               IN THE SUPREME COURT OF NORTH CAROLINA

                                   No. 295PA17

                              Filed 21 December 2018

STATE OF NORTH CAROLINA

              v.
TERRY JEROME WILSON



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous,

unpublished decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 698

(2017), reversing and vacating a judgment entered on 13 April 2016 and reversing an

order denying defendant’s motion to suppress entered on 4 May 2016, both by Judge

John O. Craig, III in Superior Court, Forsyth County. Heard in the Supreme Court

on 27 August 2018.


      Joshua H. Stein, Attorney General, by Derrick C. Mertz, Special Deputy
      Attorney General, for the State-appellant.

      Glenn Gerding, Appellate Defender, and Sterling Rozear, Assistant Appellate
      Defender, for defendant-appellee.


      MARTIN, Chief Justice.


      A SWAT team was sweeping a house so that the police could execute a search

warrant.   Several police officers were positioned around the house to create a

perimeter securing the scene. Defendant penetrated this SWAT perimeter, stating

that he was going to get his moped. In so doing, he passed Officer Christian, who was
                                  STATE V. WILSON

                                  Opinion of the Court



stationed at the perimeter near the street. Defendant then kept going, moving up

the driveway and toward the house to be searched. Officer Ayers, who was stationed

near the house, confronted defendant.       After a brief interaction, Officer Ayers

searched defendant based on his suspicion that defendant was armed. Officer Ayers

found a firearm in defendant’s pocket. Defendant, who had previously been convicted

of a felony, was arrested and charged with being a felon in possession of a firearm.

Before trial, defendant moved to suppress evidence of the firearm on the grounds that

the search violated, inter alia, his Fourth Amendment right under the United States

Constitution “to be secure . . . against unreasonable searches and seizures.” U.S.

Const. amend. IV. The trial court found that Officer Ayers “had a reasonable and

articulable suspicion that the Defendant might have been armed and presently

dangerous” and denied defendant’s motion. Defendant then pleaded guilty, while

reserving his right to appeal the denial of his motion to suppress.

      Defendant appealed. The Court of Appeals held that the search was invalid

because the trial court’s order did not show that the search was supported by

reasonable suspicion. State v. Wilson, ___ N.C. App. ___, 803 S.E.2d 698, 2017 WL

3480940, at *6 (Aug. 15, 2017) (unpublished). The State petitioned this Court for

review, arguing that the Court of Appeals’ reliance on the individualized suspicion

standard was inconsistent with the decision of the Supreme Court of the United

States in Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587 (1981), and that Officer




                                          -2-
                                    STATE V. WILSON

                                    Opinion of the Court



Ayers nevertheless reasonably suspected that Defendant was armed. We allowed the

State’s petition for review of this issue.

       We hold that the rule in Michigan v. Summers justifies the seizure here

because defendant, who passed one officer, stated he was going to get his moped, and

continued toward the premises being searched, posed a real threat to the safe and

efficient completion of the search. See Bailey v. United States, 568 U.S. 186, 200-01,

133 S. Ct. 1031, 1041-42 (2013) (citing Summers, 452 U.S. at 702-03, 101 S. Ct. at

2594). We also hold that both the search and seizure of defendant were supported by

individualized suspicion and thus did not violate the Fourth Amendment. See Terry

v. Ohio, 392 U.S. 1, 28, 88 S. Ct. 1868, 1883 (1968). We therefore reverse the decision

of the Court of Appeals.

       The following facts are not in dispute. At around 11:00 p.m. on 21 March 2014,

officers of the Winston-Salem Police Department executed a search warrant for the

premises at 2300 North Glenn Avenue. This address was a residential lot with a

driveway that was about eighty feet long leading to a house and another building.

While the initial sweep was being conducted by a SWAT team, several uniformed

officers maintained a perimeter at the edge of the property to protect the SWAT team

from outside interference. The officers maintaining the perimeter wore uniforms that

clearly identified them as police officers, as well as safety equipment such as Kevlar

vests and ballistic helmets. In its findings of fact, the trial court stated that the police

presence at 2300 North Glenn Avenue that night was such that it would be clear to

                                             -3-
                                   STATE V. WILSON

                                   Opinion of the Court



any passerby that police were engaged in an operation and intended to exclude the

general public from the property. Officers Ayers and Christian were among the

uniformed officers maintaining the perimeter during the search. Officer Ayers knew

the area to be dangerous, having previously responded to discharges of firearms,

narcotics activity, and a shooting at the location of the search.

      Defendant walked onto the premises while the SWAT team was still actively

securing the house.     Officer Christian was standing near where the driveway

connected to the street, and Officer Ayers was standing farther up the driveway, a

few feet from the house. Officer Ayers saw defendant walk past Officer Christian and

heard defendant say something about wanting to get his moped. Officer Ayers walked

toward defendant and noticed a heavy object in defendant’s pocket. Applying his

training and expertise, Officer Ayers believed that the object was a firearm based on

its size, shape, and apparent weight.       Officer Ayers asked defendant if he was

carrying any weapons, and defendant said that he was not. Officer Ayers then told

defendant that he was going to frisk him for weapons and instructed defendant to

turn around.    When defendant turned around, Officer Ayers saw the grip of a

handgun protruding from defendant’s pocket. At this point, Officer Ayers seized the

weapon and detained defendant.        Defendant was ultimately charged with, and

pleaded guilty to, possession of a firearm by a felon.




                                           -4-
                                      STATE V. WILSON

                                      Opinion of the Court



       In its argument to this Court, the State asks us to apply the categorical rule

from Michigan v. Summers to the facts of this case.1 In Summers, the Supreme Court

of the United States reasoned that “for Fourth Amendment purposes, . . . a warrant

to search for contraband founded on probable cause implicitly carries with it the

limited authority to detain the occupants of the premises while a proper search is

conducted.” Summers, 452 U.S. at 705, 101 S. Ct. at 2595. The Supreme Court

justified this rule, at least in part, on the basis that “[t]he risk of harm to both the

police and the occupants is minimized if the officers routinely exercise unquestioned

command of the situation.” Id. at 702-03, 101 S. Ct. at 2594 (citing 2 Wayne R.

LaFave, Search and Seizure § 4.9, at 150-51 (1978)).                The Court has further

emphasized three governmental interests that, when taken together, “justify the


       1  We disagree with the concurring justice’s contention that the State waived merits
review of the very issue—applicability of the Summers rule—that we accepted for
discretionary review. The record shows that the trial judge considered whether the police
had the authority to stop a person to protect the integrity of a scene during the execution of
a search warrant. This inquiry is substantially equivalent to considering whether the
Summers rule applies, so the trial judge appears to have determined (and we agree) that the
Summers grounds for relief “were . . . apparent from context” and were thus preserved for
appellate review. N.C. R. App. P. 10(a)(1). Furthermore, the State was the appellee at the
Court of Appeals and the Summers rule is an alternate basis in law supporting upholding
the trial court’s decision. Our rules allow an appellee to argue a preserved alternate basis in
law on appeal and that is what the State in fact did at the Court of Appeals. See N.C. R. App.
P. 10(c). Put simply, given that the State prevailed before the trial court and was the appellee
before the Court of Appeals, "[t]he question for review is whether the ruling of the trial court
was correct" rather than "whether the reason given therefor is sound or tenable." State v.
Austin, 320 N.C. 276, 290, 357 S.E.2d 6 41, 650 (citing State v. Blackwell, 246 N.C. 642, 644,
90 S.E.2d 867, 869 (1957)), cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224
(1987). As a result, the State can raise the Summers issue here as the appellant challenging
the Court of Appeals decision.


                                              -5-
                                  STATE V. WILSON

                                  Opinion of the Court



detention of an occupant who is on the premises during the execution of a search

warrant: officer safety, facilitating the completion of the search, and preventing

flight.” Bailey, 568 U.S. at 194, 133 S. Ct. at 1038 (citing Summers, 452 U.S. at

702-03, 101 S. Ct. at 2594). The Court has stated that “[a]n officer’s authority to

detain incident to a search is categorical; it does not depend on the ‘quantum of proof

justifying detention or the extent of the intrusion to be imposed by the seizure.’ ”

Muehler v. Mena, 544 U.S. 93, 98, 125 S. Ct. 1465, 1470 (2005) (quoting Summers,

452 U.S. at 705 n.19, 101 S. Ct. at 2595 n.19).

      The Supreme Court has further defined the category covered by the Summers

rule on two occasions. First, in Muehler v. Mena, the plaintiff, suing several police

officers, challenged both the use of handcuffs incident to a Summers seizure and the

two- to three-hour duration of the seizure. See id. at 95-96, 125 S. Ct. at 1468-69. In

finding the use of handcuffs permissible, the Court again recognized the need for

police executing a search warrant to “routinely exercise unquestioned command of

the situation.” Id. at 99, 125 S. Ct. at 1470 (quoting Summers, 452 U.S. at 703, 101

S. Ct. at 2594). The Court also held that the seizure was permissible during the

entirety of the execution of the search warrant. See id. at 100, 125 S. Ct. at 1471

(holding that “the 2- to 3-hour detention in handcuffs . . . [did] not outweigh the

government’s continuing safety interests”).

      Second, in Bailey v. United States, the Supreme Court was confronted with a

defendant who was arrested almost one mile away from the location being searched.

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                                   STATE V. WILSON

                                  Opinion of the Court



See 568 U.S. at 194, 133 S. Ct. at 1038. The Court clarified that “[t]he categorical

authority to detain incident to the execution of a search warrant must be limited to

the immediate vicinity of the premises to be searched.” 568 U.S. at 199, 133 S. Ct. at

1041. Ultimately, the Court held that the seizure in Bailey was unlawful because the

defendant “was detained at a point beyond any reasonable understanding of the

immediate vicinity of the premises in question.” Id. at 201, 133 S. Ct. at 1042. But

the Court has identified several factors that courts can consider “to determine

whether an occupant was detained within the immediate vicinity of the premises to

be searched, including the lawful limits of the premises, whether the occupant was

within the line of sight of his dwelling, the ease of reentry from the occupant’s

location, and other relevant factors.” Id.

      Based on this doctrinal trilogy, we can identify three parts of the Summers

rule: “a warrant to search for contraband founded on probable cause implicitly carries

with it the limited authority to detain [(1)] the occupants,” Summers, 452 U.S. at 705,

101 S. Ct. at 2595, (2) who are “within the immediate vicinity of the premises to be

searched,” Bailey, 568 U.S. at 201, 133 S. Ct. at 1042, and (3) who are present “during

the execution of a search warrant,” id. at 194, 133 S. Ct. at 1038 (citing Summers,

452 U.S. at 702-03, 101 S. Ct. at 2594); see also Muehler, 544 U.S. at 102, 125 S. Ct.

at 1472 (holding that “the officers’ detention of Mena in handcuffs during the

execution of the search warrant was reasonable and did not violate the Fourth




                                             -7-
                                  STATE V. WILSON

                                  Opinion of the Court



Amendment”). These three parts roughly correspond to the “who,” “where,” and

“when” of a lawful suspicionless seizure incident to the execution of a search warrant.

      As we have discussed, the Supreme Court has already provided clear guidance

as to the second and third parts of the Summers rule. And the application of that

guidance to this case is straightforward. No one disputes that defendant was seized

during the execution of a search warrant. It is also evident that defendant was seized

within the immediate vicinity of the premises being searched. Defendant walked past

Officer Christian, who was standing close to where the driveway connected to the

street, and proceeded toward Officer Ayers, who was standing near the house being

searched. When Officer Ayers stopped him, defendant was well within the lawful

limits of the property containing the house being searched. And, had he not been

stopped by police, defendant could easily have accessed the house. Thus the spatial

requirements of the Summers rule were met here. See Bailey, 568 U.S. at 201, 133

S. Ct. at 1042.

      As to the remaining part of our formulation of the Summers rule, we

acknowledge that the Supreme Court has not directly resolved the issue of who

qualifies as an “occupant” for the purposes of the Summers rule. Nevertheless, using

the Supreme Court’s reasoning that developed through the trilogy of Summers cases

as our guidepost, we will now attempt to determine the “proper limit [that] accords

with the rationale of the [Summers] rule.” Id.



                                          -8-
                                   STATE V. WILSON

                                   Opinion of the Court



      In Bailey, the Supreme Court recognized that the search of a residence “has a

spatial dimension” and that the Summers rule must be limited “to the area in which

an occupant poses a real threat to the safe and efficient execution of a search

warrant.” Id. Notably, this does not confine the Summers rule to the premises

identified in the search warrant, but extends that rule to the immediate vicinity of

those premises.    Id. The reasoning in Bailey comports with the justification in

Summers because someone who is sufficiently close to the premises being searched

could pose just as real a threat to officer safety and to the efficacy of the search as

someone who is within the premises. Applying the Supreme Court’s reasoning in

Bailey as to the spatial dimension of a search, we believe that a person is an occupant

for the purposes of the Summers rule if he “poses a real threat to the safe and efficient

execution of a search warrant.” Id.

      We believe defendant posed a real threat to the safe and efficient execution of

the search warrant in this case. He approached the house being swept, announced

his intent to retrieve his moped from the premises, and appeared to be armed. It was

obvious that defendant posed a threat to the safe completion of the search. Defendant

argues that he was not an occupant of the premises being searched in the ordinary

sense of the word. Given defendant’s actions here, however, it was apparent to Officer

Ayers that defendant was attempting to enter the area being searched—or, stated

another way, defendant would have occupied the area being searched if he had not

been restrained. This understanding of occupancy is necessary given the Supreme

                                           -9-
                                    STATE V. WILSON

                                   Opinion of the Court



Court’s recognition that officers may constitutionally mitigate the risk of someone

entering the premises during a search “by taking routine precautions, for instance by

erecting barricades or posting someone on the perimeter or at the door.” Id. at 195,

133 S. Ct. at 1039. Indeed, if such precautionary measures did not carry with them

some categorical authority for police to detain individuals who attempt to circumvent

them, it is not clear how officers could practically “search without fear that occupants,

who are on the premises and able to observe the course of the search, [would] become

disruptive, dangerous, or otherwise frustrate the search.” Id. at 195, 133 S. Ct. at

1038.

        Defendant’s own actions here caused him to satisfy the first part, the “who,” of

the Summers rule. As we have discussed, the second and third parts of the Summers

rule, the “where” and “when,” are also satisfied.         The Summers rule, therefore,

justified the seizure of defendant here.

        But, because the Supreme Court has only used the Summers rule to justify

detentions incident to the execution of search warrants, see, e.g., Bailey, 568 U.S. at

194, 133 S. Ct. at 1038; Muehler, 544 U.S. at 98, 125 S. Ct. at 1470, we must

determine separately whether the search of defendant’s person was justified. In

Terry v. Ohio, the Supreme Court determined that a brief stop and frisk did not

violate a defendant’s Fourth Amendment rights when “a reasonably prudent man

would have been warranted in believing [the defendant] was armed and thus

presented a threat to the officer’s safety while he was investigating his suspicious

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                                    STATE V. WILSON

                                    Opinion of the Court



behavior.”   392 U.S. at 28, 88 S. Ct. at 1883.            In other words, an officer may

constitutionally conduct what has come to be called a Terry stop if that officer can

“reasonably . . . conclude in light of his experience that criminal activity may be

afoot.” Id. at 30, 88 S. Ct. at 1884. “The reasonable suspicion standard is a ‘less

demanding standard than probable cause’ and ‘a considerably less [demanding

standard] than preponderance of the evidence.’ ” State v. Bullock, 370 N.C. 256, 258,

805 S.E.2d 671, 674 (2017) (alteration in original) (quoting Illinois v. Wardlow, 528

U.S. 119, 123, 120 S. Ct. 673, 675-76 (2000)). To meet this standard, an officer “must

be able to point to specific and articulable facts” and to “rational inferences from those

facts” justifying the search or seizure at issue. Terry, 392 U.S. at 21, 88 S. Ct. at

1880. “To determine whether reasonable suspicion exists, courts must look at ‘the

totality of the circumstances’ as ‘viewed from the standpoint of an objectively

reasonable police officer.’ ” State v. Johnson, 370 N.C. 32, 34-35, 803 S.E.2d 137, 139

(2017) (citation omitted) (first quoting United States v. Cortez, 449 U.S. 411, 417, 101

S. Ct. 690, 695 (1981); and then quoting Ornelas v. United States, 517 U.S. 690, 696,

116 S. Ct. 1657, 1661-62 (1996)).

      “When reviewing a ruling on a motion to suppress, we analyze whether the

trial court’s ‘underlying findings of fact are supported by competent evidence . . . and

whether those factual findings in turn support the [trial court’s] ultimate conclusions

of law.’ ” Bullock, 370 N.C. at 258, 805 S.E.2d at 674 (alterations in original) (quoting

State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).

                                           -11-
                                  STATE V. WILSON

                                  Opinion of the Court



      Here, Officer Ayers was the sole witness who testified at the suppression

hearing, and the facts that he testified to were uncontested. Based on that testimony,

the trial court found that the police were conducting a search at a location where

there had been numerous reports of gun violence and were openly maintaining a

perimeter to prevent public access to the property in question during the search.

Defendant then approached the premises during the search, passing one officer in a

manner that “was very unusual for a member of the general public.” Officer Ayers

approached defendant and observed that defendant had something in his pocket.

Based on the size, weight, and shape of the object, Officer Ayers believed that the

object was a gun or other weapon. Defendant told Officer Ayers that he was there to

get his moped and that he was not armed.           The trial court concluded that “a

reasonable and prudent police officer would find [defendant’s behavior] unusual” and

that, based on the totality of these circumstances, Officer Ayers “had a reasonable

and articulable suspicion that the Defendant might have been armed and presently

dangerous.”

      We find no error in the trial court’s reasoning. Defendant breached a police

perimeter during an active SWAT team sweep. Based on his training, experience,

and observations, it was reasonable for Officer Ayers to suspect that defendant was

armed. Defendant then appeared to lie about being armed. Given the circumstances

of the ongoing search and defendant’s actions, it was reasonable to suspect that

defendant was there to attack police officers on the premises or otherwise violently

                                         -12-
                                     STATE V. WILSON

                                     Opinion of the Court



interfere with the execution of the search warrant. Because any such violence would

constitute criminal activity, Officer Ayers had reasonable suspicion, based on these

circumstances, that criminal activity was afoot. See Terry, 392 U.S. at 30, 88 S. Ct.

at 1884. Thus, the trial court correctly denied defendant’s motion to suppress.

       In this case, the Court of Appeals erred by focusing solely on one finding of fact

instead of the totality of the circumstances, as Terry requires. See Johnson, 370 N.C.

at 34-35, 803 S.E.2d at 139. The Court of Appeals correctly stated that “ ‘unusual’

behavior does not necessarily equal behavior leading a reasonable officer to believe

criminal activity was afoot.” Wilson, 2017 WL 3480940, at *5. This reasoning,

though, does not take into account the particular unusual behavior at issue here and

the totality of the circumstances surrounding it. These circumstances include police

officers having responded to shootings at and near the house in the past, Officer

Ayers’ observation that defendant was likely armed, and defendant’s apparent lie

about possessing a weapon.2         Combining these circumstances with defendant’s

unusual choice to cross a police perimeter to purportedly retrieve his moped during

an active SWAT team sweep, there were more than enough facts to establish a

reasonable suspicion that criminal activity may have been afoot. See Terry, 392 U.S.




       2 The fact that defendant was actually lying is not relevant to a finding of reasonable
suspicion because the lie was not confirmed until after the search. However, the fact that
Officer Ayers had a reasonable suspicion that defendant was armed means that he also had
a reasonable suspicion that defendant was lying when defendant said that he was not armed.

                                            -13-
                                  STATE V. WILSON

                                 Opinion of the Court



at 30, 88 S. Ct. at 1884. The warrantless detention and search of defendant therefore

did not violate the Fourth Amendment.

      For the reasons stated above, we reverse the decision of the Court of Appeals.


      REVERSED.




                                        -14-
      Justice HUDSON, concurring in part and concurring in the result in part.

      Although I agree with the majority’s decision that defendant’s seizure was

justified here because the circumstances constituted reasonable suspicion that

criminal activity was afoot under the United States Supreme Court’s decision in Terry

v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968), and that

our granting of discretionary review allowed the State to argue whether Michigan v.

Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), applies, I disagree

with the majority on four specific points. First, the majority need not have applied

Summers when the constitutionality of the seizure and subsequent search is wholly

resolved by Terry. Second, the trial court’s colloquy with defendant’s counsel during

the hearing on defendant’s motion to dismiss did not preserve the Summers issue for

our review, because the interchange was not “substantially equivalent” to a Summers

analysis. Third, the “Summers grounds for relief” were not “apparent from the

context” at the trial court, and therefore, the Summers issue was not adequately

preserved for review pursuant to Rule 10(a)(1) of our Rules of Appellate Procedure.

See N.C. R. App. P. 10(a)(1). Finally, in my view our decision in State v. Austin does

not stand for the principle that the State, as an appellee before the Court of Appeals,

can bring an unpreserved constitutional issue for the first time on appeal. 320 N.C.

276, 357 S.E. 2d 641, cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224

(1987).
                                      STATE V. WILSON

               Hudson, J., concurring in part and concurring in the result in part



      Concerning the application of Summers to the facts of this case, I fully agree

with Justice Beasley’s concurring opinion that “[b]ecause the instant case is fully

resolved by application of the familiar and well-settled Terry standard, I would not

extend the Summers rule to justify the search of defendant.” In its opinion, the

majority also concluded that Terry justified both the seizure and the search of

defendant. Therefore, it was unnecessary to apply Summers to the facts here.

      With regard to preservation, we have long held that “[c]onstitutional questions

not raised and passed on by the trial court will not ordinarily be considered on

appeal.” State v. Davis, 364 N.C. 297, 301, 698 S.E. 2d 65, 67 (2010) (alteration in

original) (quoting State v. Tirado, 358 N.C. 551, 571, 599 S.E. 2d 515, 529 (2004), cert.

denied, 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005)). The majority asserts

that the Summers issue was adequately raised in the trial court by “the trial judge

consider[ing] whether the police had authority to stop a person to protect the integrity

of a scene during the execution of a search warrant.” The majority reasoned that

“[t]his inquiry is substantially equivalent to considering whether the Summers rule

applies, so the trial judge appears to have determined (and we agree) that the

Summers grounds for relief ‘were . . . apparent from context.’ ”

      I do not agree that the trial judge’s inquiry with defense counsel at the hearing

on defendant’s motion to suppress substantially equated to the Summers issue. The

inquiry to which the majority references does not demonstrate that the Summers

issue was “raised and passed on” at the hearing on defendant’s motion to suppress.


                                              -2-
                                      STATE V. WILSON

               Hudson, J., concurring in part and concurring in the result in part



Davis, 364 N.C. at 301, 698 S.E. 2d at 67 (quoting Tirado, 358 N.C. at 571, 599 S.E.

2d at 529). The majority refers us to a section of the trial transcript in which the trial

court questioned the defendant’s attorney in the following manner:

                     THE COURT: Right. But isn’t -- if he -- if Mr.
             Wilson’s walking up the driveway and part of the purpose
             for [the officer] telling him to stop is to protect the integrity
             of the scene where the search warrant is taking place,
             that’s a sufficient reason just to tell him to stop where he
             is, isn’t it?
                     I mean, if there’s an ongoing search of the premises,
             you don’t want a citizen who may or may not be related to
             the premises just walking on up there and starting to look
             for his moped while they’re trying to conduct the search.

The majority asserts that “this inquiry is substantially equivalent to considering

whether the Summers rule applied.” It is not. It is important to note that the trial

court did not mention Summers in this excerpt, and although it inquired about the

effect that the execution of the search warrant might have on the propriety of the

stop, the trial court did not make any findings of fact or conclusions of law on these

matters.

      Also, to the extent the trial court engaged in analysis during this colloquy, the

exchange was not “substantially equivalent” to a Summers analysis. In Summers,

the Court considered:      (1) that “[a] neutral and detached magistrate had found

probable cause to believe that the law was being violated in that house and had

authorized a substantial invasion of the privacy of the persons who resided there,”

452 U.S. at 701, 101 S. Ct. at 2593, 69 L. Ed. 2d at 349; (2) “the legitimate law



                                              -3-
                                      STATE V. WILSON

               Hudson, J., concurring in part and concurring in the result in part



enforcement interest in preventing flight in the event that incriminating evidence is

found,” id. at 702, 101 S. Ct. at 2594, 69 L. Ed. 2d at 349; (3) that “[t]he risk of harm

to both the police and the occupants is minimized if the officers routinely exercise

unquestioned command of the situation,” id. at 702-03, 101 S. Ct. at 2594, 69 L. Ed.

2d at 350 (citation omitted); (4) that “the orderly completion of the search may be

facilitated if the occupants of the premises are present,” id. at 703, 101 S. Ct. at 2594,

69 L. Ed. 2d at 350; and (5) that “[t]he connection of an occupant to that home gives

the police officer an easily identifiable and certain basis for determining that

suspicion of criminal activity justifies a detention of that occupant,” id. at 703-04, 101

S. Ct. at 2594-95, 69 L. Ed. 2d at 350.

      In Bailey v. United States, the Court seemingly limited the interests identified

in Summers to: (1) whether the individual detained was an occupant, (2) officer

safety, (3) facilitating the completion of the search, and (3) preventing flight. See

Bailey, 568 U.S. 186, 195, 133 S. Ct. 1031, 1038, 185 L. Ed. 2d 19, 29 (2013). In

addition, Bailey expressly limited the holding in Summers to cases in which the

person was detained within “the immediate vicinity of the premises to be searched.”

Id. at 199, 133 S. Ct. at 1041, 185 L. Ed. 2d at 32.

      Here, even if the trial court’s inquiry could be construed to have considered

and made findings on any of the Summers factors, the court certainly did not make a

finding regarding whether defendant was an occupant of the premises being

searched. The trial court merely stated that “I mean, if there’s an ongoing search of


                                              -4-
                                      STATE V. WILSON

               Hudson, J., concurring in part and concurring in the result in part



the premises, you don’t want a citizen who may or may not be related to the premises

just walking up there.” As such, the trial court, in its inquiry, made no findings on

whether or not defendant was an occupant of the premises.

      Whether the person detained is an occupant of the premises being searched is

an indispensable aspect of the Summers analysis. See Bailey, 568 U.S. at 200, 133 S.

Ct. at 1041, 185 L. Ed. 2d at 32-33 (stating that in Summers the Court recognized

that “[b]ecause the detention occurs in the individual’s own home, ‘it could add only

minimally to the public stigma associated with the search itself and would involve

neither the inconvenience nor the indignity associated with a compelled visit to the

police station’ ” (emphasis added) (quoting Summers, 452 U.S. at 702, 101 S. Ct. at

2594, 69 L. Ed. 2d at 349)); Muehler v. Mena, 544 U.S. 93, 98, 125 S. Ct. 1465, 1469,

161 L. Ed. 2d 299, 306 (2005) (“In Michigan v. Summers, 452 U.S. 692 (1981), we held

that officers executing a search warrant for contraband have the authority ‘to detain

the occupants of the premises while a proper search is conducted.’ ” (quoting

Summers, 452 U.S. at 705, 101 S. Ct. at 2595, 69 L. Ed. 2d at 351)); Summers, 452

U.S. at 701, 101 S. Ct. at 2593, 69 L. Ed. 2d at 349 (“Of prime importance in assessing

the intrusion is the fact that the police had obtained a warrant to search respondent’s

house for contraband.”) emphases added)). As a result, by failing to find whether

defendant was an occupant of the premises being searched, the trial court, in its

inquiry, failed to engage in an analysis equivalent to Summers. Therefore, in my

view “the Summers grounds for relief” are not “apparent” from the trial court’s


                                              -5-
                                      STATE V. WILSON

               Hudson, J., concurring in part and concurring in the result in part



inquiry. N.C. R. App. P. 10(a)(1).

      The “Summers grounds for relief” are also not “apparent” from the trial court’s

order denying defendant’s motion to suppress. N.C. R. App. P 10(a)(1). In fact, the

order demonstrates that the Summers issue was not “raised and passed on by the

trial court.” Davis, 364 N.C. at 301, 698 S.E. 2d at 67 (quoting Tirado, 358 N.C. at

571, 599 S.E. 2d at 529). Specifically, the trial court, in its conclusions of law,

analyzed defendant’s detention only under Terry v. Ohio and neither defendant nor

the trial court mentioned Summers. Further, the order contains no findings relevant

to the rule discussed by the majority that a person is an occupant for the purposes of

Summers when the person “poses a real threat to the safe and efficient execution of

a search warrant.” Bailey, 568 U.S. at 201, 133 S. Ct. at 1042, 185 L. Ed. 2d at 33.

Specifically, the trial court’s order made no findings concerning whether defendant

was a threat. Therefore, the majority’s assertions that “[w]e believe defendant posed

a real threat to the safe and efficient execution of the search warrant in this case,”

and “[i]t was obvious that the defendant posed a threat” are not reflected by findings

or conclusions in the actual order.

      Lastly, contrary to the majority’s conclusion, our decision in Austin does not

stand for the principle that the State, as the appellee before the Court of Appeals, can

argue an unpreserved constitutional issue. The majority relies on a quote of Austin

in which we stated that “[t]he question for review is whether the ruling of the trial

court was correct and not whether the reason given therefor is sound or tenable.”


                                              -6-
                                      STATE V. WILSON

               Hudson, J., concurring in part and concurring in the result in part



Austin, 320 N.C. at 290, 357 S.E. 2d at 650 (citing State v. Blackwell, 246 N.C. 642,

644, 99 S.E. 2d 867, 869 (1957)). Although this language may appear to support the

majority’s assertion, this Court in Austin did not allow a party to bring an

unpreserved constitutional argument on appeal.

      In Austin, defendant challenged the trial court’s denial of his motion to

suppress, arguing that the trial judge applied an incorrect legal standard on the issue

of whether intoxication invalidated his voluntary consent to a search. See id. at 289-

90, 357 S.E. 2d at 649-650. In denying defendant’s motion to suppress, the trial court

concluded that defendant’s intoxication did not invalidate his consent to the search,

because it did not “amount[ ] to a mania as to lead the user to be unconscious of the

meaning of his words.” Id. at 289, 357 S.E. 2d at 650. Defendant contended that this

was an improper legal standard. Id. at 290, 357 S.E. 2d at 650. Rejecting defendant’s

argument, this Court reasoned that “[a]ssuming arguendo that the trial court’s

reasoning for denying defendant’s motion to suppress was incorrect, we are not

required on this basis alone to determine that the ruling was erroneous.” Id. at 290,

357 S.E. 2d at 650 (citing State v. Gardner, 316 N.C. 605, 342 S.E. 2d 872 (1986)). We

added that “[a] correct decision of a lower court will not be disturbed on review simply

because an insufficient or superfluous reason is assigned. The question for review is

whether the ruling of the trial court was correct and not whether the reason given

therefor is sound or tenable.” Id. at 290, 357 S.E. 2d at 650 (citing Blackwell, 246

N.C. at 644, 99 S.E. 2d at 869). We concluded, ultimately, that “[t]he crucial inquiry


                                              -7-
                                     STATE V. WILSON

              Hudson, J., concurring in part and concurring in the result in part



for this Court is admissibility and whether the ultimate ruling was supported by the

evidence.” Id. at 290, 357 S.E. 2d at 650.

      The facts of Austin, however, are distinguishable from the facts here, because

in Austin defendant explicitly raised the issue of the voluntariness of his consent to

the search before the trial court. See id. at 290, 357 S.E. 2d at 650 (“[D]efendant

challenged the voluntariness of his consent on two grounds: his alleged intoxication;

and his low intelligence . . . .”). Therefore, Austin did not involve an unpreserved

constitutional argument. See id. at 290, 357 S.E. 2d at 650.

      Here, as demonstrated above, the trial court’s inquiry with defendant’s counsel

did not preserve the Summers issue. Further, as demonstrated above, neither the

trial court’s inquiry, nor its order denying defendant’s motion to suppress made the

Summers issue “apparent from the context.” N.C. R. App. P. 10(a)(1). Moreover, the

Summers issue was not “apparent” from the State’s argument before the trial court

on defendant’s motion to suppress. N.C. R. App. P 10(a)(1). The State asserted that

the case was “just as the thrust of the written motion seems to indicate, purely a

Terry issue.” The State then proceeded to frame its constitutional claim as a Terry

issue without ever mentioning Summers. As a result, the majority cannot rely on

Austin for the principle that an unpreserved constitutional issue can be argued for

the first time on appeal.         Austin did not abrogate our general rule that

“[c]onstitutional questions not raised and passed on by the trial court will not

ordinarily be considered on appeal.” Davis, 364 N.C. at 301, 698 S.E. 2d at 67

                                             -8-
                                         STATE V. WILSON

                  Hudson, J., concurring in part and concurring in the result in part



(alteration in original) (quoting Tirado, 358 N.C. at 571, 599 S.E. 2d at 529).

      For the above reasons, I agree with the majority that defendant’s detention

was justified under Terry, and that our granting of the State’s petition for

discretionary review allowed it to argue Summers before this Court. However, I

disagree with the majority’s application of Summers here because Terry wholly

resolved the issue of whether the seizure and search of defendant were constitutional,

the trial judge’s colloquy with defense counsel did not adequately preserve the

Summers issue, the Summers issue was not “apparent from the context” of the

discussion in the trial court as Rule 10(a)(1) of our Rules of Appellate Procedure

contemplates, and our decision in Austin does not stand for the principle that an

appellee before the Court of Appeals can bring an unpreserved constitutional issue

for the first time on appeal. Therefore, I respectfully concur in part and concur in the

result in part.

      Justice BEASLEY and Justice MORGAN join in this concurring opinion.




                                                 -9-
      Justice BEASLEY, concurring in the result only.

      I join in Justice Hudson’s concurring opinion. Nonetheless, I write separately

to make clear that, regardless of whether the State’s Summers argument was

preserved for appellate review, I would decline to address it in this case. Because the

instant case is fully resolved by application of the familiar and well-settled Terry

standard, I would not extend the Summers rule to justify the search of defendant.

Thus, for the reasons stated below, I concur only in the result reached by the majority.

      The majority concludes that “a person is an occupant for the purposes of the

Summers rule if he ‘poses a real threat to the safe and efficient execution of a search

warrant.’ ” Majority Opinion at 9 (quoting Bailey v. United States, 568 U.S. 186, 201,

185 L. Ed. 2d 19, 33 (2013)). In addition to being only tangentially related to the

rationales underlying Summers, this definition suffers from both overbreadth and

vagueness.

      In Michigan v. Summers, the Supreme Court held “that a warrant to search

for contraband founded on probable cause implicitly carries with it the limited

authority to detain the occupants of the premises while a proper search is conducted.”

452 U.S. 692, 705, 69 L. Ed. 2d 340, 351 (1981) (footnotes omitted). The Court has

not defined the term “occupants” for purposes of the Summers doctrine, but it did

explicitly state the rationales justifying the categorical rule: (1) the risk of the

occupant fleeing the searched premises if contraband is found; (2) the risk of harm to

law enforcement in the event of “sudden violence or frantic efforts to conceal or
                                      STATE V. WILSON

                               Beasley, J., concurring in the result



destroy evidence,”1 and (3) the possibility that “the orderly completion of the search

may be facilitated” by the presence of the occupants of the premises. Id. at 702-03,

69 L. Ed. 2d at 349-50.

       Given the Court’s stated justifications for Summers’s categorical rule, the term

“occupant” can most reasonably be interpreted as a resident of the searched premises

or a person physically on the premises that are the subject of the search warrant at

the time the search is commenced.2 A nonresident arriving on the scene after the

search has commenced has no reason to flee upon the discovery of contraband, to

attempt to dispose of evidence, to interfere with the search, or to harm law

enforcement officers because, unlike a resident or a person found at the scene when

the officers arrive to conduct the search, evidence of wrongdoing discovered on the

premises could not reasonably be attributed to him.3 Furthermore, the presence of a


       1  Notably, the Court did not rely on a generalized officer safety rationale, but on the
specific threat to officers presented by the presence of an individual attempting to destroy or
conceal evidence—someone who would reasonably be implicated in criminal activity should
contraband be found.
        2 Such an interpretation would also be consistent with the plain meaning of the word,

see Occupant, Black’s Law Dictionary (10th ed. 2014) (“1. Someone who has possessory rights
in, or control over, certain property or premises. 2. Someone who acquires title by
occupancy.”); Occupant, The American Heritage Dictionary of the English Language 1215 (4th
ed. 2000) (“1. One that occupies a position or place . . . 2. One who has certain legal rights to
or control over the premises occupied; a tenant or owner. 3. Law One that is the first to take
possession of something previously unowned.”), and with the Court’s later language on the
topic, see Bailey v. United States, 568 U.S. 186, 201, 185 L. Ed. 2d 19, 33-34 (2013) (noting
that one factor to consider in determining whether a person is subject to Summers’s
categorical rule is “whether the occupant was within the line of sight of his dwelling”
(emphasis added)). The majority’s definition renders the word “occupant” interchangeable
with terms no more specific than “person” or “individual.”
        3 That a nonresident who arrives on the scene after the search commences is not



                                               -2-
                                     STATE V. WILSON

                              Beasley, J., concurring in the result



nonresident could do little to facilitate the search—a nonresident would not be able

to open locked doors or containers and would have no interest in avoiding “the use of

force that is not only damaging to property but may also delay the completion of the

[search],” as contemplated by the Court in Summers. See id. at 703, 69 L. Ed. 2d at

350. Moreover, the existence of a valid search warrant—the foundation on which

Summers’s categorical rule is built—is premised on a judicial officer’s determination

that “police have probable cause to believe that someone in the home is committing a

crime.” Id. at 703, 69 L. Ed. 2d at 350 (emphasis added). That finding of probable

cause does not extend reasonably to a nonresident or a person who is not in the home

during the search.

       The majority’s definition of “occupant” requires no connection whatsoever to

the property that is the subject of a search warrant or the suspected criminal

activity—only that the person detained “poses a real threat to the safe and efficient

execution” of the warrant. It is not unusual for a crowd of curious onlookers to gather

along a police perimeter.       How an officer executing a search warrant might

differentiate a person posing a real threat from a neighbor or an innocent bystander

is unclear, as any person in the vicinity of a police search could potentially interfere

with the search or harm officers. Moreover, if an officer were able to conclude that a


categorically subject to suspicionless detention does not mean he cannot be detained. As in
the instant case, law enforcement officers may detain an individual when the totality of the
circumstances supports reasonable suspicion that criminal activity is afoot, and officers may
search him when they reasonably believe he is armed. See Terry v. Ohio, 392 U.S. 1, 30, 20
L. Ed. 2d 889, 911 (1968).

                                              -3-
                                        STATE V. WILSON

                               Beasley, J., concurring in the result



person posed such a threat, invocation of Summers’s categorical rule would be

unnecessary because, as was the case here, the detention and search of that person

would be justified by Terry.

        The majority contends that law enforcement officers’ authority to “mitigate the

risk of someone entering the premises during a search by taking routine precautions,

for instance by erecting barricades or posting someone on the perimeter or at the

door,” gives rise to “some categorical authority for police to detain individuals who

attempt to circumvent them.” Majority Opinion at 9-10 (citations omitted). The

power to exclude, however, is not the same as the power to detain; no Fourth

Amendment issue arises from an individual’s mere exclusion from an area. Law

enforcement officers can, and routinely do, exclude members of the public from

geographical areas for a variety of reasons, including during the execution of search

warrants.    The proper response when a person attempts to circumvent officers’

instructions is an entirely separate question from whether all individuals in the

vicinity of an active search—any of whom could conceivably pose a threat to officers—

should be subject to suspicionless detention. Where, as here, an individual does

attempt to bypass a police perimeter, his suspicious behavior likely justifies a Terry

stop.   Thus, the majority’s extension of Summers’s categorical rule dramatically

expands the government’s power over individuals but provides no additional

protection for officers in the field.

        Accordingly, I concur only in today’s result.


                                               -4-
