              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-997

                                 Filed: 2 April 2019

Alamance County, No. 16CRS55920, 16CRS55921, 17CRS1851

STATE OF NORTH CAROLINA

             v.

XAVIER LAMAR HORTON, Defendant.


      Appeal by Defendant from Judgment entered 10 April 2018 by Judge James

K. Roberson in Alamance County Superior Court. Heard in the Court of Appeals 27

February 2019.


      Attorney General Joshua H. Stein, by Assistant Attorney General Ashish K.
      Sharda, for the State.

      Grace Tisdale & Clifton, PA, by Michael A. Grace, Greer B. Taylor, and
      Christopher R. Clifton, for Defendant-Appellant.


      INMAN, Judge.


      Defendant Xavier Lamar Horton (“Defendant”) appeals his convictions for

possession with intent to sell or deliver cocaine, possession of a stolen firearm,

possession of a firearm by a felon, and attaining habitual felon status. Defendant

argues that his motion to suppress evidence obtained in a traffic stop was erroneously

denied, contending that the police officer who conducted the stop lacked reasonable

suspicion that he was committing, or about to commit, a crime. After thorough review
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                                       Opinion of the Court



of the record and applicable law, we reverse the trial court’s order denying the motion

to suppress and vacate Defendant’s convictions.

                 I. FACTUAL AND PROCEDURAL BACKGROUND

       Defendant pled guilty to all charges following the trial court’s denial of his

motion to suppress. The record and the evidence introduced at trial, consisting of the

suppression hearing and Defendant’s plea colloquy, tended to show the following:

       Sometime after 8:40 pm on 25 November 2016, Officer Nathan Judge (“Officer

Judge”) of the Graham Police Department in Alamance County received a dispatch

call relaying an anonymous report concerning a “suspicious white male,” with a “gold

or silver vehicle” in the parking lot, walking around a closed business, Graham Feed

& Seed.1 Officer Judge knew that another business across the street experienced a

break-in in the past and that there were previous residential break-ins and

vandalism in the area.2

       When Officer Judge arrived at Graham Feed & Seed, he discovered a silver

Nissan Altima in the parking lot in front of the business. He saw no one walking in

the parking lot. After parking near the southern area exit of the parking lot, Officer

Judge stepped out of his patrol vehicle and walked toward the silver car “as [it] was




        1 No evidence was introduced for when Officer Judge received the call or when he arrived at

the business’ parking lot.
        2 No evidence was introduced as to when these alleged crimes occurred.




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approaching” the exit.3 When Officer Judge was “within arm’s length” of the vehicle,

he shined his flashlight toward the closed window of the driver’s side of the vehicle

and saw Defendant, a black male, in the driver’s seat. Defendant did not lower the

vehicle window. Officer Judge asked Defendant, “What’s up boss man?” Defendant

“made no acknowledgement,” but merely displayed a “blank expression on his face,”

and continued to exit the parking lot.

        Officer Judge considered Defendant’s behavior to be a “little odd,” and decided

to follow Defendant because he “didn’t know what [he] had.” After catching up to

Defendant’s vehicle onto the main road, without “observ[ing] any bad driving, traffic

violations, criminal offenses, or furtive movements,” Officer Judge activated his

patrol lights and siren to initiate a traffic stop.

        After Defendant pulled over and stopped his vehicle and lowered the driver’s

side window, Officer Judge approached, “immediately smelled a strong odor of

marijuana and air fresheners,” noticed a female passenger in the vehicle, and called

for officer assistance. Officer Judge asked Defendant for his license and registration.

Defendant admitted that he did not have his license and provided his name and date

of birth. The front seat passenger stated that the vehicle was registered in her name.4




        3 The trial court’s findings of fact are unclear as to whether the vehicle was already in motion
on or before Officer Judge’s arrival.
        4 The trial court’s findings of fact do not mention that there was a passenger.



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      After Officer Judge began searching the vehicle, Defendant admitted

marijuana would be found in the center console. Officer Judge found marijuana in

the console. He also found several plastic baggies containing a “white powder[y]

substance” and large amounts of cash in an open purse on the front passenger

floorboard, additional baggies with white powdery substance and the top of a scale

with white powder residue in the center console, and a stolen black Sig Sauer 9

millimeter firearm in the glove compartment. Officer Judge then arrested Defendant

and took him to the police station. Defendant eventually admitted possessing the

firearm and admitted that the cash found in the vehicle—totaling $1,292—came from

drug sales.

      On 31 July 2017, Defendant was indicted for possession of a stolen firearm,

possession of a firearm by a felon, possession with intent to sell or deliver cocaine,

possession of less than one-half ounce of marijuana, maintaining a vehicle used to

keep and sell cocaine and marijuana, and attaining habitual felon status. On 15

March 2018, Defendant filed a motion to suppress evidence seized as a result of the

stop. The motion came on for hearing on 19 March 2018 and Officer Judge was the

only testifying witness. After the parties concluded their arguments, the trial court

orally denied Defendant’s motion, concluding that Officer Judge had formed a

reasonable articulable suspicion to justify stopping Defendant.      The trial court

entered this ruling in a written order on 10 April 2018.



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        After the trial court denied his motion to suppress, Defendant pled guilty to all

charges except those for maintaining a vehicle to keep and sell cocaine and marijuana

and possession of less than one-half ounce of marijuana, which were dismissed

pursuant to a plea agreement. The trial court consolidated the cocaine and firearms

charges into one judgment and sentenced Defendant to the presumptive range of 77

to 105 months’ imprisonment, with credit given for 1 day spent in confinement; and

ordered him to pay a total of $1,627.50 in restitution and court costs. Defendant filed

written notice of appeal on 23 April 2018.5

                                           II. ANALYSIS

                                            A. Jurisdiction

        As a preliminary matter, we address whether this Court has jurisdiction to

hear Defendant’s appeal from the superior court’s order denying his motion to

suppress.

         Upon a guilty plea, a defendant has the right to appeal an order denying a

motion to suppress evidence so long as it is “an appeal from a judgment of conviction.”

N.C. Gen. Stat. § 15A-979(b) (2017). If the defendant merely appeals the denial of

his motion, rather than the final judgment, this Court lacks jurisdiction over the

appeal. See State v. Miller, 205 N.C. App. 724, 725, 696 S.E.2d 542, 543 (2010)


        5 Defendant did not give oral notice of appeal, as his counsel stipulated to the trial court that,
“once the [State] and I have worked out the findings of fact, once [the trial judge] sign[s] it, then we’ll
give notice of appeal at that time.” Defendant only reserved his right to appeal in open court, and the
trial court’s judgment stated as such.

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(“Although Defendant preserved his right to appeal by filing his written notice of

intent to appeal from the denial of his motion to suppress, he failed to appeal from

his final judgment, as required by [Section] 15A-979(b).”).

       Here, though Defendant timely filed written notice of appeal, the notice, much

like in Miller, attempts to appeal the trial court’s “Order denying his Motion to

Suppress Evidence” instead of the judgment underlying his convictions. We thus

conclude that Defendant’s notice was deficient and he failed to properly preserve his

right to appeal.

       Nonetheless, we have “the option ‘to exercise our discretion to treat

[D]efendant’s appeal as a petition for certiorari’ in order to reach the merits” of his

argument. State v. McNeil, __ N.C. App. __, __, 822 S.E.2d 317, 321 (2018) (quoting

State v. Phillips, 149 N.C. App. 310, 314, 560 S.E.2d 852, 855 (2002)) (alterations in

original).   Therefore, pursuant to N.C. Gen. Stat. § 7A-32(c), we will “treat

[D]efendant’s appeal as a petition for certiorari and grant the writ to address the

merits of this appeal.” Phillips, 149 N.C. App. at 314, 560 S.E.2d at 855.

                     B. Reasonable Suspicion for the Traffic Stop

       The sole issue on appeal is whether the trial court erred in denying Defendant’s

motion to suppress evidence resulting from the traffic stop. In reviewing the denial

of a defendant’s motion to suppress, we “determine whether there was competent

evidence to support the trial court’s underlying findings of fact” and “whether the



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findings of fact support the trial court’s ultimate conclusions of law.”       State v.

Fleming, 106 N.C. App. 165, 168, 415 S.E.2d 782, 784 (1992). We review the trial

court’s conclusions of law de novo, “consider[ing] the matter anew and freely

substitut[ing] [our] own judgment for that of the trial court.” State v. Knudsen, 229

N.C. App. 271, 281, 747 S.E.2d 641, 649 (2013).

      Generally, “the United States and North Carolina Constitutions protect an

individual against unreasonable searches and seizures.” State v. Otto, 366 N.C. 134,

136, 726 S.E.2d 824, 827 (2012) (citing U.S. Const. amend. IV; N.C. Const. art. I, §

20). In analyzing what constitutes a “reasonable seizure,” the United States Supreme

Court has consistently held that “a police officer may effect a brief investigatory

seizure of an individual where the officer has reasonable, articulable suspicion that a

crime may be underway.” State v. Barnard, 184 N.C. App. 25, 29, 645 S.E.2d 780,

783 (2007) (citing Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906 (1968)). Traffic

stops are considered seizures “ ‘even though the purpose of the stop is limited and the

resulting detention quite brief.’ ” State v. Murray, 192 N.C. App. 684, 687, 666 S.E.2d

205, 207 (2008) (quoting Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660, 667

(1979)).

      Reasonable suspicion is “based on specific and articulable facts, as well as the

rational inferences from those facts, as viewed through the eyes of a reasonable,




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cautious officer, guided by his experience and training.”6 State v. Watkins, 337 N.C.

437, 441, 446 S.E.2d 67, 70 (1994).            “A court must consider the totality of the

circumstances—the whole picture—in determining whether a reasonable suspicion

to make an investigatory stop exist[ed].” State v. Campbell, 359 N.C. 644, 664, 617

S.E.2d 1, 14 (2005) (quotations and citation omitted). While reasonable suspicion is

easier than proving probable cause, “and requires a showing considerably less than

preponderance of the evidence,” State v. Barnard, 362 N.C. 244, 247, 658 S.E.2d 643,

645 (2008) (citation and quotation marks omitted), there must be enough suspicion

“to assure that an individual’s reasonable expectation of privacy is not subject to

arbitrary invasions solely at the unfettered discretion of officers in the field.” Brown

v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362 (1979).

       Because Defendant does not challenge the trial court’s findings of fact, they

“are deemed to be supported by competent evidence and are binding on appeal.” State

v. Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36 (2004). We need only

determine whether the trial court’s findings support its conclusion of law that Officer

Judge had reasonable suspicion to stop Defendant.

       The trial court made the following relevant findings of fact:

               1. On or about November 25, 2016, Officer Nathan Judge

       6  Our Supreme Court in State v. Nicholson, 371 N.C. 284, 293, 813 S.E.2d 840, 846 (2018),
recently reemphasized the principle that a police officer’s subjective thoughts are irrelevant when
reviewing whether reasonable suspicion objectively existed. “Accordingly, we do not consider [Officer
Judge’s] subjective analysis of the facts as probative of whether those facts—viewed objectively—
satisfy the reasonable suspicion standard necessary to support [D]efendant’s seizure.” Id.

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with the Graham Police Department received a call from
Communications that a tip came in of a suspicious white
male walking around the business of Graham Feed &
Seed . . . ;
2. That the tip also included a suspicious gold or silver
vehicle in the parking lot of the business;
3. That there was no description of what the suspicious
activity was and no timeframe as to how long the caller
observed this suspicious activity;
4. That the tip came in around 8:40p.m. at night;
5. That before Officer Judge arrived to the business, he was
familiar with the area and knew that there had been
residential break-ins in the area, the business across the
street had been broken into, and there had been vandalism
in the area;
6. That the officer did not testify to a specific time frame
when the previous break-ins had occurred;
7. That when Officer Judge arrived, he saw a silver car in
the parking lot in front of the business;
8. That the business was closed and there were no other
cars in the parking lot;
9. That Officer Judge did not see anyone walking around
the business and did not see anyone outside of the vehicle;
10. That the business does not a have a “no trespassing”
sign on its premises;
11. That Officer Judge pulled his vehicle onto the southern
part of the parking lot of the Graham Feed & Seed, exited
his patrol car, retrieved his flashlight and approached the
silver car as the silver car was approaching the roadway,
near the exit of the parking lot;
12. That Officer Judge approached the silver car, shone
[sic] a flashlight into the face of the driver, and said “What’s
up boss man”?;
13. That the windows on the silver car were closed;
14. That Officer Judge could not see inside the silver car
except when he shined his flashlight into the face of the
driver;
15. That the driver made no acknowledgment of the officer,
and left the parking lot of the business;
16. That Officer Judge acknowledged that [Defendant] was


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              not required to stop when the officer approached
              [D]efendant’s vehicle;
              17. That Officer Judge was within arm’s length of the silver
              vehicle at this time;
              18. That Defendant is a black male;
              19. That Officer Judge then followed the silver vehicle
              because he didn’t know what he had;
              20. That Officer Judge knew that other officers park their
              patrol cars in the gravel parking lot after hours for various
              reasons;
              21. That Officer Judge did not know if this vehicle was in
              the process of turning around in the parking lot;
              22. That between the time of following the silver vehicle
              and before effectuating the stop, Officer Judge did not
              observe any bad driving, traffic violations, criminal
              offenses, or furtive movements;
              23. That Defendant stopped appropriately when Officer
              Judge activated his blue lights.

We hold that Officer Judge’s justification for conducting the traffic stop of Defendant

was nothing more than an “inchoate and unparticularized suspicion or ‘hunch.’ ”

United States v. Sokolow, 490 U.S. 1, 7, 104 L. Ed. 2d 1, 7 (1989) (quotation and

citations omitted).

       “Where the justification for a warrantless stop is information provided by an

anonymous informant, a reviewing court must assess whether the tip at issue

possessed sufficient indicia of reliability to support the police intrusion on a detainee’s

constitutional rights.” State v. Johnson, 204 N.C. App. 259, 263, 693 S.E.2d 711, 715

(2010) (citing Illinois v. Gates, 462 U.S. 213, 76 L. E. 2d 527 (1983)). Indices of

reliability can come in two forms: (1) the tip itself provides enough detail and

information to establish reasonable suspicion, or (2) though the tip lacks independent


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reliability, it is “buttressed by sufficient police corroboration.” State v. Hughes, 353

N.C. 200, 208, 539 S.E.2d 625, 630 (2000). Absent corroboration, an anonymous tip

rarely supports reasonable suspicion because, “[u]nlike a tip from a known informant

whose reputation can be assessed and who can be held responsible if [the] allegations

turn out to be fabricated, an anonymous tip alone seldom demonstrates the

informant’s basis of knowledge or veracity.” Florida v. J.L., 529 U.S. 266, 270, 146

L. Ed. 2d 254, 260 (2000) (quotations and citations omitted).         As stated by our

Supreme Court in Hughes:

             [A]n accurate description of a subject’s readily observable
             location and appearance 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.

Hughes, 353 N.C. at 209, 539 S.E.2d at 632 (quoting J.L., 529 U.S. at 272, 146 L. E.

2d at 261). Consequently:

             The type of detail provided in the [anonymous] tip and
             corroborated by the officers is critical in determining
             whether the tip can supply the reasonable suspicion
             necessary for the stop. Where the detail contained in the
             tip merely concerns identifying characteristics, an officer’s
             confirmation of these details will not legitimize the tip.

Johnson, 204 N.C. App. at 264, 693 S.E.2d at 715.

      In Hughes, police officers received an anonymous tip that a person named



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“Markie” would be arriving in Jacksonville from New York City by bus around 5:30

pm, possessing marijuana and cocaine. 353 N.C. at 201, 539 S.E.2d at 627. The tip

described Markie as a “dark-skinned Jamaican from New York who weighs over three

hundred pounds,” about “six foot, one inch tall or taller,” about 20-30 years old, and

would be “clean cut with a short haircut and wearing baggy pants.” Id. at 201-02,

539 S.E.2d at 627.    The informant stated that Markie “sometimes” travelled to

Jacksonville on weekends before it got dark, “sometimes” took a taxi from the bus

station, “sometimes” had an overnight bag, and “would be headed to North Topsail

Beach.” Id. at 202, 539 S.E.2d at 627. When the officers reached the bus station,

they saw a bus from Rocky Mount, rather than New York City, arrive around 3:50

pm. Id. The officers saw the defendant, who “matched the exact description [they]

had been given and was carrying an overnight bag,” not exiting the bus but entering

a taxi. The taxi traveled toward a highway intersection where, depending on which

way the taxi turned, would lead to either Wilmington or Topsail Beach. Id. at 202,

539 S.E.2d at 628. The officers stopped the taxi before it reached the intersection.

Id.   The Hughes court concluded that, “[w]ithout more, these details [were]

insufficient corroboration because they could apply to many individuals,” as the

information was “peppered with uncertainties and generalities.” Id. at 209, 539

S.E.2d at 632.

      In Johnson, officers received an anonymous tip that a “black male wearing a



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white t-shirt and blue shorts was selling illegal narcotics and guns” out of a blue

Mitsubishi on a street corner in a local housing community. 204 N.C. App. at 260-61,

693 S.E.2d at 713. The tipster provided a vehicle license plate number, WT 3456, but

did not provide a name of the suspect. Id. Before the officers arrived at the described

location, the tipster called back and informed the officers that the suspect left the

area, “but would return shortly.” Id. at 261, 693 S.E.2d at 713. The officers then

stationed themselves near one of the only two entryways into the neighborhood and

waited. Id. Soon thereafter, the officers saw a blue Mitsubishi, with license plate

number WTH 3453, being driven by a black male wearing a white T-shirt. Id.

Through a plate check, the officers discovered that it was registered to a black male

whose driver’s license had been suspended. Id. An officer stopped the defendant

about “100 yards from the original area mentioned in the tip.” Id. at 261, 693 S.E.2d

at 714. We held that the stop was not based on reasonable suspicion because the tip

“offered few details of the alleged crime, no information regarding the informant’s

basis of knowledge, and scant information to predict the future behavior of the alleged

perpetrator.” Id. at 263, 693 S.E.2d at 714-15. Thus, because of “the failure of the

officers to corroborate the tip’s allegations,” it lacked sufficient indicia of reliability to

justify the stop. Id. at 263, 693 S.E.2d at 715.

       The anonymous tip that led Officer Judge to stop Defendant reported no crime

and was only partially correct. Although there was in fact a silver car in the business’



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parking lot around 8:40 pm, the tip also said it could have been gold and there was

no white male in the parking lot or in the vehicle. Additionally, not only did the tip

provide substantially less detail than the tips in Hughes and Johnson, it merely

described the individual as “suspicious” without any indication as to why, and no

information existed as to who the tipster was and what made the tipster reliable.

Like in Hughes and Johnson, “there [is] nothing inherent in the tip itself to allow a

court to deem it reliable and to provide [Officer Judge] with the reasonable suspicion

necessary to effectuate a stop.” Johnson, 204 N.C. App. at 264-65, 693 S.E.2d at 716.

      The vague tip that led Officer Judge to stop Defendant and the other

circumstances in this case are similar to those this Court has previously held were

insufficient to support reasonable suspicion for a traffic stop. Murray, 192 N.C. App.

at 684, 666 S.E.2d at 205; State v. Chlopek, 209 N.C. App. 358, 704 S.E.2d 563 (2011).

Murray arose from the following facts: At around 3:40 am, an officer was performing

a property check of an industrial park “as part of a ‘problem oriented policing

project’ . . . following reports of break-ins of vehicles and businesses.” 192 N.C. App.

at 684, 666 S.E.2d at 206. When the officer rounded one of the buildings, he saw the

defendant’s car leave an area the officer had already checked. Id. at 684-85, 666

S.E.2d at 206. The officer followed the vehicle and made a traffic stop without

observing any illegal activity or traffic violation. Id. at 685, 666 S.E.2d at 206.

Similarly in Chlopek, at 12:05 am, officers were in a partially-developed subdivision



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conducting a separate traffic stop when they noticed the defendant’s vehicle heading

from the subdivision entrance in the direction of undeveloped lots. 209 N.C. App. at

358-59, 704 S.E.2d at 564. One of the officers thought that the defendant “seemed a

little nervous in his manner [in] observing” the officers. Id. at 359, 704 S.E.2d at 564.

Prior to the unrelated stop, the officers “had been put on notice that there had been

a large number of copper thefts from” undeveloped portions of other subdivisions, but

had received no such reports for that subdivision. Id. When the defendant’s vehicle

returned to the subdivision entrance, the officers stopped the defendant’s car. Id.

       In both Murray and Chlopek, we held that officers lacked reasonable suspicion

to stop defendants because the majority, if not all, of the trial court’s findings related

to the mere generalized description of the area. See Murray, 192 N.C. App. at 689,

666 S.E.2d at 208 (“Officer Arthur never articulated any specific facts about the

vehicle itself . . .; instead, all of the facts relied on by the trial court . . . were general

to the area . . . and would justify the stop of any vehicle there.” (emphasis in

original)); Chlopek, 209 N.C. App. at 363, 704 S.E.2d at 567 (“[A]s in Murray, the facts

relied upon by the trial court in concluding that reasonable suspicion existed were

general to the area[.]”).

       Here, much like in Murray and Chlopek, the trial court’s findings of fact

concerning Officer Judge’s knowledge about criminal activity refer to the area in

general and refer to no particularized facts. Officer Judge did not articulate how he



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was “familiar with the area,” how he “knew that there had been residential

break-ins,” or how much “vandalism” and other crimes had been occurring. The

findings also stipulated that there was no “specific time frame [given for] when the

previous break-ins had occurred.”

      Nor can we agree with the State’s argument that Officer Judge either

corroborated the tip or formed reasonable suspicion of his own accord when he arrived

at the parking lot. The State points to factors noted in the trial court’s findings that

have historically been cited in the totality of the circumstances analysis to support

establishment of reasonable suspicion. See Illinois v. Wardlow, 528 U.S. 119, 124,

145 L. E. 2d 570, 576 (2000) (high-crime area); State v. Fields, 195 N.C. App. 740,

744, 673 S.E.2d 765, 768 (2009) (unusual hour of the day); Watkins, 337 N.C. at 443,

446 S.E.2d at 71 (businesses in vicinity were closed). Although these factors, in other

contexts, can help establish reasonable suspicion, they are insufficient given the other

circumstances in this case.

      The State asserts that Defendant’s “nervous conduct” and “unprovoked flight”

supported Officer Judge’s reasonable suspicion. But the trial court did not make

either of those findings, and it is not within the authority of this Court to do so. In

resolving a motion to suppress, the trial court “is entrusted with the duty to hear

testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then

based upon those findings, render a legal decision.” State v. Cooke, 306 N.C. 132, 134,



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291 S.E.2d 618, 620 (1982). We consider only the “cold, written record” before us. Id.

at 135, 291 S.E.2d at 620 (quoting State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597,

601 (1971)). The trial court’s findings speak nothing of Defendant’s demeanor—other

than his lack of acknowledgement of Officer Judge—or the manner in which

Defendant drove and exited the parking lot. The State’s argument in this respect is

unconvincing.

      The State also relies on prior decisions for the general proposition that

reasonable suspicion can be based on a suspect’s suspicious activities in an area

known for criminal activity at an unusual hour. In State v. Blackstock, officers were

patrolling in an unmarked vehicle as part of a “Crime Abatement Team” in an area

where “statistical data indicated [the] area had a problem with robberies and break-in

enterings.” 165 N.C. App. 50, 53, 598 S.E.2d 412, 414 (2004). Around 11:45 pm, the

officers found two men walking along the front of closed businesses in a strip mall.

Id. The men walked very slowly and kept looking in and out of the businesses’

windows. Id. at 53, 598 S.E.2d at 415. When a clearly marked police cruiser arrived

at the scene, the two men “immediately turned around” and “immediately began to

walk hurriedly backward.” Id. The two men eventually entered a vehicle which was

concealed from public view along the perimeter of the strip mall. Id. As the officers

followed the two men, the vehicle drove slowly through a gas station and a fast-food

restaurant parking lot without stopping, while the man in the passenger seat kept



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looking back at the officers following them. Id. We concluded, based on a litany of

factors including that the strip mall had been “targeted by law enforcement officers

as a high crime area,” the officers had reasonable suspicion to stop the two men. Id.

at 59, 598 S.E.2d at 418.

      In State v. Butler, a detective saw the defendant “in the midst of a group of

people congregated on a corner known as a ‘drug hole,’ ” where the detective had been

conducting “daily surveillance for several months.” 331 N.C. 227, 233, 415 S.E.2d

719, 722 (1992). The detective had made four to six drug-related arrests on the same

corner in the previous six months. Id. After the detective and the defendant made

eye contact, the defendant “immediately moved away,” which the detective construed

to indicate flight. Id. The detective then stopped the defendant and asked him for

his identification. Our Supreme Court concluded that the criminal activity in the

area, taken together with the detective’s experience and observation of the

defendant’s reaction to police presence, rendered the stop constitutional. Id. at 232,

415 S.E.2d at 721.

      In State v. Fox, at about 12:50 am, an officer observed the defendant’s vehicle

travelling down a dead-end street “where several padlocked businesses were located.”

58 N.C. App. 692, 692, 294 S.E.2d 410, 411 (1982). The officer knew several break-ins

had occurred in the area and had taken a report of a break-in from one of the

businesses that evening. Id. The officer watched the vehicle stop and turn around,



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and, when the vehicle was passing the officer’s patrol car, the defendant “cocked” his

head away. Id. The officer stopped the defendant’s vehicle absent any observed

traffic violations. We held that the officer had reasonable suspicion for the stop. Id.

at 695, 294 S.E.2d at 413.

      In State v. Tillett, at approximately 9:40 pm, an officer was patrolling alone in

a “ ‘heavily wooded’ area containing summer cottages,” with only one of which being

occupied at the time. 50 N.C. App. 520, 521, 274 S.E.2d 361, 362 (1981). The officer

was aware of frequents reports of “firelighting” deer at that time of year. Id. That

night, it was raining and the officer was driving down a narrow, one-way dirt road

that made it difficult for two vehicles to pass each other. Id. The officer spotted a car

carrying the defendant and a passenger and “did not observe an inspection sticker on

the vehicle.” Id. The officer did not stop the defendant’s car, as it was “his intention

[] to allow the vehicle to go to the [lone] occupied dwelling” in the area. Id. After the

officer continued on for about “fix or six miles,” he spotted the defendant’s car coming

out of the wooded area. The officer then stopped his patrol vehicle in front of the car

and put his lights on. Id. at 521-22, 274 S.E.2d at 362. We concluded that, based on

the facts found by the trial court, the officer would not have been unreasonable in

thinking that the defendant and his passenger were “firelighting” deer or

burglarizing the unoccupied homes. Id. at 524, 274 S.E.2d at 364.

      Unlike the facts in Blackstock, Butler, Fox, and Tillett—where the officers were



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                                   STATE V. HORTON

                                   Opinion of the Court



already in areas because they were specifically known and had detailed instances of

criminal activity—Officer Judge arrived at the parking lot because of a vague tip

about an undescribed white male engaged in undescribed suspicious activity in a

generalized area known for “residential break-ins” and “vandalism.”

      The trial court made no findings as to what suspicious activity by Defendant

warranted Officer Judge’s suspicion. The trial court found that when Officer Judge

approached Defendant’s car and called out to him, Defendant made “no

acknowledgement.”     Officer Judge admitted at trial that “[D]efendant was not

required to stop” when he approached him. While it might seem socially peculiar—

possibly uncouth—that someone, like Defendant here, would ignore a police officer’s

confrontation, such an attempt by Officer Judge at a “consensual encounter” provided

Defendant the “liberty ‘to disregard [Officer Judge] and go about his business.’ ” State

v. Sinclair, 191 N.C. App. 485, 489, 663 S.E.2d 866, 870 (2008) (quoting Florida v.

Bostick, 501 U.S. 429, 434, 115 L.Ed.2d 389, 398 (1991)).

      Accordingly, we are unpersuaded by the State’s argument and agree with

Defendant that the trial court erred in concluding that Officer Judge had reasonable

suspicion to stop him. Though the tip did bring Officer Judge to the Graham Feed &

Seed parking lot, where he indeed found a silver car in front of the then-closed

business with no one else in its vicinity at 8:40 pm, and although Defendant did not

stop for or acknowledge Officer Judge, we do not believe these circumstances, taken



                                          - 20 -
                                    STATE V. HORTON

                                    Opinion of the Court



in their totality, were sufficient to support reasonable suspicion necessary to allow a

lawful traffic stop. When coupled with the facts that (1) Defendant was in a parking

lot that did “not have a ‘no trespassing’ sign on its premises”—making it lawful for

Defendant to be there; (2) Defendant was not a white male as described in the tip; (3)

Defendant’s car was possibly in motion when Officer Judge arrived in the parking lot;

(4) Defendant had the constitutional freedom to avoid Officer Judge; and (5)

Defendant did not commit any traffic violations or act irrationally prior to getting

stopped, there exists insufficient findings that Defendant was committing, or about

to commit, any criminal activity.

      Concluding otherwise would give undue weight to, not only vague anonymous

tips, but broad, simplistic descriptions of areas absent specific and articulable detail

surrounding a suspect’s actions.


      REVERSED AND VACATED.

      Judges DILLON and COLLINS concur.




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