State v. Duncan

• Decision Date: 07 July 2020
• Docket Number: No. COA19-884,COA19-884
• Citation: 846 S.E.2d 315
• Parties: STATE of North Carolina v. James Edward DUNCAN
• Court: North Carolina Court of Appeals

846 S.E.2d 315

STATE of North Carolina

v.James Edward DUNCAN

No. COA19-884

Court of Appeals of North Carolina.

Filed: July 7, 2020

Factual and Procedural Background

James Edward Duncan (Defendant) appeals from Judgments entered upon a jury's verdict finding him guilty of two counts of felony Possession of Cocaine. The Record before us tends to show the following:

Officer Andrew Isaacs of the Charlotte-Mecklenburg Police Department (Officer Isaacs) was on "routine patrol" on the afternoon of 19 March 2017. He conducted a traffic stop of Defendant's vehicle on the corner of North McDowell and East 7th Street in Charlotte. Officer Eric Kelly of the Charlotte-Mecklenburg Police Department (Officer Kelly) was also on duty and parked his car behind Isaacs's vehicle during the traffic stop. The sequence of events was captured and recorded on Officer Isaacs's and Officer Kelly's body cameras.

Officer Isaacs approached the driver's side door and informed Defendant he had observed the right taillight of Defendant's car was not operational. Officer Isaacs also stated he observed the front-seat passenger was not wearing a seatbelt. While speaking with Defendant, Officer Isaacs saw a closed pocketknife—roughly five inches in length—in the center console between Defendant and his passenger.

Officer Isaacs asked Defendant to exit his vehicle and told Defendant he was going to retrieve the knife and intended to check Defendant for other weapons. As Defendant got out of the car, Defendant asserted his possession of the knife was not illegal, which Officer Isaacs confirmed. Officer Isaacs clarified he was not searching the vehicle but rather only securing the knife for "our safety." Defendant replied, "okay, no problem at all."

Officer Isaacs again stated he intended to make sure Defendant did not have any weapons on him. Defendant replied he did not have any weapons on him and stated, "I don't give you permission." Officer Isaacs told Defendant he was "just going to pat [Defendant] down." Defendant said "all right" and again insisted he did not have any weapons on him. Defendant raised his arms and allowed Officer Isaacs to pat him down.

Officer Isaacs checked Defendant's waistband from the outside as well as his pants pockets. Officer Isaacs patted down Defendant's left jacket pocket from the outside. He felt a bulge about the size of a "large grape," which he believed to be marijuana covered in cellophane. Officer Isaacs attempted to retrieve the bulging object from Defendant's outside jacket pocket with his right hand, but it was not located there. Officer Isaacs asked Defendant what the object was. Defendant replied it was something he had bought at a store.

Officer Isaacs realized the bulge he had felt was present in an inside jacket pocket and asked Defendant to pull the object out. Defendant removed a few objects wrapped in clear packaging, showed them to Officer Isaacs, and told him, "it's not illegal, man." Officer Isaacs said "alright, well ..." and again felt Defendant's left jacket pocket with his right hand.

Officer Isaacs held onto the object from outside the pocket while he lifted Defendant's jacket and reached inside with his left hand. Officer Isaacs then reached inside the exterior pocket to access what he had been feeling with his right hand. Defendant objected as Officer Isaacs moved his hand inside the exterior pocket by asserting: "What are you doing? Come on, man. This is not a Terry frisk, man. You're illegally searching me, man."

Defendant asked Officer Isaacs multiple times to "get [his] sergeant out here, please." Officer Isaacs reached inside Defendant's interior pocket and warned Defendant, "you need to stop." Defendant pushed Officer Isaacs's hand away and again requested Officer Isaacs call his sergeant "because you're doing some illegal s--t to me." Officer Isaacs did not remove his hands from Defendant's pockets. Defendant stated "come on, dude" before turning and running away from the scene.

Officers Isaacs and Kelly gave chase. Officer Kelly caught up with Defendant between a building, bushes, and a gate. Defendant fell down, and as Defendant was getting up, Officer Kelly saw Defendant "digging in his waistband area." Officer Kelly then tasered Defendant, who yelled and fell to the ground.

Officer Isaacs approached with his weapon drawn and ordered Defendant to lie face down on the ground. He handcuffed Defendant and resumed searching him. Officer Isaacs did not find anything at first in the interior pocket he had originally attempted to search. Officer Isaacs searched the surrounding area and found a bag containing, among other things, several grams of crack cocaine and about 0.7 grams of powder cocaine.

While Defendant lay handcuffed on the ground, Officer Kelly searched him and found a cigarette box containing a marijuana blunt in Defendant's left jacket pocket and a bag of crack cocaine and cash inside of Defendant's shoe. While Defendant was at intake at the Mecklenburg County Jail, Defendant stated the narcotics were for his personal use. A search of Defendant's vehicle was also conducted, and no additional contraband was found. No citations were issued for Defendant's taillight or seat-belt violations.

Defendant was indicted for felony Possession with Intent to Sell or Deliver Cocaine (PWISD Cocaine) and felony Possession of Cocaine. Defendant filed a pretrial Motion to Suppress all the evidence obtained, alleging it was the product of unreasonable searches and seizures in violation of his federal and state constitutional rights. Prior to empaneling a jury, the trial court heard arguments on Defendant's Motion to Suppress.

After hearing evidence and arguments on the Motion to Suppress, the trial court orally concluded the stop of Defendant's vehicle was lawful but that Officer Isaacs had no reasonable justification to believe "Defendant had exercised a suspicious behavior, that he was forcibly armed, or that he was presently dangerous to either of the officers or to others." The trial court held the search of Defendant was unconstitutional and, without more, "any item seized from the Defendant's person or in his vehicle" would be "fruit of the poisonous tree."

The trial court, however, further concluded, "Defendant's conduct after he bolted and ran of his own volition and accord gave rise to the admissibility of the contraband seized pursuant to said search" under the doctrine of attenuation on the basis Defendant's flight gave rise to independent probable cause to arrest him for resisting an officer and, thus, to search Defendant incident to his arrest. The trial court ruled, "the contraband seized in connection with the Defendant's stop, search, seizure and arrest and the Defendant's subsequent statement to law enforcement were not unconstitutionally seized, that the Defendant's constitutional rights under the state and federal constitutions were not violated, and that the aforesaid evidence is admissible against the Defendant in the trial of these matters."

The case proceeded to trial. During trial, counsel for Defendant repeatedly objected to testimony of Officer Isaacs based on the grounds asserted in the Motion to Suppress and was eventually granted a continuing objection by the trial court. Following trial, the jury found Defendant guilty of the lesser included charge of felony Possession of Cocaine on the count of felony PWISD Cocaine. The jury also found Defendant guilty of the other felony Possession-of-Cocaine charge. The trial court sentenced Defendant to consecutive suspended sentences, placing him on supervised probation for 30 months. Defendant gave Notice of Appeal in open court.

Issue

The dispositive issue is whether the trial court erred by denying Defendant's Motion to Suppress on the basis Defendant's flight from Officer Isaacs gave rise to application of the attenuation doctrine, allowing for the introduction of evidence resulting from, and notwithstanding, the unconstitutional search of Defendant conducted after the traffic stop.¹

Analysis

Standard of Review

"Our review of a trial court's denial of a motion to suppress is strictly limited to a determination of whether [the trial court's] findings are supported by competent evidence, and in turn, whether the findings support the trial court's ultimate conclusion." State v. Reynolds , 161 N.C. App. 144, 146-47, 587 S.E.2d 456, 458 (2003) (citation and quotation marks omitted). The trial court's conclusions of law, however, are reviewed de novo. See State v. Fernandez , 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997) (citation omitted). "In reviewing the denial of a motion to suppress, we examine the evidence introduced at trial in the light most favorable to the State[.]" State v. Moore , 152 N.C. App. 156, 159, 566 S.E.2d 713, 715 (2002) (citations omitted).

Trial Court's Ruling and Scope of Review

Here, the trial court denied Defendant's Motion to Suppress prior to trial. During trial, Defendant, through his trial counsel, repeatedly objected to the introduction of evidence of the stop, seizure, and searches and ultimately was granted a standing objection to the introduction of this evidence consistent with the Motion to Suppress. Thus, Defendant adequately preserved the trial court's ruling on the Motion to Suppress for appellate review. See N.C. Gen. Stat. § 15A-1446(d)(10) (2019) ; see also Power Co. v. Winebarger , 300 N.C. 57, 67-69, 265 S.E.2d 227, 233-34 (1980) (authorizing the use of line objections (citations omitted)).

In sum, the trial court ruled: (1) the initial traffic stop was "lawful and was not a pretextual stop"; (2) the search of Defendant based on Officer Isaacs's observation of the pocketknife in the console of the car was not a valid Terry frisk and was violative of Defendant's constitutional rights and thus nothing else appearing any items seized from Defendant or the vehicle and any statement Defendant gave subsequently would be fruit of the poisonous tree and unconstitutionally seized; but (3) Defendant's...