State v. Jackson

899 S.E.2d 582

STATE of North Carolina

v.Warren Douglas JACKSON

No. COA23-727

Court of Appeals of North Carolina.

Filed March 19, 2024

Appeal by defendant from judgment entered 14 February 2023 by Judge R. Gregory Horne in Superior Court, Avery County. Heard in the Court of Appeals 28 February 2024. Avery County, No. 19 CRS 50701

Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth G. Arnette, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S. Zimmer, for defendant-appellant.

ARROWOOD, Judge.

Warren Douglas Jackson ("defendant") appeals from judgment entered upon his con- viction for possession of methamphetamine. For the following reasons, we find that defendant received a fair trial free from prejudicial error.

I. Background

Detective Ridge Phillips ("Phillips") of the Avery County Sheriff’s Office was patrolling in a rural section of Avery County, North Carolina when he saw defendant driving a truck on Squirrel Creek Road. Knowing that defendant had a revoked driver’s license at the time, Phillips pulled him over. According to Phillips, at the time of the stop, he had interacted with defendant two to three times in the past. Specifically, Phillips testified that he had previously arrested defendant for possession of a firearm by a felon and that he had been aware of defendant’s previous involvement with narcotics.¹

Upon approaching defendant’s truck, Phillips testified that he asked defendant if he could search the truck to "make sure there were no guns, knives, drugs or anything in the vehicle" and that defendant consented to the search. Phillips’s body camera did not record any sound while defendant was sitting in the truck, so the request to search the truck and defendant’s response cannot be substantiated. According to Phillips, he then asked defendant to step out of the truck.²

As defendant stepped out of the truck, the audio from Phillips’s body camera activated, and defendant could be heard stating, "Yeah, I got a pocketknife." As Phillips directed defendant in position for a pat-down search, the following exchange occurred:

Phillips: You just got a pocketknife?

Defendant: Yeah.

Phillips: Alright, keep your hands out of your pockets.

I am going [to] pat you down for my safety.

After patting down defendant’s front right pant pocket, Phillips asked defendant, "What all is in your pocket right here?" While asking the question, Phillips simultaneously slid a travel-size pill bottle out of the pocket.³ In response, defendant stated, "cigarette lighter and my medicine." Phillips testified, "On the pat-down I felt what was a pill bottle in the front right pocket, what I know through my training and experience to be a pill bottle. People keep their controlled substances, whether it be pills or other things, inside of it." Phillips further testified that when feeling the bottle, it was not "consistent with a prescription bottle." With the pill bottle in Phillips’s hand, Phillips asked defendant what kind of medicine was in the bottle, and defendant stated, "Percocets." Phillips opened the bottle and observed two pills inside. Phillips testified that when he saw the bottle, he noticed it was not a prescription bottle.

After defendant stated he had a prescription for the pills, Phillips told defendant he was going to detain him and placed defendant in handcuffs. Phillips told defendant he "was just detaining him for now because [he] found them Percocets" and started pulling other items out of defendant’s pockets, including a wallet, lighters, and a pocketknife. While searching defendant’s pockets, Phillips stated, "You can’t carry around Percocets in your pocket without the prescription bottle, okay. That is a controlled substance."⁴ Defendant replied that he kept them in a non-prescription bottle to prevent people from stealing them, given that the prescription bottle would let people know he had them.

Because of the pills, Phillips told defendant, "I am going to start the search, okay on you. It is against the law to carry Percocets like that without a prescription bottle. Like I said right now, you’re just being detained. You ain’t under arrest." While searching defendant’s pant leg, Phillips noticed that one of defendant’s pant legs was slightly stuck in his boot. Phillips searched defendant’s boot and sock area and found a bag of methamphetamine. Phillips then arrested defendant for possession of methamphetamine.⁵ Phillips issued defendant a citation for driving while license revoked ("DWLR").

Defendant was indicted for felony possession of methamphetamine and misdemeanor possession of a Schedule II controlled substance on 29 November 2021. Defendant moved to suppress the evidence obtained during the traffic stop on 20 May 2022, arguing that Phillips did not have probable cause to search him or the truck, nor did Phillips have any other basis to conduct the searches.

A suppression hearing was held before trial on 13 and 14 February 2023. Phillips was the sole witness called during the hearing. When asked on the first day of the hearing whether defendant would have been detained based on his revoked license status—even if no contraband had been found—the following exchange occurred between Phillips and the State:

Phillips: Yes, he can be arrested for that.

The State: So would he have been able to drive away from the scene had you found nothing on his person?

Phillips: No.

On the second day of hearing, the exchange with respect to Phillips's intentions continued:

The State: Yesterday you indicated that even if taking all, if nothing was found during your search of defendant or nothing was found in the vehicle, that the defendant would not have been allowed to leave the scene?

Phillips: Correct.

The State: What would you have done with defendant, assuming nothing else was found, what would you have done with him?

Phillips: Arrested him for driving while licensed revoked.

Phillips further testified that, after arresting someone for DWLR, he would search their person before placing them in his patrol car. On cross-examination of Phillips, defendant’s questioning centered on Phillips’s interactions with defendant leading up to and during the protective frisk and the pocket search. Defendant presented no other evidence for the suppression motion. At the hearing’s conclusion, the trial court denied defendant’s motion and concluded that the search was lawful and that there was no constitutional violation of defendant’s rights.

The possession of methamphetamine charge proceeded to jury trial, and defendant was found guilty of possession of methamphetamine. The trial court sentenced defendant to six to seventeen months’ imprisonment, suspended for twenty-four months’ supervised probation, on 14 February 2023. Defendant gave notice of appeal in open court. The misdemeanor possession charge was dismissed on 14 June 2023.

II. Discussion

Defendant raises numerous arguments on appeal. Defendant contends the seizure of the pill bottle exceeded the scope of a protective frisk and that because defendant was never arrested for DWLR, the search incident to arrest exception to the warrant requirement was inapplicable. Defendant also argues that defendant lacked probable cause to open the container. Lastly, in the alternative, defendant argues that the arrest for possession of the pills was not supported by probable cause. The State contends that the search and seizure were lawful, and, even if unlawful, the motion was still properly denied because the methamphetamine found in defendant’s boot was admissible under the inevitable discovery doctrine.

A. Standard of Review

[1–3] "Our review of a trial court’s denial of a motion to suppress is strictly limited to a determination of whether the trial court’s findings are supported by competent evi- dence, and in turn, whether the findings support the trial court’s ultimate conclusion." State v. Reynolds, 161 N.C. App. 144, 146–47, 587 S.E.2d 456 (2003) (cleaned up). "The trial court’s conclusions of law, however, are reviewed de novo." State v. Duncan, 272 N.C. App. 341, 345, 846 S.E.2d 315 (2020) (citing State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350 (1997)). "In reviewing the denial of a motion to suppress, we examine the evidence introduced at trial in light most favorable to the State." Id. (cleaned up).

B. The "Plain Feel" Doctrine and Probable Cause

[4–6] Evidence of contraband during a protective frisk may be admissible under the "plain feel" doctrine, provided that the officer "feels an object whose contour or mass" make its incriminating nature immediately apparent. Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). In other words, evidence of contraband—plainly felt during a frisk—may be admissible if "the officer had probable cause to believe that the item was in fact contraband." State v. Stearin, 170 N.C. App. 222, 226, 612 S.E.2d 371 (2005) (citing Dickerson, 508 U.S. at 375-77, 113 S.Ct. 2130). In determining whether an object’s incriminating nature was immediately apparent and whether probable cause existed to seize it, the totality of the circumstances is considered. State v. Robinson, 189 N.C. App. 454, 459, 658 S.E.2d 501 (2008) (citation omitted). When such "facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that the item may be contraband, probable cause exists." State v. Briggs, 140 N.C. App. 484, 493, 536 S.E.2d 858 (2000) (citing Texas v. Brown., 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (emphasis in original).

In Robinson, this Court held that there was probable cause to seize a film canister during a protective frisk because sufficient information existed to believe it contained contraband. 189 N.C. App. at 459-60, 658 S.E.2d 501. In concluding that probable cause existed, this Court considered that (1) the defendant was stopped in an area known for being a "drug...