IN THE SUPREME COURT OF NORTH CAROLINA No. 2 95P A 1 7 Filed 21 December 2018 STATE OF NORTH CAROLINA

v. TERRY JEROME WILSON

On discretionary review pursuant to N.C.G.S. § 7A

- 31 of a unanimous, unpublished decision of the Court of Appeals , ___ N.C. App. ___, 80 3 S.E.2d 69 8 (201 7 ) , reversing and vacating a judgment entered on 13 April 2016 and reversing an order denying defendant’s motion to suppress entered on 4 May 2016, both by Judge John O. Craig , III in Superior Court, Forsyth County

. Heard in the Supreme Court

on 27 August 2018

. Joshua H. Stein, Attorney General, by Derrick C. Mertz , Special Deputy Attorney General, for the State

- appellant

. Glenn Gerding

, Appellate Defender, and Sterling Rozear, Assistant Appellate Defender, for defendant

- appellee.
MARTIN, Chief Justice

. A SWAT team was sweeping a house so that the police could execute a search
warrant. Several police officers were positioned around th e house to create a perimeter securing the scene. D efendant penetrated this SWAT perimeter, stating that he was going to get his moped. In so doing, he passed Officer Christian, who wasS TATE V
. W ILSON Opinion of the Court

- 2

- stationed at the perimeter near the street. Defendant then kept goi ng, moving up the driveway and toward the house to be searched. Of ficer Ayers , who was stationed near the house, confronted defendant. A fter a brief interaction, Officer Ayers searched defendant based on his suspicion that defendant was armed. Officer A yers found a firearm in defendant’s pocket. Defendant, who had previously been convicted of a felony , was arrested and charged with being a felon in possession of a firearm. Before trial, d efendant moved to suppress evidence of the firearm on the grounds that the search violated , inter alia , his Fourth Amendment right under the United States Constitution “to be secure . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. The trial court found t hat Officer Ayers “had a reasonable and articulable suspicion that the Defendant might have bee n armed and presently dangerous ” and denied defendant’s motion. Defendant then pleaded guilty, while reserving his right to appeal the denial of his motion to suppress. Defendant appealed

. T he Cour t of Appeals held that the search was invalid because the trial court ’s order did not show that the search was supported by reasonable suspicion

. State v. Wilson , ___ N.C. App. __ _, 803 S.E.2d 698, 2017 WL 3480940, at *6 (Aug. 15, 2017) (unpublished). Th e State petitioned this Court for review , arguing that the Court of Appeals ’ reliance on the individualized suspicion standard was inconsistent with the decision of the Supreme Court of the United States in Michigan v. Summers , 452 U .S. 692, 101 S. Ct. 258 7 (1981), a nd that OfficerS TATE V
. W ILSON Opinion of the Court

- 3

- Ayers nevertheless reasonably suspected that Defendant was armed

. We allowed the State’s petition for review of this issue

. We hold that the rule in Michigan v. Summers justifies the seizure here because defendant , who passed one officer , stated he was going to get his moped, and continu ed toward the premises being searched , posed a real threat to the safe and efficient completion of the search

. See Bailey v. United States , 568 U.S. 186, 200

- 01 , 133 S. Ct. 1031, 1041

- 4 2 (2013) (citing Summers , 452 U.S. at 702

- 03, 101 S. Ct. at 2594 ). We also hold that both the search and seizure of defendant were supported by indi vidualized suspicion and thus did not violate the Fourth Amendment. See Terry v. Ohio , 392 U.S. 1, 28, 88 S. Ct. 1868, 1883 (1968)

. W e therefore reverse the decision of the Court of Appeals

. The follow ing fact s are not in dispute. At around 11:00 p.m. on 21 March 201 4 , officers of the Winston

- Salem Police Department executed a search warrant for the premises at 2300 North Glenn Avenue. This address wa s a reside ntial lot with a driveway that wa s about eighty feet long leading to a house and another building. While t he initial sweep was being conducted by a SWAT team, several uniformed officers maintained a p erimeter at the edge of the property to protect the SWAT team from outside interference

. The officers maintaining the perimeter wore uniforms that clearly identified them as police office rs, as well as safety equipment such as Kevlar vests and ballistic h elmets. In its findings of fact, the trial court stated that t he polic e presence at 2300 North Glenn A venue that night was such that it would be clear toS TATE V
. W ILSON Opinion of the Court

- 4

- any passerby that police were engaged in an operation and intended to exclude the general public from the property. Officer s Ayers and Christian were among the uni formed officers maintaining the perimeter during the search. Officer Ayers knew the area to be dangerous, having previously responded to discharges of firearms , narcotics activity, and a shooting at th e location of the search

. Defendant walked onto the premises while the SWAT team was still actively securing the house. Officer Christian was standing near where the driveway connected to the street , and Officer Ayers was standing fa rther up the driveway, a few feet from the house. Officer Ayers saw defendant walk past Officer Christian and heard defendant say something about wanting to get his moped. Officer Ayers walked toward defendant and noticed a heavy object in defendant’s pocket

. Applying his training and expertise, Officer Ayers believed that the object was a firearm based on its size, shape, and apparent weight . Officer Ayers asked defendant if he was carrying any weapons, and defendant said that he was not. Officer Ayers then told defendant that he was going to frisk him for weapons and instructed defendant to turn around. When defendant turned around, Officer Ayers saw the grip of a handgun protruding from defendant’s pocket. At this point , Officer Ayers seized the weapon and detain ed defendant. D efe ndant was ultimately charged with, and pleaded guilty to, possession o f a firearm by a felon.S TATE V
. W ILSON Opinion of the Court

- 5

- In its argument to this Court, the State asks us to apply the categorical rule from Michigan v. Su mmers to the facts of this ca se. 1 In Summers , the Supreme Court of the United States reasoned that “for Fourth Amendment purposes , . . . a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detai n the occupants of the premises while a proper search is conducted .” Summers , 452 U.S. at 70 5 , 101 S. Ct. at 2595

. The Supreme Court justified this rule, at least in part, on the basis that “[t]he risk of harm to both the police and the occupants is minimized if the officer s routinely exercise unquestioned command of the situation .” Id. at 702

- 03, 101 S. Ct. at 2594 ( citing 2 W ayne R. LaFave, Search and Seizure § 4.9, at 150

- 51 (1978) )

. T h e Court has further emphasized t hree governmental interests that , when taken together, “justify the

1 We disagree with the concurring justice’s contention that the State waived merits review of the very issue

— applicability of the Summers rule

— that we accepted for discretionary review. The record shows that the trial judge considered whether the police had the authority to stop a person to protect the integrity of a scene during the execution of a search warrant

. This inquiry is substantially equivalent to considering whether the Summers rule applies , so the trial judge appears to have determined (and we agree) that the Summers grounds for relief “were

. . . apparent from context” and were thus preserved for appellate review. N.C. R. App. P. 10(a)(1). Furthermore, the State was the appellee at the Cou rt of Appeals and the Summers rule is an alternate basis in law supporting upholding the trial court’s decision. Our rules allow an appellee to argue a preserved alternate basis in law on appeal and that is what the State in fact did at the Court of Appeals. See N.C. R. App. P. 10(c). Put simply, given that the State prevailed before the trial court and was the appellee before the Court of Appeals, "[t]he question for review is whether the ruling of the trial court was correct" r ather than "whether the reason given therefor is sound or tenable." State v. Austin , 320 N.C. 276, 290, 357 S.E.2d 6 41, 650 (citing State v. Blackwell , 246 N.C. 642, 644, 90 S.E.2d 867, 869 (1957)), cert. denied , 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2 d 224 (1987). As a result, the State can raise the Summers issue here as the appellant challenging the Court of Appeals decision.S TATE V
. W ILSON Opinion of the Court

- 6

- detention of an occupant who is on the premises during the execution of a search
warrant: officer safety, facilitating the completion of the search, and pr eventing flight .” Bailey , 568 U.S. at 194, 133 S. Ct. at 103 8 (citing Summers , 452 U. S. at
702

- 03, 101 S. Ct. at 2594 ). The Court has stated that “[a]n officer’s authority to detain incident to a search is categorical; it does not depend on the ‘quantum of proof justifying detention or the extent of the intrusion to be imposed by the seizure.’ ” Muehler v. Mena , 544 U.S. 93, 98, 125 S. Ct. 1465, 1 470 (2005) (quoting Summers , 452 U.S. at 705 n.19, 101 S. Ct. at 2595 n.19).
The Supreme Court has further defined t he category covered by the Summers rule on two occasions

. First, i n Muehler v. Mena , the plain tiff, suing several police officers , challeng ed both the use of handcuffs incident to a Summers seizure and the
two

- to three

- hour duration of the seizure. See i d. at 95

- 96, 125 S. Ct. at 1468

- 69. In findi ng the use of handcuffs permissible, the Court again recognized the need for police executing a search warrant to “routinely exercise unquestioned command of the situation.” Id. at 99, 125 S. Ct. at 1470 (quoting Summers , 452 U.S. at 703, 101 S. Ct. at 25 94 ). T he Court also held that the seizure was permissible during the entirety of th e execution of the search warrant. See i d. at 100, 125 S. Ct. at 1471 ( holding that “the 2

- to 3

- hour detention in handcuffs

. . . [did] not outweigh the
governmen t’s continuing safety interests ” )

. Second, i n Bailey v. United States , the Supreme Court was confronted with a defendant who was arrested almost one mile away from the location being searched

.S TATE V
. W ILSON Opinion of the Court

- 7

- See 568 U.S. at 194, 133 S. Ct. at 1038. The Court clarified that “[t]he categorical authority to detain incident to the execution of a search warran t must be limited to the immediate vicinity of the premises to be searched .” 568 U.S. at 199 , 133 S. Ct. at
1041

. Ultimately , the Court held that the seizure in Bailey was unlawful because the defendant “was detained at a point beyond any reasonable unde rstanding of the immediate vicinity of the premises in question.” Id. at 201, 133 S. Ct. at 1042. But the Court has identified several factors that courts can consider “ to determine whether an occupant was detained within the immediate vicinity of the pr emises to be searched, including the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors .” Id.
Based on th is doctrinal trilogy , we can identify three parts of the Summers rule : “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain [ ( 1 ) ] the occupants ,” Summers , 452 U.S. at 705, 101 S. Ct. at 2595, (2) who ar e “ with in the immediate vicinity of the premises to be searched ,” Bailey , 568 U.S. at 201, 133 S. Ct. at 1042, and (3) who are present “ during the execution of a search warrant , ” i d. at 194, 133 S. Ct. at 1038 (citing Summers , 452 U .S. at 702

- 03, 101 S. Ct. at 2594); see also Muehler , 544 U.S. at 102 , 125 S. Ct.
at 147 2 (holding that “the officers’ detention of Mena in handcuffs during the execution of the search warrant was reasonable and did n ot violate the FourthS TATE V
. W ILSON Opinion of the Court

- 8

- Amendment ”)

. These three parts roughly cor res pond to the “ who, ” “ where, ” and

“ when ” of a lawful suspicionless seizure incident to the execution of a search warrant. As we have discussed, the Supreme Court has already provided clear guidance as to the second and third parts of the Summers rule

. A nd the application of that guidance to this case is strai ghtforward. No on e disputes that defendant was seized during the execution of a search warrant. It is also evident that defendant was seized within the immediate vicinity of the premises being searche d . Defendant walked past Officer Christian, who was standing close to where the driveway connected to t he street, and proceeded toward Officer Ayers, who was standing near the house being searched. When Officer Ayers stopped him , defendant was well withi n the lawful limits of the property containing the house being searched. And, had he not been stopped by police, defendant could easily have a ccessed the house

. Thus the spatial requirements of the Summers rule were met here

. See Bailey , 568 U.S. at 201 , 133 S. Ct. at 1042. As to the remaining part of our formulation of the Summers rule, w e acknow ledge that the Supreme Court has not directly resolved the issue of who qualifies as an “ occupant ” for the purposes of the Summers rule

. Nevertheless, using the Supreme Court’s reasoning that developed through the trilogy of Summers cases as our guidepost, we will now attempt to determine the “proper limit [ that ] accords with the rationale of the [ Summers ] rule.” Id.S TATE V
. W ILSON Opinion of the Court

- 9

- In Bailey , the Supreme Court recognized th at the search of a residence “has a spatial dimension” and that the Summers rule must be limited “to the area in which an occupant poses a real threat to the safe and efficient execution of a search
warrant .” Id. Notably , this does not confine the Summer s rule to the premises identified in the search warrant, but extends that rule to the immediate vicinity of those premises

. Id. The reasoning in Bailey comports with the justification in Summers because someone who i s sufficiently close to the premises being searched could pose just as real a threat to officer safety and to the efficacy of the search as someone who i s within the premises. Applying the Supreme Court’s reasoning in Bailey as to the spat ial dimension of a search, we believe that a person is an occupant for the purposes of the Summers rule if he “poses a real threat to the safe and efficient execution of a search warrant.” Id

. We believe defendant posed a real threat to the safe and efficient execution o f the search warrant in this case. He approached the house being swept , announced his intent to retrieve his moped from the premises , and appeared to be armed. It was obvious that defendant pose d a threat to the safe completion of the search. Defendant
argues that he was not an occupan t of the premises being searched in the ordinary sense of the word. Given defendant’s actions here, however, it wa s apparent to Officer Ayers that defendant was attempting to enter the area being searched

— or, stated anothe r way, defendant would have occupied the area being searched i f he had not been restrain ed

. This understanding of occupancy is necessary given the SupremeS TATE V
. W ILSON Opinion of the Court

- 10

- Court’s recognition that officers may constitutionally mitigate the risk of someone entering the pre mises during a search “by taking routine precautions, for instance by erecting barricades or posting someone on the perimeter or at the door.” Id. at 195 , 133 S. Ct. at 1039. Indeed, if such precautionary measures did not carry with them some categorical authority for police to detain individuals who attempt to circumvent them, it is not clear how officers could practically “search without fear that occupants, who are on the premises and able to observe the course of the search, [would] become disruptive, dangerous, or otherwise frustrate the search.” Id. at 195 , 133 S. Ct. at
1038. Defendant’s own actions here caused him to satisfy the first part, the “who ,” of the Summers rule . As we have discussed , the second and third parts of the Summers rule, th e “where ” and “when , ” are also satisfied

. The Summers rule, therefore, jus tified the seizure of defendant here. But, b ecause the Supreme Court has only used the Summers rule to justify detentions incident to the execution of search warrants, see , e.g. , Bailey , 568 U.S. at 194, 133 S. Ct. at 1038; Muehler , 544 U.S. at 98, 125 S. Ct

. at 1470 , we must determine separately whether the search of defendant’s p erson was justified

. In Terry v. Ohio , the Supreme Court determined that a brief stop and frisk did n ot violate a defendant’s Fourth A mendment rights when “a reasonably prudent man would have been warranted in believing [the defendant] was armed and thus presented a threat to the officer’s safety while he was investigating his suspiciousS TATE V
. W ILSON Opinion of the Court

- 11

- behavior .” 392 U .S. at 28, 88 S. Ct. at 1883

. In other words , an officer may constitutionally conduct what has come to be called a Terry stop if that officer can “reasonably

. . . conclude in light of his experience that criminal activity may be afoot

. ” Id. at 30, 88 S. Ct. at 1884. “The reasonable suspicion standard is a ‘less demanding stand ard than probable cause’ and ‘a considerably less [demanding standard] than preponderance of the evidence.’ ” State v. Bullock , 370 N.C. 256, 258, 805 S.E.2d 671, 674 (2017) (alte ration in original) ( quoting Illinois v. Wardlow , 528 U.S. 119, 123, 120 S. Ct. 673 , 675

- 76 (2000) ) . To me et this standard , an officer “must be able to point to specific and articulable facts ” and to “ratio nal inferences from those facts ” justifying the search or seizure at issue. Terry , 392 U.S. at 21 , 88 S. Ct. at 18 80 . “To determine whether reasonable suspicion exists, courts must look at ‘ the totality of the circumstances’ as ‘viewed from the standpoint of an objectiv ely reasonable police officer.’ ” State v. Johnson , 370 N.C. 32, 34

- 35, 803 S .E.2d 137, 139 (2017) (citation omitted) ( first quoting United States v. Cortez , 449 U.S. 411, 417, 101 S. Ct. 690, 695 (1981); a nd then quoting Ornelas v. United States , 517 U.S. 690, 696,
116 S. Ct. 1657, 1661

- 62 (1996) )

.

“ When reviewing a ru ling on a motion to suppress, we analyze whether the trial court’s ‘underlying findings of fact are supported by competent evidence

. . . and whether those factual findings in turn support the [trial court’s ] ultimate conclusions of law.’ ” Bullock , 370 N.C. at 258, 805 S.E.2d at 674 (a lterations in original) ( quoting State v. Cooke , 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).S TATE V
. W ILSON Opinion of the Court

- 12

- Here, Officer Ayers was the sole witness who testified at the suppress ion hearing , and the facts that he testified to were uncontested. Based on that testimony , the trial court found that the p olice were conducting a search at a location where there ha d been numerous reports of gun violence and were openly maintaining a perimeter to prevent public access to the property in question during the search

. D efendant then approached the premises during the search , passing one officer in a manner that “ was very unusual for a member of the general public .” Officer Ayers approached defendant and observed that defendant had something in his pocket. Based on the size, weight, and shape of the object, Officer Ayers believed that the object was a gun or other weapon . Defendant told Officer Ayers that he was there to get his moped and that he was not armed. The trial court concluded that “a reasonable and prudent police off ic er would find [defendant’s behavior] unusual ” and that , based on the totality of these circu mstances, Officer Ayers “had a reasonable and articulable suspicion that the Defendant might have been a rmed and presently dangerous.”
We find no error in the trial court’s reasoning. Defendant breached a police perimeter during an active SWAT team sweep

. Based on his training, experience, and observations, i t was reasonable for Officer Ayers to suspect that defendant was armed

. Defendant then appeared to lie about being armed

. Given the circumstances of the ongoing search and defendant’s actions, it w as reasonable to suspect that defendant was there to attack police officers on the premises or otherwise violentlyS TATE V
. W ILSON Opinion of the Court

- 13

- interfere with the execution of the search warrant. Because any such violence would constitute criminal activity, Officer Ayers had reasonable suspicion , based on these circumstance s , that criminal activity was afoot

. See Terry , 392 U.S. at 30, 88 S. Ct.
at 1884. Thus , the trial court correct ly denied defendant’s motion to suppress. In this case, t he Court of Appeals erred by focusi ng solely on one finding of fact instead of the totality of the ci rcumstances , as Terry requires

. See Johnson , 370 N.C.
at 34

- 35, 803 S.E.2d at 139. The Court of Appeals correctly stated that “ ‘ unusual ’ behavior does not necessarily equal behavior leading a reasonable officer to believe criminal activity was afoot .” Wilson , 2017 WL 348 0940 , at *5. This reasoning , though , does not take into account th e particular unusual behavior at issue here and the t otality of the circumstances surrounding it. These circumstances include police officers having responded to shootings at and near the house in the past , Officer Ayers’ observation that defendant was likely armed, and defendant’s apparent lie about posses sing a weapon

. 2 Combining these circumstances w ith defendant’s unusual choice to cross a police perimeter to purportedly retrieve his moped during an active SWAT team sweep , there were more than enough facts to establish a reasonable suspicion t hat crimin al activity may have be en afoot. See Terry , 392 U.S.

2 The fact that defendant was actually lying is not relevant to a finding of reasonable suspicion because th e lie was not c onfirmed until after the search. However, the fact that Officer Ayers had a reasonable suspicion that defendant was armed means that he also had a reasonable suspicion that defendant was lying when defendant said that he was not armed.S TATE V
. W ILSON Opinion of the Court

- 14

- at 30, 88 S. Ct. at 1884. T he warrantless detention and search of defendant therefore did n ot violate the Fourth Amendment. For the reasons stated above, w e reverse the decision of the Court of Appeals.

REVERSED

.Justice HUDSON, concurring in part and concurring in the result in part.

Although I agree with the majority’s decision that defendant’s seizure was justified here because the circumstances constituted reasonable suspicion that criminal activity was afoot under the United States Supreme Court’s decision in Terry v. Ohio , 392 U.S . 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968) , and that our granting of discretionary review allowed the State to argue whether Michigan v. Summers , 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981) , applies, I disagree with the majority on four specific points. First, the majority need not have applied Summers when the constitutionality of the seizure and subsequent search is wholly resolved by Terry . Second, the trial court’s colloquy with defendant’s counsel during the hearing on def

endant’s motion to dismiss did not preserve the Summers issue for our review, because the interchange was not “substantially equivalent” to a Summers analysis. Third, the “ Summers grounds for relief” were not “apparent from the context” at the trial court , and therefore, the Summers issue was not adequately preserved for review pursuant to Rule 10(a)(1) of our Rules of Appellate Procedure. See N.C. R. App. P. 10(a)(1). Finally, in my view our decision in State v. Austin does not stand for the principle t hat the State, as an appellee before the Court of Appeals, can bring an unpreserved constitutional issue for the first time on appeal. 320 N.C. 276, 357 S.E. 2d 641 , cert. denied, 484 U.S. 916, 108 S. Ct. 267, 98 L. Ed. 2d 224 (1987).S TATE V
. W ILSON Hudson, J., c oncurring in p art and c oncurring in the r esult in p art

- 2

- Concerning the app lication of Summers to the facts of this case, I fully agree with Justice Beasley’s concurring opinion that “[b]ecause the instant case is fully resolved by application of the familiar and well

- settled Terry standard, I would not extend the Summers rule to justify the search of defendant.” In its opinion, the majority also concluded that Terry justified both the seizure and the search of defendant. Therefore, it was unnecessary to apply Summers to the facts here. With regard to preservation, we have lon g held that “[c]onstitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal.” State v. Davis , 364 N.C. 297, 301, 698 S.E. 2d 65, 67 (2010) (alteration in original) (quoting State v. Tirado , 358 N.C. 551, 571, 599 S.E. 2d 515, 529 (2004), cert. denied , 544 U.S. 909, 125 S. Ct. 1600, 161 L. Ed. 2d 285 (2005)). The majority asserts that the Summers issue was adequately raised in the trial court by “the trial judge consider[ing] whether the police had author ity to stop a person to protect the integrity of a scene during the execution of a search warrant.” The majority reasoned that “[t]his inquiry is substantially equivalent to considering whether the Summers rule applies, so the trial judge appears to have determined (and we agree) that the Summers grounds for relief ‘were . . . apparent from context.’ ” I do not agree that the trial judge’s inquiry with defense counsel at the hearing on defendant’s motion to suppress substantially equated to the Summers issue. The inquiry to which the majority references does not demonstrate that the Summers issue was “raised and passed on” at the hearing on defendant’s motion to suppress.S TATE V
. W ILSON Hudson, J., c oncurring in p art and c oncurring in the r esult in p art

- 3

- Davis , 364 N.C. at 301, 698 S.E. 2d at 67 (quoting Tirado , 358 N.C. at 571, 599 S.E. 2d at 529). The majority refers us to a section of the trial transcript in which the trial court questioned the defendant’s attorney in the following manner:

THE COURT: Right. But isn’t

-- if he

-- if Mr. Wilson’s walking u p the driveway and part of the purpose for [the officer] telling him to stop is to protect the integrity of the scene where the search warrant is taking place, that’s a sufficient reason just to tell him to stop where he is, isn’t it? I mean, if there’s an ongoing search of the premises, you don’t want a citizen who may or may not be related to the premises just walking on up there and starting to look for his moped while they’re trying to conduct the search. The majority asserts that “this inquiry is su bstantially equivalent to considering whether the Summers rule applied.” It is not. It is important to note that the trial court did not mention Summers in this excerpt, and although it inquired about the effect that the execution of the search warrant m ight have on the propriety of the stop, the trial court did not make any findings of fact or conclusions of law on these
matters. Also, to the extent the trial court engaged in analysis during this colloquy, the exchange was not “substantially equivalent” to a Summers analysis. In Summers , the Court considered: (1) that “[a] neutral and detached magistrate had found probable cause to believe that the law was being violated in that house and had authorized a substantial invasion of the privacy of the persons who resided there,” 452 U.S. at 701, 101 S. Ct. at 2593, 69 L. Ed. 2d at 349; (2) “the legitimate lawS TATE V
. W ILSON Hudson, J., c oncurring in p art and c oncurring in the r esult in p art

- 4

- enforcement interest in preventing flight in the event that incriminating evidence is found,” id. at 702, 101 S. Ct. at 2594, 69 L. Ed. 2d at 349; (3) that “[t] h e risk of harm to both the police and the occupants is minimized if the officers routinely exercise
unques tioned comman d of the situation,” id. at 702

- 03, 101 S. Ct. at 2594, 69 L. Ed. 2d at 350 (citation omitted); (4) that “ the orderly completion of the search may be facilitated if the occupa nts of the premises are present,” id. at 703, 101 S. Ct. at 2594, 69 L. Ed. 2d at 350; and (5) that “[t] he connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifi es a detention of that occupant,” id. at 703

- 04, 101 S. Ct. at 259 4

- 95, 69 L. Ed. 2d at 350. In Bailey v. United States , the Court seemingly limited the interests identified in Summers to: (1) whether the individual detained was an occupant, (2) officer safety, (3) facilitating the completion of the search, and (3) pr eventing flight. See Bailey, 568 U.S. 186, 195, 133 S. Ct. 1031, 1038, 185 L. Ed. 2d 19, 29 (2013). In addition, Bailey expressly limited the holding in Summers to cases in which the person was detained within “the immediate vicinity of the premises to b e searched.” Id. at 199, 133 S. Ct. at 1041, 185 L. Ed. 2d at 32. Here, even if the trial court’s inquiry could be construed to have considered and made findings on any of the Summers factors, the court certainly did not make a finding regarding whether defendant was an occupant of the premises being searched. The trial court merely stated that “ I mean, if there’s an ongoing search ofS TATE V
. W ILSON Hudson, J., c oncurring in p art and c oncurring in the r esult in p art

- 5

- the premises, you don’t want a citizen who may or may not be related to the premises just walking up there.” As such, t he trial court, in its inquiry, made no findings on whether or not defendant was an occupant of the premises. Whether the person detained is an occupant of the premises being searched is an indispensable aspect of the Summers analysis. See Bailey, 568 U .S. at 200, 133 S. Ct. at 1041, 185 L. Ed. 2d at 32

- 33 (stating that in Summers the Court recognized that “[b] ecause the detention occurs in the individual ’ s own home , ‘ it could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compel led visit to the police station’ ” (emphasis added) (quoting Summers , 452 U.S. at 702, 101 S. Ct. at 2594, 69 L. Ed. 2d at 349)); Muehler v. Mena , 544 U.S. 93, 98, 125 S. Ct. 1465, 1469, 161 L. Ed. 2d 299, 306 (2005) (“ In Michigan v. Summers , 452 U.S. 692 (1981), we held that officers executing a search warrant for contraband have the authority ‘ to detain the occupants of the premises whil e a proper search is conducted.’ ” (qu oting Summers, 452 U.S. at 705, 101 S. Ct. at 2595, 69 L. Ed. 2d at 351)); Summers , 452 U.S. at 701, 101 S. Ct. at 2593, 69 L. Ed. 2d at 349 (“ Of prime importance in assessing the intrusion is the fact that the police had obtained a warrant to search respondent’ s house for contraband. ”) emphases added)). As a result, by failing to find whether defendant was an occupant of the premises being searched, the trial court, in its inquiry, failed to engage in an analysis equivalent to Summers . Therefore, in my view “the Summers grounds for relief” are not “apparent” from the trial court’sS TATE V
. W ILSON Hudson, J., c oncurring in p art and c oncurring in the r esult in p art

- 6

- inquiry. N.C. R. App. P. 10(a)(1). The “ Summers grounds for relief” are also not “apparent” from the trial court’s order denying defendant’s motion to suppress. N.C. R. App. P 10(a)(1). In fact, the order demonstrates that the Summers issue was not “ raised and passed on by the trial court .” Davis , 364 N.C. at 301, 698 S.E. 2d at 67 (quoting Tirado , 358 N.C. at 571, 599 S.E. 2d at 529). Specifically, the trial court , in its conclusions of law, analyzed defendant’s detention only under Terry v. Ohio and neither defendant nor the trial court mentioned Summers . Further, the order contains no findings relevant to the rule discussed by the majority that a person is an oc cupant for the purposes of Summers when the person “poses a real threat to the safe and efficient execution of a search warrant.” Bailey, 568 U.S. at 201, 133 S. Ct. at 1042, 185 L. Ed. 2d at 33. Specifically, the trial court’s order made no findings con cerning whether defendant was a threat. Therefore, the majority’s assertions that “[w]e believe defendant posed a real threat to the safe and efficient execution of the search warrant in this case,” and “[i]t was obvious that the defendant posed a threat” are not reflected by findings or conclusions in the actual order. Lastly, contrary to the majority’s conclusion, our decision in Austin does not stand for the principle that the State, as the appellee before the Court of Appeals, can
argue an unpreserv ed constitutional issue. The majority relies on a quote of Austin in which we stated that “[t] he question for review is whether the ruling of the trial court was correct and not whether the reason given therefor is sound or tenable. ”S TATE V
. W ILSON Hudson, J., c oncurring in p art and c oncurring in the r esult in p art

- 7

- Austin , 320 N.C. at 290, 357 S.E. 2d at 650 (citing State v. Blackwell , 246 N.C. 642 , 644, 99 S.E. 2d 867, 869 (1957)). Although this language may appear to support the majority’s assertion, this Court in Austin did not allow a party to bring an unpreserved constitutional ar gument on appeal. In Austin , defendant challenged the trial court’s d enial of his motion to suppress, arguing that the trial judge applied an incorrect legal standard on the issue of whether intoxication invalidated his voluntary consent to a search. Se e id. at 289

- 90, 357 S.E. 2d at 649

- 650 . In denying defendant’s motion to suppress, the trial court concluded that defendant’s intoxication did not invalidate his consent to the search, because it did not “amount[ ] to a mania as to lead the user to be un conscious of the meaning of his words.” Id. at 289 , 357 S.E. 2d at 650 . Defendant contended that this was an improper legal standard. Id. at 290 , 357 S.E. 2d at 650

. Rejecting defendant’s argument, this Court reasoned that “[a]ssuming arguendo that the trial court’s reasoning for denying defendant’s motion to suppress was incorrect, we are not required on this basis alone to determine that the ruling was erroneous.” Id. at 290, 357 S.E. 2d at 650 (citing State v. Gardner , 316 N.C. 605 , 342 S.E. 2d 872 (1986)). We added that “[a] correct decision of a lower court will not be disturbed on review simply because an insufficient or superfluous reason is assigned. The question for review is whether the ruling of the trial court was correct and not wh ether the reason given therefor is sound or tenable.” Id. at 290, 357 S.E. 2d at 650 (citing Blackwell , 246 N.C. at 644, 99 S.E. 2d at 869 ). We concluded, ultimately, that “[t]he crucial inquiryS TATE V
. W ILSON Hudson, J., c oncurring in p art and c oncurring in the r esult in p art

- 8

- for this Court is admissibility and whether the ultimate ruling was supported by the evidence.” Id. at 290, 357 S.E. 2d at 650.
The facts of Austin , however, are distinguishable from the facts here, because in Austin defendant explicitly raised the issue of the voluntariness of his consent to the sea rch before the trial court. See i d. at 290, 357 S.E. 2d at 650 (“[D]efendant challenged the voluntariness of his consent on two grounds: his alleged intoxication; and his low intelligence . . . .”). Therefore, Austin did not involve an unpreserved consti tutional argument. See id. at 290, 357 S.E. 2d at 650

. Here, as demonstrated above, the trial court’s inquiry with defendant’s counsel did not preserve the Summers issue. Further, as demonstrated above, neither the trial court’s inquiry, nor its orde r denying defendant’s motion to suppress made the Summers issue “apparent from the context.” N.C. R. App. P. 10(a)(1). Moreover, the Summers issue was not “apparent” from the State’s argument before the trial court on defendant’s motion to suppress. N.C . R. App. P 10(a)(1). The State asserted that the case was “just as the thrust of the written motion seems to indicate, purely a Terry issue.” The State then proceeded to frame its constitutional claim as a Terry issue without ever mentioning Summers

. As a result, the majority cannot rely on Austin for the principle that an unpreserved constitutional issue can be argued for the first time on appeal. Austin did not abrogate our general rule that

“ [c]onstitutional questions not raised and passed on by the trial court will not ordinarily be considered on appeal.” Davis , 364 N.C. at 301, 698 S.E. 2d at 67S TATE V
. W ILSON Hudson, J., c oncurring in p art and c oncurring in the r esult in p art

- 9

- (alteration in original) (quoting Tirado , 358 N.C. at 571, 599 S.E. 2d at 529). For the above reasons, I agree with the majority that defendant’s de tention was justified under Terry , and that our granting of the State’s petition for discretionary review allowed it to argue Summers before this Court. However, I disagree with the majority’s application of Summers here because Terry wholly resolved the issue of whether the seizure and search of defendant were constitutional, the trial judge’s colloquy with defense counsel did not adequately preserve the Summers issue, the Summers issue was not “apparent from the context” of the discussion in the trial co urt as Rule 10(a)(1) of our Rules of Appellate Procedure contemplates, and our decision in Austin does not stand for the principle that an appellee before the Court of Appeals can bring an unpreserved constitutional issue for the first time on appeal. The refore, I respectfully concur in part and concur in the result in part. Justice BEASLEY and Justice MORGAN join in this concurring opinion.Justice BEASLEY , concurring in the result only

.

I join in Justice Hudson’s concurring opinion. Nonetheless, I write separately to make clear that, regardless of whether the State’s Summers argument was preserved for appel late review, I would decline to address it in this case. Because the instant case is fully resolved by application of the familiar and well

- settled Terry standard, I would not extend the Summers rule to justify the search of defendant. Thus, for the reas ons stated below, I concur only in the result reached by the majority. The majority concludes that “a person is an occupant for the purposes of the Summers rule if he ‘pose s a real threat to the safe and efficient execution of a search
warrant. ’ ” Majorit

y Opinion at 9 (quoting Bailey v. United States , 568 U.S. 186, 201, 185 L. Ed. 2d 19, 33 (2013) ). In addition to being only tangentially related to the rationales underlying Summers , this definition suffers from both overbreadth and
vagueness. In Michigan v. Summers , t he Supreme Court held “ that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” 452 U.S. 692, 705, 69 L. Ed. 2d 340 , 351 (1981) (footnotes omitted)

. The Court has not defined the term “occupants” for purposes of the Summers doctrine, but it did explicitly state the rationales justifying the categorical rule: (1) the risk of the occupant fleeing the s earched premises if contraband is found; (2) the risk of harm to law enforcement in the event of “sudden violence or frantic efforts to conceal orS TATE V
. W ILSON Beasley, J., concurring in the result

- 2

- destroy evidence,” 1 and (3) the possibility that “the orderly completion of the search may be facilitated” by the presence of the occupants of the premises. Id. at 702

- 03, 69 L. Ed. 2d at 349

- 50

. Given the Court’s stated justifications for Summers ’ s categorical rule, the term “occupant” can most reasonably be interpreted as a resident of the searched premises or a person physically on the premises that are the subject of the search warrant at the time the search is commenced

. 2 A nonresident arriving on the scene after the search has commenced has no reason to flee upon t he discovery of contraband, to attempt to dispose of evidence, to interfere with the search, or to harm law enforcement officers because, unlike a resident or a person found at the scene when the officers arrive to conduct the search, evidence of wrongdoin g discovered o n the premises could not reasonably be attributed to him. 3 Furthermore, t he presence of a

1 Notably, the Co urt did not rely on a generalized officer safety rationale, but on the specific threat to officers presented by the presence of an individual attempting to destroy or conceal evidence

— someone who would reasonably be implicated in criminal activity should c ontraband be found.

2 Such an interpretation would also be consistent with the plain meaning of the word, s ee Occupant , Black’s Law Dictionary (10th ed. 2014) (“ 1. Someone who has possessory rights in, or control over, certain property or premises. 2. Someone who acquires title by occupancy. ”); Occupant , The American Heritage Dictionary of the English Language 1215 (4th ed. 2000) (“1. One that occupies a position or place

. . . 2. One who has certain legal rights to or control over the premises occupied ; a tenant or owner. 3. Law One that is the first to take possession of something previously unowned.”), and with the Court’s later language on the topic, see Bailey v. United States , 568 U.S. 186, 201, 185 L. Ed. 2d 19, 33

- 34 (2013) (noting that one fact or to consider in determining whether a person is subject to Summers ’s categorical rule is “whether the occupant was within the line of sight of his dwelling ” (emphasis added)). The majority’s definition renders the word “occupant” interchangeable with te rms no more specific than “person” or “individual.”

3 That a nonresident who arrives on the scene after the search commences is notS TATE V
. W ILSON Beasley, J., concurring in the result

- 3

- nonresident could do little to facilitate the search

— a nonresident would not be able to open locked doors or containers and would have no interest in a voiding “the use of force that is not only damaging to property but may also delay the completion of the [search],” as contemplated by the C ourt in Summers

. See id. at 703, 69 L. Ed. 2d at
350 . Moreover, the existence of a valid search warrant

— the founda tion on which Summers ’ s categorical rule is built

— is premised on a judicial officer’s determination that “police have probable cause to believe that someone in the home is committing a crime.” Id. at 703, 69 L. Ed. 2d at 350 (emphasis added). That findin g of probable cause does not extend reasonably to a nonresident or a person who is not in the home during the search

. The majority’s definition of “occupant” requires no connection whatsoever to the property that is the subject of a search warrant or t he suspected criminal activity

— only that the person detained “ pose s a real threat to the safe and efficient execution ” of the warrant. It is not unusual for a crowd of curious onlookers to gather along a police perimeter. How an officer executing a search warrant might differentiate a person posing a real threat from a neighbor or an innocent bystander is unclear, as any person in the vicinity of a police search could potentially interfere with the search or harm officers. Moreover, if an officer were able to conclude that a

categorically subject to suspicionless detention does not mean he cannot be detained. As in the instant case, law enforceme nt officers may detain an individual when the totality of the circumstances supports reasonable suspicion that criminal activity is afoot, and officers may search him when they reasonably believe he is armed. See Terry v. Ohio , 392 U.S. 1 , 30, 20 L. Ed. 2 d 889 , 911 (1968)

.S TATE V
. W ILSON Beasley, J., concurring in the result

- 4

- person posed such a threat, invocation of Summers ’s categorical rule would be unnecessary because, as was the ca se here, the detention and search of that person would be justified by Terry

. The majority contends that law enforcement officers’ authority to “mitigate the risk of someone entering the premises during a search by taking routine precautions, for instance by erecting barricades or posting someone on the perimeter or at the door,” gives rise to “some categorical authority for police to detain individuals who attempt to circumvent them.” Majority Opinion at 9

- 10 (citations omitted). The power to exclude, ho wever, is not the same as the power to detain; no Fourth Amendment issue arises from an individual’s mere exclusion from an area. Law enforcement officers can, and routinely do, exclude members of the public from geographical areas for a variety of reason s, including during the execution of search warrants. The proper response when a person attempts to circumvent officers’ instructions is an entirely separate question from whether all individuals in the vicinity of an active search

— any of whom could conce ivably pose a threat to officers

— should be subject to suspicionless detention. Where, as here, an individual does attempt to bypass a police perimeter, his suspicious behavior likely justifies a Terry stop. Thus, the majority’s extension of Summers ’s cat egorical rule dramatically expands the government’s power over individuals but provides no additional protection for officers in the field. Accordingly, I concur only in today’s result.