State v. Tripp

• Decision Date: 17 June 2022
• Docket Number: 27A21
• Citation: 2022 NCSC 78
• Parties: STATE OF NORTH CAROLINA v. MICHAEL DEVON TRIPP
• Court: North Carolina Supreme Court

2022-NCSC-78

STATE OF NORTH CAROLINA v. MICHAEL DEVON TRIPP

No. 27A21

Supreme Court of North Carolina

June 17, 2022

Appeal pursuant to N.C. G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 275 N.C.App. 907, 853 S.E.2d 848 (2020), reversing an order entered on 8 June 2018 and vacating in part and remanding a judgment entered on 2 July 2018, both by Judge Charles H. Henry in Superior Court Craven County. On 10 August 2021, the Supreme Court allowed defendant's petition for discretionary review of additional issues. Heard in the Supreme Court on 15 February 2022.

Joshua H. Stein, Attorney General, by Kristine M. Ricketts, Special Deputy Attorney General, for the State-appellee-appellant.

Paul E. Smith, for defendant-appellant-appellee.

BERGER, Justice.

¶ 1 Following the trial court's denial of his motion to suppress, defendant pleaded guilty to various drug offenses including trafficking in heroin, possession with intent to sell or deliver fentanyl, and possession with intent to sell or deliver heroin. The Court of Appeals reversed the trial court's denial of defendant's motion to suppress. Based upon a dissent in the Court of Appeals and the allowance of defendant's petition for discretionary review, there are two issues now before this Court: whether the trial court's findings of fact challenged by defendant are supported by competent evidence, and whether the seizure and subsequent search of defendant comports with the Fourth Amendment. For the reasons stated below, we reverse the decision of the Court of Appeals.

I. Factual and Procedural Background

¶ 2 Investigator Jason Buck of the Craven County Sheriff's Office Narcotics Division was alerted to several overdose deaths which were linked to heroin reportedly sold by defendant. In response to the information he obtained Investigator Buck arranged a controlled buy of heroin between a confidential informant and defendant on April 25, 2017. Audio and video surveillance of the controlled buy confirmed the sale of heroin by defendant to the confidential informant.

¶ 3 Investigator Buck obtained a search warrant for the location where the controlled buy had occurred, 8450 U.S. Highway 17 N., Vanceboro, North Carolina. The warrant authorized a search of the residence, carport, outside storage building, and three vehicles. Although defendant was identified in the search warrant, search of his person was neither requested in the application nor authorized in the warrant.

¶ 4 A law enforcement briefing was held before execution of the search warrant. Attendees were briefed on the search warrant and the controlled buy that had occurred the previous day. Lieutenant John Raynor, who oversees the narcotics unit, attended the briefing to ensure adherence to the following policy during the execution of the search warrant:

[A]ll persons on scene or in proximity to our scenes that we believe to be a threat are dealt with, which means that we will detain them briefly, pat them down for weapons, make sure they're not a threat to us and then one of the narcotics investigators on scene will make a determination if that person can leave or not.

Lieutenant Raynor explained in his testimony that individuals considered a threat included

[a]nyone with a prior history with us, with violent history, known to carry guns, any known drug dealers that we have past history with. By nature, generally drug dealers are considered violent and by nature a majority carry guns in one nature or another, so everybody inside of a known narcotics residence or on the scene there we deal with for our safety purposes, then deem whether or not they're suspect at that point to continue further.

¶ 5 Deputy Josh Dowdy was present at the briefing and understood that defendant was the target of the operation and that officers were searching for heroin based on the controlled buy. Deputy Dowdy was familiar with defendant based on prior law enforcement-related encounters, including three incidents in which defendant had brandished or discharged firearms. All three incidents occurred in the same area along U.S. Highway 17 near the residence identified in the search warrant.

¶ 6 Nearly a dozen officers participated in the execution of the search warrant. Upon his arrival at the site, Deputy Dowdy observed defendant and other individuals on a wheelchair ramp on the neighboring property at 8448 U.S. Highway 17, which belonged to defendant's grandfather. Testimony at the suppression hearing estimated the distance between the two residences to be between fifty and sixty yards.

¶ 7 Deputy Dowdy approached defendant and instructed him to place his hands on the railing of the wheelchair ramp. Defendant was wearing baggy jogging pants which were loose enough to allow Deputy Dowdy to view the contents of defendant's pockets without manipulating his clothing. Deputy Dowdy observed money in defendant's left pocket and a plastic baggie in defendant's right pocket. Deputy Dowdy patted down the exterior of defendant's clothing and felt a large lump in defendant's right pocket. Based on his training and experience, after seeing the baggie and feeling the lump, in addition to the purpose for which law enforcement was at the scene, Deputy Dowdy believed the baggie contained narcotics. Deputy Dowdy removed the baggie from defendant's pocket and placed him in handcuffs. Testing later determined the contents of the baggie to be more than seven grams of a mixture of heroin and fentanyl.

¶ 8 Defendant moved to suppress the evidence recovered by Deputy Dowdy. In its written order denying defendant's motion to suppress, the trial court found the following:

1. Investigator Jason Buck, a sworn law enforcement officer with the Craven County Sheriff's Office and a member of the Coastal Narcotics Enforcement Team, utilized a confidential informant which he found to be reliable to make a controlled purchase of heroin from the defendant, Michael Tripp, on April 25, 2017. The informant was equipped with video and audio equipment from which law enforcement could monitor the transaction. The defendant, who was known by law enforcement as a drug dealer in the Vanceboro area by reputation and criminal history, was identified by the informant and later verified by the recordings as the defendant and the seller of a quantity of heroin to the informant. The sale was made from within the defendant's residence . . . in Vanceboro, North Carolina.

2. As a result of that investigation, Deputy Buck obtained on April 26, 2017 a search warrant for that residence and several motor vehicles associated with that address from Superior Court Judge Benjamin Alford.

3. At approximately 6:00 p.m. on April 26, 2017 eleven officers with the Craven County Sheriff's Office and Coastal Narcotics Enforcement Team executed that search warrant for that residence.

4. Prior to the execution of the search warrant an operation plan meeting was held by the officers conducting the operation. The plan was to clear the residence and detain all who were present. The residence to be searched was on a dirt road contiguous to homes resided in by other members of the defendant's family. The officers utilized four unmarked vehicles to get to that location. The officers had not obtained an arrest warrant for the defendant prior to the operation.

5. Deputy Josh Dowdy, a nine year veteran of the sheriff's office and a trained member of the Coastal Narcotics Enforcement Team, participated in the execution of the search warrant. Dowdy understood that the target of the search was the defendant. He knew the defendant from at least three other inter[actions] with the defendant. In 2011 and 2013 he had been called to the defendant's residence due to domestic disturbances in which the defendant had been brandishing a firearm. In 2012 he had arrested the defendant for an assault on a female. At the time of that arrest, he was at his grandfather's house which is located about 60 yards from the residence being searched pursuant to the April 26, 2017 search warrant.

6. The Craven County Sheriff's Office had a policy described by Lt. John Raynor that required that all people who are "on scene" or "in proximity to our scene" whom they believe to be a threat or had previously dealt with be detained and briefly patted down for weapons to make sure they are not a threat to any of the narcotics officers. The policy provided that anyone who had a prior violent history, [was] known to carry firearms, or sold narcotics were deemed to be threats.

7. When the narcotics officers arrived at [the residence] in Vanceboro, North Carolina, the defendant was outside at his grandfather's house within sixty yards of the residence to be searched and had a direct line of sight to it and the officers on scene.

8. As Deputy Dowdy was getting out of his motor vehicle he observed the defendant to his right near the front porch of the defendant's grandfather's house. Because of his past experiences with the defendant, his previous firearm possessions, and the reasons that brought law enforcement to this residence, Dowdy asked him to put his hands on the railing of a handicap ramp attached to his grandfather's house so he could "pat" him down for weapons. It was the policy and normal procedure of the Sheriff's Office for the safety of the officers and those present to pat down all individuals with whom they made contact while executing a search warrant. The defendant complied.

9. The defendant was wearing baggy jogging pants. While patting him down Dowdy could feel what he thought was money in his left pocket. Because his pants were so "baggy[, ]"[ ] Dowdy could see, without manipulating the garment, a plastic baggie in his right pants pocket, and while patting him down he felt a large lump

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