State v. Sutton

NO. COA13-841

NORTH CAROLINA COURT OF APPEALS

Filed: 4 March 2014

STATE OF NORTH CAROLINA

v. Lenoir County

No. 12CRS050866

THOMAS KEITH SUTTON,

Defendant.

On writ of certiorari to review judgment entered on or

about 22 January 2013 by Judge Paul L. Jones in Superior Court,

Lenoir County. Heard in the Court of Appeals 12 December 2013.

Attorney General Roy A. Cooper, III, by Assistant Attorney

General John P. Barkley, for the State.

Public Defender Jennifer Harjo, by Assistant Public

Defender Brendan O’Donnell, for defendant-appellant.

STROUD, Judge.

Defendant appeals an order denying his motion to suppress

and a judgment convicting him of felony carrying a concealed gun

contending that his right “to be free from unreasonable search

and seizure” was violated when a law enforcement officer frisked

him without reasonable suspicion. (Original in all caps.) For

the following reasons, we affirm.

I. Background

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In October of 2012, defendant was indicted for two counts

of “FELONY CARRYING A CONCEALED WEAPON[.]” On 11 January 2013,

defendant filed a motion to suppress moving

for an Order suppressing all evidence,

alleged contraband, defendant’s identity,

and all statements and testimony concerning

the alleged contraband, and as grounds

therefore alleges that said material[]

evidence, and testimony were seized in or

obtained as a result of an illegal stop that

occurred on March 27, 2012, absent

reasonable and articulable suspicion in

violation of his Fourth and Fourteenth

Amendment rights under the United States

Constitution and similar provisions in the

North Carolina Constitution, Article 1,

Section 19.

On 31 January 2013, the trial court denied defendant’s

motion to suppress finding as fact:

1) That the arresting officer, B. Wells,

was employed by the Kinston Department

of Public Safety as a police officer.

Officer B. Wells has more than 10 years

experience in that position. That he

was assigned to the Special Response

Unit and also served as a K-9 Officer.

That as a member of the Special

Response Unit he was assigned to patrol

public housing units located within the

city of Kinston, North Carolina.

2) That prior to March 27th, 2012, the

Special Response Unit patrolled public

housing, along with a task force made

up of US Marshals and Drug Enforcement

Agency, concentrating on viol[ent]

crimes, gun crimes, etc. That in the

past officers have been assaulted by

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individuals in public housing. That

officer B. Wells is trained in the

detection of drugs, weapons and other

general policing tactics.

3) At 14:34 hours (2:34pm) in the

afternoon of March 27, 2012, officer B.

Wells was patrolling near Simon Bright

Apartments, which is one of the public

housing apartments located in Kinston.

Officer Wells had prior experience

hearing shots fired on the East Bright

Street area near Simon Bright

Apartments. That the Kinston

Department of Public Safety enforces a

ban list of over 9 pages of individuals

who are banned from public housing.

4) That on the day in question officer B.

Wells was driving a Ford Crown Victoria

vehicle with the windows down where he

was listening and looking for criminal

activity. While in the 800 block of

East Bright Street Wells observed the

defendant on McDaniel Street, who was

walking normally while swinging his

arms. That the defendant was carrying

a Styrofoam food container in his left

hand.

5) The Court finds as soon as the

defendant starting turning east on

Shine Street, he used his right hand to

grab his waistband to clinch an item.

The Court finds that this was an overt

act which gave reasonable suspicion to

the Public Safety Officer.

6) That officer B. Wells thought the

defendant was trying to hide something

and his posturing made it apparent that

he was concealing something on his

person. That the defendant then began

to look specifically at the officer in

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question, that the reaction of the

defendant created some urgency to stop

to determine who the defendant was and

that he needed to be identified. The

Officer then turned around his vehicle

without lights and siren and stopped

the defendant for questioning.

7) That prior to being frisked, the

officer did not draw a weapon or use

any type of force on the defendant.

That he asked the defendant if he was

carrying a weapon and he doesn’t

remember the response of the defendant.

That the officer performed a Terry

Frisk upon the defendant. A gun was

found on the defendant tucked in his

waistband.

8) That the defendant never stated to the

Officer that he was carrying a weapon.

That the defendant was not handcuffed

and the Officer did not have a weapon

drawn. That the entire process took

probably less than a minute or two.

That the weapon in question was a Ruger

P89 .9mm handgun with a magazine and 7

rounds of ammo, but there was no round

which was chambered inside the weapon

in question.

The trial court concluded:

1) That the stop of the defendant was

legal and did not violate Federal and

State Constitutional Standards. That

the detaining Officer gave reasonable

and articulable grounds for stopping

the defendant that resulted in his

being frisked.

2) That the rights of the defendant . . .

were not violated and therefore

evidence seized may be presented before

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the Jury at trial. That the behavior

and actions of the defendant as well as

the totality of the circumstances form

a further basis for Denying the Motion

to Suppress.

3) The Court has examined the Ruger

handgun in court for size, weight and

concealability to determine if it was

consistent with suppression testimony.

The Court finds that both federal and

state courts have given patrol officers

wide latitude to stop and frisk

defendants based upon an articulable

suspicion.

4) The Court finds that the entire process

of frisking the defendant took less

than 2 minutes for an investigatory

stop. The Court finds the Motion to

Suppress is Denied.

On or about 22 January 2013, the trial court entered a

judgment against defendant for carrying a concealed gun based

upon defendant’s guilty plea; defendant received a suspended

sentence and was placed on 24 months of supervised probation.

Defendant appeals.

II. Petition for Writ of Certiorari

In his plea transcript defendant reserved his right to

appeal “the interlocutory order entered in the above-captioned

case on January 22, 2012, denying his motion to suppress the

March 27, 2012 stop.” In open court, defendant’s attorney

stated “that he would like to appeal the interlocutory order

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entered in this matter today[.]” Defendant never appealed from

his judgment, but he subsequently filed a petition for a writ of

certiorari with this Court because he had failed to properly

appeal from his judgment within the time period allotted. This

Court stated in State v. Franklin,

All of defendant’s issues on appeal are

concerning his motion to suppress, but since

defendant did not file a notice of appeal

from the judgment or after entry of the

written order denying his motion to

suppress, we must first address whether we

have jurisdiction to consider defendant's

appeal. In Miller, this Court stated,

N.C. Gen. Stat. § 15A–979(b)

(2009) states that: An order

finally denying a motion to

suppress evidence may be reviewed

upon an appeal from a judgment of

conviction, including a judgment

entered upon a plea of guilty.

Defendant has failed to appeal

from the judgment of conviction

and our Court does not have

jurisdiction to consider

Defendant’s appeal. In North

Carolina, a defendant’s right to

pursue an appeal from a criminal

conviction is a creation of state

statute. Notice of intent to

appeal prior to plea bargain

finalization is a rule designed to

promote a fair posture for appeal

from a guilty plea. Notice of

Appeal is a procedural appellate

rule, required in order to give

this Court jurisdiction to hear

and decide a case. Although

Defendant preserved his right to

appeal by filing his written

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notice of intent to appeal from

the denial of his motion to

suppress, he failed to appeal from

his final judgment, as required by

N.C.G.S. § 15A–979(b).

Accordingly, the Court dismissed

defendant's appeal. Here, however, while

defendant has not properly provided notice

of appeal, he has petitioned this Court for

a writ of certiorari to consider his appeal.

North Carolina Rule of Appellate

Procedure 21(a) provides,

The writ of certiorari may be

issued in appropriate

circumstances by either appellate

court to permit review of the

judgments and orders of trial

tribunals when the right to

prosecute an appeal has been lost

by failure to take timely action,

or when no right of appeal from an

interlocutory order exists, or for

review pursuant to N.C.G.S. § 15A–

1422(c)(3) of an order of the

trial court denying a motion for

appropriate relief.

Pursuant to Rule 21(a), we grant defendant’s

petition for a writ of certiorari and will

consider the issues presented in his brief

as he lost his right to appeal by failure to

take timely action.

___ N.C. App. ___, ___, 736 S.E.2d 218, 220 (2012) (citations,

quotation marks, and brackets omitted). Accordingly, we grant

defendant’s petition for certiorari.

III. Standard of Review

Our review of a trial court’s denial of

a motion to suppress is strictly limited to

determining whether the trial judge’s

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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. The

trial court’s conclusions of law are fully

reviewable on appeal.

State v. McKinney, ___ N.C. App. ___, ___, 752 S.E.2d 726, 727-

28 (2014) (citations, quotation marks, and ellipses omitted).

IV. Findings of Fact

Defendant challenges portions of findings of facts 5 and 6

as not supported by the competent evidence and also contends

that portions of these findings of fact are actually conclusions

of law.

A. Findings of Fact Supported by Competent Evidence

As to all of defendant’s challenges regarding competent

evidence to support the findings of fact, much of his argument

is devoted to the credibility of the evidence and not

necessarily to its absence. But the credibility of the evidence

is a determination made by the trial court; “the trial court as

finder of the facts may believe or disbelieve all or any part of

the testimony of a witness,” Bowles Distributing Co. v. Pabst

Brewing Co., 80 N.C. App. 588, 592, 343 S.E.2d 543, 545 (1986)

(emphasis added). This Court reviews findings of fact only to

determine if there was competent evidence to support them, not

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whether all of the evidence supported them. See McKinney, ___

N.C. App. at ___, 752 S.E.2d at 727, Bowles Distributing Co., 80

N.C. App. at 592, 343 S.E.2d at 545.

It is said that a picture is worth a thousand words. In

this case, a picture would be worth several thousand words,

since the testimony in this case, the trial court’s order, and

other cases all necessarily use words to the very brief

movements, glances, and body language that tend to form the

basis for many a Terry stop. Lacking a picture of that moment

when Officer Wells observed defendant grabbing at his waistband

or side on 27 March 2012, we will address defendant’s arguments

as to each of these facts.

Defendant challenges the portion of finding of fact 5 that

stated defendant “used his right hand to grab his waistband to

clinch an item” because “Officer Wells’ repeated testimony is

that the defendant clinched his side . . . but he did not ever

testify that the defendant grabbed his waistband.” Defendant

also argues that Officer Wells did not “testify that the

defendant clinched ‘an item.’” Defendant’s arguments are hyper-

technical. Clutching, clinching, and grabbing are all words

which describe the same sort of movement and a person’s

waistband crosses his “side.” Officer Wells testified that

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defendant “clutch[ed] his right side at this time. And it was

very distinct, a clinched fist as well as almost like trying to

hold something on his body” and that the way defendant “was

clinching his side” is the reason he “believe[d] the waistband

would be of interest[.]” Accordingly, Officer Wells’ testimony

supports the challenged portions of finding of fact 5.

Defendant also challenges the portion of finding of fact 6

stating, “That the defendant then began to look specifically at

the officer in question[.]” Defendant directs our attention to

portions of Officer Wells’ testimony which he asserts show that

defendant did not “specifically” look at him. It is true that

it is nearly impossible to know for certain if another person is

actually looking at a particular thing — the observer can tell

only if it looks like they are looking at it. Here the evidence

shows that that is how defendant looked to Officer Wells.

Officer Wells testified that as defendant “rounded . . . his

turn . . . it was almost like he was surprised to see me and

kind of, you know, postured up[;]” “he saw me kind of slow

patrol[;]” and “[i]f he did make eye contact with me it was so

quick. But it was more like he panned around me in my direction

and then kind of –- I know he saw me for a fact that he saw me.

He had to have seen me[.]” Officer Wells’ testimony supports a

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finding of fact that defendant “look[ed] specifically at the

officer in question[.]” The challenged portion of finding of

fact six does not state that defendant and Officer Wells made

eye contact but only that defendant specifically saw Officer

Wells, and Officer Wells’ testimony supports this finding of

fact.

Defendant further challenges the portion of finding of fact

six that provides, “The Officer then turned around his vehicle

without lights and siren and stopped the defendant for

questioning.” Defendant specifically states in his brief that

he “agrees that the evidence supports a finding that the officer

stopped him and that the officer did so without the patrol car’s

lights or siren. It is inaccurate, however, to say or suggest

that the officer stopped the defendant only for questioning.”

Thus, defendant only challenges that there was competent

evidence to support Officer Wells’ mental intent for stopping

defendant. Defendant contends that Officer Wells’ true intent

was not just to question but also to search defendant. Officer

Wells testified that he “was going to stop [defendant] and

identify who he was and see what he was trying to hide on [that]

right side.” Officer Wells’ testimony supports a finding of

fact that his intent was to question defendant, since he would

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presumably ask defendant his identity. “Questioning” defendant

to identify him and frisking him to find out what he was trying

to hide does not mean that Officer Wells planned to do a more

extensive search than would be appropriate based upon reasonable

suspicion. Though the finding of fact could have been more

artfully written or could have contained more details about the

specific types of questions Officer Wells intended to ask, the

general statement that defendant was stopped “for questioning”

is supported by competent evidence. Accordingly, Officer Wells’

testimony supports the challenged portions of finding of fact 5.

These arguments are overruled.

B. Findings of Fact as Conclusions of Law

Defendant also contends that portions of findings of fact 5

and 6 are actually conclusions of law. To the extent that

defendant is correct, we will review them as such. See State v.

Jackson, ___ N.C. App. ___, ___, 727 S.E.2d 322, 329 (2012) (“We

will review conclusions of law de novo regardless of the label

applied by the trial court.” (citation and quotation marks

omitted)).

V. Reasonable Suspicion

Defendant contends that the trial court did not “have

reasonable suspicion, based on specific and articulable facts,

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that the individual is involved in criminal activity” to justify

stopping and frisking defendant. Defendant’s argument is

difficult to summarize in a logical manner because he

essentially takes each separate finding of fact or even portions

thereof and argues that each finding in isolation does not

create reasonable suspicion. It would be extremely difficult to

find reasonable suspicion in any case if it had to be supported

by each individual fact taken in isolation. But “[t]he concept

of reasonable suspicion is not readily, or even usefully,

reduced to a neat set of legal rules. Rather, in determining if

reasonable suspicion existed, the Court must account for the

totality of the circumstances—the whole picture.” State v.

Knudsen, ___ N.C. App. ___, 747 S.E.2d 641, 650-51 (emphasis

added) (citations, quotation marks, and ellipses omitted), disc.

review denied, ___ N.C. ___, 749 S.E.2d 865 (2013). As such, we

will set forth all of the findings of fact and address them as a

whole. See id. at ___, 747 S.E.2d at 651. Furthermore,

defendant also suggests that this Court can essentially make its

own findings of fact based upon the uncontested evidence before

the trial court and supplement the trial court’s findings of

facts for a “whole picture[.]” This is incorrect, as

[o]ur review of a trial court’s denial

of a motion to suppress is strictly limited

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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. The

trial court’s conclusions of law are fully

reviewable on appeal.

McKinney, ___ N.C. App. at ___, 752 S.E.2d at 727-28 (emphasis

added).

Defendant first contends that he was “seized;” this is

true, but merely the start of the analysis. See State v.

Fleming, 106 N.C. App. 165, 169, 415 S.E.2d 782, 784 (1992)

(“When defendant approached Officer Williams, the officer

immediately began to pat him down while simultaneously asking

him questions. Thus, Officer Williams applied actual physical

force to defendant’s person and this action constituted a

seizure. Id. See also Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889

(1968). (When a law enforcement officer takes hold of an

individual and pats down the outer surface of his clothing, he

has seized that individual within the meaning of the Fourth

Amendment.) Accordingly, the Fourth Amendment is applicable to

the facts and circumstances in this case.” (quotation marks

omitted)).

The fact that defendant was “seized” then leads to

consideration of the reasonableness of this seizure, considering

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all of the circumstances as

[t]he Constitution does not prohibit

all searches and seizures; it only protects

against unreasonable searches and seizures.

Since Officer Williams’ conduct did not rise

to the level of a traditional arrest

requiring probable cause, his conduct must

be measured in light of the reasonableness

standard established in Terry v. Ohio. A

brief investigative stop of an individual

must be based on specific and articulable

facts as well as inferences from those

facts, viewing the circumstances surrounding

the seizure through the eyes of a reasonable

cautious police officer on the scene, guided

by his experience and training. Law

enforcement officers are required to have

reasonable suspicion, based on objective

facts, that the individual is involved in

criminal activity.

Id. at 169-70, 415 S.E.2d at 785 (citations and quotation marks

omitted).

In order to conduct a warrantless,

investigatory stop, an officer must have

reasonable and articulable suspicion of

criminal activity.

The stop must be based on specific

and articulable facts, as well as

the rational inferences from those

facts, as viewed through the eyes

of a reasonable, cautious officer,

guided by his experience and

training. The only requirement is

a minimal level of objective

justification, something more than

an unparticularized suspicion or

hunch.

The officer’s reasonable suspicion must

arise from his knowledge prior to the time

of the stop.

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State v. Blankenship, ___ N.C. App. ___, ___, 748 S.E.2d 616,

618 (2013) (citations, quotation marks, and brackets omitted).

Defendant argues, based on several different cases which he

contends are on point with this case, that Officer Wells did not

have reasonable suspicion to frisk him. But since the

determination in each case may differ on the subtlest of facts,

and lacking a picture of the moment each defendant was stopped

in these cases as well, we have analyzed the cases identified by

defendant with consideration of both the facts and law, which we

have set out in verbatim fashion in order to emphasis these

differences without unnecessary further commentary. Given the

wealth of binding authority in North Carolina regarding

defendant’s appeal we need not consider the persuasive authority

presented by defendant. Defendant first compares this case to

Fleming wherein

several Greensboro police officers were in

the vicinity of the Ray Warren Homes housing

project. The officers were members of a

tactical division and were operating a drug

suppression program in the project on this

date. Officer J. Williams, a veteran officer

of seventeen years and a member of the

tactical division, described the Ray Warren

Homes project as an area where numerous

arrests for drug violations had been made

and where crack cocaine and other contraband

was sold on a daily basis. At approximately

12:10 a.m., Officer Williams observed

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defendant and another black male standing in

an open area between two apartment buildings

located on Best and Rugby Streets. When

first observed, defendant and his companion

were standing in the open area looking at

the officers located on Best Street.

Officer Williams was out of his vehicle at

the time talking to the other officers.

Officer Williams further testified that the

gentlemen stood there and they watched us

for a few minutes, and then the defendant

and the other young man turned and started

walking towards Rugby Street out of the

area.

When the two young men started walking

the other way, Officer Williams got into his

vehicle and drove around to Rugby Street

where the gentlemen were walking out from

between two buildings. He then observed the

defendant and the other male walking on the

sidewalk along Rugby Street towards him.

Officer Williams told the court he had never

seen either of the two young men in the area

of the housing project. On cross

examination, he admitted he decided to stop

them because he had never seen them.

Officer Williams got out of his vehicle and

asked them to hold it a minute. At this

time, defendant and the other male were

approximately 35 to 40 feet from the

officer. Defendant turned right towards

Best Street, and Officer Williams said, Come

here. Defendant hesitated for approximately

one minute, then both young men complied and

approached the officer.

Officer Williams testified that when

defendant approached he acted real nervous.

Officer Williams asked them to identify

themselves and they both complied; neither

were residents of the Ray Warren Homes

project. When questioned about why he was

in the area, defendant stated a friend had

dropped him off and he was walking through.

When asked if the conversation with

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defendant was before he patted him down,

Officer Williams responded, I was talking to

him as I was patting him down. Officer

Williams felt an object in defendant’s

underwear while he was patting him down.

Officer Williams testified that when he

asked defendant what the object was,

defendant replied crack cocaine. Pursuant

to Officer Williams’ instructions, defendant

subsequently removed the object and placed

it on Officer Williams’ car hood.

Fleming, 106 N.C. App. at 166-67, 415 S.E.2d at 783 (quotation

marks omitted). The defendant made a motion to suppress which

the trial court subsequently denied. Id. at 168, 415 S.E.2d at

784. Defendant appealed. Id. This Court stated in its

analysis,

at the time Officer Williams first observed

defendant and his companion, they were

merely standing in an open area between two

apartment buildings. At this point, they

were just watching the group of officers

standing on the street and talking. The

officer observed no overt act by defendant

at this time nor any contact between

defendant and his companion. Next, the

officer observed the two men walk between

two buildings, out of the open area, toward

Rugby Street and then begin walking down the

public sidewalk in front of the apartments.

These actions were not sufficient to create

a reasonable suspicion that defendant was

involved in criminal conduct, it being

neither unusual nor suspicious that they

chose to walk in a direction which led away

from the group of officers. At this time,

Officer Williams stopped defendant and his

companion and immediately proceeded to ask

them questions while he simultaneously

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patted them down.

We find that the facts in this case are

analogous to those found in Brown. Officer

Williams had only a generalized suspicion

that the defendant was engaged in criminal

activity, based upon the time, place, and

the officer’s knowledge that defendant was

unfamiliar to the area. Should these

factors be found sufficient to justify the

seizure of this defendant, such factors

could obviously justify the seizure of

innocent citizens unfamiliar to the

observing officer, who, late at night,

happen to be seen standing in an open area

of a housing project or walking down a

public sidewalk in a high drug area. This

would not be reasonable.

Considering the facts relied upon by

the officer, together with the rational

inferences which the officer was entitled to

draw therefrom, we conclude they were

inadequate to support the trial court’s

conclusion that Officer Williams had a

reasonable articulable suspicion that

defendant was engaged in criminal activity.

Id. at 170-71, 415 S.E.2d at 785-86 (emphasis added) (quotation

marks omitted). While many of the facts in Fleming are the same

or similar to this case, in Fleming, the defendant did not make

any overt actions, id. at 170, 415 S.E.2d at 785, and here

defendant did when he “used his right hand to grab his waistband

to clinch an item.”

Defendant also directs this Court’s attention to In Re

J.L.B.M., wherein

on patrol at approximately 6:00 p.m. on 6

July 2004, Officer D.H. Henderson (Officer

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Henderson) responded to a police dispatch of

a suspicious person at an Exxon gas station

in Burlington, North Carolina. The only

description given of the person was Hispanic

male. Officer Henderson saw a person in the

gas station parking lot, later identified as

the juvenile, who fit the description of the

person. When the juvenile saw Officer

Henderson, he walked over to a vehicle in

the parking lot, spoke to someone, and then

began walking away from Officer Henderson’s

patrol car. Officer Henderson pulled up

beside the juvenile in an adjoining

restaurant parking lot and stopped the

juvenile. Upon getting out of the patrol

car and speaking with the juvenile, Officer

Henderson noticed a bulge in the juvenile’s

pocket. Officer Henderson patted down the

juvenile for weapons. Officer Henderson

found and seized a dark blue, half-empty

spray can of paint and a box cutter with an

open blade.

176 N.C. App. 613, 615-16, 627 S.E.2d 239, 241 (2006) (quotation

marks omitted). This Court held

that in the present case, like in Fleming,

the stop was unjustified. Officer Henderson

relied solely on the dispatch that there was

a suspicious person at the Exxon gas

station, that the juvenile matched the

Hispanic male description of the suspicious

person, that the juvenile was wearing baggy

clothes, and that the juvenile chose to walk

away from the patrol car. Officer Henderson

was not aware of any graffiti or property

damage before he stopped the juvenile, and

he testified that he noticed the bulge in

the juvenile’s pocket after he stopped the

juvenile.

Id. at 622, 627 S.E.2d at 245 (quotation marks omitted).

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However, unlike in the present case, in In re J.L.B.M., the

defendant was not in an area known for “viol[ent] crimes [and]

gun crimes[;]” the defendant did not change his actions upon

seeing a law enforcement officer, and the defendant took no

actions which made law enforcement believe “defendant was trying

to hide something and . . . made it apparent that he was

concealing something on his person.” Id. at 616, 627 S.E.2d at

241. In In re J.L.B.M., the law enforcement officer did not

even notice the defendant was concealing something until “after

he stopped” him. Id. at 622, 627 S.E.2d at 245. (emphasis

added) Accordingly, In re J.L.B.M., is distinguishable from the

present case.

Defendant also directs our attention to cases where “this

Court has found some physical mannerisms to be a factor

supporting reasonable suspicion, but only in combination with

facts that point to actual criminal activity.” Here, we have

both a high crime area and movements by defendant which Officer

Wells found suspicious. The very location of where defendant

was walking was an area so ridden with crime that it was

patrolled by a Special Response Unit in which Officer Wells

served, which was a part of “a task force made up of US Marshals

and [the] Drug Enforcement Agency” in order to “concentrate[e]

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on viol[ent] crimes [and] gun crimes[.]” Furthermore,

“[o]fficers have been assaulted in the area, Officer Wells has

personally heard shots fired in the area, and “the Kinston

Department of Public Safety enforces a ban list of over 9 pages

of individuals who are banned from public housing.”

Accordingly, these circumstances coupled with defendant’s own

actions are factors in a reasonable suspicion analysis. See

State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522

(1995) (“[A]n officer’s experience and training can create

reasonable suspicion. Defendant’s actions must be viewed through

the officer’s eyes. Our Supreme Court has also noted that the

presence of an individual on a corner specifically known for

drug activity and the scene of multiple recent arrests for

drugs, coupled with evasive actions by defendant are sufficient

to form reasonable suspicion to stop an individual.” (citations

omitted); see generally State v. Butler, 331 N.C. 227, 233-34,

415 S.E.2d 719, 722 (1992) (noting cases where a high crime area

has been a factor in determining reasonable suspicion).

Defendant further contends that “because carrying a

concealed weapon with a valid permit is not illegal in North

Carolina” reasonable suspicion is “undermined” in this case.

Defendant essentially argues that since a person carrying a

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concealed weapon may also have a permit to carry it legally, a

law enforcement officer cannot assume that a person who appears

to have a weapon concealed is doing so illegally. Yet

defendant’s argument is undermined by North Carolina General

Statute § 14-415.11, which addresses exactly what an individual

is required to do if he is legally carrying a concealed weapon

and he is approached by a law enforcement officer:

Any person who has a concealed handgun

permit may carry a concealed handgun unless

otherwise specifically prohibited by law.

The person shall carry the permit together

with valid identification whenever the

person is carrying a concealed handgun,

shall disclose to any law enforcement

officer that the person holds a valid permit

and is carrying a concealed handgun when

approached or addressed by the officer, and

shall display both the permit and the proper

identification upon the request of a law

enforcement officer.

N.C. Gen. Stat. § 14-415.11 (2011). (emphasis added) Thus, a

person who is carrying a concealed weapon legally has an

affirmative obligation to disclose this fact and that he has a

permit to an officer “when approached or addressed by the

officer.” Id.

Here, Officer Wells approached defendant and addressed him,

but there is no indication that defendant informed him at any

time that he had any legal right to carry a concealed weapon,

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nor is there any evidence that defendant had a valid concealed

carry permit. The trial court made a finding of fact, which is

not challenged by defendant, “[t]hat the defendant never stated

to the Officer that he was carrying a weapon.” Since North

Carolina General Statute § 14-415.11 requires any person who is

carrying a concealed weapon legally to disclose this fact when

he is “approached” by a law enforcement officer, and defendant

did not make this disclosure, Officer Wells had no reason to

assume that any gun defendant may have tucked into his waistband

was legally carried. See id. In fact, just the opposite would

be true: if defendant was legally carrying a gun, Officer Wells

would expect that he would immediately disclose this information

when he approached defendant and his failure to do so would

raise more suspicion that he was carrying the weapon illegally.

The binding unchallenged findings of fact and those we have

already determined are supported by competent evidence, see

Peters v. Pennington, 210 N.C. App. 1, 13, 707 S.E.2d 724, 733

(2011) (“Unchallenged findings of fact are binding on appeal.”),

support the conclusion that Officer Wells had reasonable

suspicion of criminal activity. Defendant was in a public

housing area that was patrolled by a Special Response Unit and

“a task force made up of US Marshals and [the] Drug Enforcement

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Agency” in order to “concentrat[e] on viol[ent] crimes [and] gun

crimes[.]” Officer Wells was a police officer with ten years of

experience and was assigned to the Special Response Unit where

his responsibilities included patrolling the public housing

area. “[O]fficers have been assaulted” in this area. Many

individuals -- a list of at least nine pages -- are banned from

the public housing area. On a prior occasion Officer Wells had

heard shots fired near the area where he was patrolling on 27

March 2012. On 27 March 2012, Officer Wells saw defendant

“walking normally while swinging his arms.” Defendant turned

and “used his right hand to grab his waistband to clinch an

item” which “was an overt act[ion.]” Officer Wells believed

“defendant was trying to hide something and his posturing made

it apparent that he was concealing something on his person.”

Defendant “look[ed] specifically at” Officer Wells, and

defendant’s reaction created an “urgency to stop” defendant in

Officer Wells in order to identify defendant. Officer Wells

turned his vehicle around, without lights or siren, to stop

defendant in order to ask him questions. Officer Wells did not

draw a weapon or use any type of force with defendant nor did he

handcuff defendant, though he did frisk defendant and found a

gun in defendant’s waistband.

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The State’s arguments were based on several other cases,

but we will not address these as we find Fleming to be more

similar than those presented by the State. In Fleming, as in

this case, the law enforcement officers were experienced

officers involved with a specific law enforcement team assembled

to address a specific crime problem in a specific area.

Fleming, 106 N.C. App. at 166, 415 S.E.2d at 783. In Fleming,

Officer Williams was a seventeen year veteran officer and a

“member[] of a tactical division . . . operating a drug

suppression program” in the vicinity of a housing project where

the defendant was seized; id. at 166-67, 415 S.E.2d at 783,

here, Officer Wells was a ten year veteran officer and “was

assigned to the Special Response Unit . . . assigned to patrol

public housing units . . . along with a task force made up of US

Marshals and [the] Drug Enforcement Agency” in order to

“concentrat[e] on viol[ent] crimes [and] gun crimes[.]” In

Fleming, this Court concluded that Officer Williams did not have

reasonable suspicion to seize the defendant because “at the time

Officer Williams first observed [the] defendant and his

companion, they were merely standing in an open area between two

apartment buildings. At this point, they were just watching the

group of officers standing on the street and talking. The

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officer observed no overt act by defendant[.]” Id. at 170, 415

S.E.2d at 785. This case is different, as Officer Wells saw

defendant “walking normally while swinging his arms[,]” but then

he turned and “used his right hand to grab his waistband to

clinch an item” which “was an overt act[ion.]” Officer Wells

believed “defendant was trying to hide something and his

posturing made it apparent that he was concealing something on

his person.” Defendant “look[ed] specifically at” Officer

Wells, and defendant’s reaction “created some urgency to stop”

defendant in Officer Wells in order to identify defendant.

Here, the trial court specifically found that defendant engaged

in a specific action, “grab[bing] his waistband to clinch an

item[,]” which made Officer Wells believe “defendant was trying

to hide something and his posturing made it apparent that he was

concealing something on his person.” Furthermore, defendant

looked at Officer Wells in such a way that his reaction “created

some urgency” in Officer Wells that defendant needed to be

identified in a high crime area where a list of at least nine

pages of individuals were banned. Accordingly, we conclude that

the findings of fact do support a conclusion of reasonable

suspicion on the part of Officer Wells to stop and frisk

defendant as due to the high crime area, Officer Wells’

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experience and knowledge of the area, and defendant’s behavior,

Officer Wells had a reasonable suspicion both to stop defendant

and frisk him for weapons. See generally State v. Rinck, 303

N.C. 551, 559, 280 S.E.2d 912, 919 (1981) (“If from the totality

of circumstances, a law enforcement officer has reasonable

grounds to believe that criminal activity may be afoot, he may

temporarily detain an individual. If upon detaining the

individual, the officer’s personal observations confirm that

criminal activity may be afoot and suggest that the person

detained may be armed, the officer may frisk him as a matter of

self-protection.” (citations omitted)). As such, the trial

court properly denied defendant’s motion to suppress, and

defendant’s argument is overruled.

VI. Conclusion

For the foregoing reasons, we affirm.

AFFIRMED.

Judges HUNTER, JR., Robert N. and DILLON concur.