State v. Thompson

267 N.C.App. 101

832 S.E.2d 510

STATE of North Carolina

v.Jerry Giovani THOMPSON

No. COA17-477-2

Court of Appeals of North Carolina.

Filed: August 20, 2019

Attorney General Joshua H. Stein, by Assistant Attorney General Robert T. Broughton, for the State.

Robinson, Bradshaw & Hinson, P.A., Chapel Hill, by Erik R. Zimmerman, for defendant-appellant.

ZACHARY, Judge.

Defendant Jerry Giovani Thompson appealed from the trial court's judgment sentencing him for convictions of felony possession of marijuana, possession with intent to sell or deliver marijuana, possession of marijuana paraphernalia, and possession of a firearm by a felon. Defendant argued on appeal that the trial court erred in denying his motion to suppress.¹ By published opinion issued on 2 January 2018, a majority of this Court concluded over a dissent "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." State v. Thompson , ––– N.C. App. ––––, ––––, 809 S.E.2d 340, 343 (2018) (" Thompson I "). The Supreme Court subsequently vacated Thompson I and remanded the matter to this Court for reconsideration in light of the Supreme Court's decision in State v. Wilson , 371 N.C. 920, 821 S.E.2d 811 (2018). Upon reconsideration, we conclude that the trial court's order denying Defendant's motion to suppress cannot be upheld on the grounds enumerated in State v. Wilson . Accordingly, we vacate the judgment and remand for entry of additional findings consistent with our decision in Thompson I .

I. Background

On 10 April 2015, a team of roughly eight to twelve law enforcement officers with the Charlotte-Mecklenburg Police Department traveled to an apartment on Basin Street in Charlotte in order to execute a search warrant. The target of the search warrant was a female.

Defendant was cleaning his vehicle in the street adjacent to the apartment when the officers arrived to execute the search warrant. Sergeant Michael Sullivan approached Defendant in order to confirm that he was not the female named in the search warrant and to ensure that he would not interfere with the search. Defendant told Sergeant Sullivan that he did not live in the apartment, but his girlfriend did.

Sergeant Sullivan asked Defendant for his identification, "handed him" and his driver's license off to Officer Justin Price, and then proceeded inside the apartment in order to supervise the search. Officer Price testified that Defendant was already in custody at that point. Officer Price and Officer Michael Blackwell remained outside with Defendant while the other officers executed the search warrant. Roughly ten minutes later, Officer Mark Hefner exited the apartment and asked Defendant for permission to search his vehicle. Defendant consented to the search, and officers found marijuana, paraphernalia, and a firearm in the trunk.

Defendant was indicted for possession of marijuana paraphernalia, possession with intent to sell or deliver marijuana, felony possession of marijuana, maintaining a vehicle for the purpose of keeping a controlled substance, and possession of a firearm by a felon.

On 4 October 2016, Defendant filed a motion to suppress the evidence seized from the search of his vehicle. Defendant argued that "[t]he initial police encounter ... was not a voluntary contact, but rather an illegal seizure and detention of [Defendant] which was unsupported by reasonable suspicion," and that the trial court was therefore required to "suppress all evidence gathered as a result of the illegal seizure of his person and the illegal search of his vehicle." Following a hearing, however, the trial court found that Defendant "was neither seized nor in custody" at the time he consented to the search of his vehicle.

Because Defendant was never "seized" within the meaning of the Fourth Amendment, the trial court concluded that no Fourth Amendment violation had occurred and, accordingly, denied Defendant's motion to suppress. Defendant subsequently pleaded guilty to possession of drug paraphernalia, possession with intent to sell or deliver marijuana, and possession of a firearm by a felon, preserving his right to appeal the trial court's denial of his motion to suppress. The trial court imposed a suspended sentence and placed Defendant on 24 months’ supervised probation. A written order denying Defendant's motion to suppress was entered on 5 January 2017. Defendant timely appealed.

This Court heard Defendant's appeal on 5 October 2017. Defendant argued on appeal that the officers "seized" him for purposes of the Fourth Amendment "when they took and retained his driver's license," and that such seizure, in the absence of "any reasonable suspicion that he was involved in criminal activity," violated Defendant's Fourth Amendment rights. Citing State v. Cottrell , 234 N.C. App. 736, 760 S.E.2d 274 (2014), Defendant maintained that the trial court was required to suppress the evidence recovered from the search of his vehicle because it was the product of "this unconstitutional seizure."

Over a dissent, this Court concluded that the trial court's findings of fact were insufficient to determine whether Defendant had been "seized" for purposes of the Fourth Amendment:

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, 100 S.Ct. 1870, 1877, 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." I.N.S. v. Delgado , 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L. Ed. 2d 247, 255 (1984).

....

In determining whether a defendant was seized, "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." State v. Icard , 363 N.C. 303, 309, 677 S.E.2d 822, 827 (2009).

....

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 leave."

.... In its appellate brief, the State does not dispute the crucial significance of whether the officers kept defendant's license. ... 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. ...

[D]efendant 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 [Sergeant] Sullivan.

....

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.

Thompson I , ––– N.C. App. at ––––, 809 S.E.2d at 345-49 (internal citations, quotation marks, and brackets omitted). Accordingly, "[b]ecause the court's findings of fact fail[ed] to resolve material issues, we vacate[d] the judgment entered against defendant, and remand[ed] for the trial court to enter findings of fact that resolve all material factual disputes."²

Id. at ––––, 809 S.E.2d at 349. Judge Berger dissented on the grounds that "Defendant was never seized by Charlotte-Mecklenburg Police Department ... officers within the meaning of the Fourth Amendment." Id. at ––––, 809 S.E.2d at 350 (Berger, J., dissenting).

The State appealed of right to our Supreme Court pursuant to N.C. Gen. Stat. § 7A-30(2). On 1 February 2019, the Supreme Court vacated Thompson I and remanded the case to this Court for review in light of its decision in State v. Wilson , 371 N.C. 920, 821 S.E.2d 811 (2018).

Wilson requires this Court to determine, assuming, arguendo , that Defendant was in fact "seized" for purposes of the Fourth Amendment, whether such seizure was nevertheless justified under the rule set forth by the United States Supreme Court in Michigan v. Summers , 452 U.S. 692, ...