IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-692
Filed: 19 December 2017
Mecklenburg County, No. 14 CRS 249281
STATE OF NORTH CAROLINA
v.
KENNETH ROBERT FULLER
Appeal by defendant from judgment entered 17 November 2016 by Judge
Linwood O. Foust in Mecklenburg County Superior Court. Heard in the Court of
Appeals 29 November 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Kristine M.
Ricketts, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Nicholas
C. Woomer-Deters, for defendant-appellant.
TYSON, Judge.
Kenneth Robert Fuller (“Defendant”) appeals from a judgment imposing a
suspended sentence of 6 to 17 months imprisonment, with 18 months supervised
probation, after a jury found him guilty of possession of cocaine. On appeal,
Defendant challenges the denial of his motion to suppress evidence of cocaine, which
was seized after a search of his person was conducted, following his arrest for driving
with a revoked license. We affirm the trail court’s denial and find no error.
STATE V. FULLER
Opinion of the Court
I. Background
On 19 December 2014, Charlotte-Mecklenburg Police Officer Wayne Goode
(“Officer Goode”) was on duty in the area of Dalton Street and Tryon Street in
Charlotte. Officer Goode and other officers conducted surveillance of Defendant as
he sat in the driver’s seat of a gold-colored Mercedes-Benz sedan, parked at a gas
station located on North Tryon Street. Officer Goode was familiar with Defendant
from previous investigations, and suspected Defendant was selling narcotics from
that gas station parking lot. Officer Goode also knew Defendant’s driver’s license was
suspended.
During the surveillance operation, Officer Goode observed Defendant driving
away from the gas station. Officer Goode followed Defendant in order to conduct a
traffic stop. While following Defendant, Officer Goode observed Defendant’s
Mercedes turn right off of Tryon Street onto Ashby Street and then make a quick turn
into a parking lot. After the Mercedes parked in the parking lot, Officer Goode
observed Defendant exit the driver’s door and walk to the trunk of the Mercedes.
Officer Goode parked behind Defendant’s vehicle, approached Defendant and
requested his identification. After Defendant obtained his identification from inside
the Mercedes, Officer Goode arrested Defendant for driving with a revoked license.
Officer Goode handcuffed Defendant and placed him inside his police cruiser.
-2-
STATE V. FULLER
Opinion of the Court
At the suppression hearing, Officer Goode testified, and the trial court found,
after Officer Goode had placed Defendant into the police cruiser, he asked Defendant
for consent to search the Mercedes, and that Defendant had consented. Defendant
denied he consented to the search of his Mercedes.
Officer Goode and other officers conducted an initial search of the Mercedes
and did not locate any contraband or narcotics. A few minutes after this initial
search, a K-9 dog unit arrived to conduct a sniff search of the vehicle.
While sniffing the Mercedes, the dog “hit” on the front right fender and driver’s
seat cushion. Officers then conducted a more thorough search of the vehicle, but did
not discover any contraband or narcotics. Officer Goode concluded that because the
K-9 had “hit” on the driver’s seat and no narcotics were found in the Mercedes, the
narcotics were hidden on Defendant’s person. Officer Goode informed his sergeant
that he wanted to conduct a search of Defendant’s person.
Defendant was transported to the Charlotte-Mecklenburg Police Department’s
Metro Division Office and placed into a private interview room. Officer Goode
conducted the search and another officer assisted by holding one of Defendant’s
handcuffed arms. Officer Goode did not seek Defendant’s consent or a warrant to
conduct the search.
Officer Goode searched Defendant by first removing and inspecting
Defendant’s belt and the contents of his front pants pockets. Officer Goode observed
-3-
STATE V. FULLER
Opinion of the Court
a hidden area next to the fly of Defendant’s pants. Officer Goode then inspected
Defendant’s back pockets and the contents thereof. Officer Goode continued his
search by lowering Defendant’s pants and long johns to his knee area. Officer Goode
pulled out, but did not pull down, Defendant’s underwear and observed Defendant’s
genitals and buttocks.
Officer Goode pulled up Defendant’s long johns and then inspected the hidden
area on the fly of his pants. Officer Goode retrieved a bag from the hidden area near
the fly of Defendant’s pants. This bag was later determined to contain .83 grams of
cocaine and weigh 1.7 grams. Defendant was indicted for possession with intent to
sell or distribute a controlled substance and for having obtained habitual felon status.
At a pretrial hearing, Defendant made an oral motion to suppress the evidence
of the cocaine obtained from the strip search conducted by Officer Goode. The trial
court denied Defendant’s motion to suppress in an order filed 30 October 2015.
The case came to trial on 7 November 2016. Defendant moved to dismiss the
possession with intent to sell or deliver cocaine charge for insufficiency of the
evidence, which motion the court granted. The lesser-included charge of possession
of cocaine was submitted to the jury. On 14 November 2016, the jury returned
verdicts of guilty of possession of cocaine and of Defendant having obtained habitual
felon status. Upon the motion of Defendant, the trial court set aside the jury’s verdict
on obtaining habitual felon status.
-4-
STATE V. FULLER
Opinion of the Court
On 17 November 2016, the trial court entered judgment and sentenced
Defendant to a suspended sentence of 6 to 17 months imprisonment, with 18 months
supervised probation. Defendant appeals.
II. Jurisdiction
Jurisdiction lies in this Court as an appeal of a final judgment of the superior
court pursuant to N.C. Gen. Stat. §§ 7A-27(b)(2) (2015) and 15A-1444(a) (2015).
III. Issue
Defendant argues the trial court committed plain error by denying his motion
to suppress the evidence obtained from a non-consensual and warrantless search of
his person in violation of his constitutional rights.
IV. Standard of Review
A pre-trial motion to suppress evidence is insufficient to preserve for appeal
the question of the admissibility of the challenged evidence, if Defendant fails to
object to the admission of that evidence at the time it is offered at trial. State v.
Grooms, 353 N.C. 50, 65-66, 540 S.E.2d 713, 723 (2000),cert. denied, 534 U.S. 838,
151 L. Ed. 2d 54 (2001).
Defendant concedes his counsel failed to object at trial to the admission of the
illegal drug evidence obtained pursuant to the search. Defendant concedes this issue
was not preserved for appellate review. He asserts the trial court’s denial of his
motion to suppress constituted plain error. N.C. R. App. P. 10(a)(4).
-5-
STATE V. FULLER
Opinion of the Court
Under a plain error standard of review, “a defendant must demonstrate that a
fundamental error occurred at trial. To show that an error was fundamental, a
defendant must establish prejudice—that, after examination of the entire record, the
error had a probable impact on the jury’s finding that the defendant was guilty.” State
v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citations and internal
quotation marks omitted). “Thus . . . the defendant must first demonstrate that the
trial court committed error, and next that absent the error, the jury probably would
have reached a different result.” State v. Larkin, 237 N.C. App. 335, 339, 764 S.E.2d
681, 685 (2014) (citation and internal quotation marks omitted).
In reviewing a trial court’s ruling on a motion to suppress for error,
[i]t is well established that . . . the trial court’s findings of
fact are conclusive on appeal if supported by competent
evidence, even if the evidence is conflicting. In addition,
findings of fact to which defendant failed to assign error
are binding on appeal. Once this Court concludes that the
trial court’s findings of fact are supported by the evidence,
then this Court’s next task is to determine whether the
trial court’s conclusions of law are supported by the
findings. The trial court’s conclusions of law are reviewed
de novo and must be legally correct.
State v. Campbell, 188 N.C. App. 701, 704, 656 S.E.2d 721, 724 (2008) (citations,
quotation marks, and brackets omitted).
V. Analysis
Defendant argues the trial court committed plain error by denying his motion
to suppress the evidence of the cocaine obtained from the search of his person,
-6-
STATE V. FULLER
Opinion of the Court
following the K-9 dog sniff of the vehicle he was driving, and plainly erred by
admitting that evidence at trial. Defendant asserts the trial court failed to make
required findings of the voluntariness of his consent to the search of his vehicle and
argues the search of his person was unreasonable under the totality of the
circumstances.
A. Warrantless Searches
It is a “basic constitutional rule” that “searches conducted outside the judicial
process, without prior approval by [a] judge or magistrate, are per se unreasonable
under the Fourth Amendment—subject only to a few specifically established and well
delineated exceptions.” Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 29 L. Ed.2d
564, 576 (1971) (footnote omitted).
“Among the exceptions to the warrant requirement is a search incident to a
lawful arrest,” which “derives from interests in officer safety and evidence
preservation that are typically implicated in arrest situations.” Arizona v. Gant, 556
U.S. 332, 338, 173 L. Ed.2d 485, 493 (2009) (citations omitted).
“Under this exception, . . . an officer may conduct a warrantless search of the
arrestee’s person and the area within the arrestee’s immediate control.” State v.
Carter, 200 N.C. App. 47, 50-51, 682 S.E.2d 416, 419 (2009) (citation and quotation
marks omitted). A search may be justified as incident to lawful arrest if “[the]
warrantless arrest is . . . based upon probable cause,” State v. Mills, 104 N.C. App.
-7-
STATE V. FULLER
Opinion of the Court
724, 728, 411 S.E.2d 193, 195, disc. review denied, 367 N.C. 283, 752 S.E.2d 476
(1991), and the search is “substantially contemporaneous with the arrest.” State v.
McHone, 158 N.C. App. 117, 119, 580 S.E.2d 80, 82 (2003) (citation and quotation
marks omitted).
“Probable cause has been defined as a reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves to warrant a cautious
man in believing the accused to be guilty.” State v. Yates, 162 N.C. App. 118, 122, 589
S.E.2d 902, 904 (2004) (citation and internal quotation marks omitted). “This Court
has determined that probable cause to search exists when a reasonable person acting
in good faith could reasonably believe that a search of the defendant would reveal the
controlled substances sought which would aid in his conviction.” State v. Pittman, 111
N.C. App. 808, 813, 433 S.E.2d 822, 825 (1993) (citation and internal quotation marks
omitted).
Defendant argues the police were required to have probable cause and exigent
circumstances to search his person under both the facts before us and under State v.
Battle, 202 N.C. App. 376, 688 S.E.2d 805 (2010). In Battle, a case involving a
roadside “strip search” of an arrestee, we noted that “[a] valid search incident to
arrest . . . will not normally permit a law enforcement officer to conduct a roadside
strip search.” Battle, 202 N.C. App. at 387-88, 688 S.E.2d at 815 (emphasis supplied).
Rather, “[i]n order for a roadside strip search to pass constitutional muster, there
-8-
STATE V. FULLER
Opinion of the Court
must be both probable cause and exigent circumstances that show some significant
government or public interest would be endangered were the police to wait until they
could conduct the search in a more discreet location—usually at a private location
within a police facility.” Id. at 388, 688 S.E.2d at 815 (emphasis supplied).
Here, the search was conducted as incident to Defendant’s lawful arrest, and
was conducted inside a private interview room at a police facility, and not on a
roadside. It is unnecessary to address whether the search of Defendant’s person was
made with probable cause and under exigent circumstances. See id.
“The search incident to a lawful arrest exception has resulted in two different
formulae. The first concerns searches of the person arrested and the second concerns
searches of the area within the control of the arrestee.” State v. Nesmith, 40 N.C. App.
748, 750, 253 S.E.2d 594, 595 (1979) (emphasis omitted).
In United States v. Robinson, 414 U.S. 218, 235, 38 L. Ed.2d 427, 441 (1973),
the Supreme Court of the United States held that “in the case of a lawful custodial
arrest a full search of the person is not only an exception to the warrant requirement
of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”
North Carolina’s appellate courts have long recognized Robinson’s categorical
rule allowing a full search of the person incident to a lawful arrest. State v. Brooks,
337 N.C. 132, 144-45, 446 S.E.2d 579, 587 (1994) (recognizing under Robinson, that
“officers automatically have the right to make a search incident to arrest; they do not
-9-
STATE V. FULLER
Opinion of the Court
need to consider the particular defendant’s dangerousness or the likelihood that the
defendant may destroy evidence before they conduct their search”); Nesmith, 40 N.C.
App. at 751, 253 S.E.2d at 596 (recognizing Robinson’s holding in 1979).
B. Voluntariness of Defendant’s Consent to Search Car
Defendant argues his consent to the search of the car he was driving was not
voluntary. However, Defendant failed to raise or make this argument before the trial
court.
At the hearing on Defendant’s oral motion to suppress, Defendant did not raise
the issue of the voluntariness of his consent. Instead, Defendant made the separate
argument that he never gave consent for the officers to search the car at all. The
theory Defendant purports to raise on appeal is different than the one he raised in
the trial court.
“[W]here a theory argued on appeal was not raised before the trial court, the
law does not permit parties to swap horses between courts in order to get a better
mount” on appeal. State v. Sharpe, 344 N.C. 190, 194, 473 S.E.2d 3, 5 (1996) (citation
and quotation marks omitted). Because Defendant never raised this belated
voluntariness argument before the trial court, he failed to preserve it for appellate
review. Id.; see State v. Holliman, 155 N.C. App. 120, 124, 573 S.E.2d 682, 686
(2002) (dismissing defendant’s challenge to denial of motion to suppress because he
presented “a different theory on appeal than argued at trial”). We decline to address
- 10 -
STATE V. FULLER
Opinion of the Court
the merits of Defendant’s new and different argument on this issue and dismiss his
assertions.
C. Reasonableness of the Search of Defendant’s Person
Defendant argues the search of his person, even if incidental to a lawful arrest,
was unreasonable under the totality of the circumstances. We disagree.
Although the search of a person may be authorized as incident to arrest, our
appellate courts have recognized that “‘[t]he Fourth Amendment precludes . . . those
intrusions into privacy of the body which are unreasonable under the circumstances.’”
State v. Norman, 100 N.C. App. 660, 663, 397 S.E.2d 647, 649 (1990) (quoting State
v. Cobb, 295 N.C. 1, 20, 243 S.E.2d 759, 770 (1978)). Our Supreme Court reasoned,
“[d]eeply imbedded in our culture . . . is the belief that people have a reasonable
expectation not to be unclothed involuntarily, to be observed unclothed or to have
their private parts observed or touched by others.” State v. Stone, 362 N.C. 50, 55,
653 S.E.2d 414, 418 (2007) (citation and internal quotation marks omitted).
In determining the reasonableness of a search of the person or a full “strip
search,” this Court has explained:
the trial court must balance the need for the particular
search against the invasion of personal rights that the
search entails. Courts must consider the scope of the
particular intrusion, the manner in which it is conducted,
the justification for initiating it, and the place in which it
is conducted.
- 11 -
STATE V. FULLER
Opinion of the Court
State v. Fowler, 220 N.C. App. 263, 266-67, 725 S.E.2d 624, 627-28 (2012) (internal
citations and quotation marks omitted).
With regard to the scope of the search of Defendant’s person, the evidence
presented by the State during the hearing on Defendant’s motion to suppress, and
the findings of the trial court, tend to show the K-9 dog alerted to the driver’s seat of
Defendant’s car. The police limited the search to the area of Defendant’s body and
clothing that would come into contact with the cushion of the driver’s seat, the area
between Defendant’s knees and waist.
With regard to the manner of the search, the trial court found and the video
and testimonial evidence shows Defendant was searched inside a private interview
room at the Metro Division Office. Defendant and the two officers were the only
individuals present inside the interview room. The video recording of the search
shows the officers did not remove Defendant’s clothing above the waist, did not fully
remove his undergarments, nor did they touch Defendant’s genitals or any body
cavity.
Defendant argues the video recording of the search shows the officers “smiling”
and “smirking at one another throughout the process.” Defendant’s allegation that
the officers were purportedly “smiling” and “smirking”, and somehow this activity
tainted the manner in which the search was conducted, was not raised before the trial
court. Even if the officers appear to “smirk” or make facial changes at each other at
- 12 -
STATE V. FULLER
Opinion of the Court
points during the search, the recording does not show this “smirking” was visible to
Defendant. Also, Defendant does not attempt to explain how this purported conduct
by the officers, even if true, rendered the manner of the search unreasonable or the
results obtained therefrom inadmissible.
With regard to the justification for initiating the search, the trial court made
several findings of fact bearing upon this factor. The court found: Officer Goode was
familiar with Defendant through previous interactions, including the execution of a
search warrant for narcotics on the Defendant’s premises; a K-9 drug dog alerted to
the driver’s seat area of Defendant’s car; and, that Officer Goode had previously
observed suspects hiding controlled substances in their pants, underwear, genitals,
and buttocks.
Officer Goode testified that he knew from his training and experience that a
K-9 dog will alert to odors transferred from a person to another object via contact.
Officer Goode also testified that Defendant was the last person to occupy the driver’s
seat of Defendant’s car. The initiation of the search of Defendant’s person as incident
to a lawful arrest was also justified due to the K-9 alerting to the driver’s seat of the
car. Defendant was the last person to occupy the driver’s seat, and the officers and
K-9 dog did not discover any narcotics present inside the car.
With regard to the place of the search, the search took place inside a private
interview room at the Metro Division Office. As noted, only Defendant and two
- 13 -
STATE V. FULLER
Opinion of the Court
officers were present during the search and the search was limited to areas where
Defendant’s body had been in contact with the driver’s seat of his vehicle. Defendant’s
search did not take place in a public area or on the side of a road. See Battle, 202 N.C.
App at 388, 688 S.E.2d at 815 (expressing the preference for strip searches to be
conducted at “a private location within a police facility.”)
The evidence presented and the trial court’s findings of fact show the place,
manner, justification and scope of the search of Defendant’s person were reasonable.
Defendant cites State v. Smith, 222 N.C. App. 253, 729 S.E.2d 120, disc. review
denied, 366 N.C. 410, 735 S.E.2d 190 (2012), to support his contention that neither
the K-9 drug dog’s alert to the driver’s seat of his car, nor Defendant’s criminal
history, were sufficient to justify subjecting Defendant to a warrantless search of his
person.
In Smith, the defendant was the passenger in a vehicle that was driven by a
driver, who was cited for a noise violation. 222 N.C. App. at 253-54, 729 S.E.2d at
122. While police officers were preparing to issue the citation to the driver, an officer
checked the defendant’s criminal history and found “an extensive local record which
included numerous drug offenses[.]” Id. at 254, 729 S.E.2d at 122. Police brought a
drug dog to the scene and the defendant and driver were placed in the rear of a patrol
car. Id. The drug dog sniffed the exterior of the driver’s car and “alerted to a
controlled substance at the driver’s door.” Id. When the police conducted a search of
- 14 -
STATE V. FULLER
Opinion of the Court
the vehicle, no contraband was discovered inside the vehicle, other than an open
container of alcohol in the back seat. Id. Police subsequently searched the defendant’s
person and discovered cocaine. Id.
This Court held that, under the circumstances, “[t]he fact that defendant was
formerly a passenger in a motor vehicle as to which a drug dog alerted, and a
subsequent search of the vehicle found no contraband, is not sufficient, without
probable cause more particularized to defendant, to conduct a warrantless search of
defendant’s person.” Id. at 261, 729 S.E.2d at 126.
Several factors distinguish State v. Smith from the instant case. Here, the trial
court found that “[D]efendant testified that he owned the Mercedes and that it was
registered to him.” The trial court found Officer Goode’s testimony to be credible, and
Defendant does not dispute, that Officer Goode had observed Defendant exit the
driver’s side of the Mercedes. The dash cam footage from the cruiser and testimony
of the officers do not indicate anyone else drove Defendant’s Mercedes immediately
prior to being pulled over. The K-9 dog alerted to the driver’s seat cushion of the
vehicle, where Defendant’s body was previously known to have been in immediate
contact with, rather than any other area of the vehicle.
Unlike the defendant in Smith, Defendant was found to have been sitting in
the exact spot where the K-9 dog alerted, inside the vehicle that Defendant testified
to owning and driving. See Smith, 222 N.C. App. at 253-54, 729 S.E.2d at 122. The
- 15 -
STATE V. FULLER
Opinion of the Court
only individuals officers observed in or near the vehicle were Defendant and a female
passenger. The police did not locate any evidence of the female passenger possessing
narcotics while inside the Mercedes. These facts present a set of circumstances, solely
to Defendant, from which “a reasonable person acting in good faith could reasonably
believe that a search of the defendant would reveal the controlled substances sought
which would aid in his conviction.” Pittman, 111 N.C. App. at 813, 433 S.E.2d at 825
(citation and internal quotation marks omitted).
The trial court properly denied Defendant’s motion to suppress the cocaine
recovered from the search of his person and clothing. Defendant’s arguments are
overruled.
VI. Conclusion
Following his lawful arrest for driving with a revoked license, the trial court
properly denied Defendant’s motion to suppress the evidence of the cocaine obtained
from the warrantless and non-consensual search of Defendant’s person. The trial
court did not commit plain error in admitting the evidence of the recovered cocaine to
the jury.
Defendant has failed to show any error in the jury’s conviction for possession
of cocaine, or in the judgment entered thereon. Defendant received a fair trial, free
from errors he preserved and argued. Defendant has also failed to demonstrate any
plain error. It is so ordered.
- 16 -
STATE V. FULLER
Opinion of the Court
NO ERROR.
Judges CALABRIA and DAVIS concur.
- 17 -