State v. Johnson, COA19-18

837 S.E.2d 179

STATE of North Carolina

v.Kayshawn Christopher JOHNSON

No. COA19-18

Court of Appeals of North Carolina.

Filed: December 17, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General Alexander Walton, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katy Dickinson-Schultz, for defendant-appellant.

ARROWOOD, Judge.

Kayshawn Christopher Johnson ("defendant") appeals from the trial court’s 6 August 2018 order denying his motion to suppress evidence he argues was seized in violation of his rights under the Fourth Amendment to the United States Constitution. Defendant contends, inter alia , that the law enforcement officer who seized the evidence at issue lacked probable cause to search his person and that the warrantless search that produced the evidence was therefore unconstitutional. For the following reasons, we affirm.

I. Background

Captain Jesse Pittman began working at the Craven County Sheriff’s Office over 25 years ago. During his time with the Sheriff’s Office, Captain Pittman served on road patrol for approximately eight years, during which he encountered individuals who possessed controlled substances, which he had been trained to identify. At times relevant to this appeal, Captain Pittman served in an administrative role.

On the morning of 5 April 2017, Captain Pittman stopped at a gas station to purchase a cup of coffee. He was casually dressed, but wore his badge visibly and wore a pistol on his ankle.

While walking into the station, Captain Pittman observed defendant talking loudly and using abusive language on a cellular telephone outside of the station. Inside the station, the clerk told him that she was concerned that defendant was bothering other customers with his conversation. Captain Pittman exited the station, returned to his vehicle, and called for assistance. He then approached defendant, and Sergeant William Scott arrived as backup.

After approaching, Captain Pittman identified himself as law enforcement and asked defendant to terminate his conversation. Defendant complied with his request after some delay. Captain Pittman told defendant that "he needed to finish his conversation elsewhere, [and] that it was inappropriate to be using that kind of language" in front of the gas station.

Defendant then "began to shift from foot to foot ... [and] look side to side" and over Captain Pittman’s shoulder. Seeing this, Captain Pittman became concerned that defendant might pose him danger; in his words, "his nervousness made me nervous." Captain Pittman asked defendant whether he had any weapons on his person, and he replied that he did not. Captain Pittman remained concerned, however, so he asked defendant for consent to pat him down for weapons. Defendant hesitated, but consented.

While conducting a flat-handed pat-down of defendant for weapons, Captain Pittman felt a "soft, rubbery" item "like ... a wad of rubber bands" in defendant’s pocket that was "immediately apparent to [him] that was associated with the packaging normally used to package and sell narcotics." Captain Pittman completed the pat-down for weapons and then returned to the suspicious object, manipulated it to ensure that it was what he thought it was, and then reached into defendant’s pocket. He removed three tied up plastic bag corners ("corner bags") containing a white, powdery substance he believed to be cocaine, as well as a tube of Orajel liquid. Captain Pittman handed these items to Sergeant Scott, who placed defendant under arrest for possession of a controlled substance.

Sergeant Scott field-tested the powdery substance, which tested negative for cocaine. Defendant volunteered that the powdery substance was baking soda, and that he had the Orajel to mix with the baking soda to fool potential buyers into believing the substance was cocaine. Subsequent testing by the State Bureau of Investigation corroborated defendant’s statement.

On 11 December 2017, defendant was indicted for possession with intent to sell and deliver a counterfeit controlled substance in violation of N.C. Gen. Stat. § 90-95(a)(2) (2017).

On 19 June 2018, defendant filed a motion to suppress and a supporting affidavit, arguing that: (1) he did not give consent to the pat-down for weapons or the search into his pocket; and (2) Captain Pittman’s conduct in reaching into his pocket exceeded the scope of a weapons search, thereby violating his rights under the Fourth Amendment to the United States Constitution. Defendant asked the trial court to suppress any evidence obtained as a result of Captain Pittman’s search. On 29 June 2019, defendant filed an addendum to his motion to suppress, arguing that he had been illegally detained, and that Captain Pittman’s search was therefore void ab initio .

Defendant’s motion to suppress came on for hearing on 3 July 2018. On 6 August 2018, the trial court entered an order denying defendant’s motion (the "MTS Order"). In the MTS Order, the trial court concluded that: (1) defendant was not detained by Captain Pittman; (2) defendant consented to the pat-down for weapons; and (3) "Pittman felt something unusual in [defendant’s] right pants pocket which [Captain Pittman] immediately concluded, based on his training and experience, was packaging for controlled substances[,]" and that Captain Pittman accordingly had probable cause to believe that defendant was in possession of contraband and to place defendant under arrest after seizing the contents of defendant’s pocket.

That same day, defendant pleaded guilty to the offense charged, specifically reserving his right to appeal from the MTS Order as part of the plea arrangement. Defendant was sentenced to 5 to 15 months imprisonment, which the trial court suspended for 18 months of supervised probation. Defendant timely gave oral notice of appeal from the MTS Order in open court.

II. Discussion

This case requires us to determine whether the trial court erred by concluding that Captain Pittman did not violate defendant’s Fourth Amendment protection from "unreasonable searches and seizures[.]" U.S. Const. amend. IV.

Defendant argues that: (1) Captain Pittman’s warrantless pat-down of defendant’s person for weapons was unreasonable, because the officers seized him without reasonable suspicion that he was armed or involved in criminal activity and his consent to Captain Pittman’s pat-down for weapons was invalid; or, alternatively, (2) if defendant was not seized by the officers and his consent to be patted down for weapons was valid, Captain Pittman exceeded the scope of this consent. Under either alternative, defendant contends that the evidence obtained as a result of the constitutionally impermissible search and seizure must be suppressed as fruit of the poisonous tree. See Wong Sun v. United States , 371 U.S. 471, 484-88, 83 S.Ct. 407, 415–18, 9 L. Ed. 2d 441, 453-55 (1963).

We address each argument in turn.

A. Standard of Review

Appellate review of the denial of a motion to suppress "is strictly limited to determining whether the trial [court]’s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the [court]’s ultimate conclusions of law." State v. Cooke , 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted). Uncontested findings of fact are binding on appeal. State v. Evans , 251 N.C. App. 610, 613, 795 S.E.2d 444, 448 (2017). We review the trial court’s conclusions of law de novo . State v. Williams , 366 N.C. 110, 114, 726 S.E.2d 161, 165 (2012).

B. Seizure/Consent

First, defendant argues that he was unlawfully seized by Captain Pittman and Sergeant Scott. We disagree.

An unlawful seizure invalidates any subsequent consent to search derived therefrom. See State v. Myles , 188 N.C. App. 42, 51, 654 S.E.2d 752, 758 (citation omitted), aff’d , 362 N.C. 344, 661 S.E.2d 732 (2008). Generally, when a law enforcement officer merely engages with an individual in a public place, the encounter is consensual and does not implicate Fourth Amendment concerns. State v. Brooks , 337 N.C. 132, 142, 446 S.E.2d 579, 585-86 (1994) (citation omitted). An initially consensual interaction with law enforcement becomes a seizure only if, under the totality of the circumstances, "a reasonable person would [not] feel free to decline the officer’s request or otherwise terminate the encounter[.]" State v. Icard , 363 N.C. 303, 308-309, 677 S.E.2d 822, 826 (2009) (citations omitted). "Relevant 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." Id. at 309, 677 S.E.2d at 827 (citations omitted).

Defendant concedes that his encounter with Captain Pittman began consensually, but argues that the encounter transformed into a seizure before Captain Pittman asked him for his consent to pat him down for weapons. Noting that the State conceded at the MTS Hearing that Captain Pittman lacked reasonable suspicion to believe that he was engaged in criminal activity, defendant argues that the seizure lacked legal justification and that his subsequent consent to Captain Pittman’s search was therefore involuntary and insufficient to render the search lawful.

Our review of the record confirms that defendant was not seized at the time he consented to the pat-down for weapons. The trial court’s findings of fact 1-4, which include the relevant circumstances leading up to defendant’s consent, are not contested by defendant and are thus binding for the purposes of our analysis. See Evans , 251 N.C. App. at 613, 795 S.E.2d at 448. These findings of fact include that, with Sergeant Scott present as backup, Captain Pittman "told ...