State v. Jordan

• Decision Date: 05 April 2022
• Docket Number: COA21-91
• Citation: 872 S.E.2d 76
• Parties: STATE of North Carolina v. Richard Henry JORDAN, Jr.
• Court: North Carolina Court of Appeals

872 S.E.2d 76

STATE of North Carolina

v.Richard Henry JORDAN, Jr.

No. COA21-91

Court of Appeals of North Carolina.

Filed April 5, 2022

Patterson Harkavy LLP, by Christopher A. Brook, for Defendant-Appellant.

Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L. Hyde, for the State-Appellee.

COLLINS, Judge.

¶ 1 Defendant Richard Henry Jordan, Jr., appeals from judgments entered upon guilty verdicts of possession of a firearm by a felon, possession of drug paraphernalia, and trafficking in cocaine, and a plea of guilty to attaining habitual felon status. Defendant argues that the trial court erred by denying his motion to suppress evidence gathered by police officers following their warrantless entry into a private residence. We reverse the trial court's denial of Defendant's motion to suppress and remand the matter for further proceedings.

I. Background

¶ 2 On 21 November 2017, the Charlotte Mecklenburg Police Department received a report of a stolen Infiniti car. One of the car's co-owners told officers that he suspected his girlfriend had taken the car and gave the officers the location of a house where she might be found. ¶ 3 At around midnight, Officer Patrick White and Officer Williams¹ responded to the house in an unmarked police vehicle. The house contained a salon and a residence which were separated by sealed doors. White and Williams drove down a driveway on the right side of the house, passed a door, and reached a gravel parking lot in the rear. The officers saw at least four cars parked there, including the Infiniti which had been reported stolen. White and Williams positioned their car so they could watch the Infiniti.

¶ 4 Shortly after arriving, White observed a man who White would later identify as Marcel Thompson "come around from the side of the residence where the door was," walk "right up to the driver's side door of the" Infiniti, "and kind of square[ ] up on the door as if he was going to go inside of the vehicle." White observed Thompson look up at the patrol car, stand "there for a second and stare[ ] directly at [the patrol car], and then immediately turn[ ] away from the car and [begin] walking quickly back down towards the side of the residence." White radioed Officers Erik Tran-Thompson and Jonathan Brito, who were in a marked patrol car nearby, to move in and detain Thompson. White explained that he wanted to stop Thompson because he and Williams "believed that [Thompson] was taking possession of the stolen motor vehicle at that time."

¶ 5 White and Williams pulled their patrol car into the driveway and saw Thompson standing at the door of the residence, appearing to "knock[ ] on the door hastily." When Williams opened the door of the patrol car, White heard Thompson "say either, ‘it's the police’ or ‘police, police,’ as he knocked on the door." Tran-Thompson and Brito entered the driveway and activated the blue lights of their patrol car while Thompson was still outside the residence. Brito also saw Thompson seeking to enter the residence, and Tran-Thompson heard Thompson yell, "It's the police!"

¶ 6 Williams, followed by Brito, approached Thompson while White and Tran-Thompson went to the parking lot to check the Infiniti. Defendant opened the door of the residence from inside; Thompson stepped inside but left the door open. Brito testified that Williams was speaking with Thompson while Thompson was in the open doorway. According to Brito, Williams said, "We need to talk to you. Come out here" immediately prior to entering the residence. Williams stepped into the residence and after 30 to 45 seconds indicated to Brito that the officers had enough to "lock it down." According to Brito, this meant that Williams believed the officers had probable cause to seek a search warrant. At that time, Brito saw Defendant "standing next to [a] safe[,] close the safe, lock it with a key, and put the key in his pocket."

¶ 7 Officer Scottie Carson and Officer Turner² arrived in the third patrol car on the scene. When Carson and Turner arrived, Williams was already inside the residence, "around the corner into the bedroom," and speaking with a woman; Tran-Thompson was at the doorway; and Brito was at the table. Carson saw the door to the residence was open and observed a table inside with a razor blade, white powdery residue, baggies, and a safe on top. Tran-Thompson later confirmed that these items were "visible from the doorway." Carson entered the residence "because [he] could see how many individuals that were not law enforcement officers [were] inside" and there was "what appeared to [him] to be narcotics and narcotics paraphernalia[.]" Upon entering the residence, Carson saw Thompson directly in front of the door, Defendant standing, and an older man seated.

¶ 8 Carson went further into the residence toward the bedroom and bathroom because his "immediate thought" upon entering "was to go into [the] back room and clear it." Carson testified that he saw a firearm at the head of the bed and the officers "decided that [they] were definitely going to have to lock everything down." Carson elaborated that "[t]o lock everything down" meant to "get consent from the homeowner," prohibit those present from leaving, and refrain from touching or moving anything.

¶ 9 Brito testified that the officers did not determine who leased the residence until after the officers had entered the residence and "everybody was aware that [the officers] were locking it down." Body-worn camera footage shows the officers asked who lived in the residence after at least two officers had already entered. Tran-Thompson, Carson, and Brito each testified that the older man, Mr. Deitz, either leased or owned the residence.³

¶ 10 Carson and Tran-Thompson testified that Deitz gave the officers consent to search the residence. Brito's body-worn camera footage, portions of which were played at the suppression hearing, shows that Deitz did not answer when Williams initially asked for consent to search the residence. Instead, Deitz asserted that anything the officers might find belonged to a woman who was in the residence. When Williams again asked for consent to search the residence, Deitz stated that he was not giving the officers permission to search. Williams responded, "Well, in that case, ... we're just gonna put everybody in handcuffs real quick, none of y'all are under arrest, you're just detained. And we're just gonna go ahead and get a search warrant, okay." Only then did Deitz interject, "Oh, well, you can search it then. You ain't got to handcuff nobody." On the witness stand, Carson explained that Deitz refused to give the officers consent to search the safe because it did not belong to him. The officers placed the four persons in the residence in handcuffs.

¶ 11 The officers asked Defendant whether he stayed or lived at the residence; Brito recalled that Defendant "pretty much said something to the line of, ‘Well, I don't have anything to do with anything that's in here. I don't live here. This has nothing to do with me.’ " Brito did not "see any clothing items or overnight bags that belonged" to Defendant but could not tell whether the other officers had "found clothing or suitcases that belonged" to Defendant.

¶ 12 Regarding the safe, Defendant told the officers that they "didn't have a warrant" and "didn't have a reason to search the safe." Defendant stated that the safe did not belong to him, though Brito saw Defendant lock the safe and put the key in his pocket, and Carson later saw Defendant remove the key from his pocket. Later that night, the woman suspected of stealing the car told the officers that the safe belonged to Defendant.

¶ 13 When the officers could not get consent to search the safe from the four persons in the residence, they applied for and received a warrant to search the residence, including the safe. Upon executing the warrant, the officers seized cocaine, a pistol, and currency from inside the safe, and baggies, syringes, a digital scale, and a razor blade from beside the safe. Defendant was taken into custody and subsequently indicted for trafficking cocaine, possession of a firearm by a felon, possession of drug paraphernalia, and attaining habitual felon status.

¶ 14 Prior to trial, Defendant moved to suppress all evidence gathered by the officers on 22 November 2017 as a result of their entry into the residence. Following a hearing, the trial court denied Defendant's motion to suppress. Though the trial court directed the State to prepare a written order, the record reflects that the trial court never entered a written order denying Defendant's motion to suppress.

¶ 15 In announcing its ruling from the bench, the trial court stated as follows:⁴

[I]n this particular case, you've got a car that was reported stolen. There was an idea of where the car may be. The police ... drove behind the location of where the report indicated the car might be. There were four cars behind the building in question that looks like a residence but it was part residence, part commercial enterprise.

They saw four cars. One of the cars met the description of the stolen car.

While they were there, a short -- very short time, an individual came out to -- looked like they were going to get into the car. They had actually touched the car. And as the officer testified, it looked as if he was going to enter the car and then noticed police and even used -- said the word "police" as he came back to the door to the residential part of the structure, knocked on the door.

When the other marked cars -- the first car that he saw was not marked. And the other cars that came up with a marked car with marked uniformed officers, he entered the residence. The individual had a red hoodie and I think was Mr. Thompson, not the defendant. The door was left open. And Officer Williams approached the door, put his foot through the threshold, at least one foot, spoke to the individual. It was raining outside, asked the individual if he

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