a contributing factor under

Terry, the defendant “bladed” his body in such a way as to prevent the arresting

officer from viewing his hip, where a firearm is often carried, immediately after

making eye contact with the officer. State v. Malachi, 264 N.C. App. 233, 238, appeal

dismissed, 372 N.C. 702 (2019). In that case, there was no other reason for the

defendant to move his body in that manner. Furthermore, the officer in that case

testified about the basis for his suspicion including training he received that a person STATE V. JOHNSON

with a gun often turns his hip to hide the weapon. See Malachi, 264 N.C. App. at 237-

38. Finally, officers had received an anonymous tip that someone wearing a red shirt

and black pants had put a gun in his waistband. Id., at 234. By contrast, in this case,

there was no tip, there was no testimony regarding the officer’s training, and most

importantly, Johnson was moving his body to accomplish an apparent, noncriminal

purpose. Indeed, courts in other jurisdictions have concluded that movements which

are contextually appropriate and not inherently suspect do not contribute to the

reasonable suspicion analysis. Cf. United States v. Hood, 435 F. Supp. 3d 1, 8 (D.D.C.

2020) (rejecting the government’s “blading” argument because “the positioning of [the

defendant’s] body seems consistent with an individual who was crossing a street at a

diagonal from north to south”). Therefore, I would not consider Johnson’s alleged

“blading” significant in the reasonable suspicion analysis.

4. Prior record

¶ 51 The majority finds probative Officer Whitley’s testimony that he believed

Johnson was “armed and dangerous” after he reviewed Johnson’s criminal record and

discerned a “trend in violent crime.” I would conclude this finding is unsupported by

competent evidence in the record and thus cannot contribute to the reasonable

suspicion analysis in this case.

¶ 52 At the suppression hearing, Officer Whitley could not recall the dates of the

entries he viewed in Johnson’s record, whether those entries documented charges or STATE V. JOHNSON

convictions, or the total number of charges or convictions Johnson’s record contained.

He did recall that that the dates of these entries “started somewhere around 2003 to

the 2009 mark.” In 2009, it might have been reasonable to conclude, based on this

evidence, that Johnson’s criminal record indicated a “trend in violent crime.” In 2017,

when the stop occurred, eight years had passed since Johnson had been charged or

convicted of any crime, let alone a violent one. Notwithstanding this lengthy gap, the

majority concludes Johnson’s criminal record supports the reasonable belief he was

armed and dangerous in 2017.

¶ 53 A trend implies some accounting for recent events. Otherwise, it would be

correct to say that the Seattle Supersonics have demonstrated a “trend in winning

basketball games,” even though they ceased to exist around the same time as

Johnson’s last conviction. By concluding that it would be reasonable for an officer to

ignore the eight-year period during which Johnson maintained a clean record

immediately preceding the traffic stop, the majority suggests that no matter how far

back in time an individual’s prior charges and convictions occurred, no matter how

successful that individual has been in re-entering society, it is reasonable for an

officer to believe that an individual with a prior record is a threat. At a minimum, we

should make clear that “the age of [a defendant’s] convictions is a factor to consider

in determining their relevance” in the Terry analysis to avoid lending the impression

that once an individual has been arrested or convicted of some crime, he is marked STATE V. JOHNSON

as presumptively dangerous for life. United States v. Scott, 818 F.3d 424, 431 (8th

Cir. 2016); see also United States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008) (holding

with respect to warrant application based in part on 18-year-old conviction that “even

if [the defendant’s] prior conviction were relevant to the analysis, it should have only

been marginally relevant because the conviction was stale”).

¶ 54 Under these circumstances—where the defendant’s last conviction occurred

eight years prior to the traffic stop and there is no indication the defendant continued

to engage in criminal activity in the intervening years—I disagree with the majority

that Johnson’s criminal record supports the reasonable belief he was armed and

dangerous at the time of the traffic stop, “[s]tanding alone” or otherwise. I also note

that prior convictions are not evenly distributed among all segments of the population

and that the distribution of convictions does not necessarily track meaningful

distinctions in the frequency or severity of criminal conduct engaged in by members

of different racial or ethnic groups. See, e.g., Terry v. United States, 141 S. Ct. 1858,

1865 (2021) (“Under [federal] law, crack cocaine sentences were about 50 percent

longer than those for powder cocaine. Black people bore the brunt of this disparity.”

(citation omitted)); Mandala v. NTT Data, Inc., 975 F.3d 202, 220 (2d Cir. 2020) (“As

the statistics show, there are significant racial disparities in arrest, conviction, and

incarceration rates in this country.”). Absent further clarification from this Court

regarding the significance of an individual’s prior criminal record, I worry that our STATE V. JOHNSON

decision today will allow historic racial disparities in policing to perpetuate ongoing

ones.

¶ 55 One of the fundamental principles of our common law jurisprudence is that we

punish acts, not an individual merely because of his or her status. See, e.g., Robinson

v. California, 370 U.S. 660 (1962) (holding a California law making it illegal to be a

drug addict unconstitutional because the mere status of being a drug addict was not

an act and thus not criminal.). The majority’s conclusion that Johnson’s prior criminal

record contributes to reasonable suspicion—which treats his more recent, lengthier

period of non-involvement with the criminal justice system as irrelevant—conveys

the unmistakable impression that “felon” is a lifelong status which renders an

individual’s choices and behavior irrelevant. Moreover, the majority’s reasoning

contributes to a legal reality in which an individual’s felony conviction is used to

justify according an entire class of people diminished constitutional protections, going

well beyond the legal debilities imposed by our constitution and statutes on

individuals who have been convicted of a felony offense.

5. Raising hands

¶ 56 The majority notes that its conclusion there was reasonable suspicion to search

Johnson’s vehicle is in no way predicated on the fact that Johnson placed his hands

up in the air when he was stopped by Officer Whitley. I wholeheartedly agree that

Johnson’s conduct in this respect should be given no probative weight in the Terry STATE V. JOHNSON

analysis. I would also go a step further and resolve the “real or perceived conundrum”

that arises when the State claims that a defendant’s raising his hands when

surrendering to a law enforcement officer is evidence supporting a reasonable

suspicion that the defendant is armed and dangerous.

¶ 57 The very obvious problem with this claim is that raising one’s hands in this

manner is an entirely natural way for one person to signal to another that they mean

no harm. Indeed, police officers will often order an individual suspected of being

armed and dangerous to raise his hands, and the individual’s failure to do so would

certainly contribute to reasonable suspicion under Terry. See United States v. Soares,

521 F.3d 117, 121 (1st Cir. 2008) (concluding there was reasonable suspicion where

the defendant “refused repeated orders to remain still and keep his hands in [the

officer’s] view”). At the same time, courts have held that it contributes to reasonable

suspicion when a defendant moves his hands out of view of the arresting officer. See

United States v. Johnson, 212 F.3d 1313, 1316–17 (D.C. Cir. 2000) (concluding that

the defendant’s “shoving down” motions with his hands were motions “which a

reasonable officer could have thought were actually suggestive of hiding (or

retrieving) a gun”). If raising one’s hands contributes to reasonable suspicion, and

failing to raise one’s hands contributes to reasonable suspicion, then there is always

reasonable suspicion.

¶ 58 The concurrence treats Johnson’s hand raising as the majority treats every STATE V. JOHNSON

other fact it believes contributes to reasonable suspicion—according to the

concurrence, while raising one’s hands may sometimes be an innocent gesture, it

takes on talismanic significance when considered “in the totality of the

circumstances.” The assertion is that “[l]ike other movements, which may be innocent

standing alone, with the proper testimony the act of raising one’s hands can be a

factor to support an officer’s reasonable suspicion.” But the “proper testimony”

referred to here is only the officer’s subjective belief that the conduct was suspicious.

This is not what the law requires. To protect Fourth Amendment rights this Court

must ask whether the officer can articulate a reasonable, objective basis for his

suspicion. Allowing “the proper testimony” to magically transform innocent acts into

suspicious ones makes those rights illusory. As we recently stated in Reed,

An officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). An obvious, intrinsic element of reasonable suspicion is a law enforcement officer's ability to articulate the objective justification of his or her suspicion. . . . [We cannot] conveniently presuppose a fundamental premise which is lacking here in the identification of reasonable, articulable suspicion: the suspicion must be articulable as well as reasonable.

Reed, 373 N.C. at 514. Today’s decision fails to adhere to this recent precedent.

¶ 59 The majority pays lip service to our previously stated “concern about the

inclination of the [State] toward using whatever facts are present, no matter how STATE V. JOHNSON

innocent, as indicia of suspicious activity.” State v. Nicholson, 371 N.C. 284, 291 n.4

(2018) (quoting United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011)). But the

Fourth Amendment requires us to avoid “plac[ing] undue weight on [the arresting

officer’s] subjective interpretation of the facts rather than focusing on how an

objective, reasonable officer would have viewed them.” Nicholson, 371 N.C. at 291–

92. In this case, the only “evidence” linking Johnson’s hand motion to a risk of

dangerousness was Officer Whitley’s testimony that “typically when people [raise

their hands in this manner], sometimes it can mean that they have a gun.” We should

not blindly acquiesce to one officer’s subjective interpretation, which runs contrary to

common sense and which makes the individuals most likely to experience trepidation

when interacting with law enforcement more likely to be deemed suspicious because

of their efforts to mitigate the risk of an encounter turning violent. Absent specific

evidence illustrating why a hand gesture commonly understood to convey that the

individual making the gesture means no harm should instead be understood as

evidence that the individual is a threat, I would hold that this hand gesture does not

contribute to reasonable suspicion under Terry.

II. Conclusion

¶ 60 Johnson did everything he was supposed to do when he was stopped by police

officers. When he saw flashing lights in his rearview mirror, he pulled over “fairly

immediately.” When an officer approached his vehicle, he placed his hands up and STATE V. JOHNSON

out of the driver side window to show that he was unarmed. When the officer asked

him why his license plate did not match the registration for his vehicle, he explained

that he had purchased the vehicle earlier that day and reached into his center console

to retrieve corroborating paperwork, including a bill of sale. When the officer asked

him to step out of his vehicle, he stepped out of his vehicle. When the officer asked

him to consent to a frisk for weapons, he consented. The officer found nothing

suspicious on his person.

¶ 61 Under Terry, our analysis is supposed to focus on the behavior of each

individual defendant under the circumstances of each individual case, but in this case

nothing Johnson did mattered. Rather than hold the State to its burden under the

Fourth Amendment, the majority reasons that the whole of the evidence supporting

reasonable suspicion is greater than the sum of the parts. In doing so, the majority

converts a generalized hunch into individualized suspicion, eroding the Fourth

Amendment rights of all North Carolinians in the process. The majority also ignores,

and may well exacerbate, issues relating to racially disparate policing, issues which

have been forthrightly examined by many courts confronted with similar kinds of

Terry claims. Therefore, respectfully, I dissent.

Justice HUDSON joins in this dissenting opinion.