State v. Johnson

385 N.C. 73

890 S.E.2d 891 (Mem)

STATE of North Carolina v. Jeremy JOHNSON

No. 197PA20-2

Supreme Court of North Carolina.

Filed September 1, 2023

Joshua H. Stein, Attorney General, by Matthew Tulchin, Special Deputy Attorney General, for the State-appellee.

Glenn Gerding, Appellate Defender, by Kathryn L. VandenBerg, Assistant Appellate Defender, for defendant-appellant.

Elizabeth Simpson, for Emancipate NC, amicus curiae.

Johanna Jennings and Emily Coward, for The Decarceration Project, amicus curiae.

PER CURIAM.

AFFIRMED.

Justices BERGER and DIETZ did not participate in the consideration or decision of this case.

Justice EARLS dissenting.

I. Introduction

In 1999, the General Assembly decided it was important to require the collection of traffic stop data to assess racial discrimination in the same context. Accordingly, it passed N.C.G.S. § 143B-903, which became the first law nationally to require law enforcement to record the race of every person subjected to a traffic stop. An Act to Require the Division of Criminal Statistics to Collect and Maintain Statistics on Traffic Law Enforcement, S.L. 1999-26, § 1, 1999 N.C. Sess. Laws 27 (current version at N.C.G.S. § 143B-903 ); Frank R. Baumgartner et al., Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race 35 (2018) [hereinafter Suspect Citizens ]. Supporters and opponents of the law agreed: its purpose was to determine whether police officers discriminated on the basis of race in choosing who to stop for traffic offenses. ¹

See id. at 36–45. Thus, the required data collected under N.C.G.S. § 143B-903 includes, inter alia , "the race or ethnicity" of the driver.

In the 2001–2002 session, Senate Bill 147 broadened the mandate from the State Highway Patrol to almost all law enforcement agencies. S.B. 147, 2001 Sess. (N.C. 2001); Suspect Citizens , at 47. In 2009, the North Carolina General Assembly expanded the requirements of N.C.G.S. § 143B-903 by passing an Act to Amend the Law Requiring the Collection of Traffic Law Enforcement Statistics in Order to Prevent Racial Profiling and to Provide for the Care of Minor Children When Present at the Arrest of Certain Adults, S.L. 2009-544, § 1, 2009 N.C. Sess. Laws 1480 (amending an earlier version of N.C.G.S. § 143B-903 which was codified at N.C.G.S. § 114-10.01 ). These changes specified in part that the data collected include a unique but anonymous ID number representing the officer involved in the traffic stop. Id. § 1, 2009 Sess. Laws at 1481.

In this case, defendant Jeremy Johnson draws on data collected pursuant to N.C.G.S. § 143B-903 to support his claim that the officer who decided to approach him as he was sitting in his car did so at least in part because of his race. The questions before this Court are (1) what legal framework applies to selective enforcement claims, and (2) whether evidence that an officer stopped far more black drivers than white drivers allows a selective enforcement claim to proceed. Because I disagree with the Court of Appeals’ answers to both of these questions, I dissent from the majority's per curiam opinion affirming the Court of Appeals for lack of prejudicial error.

The United States Constitution and the North Carolina Constitution require equal protection under the law for all people. U.S. Const. amend. XIV ; N.C. Const. art. I, § 19. In Whren v. United States , the United States Supreme Court explained that the Fourteenth Amendment's Equal Protection Clause "prohibits selective enforcement of the law based on considerations such as race." 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) ; see also Yick Wo v. Hopkins , 118 U.S. 356, 373, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (selective enforcement of a facially neutral law against a particular race of persons violates equal protection). In State v. Ivey , our Court acknowledged that selective enforcement based on race, in the context of a traffic stop, violates the Equal Protection Clause. 360 N.C. 562, 564, 633 S.E.2d 459 (2006), abrogated in part on other grounds by State v. Styles , 362 N.C. 412, 665 S.E.2d 438 (2008). What is more, in Ivey , our Court made clear that it would not "tolerate discriminatory application of the law based upon a citizen's race." Id. at 564 (providing this statement in the context of allegations that Ivey involved "a case of ‘driving while black’ " ² ).

Accordingly, through the above referenced Act (S.L. 2009-544), N.C.G.S. § 143B-903, our federal and state constitutions, and our Court's own precedent, this Court and both our federal and state governments have been clear: selective enforcement based on race is a violation of the law. However, by affirming the Court of Appeals opinion in this case, which stated that the data collected under N.C.G.S. § 143B-903 is not sufficient to establish a racially selective enforcement claim, our Court has effectively rendered that fundamental principle meaningless. If litigants are unable to ever prove a selective enforcement claim, our federal and state Equal Protection Clauses, along with the reasoning for the collection of data required by N.C.G.S. § 143B-903, are nothing more than parchment barriers. See United States v. Jewel , 947 F. 2d 224, 240 (7th Cir. 1991) (Easterbrook, J., concurring) (stating that if the exclusionary rule is not applied at sentencing "the constitutional ban on unreasonable searches and seizures will become a parchment barrier"); The Federalist No. 48 (James Madison) (arguing that while laws may provide written protections, written guarantees may not always stop the majority from denying rights to minorities).

II. Background

Officer B.A. Kuchen of the Raleigh Police Department arrested Mr. Johnson in the early morning hours of 22 November 2017. According to his testimony, Officer Kuchen was patrolling the Raleigh North Apartments in his car. As he drove through the complex's parking lot, he noticed Mr. Johnson—a black man—sitting inside of a Mustang in a marked parking spot. Officer Kuchen observed Mr. Johnson slide under the steering wheel "as much as [he] could to obscure my view of [his] person inside of that vehicle." A "no trespassing" sign was posted approximately five feet from Mr. Johnson's car. According to Officer Kuchen, he approached Mr. Johnson "[t]o address the potential of trespassing, being under a no trespassing sign, and the behavior of attempting to obscure himself from me as I drove by."

Officer Kuchen stopped his car in the road and walked toward Mr. Johnson, shining a flashlight. Mr. Johnson began to exit the car. At that point, Officer Kuchen claimed to smell marijuana. He ordered Mr. Johnson to remain in the car, but Mr. Johnson continued to exit his vehicle. Officer Kuchen commanded Mr. Johnson to stop moving and approached to handcuff him. By then, another officer had arrived to assist Officer Kuchen. Mr. Johnson pulled away from the officers and ran ten to fifteen feet before they tackled him to the ground and handcuffed him. In a search incident to arrest, officers found cocaine and marijuana.

Officer Kuchen had recently finished field training. As a new patrol officer, he recognized that his duties were to answer 911 calls and "conduct proactive criminal patrol." The Raleigh North Apartments previously had entered into an agreement with the Raleigh Police Department, requesting help in keeping trespassers off its property. Officer Kuchen was aware of this agreement.

On 5 March 2018, a Wake County grand jury indicted Mr. Johnson for possession of cocaine, possession of marijuana up to one-half ounce, and resisting a public officer. Mr. Johnson moved to suppress the evidence against him and dismiss all charges based in part on the violation of his Equal Protection rights. Mr. Johnson's claim was that Officer Kuchen approached and detained him because of his race.

At the suppression hearing, defendant called Ian Mance, who testified that he used N.C.G.S. § 143B-903 data to examine Officer Kuchen's previous traffic stops. Mance determined Officer Kuchen's ID number with high confidence by cross-referencing information from North Carolina's criminal court database, the Automated Criminal/Infractions System (ACIS), with the N.C.G.S. § 143B-903 data. The State does not argue that Mance's identification of Officer Kuchen was incorrect.

Mance found Officer Kuchen had stopped 299 drivers, 245 of whom were black (about 82%). Subsection 143B-903(a)(15) requires officers to record the geographic location of each traffic stop only by the "city or county in which the stop was made," not by a specific location within a city, so Mance could not have determined where any of these stops occurred. Out of all Raleigh Police Department traffic stops since 2002 (nearly one million stops), 46% were of black drivers. That number, Mance noted, outpaced Raleigh's population of black citizens. According to the 2016 U.S. Census Data, just 28% of Raleigh residents were black.

Mark Taylor, an intern at the Wake County Public Defender's Office, also testified. He explained how he searched the ACIS and discovered that, of the 204 cases listing Officer Kuchen as the complainant, 166 of the people charged were black—a staggering 81.4%.

As Officer Kuchen recounted at trial, he started his field training in May 2017 and split his time between the Raleigh Police Department's southeast and northwest districts. When he rode with a supervisor during his training, Officer Kuchen, explained, he initiated most of the stops. After completing his training, Officer Kuchen began patrolling on his own in October 2017. Although he was assigned to the southeast district, he did not have a specific beat, choosing instead to "float around" the entire district.

After the evidentiary hearing, Judge A. Graham Shirley denied Mr. Johnson's motions. On appeal, the Court of Appeals applied a three-part, burden-shifting framework common to equal protection claims. It concluded that Mr. Johnson had not met...