IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-477
Filed: 2 January 2018
Mecklenburg County, Nos. 15 CRS 212911-212913
STATE OF NORTH CAROLINA, Plaintiff,
v.
JERRY GIOVANI THOMPSON, Defendant.
Appeal by defendant from judgment entered 3 January 2017 by Judge William
R. Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 5
October 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Robert T.
Broughton, for the State.
Robinson, Bradshaw & Hinson, P.A., by Erik R. Zimmerman, for defendant-
appellant.
ZACHARY, Judge.
Jerry Thompson (defendant) appeals from the judgment sentencing him for
convictions of felony possession of marijuana, possession with intent to sell or deliver
marijuana, possession of drug paraphernalia, and possession of a firearm by a
convicted felon. On appeal, defendant argues that the trial court erred by denying
his motion seeking the suppression of evidence, and that the judgment sentencing
him for felony possession of marijuana should be vacated on the grounds that he did
not plead guilty to that offense. After review of defendant’s arguments, in light of the
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Opinion of the Court
record and the applicable law, we conclude 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. We further
conclude that the judgment entered against defendant and the written transcript of
plea, both of which were signed by the trial judge, are inconsistent, and we remand
for resolution of this discrepancy.
Factual and Procedural Summary
On 10 April 2015, law enforcement officers executed a search warrant for an
apartment on Basin Street, in Charlotte, North Carolina. When the officers arrived
at the apartment, defendant was sitting in his car in front of the residence. Two
officers approached defendant in order to prevent any interference with the execution
of the search warrant, and remained near defendant while the apartment was being
searched. During this time, defendant was asked to provide identification, which he
did. Defendant also consented to a search of his person, which did not reveal
contraband. At some point, another officer came out of the apartment and asked
defendant for permission to search his car, and upon searching the trunk of
defendant’s car, found marijuana and a firearm. Defendant was arrested on charges
of possession of drug paraphernalia, possession with the intent to sell or deliver
marijuana, and possession of a firearm by a convicted felon.
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On 28 March 2016, defendant was indicted for possession of drug
paraphernalia, possession with the intent to sell or deliver marijuana, felony
possession of marijuana, maintaining a vehicle for the purpose of keeping or selling
controlled substances, and possession of a firearm by a convicted felon. On 4 October
2016, defendant filed a motion seeking suppression of the evidence seized at the time
of his arrest, on the grounds that the evidence was seized pursuant to an illegal
search and seizure that violated his rights under the Fourth Amendment to the
United States Constitution.
The charges against defendant came on for trial beginning on 3 January 2017.
A hearing was conducted prior to trial on defendant’s motion to suppress. The
evidence adduced at the hearing tended to show the following: Sergeant Michael
Sullivan of the Charlotte-Mecklenburg Police Department testified that on 10 April
2015, he led a group of officers in the execution of a search warrant for the Basin
Street apartment. The target of the search warrant was a woman. When the officers
arrived, Sergeant Sullivan saw a person seated in the front seat of an automobile
parked in front of the apartment building. Sergeant Sullivan approached the car, in
order to make sure that the individual in the passenger seat was not the woman
named in the search warrant, and to ensure that the person did not interfere with
the execution of the search warrant. Defendant, who was the person sitting in the
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car, told Sergeant Sullivan that he did not live in the apartment, but that his
girlfriend did.
Sergeant Sullivan remained near defendant’s car and informed defendant that
the officers were executing a drug-related search warrant in his girlfriend’s
apartment. At the officer’s request, defendant consented to a search of his person,
which did not reveal the presence of contraband. Sergeant Sullivan then asked
defendant for his identification, before “hand[ing] him off”’ to Officer Justin Price,
giving Officer Price defendant’s license, and going inside to supervise the search.
Sergeant Sullivan left defendant with Officers Price and Blackwell, and had no
further contact with defendant. Officer Price, however, testified that when he came
outside, defendant was already in custody.
Officer Michael Blackwell testified that he and Sergeant Sullivan remained
with defendant during the search, and explained to defendant why the officers were
there. Defendant told Officer Blackwell that the woman named in the search warrant
was his girlfriend. After eight to ten minutes, Officer Hefner came outside and asked
for permission to search defendant’s car. Defendant consented to the search.
Marijuana and a firearm were found in the trunk of the car. On cross-examination,
Officer Blackwell testified that eight to twelve officers were present, that he and
Sergeant Sullivan had approached defendant to ensure that no one interfered with
their execution of the search warrant, and that both officers were armed and in
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uniform. Officer Mark Hefner testified that during the search, he “received
information that the defendant was the supplier of the drugs.” Accordingly, he
obtained defendant’s consent to search his car.
Defendant testified that he was 61 years old and worked for the Red Cross. On
10 April 2015, he drove to the Basin Street apartment to visit his girlfriend, who was
the person named in the search warrant. He was “taken aback” when a number of
law enforcement officers arrived wearing “SWAT attire” and went inside. Officer
Blackwell approached him and told him that he could not leave, and took his keys
and wallet. Defendant waited for twenty or thirty minutes with the officers, before
Officer Hefner came out of the apartment. Defendant denied giving the officers
permission to search his car.
Following the presentation of evidence and the arguments of counsel, the trial
court orally denied defendant’s motion to suppress. Defendant then pleaded guilty,
pursuant to a plea bargain with the State, to possession of drug paraphernalia,
possession with the intent to sell or deliver marijuana, and possession of a firearm by
a convicted felon.1 Under the terms of the plea agreement, the State would dismiss
the charge of maintaining a vehicle for keeping or selling controlled substances, and
defendant would receive a consolidated sentence for the remaining offenses.
Defendant pleaded guilty while preserving his right to appeal the denial of his motion
1 As discussed elsewhere in this opinion, there is a dispute as to whether defendant also
pleaded guilty to felony possession of marijuana.
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to suppress. The trial court sentenced defendant to a term of 13 to 25 months’
imprisonment, suspended the sentence, and placed defendant on 24 months’
supervised probation. On 5 January 2017, the trial court entered a written order
denying defendant’s suppression motion. Defendant gave notice of appeal to this
Court.
Standard of Review
Defendant argues on appeal that the trial court erred by denying his
suppression motion. “The standard of review in evaluating the denial of a motion to
suppress is whether competent evidence supports the trial court’s findings of fact and
whether the findings of fact support the conclusions of law.” State v. Biber, 365 N.C.
162, 167-68, 712 S.E.2d 874, 878 (2011) (citation omitted). “This Court reviews
conclusions of law stemming from the denial of a motion to suppress de novo. . . .
Under a de novo review, the court considers the matter anew and freely substitutes
its own judgment for that of the lower tribunal.” State v. Borders, 236 N.C. App. 149,
157, 762 S.E.2d 490, 498-99 (2014).
Motion to Suppress
Legal Principles
The Fourth Amendment to the United States Constitution protects the “right
of the people to be secure . . . against unreasonable searches and seizures.” U.S.
Const. amend. IV. “The Fourth Amendment is applicable to the states through the
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Due Process Clause of the Fourteenth Amendment. Article I, Section 20 of the North
Carolina Constitution provides similar protection against unreasonable seizures.
N.C. Const. art. I, § 20.” State v. Campbell, 359 N.C. 644, 659, 617 S.E.2d 1, 11 (2005)
(citing State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994)). However, not
all interactions between citizens and law enforcement officers fall within the ambit
of the Fourth Amendment:
U.S. Supreme Court holdings carve out . . . three tiers of
police encounters: communication between the police and
citizens involving no coercion or detention and therefore
outside the compass of the Fourth Amendment, brief
‘seizures’ that must be supported by reasonable suspicion,
and full-scale arrests that must be supported by probable
cause.
State v. Sugg, 61 N.C. App. 106, 108, 300 S.E.2d 248, 250 (1983) (citing United States
v. Berry, 670 F. 2d 583 (5th Cir. 1982)).
Accordingly, a law enforcement officer does not require any suspicion of
criminal activity to engage in a consensual interaction with a citizen, and in such a
situation the protections of the Fourth Amendment are not implicated:
Our cases make it clear that a seizure does not occur simply
because a police officer approaches an individual and asks
a few questions. So long as a reasonable person would feel
free to disregard the police and go about his business, the
encounter is consensual and no reasonable suspicion is
required. The encounter will not trigger Fourth
Amendment scrutiny unless it loses its consensual nature.
. . . Only when the officer, by means of physical force or
show of authority, has in some way restrained the liberty
of a citizen may we conclude that a ‘seizure’ has occurred.
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Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398 (1991) (internal
quotations omitted).
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) (quoting Mendenhall, 446
U.S. at 554, 64 L. Ed. 2d at 509).
Discussion
In its order denying defendant’s suppression motion, the trial court concluded
that, at the time defendant was asked for consent to search his car, he “was neither
seized nor in custody.” On appeal, defendant argues that this conclusion was
erroneous, and was not supported by the evidence adduced at the hearing. We
conclude that the trial court’s order failed to resolve disputed issues of fact that are
central to our ability to conduct a meaningful appellate review.
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As noted above, “the United States Supreme Court has long held that the
Fourth Amendment permits a police officer to conduct a brief investigatory stop of an
individual based on reasonable suspicion that the individual is engaged in criminal
activity.” State v. Jackson, 368 N.C. 75, 77, 772 S.E.2d 847, 849 (2015) (citing Terry
v. Ohio, 392 U.S. 1, 30-31, 20 L. Ed. 2d 889, 911 (1968)). Reasonable suspicion
requires “specific and articulable facts, as well as the rational inferences from those
facts, as viewed through the eyes of a reasonable, cautious officer, guided by [the
officer’s] experience and training.” Watkins, 337 N.C. at 441, 446 S.E.2d at 70
(citation omitted).
Because the trial court concluded that defendant had not been seized, it did
not address the issue of whether reasonable suspicion could have supported a seizure
of defendant. However, it is undisputed that the law enforcement officers’
interactions with defendant were not based upon suspicion of criminal activity.
Officer Sullivan testified that defendant was not named in the search warrant and
that he approached defendant to “make sure that [he] wasn’t the target of the search
warrant, and that [he] didn’t interfere with the search warrant since [he was] in such
close proximity to where we were going.” Defendant consented to show Officer
Sullivan his driver’s license and to be searched, neither of which revealed anything
suspicious. Similarly, Officer Blackwell agreed that “the purpose of [his] making
contact [with defendant] was to ensure that he would not interfere with the execution
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of the search warrant.” The State did not elicit testimony at the hearing suggesting
that the officers suspected defendant of engaging in criminal behavior, and does not
argue on appeal that reasonable suspicion existed to detain defendant. We have
carefully reviewed the transcript and conclude that there was no evidence that the
law enforcement officers approached defendant based on a reasonable suspicion of
criminal activity. Therefore, if defendant was seized by law enforcement officers, the
seizure was a violation of defendant’s rights under the Fourth Amendment, and
would require suppression of the evidence found in his trunk. See, e.g., Bostick, 501
U.S. at 433-34, 115 L. Ed. 2d at 398:
The sole issue presented for our review is whether a police
encounter on a bus of the type described above necessarily
constitutes a “seizure” within the meaning of the Fourth
Amendment. The State concedes, and we accept for
purposes of this decision, that the officers lacked the
reasonable suspicion required to justify a seizure and that,
if a seizure took place, the drugs found in Bostick’s suitcase
must be suppressed as tainted fruit.
As discussed above, a criminal defendant has been subjected to a seizure by
police “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.” Mendenhall,
446 U.S. at 554, 64 L. Ed. 2d at 509. “[T]he Mendenhall test does not take into account
a defendant’s subjective impressions of an encounter with police officers, but instead
asks whether the police officers’ actions would have led a ‘reasonable person’ to
believe that he was not free to leave the scene.” State v. Isenhour, 194 N.C. App. 539,
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543, 670 S.E.2d 264, 268 (2008) (citing Mendenhall). In determining whether a
defendant was seized, “[r]elevant 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 this case, the trial court’s findings generally established the following:
1. An unspecified number of law enforcement officers
executed a search warrant for an apartment on Basin
Street, in Charlotte.
2. The search was conducted during daylight hours.
3. When the law enforcement officers arrived, defendant
was seated in his car in front of the apartment building.
4. While other officers conducted the search, Officers
Sullivan and Blackwell approached defendant. The officers
were armed and in uniform, but their weapons were not
drawn.
5. The officers approached defendant for two reasons: (1) to
make sure that the person in the car was not the target of
the search or a resident of the apartment, and (2) to ensure
that the person in the car did not interfere with the search.
6. Officer Sullivan told defendant why the officers were at
the apartment. Officer Sullivan did not tell defendant that
he had to remain at the scene.
7. At some point “within the first ten minutes of their
encounter” and after “the residence was secured,” Officer
Sullivan asked defendant for his identification.
8. Officer Sullivan also asked defendant for permission to
search his person. Defendant consented to the search,
which did not reveal any contraband.
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9. After an unspecified period of time, Officer Price joined
the group with defendant. Officer Sullivan gave Officer
Price defendant’s identification and left.
10. After an unspecified period of time, Officer Hefner came
outside and asked defendant for permission to search his
car. Defendant consented to the search, during which
marijuana and a firearm were found in the trunk.
11. During the time that the officers were with defendant,
he was not told that he could not leave.
Most of these findings are generally undisputed by the parties, such as the
finding that the officers did not draw their weapons. The trial court’s findings that
defendant was never told that he had to remain at the scene, and that defendant
consented to the search of his car were the subject of conflicting testimony; however,
it is appropriate for the court to resolve inconsistencies and weigh the credibility of
conflicting testimony in making its findings.
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
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leave.” Moreover, it would defy common sense to interpret “free to leave” as meaning
“free to leave and break the law by driving without a license,” or “free to leave your
car by the side of the road and proceed on foot.”
We also note that a recent opinion of this Court reached the same conclusion.
In State v. Parker, 2017 N.C. App. LEXIS *940, the defendant appealed from the
denial of his motion to suppress evidence seized at the time of his arrest. The record
showed that two law enforcement officers initially detained defendant and another
person who were engaged in a verbal dispute which the officers feared would escalate
into a physical fight. The officers separated the two people, checked defendant’s
driver’s license, and determined that he was not subject to any outstanding warrants.
While retaining possession of defendant’s driver’s license, the officer obtained
defendant’s consent to a search, which revealed the presence of narcotics. On appeal,
the defendant argued that “when [the law enforcement officer] failed to return
defendant’s identification after finding no outstanding warrants and after the initial
reason for the detention was satisfied, [and] he instead requested defendant’s consent
to search, the seizure was unlawful, and defendant’s consent was not voluntarily
given.” This Court agreed, and held that “[a]bsent a reasonable and articulable
suspicion to justify further delay, retaining defendant’s driver’s license beyond the
point of satisfying the purpose of the initial detention -- de-escalating the conflict,
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Opinion of the Court
checking defendant’s identification, and verifying [that] he had no outstanding
warrants -- was unreasonable.”
In its appellate brief, the State does not dispute the crucial significance of
whether the officers kept defendant’s license. Nor does the State cite any cases in
which, although law enforcement officers confiscated the defendant’s license without
reasonable suspicion of criminal activity, it was nonetheless held that the defendant
had not been seized. 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 contention.
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 time frame in which the
relevant events occurred. Sergeant Sullivan testified that he and Officer Blackwell
approached defendant upon arrival at the apartment, and that after the apartment
was secured, he asked to see defendant’s identification and searched his person.
SERGEANT SULLIVAN: I asked him for his ID. About the
time I was asking him for his ID, I was -– I went -– I handed
him off. I think I handed him off to Officer Price, and I went
inside to supervise the search warrant[.] . . .
PROSECUTOR: How long would you say you had been
with the defendant at this point, when you first approached
him?
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Opinion of the Court
SERGEANT SULLIVAN: I was probably with him three
minutes, you know, less than five.
PROSECUTOR: And you stated that you gave the ID that
the defendant handed to you to Officer Price, and then you
went into the house?
SERGEANT SULLIVAN: That’s right.
However, Officer Price testified that when he came outside after completing
the search of the apartment, defendant was already in custody. Officer Blackwell,
who was not asked about the confiscation of defendant’s identification, testified that
he and Sergeant Sullivan spent eight to ten minutes with defendant before Officer
Hefner came outside and obtained defendant’s permission to search his car. Officer
Hefner testified that he did not recall how long he was inside the apartment, but that
it usually took at least two hours to search a residence. Defendant testified that when
he was searched, the officers took his keys and wallet, and that when Officer
Blackwell ordered defendant not to leave, he had possession of defendant’s wallet and
keys. Defendant also testified that he stood outside with the officers for twenty or
thirty minutes before Officer Hefner came outside. Thus, defendant testified that the
officers retained his license, but the officers did not testify about this issue. Assuming
that the law enforcement officers kept defendant’s identification, the testimony is
conflicting as to whether defendant’s car was searched before, immediately after, ten
minutes after, or a half-hour after defendant gave his license to Officer Sullivan.
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Counsel for defendant and the State offered contrasting interpretations of the
testimony in their arguments to the trial court:
MS. WALLWORK [Defense Counsel]: I will cut to the
chase. That’s what varies in Sergeant Sullivan’s
confiscation of Mr. Thompson’s identification. That’s what
[United States v.] Black is about, that officers in Black
attempted to make a voluntary contact. They took the
identification of Nathaniel Black in that case and pinned it
to their vest and continued on their way. The court in Black
said that renders it a seizure. In this case we heard from
Sergeant -–
...
MS. WALLWORK: We know from Officer Blackwell’s
testimony that that period of time, in the light most
favorable to the State, was eight to ten minutes. That he
was with Mr. Thompson outside the home while apparently
Sergeant Sullivan had already gone back inside and Officer
Price has Mr. Thompson’s ID. So there’s an eight to ten
minute delay here. I would argue to the Court that that is
a seizure, and that that seizure is without reasonable
suspicion.
In response, the prosecutor challenged defense counsel’s interpretation of the
testimony:
MS. HINSON [Prosecutor]: Yes, Your Honor. Your Honor,
I would argue that that point wasn’t made as clear as Ms.
Wallwork seems to assert it to the Court. Sergeant
Sullivan did testify that he retrieved the defendant’s
identification and handed it to Officer Price. But when
Officer Price testified, he said the first time he approached
that scene and/or encountered the defendant was after he
was in the residence and conducted the search. He at no
point testified that he was handed a license, that he went
inside for eight to ten minutes, and then came back out.
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Opinion of the Court
And Sergeant Sullivan never testified that at any point he
took a license, went inside for eight to ten minutes, and
then came back out. . . . So I would argue, Your Honor, that
the evidence does not say that the defendant’s license was
seized for that period of time. We know that it was taken
by Sergeant Sullivan, and we know that at some point
Officer Price ran his information, but that eight to ten
minutes is to me a leap.
In its order, the “judge must set forth in the record his findings of facts and
conclusions of law.” N.C. Gen. Stat. § 15A-977(f) (2016). “[T]he general rule is that
[the trial court] should make findings of fact to show the bases of [its] ruling. If there
is a material conflict in the evidence on voir dire, he must do so in order to resolve the
conflict.” State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980) (emphasis
in original) (citation omitted). “ ‘Findings and conclusions are required in order that
there may be a meaningful appellate review of the decision’ on a motion to suppress.”
State v. Salinas, 366 N.C. 119, 124, 729 S.E.2d 63, 66 (2012) (quoting State v. Horner,
310 N.C. 274, 279, 311 S.E.2d 281, 285 (1984)). Remand is required if the trial court’s
order fails to resolve critical issues of fact:
[W]hen the trial court fails to make findings of fact
sufficient to allow the reviewing court to apply the correct
legal standard, it is necessary to remand the case to the
trial court. Remand is necessary because it is the trial court
that “is entrusted with the duty to hear testimony, weigh
and resolve any conflicts in the evidence, find the facts,
and, then based upon those findings, render a legal
decision, in the first instance, as to whether or not a
constitutional violation of some kind has occurred.”
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Salinas, 366 N.C. at 124, 729 S.E.2d at 67 (quoting State v. Cooke, 306 N.C. 132, 134,
291 S.E.2d 618, 620 (1982)).
In this case, the trial court’s findings of fact do not resolve the question of
whether the law enforcement officers returned defendant’s license after examining it,
or instead retained it, or the issue of the sequence of events and the time frame in
which they occurred. Given that the officers conceded that their interaction with
defendant was not based upon suspicion of criminal activity, a finding that officers
kept defendant’s identification would likely support the legal conclusion that he had
been seized. A citizen “ ‘may not be detained even momentarily without reasonable,
objective grounds for doing so; and his refusal to listen or answer does not, without
more, furnish those grounds.” State v. Farmer, 333 N.C. 172, 186-87, 424 S.E.2d 120,
128-29 (1993) (quoting Florida v. Royer, 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 236
(1983)). Because the court’s findings of fact fail to resolve material issues, we vacate
the judgment entered against defendant, and remand for the trial court to enter
findings of fact that resolve all material factual disputes.
Judgment Entered Against Defendant
Defendant also argues that the judgment entered against him for felony
possession of marijuana must be vacated on the grounds that he did not plead guilty
to this offense. It is undisputed that defendant was indicted on charges of possession
of drug paraphernalia, possession with the intent to sell or deliver marijuana, felony
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possession of marijuana, maintaining a vehicle for the purpose of keeping or selling
controlled substances, and possession of a firearm by a convicted felon. It is also
agreed by the parties that, pursuant to a plea arrangement, the State dropped the
charge of maintaining a vehicle for the purpose of keeping or selling controlled
substances, and that defendant pleaded guilty to the charges of possession of drug
paraphernalia, possession with the intent to sell or deliver marijuana, and possession
of a firearm by a convicted felon. However, upon review of the record documents and
the transcript, we note several inconsistencies in the treatment of the charge of felony
possession of marijuana.
During the hearing on the plea arrangement, the prosecutor stated that
defendant was charged with four offenses, including felony possession of marijuana,
and defendant’s counsel stated that she was authorized to enter a plea of guilty to the
offenses, subject to defendant’s reservation of the right to appeal the denial of his
suppression motion. In its colloquy with defendant, the court first enumerated the
offenses to which defendant was pleading guilty, and included felony possession of
marijuana. However, the court then asked defendant if he was prepared to enter a
plea of guilty to “those three charges” and, when the court orally pronounced
judgment, it did not include felony possession of marijuana in the recitation of the
charges to which defendant was pleading guilty.
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Of greater significance than the inconsistencies among the oral statements of
the parties is the fact that the written documents signed by the trial court are not
consistent. The written transcript of plea states that defendant is pleading guilty to
the three offenses about which there is no dispute, and does not state that defendant
is pleading guilty to felony possession of marijuana.2 However, the judgment entered
against defendant includes felony possession of marijuana as a charge for which
judgment is entered. We conclude that the record is inconsistent and unclear as to
whether defendant pleaded guilty to felony possession of marijuana.
The State argues that defendant is not entitled to review of the issue of
whether the judgment sentenced him for an offense of which he was not convicted.
The State characterizes defendant’s argument as a challenge to the trial court’s
compliance with N.C. Gen. Stat. § 15A-1022 (2016), which requires a court to make
certain inquiries of a defendant before accepting a plea of guilty. The defendant is
not, however, arguing that the trial court failed to conduct the requisite colloquy.
Moreover, we easily conclude that if, as is posited by defendant, he was sentenced for
an offense of which he was not convicted, it is in the interest of preserving the
integrity of our judicial system to address this matter. We choose to treat defendant’s
appeal as a petition for issuance of a writ of certiorari, in order to reach this issue.
2 The Notice of Dismissal recites that the State is dismissing the charge of maintaining a
vehicle in exchange for defendant’s agreement to plead guilty to the other four offenses, including
felony possession of marijuana. However, this document was not filed until the day after judgment
was entered against defendant. Moreover, it is not signed by the trial court.
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On appeal, defendant stresses that he “is not seeking to withdraw his guilty
plea” or to change his sentence, but simply wants the “misstatement in the judgment”
corrected. In essence, defendant characterizes this as a clerical error. The State
directs our attention to the parts of the record that tend to support the conclusion
that defendant pleaded guilty to felony possession of marijuana. We conclude that,
on the basis of the record as presently constituted, it is not possible to determine
whether judgment was properly entered on the charge of felony possession of
marijuana. As the judgment must be vacated and this matter remanded, we direct
the court to take the necessary steps to resolve the discrepancy between the
transcript of plea and the written judgment.
Conclusion
For the reasons discussed above, we conclude that the trial court’s order
denying defendant’s suppression motion failed to include findings of fact resolving
significant disputed issues of fact. As a result, we must vacate the judgment against
defendant and remand for entry of additional findings. We further conclude that the
transcript of plea and the judgment are inconsistent and remand for correction of this
discrepancy.
VACATED AND REMANDED.
Judge DAVIS concurs.
Judge BERGER dissents with separate opinion.
- 21 -
No. COA17-477 – State v. Thompson
BERGER, Judge, dissenting in separate opinion.
Because Defendant was never seized by Charlotte-Mecklenburg Police
Department (“CMPD”) officers within the meaning of the Fourth Amendment, I
would affirm the trial court’s denial of the motion to suppress, and respectfully
dissent.
The North Carolina Supreme Court has stated that law enforcement officers
“may approach individuals in public to ask them questions and even request consent
to search their belongings, so long as a reasonable person would understand that he
or she could refuse to cooperate. . . . Such encounters are considered consensual and
no reasonable suspicion is necessary.” State v. Brooks, 337 N.C. 132, 142, 446 S.E.2d
579, 585-86 (1994) (citations omitted). Only when the encounter ceases to be
consensual are Fourth Amendment concerns implicated. State v. Garcia, 197 N.C.
App. 522, 528, 677 S.E.2d 555, 559 (2009). The initial inquiry is “whether under the
totality of the circumstances a reasonable person would feel that he was not free to .
. . terminate the encounter.” Brooks, 337 N.C. at 142, 446 S.E.2d at 586 (citations
omitted).3
3 This case brings to mind a famous scene from Star Wars. In the first movie, Episode IV, A
New Hope, Obi-Wan Kenobi, Luke Skywalker, R2-D2, and C-3PO arrive in Mos Eisley and are greeted
by Stormtroopers. A Stormtrooper asks Skywalker for identification, and with a wave of his hand,
Kenobi uses a Jedi mind trick to avoid Imperial authorities. Kenobi asserts that the Stormtrooper
does not need to see Skywalker’s identification and that he can go about his business because “these
aren’t the droids [Stormtroopers] are looking for.” Unfortunately for Defendant, he consented to this
encounter with the authorities, and these were the drugs that officers were looking for.
STATE V. THOMPSON
BERGER, J., dissenting
The following findings of fact by the trial court were supported by competent
evidence in the record and transcript, and, therefore, these findings are conclusively
binding on appeal, State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982):
(1) CMPD officers were “going to execute a search warrant at 404 Basin
Street, an apartment.”
(2) Before arriving at the location, the officers were advised that an
individual in a Volvo “was parked in front of the residence.”
(3) Sergeant Sullivan went to the Volvo while his team executed the search
warrant “because of its proximity to the apartment to be searched.”
(4) Sergeant Sullivan approached the Volvo to make sure the target of the
search warrant was not in the vehicle, and “to assure that [the] person
did not interfere with the execution of the search warrant.”
(5) Defendant was the occupant of the Volvo, and when asked by Sergeant
Sullivan if he lived at 404 Basin Street, “he replied ‘No’ but . . . that his
girlfriend did.”
(6) Although in uniform and armed, officers did not have their weapons
drawn.
(7) Sergeant Sullivan and Defendant stood next to each other as Defendant
was advised that a search warrant was being executed at his girlfriend’s
apartment.
2
STATE V. THOMPSON
BERGER, J., dissenting
(8) Sergeant Sullivan “did not tell the Defendant that he had to remain at
the scene.”
(9) Within ten minutes of his initial contact with Defendant, Sergeant
Sullivan asked Defendant for identification and for consent to search his
person. Defendant consented to the search of his person, which revealed
no weapons or contraband.
(10) Sergeant Sullivan provided Defendant’s identification to another officer.
(11) “[A]fter [the apartment] had been secured,” Officer Hefner left the
residence to speak with Defendant because he had “received information
that the Defendant was the supplier of the drugs that were being
searched for inside the residence.”4 (Emphasis added).
(12) Officer Hefner asked for and received consent to search Defendant’s
vehicle.
(13) Defendant assisted CMPD officers with the search of his Volvo.
(14) “Defendant’s encounter with the police . . . was voluntary and
consensual.”
(15) Defendant “was never told nor was it intimated by word or deed that he
was not free to leave at any point.” (Emphasis added).
4An active search of the apartment was taking place when Officer Hefner made contact with
Defendant.
3
STATE V. THOMPSON
BERGER, J., dissenting
Defendant’s behavior was not indicative of an involuntary encounter with
CMPD officers. It was permissible for Sergeant Sullivan to approach Defendant in a
public area at any time to ask questions. Sergeant Sullivan did just that: he engaged
Defendant to explain why CMPD officers were present on the scene, determine if he
was the target of the search warrant, and prevent interference. The two stood outside
Defendant’s vehicle while officers gained entry to the apartment. Defendant was
never told he could not leave the scene, never placed in handcuffs, and never
restrained. Defendant was not required to cooperate or even speak with Sergeant
Sullivan. Competent evidence also showed that Defendant was calm and never asked
if he could leave the scene.5
Sergeant Sullivan asked for Defendant’s identification and “if he would allow”
Sergeant Sullivan to search his person for drugs and weapons. Defendant provided
his identification and consented to the search even though he was not required to do
so. There is no evidence that Sergeant Sullivan or any other CMPD officer used force
or intimidation to obtain the identification or consent to search.
After the residence was secured, and while execution of the search warrant
was taking place, Sergeant Sullivan gave Defendant’s identification to another officer
5From the findings of fact, it appears the trial court gave Defendant’s testimony little to no
weight. The trial court asked defense counsel during her argument if the factual questions to be
resolved were a matter of “credibility,” and the trial court’s findings are consistent with the officers’
testimony.
4
STATE V. THOMPSON
BERGER, J., dissenting
and went into the residence. Defendant did not request his identification be returned,
nor did he request to go about his business.
Shortly thereafter, Officer Hefner approached Defendant and obtained consent
to search the vehicle. Defendant assisted Officer Hefner in the search. Defendant’s
interaction with CMPD officers was relatively brief under the circumstances. Officer
Blackwell, who assisted with Defendant at the scene, estimated that the time from
Sergeant Sullivan’s initial contact with Defendant until Defendant consented to
search of his vehicle was approximately eight to ten minutes.
The majority focuses on the location of Defendant’s identification as the sole
reason to vacate Defendant’s conviction. We are required, however, to look at more
than one fact. Under the totality of the circumstances, a reasonable person would
have felt free to decline the officers’ requests and terminate this encounter at any
point up to the discovery of more than 85 grams of marijuana, $4,195.77 in cash, and
a firearm in the trunk of the vehicle.
The trial court’s findings support the conclusion that Defendant’s encounter
with CMPD officers was “voluntary and consensual.” No additional findings
regarding Defendant’s identification, or any other matter, are necessary to support
that conclusion.
Moreover, even if we assume that Defendant was seized as Defendant argues
and the majority finds, the search of the vehicle was still valid. The majority cites
5
STATE V. THOMPSON
BERGER, J., dissenting
State v. Jackson, 199 N.C. App. 236, 241-42, 681 S.E.2d 492, 496 (2009), and State v.
Parker, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, COA17-108, 2017 WL 5145987, *6
(2017), for the proposition that retaining a defendant’s identification “beyond the
point of satisfying the purpose of the initial detention” is unreasonable. Parker, 2017
WL 5145987, at *6. While this may be a correct statement of the law under the facts
of those cases, the initial purpose of the detention under our facts had not been
satisfied.
The trial court found that CMPD officers approached Defendant because of his
“proximity to the apartment to be searched[,]” to make sure the target of the search
was not in the vehicle, and to prevent that person from interfering with execution of
the search warrant. Defendant was parked in front of the residence, and in close
proximity to the area in which the officers would be executing the search warrant.
While speaking with Defendant, officers determined that he did in fact have a
connection to the residence to be searched because his girlfriend was the target of the
search warrant. There is no evidence that Defendant was detained by CMPD officers
beyond the point of satisfying their initial purpose to prevent interference with
execution of the search warrant.
In addition, individuals with a “connection to the residence to be searched” may
be detained within the “immediate vicinity of the premises to be searched.” Bailey v.
U.S., 568 U.S. 186, 197, 201, 185 L. Ed. 2d 19, 31, 33-34 (2013) (factors to consider in
6
STATE V. THOMPSON
BERGER, J., dissenting
determining what constitutes “immediate vicinity” include, but are not limited to, the
“lawful limits of the premises” to be searched, the individual was “within the line of
sight” of the property to be searched, the ability to re-enter the property, and “other
relevant factors”). “An officer’s authority to detain incident to a search is categorical;
it does not depend on the quantum of proof justifying detention or the extent of the
intrusion to be imposed by the seizure.” Muehler v. Mena, 544 U.S. 93, 98, 161 L. Ed.
2d 299, 307 (2005) (citation and internal quotation marks omitted).
Defendant here was in the immediate vicinity of the apartment to be searched,
and CMPD officers determined that Defendant did in fact have a connection with the
apartment. While in close proximity to the apartment, Defendant certainly had the
ability to disrupt or otherwise interfere with the officers as they conducted the search.
CMPD officers had the authority to detain Defendant incident to the search.
For these reasons, I would affirm the denial of Defendant’s motion to suppress.
As to Defendant’s second issue concerning his conviction for felony possession
of marijuana, Defendant has requested that the judgment entered against him be
corrected to accurately reflect the offenses for which he pleaded guilty. Neither the
plea transcript nor the colloquy between the trial court and Defendant reference the
possession of marijuana charge that is set forth on the judgment. Judgment should
simply be arrested as to that charge, or the matter should be remanded for correction
of the clerical error.
7
STATE V. THOMPSON
BERGER, J., dissenting
8