Originally Heard 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
CRS 212911-13. Originally heard in the Court of Appeals 5
October 2017, with opinion issued 2 January 2018. On 1
February 2019, the Supreme Court vacated and remanded to this
Court for reconsideration in light of State v. Wilson, 371
N.C. 920, 821 S.E.2d 811 (2018).
Attorney General Joshua H. Stein, by Assistant Attorney
General Robert T. Broughton, for the State.
Robinson, Bradshaw & Hinson, P.A., by Erik R. Zimmerman,
Jerry Giovani Thompson appealed from the trial court's
judgment sentencing him for convictions of felony possession
of marijuana, possession with intent to sell or deliver
marijuana, possession of marijuana paraphernalia, and
possession of a firearm by a felon. Defendant argued on
appeal that the trial court erred in denying his motion to
suppress. By published opinion issued on 2 January
2018, a majority of this Court concluded over a dissent
"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." State v.
Thompson, ___ N.C. App. ___, ___, 809 S.E.2d 340, 343
(2018) ("Thompson I"). The Supreme Court
subsequently vacated Thompson I and remanded the
matter to this Court for reconsideration in light of the
Supreme Court's decision in State v. Wilson, 371
N.C. 920, 821 S.E.2d 811 (2018). Upon reconsideration, we
conclude that the trial court's order denying
Defendant's motion to suppress cannot be upheld on the
grounds enumerated in State v. Wilson. Accordingly,
we vacate the judgment and remand for entry of additional
findings consistent with our decision in Thompson I.
April 2015, a team of roughly eight to twelve law enforcement
officers with the Charlotte-Mecklenburg Police Department
traveled to an apartment on Basin Street in Charlotte in
order to execute a search warrant. The target of the search
warrant was a female.
was cleaning his vehicle in the street adjacent to the
apartment when the officers arrived to execute the search
warrant. Sergeant Michael Sullivan approached Defendant in
order to confirm that he was not the female named in the
search warrant and to ensure that he would not interfere with
the search. Defendant told Sergeant Sullivan that he did not
live in the apartment, but his girlfriend did.
Sullivan asked Defendant for his identification, "handed
him" and his driver's license off to Officer Justin
Price, and then proceeded inside the apartment in order to
supervise the search. Officer Price testified that Defendant
was already in custody at that point. Officer Price and
Officer Michael Blackwell remained outside with Defendant
while the other officers executed the search warrant. Roughly
ten minutes later, Officer Mark Hefner exited the apartment
and asked Defendant for permission to search his vehicle.
Defendant consented to the search, and officers found
marijuana, paraphernalia, and a firearm in the trunk.
was indicted for possession of marijuana paraphernalia,
possession with intent to sell or deliver marijuana, felony
possession of marijuana, maintaining a vehicle for the
purpose of keeping a controlled substance, and possession of
a firearm by a felon.
October 2016, Defendant filed a motion to suppress the
evidence seized from the search of his vehicle. Defendant
argued that "[t]he initial police encounter . . . was
not a voluntary contact, but rather an illegal seizure and
detention of [Defendant] which was unsupported by reasonable
suspicion," and that the trial court was therefore
required to "suppress all evidence gathered as a result
of the illegal seizure of his person and the illegal search
of his vehicle." Following a hearing, however, the trial
court found that Defendant "was neither seized nor in
custody" at the time he consented to the search of his
Defendant was never "seized" within the meaning of
the Fourth Amendment, the trial court concluded that no
Fourth Amendment violation had occurred and, accordingly,
denied Defendant's motion to suppress. Defendant
subsequently pleaded guilty to possession of drug
paraphernalia, possession with intent to sell or deliver
marijuana, and possession of a firearm by a felon, preserving
his right to appeal the trial court's denial of his
motion to suppress. The trial court imposed a suspended
sentence and placed Defendant on 24 months' supervised
probation. A written order denying Defendant's motion to
suppress was entered on 5 January 2017. Defendant timely
Court heard Defendant's appeal on 5 October 2017.
Defendant argued on appeal that the officers
"seized" him for purposes of the Fourth Amendment
"when they took and retained his driver's
license," and that such seizure, in the absence of
"any reasonable suspicion that he was involved in
criminal activity," violated Defendant's Fourth
Amendment rights. Citing State v. Cottrell, 234
N.C.App. 736, 760 S.E.2d 274 (2014), Defendant maintained
that the trial court was required to suppress the evidence
recovered from the search of his vehicle because it was the
product of "this unconstitutional seizure."
dissent, this Court concluded that the trial court's
findings of fact were insufficient to determine whether
Defendant had been "seized" for purposes of the
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).
. . . .
In determining whether a defendant was seized, "relevant
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 arguing that he was seized, defendant places great
emphasis upon his contention that the law enforcement
officers retained his driver's license during the
encounter. Defendant cites several cases, including State
v. Jackson, 199 N.C.App. 236, 243, 681 S.E.2d 492, 497
(2009), in which this Court stated, in analyzing whether the
defendant had been seized, that "a reasonable person
under the circumstances would certainly not believe he was
free to leave without his driver's license and
registration." We find this argument persuasive. Indeed,
we have not found any cases holding that a defendant whose
identification or driver's license was held by the police
without reasonable suspicion of criminal activity was
nonetheless "free to leave."
. . . .
In its appellate brief, the State does not dispute the
crucial significance of whether the officers kept
defendant's license. . . . The State instead argues that
the trial court's findings of fact fail to establish
whether the officers retained defendant's license or
returned it to him after examination. We agree with this
Witnesses at the hearing on defendant's suppression
motion gave conflicting testimony with regard to the
circumstances under which law enforcement officers took
possession of defendant's driver's license and the