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					NO. COA06-1207                                  DISTRICT 21

                  NORTH CAROLINA COURT OF APPEALS
                  *******************************


STATE OF NORTH CAROLINA         )
                                )        From Forsyth County
                 v.             )          05-CRS-58613, 26448
                                )
CARL D. HOGG,                   )
        Defendant-Appellant     )



           *******************************************
                   DEFENDANT-APPELLANT’S BRIEF

           *******************************************

                          QUESTIONS PRESENTED

I. DID THE TRIAL COURT ERR BY NOT GRANTING DEFENDANT‟S MOTION TO
SUPPRESS THE COCAINE RESULTING FROM AN UNCONSTITUTIONAL SEARCH
OR SEIZURE?

II. DID THE TRIAL COURT ERR BY FINDING THAT THE POLICE OFFICER
WHO STOPPED DEFENDANT HAD A REASONABLE ARTICULABLE SUSPICION FOR
A TWENTY-MINUTE TO ONE HOUR INVESTIGATORY STOP?
                                     2


                           STATEMENT OF THE CASE

    Defendant Carl D. Hogg pleaded guilty to an indictment

charging him with possession of cocaine and stipulated to the

status of a habitual felon.      He specifically reserved the right

to appeal the trial court‟s earlier denial of his motion to

suppress.    Defendant‟s suppression hearing and guilty plea took

place during the April 10, 2006, session of Forsyth County

Superior Court.    Mr. Hogg was sentenced the same day by the

Honorable Ed Wilson, Superior Court Judge presiding in Forsyth

County.    He received a minimum term of imprisonment of 101

months and a maximum term of 131 months after being found to be

a Prior Record Level of VI.

    Mr. Hogg gave timely notice of appeal in open court after

sentencing.    (T p. 32)

    The transcript was mailed to counsel on June 7, 2006.       (R

p. 26).    Appellant served the Proposed Record on Appeal on the

State on July 17, 2006.      The Record was settled by the passage

of time.

    The Record was deposited in the U.S. Mail on September 5,

2006, filed in this Court September 7, 2006, and docketed in

this Court September 14, 2006.
                                  3

           STATEMENT OF GROUNDS FOR APPELLATE REVIEW

    Appeal lies of right to this Court under N.C. Gen. Stat.

Sec.s 7A-27, 15A-1444(a), 15A-1446(d), and N.C.R. App. P. 10.


                         STATEMENT OF FACTS



    Officer B. Dawson, Winston-Salem Police Department, who had

been a law enforcement officer for less than a year, received a

report of an alarm call at the Mt. Zion Church at about 1:30

A.M. on July 13, 2005.   As it was an alarm call, there was no

description of any possible suspect or any identifying

information.

    Carl D. Hogg was walking with a friend that same night on

the way to another friend‟s house and testified that he wasn‟t

“nowhere near” a church.   (T p. 14) He said there was a church

“six blocks on up.”   (T p. 16)   After Officer Dawson stopped him

asked his name and birth date, “[w]e sat out there at least

about a hour” (T p. 15) because he “[t]old us to have a seat

right there on the sidewalk cause the computer was down and he

had to call it in.”   (T p. 16)

    Ofc. Dawson had responded to the call as backup, and saw

Mr. Hogg with another person who was “approximately 150 to 200

yards” away walking briskly.   (T pp. 4-5)    After getting the
                                 4
names of each man, the officer discovered from communications

that Mr. Hogg had a warrant out for a probation violation.   He

placed Hogg under arrest.   (T p. 7)   The total elapsed time from

the stop of the two men until the arrest of Mr. Hogg was about

20 minutes according to the officer.   (T p. 8)

    The trial judge denied Mr. Hogg‟s motion to suppress the

evidence, dictating his ruling to the court reporter:

              [O]n July 13th, 2006, Officer B.P.
         Dawson the Winston-Salem police department –
         at that point he had been working about nine
         months – was patrolling in his vehicle at
         approximately 1:30 a.m. He got a call there
         had been a burglary at the Mt. Zion Church.
         An alarm had one off there.
           He began to set up a perimeter in the
         area. Observed the defendant and another
         black male in close proximity to the church,
         approximately 150 yards away from the
         church. ([Th]e officer did not see other
         people in the area.*) He decided to perform
         – he stopped and asked if he could stop and
         talk. The two men continued to walk.
         Officer Dawson exited his patrol car and
         again asked them if he could talk with them.
         Asked them if they had seen anything unusual
         in the area or knew anything about a
         burglary. *
              Discovered that there was a 1075, that
         he was a wanted person, for a probation
         violation at which point he placed him under
         arrest. He then performed a search incident
         to arrest. Well, go back.
              He asked them for identification. The
         defendant told Officer Dawson he did not
         have his identification. There was some
         confusion about the spelling.
             I will find that the police officer did
         have reasonable articulable suspicion for a
                                 5



          brief investigatory stop and the motion to
          suppress is denied.

(T pp. 23-24; Appendix pp. 1-2)(Certain findings were modified

or striken as designated by *)

     The trial judge did not make a finding of fact about any

controlled substance being found during the search of Mr. Hogg.

The affidavit filed along with the Motion to Suppress stated

that “a reported crack rock was found on the defendant after a

search incident to arrest.”   (R p. 9)



                              ARGUMENT



I.   THE TRIAL COURT ERRED BY NOT GRANTING DEFENDANT‟S MOTION TO
     SUPPRESS THE COCAINE RESULTING FROM AN UNCONSTITUTIONAL
     SEARCH OR SEIZURE

Assignment of Error No. 1
(T pp. 23-24; R p. 7)


STANDARDS OF REVIEW:

     The standard of review for legal issues is de novo.

          [T]he trial court's conclusions of law are
          reviewed de novo and must be legally
          correct. State v. Fernandez, 346 N.C. 1, 11,
          484 S.E.2d 350, 357 (1997)("The trial
          court's conclusions of law must be legally
          correct, reflecting a correct application of
          applicable legal principles to the facts
          found.") (citing State v. Payne, 327 N.C.
          194, 209, 394 S.E.2d 158, 166 (1990), cert.
                                 6
          denied, 498 U.S. 1092, 112 L. Ed. 2d 1062,
          111 S. Ct. 977 (1991)).

State v. Hernandez, 170 N.C. App. 299, 612 S.E.2d 420, 423-424

(2005).

     The standard of review for factual determinations is

different:

          Review of a trial court's denial of a motion
          to suppress is limited to a determination
          whether the trial court's findings of fact
          are supported by competent evidence and
          whether those findings support the trial
          court's ultimate conclusions of law. The
          trial court's findings are conclusive if
          supported by competent evidence, even if the
          evidence is conflicting.

State v. Sutton, 167 N.C. App. 242, 244, 605 S.E.2d 483. 484-5

(2004)(internal citation deleted).

    The stop, seizure and search of Mr. Hogg is analyzed under

the protections afforded by the Fourth Amendment, U.S.

Constitution.   The Fourth Amendment protects:

          The right of the people to be secure in
          their persons, houses, papers, and effects,
          against unreasonable searches and seizures,
          shall not be violated, and no Warrants shall
          issue, but upon probable cause, supported by
          Oath or affirmation, and particularly
          describing the place to be searched, and the
          persons or things to be seized.

Fourth Amendment, U.S. Constitution.

    The officer who stopped Mr. Hogg had no search warrant and

no probable cause to believe that Mr. Hogg had committed any
                                  7



crime.   Instead, the officer was investigating a possible crime.


            An investigatory stop must be justified by
            'a reasonable suspicion, based on objective
            facts, that the individual is involved in
            criminal activity.' Watkins, 337 N.C. at
            441, 446 S.E.2d at 70 (quoting Brown v.
            Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 61
            L. Ed. 2d 357, 362 (1979)). Similarly, an
            officer may frisk a person where the officer
            reasonably suspects that 'criminal activity
            may be afoot and that the [person] with whom
            he is dealing may be armed and presently
            dangerous[.]' State v. Shearin, 170 N.C.
            App. 222, 226, 612 S.E.2d 371, 375 (quoting
            Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct.
            1868, 20 L. Ed. 2d 889, 911 (1968)), disc.
            review denied, 360 N.C. 75, 624 S.E.2d 369
            (2005). In determining whether reasonable
            suspicion existed for a stop or frisk, a
            trial court must consider the totality of
            the circumstances. Shearin, 170 N.C. App. at
            226, 612 S.E.2d at 376.


State v. Stone, 206 N.C.App. Lexis 1922, 634 S.E.2d

244 (2006).

    Art I, Sec. 20, of the N.C. Constitution contains

similar protections against unreasonable searches and

seizures.    State v. Stone, supra.

            Asking questions is an essential part of
            police investigations. In the ordinary
            course a police officer is free to ask a
            person for identification without
            implicating the Fourth Amendment.
            [I]nterrogation relating to one's identity
            or a request for identification by the
            police does not, by itself, constitute a
                                 8

         Fourth Amendment seizure.

Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185, 124 S.

Ct. 2451, 159 L.Ed.2d 292 (2004)(internal citation deleted).

    Here the detention lasted from 20 minutes (officer‟s

testimony) to one hour (Hogg‟s testimony).   An hour detention is

not “brief”.   The trial court made no findings of fact or

conclusions of law as to the length of the detention or seizure.

    A 20 minute or one hour detention of Mr. Hogg was

tantamount to an arrest without probable cause.   A seizure of

that length of time was not reasonable when he was walking

approximately two football fields away from a church where a

suspected break-in took place; where there was no description of

the race, gender, age, height or weights of the suspect or

suspects; and Mr. Hogg was not running away or carrying stolen

property or burglar tools.

    Even if the Fourth Amendment, U.S. Constitution, doesn‟t

proscribe the seizure or detention here, Art. I, Sec. 20, N.C.

Constitution can provide greater protections.   See Argument II.
                                  9

  II.     THE TRIAL COURT ERRED BY FINDING THAT THE POLICE OFFICER
          WHO STOPPED DEFENDANT HAD A REASONABLE ARTICULABLE
          SUSPICION FOR A TWENTY-MINUTE TO ONE HOUR INVESTIGATORY
          STOP

Assignment of Error No. 2
(T pp. 23-24)


STANDARD OF REVIEW:

    The standard of review for legal issues is de novo.

            [T]he trial court's conclusions of law are
            reviewed de novo and must be legally
            correct. State v. Fernandez, 346 N.C. 1, 11,
            484 S.E.2d 350, 357 (1997)("The trial
            court's conclusions of law must be legally
            correct, reflecting a correct application of
            applicable legal principles to the facts
            found.") (citing State v. Payne, 327 N.C.
            194, 209, 394 S.E.2d 158, 166 (1990), cert.
            denied, 498 U.S. 1092, 112 L. Ed. 2d 1062,
            111 S. Ct. 977 (1991)).

State v. Hernandez, 170 N.C. App. 299, 612 S.E.2d 420, 423-424

(2005).

        The standard of review for factual determinations is

different:

            Review of a trial court's denial of a motion
            to suppress is limited to a determination
            whether the trial court's findings of fact
            are supported by competent evidence and
            whether those findings support the trial
            court's ultimate conclusions of law. The
            trial court's findings are conclusive if
            supported by competent evidence, even if the
            evidence is conflicting.
                                10
State v. Sutton, 167 N.C. App. 242, 244, 605 S.E.2d 483, 484-5

(2004)(internal citation deleted).

     Just as in Argument I above, a reasonable, articulable

suspicion that justifies a brief stop to ask a question or two

and observe that Mr. Hogg was neither carrying nor concealing

stolen property or burglary tools, is different from probable

cause to search, detain for longer periods of time or arrest a

suspect.

     “[A]n investigative detention should last no longer than is

necessary to „effectuate the purpose of the stop.‟ State v.

Sanchez, 147 N.C. App. 619, 625, 556 S.E.2d 602 (2001)(five

minute investigatory was not unreasonable under the

circumstances) (internal citation deleted).

                This much, however, is clear: an
           investigative detention must be temporary
           and last no longer than is necessary to
           effectuate the purpose of the stop.
           Similarly, the investigative methods
           employed should be the least intrusive means
           reasonably available to verify or dispel the
           officer's suspicion in a short period of
           time. It is the State's burden to
           demonstrate that the seizure it seeks to
           justify on the basis of a reasonable
           suspicion was sufficiently limited in scope
           and duration to satisfy the conditions of an
           investigative seizure.

Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 75 L. Ed.

2d 229 (1983)(internal citations deleted)(fifteen minutes from
                                11



initial detention to search and arrest).   A twenty-minute

detention is permissible depending upon the particular facts and

where the officers are diligent in the face of interference by

the suspect.   United States v. Sharpe, 470 U.S. 675, 688, 105 S.

Ct. 1568, 84 L. Ed. 2d 605 (1985).

    Even if the Fourth Amendment, U.S. Constitution, didn‟t

proscribe the detention here, Art. I, Sec.s 20, N.C.

Constitution can provide greater protections.


              In language somewhat different from
         that of the fourth amendment to the United
         States Constitution, article I, section 20
         of the North Carolina Constitution forbids
         unreasonable search and seizure:
              General warrants, whereby any officer
         or other person may be commanded to search
         suspected places without evidence of the act
         committed, or to seize any person or persons
         not named, whose offense is not particularly
         described and supported by evidence, are
         dangerous to liberty and shall not be
         granted.
             Even were the two provisions identical,
         we have the authority to construe our own
         constitution differently from the
         construction by the United States Supreme
         Court of the Federal Constitution, as long
         as our citizens are thereby accorded no
         lesser rights than they are guaranteed by
         the parallel federal provision.

State v. Carter, 322 N.C. 709, 712-713, 370 S.E.2d 553

(1988)(internal citations deleted).

   Mr. Hogg respectfully requests that this Court find that a
                               12
twenty-minute to one-hour detention under   these circumstances

violates Art. I, Sec. 20, N.C. Constitution as well as the

Fourth Amendment, U.S. Constitution.



                           CONCLUSION


      Defendant-Appellant Carl D. Hogg respectfully requests

that this Court overruled the trial court‟s denial of his motion

to suppress, and remand the case for further proceedings in

Superior Court.
                               13
      This the 23rd day of October, 2006.


                         Counsel for Defendant-Appellant


                        ____________________________
                         M. ALEXANDER CHARNS
                         N.C. State Bar #10612
                         P.O. Box 59
                         Durham, N.C. 27702
                         Telephone: (919) 956-7564
                         E-mail: Acharns@verizon.net



                     CERTIFICATE OF SERVICE

     The undersigned attorney for the Defendant-Appellant hereby
certifies that a copy of the foregoing was filed with the North
Carolina Court of Appeals by U.S. Mail, and served upon counsel
for the State of North Carolina on the date indicated below, by
____ facsimile, XX depositing said copy in the United States
Mail, first-class postage prepaid, properly addressed to the
last-known address of said counsel for the State as follows:

Mr. Scott T. Stroud, Assistant Attorney General
North Carolina Department of Justice
9001 Mail Service Center
Raleigh, NC 27699-9001

    This the 23rd of October, 2006.

                              Counsel for Defendant-Appellant

                              _________________________________
                              M. ALEXANDER CHARNS

				
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