State v. Icard

• Decision Date: 06 May 2008
• Docket Number: No. COA07-610.,COA07-610.
• Citation: 660 S.E.2d 142
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Lori Shannon ICARD.

660 S.E.2d 142

STATE of North Carolina v. Lori Shannon ICARD.

No. COA07-610.

Court of Appeals of North Carolina.

May 6, 2008.

Appeal by defendant from judgment entered 1 December 2006 by Judge Robert C. Ervin in Superior Court, Catawba County. Heard in the Court of Appeals 8 January 2008.

Attorney General Roy Cooper, by Assistant Attorney General Marc X. Sneed, for the State.

Brock, Payne & Meece, P.A., by C. Scott Holmes, Durham, for defendant-appellant.

WYNN, Judge.

In determining whether Fourth Amendment protections apply to a search or seizure by the police, we consider whether, under the totality of the circumstances, a reasonable person would have felt that she was not free to decline the police request or otherwise terminate the encounter with them.¹ Here, because we find that a reasonable person in Defendant Lori Shannon Icard's position would not have felt "free to ... terminate the encounter" with the police, we hold that the police search of her purse was governed by the Fourth Amendment. However, noting that Defendant also consented to the search, we remand to the trial court for findings as to the voluntariness of Defendant's consent.

At 12:30 a.m. on 21 September 2004, Officer Curt Moore of the Maiden Police Department noticed a pickup truck parked in the lot adjacent to the Fairview Market. After checking the front of the building, Officer Moore drove by the front of the pickup truck, noticed a silhouette in the driver's seat, and activated his blue flashing strobe lights. Thereafter, he approached the pickup truck and asked the individual in the driver's seat, later identified as Carmen Coleman, for his license and registration. Officer Moore asked Mr. Coleman why he was parked at the Market; Mr. Coleman responded that he had come from a neighboring area to meet a friend. After engaging in a short conversation with Mr. Coleman about this answer, Officer Moore returned to his own vehicle to verify Mr. Coleman's license and registration information. Officer Moore acknowledged at trial that the pickup truck was not illegally parked and was violating no traffic laws at the time he approached the vehicle; he likewise confirmed that his check of Mr. Coleman's license and registration returned no outstanding warrants for Mr. Coleman or problems with the ownership of the truck.

In response to Officer Moore's request for back-up assistance, made while he was checking Mr. Coleman's license and registration, Officer Darby Hedrick soon arrived and parked his marked vehicle on the right side of the pickup truck, with his headlights and take-down spotlights illuminating the passenger side of the truck. At that point, Officer Moore turned off his blue flashing lights and approached the passenger side of the truck.

When Defendant, sitting in the passenger seat, failed to respond to Officer Moore's repeated taps on the passenger-side window, Officer Moore opened the passenger-side door and asked her for identification. Defendant stated that she did not have any identification with her, but Officer Moore noticed a bag at her feet and asked if she had identification in the bag. Defendant then picked up the purse and unzipped it, revealing a wallet which contained her identification card. Officer Moore then asked Defendant to step to the rear of the vehicle and for permission to look through her purse. Defendant agreed and got out of the pickup truck and moved to its rear; in searching her purse, Officer Moore found several bullets and a piece of glass that appeared burned at one end. Officer Moore testified at trial that he also found a clear plastic bag with a stamp of a skunk on the outside in Defendant's purse; the substance inside the bag later tested positive for methamphetamine.

While standing with Defendant at the rear of the pickup truck, Officer Moore saw Mr. Coleman moving in the cab of the pickup, and he went to investigate. After more questioning, Mr. Coleman gave Officer Moore a lockblade clip-type knife that was in his pocket, as well as a clear plastic bag containing marijuana and another clear bag containing a white- and tan-colored powder. An altercation between Mr. Coleman and Officer Moore then ensued, and Officer Hedrick assisted Officer Moore in subduing Mr. Coleman. A subsequent search of the pickup truck turned up glass pipes used to inhale controlled substances, a crack pipe, a digital scale, a loaded .357 Magnum revolver, and a clear plastic bag with what was later determined to be residue from methamphetamine on the inside.

Defendant was initially indicted on charges of resisting a public officer, carrying a concealed weapon, possession with intent to sell and deliver cocaine, possession with intent to sell and deliver methamphetamine, possession with intent to sell and deliver marijuana, and possession of drug paraphernalia. Prior to trial, the State dismissed the cocaine-related charge. At trial, upon Defendant's motion at the close of the State's evidence, the trial court dismissed the concealed weapon and marijuana-related charges, as well as the charge of possession with intent to sell and deliver methamphetamine. However, the State was allowed to proceed with the lesser-included charge of simple possession of methamphetamine, of which Defendant was found guilty by the jury. The jury also found Defendant not guilty of the charges of resisting a public officer and of possession of drug paraphernalia. Upon the jury's conviction for simple possession, the trial court sentenced Defendant to a term of five to six months' imprisonment, which was then suspended, as well as twenty-four months of supervised probation, sixty hours of community service, a fine, and restitution.

Defendant now appeals, arguing that the trial court erred by (I) denying her motion to suppress and instead allowing evidence from an unlawful search and seizure; (II) failing to dismiss the case or to order a new trial after the State did not provide her with exculpatory information in a timely manner; and (III) failing to order a new trial or to strike evidence that the prosecutor admitted that he reasonably believed to be false.

I.

In her first argument, Defendant contends that the trial court erred by failing to suppress evidence that was obtained through the search of her purse, as the search and seizure violated the protections afforded by the Fourth Amendment.

Our standard of review to determine whether a trial court properly denied a motion to suppress is "whether the trial court's findings of fact are supported by the evidence and whether the findings of fact support the conclusions of law." State v. Cockerham, 155 N.C.App. 729, 736, 574 S.E.2d 694, 699 (citing State v. Wynne, 329 N.C. 507, 522, 406 S.E.2d 812, 820 (1991)), disc. review denied, 357 N.C. 166, 580 S.E.2d 702 (2003). The trial court's findings of fact "are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (citations omitted). The conclusions of law, however, are reviewed de novo by this Court. State v. Brooks, 337 N.C. 132, 141, 446 S.E.2d 579, 585 (1994).

In the instant case, Defendant challenges both findings of fact and the trial court's conclusions of law that Defendant was in a public place, such that Officer Moore's approach and subsequent interactions with Defendant did not fall within the Fourth Amendment's protections against unreasonable search and seizure. See, e.g., United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 2110, 153 L.Ed.2d 242, 251 (2002) ("Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen."); Brooks, 337 N.C. at 142, 446 S.E.2d at 585-86 ("The Supreme Court of the United States recently reaffirmed that police officers may approach individuals in public to ask them questions and even request consent to search their belongings, so long as a reasonable person would understand that he or she could refuse to cooperate." (citations omitted)). According to our state Supreme Court, "[t]he test for determining whether a seizure has occurred is whether under the totality of the circumstances a reasonable person would feel that he was not free to decline the officers' request or otherwise terminate the encounter." Id., 446 S.E.2d at 586 (citations omitted). Thus, our task is to determine whether the circumstances on the night of 21 September 2004 were such that a reasonable person would have felt free to decline Officer Moore's requests and to leave the premises.

Under the facts of this case, Officer Moore did not need probable cause or reasonable suspicion to approach the pickup truck, which was parked in a public place. Nor did he need probable cause or reasonable suspicion to ask Mr. Coleman and Defendant questions, for their identification, or even for consent to search their belongings, if they were "willing to listen." Drayton, 536 U.S. at 200, 122 S.Ct. at 2110, 153 L.Ed.2d at 251. Nevertheless, Officer Moore was barred from "induc[ing] cooperation by coercive means." Id.; see also Brooks, 337 N.C. at 141, 446 S.E.2d at 585 ("[C]ommunication between the police and citizens involving no coercion or detention ... [falls] outside the compass of the Fourth Amendment." (citation omitted)). More specifically, "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred." State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13 (2005) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991) (citations omitted)), cert. denied, 547 U.S. 1073, 126 S.Ct. 1773, 164 L.Ed.2d 523 (2006); see also Bostick, 501 U.S. at 434, 111 S.Ct. at 2386, 115 L.Ed.2d at 398 ("The...