              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-752-2

                                Filed: 5 March 2019

Mecklenburg County, No. 14 CRS 232320

THE STATE OF NORTH CAROLINA,

             v.

TERANCE GERMAINE MALACHI, Defendant.


      Appeal by Defendant by writ of certiorari from judgment entered 28 January

2016 by Judge Yvonne M. Evans in Mecklenburg County Superior Court. Heard in

the Court of Appeals 25 January 2017, decided 25 January 2017, reversed by the

Supreme Court of North Carolina 7 December 2018 and remanded to the Court of

Appeals.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General John R.
      Green, Jr., for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Constance
      E. Widenhouse, for Defendant-Appellant.


      INMAN, Judge.


      The trial court did not commit plain error by allowing evidence of a handgun a

police officer removed from the waistband of a man in the course of stopping, seizing,

and frisking him after forming a reasonable articulable suspicion that the suspect

may have been engaged in unlawful conduct and was armed and dangerous.
                                   STATE V. MALACHI

                                   Opinion of the Court



      Terance Germaine Malachi (“Defendant”) appeals from his conviction for

possession of a firearm by a felon following a jury trial and a related conviction for

attaining habitual felon status.     This is this Court’s second decision regarding

Defendant’s appeal, to resolve an issue not addressed in our initial decision.

      Defendant argues that the trial court committed plain error by allowing the

jury to hear evidence obtained as a result of an unconstitutional stop and seizure of

Defendant. After careful review of the record and applicable law, we conclude that

Defendant has failed to demonstrate plain error.

                      Factual and Procedural Background

      An expanded summary of the factual and procedural background of this appeal

can be found in our initial decision in State v. Malachi, ___ N.C. App. ___, 799 S.E.2d

645 (2017), rev’d and remanded, ___ N.C. ___, 821 S.E.2d 407 (2018). Below we

summarize the facts and procedure pertinent to the single issue before us.

      The evidence at trial tended to show the following:

      Shortly after midnight on 14 August 2014, the Charlotte-Mecklenburg Police

Department received a 911 call from an anonymous caller.          The caller told the

dispatcher that in the rear parking lot of a gas station located at 3416 Freedom Drive

in Charlotte, North Carolina, an African American male wearing a red shirt and black

pants had just placed a handgun in the waistband of his pants.




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                                   Opinion of the Court



      Officer Ethan Clark, in uniform and a marked car, first responded to the call.

Officer Clark’s arrival was followed almost immediately by Officer Jason Van Aken.

Officer Clark saw about six to eight people standing in the parking lot, including a

person who matched the description provided to the dispatcher and who was later

identified as Defendant.

      When Officer Clark got out of his car, Defendant looked directly at him,

“bladed, turned his body away, [and] started to walk away.”                Officer Clark

immediately approached Defendant and grabbed his arm. Officer Van Aken held

Defendant’s other arm and the two officers walked Defendant away from the crowd

of people. Defendant was squirming. Officer Clark told Defendant to relax. Prior to

this, neither officer spoke with Defendant.

      Officer Clark placed Defendant in handcuffs and told him that he was not

under arrest. Officer Van Aken then frisked Defendant and pulled a revolver from

his right hip waistband. As the two officers seized the revolver, a third officer, Officer

Kevin Hawkins, arrived. The officers then told Defendant he was under arrest and

placed him in the back of Officer Clark’s patrol vehicle.

      Defendant was tried before a jury on charges of carrying a concealed weapon

and possession of a firearm by a felon. Before evidence was presented, Defendant

filed a motion to suppress all evidence of the revolver and argued that a police officer

may not legally stop and frisk anyone based solely on an anonymous tip that simply



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                                  Opinion of the Court



described the person’s location and description but that did not report any illegal

conduct by the person. The trial court denied the motion. The State presented the

challenged evidence at trial without objection by Defendant.

      The jury returned a verdict of not guilty on the charge of carrying a concealed

weapon and guilty of possession of a firearm by a felon. Defendant then pleaded

guilty, pursuant to N.C. v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970), to attaining

habitual felon status. The trial court sentenced Defendant in the mitigated range to

100 to 132 months of imprisonment.

                                      Analysis

      Defendant argues that the trial court committed plain error by allowing the

jury to hear evidence of the revolver police removed from his waistband in the course

of stopping and frisking him in violation of his Fourth Amendment rights. Defendant

concedes that because, after the trial court denied his motion to suppress this

evidence, his trial counsel did not object when the evidence was offered at trial, our

review is limited to plain error analysis. Our Supreme Court has recently reiterated

the standards applicable to plain error review:

             [T]o demonstrate that a trial court committed plain error,
             the defendant must show that a fundamental error
             occurred at trial. To show fundamental error, a defendant
             must establish prejudice—that, after examination of the
             entire record, the error had a probable impact on the jury’s
             finding that the defendant was guilty. Further, . . . because
             plain error is to be applied cautiously and only in the
             exceptional case, the error will often be one that seriously


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                                  Opinion of the Court



             affect[s] the fairness, integrity or public reputation of the
             judicial proceedings.

State v. Maddux, ___ N.C. ___, ___, 819 S.E.2d 367, 371 (2018) (citations and

quotation marks omitted) (second alteration in original). In applying this standard

to the denial of a motion to suppress, “[o]ur review . . . is ‘strictly limited to

determining whether the trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are binding on appeal, and whether those

factual findings in turn support the judge’s ultimate conclusions of law.’ ” State v.

Williams, ___ N.C. App. ___, ___, 786 S.E.2d 419, 425 (2016) (quoting State v. Cooke,

306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).          Those conclusions of law are

reviewable de novo. Williams, ___ N.C. App. at ___, 786 S.E.2d at 425.

      We hold that the trial court did not err, much less commit plain error, in

denying Defendant’s motion to suppress. This case is fundamentally controlled by

Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968), in which the Supreme Court of the

United States held a police officer did not violate the Fourth Amendment to the

United States Constitution when he stopped an individual and frisked him for

weapons without probable cause. 392 U.S. at 30-31, 20 L. Ed. 2d at 911. Under Terry,

a stop-and-frisk of an individual passes constitutional muster if: (1) the stop, at its

initiation, was premised on a reasonable suspicion that crime may have been afoot;

and (2) the officer possessed a reasonable suspicion that the individual involved was

armed and dangerous. See, e.g., State v. Johnson, 246 N.C. App. 677, 686, 783 S.E.2d


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                                   Opinion of the Court



753, 760 (2016) (noting that “[p]ursuant to Terry, [an officer’s] frisk of [a] defendant

may only be justified by [these] two independent criteria”). Thus, Officers Clark and

Van Aken lawfully stopped and frisked Defendant if they possessed reasonable

suspicion: (1) that Defendant may have been involved in criminal activity at the time

of the stop; and (2) that Defendant was armed and dangerous.

      To satisfy the first element, the officer’s reasonable suspicion must be

“supported by articulable facts that criminal activity ‘may be afoot.’ ” United States

v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 10 (1989) (emphasis added). Although

“[t]he concept of reasonable suspicion, like probable cause, is not ‘readily, or even

usefully, reduced to a neat set of legal rules[,]’ ” it is not without limitation and

definition:

              The officer, of course, must be able to articulate something
              more than an “inchoate and unparticularized suspicion or
              ‘hunch.’ ” The Fourth Amendment requires “some minimal
              level of objective justification” for making the stop. That
              level of suspicion is considerably less than proof of
              wrongdoing by a preponderance of the evidence. We have
              held that probable cause means “a fair probability that
              contraband or evidence of a crime will be found,” and the
              level of suspicion required for a Terry stop is obviously less
              demanding than that for probable cause.

Id. (citations omitted). Whether or not probable cause existed to execute the stop is

determined “after considering the totality of circumstances known to the officer.”

State v. Jackson, 368 N.C. 75, 78, 772 S.E.2d 847, 849 (2015).




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                                     Opinion of the Court



         Binding precedent requires the conclusion that the anonymous tip was

insufficient, by itself, to supply Officer Clark with reasonable suspicion to stop

Defendant. Although he was able to identify Defendant based on the tip, it did not

indicate any illegal activity sufficient to give rise to reasonable suspicion standing

alone:

              [a]n accurate description of a subject’s readily observable
              location and appearance [in an anonymous tip] is of course
              reliable in this limited sense: It will help the police
              correctly identify the person whom the tipster means to
              accuse. Such a tip, however, does not show that the tipster
              has knowledge of concealed criminal activity.                 The
              reasonable suspicion here at issue requires that a tip be
              reliable in its assertion of illegality, not just in its tendency
              to identify a determinate person.

Florida v. J.L., 529 U.S. 266, 272, 146 L. Ed. 2d 254, 261 (2000). In J.L., police

received an anonymous tip that a young black male in a plaid shirt waiting at a bus

stop was carrying a firearm. Id. at 268, 146 L. Ed. 2d at 258. Officers arrived at the

scene, identified an individual matching that description, and, with “no reason to

expect . . . illegal conduct” or any “threatening or unusual movements” on anyone’s

part, stopped the individual and frisked him, discovering a gun. Id. The defendant,

a juvenile, was charged with possessing a firearm without a license and possessing a

firearm while under the age of 18. Id. at 269, 146 L. Ed. 2d at 259. The Supreme

Court held that this stop and frisk violated the Fourth Amendment, as the

anonymous tip failed to reliably indicate illegal possession of a firearm such that it,



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                                   Opinion of the Court



standing alone, could provide reasonable suspicion to institute a Terry stop. Id. at

274, 146 L. Ed. 2d at 262.

      But the officers’ suspicion in this case was based on more than an anonymous

tip. Unlike in J.L., the record below and the trial court’s findings disclose facts

beyond the anonymous tip to support Officer Clark’s reasonable suspicion that

Defendant illegally possessed a firearm, including those facts specifically identified

by the Supreme Court as lacking in that case. The unchallenged findings of fact made

by the trial court and the uncontroverted evidence disclose that Officer Clark arrived

on the scene in full uniform and a marked police car before making eye contact with

Defendant. As Officer Clark was exiting his car, the Defendant “turned his body in

such a way as to prevent the officer from observing a weapon.” Officer Clark testified

that he was trained “on . . . some of the characteristics of armed suspects[,]” and that

this kind of turn was known as “blading,” as “[w]hen you have a gun on your hip you

tend to blade it away from an individual. One of the indicators [of an armed person]

is you turn and have your body between the other person and the firearm you’re

carrying.” Defendant next began to move away. Officer Van Aken, who by then was

on the scene, approached Defendant with Officer Clark; at no point prior to or during

the approach did Defendant inform the officers that he was lawfully armed as

required by our concealed carry statutes. See N.C. Gen. Stat. § 14-415.11(a) (2017)

(“[W]henever the person is carrying a concealed handgun, [the person] shall disclose



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                                         Opinion of the Court



to any law enforcement officer that the person . . . is carrying a concealed handgun

when approached or addressed by the officer[.]” (emphasis added)).1

       Although we are unable to identify a prior North Carolina appellate decision

holding reasonable suspicion existed under these particular facts, each individual fact

present here has been cited to support a conclusion of reasonable suspicion as part of

a totality of the circumstances analysis. See, e.g., State v. Butler, 331 N.C. 227, 233,

415 S.E.2d 719, 722 (1992) (“[U]pon making eye contact with the uniformed officers,

defendant immediately moved away, behavior that is evidence of flight[.]”); State v.

Garcia, 197 N.C. App. 522, 529, 677 S.E.2d 555, 559 (2009) (“Factors to determine

whether reasonable suspicion existed include . . . unprovoked flight.”                      (citation

omitted)); State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522 (1995) (“[A]n




       1  Defendant argues that the trial court failed to make specific findings of fact that Defendant
was aware that Officer Clark was a police officer, that he was aware Officer Clark was approaching
him, or that he had time to speak with officers Clark and Van Aken before his seizure. However, the
uncontroverted evidence of record shows that: (1) Defendant looked Officer Clark in the eyes; (2)
Officer Clark was in full uniform and a marked vehicle; (3) Defendant “squared” to Officer Clark when
he looked at him before blading his body; and (4) Defendant began to move away from Officer Clark
as he was exiting the vehicle and approaching Defendant. There was no evidence introduced that
Defendant was facing away from Officer Clark when he arrived, only that Defendant “bladed” by
turning away, placing his body between Officer Clark and the firearm; Officer Clark testified that
“when [he] exited [his] vehicle is when [Defendant] turned and bladed his body away.” Thus, there is
no evidence establishing that Clark approached Defendant from behind rather than from the side, or
that Defendant walked away in the direct opposite direction from Officer Clark rather than a
perpendicular one, such that Defendant would be unaware of his advance. Defendant declined to
introduce any conflicting evidence as to what transpired, and “[i]n that event, the necessary findings
are implied from the admission of the challenged evidence.” State v. Vick, 341 N.C. 569, 580, 461
S.E.2d 655, 661 (1995). As we must view this uncontroverted evidence in the light most favorable to
the State, State v. Hunter, 208 N.C. App. 506, 509, 703 S.E.2d 776, 779 (2010), the trial court found
those facts concerning the issues identified by Defendant, to the extent that any were necessary, by
implication in admitting the evidence.

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                                  Opinion of the Court



officer’s experience and training can create reasonable suspicion. Defendant’s actions

must be viewed through the officer’s eyes.” (citation omitted)); State v. Sutton, 232

N.C. App. 667, 681-82, 754 S.E.2d 464, 473 (2014) (holding that the defendant’s

“posturing [which] made it apparent that he was concealing something on his person”

and subsequent failure to comply with Section 14-415.11(a) when approached, in

addition to other facts in a totality of the circumstances analysis, gave rise to

reasonable suspicion to conduct an investigatory stop). Given Defendant’s “blading”

after making eye contact with Officer Clark in his marked car and uniform,

Defendant’s movements away from Officer Clark as he was being approached, Officer

Clark’s training in identifying armed suspects, and Defendant’s failure to comply

with Section 14-415.11(a) when approached by the officers, we hold that the officers

had reasonable suspicion under the totality of the circumstances to conduct an

investigatory stop of Defendant in response to the tip identifying him as possessing a

firearm at the gas station.

      We now turn to whether the officers possessed reasonable suspicion that

Defendant was armed and dangerous such that they were lawfully permitted to frisk

him. We hold that such reasonable suspicion existed in accordance with North

Carolina precedent and persuasive federal authority. In State v. Rinck, 303 N.C. 551,

280 S.E.2d 912 (1981), the North Carolina Supreme Court observed that “[i]f upon

detaining [an] individual [pursuant to a lawful Terry stop], the officer’s personal



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                                   Opinion of the Court



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.” 303

N.C. at 559, 280 S.E.2d at 919 (citations omitted). This is certainly true where the

officer has reasonable suspicion to believe the individual seized is unlawfully armed.

See Sutton, 232 N.C. App. at 683-84, 754 S.E.2d at 474 (holding that facts giving rise

to reasonable suspicion that the defendant was unlawfully carrying a firearm also

supported a reasonable suspicion that the defendant was armed and dangerous).

      The United States Court of Appeals for the Fourth Circuit has held, in an en

banc decision, that an officer may lawfully conduct a frisk following a Terry stop if he

“reasonably suspect[s] that the person is armed and therefore dangerous. . . . [T]he

risk of danger is created simply because the person, who was forcibly stopped, is

armed.” United States v. Robinson, 846 F.3d 694, 700, cert. denied, 138 S. Ct. 379,

199 L. Ed. 2d 277 (2017) (underline in original). The Fourth Circuit also rejected the

argument, raised by Defendant here, that a state’s laws allowing for the public

carrying of firearms might deprive the officer of reasonable suspicion:

             [T]he risk inherent in a forced stop of a person who is
             armed exists even when the firearm is legally possessed.
             The presumptive lawfulness of an individual’s gun
             possession in a particular State does next to nothing to
             negate the reasonable concern an officer has for his own
             safety when forcing an encounter with an individual who
             is armed with a gun and whose propensities are unknown.

Id. at 701 (citing United States v. Rodriguez, 739 F.3d 481, 491 (10th Cir. 2013)).



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                                  Opinion of the Court



      As set forth supra, Officers Clark and Van Aken had reasonable suspicion to

believe that Defendant unlawfully possessed a firearm at the time they stopped him.

This reasonable suspicion of unlawful possession, coupled with Defendant’s

struggling during the stop and his continued failure to inform the officers that he was

armed as required by Section 14-415.11(a), convince us that the officers also

possessed reasonable suspicion to frisk him as a potentially armed and dangerous

individual. Sutton, 232 N.C. App. at 683-84, 754 S.E.2d at 474.

                                    Conclusion

      For the above reasons, we hold the trial court did not err, much less commit

plain error, in denying Defendant’s motion to suppress or in allowing the jury to hear

evidence challenged in the motion to suppress.

      NO PLAIN ERROR.

      Judges ARROWOOD and HAMPSON concur.




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