IN THE SUPREME COURT OF NORTH CAROLINA

No. 295PA17

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unpublished decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 698

(2017), 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 the house to create a 

perimeter securing the scene. Defendant penetrated this SWAT perimeter, stating 

that he was going to get his moped. In so doing, he passed Officer Christian, who was 
STATE V. WILSON

Opinion of the Court

-2-

stationed at the perimeter near the street. Defendant then kept going, moving up 

the driveway and toward the house to be searched. Officer Ayers, who was stationed 

near the house, confronted defendant. After a brief interaction, Officer Ayers 

searched defendant based on his suspicion that defendant was armed. Officer Ayers 

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, defendant 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 that Officer Ayers “had a reasonable and 

articulable suspicion that the Defendant might have been 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. The Court 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). The 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. 2587 (1981), and that Officer 
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Opinion of the Court

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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 

continued 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, 1041-42 (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 

individualized suspicion and thus did not violate the Fourth Amendment. See Terry 

v. Ohio, 392 U.S. 1, 28, 88 S. Ct. 1868, 1883 (1968). We therefore reverse the decision 

of the Court of Appeals.

The following facts are not in dispute. At around 11:00 p.m. on 21 March 2014, 

officers of the Winston-Salem Police Department executed a search warrant for the 

premises at 2300 North Glenn Avenue. This address was a residential lot with a 

driveway that was about eighty feet long leading to a house and another building. 

While the initial sweep was being conducted by a SWAT team, several uniformed 

officers maintained a perimeter 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 officers, as well as safety equipment such as Kevlar 

vests and ballistic helmets. In its findings of fact, the trial court stated that the police 

presence at 2300 North Glenn Avenue that night was such that it would be clear to 
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Opinion of the Court

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any passerby that police were engaged in an operation and intended to exclude the 

general public from the property. Officers Ayers and Christian were among the 

uniformed 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 the 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 farther 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 detained defendant. Defendant was ultimately charged with, and 

pleaded guilty to, possession of a firearm by a felon. 
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Opinion of the Court

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In its argument to this Court, the State asks us to apply the categorical rule 

from Michigan v. Summers to the facts of this case.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 detain the occupants of the premises while a proper search is 

conducted.” Summers, 452 U.S. at 705, 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 officers routinely exercise unquestioned 

command of the situation.” Id. at 702-03, 101 S. Ct. at 2594 (citing 2 Wayne R.

LaFave, Search and Seizure § 4.9, at 150-51 (1978)). The Court has further 

emphasized three 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 

Court 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" rather 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. 2d 224 

(1987). As a result, the State can raise the Summers issue here as the appellant challenging 

the Court of Appeals decision.
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Opinion of the Court

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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 preventing 

flight.” Bailey, 568 U.S. at 194, 133 S. Ct. at 1038 (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, 1470 (2005) (quoting Summers, 

452 U.S. at 705 n.19, 101 S. Ct. at 2595 n.19).

The Supreme Court has further defined the category covered by the Summers 

rule on two occasions. First, in Muehler v. Mena, the plaintiff, suing several police 

officers, challenged both the use of handcuffs incident to a Summers seizure and the 

two- to three-hour duration of the seizure. See id. at 95-96, 125 S. Ct. at 1468-69. In 

finding 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 2594). The Court also held that the seizure was permissible during the 

entirety of the execution of the search warrant. See id. at 100, 125 S. Ct. at 1471

(holding that “the 2- to 3-hour detention in handcuffs . . . [did] not outweigh the 

government’s continuing safety interests”).

Second, in Bailey v. United States, the Supreme Court was confronted with a 

defendant who was arrested almost one mile away from the location being searched. 
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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 warrant 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 understanding 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 premises 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 this 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 are “within 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,” id. 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 1472 (holding that “the officers’ detention of Mena in handcuffs during the 

execution of the search warrant was reasonable and did not violate the Fourth 
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Opinion of the Court

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Amendment”). These three parts roughly correspond 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. And the application of that 

guidance to this case is straightforward. No one 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 searched. Defendant walked past 

Officer Christian, who was standing close to where the driveway connected to the 

street, and proceeded toward Officer Ayers, who was standing near the house being 

searched. When Officer Ayers stopped him, defendant was well within the lawful 

limits of the property containing the house being searched. And, had he not been 

stopped by police, defendant could easily have accessed 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, we 

acknowledge 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.
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Opinion of the Court

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In Bailey, the Supreme Court recognized that 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 Summers 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 is 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 is within the premises. Applying the Supreme Court’s reasoning in 

Bailey as to the spatial 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 of 

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 posed a threat to the safe completion of the search. Defendant 

argues that he was not an occupant of the premises being searched in the ordinary 

sense of the word. Given defendant’s actions here, however, it was apparent to Officer 

Ayers that defendant was attempting to enter the area being searched—or, stated 

another way, defendant would have occupied the area being searched if he had not 

been restrained. This understanding of occupancy is necessary given the Supreme 
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Opinion of the Court

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Court’s recognition that officers may constitutionally 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.” 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, the “where” and “when,” are also satisfied. The Summers rule, therefore,

justified the seizure of defendant here. 

But, because 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 person was justified. In 

Terry v. Ohio, the Supreme Court determined that a brief stop and frisk did not 

violate a defendant’s Fourth Amendment 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 suspicious 
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Opinion of the Court

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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 standard 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) (alteration in original) (quoting Illinois v. Wardlow, 528 

U.S. 119, 123, 120 S. Ct. 673, 675-76 (2000)). To meet this standard, an officer “must 

be able to point to specific and articulable facts” and to “rational inferences from those 

facts” justifying the search or seizure at issue. Terry, 392 U.S. at 21, 88 S. Ct. at

1880. “To determine whether reasonable suspicion exists, courts must look at ‘the 

totality of the circumstances’ as ‘viewed from the standpoint of an objectively 

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); and then quoting Ornelas v. United States, 517 U.S. 690, 696, 

116 S. Ct. 1657, 1661-62 (1996)).

“When reviewing a ruling 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 (alterations in original) (quoting 

State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).
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Opinion of the Court

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Here, Officer Ayers was the sole witness who testified at the suppression 

hearing, and the facts that he testified to were uncontested. Based on that testimony,

the trial court found that the police were conducting a search at a location where 

there had been numerous reports of gun violence and were openly maintaining a 

perimeter to prevent public access to the property in question during the search. 

Defendant 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 officer would find [defendant’s behavior] unusual” and 

that, based on the totality of these circumstances, Officer Ayers “had a reasonable 

and articulable suspicion that the Defendant might have been armed 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, it 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 was reasonable to suspect that 

defendant was there to attack police officers on the premises or otherwise violently 
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Opinion of the Court

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interfere with the execution of the search warrant. Because any such violence would 

constitute criminal activity, Officer Ayers had reasonable suspicion, based on these 

circumstances, that criminal activity was afoot. See Terry, 392 U.S. at 30, 88 S. Ct. 

at 1884. Thus, the trial court correctly denied defendant’s motion to suppress.

In this case, the Court of Appeals erred by focusing solely on one finding of fact 

instead of the totality of the circumstances, 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 3480940, at *5. This reasoning, 

though, does not take into account the particular unusual behavior at issue here and 

the totality 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 possessing a weapon.

2 Combining these circumstances with 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 that criminal activity may have been afoot. See Terry, 392 U.S. 

 

2 The fact that defendant was actually lying is not relevant to a finding of reasonable 

suspicion because the lie was not confirmed 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. 
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Opinion of the Court

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at 30, 88 S. Ct. at 1884. The warrantless detention and search of defendant therefore

did not violate the Fourth Amendment.

For the reasons stated above, we 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 defendant’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 that 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). 
STATE V. WILSON

Hudson, J., concurring in part and concurring in the result in part

-2-

Concerning the application 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 long 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 authority 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. 
STATE V. WILSON

Hudson, J., concurring in part and concurring in the result in part

-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 up 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 substantially 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 might 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 law 
STATE V. WILSON

Hudson, J., concurring in part and concurring in the result in part

-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]he risk of harm 

to both the police and the occupants is minimized if the officers routinely exercise 

unquestioned command 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 occupants 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 justifies a detention of that occupant,” id. at 703-04, 101 

S. Ct. at 2594-95, 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) preventing 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 be 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 of 
STATE V. WILSON

Hudson, J., concurring in part and concurring in the result in part

-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, the 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 compelled 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 while a proper search is conducted.’ ” (quoting 

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’s 
STATE V. WILSON

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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 occupant 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 concerning 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 unpreserved 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.” 
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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 argument on appeal. 

In Austin, defendant challenged the trial court’s denial 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. See 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 unconscious 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 whether 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 inquiry 
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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 search before the trial court. See id. 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 

constitutional 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 order 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 67 
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(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 detention 

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 court 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. Therefore, 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 appellate 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 reasons 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 ‘poses a real threat to the safe and efficient execution of a search 

warrant.’ ” Majority 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, the 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 searched premises if contraband is found; (2) the risk of harm to 

law enforcement in the event of “sudden violence or frantic efforts to conceal or 
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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 the 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 wrongdoing discovered on the 

premises could not reasonably be attributed to him.3 Furthermore, the presence of a 

 

1 Notably, the Court 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 

contraband be found.

2 Such an interpretation would also be consistent with the plain meaning of the word, 

see 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 factor 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 terms no more specific than “person” or “individual.”

3 That a nonresident who arrives on the scene after the search commences is not 
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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 avoiding “the use of 

force that is not only damaging to property but may also delay the completion of the 

[search],” as contemplated by the Court in Summers. See id. at 703, 69 L. Ed. 2d at 

350. Moreover, the existence of a valid search warrant—the foundation 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 finding 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 the suspected criminal 

activity—only that the person detained “poses 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 enforcement 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. 2d 889, 911 (1968). 
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person posed such a threat, invocation of Summers’s categorical rule would be 

unnecessary because, as was the case 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, however, 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 reasons, 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 conceivably 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 categorical 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.