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State v. Thompson

Court of Appeals of North Carolina

January 2, 2018

STATE OF NORTH CAROLINA, Plaintiff,
v.
JERRY GIOVANI THOMPSON, Defendant.

          Heard in the Court of Appeals 5 October 2017.

         Appeal by defendant from judgment entered 3 January 2017 by Judge William R. Bell in Mecklenburg County Superior Court, Nos. 15 CRS 212911-212913

          Attorney General Joshua H. Stein, by Assistant Attorney General Robert T. Broughton, for the State.

          Robinson, Bradshaw & Hinson, P.A., by Erik R. Zimmerman, for defendant-appellant.

          ZACHARY, JUDGE.

         Jerry Thompson (defendant) appeals from the judgment sentencing him for convictions of felony possession of marijuana, possession with intent to sell or deliver marijuana, possession of drug paraphernalia, and possession of a firearm by a convicted felon. On appeal, defendant argues that the trial court erred by denying his motion seeking the suppression of evidence, and that the judgment sentencing him for felony possession of marijuana should be vacated on the grounds that he did not plead guilty to that offense. After review of defendant's arguments, in light of the record and the applicable law, we conclude that the factual findings in the order denying defendant's suppression motion did not resolve a pivotal disputed issue of fact, requiring us to vacate the judgment and remand for further findings. We further conclude that the judgment entered against defendant and the written transcript of plea, both of which were signed by the trial judge, are inconsistent, and we remand for resolution of this discrepancy.

         Factual and Procedural Summary

         On 10 April 2015, law enforcement officers executed a search warrant for an apartment on Basin Street, in Charlotte, North Carolina. When the officers arrived at the apartment, defendant was sitting in his car in front of the residence. Two officers approached defendant in order to prevent any interference with the execution of the search warrant, and remained near defendant while the apartment was being searched. During this time, defendant was asked to provide identification, which he did. Defendant also consented to a search of his person, which did not reveal contraband. At some point, another officer came out of the apartment and asked defendant for permission to search his car, and upon searching the trunk of defendant's car, found marijuana and a firearm. Defendant was arrested on charges of possession of drug paraphernalia, possession with the intent to sell or deliver marijuana, and possession of a firearm by a convicted felon.

         On 28 March 2016, defendant was indicted for possession of drug paraphernalia, possession with the intent to sell or deliver marijuana, felony possession of marijuana, maintaining a vehicle for the purpose of keeping or selling controlled substances, and possession of a firearm by a convicted felon. On 4 October 2016, defendant filed a motion seeking suppression of the evidence seized at the time of his arrest, on the grounds that the evidence was seized pursuant to an illegal search and seizure that violated his rights under the Fourth Amendment to the United States Constitution.

         The charges against defendant came on for trial beginning on 3 January 2017. A hearing was conducted prior to trial on defendant's motion to suppress. The evidence adduced at the hearing tended to show the following: Sergeant Michael Sullivan of the Charlotte-Mecklenburg Police Department testified that on 10 April 2015, he led a group of officers in the execution of a search warrant for the Basin Street apartment. The target of the search warrant was a woman. When the officers arrived, Sergeant Sullivan saw a person seated in the front seat of an automobile parked in front of the apartment building. Sergeant Sullivan approached the car, in order to make sure that the individual in the passenger seat was not the woman named in the search warrant, and to ensure that the person did not interfere with the execution of the search warrant. Defendant, who was the person sitting in the car, told Sergeant Sullivan that he did not live in the apartment, but that his girlfriend did.

         Sergeant Sullivan remained near defendant's car and informed defendant that the officers were executing a drug-related search warrant in his girlfriend's apartment. At the officer's request, defendant consented to a search of his person, which did not reveal the presence of contraband. Sergeant Sullivan then asked defendant for his identification, before "hand[ing] him off"' to Officer Justin Price, giving Officer Price defendant's license, and going inside to supervise the search. Sergeant Sullivan left defendant with Officers Price and Blackwell, and had no further contact with defendant. Officer Price, however, testified that when he came outside, defendant was already in custody.

         Officer Michael Blackwell testified that he and Sergeant Sullivan remained with defendant during the search, and explained to defendant why the officers were there. Defendant told Officer Blackwell that the woman named in the search warrant was his girlfriend. After eight to ten minutes, Officer Hefner came outside and asked for permission to search defendant's car. Defendant consented to the search. Marijuana and a firearm were found in the trunk of the car. On cross-examination, Officer Blackwell testified that eight to twelve officers were present, that he and Sergeant Sullivan had approached defendant to ensure that no one interfered with their execution of the search warrant, and that both officers were armed and in uniform. Officer Mark Hefner testified that during the search, he "received information that the defendant was the supplier of the drugs." Accordingly, he obtained defendant's consent to search his car.

         Defendant testified that he was 61 years old and worked for the Red Cross. On 10 April 2015, he drove to the Basin Street apartment to visit his girlfriend, who was the person named in the search warrant. He was "taken aback" when a number of law enforcement officers arrived wearing "SWAT attire" and went inside. Officer Blackwell approached him and told him that he could not leave, and took his keys and wallet. Defendant waited for twenty or thirty minutes with the officers, before Officer Hefner came out of the apartment. Defendant denied giving the officers permission to search his car.

         Following the presentation of evidence and the arguments of counsel, the trial court orally denied defendant's motion to suppress. Defendant then pleaded guilty, pursuant to a plea bargain with the State, to possession of drug paraphernalia, possession with the intent to sell or deliver marijuana, and possession of a firearm by a convicted felon.[1] Under the terms of the plea agreement, the State would dismiss the charge of maintaining a vehicle for keeping or selling controlled substances, and defendant would receive a consolidated sentence for the remaining offenses. Defendant pleaded guilty while preserving his right to appeal the denial of his motion to suppress. The trial court sentenced defendant to a term of 13 to 25 months' imprisonment, suspended the sentence, and placed defendant on 24 months' supervised probation. On 5 January 2017, the trial court entered a written order denying defendant's suppression motion. Defendant gave notice of appeal to this Court.

         Standard of Review

         Defendant argues on appeal that the trial court erred by denying his suppression motion. "The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law." State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citation omitted). "This Court reviews conclusions of law stemming from the denial of a motion to suppress de novo. . . . Under a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the lower tribunal." State v. Borders, 236 N.C.App. 149, 157, 762 S.E.2d 490, 498-99 (2014).

         Motion to Suppress

         Legal Principles

         The Fourth Amendment to the United States Constitution protects the "right of the people to be secure . . . against unreasonable searches and seizures." U.S. Const. amend. IV. "The Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Article I, Section 20 of the North Carolina Constitution provides similar protection against unreasonable seizures. N.C. Const. art. I, § 20." State v. Campbell, 359 N.C. 644, 659, 617 S.E.2d 1, 11 (2005) (citing State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994)). However, not all interactions between citizens and law enforcement officers fall within the ambit of the Fourth Amendment:

U.S. Supreme Court holdings carve out . . . three tiers of police encounters: communication between the police and citizens involving no coercion or detention and therefore outside the compass of the Fourth Amendment, brief 'seizures' that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause.

State v. Sugg, 61 N.C.App. 106, 108, 300 S.E.2d 248, 250 (1983) (citing United States v. Berry, 670 F.2d 583 (5th Cir. 1982)).

         Accordingly, a law enforcement officer does not require any suspicion of criminal activity to engage in a consensual interaction with a citizen, and in such a situation the protections of the Fourth Amendment are not implicated:

Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. . . . Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred.

Florida v. Bostick, 501 U.S. 429, 434, 115 L.Ed.2d 389, 398 (1991) (internal quotations omitted).

         It is long-established that "a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 64 L.Ed.2d 497, 509 (1980). As a result, "an initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, 'if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " INS v. Delgado, 466 U.S. 210, 215, 80 L.Ed.2d 247, 255 (1984) (quoting Mendenhall, 446 U.S. at 554, 64 L.Ed.2d at 509).

         Discussion

         In its order denying defendant's suppression motion, the trial court concluded that, at the time defendant was asked for consent to search his car, he "was neither seized nor in custody." On appeal, defendant argues that this conclusion was erroneous, and was not supported by the evidence adduced at the hearing. We conclude that the trial court's order failed to resolve disputed issues of fact that are central to our ability to conduct a meaningful appellate review.

         As noted above, "the United States Supreme Court has long held that the Fourth Amendment permits a police officer to conduct a brief investigatory stop of an individual based on reasonable suspicion that the individual is engaged in criminal activity." State v. Jackson, 368 N.C. 75, 77, 772 S.E.2d 847, 849 (2015) (citing Terry v. Ohio, 392 U.S. 1, 30-31, 20 L.Ed.2d 889, 911 (1968)). Reasonable suspicion requires "specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by [the officer's] experience and training." Watkins, 337 N.C. at 441, 446 S.E.2d at 70 (citation omitted).

         Because the trial court concluded that defendant had not been seized, it did not address the issue of whether reasonable suspicion could have supported a seizure of defendant. However, it is undisputed that the law enforcement officers' interactions with defendant were not based upon suspicion of criminal activity. Officer Sullivan testified that defendant was not named in the search warrant and that he approached defendant to "make sure that [he] wasn't the target of the search warrant, and that [he] didn't interfere with the search warrant since [he was] in such close proximity to where we were going." Defendant consented to show Officer Sullivan his driver's license and to be searched, neither of which revealed anything suspicious. Similarly, Officer Blackwell agreed that "the purpose of [his] making contact [with defendant] was to ensure that he would not interfere with the execution of the search warrant." The State did not elicit testimony at the hearing suggesting that the officers suspected defendant of engaging in criminal behavior, and does not argue on appeal that reasonable suspicion existed to detain defendant. We have carefully reviewed the transcript and conclude that there was no evidence that the law enforcement officers approached defendant based on a reasonable suspicion of criminal activity. Therefore, if defendant was seized by law enforcement officers, the seizure was a violation of defendant's rights under the Fourth Amendment, and would require suppression of the evidence found in his trunk. See, e.g., Bostick, 501 U.S. at 433-34, 115 L.Ed.2d at 398:

The sole issue presented for our review is whether a police encounter on a bus of the type described above necessarily constitutes a "seizure" within the meaning of the Fourth Amendment. The State concedes, and we accept for purposes of this decision, that the officers lacked the reasonable suspicion required to justify a seizure and that, if a seizure took place, the drugs found in Bostick's suitcase must be suppressed as tainted fruit.

         As discussed above, a criminal defendant has been subjected to a seizure by police "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 554, 64 L.Ed.2d at 509. "[T]he Mendenhall test does not take into account a defendant's subjective impressions of an encounter with police officers, but instead asks whether the police officers' actions would have led a 'reasonable person' to believe that he was not free to leave the scene." State v. Isenhour, 194 N.C.App. 539, 543, 670 S.E.2d 264, 268 (2008) (citing Mendenhall). In determining whether a defendant was seized, "[r]elevant circumstances include, but are not limited to, the number of officers present, whether the officer displayed a weapon, the officer's words and tone of voice, any physical contact between the officer and the individual, whether the officer retained the individual's identification, or property, the location of the encounter, and whether the officer blocked the individual's path." State v. Icard, 363 N.C. 303, 309, 677 S.E.2d 822, 827 (2009).

         In this case, the trial court's findings generally established the following:

1. An unspecified number of law enforcement officers executed a search warrant for an apartment on Basin ...

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