in the Court of Appeals 22 August 2019.
by defendant from order entered 6 August 2018 by Judge
Charles H. Henry in Craven County, No. 17 CRS 51014 Superior
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.
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.
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
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.
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.
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.
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.
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
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
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).
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.
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.
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.
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.
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
address each argument in turn.