An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance with 

the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA14-1324

Filed: 15 September 2015

Forsyth County, Nos. 12 CRS 55869-71, 12 CRS 59535-37, 39

STATE OF NORTH CAROLINA

v.

MICHEAL ANTONY1 PAIGE

Appeal by defendant from judgment entered 26 February 2014 by Judge Edwin 

G. Wilson in Forsyth County Superior Court. Heard in the Court of Appeals 5 May 

2015.

Roy Cooper, Attorney General, by Marc X. Sneed, Assistant Attorney General, 

for the State.

Staples Hughes, Appellate Defender, by Kathryn L. VandenBerg, Assistant 

Appellate Defender, for defendant-appellant. 

DAVIS, Judge.

Michael Anthony Paige (“Defendant”) appeals from his convictions for (1) 

possession with intent to sell or deliver cocaine; (2) three counts of possession with 

intent to sell or deliver heroin; (3) possession of marijuana up to one half of an ounce; 

 

1 Both Defendant and the State spell Defendant’s name “Michael Anthony Paige” in their 

briefs. However, Defendant’s name is spelled “Micheal Antony Paige” in the trial court’s judgment. 

Both spellings refer to the same person.
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(4) possession of a firearm by a felon; (5) driving with a revoked license; (6) carrying 

a concealed gun; (7) maintaining a vehicle for the purpose of selling a controlled 

substance; (8) two counts of selling heroin; (9) two counts of delivering heroin; (10) 

trafficking in opium or heroin by possession; and (11) trafficking in opium or heroin 

by transportation. On appeal, he contends that the trial court erred in (1) denying 

his motion to suppress; and (2) admitting evidence inadmissible under Rule 404(b) of 

the North Carolina Rules of Evidence. After careful review, we reverse the trial 

court’s denial of Defendant’s motion to suppress, vacate the trial court’s judgment in 

part, and remand for resentencing.

Factual Background

The State presented evidence at trial tending to establish the following facts:

From 9:00 p.m. on 14 June 2012 through the early morning hours of 15 June 2012, 

Detective Kimberly Williams (“Detective Williams”), a detective with the WinstonSalem Police Department’s Special Investigations Unit, was performing surveillance 

of Combs Barber Shop (“the Shop”), an establishment located on Waughtown Street

in Winston-Salem, North Carolina, after having received an anonymous telephone 

tip one to three months earlier that a man named Shae Collins (“Collins”) — who had 

recently been released from prison — was selling drugs out of the Shop. Detective 

Williams was familiar with both Collins and the Shop as she had arrested Collins for 
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trafficking in cocaine while executing a search warrant at the Shop twelve years 

earlier in 2000.

Detective Williams observed the Shop from her Jeep Cherokee, which was 

parked across the street approximately 40-50 feet away. She noted that the Shop’s

“Open” sign was not illuminated but that Collins was inside. During the course of 

her surveillance, she saw several individuals go into the Shop and exit shortly 

thereafter without appearing to have received haircuts.

At 10:59 p.m., Detective Williams saw Defendant arrive in a silver Pontiac

Vibe. She observed “[Defendant] got out of his car, and . . . walk[ ] into the hair salon, 

which [Collins] was in . . . at this time, not in the Combs Barber Shop. And they went 

inside and, you know, spoke or whatever they were doing. I couldn’t see inside the 

business.” Collins then came outside and began speaking with two men standing on 

the corner by the Shop. Shortly thereafter, Defendant exited the hair salon and joined 

the conversation. He then got back into his Pontiac Vibe and drove away from the 

Shop in the direction of the intersection of South Martin Luther King Road and 

Thomasville Road.

Detective Williams called Detective R.J. Santiago (“Detective Santiago”), who 

at the time was several blocks away from the Shop in an unmarked patrol vehicle, 

and ordered him to follow Defendant’s vehicle. Detective Santiago then began 
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pursuing Defendant as he crossed the intersection of South Martin Luther King Road 

and Thomasville Road.

Just before Defendant arrived at the Old Lexington Road intersection, he took 

a sharp turn into the parking lot of a closed business, and Detective Santiago, 

believing that Defendant was engaging in a counter-surveillance tactic, continued to 

drive past the business. Detective Santiago reestablished pursuit shortly thereafter 

and observed Defendant approach the Highway 421/52 interchange and merge “onto 

the on-ramp to go onto 421 northbound and then g[et] back on the on-ramp to go to

52 southbound, and then g[et] back on the on[-]ramp to go to 421 southbound, and 

then g[et] back on the on[-]ramp to go to 52 northbound to continue to go up north.”

Based on his belief that Defendant was once again engaging in countersurveillance tactics, Detective Santiago radioed other officers in the area, including 

Detective Williams, and reported Defendant’s actions. Upon hearing Detective 

Santiago’s report, Detective Williams issued a general order over the radio that 

Defendant’s car be stopped, and Corporal J.P. Timberlake (“Corporal Timberlake”), 

who was also in the vicinity, pulled over Defendant’s vehicle on University Parkway.

Corporal Timberlake instructed Defendant to move his vehicle to a nearby 

parking lot for safety reasons. Corporal Timberlake then exited his patrol car,

approached the driver’s side of Defendant’s vehicle, and asked Defendant for his 
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Opinion of the Court

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driver’s license. Defendant told Corporal Timberlake that the Pontiac Vibe belonged 

to his aunt.

As Corporal Timberlake proceeded to perform a computer check on Defendant’s

driver’s license, other patrol officers arrived at the scene. One of the officers — a K9 officer who was not identified by name at trial — had his canine conduct an “exterior 

sniff” of Defendant’s vehicle. While the canine was doing so, Corporal Timberlake 

asked Defendant if he could search his vehicle. Defendant denied this request.

The canine then alerted to the presence of narcotics at which point Corporal 

Timberlake informed Defendant that he was going to search both his vehicle and his 

person and asked him if there was “anything illegal in the car[.]” Defendant told 

Corporal Timberlake that he had a .25-caliber Titan handgun in his back right pants 

pocket, which Corporal Timberlake secured. Corporal Timberlake then placed 

Defendant under arrest for carrying a concealed gun.

Upon searching Defendant’s vehicle, Corporal Timberlake discovered and 

seized two clear bags containing a white powder — later identified as cocaine —

wedged between the driver’s seat and the center console. Corporal Timberlake also 

discovered a “single bud of marijuana” and a prescription pill bottle containing 13
STATE V. PAIGE

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unknown pills as well as several “bindles”2 of a substance later identified as heroin

under the front passenger seat.

Approximately three months later3, on 12 September 2012, Detective Matt 

Ridings (“Detective Ridings”) with the Kernersville Police Department’s Vice 

Narcotics Unit was ordered by his supervising officer, Detective Blair Osborne

(“Detective Osborne”), to meet with a confidential informant who would introduce 

him to an individual known as “Mike” who, in turn, would sell heroin to Detective 

Ridings. The sale was scheduled to take place at 9:00 p.m. that evening at a

prearranged location in Kernersville.

Detective Ridings and the informant drove in Detective Ridings’ Dodge 

Durango to the meeting place. After parking and waiting for several minutes,

Defendant arrived by himself in the same silver Pontiac Vibe that he had been driving 

during the 15 June 2012 incident in Winston-Salem. Defendant got out of the vehicle 

and approached the passenger side of the Durango. The informant introduced 

Defendant and Detective Ridings to each other, identifying Defendant as “Mike.” 

After a brief conversation, Defendant gave Detective Ridings a plastic bag containing 

 

2 Corporal Timberlake explained that “[a] bindle is a small piece of paper that’s folded up, and 

it’s a common thing for where -- how heroin is stored. If you’re familiar with, like, a BC powder, like 

that, you know how they’re folded up in that -- it’s the same nature, but they’re called bindles, and 

that’s how heroin is commonly packaged.”

3 The details surrounding Defendant’s release after his arrest on 15 June 2012 are unclear 

from the record. It appears, however, that he was released on bond.
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Opinion of the Court

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five bindles of individually packaged doses of heroin in exchange for $120.00.

Detective Ridings was wearing a recording device that recorded the entire 

transaction. Defendant was not arrested at that time in accordance with the plan 

governing the undercover operation.

The following day, Defendant called Detective Ridings and informed him that 

he had more heroin to sell. On 19 September 2012, Detective Ridings called 

Defendant and arranged to purchase more heroin from him. Detective Ridings then 

traveled to a previously arranged location in Kernersville and waited for Defendant 

to arrive. After waiting approximately seven minutes, Defendant arrived in the same

silver Pontiac Vibe. On this occasion, a younger male later identified as Justin 

Washington (“Washington”), was riding in the passenger seat of Defendant’s vehicle.

Defendant exited his vehicle and approached the passenger side of Detective 

Ridings’ Durango. Defendant then sold Detective Ridings 11 white envelopes held 

together by rubber bands — several containing heroin and several containing a 

mixture of heroin and morphine — in exchange for $230.00. Once again, the entire 

transaction was captured on a recording device worn by Detective Ridings.

Defendant got back into his vehicle and began driving away from the parking 

lot. Detective Osborne, who was nearby in an unmarked vehicle, began following

Defendant’s Pontiac Vibe. Detective Osborne radioed a marked patrol vehicle and 

issued a directive that Defendant’s vehicle be stopped. Defendant was pulled over on 
STATE V. PAIGE

Opinion of the Court

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South Main Street, approximately two blocks away from the site of his meeting with

Detective Ridings. Defendant was arrested for sale of a controlled substance. 

Washington was detained and searched, but because no narcotics were found on his 

person he was released. Upon a subsequent search of Defendant’s vehicle, law 

enforcement officers recovered 40 “dosage units” of hydrocodone in the center console.

On 18 November 2013, Defendant was indicted in connection with the 15 June

2012 incident on charges of (1) possession with intent to sell and deliver cocaine (12 

CRS 55869); (2) possession with intent to sell and deliver heroin (12 CRS 55869); (3) 

possession of marijuana up to one half of an ounce (12 CRS 55869); (4) possession of 

a firearm by a felon (12 CRS 55870); (5) driving with a revoked license (12 CRS 

55871); (6) carrying a concealed gun (12 CRS 55871); and (7) maintaining a vehicle 

for the purpose of selling a controlled substance (12 CRS 55871).

That same day, Defendant was also indicted in connection with the 12 

September 2012 incident on charges of (1) selling heroin (12 CRS 59535); (2) 

delivering heroin (12 CRS 59535); and (3) possession with intent to sell and deliver 

heroin (12 CRS 59536). Defendant was also simultaneously indicted on charges 

stemming from the 19 September 2012 incident for (1) selling heroin (12 CRS 59537); 

(2) delivering heroin (12 CRS 59537); (3) possession with intent to sell and deliver 

heroin (12 CRS 59537); (4) maintaining a vehicle for the purpose of selling a controlled 

substance (12 CRS 59538); (5) trafficking in opium or heroin by possession (12 CRS 
STATE V. PAIGE

Opinion of the Court

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59359); (6) trafficking in opium or heroin by transportation (12 CRS 59359); and (7) 

obtaining the status of an habitual felon. The State moved to join all of these offenses, 

and the trial court granted the State’s motion.

A jury trial was held on 24 February 2014 in Forsyth County Superior Court

before the Honorable Edwin G. Wilson. Prior to trial, Defendant filed a motion to 

suppress the evidence seized during the 15 June 2012 traffic stop. The trial court 

denied Defendant’s motion before trial, and Defendant then pled guilty to the offenses 

arising from the 15 June 2012 incident, reserving the right to appeal the denial of his

motion to suppress. Defendant was then tried on the remaining charges.

At the close of all of the evidence, the trial court dismissed the charge of

maintaining a vehicle for the purpose of selling a controlled substance as well as the 

habitual felon charge. The jury found Defendant guilty of all remaining charges. The 

trial court consolidated the convictions, and Defendant was sentenced to 90-117

months imprisonment. Defendant gave oral notice of appeal in open court.

Analysis

I. Denial of Motion to Suppress

Defendant’s first argument is that the trial court erred in denying his motion 

to suppress the evidence seized during the 15 June 2012 traffic stop. Specifically, 

Defendant asserts that because law enforcement officers did not possess the requisite 

reasonable suspicion necessary to initiate the traffic stop, any evidence seized as a 
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Opinion of the Court

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result of the subsequent search of his vehicle constituted “fruit of the poisonous tree.” 

We agree.

“When a motion to suppress is denied, this Court employs a two-part standard 

of review on appeal: The standard of review in evaluating the denial of a motion to 

suppress is whether competent evidence supports the trial court’s findings of fact and 

whether the findings of fact support the conclusions of law.” State v. Jackson, __ N.C. 

__, __, 772 S.E.2d 847, 849 (2015) (citation and quotation marks omitted). In the 

present case, the trial court made only oral findings of fact and conclusions of law in 

denying Defendant’s motion to suppress, which stated, in pertinent part, as follows:

THE COURT: All right. Thank you. I’m going to deny the 

motion to suppress, make the following findings -- it seems 

to me this is just, basically, good detective work.

. . . .

[Detective Williams] knew that Shae Collins was out of 

prison, and she had information, she had a tip that he was 

conducting business again at the Combs Barber Shop. 

Shae Collins was, in fact, the target.

. . . .

About 9:49, a white Buick arrived, and a person 

entered the business. There had been a person in a Lexus 

who entered at the same time as the person who was in the 

Buick. This Lexus had also been parked there.

. . . .

About 10:59, a Buick [sic] Vibe arrives, which the 

defendant was driving. Shae, at this time, was in the salon. 
STATE V. PAIGE

Opinion of the Court

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The detective, from her training and experience at this 

time, had the feeling that what was going on was a 

narcotics transaction. Two people left and went to the 

corner. These were the two people other than Shae and the 

defendant.

Shae locked the barber shop. Shae and the 

defendant went in the hair salon. Shae then went to the 

corner and met the two people who had been in the Buick 

and the Lexus. The conversation ensued.

The defendant then exited the hair salon, came to 

the corner where the four people talked. At that point, the 

defendant left in the Buick [sic].

Aware that this seemed to have all the makings of a 

drug transaction, the detective called for surveillance on 

the Buick [sic].

. . . .

Detective Santiago is called. . . . He followed the 

defendant[.]

. . . .

The defendant went on to Waughtown Street, took a sharp 

turn into a moped area, and Santiago began to notice that 

the defendant was conducting what’s called countersurveillance technically. The defendant went onto 52 

North and began using the cloverleafs in a suspicious 

manner. . . . He told Detective Williams this, and conveyed 

this suspicious driving to Detective Williams, asked for a 

marked car to stop the defendant.

. . . .

Looking at the totality of the circumstances, the 

training of these officers, the behavior indicative of drug 

dealing, the previous association with the defendant and 
STATE V. PAIGE

Opinion of the Court

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with Shae Collins, as well as the counter-surveillance and 

the suspicious driving, there is reasonable articulable 

suspicion for the stop.

It is well established that

[t]he Fourth Amendment protects the right of the people 

against unreasonable searches and seizures. It is 

applicable to the states through the Due Process Clause of 

the Fourteenth Amendment. It applies to seizures of the 

person, including brief investigatory detentions such as 

those involved in the stopping of a vehicle.

Only unreasonable investigatory stops are 

unconstitutional. An investigatory stop must be justified 

by a reasonable suspicion, based on objective facts, that the 

individual is involved in criminal activity.

A court must consider the totality of the 

circumstances — the whole picture in determining whether 

a reasonable suspicion to make an investigatory stop 

exists. The stop must be based on specific and articulable 

facts, as well as the rational inferences from those facts, as 

viewed through the eyes of a reasonable, cautious officer, 

guided by his experience and training. The only 

requirement is a minimal level of objective justification, 

something more than an unparticularized suspicion or 

hunch.

State v. Watkins, 337 N.C. 437, 441-42, 446 S.E.2d 67, 69-70 (1994) (internal citations, 

quotation marks, and ellipses omitted).

When determining whether a law enforcement officer’s stop of an individual 

was reasonable, “the requisite degree of suspicion must be high enough to assure that 

[the] individual’s reasonable expectation of privacy is not subject to arbitrary 

invasions solely at the unfettered discretion of officers in the field.” State v. Murray, 
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Opinion of the Court

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192 N.C. App. 684, 687, 666 S.E.2d 205, 208 (2008) (citation and quotation marks 

omitted). If reasonable suspicion is found to be lacking, “[u]nder the ‘fruit of the 

poisonous tree’ doctrine, evidence must be suppressed if it was obtained as the result 

of illegal police conduct or was the ‘fruit’ of that unlawful conduct.” State v. Graves, 

135 N.C. App. 216, 221, 519 S.E.2d 770, 773 (1999).

In analyzing Defendant’s argument on this issue, we find our decision in State 

v. Harwood, 221 N.C. App. 451, 727 S.E.2d 891 (2012), instructive. In Harwood, a 

deputy sheriff received an anonymous tip that the defendant would be selling 

marijuana to an unidentified individual at a certain convenience store later that day 

and that he would be driving a white vehicle. Id. at 452, 727 S.E.2d at 894. The 

deputy, accompanied by another deputy, drove to the convenience store in an 

unmarked vehicle. As they pulled into the convenience store parking lot, they saw a 

white vehicle begin to back out of a parking space. As the white vehicle backed out, 

they identified the defendant as the driver and began following the vehicle. Id. at 

452-53, 727 S.E.2d at 894. After traveling a short distance, the deputies observed the 

defendant’s vehicle accelerate and then turn off the highway onto a secondary road 

and into a housing development. Id. at 453, 727 S.E.2d at 894. The defendant 

proceeded to park his vehicle in the driveway of a residence that was not his

registered address. Id.
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Opinion of the Court

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The deputies pulled into the driveway behind the defendant’s vehicle, exited 

their vehicle with weapons drawn, identified themselves, and ordered the defendant 

and his passenger to exit the vehicle. A deputy approached the defendant, placed 

him on the ground and handcuffed him. Id. at 453, 727 S.E.2d at 894-95. One of the 

deputies told the defendant about the anonymous tip that he had received, and the 

defendant admitted that he had traveled to the convenience store for the purpose of 

selling marijuana. The deputy then asked if the defendant had any more marijuana 

and if he would be “‘willing to let [the deputies] go back to his residence and look’” for 

marijuana, and the defendant agreed. Id. at 453, 727 S.E.2d at 895. The deputies 

subsequently discovered at his residence a loaded rifle as well as two ammunition 

canisters containing various quantities of marijuana, cocaine, and pills. Id. At trial, 

the defendant moved to suppress the evidence found at his residence on the ground

that the initial stop of his vehicle was not based on reasonable suspicion. Id. at 454, 

727 S.E.2d at 895. The trial court denied the motion, and the defendant appealed. 

Id.

In viewing the totality of the circumstances surrounding the vehicle stop, we 

noted that “[w]here the justification for a warrantless stop is information provided by 

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

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

constitutional rights.” Id. at 459, 727 S.E.2d at 898 (citation and quotation marks 
STATE V. PAIGE

Opinion of the Court

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omitted). We stated that “[t]he reasonable suspicion at issue in an anonymous tip 

situation requires that the tip be reliable in its assertion of illegality, not just in its 

tendency to identify a determinate person. The type of detail provided in the tip and 

corroborated by the officers is critical in determining whether the tip can supply the 

reasonable suspicion necessary for the stop. Where the detail contained in the tip 

merely concerns identifying characteristics, an officer’s confirmation of these details 

will not legitimize the tip.” Id. at 459-60, 727 S.E.2d at 899 (internal citations, 

quotation marks, brackets, and ellipses omitted).

Based on these principles, we held that

[a]fter analyzing the totality of the circumstances before us 

in this case, we conclude that the anonymous tip at issue 

here did not exhibit sufficient indices of reliability. The tip 

in question simply provided that Defendant would be 

selling marijuana at a certain location on a certain day and 

would be driving a white vehicle. The record contains no 

information about who the caller was, no details about 

what the caller had seen, and no information even as to 

where the caller was located. . . . [T]he tip in this case 

lacked any detail concerning the nature of Defendant’s 

present and planned activities, such as the time at which 

Defendant would be at the gas station, the type of vehicle 

that Defendant would be driving, the identity of the person 

to whom the sale would be made, or the manner in which 

the sale would be conducted. Put another way, while the 

tip at issue here included identifying details of a person 

and car allegedly engaged in illegal activity, it offered few 

details of the alleged crime, no information regarding the 

informant’s basis of knowledge, and scant information to 

predict the future behavior of the alleged perpetrator. As 

a result, since nothing inherent in the tip itself provided 

investigating officers with the reasonable articulable 
STATE V. PAIGE

Opinion of the Court

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suspicion required to justify detaining Defendant, the only 

way that Defendant’s detention could be upheld would be 

in the event that the tip contained sufficient details, 

corroborated by the investigating officers, to warrant a 

reasonable belief that Defendant was engaging in criminal 

activity.

Id. at 460-61, 727 S.E.2d at 899 (internal citations, quotation marks, brackets, and 

ellipses omitted).

We therefore concluded that

[n]othing in the subsequent activities of the investigating 

officers “buttressed” the tip through “sufficient police 

corroboration.” The information obtained by or known to 

[the sheriff’s deputy] prior to observing Defendant at the 

convenience store did not provide any additional 

particularized justification for detaining him. . . . The

observations made by the investigating officers at the 

convenience store consisted of nothing more than 

identifying a “determinate person” at a determinate 

location, a degree of corroboration that does not suffice to 

justify an investigative detention. Although [the sheriff’s 

deputy] watched Defendant drive away from the 

convenience store and ultimately pull his vehicle into the 

driveway of a residence with an address that differed from 

his own, Defendant could just as easily have been visiting 

an acquaintance, giving Mr. White a ride home, or turning 

around as opposed to engaging in evasive or unlawful 

conduct. Thus, the information provided and known to [the 

sheriff’s deputy] prior to the seizure did not contain the 

range of details required . . . to sufficiently predict 

Defendant’s specific future action; it was peppered with 

uncertainties and generalities. Therefore, given the 

limited details contained in the tip, and the failure of the 

officers to corroborate the tip’s allegations of illegal 

activity, the tip lacked sufficient indicia of reliability to 

justify the warrantless stop in this case. As a result, the 

investigating officers lacked the reasonable articulable 
STATE V. PAIGE

Opinion of the Court

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suspicion necessary to support their decision to detain 

Defendant.

Id. at 461-62, 727 S.E.2d at 899-900 (internal citations, quotation marks, brackets, 

and ellipses omitted).

We believe the same result is required here. Detective Williams received an 

anonymous uncorroborated tip approximately one to three months earlier that 

Collins — not Defendant — was selling drugs out of the Shop. This tip did not contain

any identifying characteristics of Defendant or predict any present or future illegal 

activity on his part.

Moreover, during her surveillance of the Shop, Detective Williams merely

observed Defendant (1) park in front of the Shop; (2) get out of his vehicle and enter 

the hair salon adjacent to the Shop; (3) exit the hair salon shortly thereafter; (4) speak 

with Collins and two unidentified individuals on the corner outside the Shop; and (5)

return to his car and drive away.

At no time did Detective Williams see any transaction take place or observe

Defendant exchange anything with Collins or the other two individuals at the Shop. 

Nor did she hear any of the conversations that Defendant had with these individuals.

Detective Williams testified on cross-examination as follows:

Q. Okay. So between 9:00 p.m. and 10:59 p.m. before 

[Defendant] got [to the Shop], did you see any crimes occur?

A. Just speculation of what occurred with the people 

coming and going.
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Q. Did -- prior to [Defendant] getting there, did you see 

anyone handling or carrying money or handling or carrying 

drugs?

A. No, sir.

Q. Or handling or carrying a firearm?

A. No, sir.

Q. All right. When [Defendant] got there, did you see him 

commit any crimes?

A. I didn’t see him do anything but meet with the subjects.

. . . .

Q. Did you see [Defendant] exchange anything with anyone 

before he left your location?

A. No, sir.

Q. Did you see him carrying anything in his hands or in a 

bag before he left your location?

A. No, sir, I did not.

Q. Did he ever have anything in his hands?

A. No, sir.

Q. Did he take anything from his car into the barber shop?

A. No, sir, not that I could see in his hands.

(Emphasis added.)
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Opinion of the Court

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As discussed above, when a law enforcement officer is acting on an anonymous 

tip, the “officer must have something more than an unparticularized suspicion or 

hunch before stopping a vehicle.” State v. McArn, 159 N.C. App. 209, 213, 582 S.E.2d 

371, 374 (2003). In McArn, an anonymous caller reported to the Lumberton Police 

Department that a white Nissan vehicle on Franklin and Sessoms Street was 

involved in the sale of illegal drugs. Id. at 210, 582 S.E.2d at 373. An officer

proceeded to the area and observed a white Nissan vehicle. Id. The officer stopped 

the vehicle, which was operated by the defendant and also occupied by a passenger

and the defendant’s children. Id. The officer then searched the vehicle and 

discovered no illegal drugs but upon searching the defendant discovered a “packet of 

cocaine” in his mouth. Id. at 210-11, 582 S.E.2d at 373. The defendant was arrested 

and indicted for possession of a controlled substance. Id. at 211, 582 S.E.2d at 373.

At trial, the defendant moved to suppress the cocaine. Id. Upon the trial 

court’s denial of the motion, he pled guilty to the possession charge, reserving his 

right to appeal the denial of his motion. Id. On appeal, we held that the officer who 

stopped the defendant’s vehicle “had no reason to suspect the vehicle’s driver or 

occupants of illegal conduct apart from the anonymous tip.” Id. at 210, 582 S.E.2d at

373. We explained that

the tipster never identified or in any way described an 

individual. Therefore, the tip upon which [the officer] 

relied did not possess the indicia of reliability necessary to 

provide reasonable suspicion to make an investigatory 
STATE V. PAIGE

Opinion of the Court

- 20 -

stop. The anonymous tipster in no way predicted 

defendant’s actions. The police were thus unable to test

the tipster’s knowledge or credibility. Moreover, the tipster 

failed to explain on what basis he knew about the white 

Nissan vehicle and related drug activity.

Id. at 214, 582 S.E.2d at 375.

Based on these facts, we reversed the trial court’s denial of the defendant’s 

motion to suppress, holding that “the conclusion of the trial court, that the tip created 

a sufficient reasonable suspicion to justify stopping defendant’s vehicle, was error.” 

Id. This reasoning applies equally here.

Nor did a reasonable suspicion sufficient to warrant stopping Defendant’s 

vehicle arise based on Defendant’s conduct after leaving the Shop. Upon following

Defendant’s vehicle, Detective Santiago did not observe Defendant commit any illegal 

actions or motor vehicle infractions. Rather, he merely observed Defendant legally 

turn into a business parking lot and subsequently drive around the “cloverleaf” exit 

ramps of an interchange. Based upon Detective Santiago’s report of this information 

to Detective Williams, Detective Williams then ordered Corporal Timberlake — who 

also did not observe Defendant commit any traffic violations — to initiate a stop of 

Defendant’s vehicle.

Such lawful conduct did not give rise to reasonable suspicion sufficient to 

justify the stop of Defendant’s vehicle. See Harwood, 221 N.C. App. at 462, 727 S.E.2d 

at 900 (finding that despite defendant’s actions in turning onto secondary road and 
STATE V. PAIGE

Opinion of the Court

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parking in driveway of house that was not his own after leaving site of alleged drug 

sale referenced in anonymous tip did not give rise to reasonable suspicion supporting

stop of defendant’s vehicle).

Consequently, we hold that the trial court’s findings of fact do not support its 

legal conclusion that reasonable suspicion existed to stop Defendant’s vehicle. We 

therefore reverse the trial court’s order denying Defendant’s motion to suppress and 

vacate Defendant’s convictions stemming from his guilty plea to the offenses arising 

from the 15 June incident. See State v. Jackson, 199 N.C. App. 236, 244, 681 S.E.2d 

492, 498 (2009) (“In this case, the cocaine and weapon found in the car were 

discovered as a direct result of the illegal search and, therefore, should have been 

suppressed as fruit of the poisonous tree. . . . The trial court’s order denying 

Defendant’s motion to suppress is REVERSED and its judgment is VACATED.”).

II. Rule 404(b) Evidence

Defendant’s final argument on appeal is that the trial court erred in allowing 

the State to introduce under Rule 404(b) evidence regarding the 15 June 2012 

incident at his trial on the charges stemming from the 12 September and 19 

September incidents. Specifically, he contends that this evidence was inadmissible 

and that its admission constituted prejudicial error.

We conclude that Defendant has failed to establish that any such error was 

sufficiently prejudicial to warrant the vacating of his charges stemming from the 12 
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Opinion of the Court

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September and 19 September incidents. See State v. Williams, 156 N.C. App. 661, 

665, 577 S.E.2d 143, 146 (2003) (applying prejudicial error analysis upon 

determination that Rule 404(b) evidence of past drug transaction was erroneously 

admitted). “A defendant is prejudiced by errors when there is a reasonable possibility 

that, had the error in question not been committed, a different result would have been 

reached at the trial out of which the appeal arises.” State v. Carpenter, 361 N.C. 382, 

392, 646 S.E.2d 105, 112 (2007) (citation, quotation marks, and ellipses omitted). 

Moreover, “[t]he party who asserts that evidence was improperly admitted usually 

has the burden to show the error and that he was prejudiced by its admission.” State 

v. LePage, 204 N.C. App. 37, 43, 693 S.E.2d 157, 162 (2010) (citation and quotation 

marks omitted).

Because of the clear evidence of Defendant’s guilt of the charges stemming 

from the sale of drugs by him to Detective Ridings on 12 September and 19 

September, Defendant cannot show prejudice resulting from the admission of the 

evidence as to the 15 June incident. Defendant was identified by a confidential 

informant as being in the business of selling heroin. While working undercover, 

Detective Ridings purchased heroin from Defendant on two separate occasions. Both 

of these transactions were recorded by a recording device worn by Detective Ridings. 

These recordings were entered into evidence at trial. Thus, the evidence of 
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Opinion of the Court

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Defendant’s guilt of the offenses stemming from his sale of drugs to Detective Ridings 

on 12 September and again on 19 September was overwhelming.

We likewise reject Defendant’s argument that because Washington was a 

passenger in the Pontiac Vibe on 19 September, the improper admission of the 

evidence regarding the 15 June incident could have prejudiced the jury into simply

assuming that the hydrocodone found in the Pontiac Vibe on 19 September belonged 

to Defendant — rather than Washington. “Possession of . . . drugs need not be 

exclusive. It is well established in North Carolina that possession of a controlled 

substance may be either actual or constructive.” State v. Jenkins, 167 N.C. App. 696, 

700, 606 S.E.2d 430, 433 (internal citations and quotation marks omitted), aff'd per 

curiam, 359 N.C. 423, 611 S.E.2d 833 (2005). We have held that “[a] person has 

actual possession of a substance if it is on his person, he is aware of its presence, and 

either by himself or together with others he has the power and intent to control its 

disposition or use.” State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148 

(2010) (citation and quotation marks omitted). “A defendant constructively possesses

contraband when he or she has the intent and capability to maintain control and 

dominion over it.” State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (citation 

and quotation marks omitted). Furthermore, our Supreme Court has recognized that

actual and constructive possession often so shade into one 

another that it is difficult to say where one ends and the 

other begins. This ambiguity is likely attributable to the 

fact that both actual and constructive possession will 
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Opinion of the Court

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support a finding of “possession” within the meaning of our 

statutes, making it unnecessary to distinguish between the 

two in many instances. Nonetheless, it is important 

analytically to appreciate that actual possession may be 

proven by circumstantial evidence[.]

State v. McNeil, 359 N.C. 800, 813, 617 S.E.2d 271, 279 (2005) (internal citations and 

quotation marks omitted).

In the present case, we believe abundant evidence existed for the jury to 

conclude that Defendant had actual possession of the hydrocodone found in the center 

console of his vehicle on 19 September. The Pontiac Vibe was clearly under his control 

as he had previously driven the same vehicle — alone — to the 12 September meeting 

with Detective Ridings. The hydrocodone was found during a search of the Pontiac 

Vibe on 19 September immediately after Defendant had sold the 11 envelopes 

containing a mixture of heroin and morphine to Detective Ridings. The hydrocodone 

was in the center console of the vehicle, which was within the reach of Defendant who 

was in the driver’s seat. Thus, the State demonstrated that Defendant had the 

“power and intent” to control the hydrocodone’s disposition or use.

Moreover, at a minimum, he had constructive possession of the hydrocodone. 

We have held that 

[a] person is said to have constructive possession when he, 

without actual physical possession of a controlled 

substance, has both the intent and the capability to 

maintain dominion and control over it.

As the terms “intent” and “capability” suggest, constructive 
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Opinion of the Court

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possession depends on the totality of circumstances in each 

case. No single factor controls, but ordinarily the question 

will be for the jury. The fact that a person is present in a 

vehicle where drugs are located, nothing else appearing, 

does not mean that person has constructive possession of 

the drugs. There must be evidence of other incriminating 

circumstances to support constructive possession.

Jenkins, 167 N.C. App. at 700, 606 S.E.2d at 433 (internal citations, quotation marks, 

brackets, ellipses, and emphasis omitted).

In determining whether “other incriminating circumstances” exist in this 

context, our Supreme Court has held that “[o]ur cases addressing constructive 

possession have tended to turn on the specific facts presented. . . . [T]wo factors 

frequently considered are the defendant’s proximity to the contraband and indicia of 

the defendant’s control over the place where the contraband is found.” Miller, 363 

N.C. at 99-100, 678 S.E.2d at 594-95.

For example, in State v. Matias, 354 N.C. 549, 556 S.E.2d 269 (2001), the 

defendant was a passenger in a vehicle stopped in a parking lot by law enforcement 

officers after they detected the odor of marijuana emanating from it. Id. at 550-51, 

556 S.E.2d at 270. After ordering the occupants of the vehicle to leave the car, the 

officers searched it and found various types of drugs. Id. at 551, 556 S.E.2d at 270.

On appeal, this Court held that there was sufficient evidence of “other incriminating

circumstances” — namely, the fact that marijuana was being smoked in the vehicle 

— to support the charge of possession and affirmed the defendant’s conviction despite 
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Opinion of the Court

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the defendant not having exclusive control of the subject vehicle. Id. at 552-53, 556 

S.E.2d at 271; see also McNeil, 359 N.C. at 813, 617 S.E.2d at 279 (finding 

constructive possession of cocaine by defendant despite his lack of exclusive control 

over area where drugs were discovered).

Here, the State presented evidence that (1) Defendant drove the Pontiac Vibe 

to a prearranged site where he proceeded to sell heroin and morphine to Detective 

Ridings and then immediately left the scene in that vehicle; and (2) hydrocodone was 

discovered shortly thereafter by law enforcement officers upon their search of the 

vehicle. This evidence easily qualifies as “other incriminating circumstances” 

sufficient to establish constructive possession despite the fact that Defendant was not 

alone in the vehicle, and, as a result, Defendant cannot show prejudice from the 

admission of evidence regarding the 15 June incident.

For these reasons, Defendant’s argument on this issue is without merit. 

However, because (1) the trial court consolidated all of Defendant’s convictions for 

sentencing purposes; and (2) we are vacating his convictions for the offenses 

stemming from his 15 June 2012 charges, we must remand for resentencing by the 

trial court. See State v. Hardy, __ N.C. App. __, __, 774 S.E.2d 410, 420 (2015) (“When 

the trial court consolidates multiple convictions into a single judgment but one of the 

convictions was entered in error, the proper remedy is to remand for resentencing

when the appellate courts are unable to determine what weight, if any, the trial court 
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Opinion of the Court

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gave each of the separate convictions in calculating the sentences imposed upon the 

defendant.” (citation, quotation marks, and ellipses omitted)).

Conclusion

For the reasons stated above, we reverse the denial of Defendant’s motion to 

suppress and vacate the trial court’s judgment as to the following charges to which 

Defendant pled guilty: (1) possession with intent to sell or deliver cocaine (12 CRS 

55869); (2) possession with intent to sell or deliver heroin (12 CRS 55869); (3) 

possession of marijuana up to one half of an ounce (12 CRS 55869); (4) possession of 

a firearm by a felon (12 CRS 55870); (5) driving with a revoked license (12 CRS 

55871); (6) carrying a concealed gun (12 CRS 55870); and (7) maintaining a vehicle 

for the purpose of selling a controlled substance (12 CRS 55870)

4. We find no 

prejudicial error as to Defendant’s remaining convictions. Finally, we remand for 

resentencing.

REVERSED IN PART; VACATED IN PART; NO PREJUDICIAL ERROR IN 

PART; REMANDED FOR RESENTENCING.

Judges BRYANT and INMAN concur.

Report per Rule 30(e).

 

4 The charges of carrying a concealed gun and maintaining a vehicle for the purpose of selling 

a controlled substance are listed in the indictment under case number 12 CRS 55871. However, they 

are numbered 12 CRS 55870 in Defendant’s plea agreement and the trial court’s judgment. Therefore, 

in order to avoid any possible confusion, we wish to make clear that we are vacating both the carrying 

a concealed gun conviction and the maintaining a vehicle for the purpose of selling a controlled 

substance conviction. 
STATE V. PAIGE

Opinion of the Court

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