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State v. Johnson

Court of Appeals of North Carolina

December 17, 2019

STATE OF NORTH CAROLINA
v.
KAYSHAWN CHRISTOPHER JOHNSON

          Heard in the Court of Appeals 22 August 2019.

          Appeal by defendant from order entered 6 August 2018 by Judge Charles H. Henry in Craven County, No. 17 CRS 51014 Superior Court.

          Attorney General Joshua H. Stein, by Assistant Attorney General Alexander Walton, for the State.

          Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katy Dickinson-Schultz, for defendant-appellant.

          ARROWOOD, JUDGE

         Kayshawn Christopher Johnson ("defendant") appeals from the trial court's 6 August 2018 order denying his motion to suppress evidence he argues was seized in violation of his rights under the Fourth Amendment to the United States Constitution. Defendant contends, inter alia, that the law enforcement officer who seized the evidence at issue lacked probable cause to search his person and that the warrantless search that produced the evidence was therefore unconstitutional. For the following reasons, we affirm.

         I. Background

         Captain Jesse Pittman began working at the Craven County Sheriff's Office over 25 years ago. During his time with the Sheriff's Office, Captain Pittman served on road patrol for approximately eight years, during which he encountered individuals who possessed controlled substances, which he had been trained to identify. At times relevant to this appeal, Captain Pittman served in an administrative role.

         On the morning of 5 April 2017, Captain Pittman stopped at a gas station to purchase a cup of coffee. He was casually dressed, but wore his badge visibly and wore a pistol on his ankle.

         While walking into the station, Captain Pittman observed defendant talking loudly and using abusive language on a cellular telephone outside of the station. Inside the station, the clerk told him that she was concerned that defendant was bothering other customers with his conversation. Captain Pittman exited the station, returned to his vehicle, and called for assistance. He then approached defendant, and Sergeant William Scott arrived as backup.

         After approaching, Captain Pittman identified himself as law enforcement and asked defendant to terminate his conversation. Defendant complied with his request after some delay. Captain Pittman told defendant that "he needed to finish his conversation elsewhere, [and] that it was inappropriate to be using that kind of language" in front of the gas station.

         Defendant then "began to shift from foot to foot . . . [and] look side to side" and over Captain Pittman's shoulder. Seeing this, Captain Pittman became concerned that defendant might pose him danger; in his words, "his nervousness made me nervous." Captain Pittman asked defendant whether he had any weapons on his person, and he replied that he did not. Captain Pittman remained concerned, however, so he asked defendant for consent to pat him down for weapons. Defendant hesitated, but consented.

         While conducting a flat-handed pat-down of defendant for weapons, Captain Pittman felt a "soft, rubbery" item "like . . . a wad of rubber bands" in defendant's pocket that was "immediately apparent to [him] that was associated with the packaging normally used to package and sell narcotics." Captain Pittman completed the pat-down for weapons and then returned to the suspicious object, manipulated it to ensure that it was what he thought it was, and then reached into defendant's pocket. He removed three tied up plastic bag corners ("corner bags") containing a white, powdery substance he believed to be cocaine, as well as a tube of Orajel liquid. Captain Pittman handed these items to Sergeant Scott, who placed defendant under arrest for possession of a controlled substance.

         Sergeant Scott field-tested the powdery substance, which tested negative for cocaine. Defendant volunteered that the powdery substance was baking soda, and that he had the Orajel to mix with the baking soda to fool potential buyers into believing the substance was cocaine. Subsequent testing by the State Bureau of Investigation corroborated defendant's statement.

         On 11 December 2017, defendant was indicted for possession with intent to sell and deliver a counterfeit controlled substance in violation of N.C. Gen. Stat. § 90-95(a)(2) (2017).

         On 19 June 2018, defendant filed a motion to suppress and a supporting affidavit, arguing that: (1) he did not give consent to the pat-down for weapons or the search into his pocket; and (2) Captain Pittman's conduct in reaching into his pocket exceeded the scope of a weapons search, thereby violating his rights under the Fourth Amendment to the United States Constitution. Defendant asked the trial court to suppress any evidence obtained as a result of Captain Pittman's search. On 29 June 2019, defendant filed an addendum to his motion to suppress, arguing that he had been illegally detained, and that Captain Pittman's search was therefore void ab initio.

         Defendant's motion to suppress came on for hearing on 3 July 2018. On 6 August 2018, the trial court entered an order denying defendant's motion (the "MTS Order"). In the MTS Order, the trial court concluded that: (1) defendant was not detained by Captain Pittman; (2) defendant consented to the pat-down for weapons; and (3) "Pittman felt something unusual in [defendant's] right pants pocket which [Captain Pittman] immediately concluded, based on his training and experience, was packaging for controlled substances[, ]" and that Captain Pittman accordingly had probable cause to believe that defendant was in possession of contraband and to place defendant under arrest after seizing the contents of defendant's pocket.

         That same day, defendant pleaded guilty to the offense charged, specifically reserving his right to appeal from the MTS Order as part of the plea arrangement. Defendant was sentenced to 5 to 15 months imprisonment, which the trial court suspended for 18 months of supervised probation. Defendant timely gave oral notice of appeal from the MTS Order in open court.

         II. Discussion

         This case requires us to determine whether the trial court erred by concluding that Captain Pittman did not violate defendant's Fourth Amendment protection from "unreasonable searches and seizures[.]" U.S. Const. amend. IV.

         Defendant argues that: (1) Captain Pittman's warrantless pat-down of defendant's person for weapons was unreasonable, because the officers seized him without reasonable suspicion that he was armed or involved in criminal activity and his consent to Captain Pittman's pat-down for weapons was invalid; or, alternatively, (2) if defendant was not seized by the officers and his consent to be patted down for weapons was valid, Captain Pittman exceeded the scope of this consent. Under either alternative, defendant contends that the evidence obtained as a result of the constitutionally impermissible search and seizure must be suppressed as fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 484-88, 9 L.Ed.2d 441, 453-55 (1963).

         We address each argument in turn.

         A. Stand ...


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