State v. Icard

Justice NEWBY

dissenting.

This Court substitutes its judgment for that of the trial court and grants defendant a new trial by re-weighing the evidence and con-*312eluding the search of defendant’s purse was illegal because she had been unlawfully seized in violation of the Fourth Amendment. This decision fails to give proper deference to the factual findings of the trial court and misapplies federal and state jurisprudence long understood to mean that not all personal exchanges between police officers and citizens involve a seizure. The Court’s analysis also leaves law enforcement officers without adequate guidance needed to enable them to enforce the laws of the State and protect its citizens. Because I believe the evidence supports the decision of the trial court that defendant voluntarily consented to the search of her purse, I respectfully dissent.

The standard of review under which we evaluate 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. See, e.g., State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994). The trial court’s findings “are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.” State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001). The trial court determines the credibility of the witnesses who testify, weighs the evidence, and determines the reasonable inferences to be drawn therefrom. Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d 29, 33 (1968). If different inferences may be drawn from the evidence, the trial court decides which inferences to draw and which to reject. Id. Appellate courts are bound by the trial court’s findings if there is some evidence to support them, and may not substitute their own judgment for that of the trial court even when there is evidence which could sustain findings to the contrary. In re Montgomery, 311 N.C. 101, 110-11, 316 S.E.2d 246, 252-53 (1984). “Where the findings of fact support the conclusions of law, such findings and conclusions are binding upon us on appeal.” State v. Wynne, 329 N.C. 507, 522, 406 S.E.2d 812, 820 (1991) (citations and internal quotation marks omitted).

At trial, the encounter with defendant was described by Officer Curt Moore of the Maiden Police Department, a twenty-two year veteran of law enforcement who had previously worked for the North Carolina State Highway Patrol, the Hickory Police Department and the Catawba County Sheriff’s Department. On 21 September' 2004, Officer Moore was on duty as a supervisor of the night patrol division, which required him to monitor the security of businesses and people within the city limits and to address any problems that arose during the shift. One such business was the Fairview Market, a gas *313station and sandwich shop situated at the intersection of West Maiden Road and Startown Road in Maiden, North Carolina. On the side of the building that faced the road was a large, private parking lot for automobiles and tractor-trailers containing three rows of parking spaces. Two “No Trespassing” signs were posted on either side of the front of the building stating that violators after business hours would be subject to law enforcement by the Town of Maiden. Officer Moore recalled that this particular area was known for its high rate of criminal activity, that there had been numerous complaints regarding drugs and prostitution in the area, and that he had made several arrests there.

At approximately 12:30 a.m., Officer Moore pulled into the parking lot of the Fairview Market to perform an after-hours check of the premises because the business had closed at 10:00 p.m. While turning into the lot, he noticed only one vehicle there — a pickup truck pulled diagonally across two parking spaces in the front row within fifteen feet of the side of the building. Although the truck was not parked illegally, the abnormal positioning caused Officer Moore to observe it more closely as he drove past. When his headlights crossed through the back windshield, the cab of the truck appeared to be unoccupied. Officer Moore continued past the truck and circled around the building. As he rounded the front corner of the building, his headlights illuminated the front windshield of the truck and he saw a silhouette about six inches above the steering wheel.

Officer Moore drove around the truck and, upon parking behind it, noticed movement in the cab. He stated that although the truck would have been unable to back up because his car was parked directly behind it, it could have freely driven forward at any time to leave the lot. Officer Moore was driving a low-profile police car which had police department decals on each side but did not have the standard light bar on top of the roof. In order to identify himself as a police officer, he left his headlights on and activated his blue visor lights. He then called the Catawba County Justice Center to give them a description of the vehicle and the license plate number. As Officer Moore approached the driver’s side of the truck, he noticed a passenger, who was later identified as defendant. The driver partially rolled down his window to speak with Officer Moore and eventually opened his door to continue the conversation. After examining his driver’s license and registration, Officer Moore asked the driver his purpose for being there. The driver responded that they had come from Connelly Springs to meet their friend “Jody” who was driving *314down from Taylorsville. Officer Moore inquired further because the Fairview Market in Maiden seemed to be an illogical and geographically inconvenient place to meet, or in his words, “way out of the way.” He also informed the occupants of the truck that his purpose for speaking with them was related to the numerous complaints regarding drugs and prostitution in the area. At that point, he returned to his police car with the driver’s license and registration to begin an “identification process,” which he testified is a standard procedure when the police find a vehicle at a business after hours. Because there were two occupants in the truck, Officer Moore called his secondary patrol officer, Officer Darby Hedrick, and requested that he report to the location as back-up. Officer Moore waited in his vehicle for results of the identification process and for Officer Hedrick to arrive.

After a minute or two, the license, registration, and warrant checks were verified. Officer Moore turned off his blue visor lights before approaching the vehicle for a second time, this time on the passenger side where defendant was sitting. By that time Officer Hedrick had arrived and parked his marked police car parallel to the right side of Officer Moore’s car with his headlights and stationary, front-facing spotlights shining toward the truck. Officer Moore briefly explained the situation to Officer Hedrick before they approached the truck. When he got to the passenger’s door, Officer Moore attempted to gain defendant’s attention by tapping on the window with his knuckle, but defendant did not respond. Officer Hedrick remained several feet away, near the middle or rear of the truck bed. Officer Moore tapped on the window a second time, and when defendant again did not respond he opened the truck door, identified himself, and requested her identification. Defendant replied that she did not have a driver’s license or identification card with her because it was in another purse. However, visible at her feet on the floorboard was what appeared to be a purse. Officer Moore asked if there were any forms of identification in the purse. Defendant replied that she did not think it contained any, but voluntarily reached down, picked up the bag, and unzipped it. Immediately visible near the top of the bag was a bifold wallet from which defendant produced a North Carolina identification card. Officer Moore asked defendant if she would step out of the truck and bring her purse to the rear of the vehicle where Officer Hedrick was standing. Defendant agreed, and as she walked towards the rear of the truck she was still “fumbling” through her purse. Officer Moore asked defendant for permission to look through the bag and then inquired *315as to whether there was anything in the purse that she needed to tell him about. Defendant answered in the negative, consented to a search of the bag, and handed it to the officer. Visible in the center of the bag, lying loose on top of some other items, was the blackened end of a glass pipe which, based on Officer Moore’s training and experience, appeared to be a “crack pipe.” Officer Moore also saw an open pouch that held some bullets and the other end of the glass pipe, and a clear plastic bag with a stamp of a skunk on the outside containing a substance that later tested positive for methamphetamine. Before he could finish the interview with defendant, Officer Moore was distracted by suspicious movements in the cab of the truck by the driver, who appeared to be sliding towards the passenger side. He handed the purse to Officer Hedrick and walked around to the driver’s side of the truck where he was involved in an altercation with the driver. The incident resulted in the arrest of both defendant and the driver, and a search of the vehicle that yielded a loaded handgun, a knife, drugs, and drug paraphernalia.

Based upon this evidence, the trial court made the following pertinent findings of fact:

19. When Moore arrived at the passenger door of the truck, he tapped on the window. The defendant did not respond. Moore knocked on the window a second time and the defendant again did not respond.
20. Moore identified himself to the defendant and he was wearing his police uniform at the time of this incident.
21. Moore then opened the passenger door of the truck.
22. Moore asked the defendant for her identification.
23. The defendant told Moore that she had left her identification in another purse.
24. Moore observed a purse or bag in the floorboard of the Dodge truck at her feet.
25. Moore asked about that purse and the defendant said that she didn’t think her identification was in that purse.
26. The defendant then reached down and unzipped the purse. There was a bi-fold billfold on top and the defendant fumbled through it.
27. The defendant produced her [identification card] for Officer Moore.
*31628. Moore then asked the defendant to step out of the Dodge truck.
29. Once the defendant got out of the truck, Moore asked her to accompany him to the back of the truck. The defendant complied with Moore’s request.
30. Moore asked the defendant if he could look in her purse and if there was anything in her purse that she needed to tell him about.
31. The defendant said no and handed her purse to Officer Moore.
32. When Moore looked inside of the defendant’s purse he observed a piece of glass pipe and several bullets. The glass tube had a burned or smoked area on one end. Moore was of the opinion, based on his training and experience, that the glass pipe was a crack pipe.
34. Moore did not pat down or frisk the defendant for weapons.
35. Moore did not threaten the defendant in any way and he did not place his hand on her at any time.
36. Moore had a handgun on his person. He did not remove that weapon from its holster.
37. Moore did not apply physical force, make any threat of force or make a show of authority at anytime prior to the discovery of the drug paraphernalia in the defendant’s purse.
38. The defendant consented to producing her identification to Officer Moore and she agreed to go to the back of the truck. The defendant also agreed to permit Moore to examine the contents of her purse.
39. Moore did not coerce the defendant’s cooperation with his requests. Moore did not tell the defendant that she was not free to terminate this interaction.

Based on these findings of fact, which were supported by competent evidence, the trial court made the following conclusions of law:

1. No one is protected by the Constitution against the mere approach of police officers in a public place. State v. *317Campbell, 359 N.C. 644, 662, 617 S.E.2d 1 (2005); State v. Brooks, 337 N.C. 132, 141, 446 S.E.2d 579 (1994).
2. Thus, a communication between the police and citizens involving no coercion or detention falls outside the compass of the Fourth Amendment. Brooks, 337 N.C. at 141.
3. Police 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. Brooks, 337 N.C. at 142.
4. A seizure does not occur simply because a police officer approaches an individual and asks a few questions. Such encounters are considered consensual and no reasonable suspicion is necessary. Campbell, 359 N.C. at 662; Brooks, 337 N.C. at 142.
5. The test for determining whether a seizure has occurred is whether under the totality of the circumstances a reasonable person would feel that he was not free to decline the officers’ request or otherwise terminate the encounter. Brooks, 337 N.C. at 142.
6. 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. Campbell, 359 N.C. at 662.
7. Based on the totality of the circumstances, the defendant would not have felt that she was not free to terminate the encounter or decline Moore’s requests.
8. Based on the totality of the circumstances, the defendant cooperated with Moore’s requests and her cooperation was not coerced by physical force or a show of authority.

Each of the trial court’s conclusions is supported by the findings of fact and is based upon an accurate assessment of the law. As previously stated by this Court, “ ‘not all personal intercourse between policemen and citizens involve ‘seizures’ of persons.’ ” State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13 (2005) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 2386, 115 L. Ed. 2d 389, 398 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16, 20 L. Ed. 2d 889, 905 n.16 (1968))), cert. denied, 547 U.S. *3181073, 126 S. Ct. 1773, 164 L. Ed. 2d 523 (2006). It is well established that “ ‘[l]aw enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.’ ” Campbell, 359 N.C. at 662, 617 S.E.2d at 13 (quoting United States v. Drayton, 536 U.S. 194, 200, 122 S. Ct. 2105, 2110, 153 L. Ed. 2d 242, 251 (2002) (alteration in original)). An encounter is consensual and does not constitute a seizure “[S]o long as a reasonable person would feel free to disregard the police and go about his business.” Campbell, 359 N.C. at 662, 617 S.E.2d at 13 (quoting Bostick, 501 U.S. at 434, 111 S. Ct. at 2386, 115 L. Ed. 2d at 398 (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S. Ct. 1547, 1552, 113 L. Ed. 2d 690, 698 (1991)). “ ‘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.’ ” Id. (quoting Bostick, 501 U.S. at 434, 111 S. Ct. at 2386, 115 L. Ed. 2d at 398 (quoting Terry, 392 U.S. at 19 n.16, 88 S. Ct. at 1879 n.16, 20 L. Ed. 2d at 905 n.16)).

In determining whether the officer’s actions constituted a show of authority that implicates the protections of the Fourth Amendment, the question is “not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” California v. Hodari D., 499 U.S. at 628, 111 S. Ct. at 1552, 113 L. Ed. 2d at 698 (emphasis added) (citation omitted). This objective test permits a trial court to conclude that a seizure has occurred “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, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980); or to “decline the officers’ requests or otherwise terminate the encounter,” Bostick, 501 U.S. at 438, 111 S. Ct. at 2389, 115 L. Ed. 2d at 402. Likewise, the Fourth Amendment does not include a consideration of the officer’s subjective intent, and his motive will not “invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89, 98 (1996) (quoting Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168, 178 (1978)).

In Mendenhall, the Supreme Court of the United States enumerated several circumstances that could support the trial court’s determination that a show of authority had occurred, such as “the threat*319ening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” 446 U.S. at 554, 100 S. Ct. at 1877, 64 L. Ed. 2d at 509 (citation omitted). Hearing live testimony, the trial court is in the best position to weigh the evidence. In the case sub judice, the trial court properly considered each of these circumstances and made detailed findings that Officer Moore did not make a show of authority during the encounter. Pursuant to current Fourth Amendment jurisprudence, the trial court’s decision should be affirmed because it is based on sound factual findings and an accurate application of the law.

The majority, however, isolates two phrases in the trial court’s findings, characterizes them as conclusions of law, re-weighs the evidence, and makes its own findings to support its conclusion that defendant was seized and her consent involuntary. As noted in the majority opinion, “The totality of the circumstances ‘test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.' ” (emphasis added) (citation omitted). After correctly stating the applicable test, the majority then misapplies it. The trial court made thirty-nine detailed findings of fact, considering the encounter between defendant and Officer Moore in its full context; the majority focuses on two “particular details of th[e] conduct in isolation.” After discussing the circumstances of the encounter, the trial court states in Finding 37: “Moore did not apply physical force, make any threat of force Or make a show of authority at anytime prior to the discovery of the drug paraphernalia in the defendant’s purse.” In Finding 39, the trial court states: “Moore did not coerce the defendant’s cooperation with his requests. Moore did not tell the defendant that she was not free to terminate this interaction.” The majority admits that most of these statements are factual, yet determines the findings, “Moore did not . . . make a show of authority” and “Moore did not coerce the defendant’s cooperation with his requests,” are conclusions of law. However, as noted by the trial court, even these two findings contain both factual and legal components. This duality was considered by the trial court as it analyzed the “show of authority” and “coercion” elements in its findings of fact and conclusions of law. Viewed in the context of the other findings of fact, there is competent evidence to support the trial court’s factual determinations that Officer Moore did not “make a show of authority” and “did not coerce the defendant’s cooperation,” *320and these findings should not be subject to de novo review. Instead of looking at the totality of the circumstances, the majority isolates these two findings, which have both factual and legal components, ignores the role of the trial court in weighing the factual nature of the findings, and substitutes its own judgment for that of the trial court before which the testimony was given.

Considering the totality of the circumstances, the trial court found in Finding 38: “The defendant consented to producing her identification to Officer Moore and she agreed to go to the back of the truck. The defendant also agreed to permit Moore to examine the contents of her purse.” In assessing the voluntariness of the search, the majority ignores this crucial finding and recharacterizes the critical events of the encounter between Officer Moore and defendant. When Officer Moore opened the door of the truck and asked defendant for her identification, she did not communicate any desire for the encounter not to occur. She responded to his question and stated she did not have any identification, having left it in a purse at home. Officer Moore noticed the purse on the floor of the truck and asked defendant if her identification could be in it. The encounter could have ended at that juncture. A reasonable person would have believed she could have terminated the encounter, having stated that she left her identification at home. Defendant, nonetheless, voluntarily picked up the purse and opened it. Disproving defendant’s prior statement, the identification was in the top of the purse. Contrary to the evidence and the findings by the trial court, the majority characterizes these critical events of the encounter by simply stating: “Officer Moore requested that defendant produce her identification.” After voluntarily opening the purse and revealing her identification, defendant agreed to exit the truck, bringing her purse with her. As explicitly found by the trial court, defendant then consented to the search of her purse.

The majority concludes with a list of six events it determines amounted to a show of authority, converting the voluntary encounter to an unlawful seizure. This analysis could well describe most police encounters. Further, it again reweighs the evidence, substituting the judgment of an appellate court for that of the trial court that heard the testimony. The first event listed is “Officer Moore, who was armed and in uniform, initiated the encounter....” Defendant was in a truck parked in a public area outside a closed business. Under these circumstances an officer should investigate. The driver of the truck could have driven away, but chose to stay. Further, it is almost invari*321able that law enforcement officers will be “armed and in uniform.” These circumstances do not preclude voluntary cooperation. As the case law directs and as observed by the trial court, the pertinent inquiry is whether the officer did more than simply have his weapon in its holster. The next factor is that “Officer Moore called for backup assistance.” It is standard procedure to have backup when the initial officer observes more than one individual in a vehicle. In hindsight, having backup was prudent as the officers subsequently determined there was a loaded pistol in the truck. The majority also finds pertinent the fact that “Officer Moore initially illuminated the track with blue lights.” While Officer Moore at first utilized his blue visor lights to identify himself as a police officer, he subsequently turned them off before his encounter with defendant. Similarly, the majority’s test includes the finding that “Officer Hedrick illuminated defendant’s side of the track with his take-down lights,” however, the use of Officer Hedrick’s spotlights was necessary for the safety of all in the dimly lit parking lot.

The final elements relied upon by the majority are newly minted factual determinations based on its interpretation of the evidence. The majority states that “Officer Moore opened defendant’s, door, giving her no choice but to respond to him.” Although Officer Moore’s actions made a response from defendant likely, there is nothing in the record that requires a finding that he gave her “no choice but to respond to him,” and the trial court did not so hold. As stated above, this finding is contradicted by the facts as found by the trial court; defendant had the opportunity to decline further interaction, but voluntarily picked up her purse, opened it, and produced her identification. Whereas the majority says, “Officer Moore instructed defendant to exit the truck,” the trial court found the officer “asked the defendant to step out of the . . . truck” and that she did so voluntarily. From these circumstances, the majority concludes that defendant was seized “by the time [she] stepped out of the track at Officer Moore’s request.” However, the evidence and factual findings support the trial court’s conclusion that defendant voluntarily interacted with Officer Moore, willingly exited the truck, and consented to the search of her purse. While a trial court might have found the facts as the majority has done, the trial court in this case did not. The majority’s re-weighing of the evidence in order to support its determination that defendant was seized violates our standard of deference to the trial court.

Considered in light of the facts as found by the trial court, the actions of the law enforcement officer were supported by law. While *322the truck in this case was not violating any traffic laws, Officer Moore is permitted by law to approach a person or vehicle in a public place, Bostick, 501 U.S. at 434, 111 S. Ct. at 2386, 115 L. Ed. 2d at 398, ask questions of the driver and passenger, including their reasons for being there, if they are willing to listen, Drayton, 536 U.S. at 200, 122 S. Ct. at 2110, 153 L. Ed. 2d at 251, request to examine the individuals’ identification, see INS v. Delgado, 466 U.S. 210, 216, 104 S. Ct. 1758, 1762, 80 L. Ed. 2d 247, 255 (1984), and request consent to search their luggage, Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1323-24, 75 L. Ed. 2d 229, 236-37 (1983), so long as the officer does not use coercion or require compliance with the requests. Bostick, 501 U.S. at 435, 111 S. Ct. at 2386, 115 L. Ed. 2d at 398-99. Officer Moore was properly and legally performing his duties when he stopped to investigate the lone vehicle parked in the Fairview Market’s parking lot after business hours.

In order to protect citizens from unlawful seizures while still effectively enforcing the criminal laws of our State, this Court must provide clear guidance so that law enforcement officers are able to determine when they must terminate an investigative encounter or articulate a reason for continuing. The majority opinion fails to give the useful instruction needed by our law enforcement officers and our trial courts.

I believe competent evidence supports the trial court’s findings of fact, and the findings of fact support the conclusions of law. The trial court’s holding that defendant voluntarily consented to the search of her purse should be affirmed. I respectfully dissent.