in the Supreme Court on 7 February 2018.
discretionary review pursuant to N.C. G.S. § 7A-31 of a
unanimous decision of the Court of Appeals, __ N.C.App. __,
795 S.E.2d 374 (2016), ordering that defendant receive a new
trial after appeal from a judgment entered on 4 December 2015
by Judge Eric C. Morgan in Superior Court, Guilford County.
H. Stein, Attorney General, by Derrick C. Mertz and John G.
Batherson, Special Deputy Attorneys General, for the
Christopher Yoder for defendant-appellee.
Southern Coalition for Social Justice, by Ian A. Mance and
Ivy A. Johnson, for The Beloved Community Center of
Greensboro, amicus curiae.
MARTIN, CHIEF JUSTICE.
a traffic stop, Officer H.B. Harris of the Greensboro Police
Department found cocaine in defendant's coat pocket.
Defendant did not move to suppress evidence of the cocaine
before or at trial, but instead argued for the first time on
appeal that the seizure of the cocaine resulted from various
Fourth Amendment violations. We hold that defendant's
Fourth Amendment claims are not reviewable on direct appeal,
even for plain error, because he completely waived them by
not moving to suppress evidence of the cocaine before or at
trial. We therefore reverse the decision of the Court of
Appeals and remand this case to the Court of Appeals for
Harris pulled defendant over after a DMV records check
indicated that the license plate number for the car that he
was driving had been revoked due to unpaid insurance
premiums. At the time of the traffic stop, Derick Sutton, the
car's owner, was in the passenger's seat. After a
brief conversation, Officer Harris asked Sutton and then
defendant to step out of the car. Both men complied.
parties dispute exactly what happened next, including whether
defendant consented to be searched. But they do not dispute
that Officer Harris ultimately searched defendant. When
Officer Harris checked defendant's coat pocket, he found
a bag of white powder that was later confirmed to be cocaine
and presented as Exhibit 1 at trial. Officer Harris was
wearing a body camera that was recording video footage during
this traffic stop.
did not move in limine to suppress evidence of the cocaine,
even when the trial court specifically asked if there were
pretrial matters to address. Nor did defendant object to the
State's use of the cocaine evidence at any point
during his trial, either when Officer Harris
testified about finding cocaine in his pocket or when the
cocaine itself was introduced as evidence. Defendant argued
to the Court of Appeals that the trial court "plainly
erred" by "admitting the cocaine and testimony
about the cocaine, " and that the seizure of the cocaine
resulted from various Fourth Amendment violations. Defendant
also argued that his trial counsel was ineffective for not
moving to suppress evidence of the cocaine.
the Court of Appeals acknowledged that "footage from an
officer's body camera may not reveal the totality of the
circumstances, " State v. Miller, __ N.C.App.
__, __n.1, 795 S.E.2d 374, 376 n.1 (2016),
it nonetheless considered the evidence that was presented at
trial, including Officer Harris' body camera footage, and
conducted plain error review, see id. at__, 795
S.E.2d at 376-79. The Court of Appeals determined that
Officer Harris unconstitutionally extended the traffic stop
and that, even if Officer Harris had not unlawfully extended
the stop, defendant's consent to the search of his person
was not valid. Id. at__, 795 S.E.2d at 378-79. In
the course of its analysis, the Court of Appeals made
determinations about the credibility of Officer Harris'
testimony. See id.
Court of Appeals ultimately concluded that the trial court
committed plain error by admitting evidence of the cocaine.
Id. at__, 795 S.E.2d at 376-79. Because the Court of
Appeals ordered a new trial based on defendant's Fourth
Amendment claims, it did not reach defendant's
ineffective assistance of counsel claim. Id. at__,
795 S.E.2d at 379. The State petitioned this Court for
discretionary review of two issues: whether defendant's
Fourth Amendment claims were susceptible to plain error
review and, if so, whether the Court of Appeals correctly
found plain error. We allowed review of both issues.
Court adopted plain error review in State v. Odom,
307 N.C. 655, 300 S.E.2d 375 (1983). As a general rule,
"plain error review is available in criminal appeals for
challenges to jury instructions and evidentiary issues."
Dogwood Dev. & Mgmt. Co. v. White Oak Transp.
Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008)
(citations omitted) (first citing Odom, 307 N.C. at
660, 300 S.E.2d at 378; and then citing State v.
Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000),
cert. denied, 532 U.S. 997, 121 S.Ct. 1660 (2001)).
Even after adopting plain error review, however, we have
continued to indicate that the failure to move to suppress
evidence when required by statute constitutes a waiver of
those claims on appeal. See, e.g., State v.
Hucks, 332 N.C. 650, 652-53, 422 S.E.2d 711, 713 (1992);
State v. Maccia, 311 N.C. 222, 227-28, 316 S.E.2d
241, 244 (1984). But we have not squarely addressed whether
plain error review is available when a defendant has not
moved to suppress. See, e.g., State v.
Walters, 357 N.C. 68, 85, 588 S.E.2d 344, 354, cert.
denied, 540 U.S. 971, 124 S.Ct. 442 (2003). This issue
is therefore one of first impression for this Court.
guidance, we first turn to the statutory framework that
governs the suppression of unlawfully obtained evidence in
our trial courts. N.C. G.S. § 15A-974(a)(1) states that,
"[u]pon timely motion, evidence must be suppressed if .
. . [i]ts exclusion is required by the Constitution of the
United States or the Constitution of the State of North
Carolina." And N.C. G.S. § 15A-979(d) specifies
that "[a] motion to suppress evidence made pursuant to
this Article is the exclusive method of challenging
the admissibility of evidence" on constitutional
grounds. (Emphasis added.) A defendant generally "may
move to suppress evidence only prior to trial, " N.C.