State v. Thompson
| Decision Date | 02 January 2018 |
| Docket Number | No. COA17-477,COA17-477 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina, Plaintiff, v. Jerry Giovani THOMPSON, Defendant. |
Attorney General Joshua H. Stein, by Assistant Attorney General Robert T. Broughton, for the State.
Robinson, Bradshaw & Hinson, P.A., Chapel Hill, by Erik R. Zimmerman, for defendant-appellant.
Jerry Thompson (defendant) appeals from the judgment sentencing him for convictions of felony possession of marijuana, possession with intent to sell or deliver marijuana, possession of drug paraphernalia, and possession of a firearm by a convicted felon. On appeal, defendant argues that the trial court erred by denying his motion seeking the suppression of evidence, and that the judgment sentencing him for felony possession of marijuana should be vacated on the grounds that he did not plead guilty to that offense. After review of defendant's arguments, in light of the record and the applicable law, we conclude that the factual findings in the order denying defendant's suppression motion did not resolve a pivotal disputed issue of fact, requiring us to vacate the judgment and remand for further findings. We further conclude that the judgment entered against defendant and the written transcript of plea, both of which were signed by the trial judge, are inconsistent, and we remand for resolution of this discrepancy.
On 10 April 2015, law enforcement officers executed a search warrant for an apartment on Basin Street, in Charlotte, North Carolina. When the officers arrived at the apartment, defendant was sitting in his car in front of the residence. Two officers approached defendant in order to prevent any interference with the execution of the search warrant, and remained near defendant while the apartment was being searched. During this time, defendant was asked to provide identification, which he did. Defendant also consented to a search of his person, which did not reveal contraband. At some point, another officer came out of the apartment and asked defendant for permission to search his car, and upon searching the trunk of defendant's car, found marijuana and a firearm. Defendant was arrested on charges of possession of drug paraphernalia, possession with the intent to sell or deliver marijuana, and possession of a firearm by a convicted felon.
On 28 March 2016, defendant was indicted for possession of drug paraphernalia, possession with the intent to sell or deliver marijuana, felony possession of marijuana, maintaining a vehicle for the purpose of keeping or selling controlled substances, and possession of a firearm by a convicted felon. On 4 October 2016, defendant filed a motion seeking suppression of the evidence seized at the time of his arrest, on the grounds that the evidence was seized pursuant to an illegal search and seizure that violated his rights under the Fourth Amendment to the United States Constitution.
The charges against defendant came on for trial beginning on 3 January 2017. A hearing was conducted prior to trial on defendant's motion to suppress. The evidence adduced at the hearing tended to show the following: Sergeant Michael Sullivan of the Charlotte-Mecklenburg Police Department testified that on 10 April 2015, he led a group of officers in the execution of a search warrant for the Basin Street apartment. The target of the search warrant was a woman. When the officers arrived, Sergeant Sullivan saw a person seated in the front seat of an automobile parked in front of the apartment building. Sergeant Sullivan approached the car, in order to make sure that the individual in the passenger seat was not the woman named in the search warrant, and to ensure that the person did not interfere with the execution of the search warrant. Defendant, who was the person sitting in the car, told Sergeant Sullivan that he did not live in the apartment, but that his girlfriend did.
Sergeant Sullivan remained near defendant's car and informed defendant that the officers were executing a drug-related search warrant in his girlfriend's apartment. At the officer's request, defendant consented to a search of his person, which did not reveal the presence of contraband. Sergeant Sullivan then asked defendant for his identification, before "hand[ing] him off" ’ to Officer Justin Price, giving Officer Price defendant's license, and going inside to supervise the search. Sergeant Sullivan left defendant with Officers Price and Blackwell, and had no further contact with defendant. Officer Price, however, testified that when he came outside, defendant was already in custody.
Officer Michael Blackwell testified that he and Sergeant Sullivan remained with defendant during the search, and explained to defendant why the officers were there. Defendant told Officer Blackwell that the woman named in the search warrant was his girlfriend. After eight to ten minutes, Officer Hefner came outside and asked for permission to search defendant's car. Defendant consented to the search. Marijuana and a firearm were found in the trunk of the car. On cross-examination, Officer Blackwell testified that eight to twelve officers were present, that he and Sergeant Sullivan had approached defendant to ensure that no one interfered with their execution of the search warrant, and that both officers were armed and in uniform. Officer Mark Hefner testified that during the search, he "received information that the defendant was the supplier of the drugs." Accordingly, he obtained defendant's consent to search his car.
Defendant testified that he was 61 years old and worked for the Red Cross. On 10 April 2015, he drove to the Basin Street apartment to visit his girlfriend, who was the person named in the search warrant. He was "taken aback" when a number of law enforcement officers arrived wearing "SWAT attire" and went inside. Officer Blackwell approached him and told him that he could not leave, and took his keys and wallet. Defendant waited for twenty or thirty minutes with the officers, before Officer Hefner came out of the apartment. Defendant denied giving the officers permission to search his car.
Following the presentation of evidence and the arguments of counsel, the trial court orally denied defendant's motion to suppress.
Defendant then pleaded guilty, pursuant to a plea bargain with the State, to possession of drug paraphernalia, possession with the intent to sell or deliver marijuana, and possession of a firearm by a convicted felon.1 Under the terms of the plea agreement, the State would dismiss the charge of maintaining a vehicle for keeping or selling controlled substances, and defendant would receive a consolidated sentence for the remaining offenses. Defendant pleaded guilty while preserving his right to appeal the denial of his motion to suppress. The trial court sentenced defendant to a term of 13 to 25 months’ imprisonment, suspended the sentence, and placed defendant on 24 months’ supervised probation. On 5 January 2017, the trial court entered a written order denying defendant's suppression motion. Defendant gave notice of appeal to this Court.
Defendant argues on appeal that the trial court erred by denying his suppression motion. "The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law." State v. Biber , 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citation omitted). State v. Borders , 236 N.C. App. 149, 157, 762 S.E.2d 490, 498-99 (2014).
The Fourth Amendment to the United States Constitution protects the "right of the people to be secure ... against unreasonable searches and seizures." U.S. Const. amend. IV. State v. Campbell , 359 N.C. 644, 659, 617 S.E.2d 1, 11 (2005) (citing State v. Watkins , 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994) ). However, not all interactions between citizens and law enforcement officers fall within the ambit of the Fourth Amendment:
U.S. Supreme Court holdings carve out ... three tiers of police encounters: communication between the police and citizens involving no coercion or detention and therefore outside the compass of the Fourth Amendment, brief ‘seizures’ that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause.
State v. Sugg, 61 N.C. App. 106, 108, 300 S.E.2d 248, 250 (1983) (citing United States v. Berry , 670 F.2d 583 (5th Cir. 1982) ).
Accordingly, a law enforcement officer does not require any suspicion of criminal activity to engage in a consensual interaction with a citizen, and in such a situation the protections of the Fourth Amendment are not implicated:
Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.... Only 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.
Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed. 2d 389, 398 (1991) (internal...
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State v. Thompson
...disputed issue of fact, requiring us to vacate the judgment and remand for further findings." State v. Thompson , ––– N.C. App. ––––, ––––, 809 S.E.2d 340, 343 (2018) (" Thompson I "). The Supreme Court subsequently vacated Thompson I and remanded the matter to this Court for reconsideratio......
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