State v. Jackson and Pedestrian Evasion

The court of appeals recently decided a case about when a pedestrian’s efforts to avoid an officer provide reasonable suspicion for an investigative stop. The type of encounter involved is reasonably common and the case features a dissent, so it’s worth exploring.

The facts. The case is State v. Jackson, and it arose at 9:00 one evening when a Greensboro officer saw the defendant and another man talking outside a convenience store. The store was a frequent site of drug transactions, and the officer was familiar with both men from prior investigations. When the pedestrians saw the officer, they split and began walking away in opposite directions. The officer continued driving past the store, made a U-turn, and came back. The same two men were talking again outside the store. As the officer began pulling into the store’s parking lot, the men separated and began walking in opposite directions. The officer detained the defendant, obtained consent to search, and found a gun.

The case. The officer charged the defendant with being a felon in possession of a firearm. The defendant moved to suppress, arguing that the officer lacked reasonable suspicion for the stop. A superior court judge denied the motion and the defendant pled guilty, reserving the right to appeal the motion.

The appeal. The court of appeals reversed. It acknowledged that presence at a location known for drug activity, combined with evasive action, can provide reasonable suspicion. But it held that “merely walking away from one’s companion in the presence of law enforcement officers” does not amount to evasive action.

The opinion discusses the facts of a number of similar cases, and so is a nice repository of case law. Its ruling fits well with some of the precedents and less comfortably with others. The most difficult case for the court to harmonize is State v. Butler, 331 N.C. 227 (1992). In Butler, the North Carolina Supreme Court found reasonable suspicion when the defendant was among a group of people congregating on a corner known for drug activity, and “upon making eye contact with the uniformed officers, [the] defendant immediately moved away, behavior that is evidence of flight.” The court of appeals distinguished Butler by describing the defendant in Jackson as “simply observing [a] law enforcement officer[] before walking away,” rather than making eye contact with the officer. I’m not sure how robust that distinction is, but the Jackson court summed things up by saying that the defendant did nothing evasive or suspicious, and the officer “simply saw two young men standing in front of a convenience store move away from each other twice.”

The dissent. Judge Dillon dissented, arguing that the defendant engaged in a “sequence of suspicious behaviors,” i.e., separating from his companion upon seeing the officer; reuniting with him when the officer departed; and separating from him again when the officer returned. Although any one of those steps alone might be of little import, together, Judge Dillon reasoned, they amount to evasion.

Supreme court to weigh in. The State has appealed to the state supreme court based on the dissent, and that court has granted a temporary stay. Briefing isn’t complete so it will be some time before the next, and likely final, chapter in this story is written.