in the Court of Appeals 5 October 2017.
by defendant from judgment entered 3 January 2017 by Judge
William R. Bell in Mecklenburg County Superior Court, Nos. 15
Attorney General Joshua H. Stein, by Assistant Attorney
General Robert T. Broughton, for the State.
Robinson, Bradshaw & Hinson, P.A., by Erik R. Zimmerman,
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
and Procedural Summary
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.
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.
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.
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.
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.
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.
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. 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.
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).
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
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)).
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
Florida v. Bostick, 501 U.S. 429, 434, 115 L.Ed.2d
389, 398 (1991) (internal quotations omitted).
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).
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
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
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.
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).
case, the trial court's findings generally established
1. An unspecified number of law enforcement officers executed
a search warrant for an apartment on Basin ...