in the Court of Appeals 29 November 2017.
by defendant from judgment entered 17 November 2016 by Judge
Linwood O. Foust in Mecklenburg County No. 14 CRS 249281
Attorney General Joshua H. Stein, by Assistant Attorney
General Kristine M. Ricketts, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Nicholas C. Woomer-Deters, for defendant-appellant.
Robert Fuller ("Defendant") appeals from a judgment
imposing a suspended sentence of 6 to 17 months imprisonment,
with 18 months supervised probation, after a jury found him
guilty of possession of cocaine. On appeal, Defendant
challenges the denial of his motion to suppress evidence of
cocaine, which was seized after a search of his person was
conducted, following his arrest for driving with a revoked
license. We affirm the trial court's denial and find no
December 2014, Charlotte-Mecklenburg Police Officer Wayne
Goode ("Officer Goode") was on duty in the area of
Dalton Street and Tryon Street in Charlotte. Officer Goode
and other officers conducted surveillance of Defendant as he
sat in the driver's seat of a gold-colored Mercedes-Benz
sedan, parked at a gas station located on North Tryon Street.
Officer Goode was familiar with Defendant from previous
investigations, and suspected Defendant was selling narcotics
from that gas station parking lot. Officer Goode also knew
Defendant's driver's license was suspended.
the surveillance operation, Officer Goode observed Defendant
driving away from the gas station. Officer Goode followed
Defendant in order to conduct a traffic stop. While following
Defendant, Officer Goode observed Defendant's Mercedes
turn right off of Tryon Street onto Ashby Street and then
make a quick turn into a parking lot. After the Mercedes
parked in the parking lot, Officer Goode observed Defendant
exit the driver's door and walk to the trunk of the
Goode parked behind Defendant's vehicle, approached
Defendant and requested his identification. After Defendant
obtained his identification from inside the Mercedes, Officer
Goode arrested Defendant for driving with a revoked license.
Officer Goode handcuffed Defendant and placed him inside his
suppression hearing, Officer Goode testified, and the trial
court found, after Officer Goode had placed Defendant into
the police cruiser, he asked Defendant for consent to search
the Mercedes, and that Defendant had consented. Defendant
denied he consented to the search of his Mercedes.
Goode and other officers conducted an initial search of the
Mercedes and did not locate any contraband or narcotics. A
few minutes after this initial search, a K-9 dog unit arrived
to conduct a sniff search of the vehicle.
sniffing the Mercedes, the dog "hit" on the front
right fender and driver's seat cushion. Officers then
conducted a more thorough search of the vehicle, but did not
discover any contraband or narcotics. Officer Goode concluded
that because the K-9 had "hit" on the driver's
seat and no narcotics were found in the Mercedes, the
narcotics were hidden on Defendant's person. Officer
Goode informed his sergeant that he wanted to conduct a
search of Defendant's person.
was transported to the Charlotte-Mecklenburg Police
Department's Metro Division Office and placed into a
private interview room. Officer Goode conducted the search
and another officer assisted by holding one of
Defendant's handcuffed arms. Officer Goode did not seek
Defendant's consent or a warrant to conduct the search.
Goode searched Defendant by first removing and inspecting
Defendant's belt and the contents of his front pants
pockets. Officer Goode observed a hidden area next to the fly
of Defendant's pants. Officer Goode then inspected
Defendant's back pockets and the contents thereof.
Officer Goode continued his search by lowering
Defendant's pants and long johns to his knee area.
Officer Goode pulled out, but did not pull down,
Defendant's underwear and observed Defendant's
genitals and buttocks.
Goode pulled up Defendant's long johns and then inspected
the hidden area on the fly of his pants. Officer Goode
retrieved a bag from the hidden area near the fly of
Defendant's pants. This bag was later determined to
contain .83 grams of cocaine and weigh 1.7 grams. Defendant
was indicted for possession with intent to sell or distribute
a controlled substance and for having obtained habitual felon
pretrial hearing, Defendant made an oral motion to suppress
the evidence of the cocaine obtained from the strip search
conducted by Officer Goode. The trial court denied
Defendant's motion to suppress in an order filed 30
case came to trial on 7 November 2016. Defendant moved to
dismiss the possession with intent to sell or deliver cocaine
charge for insufficiency of the evidence, which motion the
court granted. The lesser-included charge of possession of
cocaine was submitted to the jury. On 14 November 2016, the
jury returned verdicts of guilty of possession of cocaine and
of Defendant having obtained habitual felon status. Upon the
motion of Defendant, the trial court set aside the jury's
verdict on obtaining habitual felon status.
November 2016, the trial court entered judgment and sentenced
Defendant to a suspended sentence of 6 to 17 months
imprisonment, with 18 ...