State v. Wright

892 S.E.2d 253

STATE of North Carolina v. Eric WRIGHT, Defendant.

No. COA 22-996

Court of Appeals of North Carolina.

Filed September 12, 2023

Attorney General Joshua H. Stein, by Assistant Attorney General Caden W. Hayes, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katy Dickinson-Schultz, for Defendant-Appellant.

RIGGS, Judge.

Defendant Eric Wright appeals an order denying his motion to suppress evidence found during a stop on 29 January 2020. On appeal, Mr. Wright first argues that the officers did not have reasonable suspicion to stop Mr. Wright. Second, Mr. Wright argues that he did not consent to the search of his backpack. Finally, Mr. Wright argues that the confidential informant's statement was not sufficient to establish probable cause for a warrantless search.

After review, we hold that law enforcement had reasonable suspicion to stop and frisk Mr. Wright based upon the informant's tip; however, Mr. Wright did not voluntarily consent to the search of his backpack, and the search was not otherwise justified by probable cause. Therefore, we reverse the trial court's order denying Mr. Wright's motion to suppress the evidence.

I. FACTS & PROCEDURAL HISTORY

On 29 January 2020, around 11:30 p.m., Officer Christopher Martin ("Officer Martin") and Officer Nicholas Krause ("Officer Krause") of the Charlotte-Mecklenburg Police Department were on routine patrol in uptown Charlotte. Officer Martin received a tip from a known informant that there was an individual carrying an illegal firearm on Phifer Avenue. The informant described the individual, who was traveling on a bicycle, as a Black male with dreadlocks wearing a dark jacket, bright orange tennis shoes and blue jeans. Shortly after receiving this tip, the officers located an individual on Phifer Avenue who matched this description and was later identified as Mr. Wright. The officers followed Mr. Wright as he walked with his bicycle down North Tryon Street.

Officer Benjamin Slauter ("Officer Slauter") followed Mr. Wright on foot as he turned onto a dirt path near the East 12th Street bridge. Officers Martin and Krause parked their vehicle close to the intersection of East 12th Street and North College Street to meet Mr. Wright as he emerged from the dirt path on North College.

Before they intercepted Mr. Wright, the officers had the following conversation in their vehicle:

OFFICER MARTIN: That's trespass, right?

OFFICER KRAUSE: Yes.

OFFICER MARTIN to Officer Slauter via radio: Slauter, that area's trespassing right?

OFFICER SLAUTER: Known drug area, that's all I got. Voluntary contact.

Officers Martin and Krause exited their vehicle and approached Mr. Wright on North College Street. The officers gave Mr. Wright conflicting reasons for approaching him, with Officer Krause stating that Mr. Wright was trespassing on the dirt path and Officer Martin stating that the area was known for street-level drug sales. At the hearing on 9 November 2020, Officer Martin testified that he decided to approach Mr. Wright based on the information he received from the known informant.

The officers asked Mr. Wright for his name and identification, and they also asked whether he was homeless. Mr. Wright provided his identification, told the officers he was homeless, and said that he was headed to a storage unit on College Street. Officer Martin asked Mr. Wright to step off his bicycle and remove his backpack and Mr. Wright complied with these requests. Officer Martin asked if he could perform a pat-down of Mr. Wright's person and Mr. Wright consented to the pat-down. Officer Martin did not find any weapons on Mr. Wright during the pat-down.

Officer Martin then asked if he could search Mr. Wright's backpack to make sure that he did not have a weapon. At this point in the encounter, Officers Martin and Slauter were standing on either side of Mr. Wright and Officer Krause was in the police vehicle with Mr. Wright's identification. Initially, Mr. Wright agreed to let Officer Martin search his backpack, but then quickly, before Officer Martin started searching, said that he did not want the officers to look in the backpack. Officer Martin and Officer Slauter asked Mr. Wright four more times for permission to search his backpack, and each time, Mr. Wright said no.

Even though Mr. Wright said that he was cold and scared of the police, Officer Slauter indicated that they were "looking for somebody" and could not take Mr. Wright "off the list" because he was being "deceptive." Officer Slauter asked Mr. Wright to open the backpack so that Officer Slauter could look inside, and Mr. Wright finally did as he was directed. Mr. Wright put the backpack on the ground and showed Officer Slauter some of the items inside the backpack. Officer Slauter saw a pistol grip in the backpack and placed Mr. Wright in handcuffs.

Officer Slauter conducted a thorough search incident to arrest and found cocaine and marijuana in Mr. Wright's pockets. The officers ran the serial number of the gun and found that it was a stolen firearm.

Mr. Wright was indicted on 10 February 2020 for unlawfully carrying a concealed weapon, possession with intent to sell cocaine, possession of a stolen firearm, possession of a firearm by a felon, and obtaining habitual felon status. On 2 September 2020, Mr. Wright filed a motion to suppress the evidence obtained from the search and seizure. ¹ At a hearing on the motion to suppress held on 9 November 2020, the trial court denied Mr. Wright's motion. The trial court found that the initial contact between Mr. Wright and the officers was voluntary, and Mr. Wright consented to the search of his backpack. The trial court also found that the information provided by the confidential informant, combined with the officers’ knowledge of the area, was enough to provide reasonable articulable suspicion to engage Mr. Wright. Mr. Wright gave oral notice of intent to appeal the denial of the motion to suppress. Mr. Wright entered an Alford plea to all charges and was sentenced to a minimum of 87 months and a maximum of 117 months of incarceration.

Mr. Wright originally appealed the denial of the motion to suppress in November 2020. In that appeal, this Court remanded the case for further findings of fact and conclusions of law regarding trespass, including but not limited to whether law enforcement believed that Mr. Wright was trespassing, whether this belief was reasonable, and the impact this would have on reasonable suspicion. State v. Wright , ––– N.C. App. ––––, ––––, 871 S.E.2d 879, –––– (2022) (unpublished).

The Court indicated that the additional findings should be based upon the evidence presented at the 9 November 2020 hearing.

On 28 July 2021, the trial court entered an amended order denying the motion to suppress evidence ("Amended Order"). The trial court made the following additional findings of fact related to trespassing:

5. A "No Trespassing" sign was affixed to one of the bridge pylons and was clearly visible to a person traveling under the underpass. Defendant's path of travel took him directly by this sign.

6. Officer Slauter observed Defendant enter a pathway marked by a "No Trespassing sign" leading from North Tryon to N. College Street. The "No Trespassing" sign was posted underneath the overpass next to the pathway.

7. Another sign was on the ground next to the fence that ran along one side of the dirt path. This sign read, "Mecklenburg County Property No Trespassing Violators will be subject to arrest and conviction."

8. The dirt path the Defendant entered was marked on both sides by no trespassing signs. It was obscured by vegetation, indicating it was not a maintained path intended for the public to use.

9. Defendant traveled along this dirt path for approximately 1500 to 2000 feet.

...

11. The officers believed the Defendant was trespassing.

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20. That Officer Martin appeared to have retuned [sic] Defendant's identification card based on the conversation between them and the actions that were visible on the BWC.

The trial court made additional conclusions of law, which stated:

2. Based on the presence of two "No Trespassing" signs, including one that advised "violators will be subject to arrest and conviction," along with the officers’ knowledge of the area and prior experience of having issued citations in the area provided the officers with reasonable belief that the Defendant was trespassing.

3. The information provided by the confidential informant and the officer's reasonable belief that the Defendant was trespassing combined with the officers’ knowledge of the area was sufficient as to provide reasonable and articulable suspicion and probable cause for the Officers to engage with the Defendant.

On 18 August 2022, Mr. Wright filed a written notice of appeal from the Amended Order. As his notice was filed more than fourteen days after the entry of the order, Mr. Wright filed a petition for a writ of certiorari contemporaneously with his appeal.

II. ANALYSIS

A. Writ of Certiorari Granted

A party may appeal an order of a superior court in a criminal action by giving oral notice of appeal at trial or by filing notice of appeal within fourteen days of the entry of the order. N.C. R. App. P. 4(a) (2023). Mr. Wright did not give oral notice of appeal from the Amended Order and his written notice of appeal was filed twenty-two days after the entry of the order. However, this Court may grant a writ of certiorari in appropriate circumstances to permit review of an order of a trial court when, as in this case, the right to prosecute an appeal has been lost by failure to take timely action. N.C. R. App. P. 21(a) (2023). Certiorari is a discretionary writ, to be issued only for good and sufficient cause shown. State v. Grundler , 251 N.C. 177, 189, 111 S.E.2d 1, 9 (1959).

We hold that Mr. Wright has shown good cause and that the arguments he presents on appeal have merit. Accordingly, we grant Mr....