An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1204
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 3 June 2014


STATE OF NORTH CAROLINA

      v.                                      Guilford County
                                              No. 12 CRS 74220
CURTIS MARIO BENTON



      Appeal by Defendant from judgment entered 15 May 2013 by

Judge David L. Hall in Guilford County Superior Court.                    Heard in

the Court of Appeals 19 February 2014.


      Attorney General Roy Cooper, by Associate Attorney General
      J. Rick Brown, for the State.

      Mark L. Hayes for Defendant.


      DILLON, Judge.


      While    reserving     the   right    to   appeal    the   denial    of   his

motion to suppress, see N.C. Gen. Stat. § 15A-979(b) (2011),

Defendant pled guilty on 6 May 2013 to possession with intent to

sell or deliver marijuana and to possession of marijuana on the

premises of a local confinement facility.                 In a judgment signed

6 May 2013 and filed 15 May 2013, the trial court consolidated

Defendant’s offenses for judgment, suspended a prison sentence
                                        -2-
of seven to eighteen months, and placed him on thirty-six months

of supervised probation.

       We note that Defendant has filed a petition for writ of

certiorari       with        this   Court,      acknowledging       a     possible

jurisdictional defect in his notice of appeal.                   The State has

not moved to dismiss            Defendant’s appeal,       nor does it oppose

review    by    writ    of     certiorari     pursuant    to   N.C.R.     App.   P.

21(a)(1).       We elect to grant Defendant’s petition for writ of

certiorari and review the merits of his appeal.

                                     * * * *

       This case is a companion of State v. Jackson, No. COA13-743

(May   20,     2014).     Defendant    and     Tijoun    Jackson,   the    Jackson

defendant, were stopped by Officer T.D. Brown of the Greensboro

Police Department on the evening of 9 April 2012 in front of a

convenient store        as they were parting company.               Incident to

Officer      Brown’s    investigatory       stop,   he   determined     that     Mr.

Jackson had a gun.            Another police officer, who arrived on the

scene shortly after Officer Brown made the initial stop, found

marijuana during a search of Defendant.

       On 4 January 2013, Defendant filed a motion to suppress the

marijuana found on his person, arguing, in part, that Officer

Brown’s investigatory stop violated his constitutional rights.
                                      -3-
On 25 April 2013, the trial court denied Defendant’s motion.                     On

6 May 2013, Defendant entered an Alford plea and was sentenced

to seven to eighteen months of active imprisonment, with the

execution   of   the   sentence     suspended        and   Defendant    placed   on

supervised probation for thirty-six months.                 Defendant appeals.

                                    * * * *

    On appeal, Defendant argues, inter alia, that the trial

court erred in denying his motion to suppress because Officer

Brown did not have reasonable suspicion that he was involved in

criminal    activity    when   he    made      his    investigatory      stop    of

Defendant and Mr. Jackson.          See State v. Watkins, 337 N.C. 437,

441, 446 S.E.2d 67, 70 (1994).           Similarly, Mr. Jackson filed a

motion to suppress in his case based on this same issue, a

motion which was also denied by the trial court and which formed

the basis of his appeal to this Court in Jackson.

    In     the   present   case,    we   are    bound      by   our   decision   in

Jackson, where this Court, by a 2-1 vote, held that Officer

Brown’s investigatory stop was invalid.                    In re Civil Penalty,

324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).                    Though Defendant

and Mr. Jackson were ultimately searched by different officers,

they were both initially stopped by the same officer, at the

same time, under the same circumstances.                   Therefore, consistent
                                  -4-
with our mandate in Jackson, we reverse the trial court’s order

denying   Defendant’s   motion   to   dismiss   and   vacate   Defendant’s

conviction entered following his Alford plea.

    REVERSED in part; VACATED in part.

    Judges BRYANT and STEPHENS concur.

    Report per Rule 30(e).
