IN THE SUPREME COURT OF NORTH CAROLINA

2021-NCSC-85

No. 3A20

Filed 13 August 2021

STATE OF NORTH CAROLINA

v.

BRYAN XAVIER JOHNSON

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of 

the Court of Appeals, 269 N.C. App. 76 (2019), finding no error after appeal from an 

order denying defendant’s Motion to Suppress entered on 29 June 2018 by Judge 

Forrest D. Bridges in Superior Court, Mecklenburg County. Heard in the Supreme 

Court on 22 March 2021.

Joshua H. Stein, Attorney General, by Kristin J. Uicker, Assistant Attorney 

General, for the State-appellee.

Kimberly P. Hoppin for defendant-appellant.

MORGAN, Justice.

¶ 1 Defendant’s appeal requires this Court to review the trial court’s order denying

defendant’s motion to suppress evidence of a bag of narcotics seized from his vehicle 

during a traffic stop on 14 January 2017. The dispositive question on appeal is 

whether the law enforcement officers conducting a search for weapons on defendant’s 

person and in the areas of defendant’s vehicle under his immediate control possessed 

the requisite reasonable suspicion to initiate such a warrantless search pursuant to 
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Terry v. Ohio, 392 U.S. 1 (1968). Because we hold that the law enforcement officer 

who conducted the traffic stop presented articulable facts at the suppression hearing 

which gave rise to a reasonable suspicion that defendant was armed and dangerous, 

the trial court did not commit error in denying defendant’s request to suppress the 

controlled substances which were discovered as a result of the search of the areas of 

defendant’s vehicle which were under defendant’s immediate control. 

I. Factual and Procedural Background

¶ 2 As a seven-year veteran of the Charlotte-Mecklenburg Police Department 

(CMPD) and a member of the law enforcement agency’s Crime Reduction Unit, Officer 

Whitley was conducting patrol operations in the early morning hours of 14 January 

2017 in a location of the city that he described at the suppression hearing as a “very 

high crime area.” Officer Whitley and his partner, Sergeant Visiano, were traveling 

along Central Avenue in the Hickory Grove section of Charlotte when they observed 

a black Dodge Charger. While Officer Whitley continued to operate their patrol 

vehicle, Sergeant Visiano ran the license plate displayed on the Dodge Charger 

through the agency’s computer system and discovered that the license plate was 

actually registered to an Acura MDX. Having determined that the tag displayed on 

the Dodge Charger was “fictitious,” Officer Whitley initiated a traffic stop, and the 

two vehicles pulled into a Burger King parking lot. 

¶ 3 While approaching the driver’s side of the Dodge Charger, Officer Whitley 
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noticed that the car’s occupant had raised his hands in the air. It was determined 

that the individual in the Dodge Charger was defendant. Officer Whitley 

subsequently testified at the suppression hearing that he had observed persons 

raising their hands in such a manner ten to twenty times previously and that, based 

upon his experience which included specialized training in recognizing armed 

individuals, this behavior can “sometimes . . . mean that they have a gun.” Officer 

Whitley conversed with defendant at the driver’s window as defendant remained 

seated in the Dodge Charger, while Sergeant Visiano positioned himself at the 

passenger side window in order to see defendant’s right side. Officer Whitley asked 

for defendant’s driver’s license and registration and inquired about the possible 

presence of any weapons in the vehicle; defendant denied the presence of such items. 

Officer Whitley explained that the mismatched license plate served as the reason for 

the traffic stop, prompting defendant to volunteer that defendant had just purchased 

the Dodge Charger in a private sale that day and that defendant knew that the 

displayed tag did not belong to the vehicle that he was driving. Defendant readily

produced his driver’s license but had to search for the car’s registration and bill of 

sale in the center console of the vehicle. Officer Whitley testified at the suppression 

hearing that during this interaction, defendant “seemed very nervous . . . like his 

heart is beating out of his chest a little bit. He was very nervous.” Further, as 

defendant reached into the center console to find the requested documentation, 
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Officer Whitley recalled during his testimony that defendant was “blading [his body] 

. . . as if he is trying to conceal something that is to his right, as if he’s using his body 

to distance what I can see from what he’s doing.” This appeared odd to Officer 

Whitley, who testified at the suppression hearing that while “typically people 

obviously reach and turn” to retrieve items from the center consoles of their vehicles, 

defendant did so “to the extent where his shoulders were completely off the seat.”

¶ 4 “[A]t this point,” Officer Whitley testified, defendant’s positioning of his hands 

above his head as the officers approached his vehicle, his nervousness, and the 

“blading” of his body as he reached into the center console were “adding up as . . . 

characteristics of an armed subject.” After defendant produced a bill of sale for the 

Dodge Charger from the center console, Officer Whitley left defendant in the driver’s 

seat of the vehicle while defendant spoke with Sergeant Visiano. Meanwhile, Officer 

Whitley returned to his patrol car in order to process the information and paperwork 

provided by defendant through multiple law enforcement intelligence databases, 

which is “a standard practice for every traffic stop that” the officer conducts.

Information gathered from Officer Whitley’s search of North Carolina’s CJLEADS 

system—a database which details a person’s history of contacts with law enforcement 

in the form of a list of criminal charges filed against the individual—indicated that 

defendant had been charged with multiple violent crimes and offenses related to 

weapons from the years 2003 through 2009. While he could not offer testimony as to 
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which charges against defendant had resulted in convictions, Officer Whitley testified 

that the “trend in violent crime” revealed by the CJLEADS search, combined with 

the “holding up of the hands, as well as the blading of the body,” and the fact that 

defendant appeared very nervous, “led [the officer] to believe that he was armed and 

dangerous at that point.”

¶ 5 Officer Whitley exited his patrol car, returned to defendant’s vehicle, and asked 

defendant to step out of the Dodge Charger, with the intent of conducting a frisk of 

defendant’s person and a search of the vehicle. Defendant got out of his car and went 

to the rear door on the driver’s side of the vehicle at Officer Whitley’s request before 

defendant consented to be frisked by the law enforcement officer for weapons. A pat

down of defendant’s clothing revealed no weapons or other indicia of contraband. At 

this point, Officer Whitley walked to the rear of defendant’s Dodge Charger and asked 

for defendant’s consent to search the vehicle. Defendant refused to grant such 

consent. Officer Whitley then explained that the officers were going to conduct a 

limited search of defendant’s vehicle nonetheless based on defendant’s “criminal 

history . . . and some other things.” While defendant continued to protest the search

of the Dodge Charger, Officer Whitley left him with Sergeant Visiano and began a 

search of the front driver’s side of defendant’s vehicle. Immediately upon opening the 

unlocked center console, Officer Whitley discovered a baggie of “[w]hat appeared to 

be powder cocaine” and removed the suspected contraband from the vehicle. After 
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completing his search of the area of the vehicle immediately behind the driver’s seat, 

Officer Whitley placed defendant under arrest. 

¶ 6 On 14 January 2017, defendant was charged with the felonious offense of

possession with intent to sell or deliver cocaine and the misdemeanor offense of 

possession of drug paraphernalia, and was formally indicted by a Mecklenburg 

County grand jury for possession of cocaine on 25 September 2017. 

¶ 7 Defendant filed a motion to suppress on 16 May 2018, which came on for 

hearing before the Honorable Forrest D. Bridges in Superior Court, Mecklenburg 

County, on 26 June 2018. Officer Whitley testified about the course of events which 

resulted in defendant’s arrest. Additionally, the trial court viewed Officer Whitley’s 

body camera recording of the incident after defendant’s counsel stipulated to the 

video’s admissibility. After hearing arguments from counsel for the State and 

defendant, the trial court denied defendant’s motion to suppress. While defendant 

initially indicated a desire to proceed to trial, he agreed to plead guilty to felony 

possession of cocaine and misdemeanor possession of drug paraphernalia after a short 

recess before the jury was selected. The trial court accepted defendant’s guilty plea 

and noted for the record that defendant had preserved his right to appeal the trial 

court’s earlier ruling on defendant’s motion to suppress. 

¶ 8 The trial court then asked the State’s attorney to prepare an order reflecting 

the details of the hearing on defendant’s motion to suppress. In providing direction 
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regarding the desired contents of the order, the trial court recounted the factual basis 

upon which it had concluded that Officer Whitley had established the reasonable 

suspicion necessary to conduct a Terry search1 of defendant’s vehicle. In open court, 

the trial court recalled the manner in which Officer Whitley had conducted the traffic 

stop in the location which the officer had described as a high-crime area and the 

officer’s discovery of defendant’s prior charges, upon researching the state’s criminal 

record databases, for robbery with a dangerous weapon, assault with a deadly weapon 

with the intent to kill, and discharging a weapon into occupied property. The trial 

court noted that defendant raised his hands out of the window of the Dodge Charger 

as Officer Whitley approached, which had put the officer “on alert for the possible 

presence of a gun within the vehicle.” In addition, the trial court explained that, while 

Officer Whitley reasonably believed that defendant’s maneuver to raise his hands out 

of the car’s window could indicate the presence of a gun, defendant had acted 

appropriately in holding his hands up and out of the window “in this day and time,” 

and such conduct was not to be considered independently incriminating. The trial 

court entered a written order dated 29 July 2018 which included the above findings 

and concluded: 

2. That based on the totality of [the] circumstances, 

including but not limited to: the [d]efendant’s hands in the 

air upon the Officer’s approach, and the [d]efendant’s prior 

 

1 A shorthand reference commonly used to describe a warrantless search which is 

performed pursuant to the principles stated in Terry v. Ohio, 392 U.S. 1 (1968).
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criminal history, that the limited frisk of the lungeable 

areas of the vehicle was justified.

3. That the Officer’s scope of the frisk was properly limited 

only to areas where the [d]efendant would have had access 

to retrieve a weapon if he chose to do so.

¶ 9 Defendant was sentenced to a term of 8 to 19 months in prison, which was 

suspended for 24 months of supervised probation. Defendant appealed to the North 

Carolina Court of Appeals, where a divided panel issued its decision on 17 December 

2019 affirming the trial court’s denial of defendant’s motion to suppress. Defendant 

appeals to this Court as a matter of right pursuant to N.C.G.S. § 7A-30(2) based upon 

the dissenting opinion filed in the lower appellate court’s consideration of this matter.

II. Analysis

¶ 10 Defendant argues before this Court that several of the trial court’s findings 

and conclusions announced in open court and reproduced in the subsequent written 

order in which the trial court denied defendant’s motion to suppress were not 

supported by the evidence. In removing these disputed findings and conclusions from 

the trial court’s contemplation, defendant contends that Officer Whitley did not have 

a reasonable suspicion that defendant was armed, that the Terry search of 

defendant’s vehicle represented an unconstitutional extension of the traffic stop, and 

that this Court’s correction of the trial court’s supposed error should result in an 

outcome which vacates the trial court’s order and overturns defendant’s conviction. 

We disagree with defendant’s assertions and address them in turn. 
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A. Standard of Review

¶ 11 We review a party’s challenges to a trial court’s findings of fact to ascertain 

whether those findings are supported by any competent evidence, the presence of 

which will render such findings binding on appeal. State v. Reed, 373 N.C. 498, 507 

(2020). The trial court’s conclusions of law, including the ultimate conclusion as to 

whether a law enforcement officer had the constitutional authority to conduct a Terry

frisk of a defendant’s vehicle, are reviewed on a de novo basis. Id. 

B. Trial Court’s Findings and Conclusions

¶ 12 As an initial matter, defendant complains of the consideration by the Court of 

Appeals of Officer Whitley’s uncontroverted testimony concerning defendant’s 

nervousness and the “blading” of defendant’s body as defendant accessed the center 

console of his vehicle, as well as the lower appellate court’s recognition that the traffic 

stop took place late at night. To bolster his position, defendant observes that the trial 

court did not make express findings concerning these factors. Although North 

Carolina statutory law establishes that, “in making a determination whether or not 

evidence shall be suppressed,” the trial court is required to “make findings of fact and 

conclusions of law which shall be included in the record, pursuant to [N.C.]G.S. [§] 

15A-977(f)[,]” N.C.G.S. § 15A-974(b) (2019), nonetheless the reduction of the trial 

court’s considerations to a written order is not required. State v. Oates, 366 N.C. 264, 

268 (2012) (“While a written determination is the best practice, nevertheless 
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[N.C.G.S. § 15A-977(f)] does not require that these findings and conclusions be in 

writing.”). In the present case, the trial court, in its discretion, included a recitation 

of some of the evidence before the tribunal in its written order and specifically noted 

the sufficiency of the evidence to establish reasonable suspicion in the mind of the 

officer to support a Terry search, which involved the trial court’s evaluation of factors 

which “includ[ed] but [was] not limited to” the factors listed in the written order.

“Although [N.C.G.S. § 15A-974(b)’s] directive is in the imperative form, only a 

material conflict in the evidence” requires a trial court to make “explicit factual 

findings that show the basis for the trial court’s ruling.” State v. Bartlett, 368 N.C. 

309, 312 (2015) (citing State v. Salinas, 366 N.C. 119, 123–24 (2012)). Thus, “[w]hen 

there is no conflict in the evidence,” an appellate court may infer a trial court’s 

findings in support of its decision on a motion to suppress so long as that unconflicted 

evidence was within the trial court’s contemplation. Bartlett, 368 N.C. at 312 (citing 

State v. Munsey, 342 N.C. 882, 885 (1996)). In applying these enunciated principles 

to the instant case, the Court of Appeals did not wrongly infer from the 

uncontroverted evidence before the trial court adduced at the suppression hearing 

and the subsequent findings and conclusions which the trial court entered in its 

order, that the factors—among other factors—of Officer Whitley’s testimony about 

defendant’s nervousness, defendant’s “blading” of his body, and the late hour of the 

traffic stop constituted circumstances which provided reasonable suspicion for the 
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Terry search to be conducted. The lack of controverted evidence at the suppression

hearing strengthened the trial court’s ability to choose the evidentiary facts and the 

resulting persuasive factors which the trial court elected to expressly include in its 

order.

¶ 13 Furthermore, defendant does not contest the evidence, in the form of Officer 

Whitley’s testimony and the body camera footage viewed by the trial court, regarding 

defendant’s nervousness and defendant’s maneuver of “blading” his body; rather, 

defendant opts to attempt to contextualize these behavioral displays by 

characterizing defendant’s emotional and physical issues during his interaction with 

Officer Whitley. In this regard, defendant merely attempts to relitigate the veracity 

of Officer Whitley’s interpretation of defendant’s conduct. “The weight, credibility, 

and convincing force of such evidence is for the trial court, who is in the best position 

to observe the witnesses and make such determinations.” Macher v. Macher, 188 N.C. 

App. 537, 540, aff’d per curiam, 362 N.C. 505 (2008). The trial court in this matter 

was “the sole judge of the credibility and weight of the evidence,” and it was free to 

“accept or reject the testimony of a witness, either in whole or in part, depending 

solely upon whether it believes or disbelieves the same.” Moses v. Bartholomew, 238 

N.C. 714, 718 (1953). For this Court to accept defendant’s invitation to reinterpret 

Officer Whitley’s suppression hearing testimony, when the original interpretation of 

defendant’s conduct made by the officer on scene has already been evaluated by the
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trial court in a manner contemplated by, and consistent with, the operational 

structure of our legal system, would be to ignore the trial court’s status as “the sole 

judge of the credibility of the witnesses and of the weight of their testimony.” State v. 

Johnson, 230 N.C. 743, 745 (1949).

¶ 14 Likewise, defendant does not challenge the evidentiary basis for the trial 

court’s consideration of Officer Whitley’s discovery of defendant’s criminal history as 

a contributing factor to the officer’s development of reasonable suspicion to justify the 

officer’s execution of a Terry search; instead, defendant submits that the evidence 

“did not support a finding that Officer Whitley had reasonable concerns for his safety 

based on [defendant’s] prior criminal history.” Additionally, defendant endeavors to 

fortify his impression that the officer’s concerns for the officer’s safety were not 

supported by the evidence of the officer’s awareness of defendant’s criminal history 

at the time of the traffic stop by emphasizing that the officer did not fully recall at 

the suppression hearing all of the details and the outcomes of defendant’s criminal 

history, which therefore negated the manifestation of reasonable suspicion in the 

mind of the officer during Officer Whitley’s interaction with defendant. Again, like 

defendant’s concerns about Officer Whitley’s observance of defendant’s nervousness 

and “blading” of his body, this amounts to defendant’s renewed invitation for our 

Court to substitute our judgment regarding the veracity and accuracy of a witness’s 

testimony for the determination of a trial court which occupied “the best position to 
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observe the witnesses and make such determinations.” Macher, 188 N.C. App. at 540

(quoting Freeman v. Freeman, 155 N.C. App. 603, 608 (2002)). Here, Officer Whitley 

testified without contravention that he “discovered that the defendant did have a 

history, violent history, related to firearms” in the form of various charges extending 

from 2003 to 2009, which the officer described as a “trend in violent crime” that, in 

conjunction with the other evidentiary facts already discussed, “led [him] to believe 

that [defendant] was armed and dangerous at that point.” Defendant’s position from 

this cosmetically different, yet fundamentally identical, premise is also without 

merit. 

¶ 15 By way of review, the unconflicted evidence introduced by the State at the 

hearing conducted by the trial court on defendant’s motion to suppress—that (1) the 

traffic stop occurred late at night (2) in a high-crime area, with (3) defendant 

appearing “very nervous” to the detaining officer to the point that it “seem[ed] like 

his heart [was] beating out of his chest a little bit[,]” with (4) defendant “blading his 

body” as he accessed the Dodge Charger’s center console, and (5) defendant’s criminal 

record indicating a “trend in violent crime” and weapons-related charges—was 

sufficient for the trial court to make findings of fact and conclusions of law that the 

investigating law enforcement officer had reasonable suspicion to conduct a Terry

search of defendant’s person and in areas of defendant’s vehicle under defendant’s 

immediate control for the officer’s safety.
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C. Reasonable Suspicion for the Terry Search

¶ 16 Both the Fourth Amendment to the Constitution of the United States and 

article I, section 20 of the North Carolina Constitution protect private citizens against 

unreasonable searches and seizures. State v. Otto, 366 N.C. 134, 136 (2012). Traffic 

stops are considered seizures subject to the strictures of these provisions and are 

“historically reviewed under the investigatory detention framework first articulated 

in Terry v. Ohio.” Id. at 136–37 (quoting State v. Styles, 362 N.C. 412, 414 (2008)); 

Reed, 373 N.C. at 507. Law enforcement officers may initiate a traffic stop if the 

officer has a “reasonable, articulable suspicion that criminal activity is afoot.” Styles, 

362 N.C. at 414 (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). The 

reasonableness of a traffic stop is determined “by examining (1) whether the traffic 

stop was lawful at its inception, and (2) whether the continued stop was ‘sufficiently 

limited in scope and duration to satisfy the conditions of an investigative seizure.’ ” 

Reed, 373 N.C. at 507 (citations omitted) (quoting Florida v. Royer, 460 U.S. 491, 500 

(1983)). Once the traffic stop is initiated, a law enforcement officer may conduct a 

limited search of the passenger compartment of the vehicle so long as the officer 

develops a reasonable suspicion that the suspect of the traffic stop is armed and 

dangerous. Terry, 392 U.S. at 27. The Supreme Court of the United States has 

extended the reasonable suspicion standard originally established in Terry to allow 

for these limited searches: 
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[T]he search of the passenger compartment of an 

automobile, limited to those areas in which a weapon may 

be placed or hidden, is permissible if the police officer 

possesses a reasonable belief based on “specific and 

articulable facts which, taken together with the rational 

inferences from those facts, reasonably warrant” the officer 

in believing that the suspect is dangerous and the suspect 

may gain immediate control of weapons.

Michigan v. Long, 463 U.S. 1032, 1049 (1983) (quoting Terry, 392 U.S. at 21). 

Reasonable suspicion demands more than a mere “hunch” on the part of the officer 

but requires “less than probable cause and considerably less than preponderance of 

the evidence.” State v. Williams, 366 N.C. 110, 117 (2012). In any event, reasonable 

suspicion requires only “some minimal level of objective justification,” Styles, 362 

N.C. at 414 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)), and arises from 

“specific and articulable facts which, taken together with rational inferences from 

those facts, reasonably warrant” the intrusion presented by the limited search of the 

vehicle, Terry, 392 U.S. at 21. 

¶ 17 As discussed above, competent evidence exists in the record of the suppression 

hearing that Officer Whitley encountered a “very nervous” individual—specifically, 

defendant—late at night in a high-crime area. The officer saw defendant “blade” his 

body by way of defendant’s assumption of a physical position which the officer 

interpreted to be an effort by defendant to conceal defendant’s entry into the vehicle’s 

center console. “All [of] these things,” Officer Whitley testified, were “adding up as, 

from my training and experience, as characteristics of an armed suspect.” Also, upon 
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Officer Whitley’s return to his patrol car in order to conduct a criminal records check 

of defendant, the officer obtained information about defendant’s criminal history that 

solidified the existence of reasonable suspicion for the officer to conduct a Terry

search, based on the belief developed by Officer Whitley that defendant was armed 

and dangerous. 

¶ 18 Standing alone, defendant’s criminal record for which defendant has already

paid his debt to society does not constitute reasonable suspicion and hence cannot 

singly serve as a basis for the law enforcement officer who effected the traffic stop to 

conduct a Terry search of the passenger compartment of defendant’s vehicle.

2

Likewise, defendant’s mere presence in a high-crime area does not solely provide the

officer with the necessary reasonable suspicion to authorize the officer to order

defendant to exit the vehicle so that the officer can look for weapons. See State v. 

Jackson, 368 N.C. 75, 80 (2015). Similarly, defendant’s nervousness does not in and 

of itself amount to reasonable suspicion when displayed to a detaining officer. State 

v. Pearson, 348 N.C. 272, 276 (1998). However, we do not assess each of these factors, 

specifically articulated by Officer Whitley in this case, in isolation. See Jackson, 368 

 

2 However, a law enforcement officer’s specific knowledge of a suspect’s felonious 

criminal convictions alters the reasonable suspicion inquiry when the officer (1) conducts a 

lawful investigative stop of the suspect for the very conduct which serves as the basis for 

those criminal convictions (albeit this circumstance is not present here), and (2) testifies that 

based on the training and experience of the officer, the felonious conduct for which defendant 

has been convicted and is currently being investigated is normally associated with the 

possession of weapons. State v. McGirt, 122 N.C. App. 237, 240 (1996), aff’d per curiam, 345 

N.C. 624 (1997).
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N.C. at 80. We examine the totality of the circumstances surrounding Officer 

Whitley’s interaction with defendant in order to achieve a comprehensive analysis as 

to whether the officer’s conclusion that defendant may have been armed and 

dangerous was reasonable. Id. In the case at bar, in which the officer rendered 

uncontroverted testimony that he conducted a late-night traffic stop of defendant’s 

vehicle in a high-crime area and encountered defendant who acted very nervous, 

appeared to purposely hamper the officer’s open view of defendant’s entry into the 

vehicle’s center console, and possessed a criminal history which depicted a “trend in

violent crime,” we conclude that the officer’s suspicion of defendant’s potentially 

armed and dangerous status was reasonable. Therefore, Officer Whitley operated 

within the bounds of both the Fourth Amendment to the Constitution of the United 

States and article I, section 20 of the North Carolina Constitution in removing 

defendant from the Dodge Charger and searching the area of the vehicle’s passenger 

compartment that was within defendant’s control for weapons.

¶ 19 In determining that the aforementioned factors were sufficient to constitute 

reasonable suspicion for the officer’s Terry search based on the totality of the 

circumstances, we have purposely and expressly removed from the assemblage of 

factors which were considered by the trial court to establish reasonable suspicion the 

factor gleaned from Officer Whitley’s uncontroverted testimony that defendant’s act 

of raising his hands and extending them from the driver’s side window, so that 
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defendant’s hands could readily be seen by the approaching officers, was interpreted 

by Officer Whitley as a sign that there could be the presence of a firearm in the 

vehicle. The officer testified at the suppression hearing that defendant’s placement of 

defendant’s hands figured into the officer’s belief that defendant “was armed and 

dangerous at that point.” The Court of Appeals, in giving deference to the officer’s 

right “to rely on his experience and training” and to the trial court’s order, included 

this factor of “raising one’s hands” as defendant did in the present case to be properly 

considered in the totality of the circumstances which resulted in the existence of the 

officer’s reasonable suspicion to execute the Terry search. Johnson, 269 N.C. App. at 

85–86.

¶ 20 In his brief, defendant’s appellate counsel argues that defendant’s action of 

raising defendant’s hands and clearly exposing them to the officers as they neared 

defendant’s vehicle during the traffic stop should be construed differently than Officer 

Whitley, the trial court, and the Court of Appeals did:

In this case, the trial court commended [defendant] for 

raising his hands and placing them out the window upon 

being stopped by officers . . . . He was praised by the trial 

court for taking action considered helpful to avoid getting 

shot, but this same action was found to establish, in part, 

the basis for a frisk for weapons. This presents an unjust 

choice.

¶ 21 We do not need, nor choose, to address any such real or perceived conundrum 

with regard to the existence of reasonable suspicion for the Terry search because in 
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this Court’s view, the factor of defendant’s raised hands upon the officer’s effectuation 

of the traffic stop is unnecessary to consider for the purpose of the establishment of 

reasonable suspicion in light of the totality of the circumstances which include the 

other factors comprising the officer’s reasonable suspicion which collectively have 

already been deemed by this Court to be sufficient in the present case. Like the 

Fourth Circuit Court of Appeals, we harbor some “concern about the inclination of 

the [State] toward using whatever facts are present, no matter how innocent, as 

indicia of suspicious activity.” State v. Nicholson, 371 N.C. 284, 291 n.4 (2018) 

(quoting United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011)). Nonetheless, for 

the purpose of our legal analysis as to the State’s establishment of the existence of 

reasonable suspicion for the officer’s Terry search, we conclude that the totality of the 

circumstances supports the trial court’s ultimate conclusion that such reasonable 

suspicion existed, even after this Court eliminates defendant’s gesture of raising his 

hands as a factor.

D. Extension of the Stop

¶ 22 Lastly, defendant contends that Officer Whitley’s search of defendant’s vehicle

after discovering defendant’s criminal history represented an unconstitutional 

extension of the traffic stop because “it seems evident that Officer Whitley was 

satisfied that a traffic citation for displaying a fictitious tag was not warranted under 

the circumstances as he did not issue such a citation.” Therefore, defendant posits 
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that the officer’s subsequent Terry frisk of defendant’s person and accompanying 

search of defendant’s vehicle were not in furtherance of the officers’ safety while 

fulfilling the purpose of the traffic stop itself, but were instead independent 

investigative actions targeting other unarticulated suspicions of criminal activity. In

defendant’s view, since Officer Whitley did not demonstrate a reasonable suspicion 

prior to leaving defendant to conduct the criminal records check, coupled with the 

officer’s inability to form reasonable suspicion to justify the Terry search based on 

defendant’s criminal history alone, then the officer’s decision to search defendant 

after the juncture when defendant assumes that Officer Whitley had decided not to 

charge defendant for the traffic violation constituted an unlawful extension of the 

traffic stop. This description mischaracterizes the timing of Officer Whitley’s 

interactions with defendant and disregards the totality of the circumstances which

yielded the factors upon which Officer Whitley formed the reasonable suspicion 

required to conduct the limited Fourth Amendment search.

¶ 23 “[T]he duration of a traffic stop must be limited to the length of time that is 

reasonably necessary to accomplish the mission of the stop, unless reasonable 

suspicion of another crime arose before that mission was completed.” State v. Bullock, 

370 N.C. 256, 257 (2017) (citations omitted). While this rule describes the temporal 

nature of the scope of a constitutionally appropriate traffic stop, the exercise of “police 

diligence ‘includes more than just the time needed to issue a citation.’ ” Reed, 373 
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N.C. at 509 (quoting Bullock, 370 N.C. at 257). To ensure that the exercise of such 

enterprise by law enforcement remains within the confines of the Fourth 

Amendment, however, “an investigation unrelated to the reasons for the traffic stop 

must not prolong the roadside detention.” Reed, 373 N.C. at 509. In order to prolong 

a traffic stop beyond the amount of time necessary to investigate and address the 

reason for the stop itself, the detaining officer must “possess a justification for doing 

so other than the initial traffic violation that prompted the stop in the first place.” Id.

at 510 (quoting United States v. Branch, 537 F.3d 328, 336 (4th Cir. 2008)). The 

development of a reasonable suspicion that a suspect may be armed in the normal 

course of an investigation into the basis for a traffic stop provides one such 

justification. Id. (quoting Branch, 537 F.3d at 336, to explain that prolonging a traffic 

stop “requires either the driver’s consent or a reasonable suspicion that illegal activity 

is afoot”).

¶ 24 Here, Officer Whitley testified that after observing that defendant exhibited 

some of the characteristics of an armed subject, the officer returned to the officer’s 

patrol car in order to conduct a records check of defendant and of the vehicle itself to 

confirm the veracity of defendant’s statements as to the ownership of the car. Such a 

course of action on the part of Officer Whitley is readily recognized as a proper 

function of the police during traffic stops which are effected under the Fourth 

Amendment, and the officer’s deeds were directly related to addressing the purpose 
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Opinion of the Court

of the stop itself. Rodriguez v. United States, 575 U.S. 348, 355 (2015). The officer’s 

activities were not, as represented by defendant, exercises of the officer which were 

external to the traffic stop, nor did they prolong the stop beyond the mission’s 

purpose. Although Officer Whitley testified that he did not intend to arrest defendant 

for the minor traffic infraction of a fictitious license plate which served as the impetus 

for the traffic stop, the officer did not testify—inconsistent with defendant’s selfserving assumption—that the officer had already made a determination to refrain 

from charging defendant for the traffic violation at the time that the officer was 

engaged in the process of performing the records check. The officer’s declination to 

issue a citation to defendant for the traffic offense, with only defendant’s speculation 

as to the timing of the officer’s decision to refrain from charging defendant with the 

violation in the dearth of any evidence to support defendant’s theory, does not equate 

to a conclusion that the officer unreasonably prolonged the traffic stop. This is 

particularly true in light of the testimony rendered by Officer Whitley as to the actual 

chain of events and the observations by the officer which culminated in the Terry

search. The officer represented at the suppression hearing that the records check was 

a standard aspect of any traffic stop that he conducted. The information obtained by 

the officer from the records check disclosed defendant’s “trend in violent crime.” 

¶ 25 The entirety of the sequence of events which was started by virtue of Officer 

Whitley’s initiation of a traffic stop of defendant’s vehicle in order to investigate an 
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Opinion of the Court

apparent license plate violation, during which the officer’s interaction with defendant 

featured behavioral cues by defendant that prompted Officer Whitley to consider that 

defendant might be armed, which in turn led the officer to particularly note during 

the officer’s routine records check that he performed pursuant to every traffic stop 

that he effectuated that defendant’s criminal history indicated a “trend in violent 

crime,” thus compelling Officer Whitley to believe that defendant was “armed and 

dangerous” and establishing reasonable suspicion in the officer’s mind so as to justify 

a Terry frisk of defendant’s person and a Terry search of defendant’s vehicle for 

weapons in areas that were subject to defendant’s direct and immediate control, 

demonstrate that there was not an unconstitutional extension of the traffic stop. In 

light of these facts, we adopt the observant phrase employed by the Supreme Court

of the United States, “[c]learly this case does not involve any delay unnecessary to 

the legitimate investigation of the law enforcement officers.” United States v. Sharpe, 

470 U.S. 675, 687 (1985). 

III. Conclusion

¶ 26 Based upon the foregoing factual background, procedural background, and 

analysis, we affirm the holding of the Court of Appeals finding no error in the trial 

court’s order denying defendant’s motion to suppress in agreement with the 

conclusion of the Court of Appeals as modified by our discussion in this opinion.

AFFIRMED.
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Opinion of the Court

Justice BERGER did not participate in the consideration or decision of this 

case.
Chief Justice NEWBY concurring.

¶ 27 I agree with the well-reasoned majority opinion that the evidence it considers 

was sufficient for the trial court to find Officer Whitley had reasonable suspicion to 

justify the limited Terry search for weapons in the area immediately surrounding 

defendant. Although not needed to resolve this case, however, I do not believe this 

Court should remove from the analysis defendant’s gesture of raising his hands out 

of his car window. Like other movements, which may be innocent standing alone, 

with the proper testimony the act of raising one’s hands can be a factor to support an 

officer’s reasonable suspicion. 

¶ 28 The trial court here found: 

8. That after the Defendant stopped, he raised both of his 

hands in the air upon the officers’ approach.

9. That Officer Whitley observed the Defendant’s hands in 

the air, and based on Officer Whitley’s training and 

experience, he believed that the gesture of raising one’s 

hands in the air can indicate that a person has a gun inside 

the vehicle.

10. That based on his training and experience, Officer 

Whitley was on alert about the possible presence of a gun. 

Based on these findings, the trial court concluded: 

1. That the motion of having hands up upon an officer’s 

approach does not automatically incriminate an individual 

by itself, and the Defendant’s action of showing his hands 

was reasonable. However, based on an officer’s experience, 

it is reasonable for an officer to infer that the motion of 

hands up upon an officer’s approach could indicate the 

presence of a weapon. 
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Newby, C.J., concurring

Thus, based on Officer Whitley’s testimony, the trial court included defendant’s action 

of raising his hands as a factor to support reasonable suspicion. 

¶ 29 The trial court properly considered all the relevant factors to determine that 

Officer Whitley had reasonable suspicion justifying the limited Terry search for a 

weapon. In determining whether reasonable suspicion exists, this Court “consider[s] 

‘the totality of the circumstances—the whole picture,’ ” State v. Watkins, 337 N.C. 

437, 441, 446 S.E.2d 67, 70 (1994) (quoting United States v. Cortez, 449 U.S. 411, 417, 

101 S. Ct. 690, 695 (1981)), including the perspective “of a reasonable, cautious officer, 

guided by his experience and training,” State v. Styles, 362 N.C. 412, 414, 665 S.E.2d 

438, 439 (2008) (quoting Watkins, 337 N.C. at 441, 446 S.E.2d at 70). Other courts 

have found that a defendant’s raised hands can support reasonable suspicion for a 

limited Terry search. See Clark v. Clark, 926 F.3d 972, 979 (8th Cir. 2019) (concluding 

that the defendant’s action of “pull[ing] over and put[ting] his hands outside the 

driver’s side window” supported reasonable suspicion for a Terry investigatory 

seizure and search of the defendant’s vehicle for a gun); State v. King, 206 N.C. App. 

585, 590, 696 S.E.2d 913, 916 (2010) (holding that “the unusual gesture of 

[the d]efendant placing his hands out of his window” supported reasonable suspicion 

for a limited Terry search); cf. State v. Mbacke, 365 N.C. 403, 404–10, 721 S.E.2d 218, 

219–22 (2012) (analogizing the “reasonable to believe” standard from Arizona v. Gant, 

556 U.S. 332, 129 S. Ct. 1710 (2009), to the Terry reasonable suspicion standard to 
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Newby, C.J., concurring

conclude that officer had reason to believe the defendant’s vehicle contained 

additional evidence of the offense of arrest to justify search for handgun while the 

defendant was detained outside the vehicle based on, inter alia, the defendant’s 

furtive behavior of lowering hands off the steering wheel), cert. denied, 568 U.S. 864, 

133 S. Ct. 224 (2012). Therefore, I believe the trial court properly relied on defendant’s 

raised hands as a factor in finding the existence of reasonable suspicion. Otherwise, 

I fully concur with the majority opinion. 
Justice EARLS dissenting.

¶ 30 The sole question before this Court is whether, under “the totality of the 

circumstances as viewed from the standpoint of an objectively reasonable police 

officer,” State v. Wilson, 371 N.C. 920, 926 (2018) (cleaned up) (quoting State v. 

Johnson, 370 N.C. 32, 34–35 (2017)), it would be reasonable for an officer “to believe 

that he [was] dealing with an armed and dangerous individual” after initiating a 

traffic stop of Bryan Xavier Johnson. Terry v. Ohio, 392 U.S. 1, 27 (1968). The 

majority answers in the affirmative. To reach this conclusion, the majority converts 

a jumble of subjective, innocuous, or irrelevant facts into indicia of dangerousness. 

The result is a decision inconsistent with the Fourth Amendment and which fails to 

consider the racial dynamics underlying reasonable suspicion determinations. 

Therefore, I respectfully dissent.

I. Reasonable suspicion under Terry

¶ 31 According to the majority, five factors contribute to the reasonable belief that 

Johnson was armed and dangerous under Terry: “(1) the traffic stop occurred late at 

night (2) in a high-crime area, with (3) defendant appearing ‘very nervous’ to the 

detaining officer to the point that it ‘seem[ed] like his heart [was] beating out of his 

chest a little bit[,]’ with (4) defendant ‘blading his body’ as he accessed the Dodge 

Charger’s center console, and (5) defendant’s criminal record indicating a ‘trend in 

violent crime’ and weapons-related charges.” The majority repeatedly asserts that 
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Earls, J., dissenting

although no one individual factor may be sufficient to justify the search “standing 

alone,” these factors are sufficient when viewed collectively under the “totality of the 

circumstances.” Although I agree with the majority that Terry demands a flexible, 

holistic approach, I cannot join the majority in its refusal to enforce the limits 

imposed by the Fourth Amendment on the State’s authority to conduct warrantless 

searches. Facts which individually do not contribute to reasonable suspicion in 

isolation should not be accorded outsized significance merely because they appear 

alongside other facts which also do not contribute to reasonable suspicion. Even 

viewed under the “totality of the circumstances,” I would hold that the State has 

failed to meet its burden of proving that an objective officer would reasonably believe 

Johnson was armed and dangerous at the time Officer Whitley initiated the search 

of his vehicle. 

1. Presence in a “high crime area” late at night

¶ 32 At the suppression hearing, Officer Whitley described the area in which he 

apprehended Johnson as a “very high crime area, where we have a lot of narcotic 

sales.” A defendant’s presence in a “high crime area” can sometimes be “among the 

relevant contextual considerations in a Terry analysis.” Illinois v. Wardlow, 528 U.S. 

119, 124 (2000) However, a defendant’s presence in a “high crime area” is only 

probative when it is paired with conduct suggesting the defendant’s presence is in 

some way connected to the criminal conduct known to occur in that area. There must 
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Earls, J., dissenting

be some basis for suspecting the individual was someone other than one of the 

countless innocent people whose daily routines involve spending time in a “high crime 

area” for the individual’s mere presence to be relevant.

¶ 33 Thus, in State v. Butler, it was not the defendant’s mere presence on a street 

corner the arresting officer “knew . . . to be a center of drug activity” which contributed 

to reasonable suspicion, it was the defendant’s presence coupled with the fact that 

the defendant “was seen in the midst of a group of people congregated on a corner 

known as a ‘drug hole’ ” and that “upon making eye contact with the uniformed 

officers, [the] defendant immediately moved away, behavior that is evidence of flight.” 

331 N.C. 227, 233 (1992). Similarly, in State v. Jackson, the defendant’s presence in 

a “high crime area” contributed to reasonable suspicion because the defendant “stood 

at 9:00 p.m. in a specific location known for hand-to-hand drug transactions . . . 

walked in [the] opposite direction[ ] upon seeing a marked police vehicle approach . . . 

came back very near to the same location once the patrol car passed . . . [and] walked 

[away] a second time upon seeing [the police officer] return.” 368 N.C. 75, 80 (2015). 

In both cases, it was the combination of a defendant’s presence in a “high crime area” 

with behavior suggestive of the defendant’s personal involvement in the area’s 

criminal activities which made the defendant’s geographic location relevant under 

Terry.

¶ 34 By contrast, in this case, Johnson did not do anything to suggest his presence 
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Earls, J., dissenting

in a “high crime area” was in any way motivated by or connected to the alleged 

prevalence of drug trafficking in that neighborhood. He was simply driving his vehicle 

down Central Avenue in Charlotte. He was stopped because the license plate on his 

vehicle was not registered to the type of vehicle he was driving. He was not observed 

interacting with suspected drug dealers, visiting places where drug transactions were 

known to occur, or attempting to evade the police. Nothing Officer Whitley observed 

distinguished Johnson from the many other people who undoubtedly pass through 

this “high crime area” with no intention of doing anything other than getting from 

one location to the next. In my view, this renders Johnson’s physical location 

irrelevant to the Terry analysis. 

¶ 35 There is nothing reasonable about believing that an individual is armed and 

dangerous merely because he drove his vehicle down a particular street, no matter 

where that street is located. The majority’s rejoinder that Johnson’s location is 

probative when considered “in the totality of the circumstances” does not answer the 

question of why Johnson’s presence in this particular location in any way suggested 

he was armed and dangerous. Johnson’s conduct did nothing to convert Officer 

Whitley’s generalized observation about the nature of the area into a reasonable, 

particularized, and individualized suspicion regarding Johnson. The majority’s 

position risks “making the simple act of [driving] in one’s own neighborhood a possible 

indication of criminal activity.” Jackson, 368 N.C. at 80.
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Earls, J., dissenting

¶ 36 In his brief, Johnson does not appear to directly challenge the trial court’s 

implied finding of fact that the area he was travelling through was fairly 

characterized as a “high crime area.” However, in a different case, it may be necessary 

for this Court to define what a “high crime area” is, what competent evidence is 

necessary to support the finding that a defendant was located in one, and the 

circumstances under which a defendant’s presence in a “high crime area” supports an 

officer’s reasonable suspicion that he is armed and dangerous. 

¶ 37 For example, the First Circuit has held that in order for a defendant’s location 

in a “high crime area” to contribute to reasonable suspicion, the government is 

required to present evidence tending to prove “(1) [a] nexus between the type of crime 

most prevalent or common in the area and the type of crime suspected in the instant 

case, (2) limited geographic boundaries of the ‘area’ or ‘neighborhood’ being evaluated,

and (3) temporal proximity between evidence of heightened criminal activity and the 

date of the stop or search at issue.” United States v. Wright, 485 F.3d 45, 53–54 (1st 

Cir. 2007) (citations omitted). Further, while it is certainly appropriate to credit “the 

testimony of police officers[ ] describing their experiences in the area” in determining 

whether an area is a “high crime area,” I would agree with the First Circuit that we 

should also look to data and other sources of information to ensure the reasonableness 

inquiry at the heart of the Terry analysis remains tethered to objective facts. Id. at 

54; see also N. Mariana Islands v. Crisostomo, 2014 WL 7072149, at *2 (N. Mar. I. 
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Earls, J., dissenting

Dec. 12, 2014) (“[A]n officer’s confident body language and tone of voice are not 

enough to prove a high-crime claim. Allowing such a finding solely through 

unsubstantiated testimony (no matter how confidently stated) would give police the 

power to transform ‘any area into a high crime area based on their unadorned 

personal experiences.’ ” (quoting United States v. Montero-Camargo, 208 F.3d 1122, 

1143 (9th Cir. 2000))). 

¶ 38 Further, I share the concern expressed by many courts that encouraging 

reliance on undefined, amorphous signifiers like “high crime area” as a proxy for 

suspected criminal activity risks subjecting identifiable racial minority communities 

to disproportionate, invasive, and unlawful searches. See, e.g., United States v. 

Caruthers, 458 F.3d 459, 467 (6th Cir. 2006) (“[L]abeling an area ‘high-crime’ raises 

special concerns of racial, ethnic, and socioeconomic profiling.”); Montero-Camargo, 

208 F.3d at 1138 (“The citing of an area as ‘high-crime’ requires careful examination 

by the court, because such a description, unless properly limited and factually based, 

can easily serve as a proxy for race or ethnicity.”). There is research demonstrating 

that the reported rate of crime in a particular geographic area is driven not only by 

the actual incidence of criminal conduct in that area, but also by law enforcement’s 

choices regarding where and how to conduct enforcement activities. See Sandra G. 

Mayson, Bias in, Bias Out, 128 Yale L.J. 2218, 2253 (2019) (“Blacks are more likely 

than others to be arrested in almost every city for almost every type of crime. 
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Earls, J., dissenting

Nationwide, black people are arrested at higher rates for crimes as serious as murder 

and assault, and as minor as loitering and marijuana possession.”); see also K. Babe 

Howell, Prosecutorial Discretion and the Duty to Seek Justice in an Overburdened 

Criminal Justice System, 27 Geo. J. Legal Ethics 285, 298 (2014) (“It is the police who 

choose what areas to target, who respond to calls, and who make the initial decision 

whether to make an arrest or issue an informal warning when minor misconduct 

occurs.”). My concern is especially acute in this case because Officer Whitley “did not 

observe [defendant] engage in any type of behavior that is consistent with [the 

criminal] activity” thought to occur with greater frequency in the area where he was 

apprehended. United States v. Beauchamp, 659 F.3d 560, 570 (6th Cir. 2011). 

¶ 39 I have similar concerns regarding the majority’s reliance on the fact that “the 

traffic stop took place late at night.” It is correct that this Court has previously held 

the time of night when a stop occurs to be “an appropriate factor for a law enforcement 

officer to consider in formulating a reasonable suspicion.” State v. Watkins, 337 N.C. 

437, 442 (1994). Yet we have also recognized a difference between being present late 

at night in a place where it is expected people might be found at that hour and being 

present late at night somewhere where one’s presence is anomalous. Thus, in 

Watkins, we distinguished between a defendant “standing in an open area between 

two apartment buildings . . . in Greensboro, an urban area, shortly after midnight” 

and a defendant who was observed “proceeding slowly on a dead-end street of locked 
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Earls, J., dissenting

businesses at 12:50 a.m. in an area with a high incidence of property crime.” Id. The 

latter circumstance was indicative of reasonable suspicion while the former was not. 

There must be some other objective basis from which to infer that the individual is 

travelling late at night for a nefarious purpose and is not just a parent heading home 

to tuck his or her children in after a late-night shift.

¶ 40 In this case, there is no evidence indicating Johnson’s presence or behavior was 

unusual or alarming for the place and hour. There is no evidence that individuals 

who drive down Central Avenue late at night are disproportionately likely to be 

armed and dangerous. Nor is there any evidence that individuals who possess guns 

and present a danger to law enforcement officers tend to travel at night. Cf. United 

States v. Williams, 808 F.3d 238, 249 (4th Cir. 2015) (“This record does not make an 

evidentiary connection between nocturnal travel and drug trafficking . . . . Absent 

such a connection, that the traffic stop of [the defendant] occurred at about 12:37 a.m. 

does not contribute to a reasonable, articulable suspicion for extending the otherwisecompleted traffic stop . . . .”). Accordingly, I would hold that neither the location nor 

the time of the traffic stop contribute to a reasonable suspicion that Johnson was 

armed and dangerous under Terry.

2. Nervousness

¶ 41 We have previously held that nervousness can be “an appropriate factor to 

consider when determining whether a basis for a reasonable suspicion exists.” State 
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Earls, J., dissenting

v. McClendon, 350 N.C. 630, 638 (1999). But nervousness only supports an officer’s 

reasonable suspicion when it is something “more than ordinary nervousness.” Id. at 

639. “This Court has expressly determined that general nervousness is not significant 

to reasonable suspicion analysis because many people become nervous when stopped 

by a [law enforcement officer].” State v. Reed, 373 N.C. 498, 515 (2020) (cleaned up) 

(emphasis added) (quoting State v. Pearson, 348 N.C. 272, 276 (1998)). We have 

treated nervousness as supporting an officer’s reasonable suspicion when the 

defendant “was fidgety and breathing rapidly, sweat had formed on his forehead, he 

would sigh deeply, and he would not make eye contact with the officer,” but we also 

explained that when “the nervousness of the defendant [is] not remarkable . . . it 

d[oes] not support a reasonable suspicion.” McClendon, 350 N.C. at 639.

¶ 42 None of the twenty-four findings of fact contained in the trial court’s order on 

the motion to suppress included any reference to Johnson’s alleged nervousness. 

While the trial court was not required by statute to reduce all its findings to writing, 

it goes beyond the scope of appellate review to accord deference to a supposed fact 

based solely on the officer’s observations of the witness’s demeanor, when the trial 

court itself made no such finding. Silence by the trial court is not endorsement of the 

witness’ veracity nor does it give the appellate court any guidance as to the weight to 

accord that testimony. 

¶ 43 Finally, even if it is proper to consider evidence not incorporated into any of 
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Earls, J., dissenting

the trial court’s express findings of fact, the record does not support the conclusion 

that Johnson was unusually or remarkably nervous. The only evidence attesting to 

Johnson’s level of nervousness is Officer Whitley’s testimony that he “seemed very 

nervous and to the point of where, as you can imagine, his heart’s beating, but it 

seems like his heart is beating out of his chest a little bit. He was very nervous. . . . 

you could see his heart rising in his chest.” However, Johnson did not exhibit any 

physical symptoms of anything other than an ordinary response to an understandably 

stressful situation. He did not act in an inexplicable or aberrant manner, he did not 

appear disoriented or disheveled, and he did not do anything other than respond to 

Officer Whitley’s questions appropriately and intelligibly. Absent any evidence that 

Johnson was inordinately nervous, Officer Whitley’s bare assertion that Johnson was 

“very nervous” in no way contributes to the reasonable suspicion that he was armed 

and dangerous.

¶ 44 Other courts have expressed skepticism regarding the probative value of an 

officer’s observation that the defendant was nervous during a traffic stop. See, e.g., 

United States v. Fernandez, 18 F.3d 874, 879 (10th Cir. 1994) (“We have repeatedly 

held that nervousness is of limited significance in determining reasonable suspicion 

and that the government’s repetitive reliance on the nervousness of either the driver 

or passenger as a basis for reasonable suspicion ‘in all cases of this kind must be 

treated with caution.’ ” (cleaned up) (quoting United States v. Millan-Diaz, 975 F.2d 
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Earls, J., dissenting

720, 722 (10th Cir. 1992))). And with good reason. Common sense tells us it is not at 

all surprising that an individual might look and feel nervous, even “very nervous,” 

when interacting with a law enforcement officer in this context. See, e.g., United 

States v. Beck, 140 F.3d 1129, 1139 (8th Cir. 1998) (“It certainly cannot be deemed 

unusual for a motorist to exhibit signs of nervousness when confronted by a law 

enforcement officer.”); United States v. Wood, 106 F.3d 942, 948 (10th Cir. 1997) (“It 

is certainly not uncommon for most citizens—whether innocent or guilty—to exhibit 

signs of nervousness when confronted by a law enforcement officer.”); State v. 

Schlosser, 774 P.2d 1132, 1138 (Utah 1989) (“When confronted with a traffic stop, it 

is not uncommon for drivers and passengers alike to be nervous and excited and to 

turn to look at an approaching police officer.”). Even physical manifestations of 

nervousness do not necessarily warrant the inference that an individual is hiding 

something. See State v. Anderson, 258 Neb. 627, 641 (2000) (“Trembling hands, a 

pulsing carotid artery, difficulty locating a vehicle registration among documents in 

a glove box, and hesitancy to make eye contact are signs of nervousness which may 

be displayed by innocent travelers who are stopped and confronted by an officer.”). 

¶ 45 Our traditional distinction between general nervousness—which does not 

support an officer’s reasonable suspicion—and extreme nervousness—which may 

support an officer’s reasonable suspicion—reflects this reality. The majority’s 

decision to rely upon Johnson’s nervousness in this case, based solely upon Officer 
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Earls, J., dissenting

Whitley’s testimony that he observed Johnson’s heart “beating out of his chest a little 

bit,” erodes that distinction and turns an entirely understandable physiological 

response into a ground for conducting a warrantless search. 

¶ 46 There are numerous completely innocent reasons why any person might be 

nervous during a traffic stop. There are also specific reasons why someone who looks 

like Johnson—a large Black man—might be especially nervous during a traffic stop. 

Black people are more likely than white people to be pulled over while driving, more 

likely than white people to be subjected to investigatory stops, and more likely than 

white people to be shot and killed by law enforcement officers.

1 Any driver who has 

followed the news in recent years would have learned the names of numerous people 

of color killed during or after routine traffic stops. These encounters can be fraught 

under any circumstance and especially so when the driver fears that one false step 

might cost him his life. Thus, I cannot agree with the majority that Johnson’s 

purported level of apparent nervousness, as described by the officer’s testimony in 

 

1 See, e.g., Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police 

Stops Across the United States, 4 Nature Hum. Behav. 736, 736 (July 2020), 

https://doi.org/10.1038/s41562-020-0858-1 (“We assessed racial disparities in policing in the 

United States by compiling and analysing a dataset detailing nearly 100 million traffic stops 

. . . . Our results indicate that police stops and search decisions suffer from persistent racial 

bias . . . .”); Wesley Lowery, A Disproportionate Number of Black Victims in Fatal Traffic 

Stops, Washington Post (Dec. 24, 2015), https://www.washingtonpost.com/national/adisproportionate-number-of-black-victims-in-fatal-traffic-stops/2015/12/24/c29717e2-a344-

11e5-9c4e-be37f66848bb_story.html (finding that one third of all individuals shot and killed 

during traffic stops in 2015 were Black, “making the roadside interaction one of the most 

common precursors to a fatal police shooting of a black person in 2015”).
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Earls, J., dissenting

this case, can support a rational inference that he was armed and dangerous. 

3. Blading

¶ 47 The majority holds that Officer Whitley’s testimony Johnson was “blading [his 

body] . . . as if he [was] trying to conceal something” contributes to reasonable 

suspicion under Terry. To be precise, this fact—which the trial court did not explicitly 

find—is based entirely upon Officer Whitley’s perception that Johnson did not reach 

into his center console in the way Officer Whitley believed a driver “typically” would. 

I do not dispute that “an obvious attempt to hide or to evade the authorities can be a 

factor in the calculus of reasonable suspicion.” United States v. Woodrum, 202 F.3d 1, 

7 (1st Cir. 2000). However, I disagree with the majority that Officer Whitley’s 

subjective perception that Johnson “bladed” his body contributes to reasonable 

suspicion in this case.

¶ 48 The significance of Johnson’s motion in retrieving his paperwork from the 

center console of his vehicle lies entirely in the meaning a reasonable officer would 

ascribe to the motion, not in the motion itself. “[N]ot every slouch, crouch, or other 

supposedly furtive movement justifies a stop. The proper inquiry is case-specific and 

context-contingent, and the surrounding circumstances ordinarily will tell the tale.” 

Id. (citation omitted). Here, Johnson’s body movement is probative only insofar as a 

reasonable officer would perceive his movement to be an effort to shield a weapon 

from view. For this reason, it is notable that when Johnson supposedly “bladed” his 
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Earls, J., dissenting

body to shield the contents of his center console from Officer Whitley’s view, there 

was another officer standing on the other side of the vehicle looking in through the 

passenger side window. Further, it is not as if Johnson’s movements were unnatural 

or disconnected from the events of that moment. He was a large man reaching across 

his body while remaining seated in his vehicle. The fact that he lifted his shoulders 

off the seat to do is not a reason to conclude he was armed and dangerous.

¶ 49 We should be hesitant to rely so completely on the subjective perceptions of an 

individual officer whose interpretation of a body motion that is not inherently 

suspicious is the sole basis for the conclusion that Johnson’s movements contributed 

to reasonable suspicion. We should be especially hesitant to do so when the trial court 

did not enter an express finding of fact that Johnson “bladed” his body. This Court is 

not a factfinding tribunal, and it stretches both our competence and authority when 

we “[i]nfer[ ] additional findings, ones that go beyond what the trial court actually 

found, to rescue an otherwise insufficient ruling of the trial court.” State v. Johnson, 

269 N.C. App. 76, 88–89 (2019) (Murphy, J., dissenting).2 Further, “an officer’s 

impression of whether a movement was ‘furtive’ may be affected by unconscious racial 

 

2 The majority asserts that it is appropriate to imply facts not expressly found by the 

trial court because the trial court noted its ruling was “based on the totality of [the] 

circumstances, including but not limited to [the enumerated facts].” Similarly, the majority 

argues its factfinding endeavor is appropriate because Officer Whitley’s testimony was 

“uncontroverted.” But uncontroverted testimony is not the same as an established fact—it is 

for the trial court to “itself determine what pertinent facts are actually established by the 

evidence before it.” Coble v. Coble, 300 N.C. 708, 712 (1980).
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biases,” which is an additional reason to leave factfinding, which often involves 

credibility determinations, to the trial court. Floyd v. City of New York, 959 F. Supp. 

2d 540, 578 (S.D.N.Y. 2013). 

¶ 50 Even if it is proper to treat Officer Whitley’s testimony regarding Johnson’s 

“blading” his body as an express finding of fact, this fact adds little to the reasonable 

suspicion calculus. Cf. State v. Johnson, 2006 WI App 15, ¶ 18, 288 Wis. 2d 718, 709 

N.W.2d 491, aff’d, 2007 WI 32, 299 Wis. 2d 675, 729 N.W.2d 182 (concluding that the 

defendant’s “furtive” movements did not support reasonable suspicion he was armed 

and dangerous because “[t]he officers pulled [the defendant] over for traffic violations

. . . and not for a crime[,]” and the officers “had no prior contacts with [the defendant]

that would suggest that he would be armed or otherwise dangerous”). This Court has 

never before recognized “blading” as a behavior which gives rise to the reasonable 

inference that an individual is armed and dangerous. In the only other Court of 

Appeals decision previously recognizing “blading” as a contributing factor under 

Terry, the defendant “bladed” his body in such a way as to prevent the arresting 

officer from viewing his hip, where a firearm is often carried, immediately after 

making eye contact with the officer. State v. Malachi, 264 N.C. App. 233, 238, appeal 

dismissed, 372 N.C. 702 (2019). In that case, there was no other reason for the 

defendant to move his body in that manner. Furthermore, the officer in that case 

testified about the basis for his suspicion including training he received that a person 
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with a gun often turns his hip to hide the weapon. See Malachi, 264 N.C. App. at 237-

38. Finally, officers had received an anonymous tip that someone wearing a red shirt 

and black pants had put a gun in his waistband. Id., at 234. By contrast, in this case, 

there was no tip, there was no testimony regarding the officer’s training, and most 

importantly, Johnson was moving his body to accomplish an apparent, noncriminal 

purpose. Indeed, courts in other jurisdictions have concluded that movements which 

are contextually appropriate and not inherently suspect do not contribute to the 

reasonable suspicion analysis. Cf. United States v. Hood, 435 F. Supp. 3d 1, 8 (D.D.C. 

2020) (rejecting the government’s “blading” argument because “the positioning of [the 

defendant’s] body seems consistent with an individual who was crossing a street at a 

diagonal from north to south”). Therefore, I would not consider Johnson’s alleged 

“blading” significant in the reasonable suspicion analysis. 

4. Prior record

¶ 51 The majority finds probative Officer Whitley’s testimony that he believed 

Johnson was “armed and dangerous” after he reviewed Johnson’s criminal record and 

discerned a “trend in violent crime.” I would conclude this finding is unsupported by 

competent evidence in the record and thus cannot contribute to the reasonable 

suspicion analysis in this case.

¶ 52 At the suppression hearing, Officer Whitley could not recall the dates of the 

entries he viewed in Johnson’s record, whether those entries documented charges or 
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convictions, or the total number of charges or convictions Johnson’s record contained. 

He did recall that that the dates of these entries “started somewhere around 2003 to 

the 2009 mark.” In 2009, it might have been reasonable to conclude, based on this 

evidence, that Johnson’s criminal record indicated a “trend in violent crime.” In 2017, 

when the stop occurred, eight years had passed since Johnson had been charged or 

convicted of any crime, let alone a violent one. Notwithstanding this lengthy gap, the 

majority concludes Johnson’s criminal record supports the reasonable belief he was 

armed and dangerous in 2017. 

¶ 53 A trend implies some accounting for recent events. Otherwise, it would be 

correct to say that the Seattle Supersonics have demonstrated a “trend in winning

basketball games,” even though they ceased to exist around the same time as 

Johnson’s last conviction. By concluding that it would be reasonable for an officer to 

ignore the eight-year period during which Johnson maintained a clean record 

immediately preceding the traffic stop, the majority suggests that no matter how far 

back in time an individual’s prior charges and convictions occurred, no matter how 

successful that individual has been in re-entering society, it is reasonable for an 

officer to believe that an individual with a prior record is a threat. At a minimum, we 

should make clear that “the age of [a defendant’s] convictions is a factor to consider 

in determining their relevance” in the Terry analysis to avoid lending the impression 

that once an individual has been arrested or convicted of some crime, he is marked 
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as presumptively dangerous for life. United States v. Scott, 818 F.3d 424, 431 (8th 

Cir. 2016); see also United States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008) (holding

with respect to warrant application based in part on 18-year-old conviction that “even 

if [the defendant’s] prior conviction were relevant to the analysis, it should have only 

been marginally relevant because the conviction was stale”). 

¶ 54 Under these circumstances—where the defendant’s last conviction occurred 

eight years prior to the traffic stop and there is no indication the defendant continued 

to engage in criminal activity in the intervening years—I disagree with the majority 

that Johnson’s criminal record supports the reasonable belief he was armed and 

dangerous at the time of the traffic stop, “[s]tanding alone” or otherwise. I also note 

that prior convictions are not evenly distributed among all segments of the population 

and that the distribution of convictions does not necessarily track meaningful 

distinctions in the frequency or severity of criminal conduct engaged in by members 

of different racial or ethnic groups. See, e.g., Terry v. United States, 141 S. Ct. 1858, 

1865 (2021) (“Under [federal] law, crack cocaine sentences were about 50 percent 

longer than those for powder cocaine. Black people bore the brunt of this disparity.” 

(citation omitted)); Mandala v. NTT Data, Inc., 975 F.3d 202, 220 (2d Cir. 2020) (“As 

the statistics show, there are significant racial disparities in arrest, conviction, and 

incarceration rates in this country.”). Absent further clarification from this Court 

regarding the significance of an individual’s prior criminal record, I worry that our 
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decision today will allow historic racial disparities in policing to perpetuate ongoing 

ones. 

¶ 55 One of the fundamental principles of our common law jurisprudence is that we 

punish acts, not an individual merely because of his or her status. See, e.g., Robinson

v. California, 370 U.S. 660 (1962) (holding a California law making it illegal to be a 

drug addict unconstitutional because the mere status of being a drug addict was not 

an act and thus not criminal.). The majority’s conclusion that Johnson’s prior criminal 

record contributes to reasonable suspicion—which treats his more recent, lengthier 

period of non-involvement with the criminal justice system as irrelevant—conveys 

the unmistakable impression that “felon” is a lifelong status which renders an 

individual’s choices and behavior irrelevant. Moreover, the majority’s reasoning 

contributes to a legal reality in which an individual’s felony conviction is used to 

justify according an entire class of people diminished constitutional protections, going 

well beyond the legal debilities imposed by our constitution and statutes on 

individuals who have been convicted of a felony offense. 

5. Raising hands

¶ 56 The majority notes that its conclusion there was reasonable suspicion to search 

Johnson’s vehicle is in no way predicated on the fact that Johnson placed his hands 

up in the air when he was stopped by Officer Whitley. I wholeheartedly agree that 

Johnson’s conduct in this respect should be given no probative weight in the Terry 
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analysis. I would also go a step further and resolve the “real or perceived conundrum” 

that arises when the State claims that a defendant’s raising his hands when 

surrendering to a law enforcement officer is evidence supporting a reasonable 

suspicion that the defendant is armed and dangerous. 

¶ 57 The very obvious problem with this claim is that raising one’s hands in this 

manner is an entirely natural way for one person to signal to another that they mean 

no harm. Indeed, police officers will often order an individual suspected of being 

armed and dangerous to raise his hands, and the individual’s failure to do so would 

certainly contribute to reasonable suspicion under Terry. See United States v. Soares, 

521 F.3d 117, 121 (1st Cir. 2008) (concluding there was reasonable suspicion where 

the defendant “refused repeated orders to remain still and keep his hands in [the 

officer’s] view”). At the same time, courts have held that it contributes to reasonable 

suspicion when a defendant moves his hands out of view of the arresting officer. See 

United States v. Johnson, 212 F.3d 1313, 1316–17 (D.C. Cir. 2000) (concluding that 

the defendant’s “shoving down” motions with his hands were motions “which a 

reasonable officer could have thought were actually suggestive of hiding (or 

retrieving) a gun”). If raising one’s hands contributes to reasonable suspicion, and 

failing to raise one’s hands contributes to reasonable suspicion, then there is always 

reasonable suspicion. 

¶ 58 The concurrence treats Johnson’s hand raising as the majority treats every 
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other fact it believes contributes to reasonable suspicion—according to the 

concurrence, while raising one’s hands may sometimes be an innocent gesture, it 

takes on talismanic significance when considered “in the totality of the 

circumstances.” The assertion is that “[l]ike other movements, which may be innocent 

standing alone, with the proper testimony the act of raising one’s hands can be a 

factor to support an officer’s reasonable suspicion.” But the “proper testimony” 

referred to here is only the officer’s subjective belief that the conduct was suspicious. 

This is not what the law requires. To protect Fourth Amendment rights this Court 

must ask whether the officer can articulate a reasonable, objective basis for his 

suspicion. Allowing “the proper testimony” to magically transform innocent acts into 

suspicious ones makes those rights illusory. As we recently stated in Reed,

An officer may, consistent with the Fourth Amendment, 

conduct a brief, investigatory stop when the officer has a 

reasonable, articulable suspicion that criminal activity is 

afoot. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S. Ct. 673, 

145 L. Ed. 2d 570 (2000). An obvious, intrinsic element of 

reasonable suspicion is a law enforcement officer's ability 

to articulate the objective justification of his or her 

suspicion. . . . [We cannot] conveniently presuppose a 

fundamental premise which is lacking here in the 

identification of reasonable, articulable suspicion: the 

suspicion must be articulable as well as reasonable. 

Reed, 373 N.C. at 514. Today’s decision fails to adhere to this recent precedent.

¶ 59 The majority pays lip service to our previously stated “concern about the 

inclination of the [State] toward using whatever facts are present, no matter how 
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innocent, as indicia of suspicious activity.” State v. Nicholson, 371 N.C. 284, 291 n.4 

(2018) (quoting United States v. Foster, 634 F.3d 243, 248 (4th Cir. 2011)). But the 

Fourth Amendment requires us to avoid “plac[ing] undue weight on [the arresting 

officer’s] subjective interpretation of the facts rather than focusing on how an 

objective, reasonable officer would have viewed them.” Nicholson, 371 N.C. at 291–

92. In this case, the only “evidence” linking Johnson’s hand motion to a risk of 

dangerousness was Officer Whitley’s testimony that “typically when people [raise 

their hands in this manner], sometimes it can mean that they have a gun.” We should 

not blindly acquiesce to one officer’s subjective interpretation, which runs contrary to 

common sense and which makes the individuals most likely to experience trepidation 

when interacting with law enforcement more likely to be deemed suspicious because 

of their efforts to mitigate the risk of an encounter turning violent. Absent specific 

evidence illustrating why a hand gesture commonly understood to convey that the 

individual making the gesture means no harm should instead be understood as 

evidence that the individual is a threat, I would hold that this hand gesture does not 

contribute to reasonable suspicion under Terry.

II. Conclusion

¶ 60 Johnson did everything he was supposed to do when he was stopped by police 

officers. When he saw flashing lights in his rearview mirror, he pulled over “fairly 

immediately.” When an officer approached his vehicle, he placed his hands up and 
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out of the driver side window to show that he was unarmed. When the officer asked 

him why his license plate did not match the registration for his vehicle, he explained 

that he had purchased the vehicle earlier that day and reached into his center console 

to retrieve corroborating paperwork, including a bill of sale. When the officer asked 

him to step out of his vehicle, he stepped out of his vehicle. When the officer asked 

him to consent to a frisk for weapons, he consented. The officer found nothing 

suspicious on his person. 

¶ 61 Under Terry, our analysis is supposed to focus on the behavior of each 

individual defendant under the circumstances of each individual case, but in this case 

nothing Johnson did mattered. Rather than hold the State to its burden under the 

Fourth Amendment, the majority reasons that the whole of the evidence supporting 

reasonable suspicion is greater than the sum of the parts. In doing so, the majority 

converts a generalized hunch into individualized suspicion, eroding the Fourth 

Amendment rights of all North Carolinians in the process. The majority also ignores, 

and may well exacerbate, issues relating to racially disparate policing, issues which 

have been forthrightly examined by many courts confronted with similar kinds of 

Terry claims. Therefore, respectfully, I dissent.

Justice HUDSON joins in this dissenting opinion.