State v. Johnson
| Decision Date | 21 September 2021 |
| Docket Number | No. COA20-564,COA20-564 |
| Citation | 865 S.E.2d 673 |
| Parties | STATE of North Carolina v. Kevin Lee JOHNSON |
| Court | North Carolina Court of Appeals |
Attorney General Joshua H. Stein, by Associate Attorneys General Jarrett McGowan and Robert Pickett, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A. Goldman, for defendant-appellant.
¶ 1 Kevin Lee Johnson (Defendant) appeals a Judgment entered upon his guilty pleas to Felony Possession of Cocaine and to having attained Habitual-Felon Status. The Record tends to reflect the following:
¶ 2 On the afternoon of 22 December 2017, Lieutenant Chris Stone (Lieutenant Stone) of the Iredell County Sheriff's Office was on duty and "sitting in the parking lot of a convenience store" on Taylorsville Highway. Lieutenant Stone saw Defendant get in a vehicle in the convenience store parking lot. According to Lieutenant Stone, he did not see Defendant put on his seatbelt upon entering the vehicle. Lieutenant Stone observed Defendant as Defendant drove past Lieutenant Stone's patrol car and, according to Lieutenant Stone, Defendant had still not put on his seatbelt. Lieutenant Stone initiated a traffic stop of Defendant's vehicle moments after Defendant drove out of the convenience store parking lot. When Lieutenant Stone approached the driver's window of Defendant's vehicle, he noticed Defendant still did not have his seatbelt on. Lieutenant Stone informed Defendant he stopped him for a seatbelt infraction but that Lieutenant Stone
¶ 3 Almost immediately, Lieutenant Stone asked Defendant to get out of Defendant's vehicle and "come back to [Lieutenant Stone's] vehicle." As Defendant walked back towards Lieutenant Stone's vehicle, Lieutenant Stone asked Defendant if "[Defendant] had anything illegal in his possession." Defendant said "no." Lieutenant Stone then asked if he "could search [Defendant]." Video from Lieutenant Stone's patrol car shows Defendant stop, as he is still walking back towards Lieutenant Stone's patrol car, and raise his hands above his waist. Lieutenant Stone proceeded to reach into Defendant's sweatshirt pockets, then into Defendant's trouser pockets. Eventually, Lieutenant Stone reached into Defendant's right trouser pocket and found "a plastic wrapper with some type of soft material inside, which [Lieutenant Stone] believed was possibly powder cocaine[.]" Video evidence reflects Lieutenant Stone never conducted an external pat down of Defendant's person before instructing Defendant to get in the front passenger seat of the patrol vehicle.
¶ 4 Lieutenant Stone placed Defendant in the front seat of his patrol vehicle and ran Defendant's license to make sure it was valid. Lieutenant Stone "advised [Defendant] that if he was interested in working with one of our narcotics detectives, he could possibly avoid being charged." Lieutenant Stone gave Defendant a "name and phone number to call." Lieutenant Stone did not charge Defendant for possession of cocaine that day; Lieutenant Stone allowed Defendant to return to his vehicle and leave. However, Lieutenant Stone "followed up with [his] supervisor ... a short time later" and learned Defendant had not contacted the Sheriff's Office.
¶ 5 On 5 March 2018, an Iredell County Grand Jury indicted Defendant on charges of Felony Possession of Cocaine and Felony Possession of Drug Paraphernalia as well as having attained Habitual-Felon Status. On 6 March 2019, Defendant filed a Motion to Suppress "the cocaine found in his pocket." In his Motion, Defendant argued Lieutenant Stone did not have reasonable suspicion to stop Defendant for the seatbelt infraction and, even if the stop was lawful, Lieutenant Stone's "going through the Defendant's pockets for a violation of a seatbelt was excessive, unconstitutional, and unlawful." Defendant argued he did not give Lieutenant Stone consent to search his pockets—Defendant supported the Motion with a signed affidavit stating Defendant consented "to be patted down for weapons" but not for a search of his pockets.
¶ 6 Defendant's Motion came on for hearing on 8 November 2019. During the hearing, Lieutenant Stone testified: When asked why he always asks to search people during traffic stops, Lieutenant Stone replied:
¶ 7 Defendant also testified at the hearing. Defendant claimed that he had, in fact, been wearing his seatbelt when Lieutenant Stone pulled him over. Defendant also testified Lieutenant Stone asked if he could "pat [Defendant] down for weapons[.]" Defense counsel argued the evidence did not support a finding Lieutenant Stone had reasonable suspicion to stop Defendant for not wearing a seatbelt. Defense counsel also argued, in the alternative, that Defendant did not give knowing consent for Lieutenant Stone to search Defendant's pockets. Thus, according to Defendant, although Lieutenant Stone could have frisked Defendant as part of the traffic stop with Defendant's consent, because Lieutenant Stone lacked reasonable suspicion of criminal activity beyond the seatbelt infraction, Defendant's consent could not knowingly extend past a frisk allowed for officer safety.
¶ 8 The trial court made the following oral Findings and Conclusions:
The officer stopped the defendant, told him he stopped him for a seatbelt violation, but was just giving him a warning. The court finds at that point, that the officer had reasonable suspicion to stop the vehicle because of his observations about the seatbelt. At that point, after asking -- after telling the defendant that he was just giving him a warning, the officer asked the defendant if there was anything illegal on his person. The defendant responded there was not. The officer asked, "can I search you?" The defendant gave consent to search. The officer conducted a search and found a package that he believed to be powder cocaine. The court finds that the officer asked for the defendant's consent to search, and the defendant gave consent to search. However, the defendant indicates that the officer asked if he could pat him down. The court finds that if that were the situation, then when the officer did pat him down and felt an object in his pocket that was -- that was a knotted bag, that that would come under the plain [feel] exception, and he would have had -- the officer would have had probable cause to be able to retrieve that item. And so, either way the court does find that the officer's actions were justified in this matter. So, therefore the motion to suppress is denied.
¶ 9 Subsequently, upon the denial of his Motion to Suppress, Defendant entered guilty pleas to Felony Possession of Cocaine and having attained Habitual-Felon-Status as evidenced by the Transcript of Plea. Defendant's Transcript of Plea expressly reserved Defendant's right to appeal the trial court's denial of his Motion to Suppress. Defendant gave oral Notice of Appeal at the plea hearing and filed written Notice of Appeal on 25 February 2020.
¶ 10 The issues on appeal are whether: (I) Defendant has preserved his argument his consent was involuntary on the basis Lieutenant Stone strayed from the traffic stop's mission and measurably prolonged the stop; and, if so, (II) the trial court erred in denying Defendant's Motion to Suppress evidence of the cocaine found on Defendant because Defendant's consent for the search was involuntary as a matter of law.1
¶ 11 As a threshold matter, the State contends that because Defendant did not specifically argue before the trial court that the search was unrelated to the mission of the traffic stop and added undue delay to the stop, Defendant has not preserved this theory for appeal under Rule 10(a)(1) of our Rules of Appellate Procedure. Rule 10(a)(1) of the North Carolina Rules of Appellate Procedure requires:
In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired ... if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's ... motion.
N.C.R. App. P. 10(a)(1) (2021). State v. Benson , 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988) (citation omitted). Moreover, "a defendant may not assert on appeal a new theory for suppression which was not asserted at trial." State v. Smarr , 146 N.C. App. 44, 56, 551 S.E.2d 881, 888 (2001) ().
¶ 12 Where a defendant does not argue a constitutional theory at trial and later argues a constitutional theory on appeal, or a defendant argues one constitutional theory at trial and a different constitutional theory on appeal, the defendant may be deemed to have failed to preserve their appellate arguments under Rule 10(a)(1). See Benson , 323 N.C. at 322, 372 S.E.2d at...
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