State v. Tripp

853 S.E.2d 848

STATE of North Carolina

v.Michael Devon TRIPP, Defendant.

No. COA18-1286

Court of Appeals of North Carolina.

Filed: December 31, 2020

Attorney General Joshua H. Stein, by Assistant Attorney General Kristine M. Ricketts, for the State.

Patterson Harkavy, LLP, Chapel Hill, by Paul E. Smith, for Defendant.

BROOK, Judge.

Michael Devon Tripp ("Defendant") appeals the trial court's order denying his motion to suppress evidence seized from a search of his person as well as to correct the judgment and commitment forms entered below. On appeal, Defendant argues that the search and seizure were impermissible because he was not an "occupant" of the premises for which law enforcement officers possessed a valid search warrant. Defendant further argues that there are clerical errors on his judgment and commitment forms. For the following reasons, we reverse the order of the trial court, vacate Defendant's convictions for trafficking heroin under file number 17CRS051205 and possession with intent to sell or deliver fentanyl under file number 17CRS000467, and remand for correction of clerical errors in the judgment and commitment forms.

I. Factual and Procedural History

A. Factual Background

Around 25 April 2017, the Craven County Sheriff's Office received complaints of "bad heroin" coming from 8450 U.S. Highway 17 ("8450") in Vanceboro, North Carolina, a property associated with Defendant. After receiving this information, Investigator Jason Buck, a member of the narcotics unit, arranged a controlled buy of heroin between a confidential informant and Defendant on 25 April 2017. The exchange occurred at 8450. Based on that transaction, Investigator Buck obtained a search warrant for the residence and vehicles connected to Defendant—the warrant did not authorize a search of Defendant.

Prior to the execution of the warrant, Investigator Buck led a pre-search operation planning meeting with the officers who would be involved in the search. Lieutenant John Raynor, who oversees the narcotics unit at the Craven County Sheriff's Office and who attended the briefing, testified that at every "preplanning meeting" he makes sure that the following policy is implemented during the execution of a warrant:

all persons on scene or in proximity to our scenes that we believe to be a threat are dealt with, which means that we will detain them briefly, pat them down for weapons, make sure they're not a threat to us and then one of the narcotics investigators on scene will make a determination if that person can leave or not.

He testified that those who pose "a threat" are

[a]nyone with a prior history with us, with violent history, known to carry guns, any known drug dealers that we have past history with. By nature, generally drug dealers are considered violent and by nature a majority carry guns in one nature or another, so everybody inside of a known narcotics residence or on the scene there we deal with for our safety purposes, then deem whether or not they're suspect at that point to continue further.

Lt. Raynor also testified that no decision had been made as to whether they were going to arrest Defendant for the prior day's sale of heroin, explaining that the "[d]etermination of whether or not we charge for the buy is made once we execute the search warrant."

Around 6:00 p.m. on 26 April 2017, Investigator Buck executed the warrant, accompanied by Investigator Josh Dowdy, an officer with the Craven County Sheriff's Office, and nine other law enforcement officers. The officers arrived in four vehicles. Investigator Buck testified that the operation plan "was to clear the residence [and] detain any individuals that were there on the property[.]" Investigator Buck clarified that the "property" referred to 8450. When Investigator Buck arrived, he saw several people standing at the neighboring residence, which belonged to Defendant's grandfather, but was not able to identify who they were. During the search of 8450, officers encountered two individuals in the building along with marijuana, drug residue, and drug paraphernalia. It was not until Investigator Buck had completed the search of the residence and walked outside that he learned Defendant had been detained.

When Investigator Dowdy got out of his car, he identified Defendant—about "50, 60 yards" away—leaning against a wheelchair ramp on the front porch of his grandfather's house. Instead of searching 8450, Investigator Dowdy walked directly over to Defendant, who he testified "was the target of Investigator Buck's search warrant" and whom he believed there existed a warrant to search.

Investigator Dowdy testified that he was familiar with Defendant from prior domestic violence-related incidents: in 2011 Defendant had allegedly brandished a firearm at his wife, and in 2013 Defendant was arrested after shooting a shotgun in the air during an argument with his wife to scare her. These incidents occurred at Defendant's residence, 8420 U.S. Highway 17, not 8450. In 2012, Investigator Dowdy arrested Defendant at his grandfather's house for an assault on a female warrant.

When Investigator Dowdy arrived at Defendant's grandfather's house, he noticed for the first time that Defendant was also accompanied by his grandfather and another person. Investigator Dowdy testified that Defendant did not run away or make any furtive movements with his hands, nor did Defendant, his grandfather, or the other individual "take any action to raise any suspicion of criminal activity on their part[.]" However, Investigator Dowdy ordered Defendant to put his hands on the ramp and patted him down for weapons "[b]ecause of [his] past experiences ... [and f]or my safety." He also testified that it was office policy to "always pat down for weapons" whenever an officer has "contact with" somebody on a search warrant "[f]or our safety, for their safety, so nobody gets hurt."

As Investigator Dowdy patted Defendant down, he saw a plastic baggie in Defendant's right pocket because they were "so baggy" and testified that he felt a hard lump in Defendant's right pocket. Based on his training and experience, Investigator Dowdy believed the plastic baggie contained narcotics and, when he removed the baggie from Defendant's pocket, he noted that it contained an off-white powdery substance. The State Crime Lab later identified the substance to be fentanyl.

B. Procedural History

Based on the above-described events, on 26 April 2017 Defendant was charged with trafficking heroin, possession with intent to sell or deliver fentanyl, manufacturing cocaine, possession with intent to sell or deliver marijuana, maintaining a dwelling to keep or sell a controlled substance, and possession with intent to use drug paraphernalia. On 3 May 2017, Defendant was charged with possession with intent to sell or deliver fentanyl and possession with intent to sell or deliver heroin—these charges were unrelated to the 26 April 2017 offenses—and receiving stolen goods.

Defendant filed a motion to suppress evidence related to the 26 April 2017 search of his person—specifically for the charges of trafficking heroin, trafficking fentanyl, manufacturing cocaine, possession with intent to sell or deliver marijuana, and possession with intent to sell or deliver fentanyl—which the trial court denied by written order on 8 June 2018. The trial court made the following findings of fact and conclusions of law:

1. Investigator Jason Buck, a sworn law enforcement officer with the Craven County Sheriff's Office and a member of the Coastal Narcotics Enforcement Team, utilized a confidential informant which he found to be reliable to make a controlled purchase of heroin from the defendant, Michael Tripp, on April 25, 2017. The informant was equipped with video and audio equipment from which law enforcement could monitor the transaction. The defendant, who was known by law enforcement as a drug dealer in the Vanceboro area by reputation and criminal history, was identified by the informant and later verified by the recordings as the defendant and the seller of a quantity of heroin to the informant. The sale was made from within the defendant's residence ... in Vanceboro, North Carolina.

2. As a result of that investigation, Deputy Buck obtained on April 26, 2017 a search warrant for that residence and several motor vehicles associated with that address from Superior Court Judge Benjamin Alford.

3. At approximately 6:00 p.m. on April 26, 2017 eleven officers with the Craven County Sheriff's Office and Coastal Narcotics Enforcement Team executed that search warrant for that residence.

4. Prior to the execution of the search warrant an operation plan meeting was held by the officers conducting the operation. The plan was to clear the residence and detain all who were present. The residence to be searched was on a dirt road contiguous to homes resided in by other members of the defendant's family. The officers utilized four unmarked vehicles to get to that location. The officers had not obtained an arrest warrant for the defendant prior to the operation.

5. Deputy Josh Dowdy, a nine year veteran of the sheriff's office and a trained member of the Coastal Narcotics Enforcement Team, participated in the execution of the search warrant. Dowdy understood that the target of the search was the defendant. He knew the defendant from at least three other inter[actions] with the defendant. In 2011 and 2013 he had been called to the defendant's residence due to domestic disturbances in which the defendant had been brandishing a firearm. In 2012 he had arrested the defendant for an assault on a female. At the time of that arrest, he was at his grandfather's house which is located about 60 yards from the residence being searched pursuant to the April 26, 2017 search warrant.

6. The Craven County Sheriff's Office had a policy described by Lt. John Raynor that required that all people who are "on scene" or "in proximity to our scene" whom they believe to be a threat or had previously dealt

...