Search Warrant of Premises

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA17-477-2
Filed: 20 August 2019

Mecklenburg County, Nos. 15 CRS 212911-13

STATE OF NORTH CAROLINA

v.
JERRY GIOVANI THOMPSON

Appeal by defendant from judgment entered 3 January 2017 by Judge William R. Bell in Mecklenburg County Superior Court. Originally heard in the Court of Appeals 5 October 2017, with opinion issued 2 January 2018. On 1 February 2019, the Supreme Court vacated and remanded to this Court for reconsideration in light of State v. Wilson, 371 N.C. 920, 821 S.E.2d 811 (2018).

Attorney General Joshua H. Stein, by Assistant Attorney General Robert T. Broughton, for the State.

Robinson, Bradshaw & Hinson, P.A., by Erik R. Zimmerman, for defendant- appellant.

ZACHARY, Judge.

Defendant Jerry Giovani Thompson appealed from the trial court’s judgment sentencing him for convictions of felony possession of marijuana, possession with intent to sell or deliver marijuana, possession of marijuana paraphernalia, and possession of a firearm by a felon. Defendant argued on appeal that the trial court

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erred in denying his motion to suppress.1 By published opinion issued on 2 January 2018, a majority of this Court concluded over a dissent “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.” 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 reconsideration in light of the Supreme Court’s decision in State v. Wilson, 371 N.C. 920, 821 S.E.2d 811 (2018). Upon reconsideration, we conclude that the trial court’s order denying Defendant’s motion to suppress cannot be upheld on the grounds enumerated in State v. Wilson. Accordingly, we vacate the judgment and remand for entry of additional findings consistent with our decision in Thompson I. I. Background

On 10 April 2015, a team of roughly eight to twelve law enforcement officers with the Charlotte-Mecklenburg Police Department traveled to an apartment on Basin Street in Charlotte in order to execute a search warrant. The target of the search warrant was a female.

Defendant was cleaning his vehicle in the street adjacent to the apartment when the officers arrived to execute the search warrant. Sergeant Michael Sullivan approached Defendant in order to confirm that he was not the female named in the

1 Defendant also argued 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.

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search warrant and to ensure that he would not interfere with the search. Defendant told Sergeant Sullivan that he did not live in the apartment, but his girlfriend did.

Sergeant Sullivan asked Defendant for his identification, “handed him” and his driver’s license off to Officer Justin Price, and then proceeded inside the apartment in order to supervise the search. Officer Price testified that Defendant was already in custody at that point. Officer Price and Officer Michael Blackwell remained outside with Defendant while the other officers executed the search warrant. Roughly ten minutes later, Officer Mark Hefner exited the apartment and asked Defendant for permission to search his vehicle. Defendant consented to the search, and officers found marijuana, paraphernalia, and a firearm in the trunk.

Defendant was indicted for possession of marijuana paraphernalia, possession with intent to sell or deliver marijuana, felony possession of marijuana, maintaining a vehicle for the purpose of keeping a controlled substance, and possession of a firearm by a felon.

On 4 October 2016, Defendant filed a motion to suppress the evidence seized from the search of his vehicle. Defendant argued that “[t]he initial police encounter . . . was not a voluntary contact, but rather an illegal seizure and detention of [Defendant] which was unsupported by reasonable suspicion,” and that the trial court was therefore required to “suppress all evidence gathered as a result of the illegal seizure of his person and the illegal search of his vehicle.” Following a hearing,

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however, the trial court found that Defendant “was neither seized nor in custody” at the time he consented to the search of his vehicle.

Because Defendant was never “seized” within the meaning of the Fourth Amendment, the trial court concluded that no Fourth Amendment violation had occurred and, accordingly, denied Defendant’s motion to suppress. Defendant subsequently pleaded guilty to possession of drug paraphernalia, possession with intent to sell or deliver marijuana, and possession of a firearm by a felon, preserving his right to appeal the trial court’s denial of his motion to suppress. The trial court imposed a suspended sentence and placed Defendant on 24 months’ supervised probation. A written order denying Defendant’s motion to suppress was entered on 5 January 2017. Defendant timely appealed.

This Court heard Defendant’s appeal on 5 October 2017. Defendant argued on appeal that the officers “seized” him for purposes of the Fourth Amendment “when they took and retained his driver’s license,” and that such seizure, in the absence of “any reasonable suspicion that he was involved in criminal activity,” violated Defendant’s Fourth Amendment rights. Citing State v. Cottrell, 234 N.C. App. 736, 760 S.E.2d 274 (2014), Defendant maintained that the trial court was required to suppress the evidence recovered from the search of his vehicle because it was the product of “this unconstitutional seizure.”

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Over a dissent, this Court concluded that the trial court’s findings of fact were insufficient to determine whether Defendant had been “seized” for purposes of the Fourth Amendment:

It is long-established that “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509 (1980). As a result, “an initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” INS v. Delgado, 466 U.S. 210, 215, 80 L. Ed. 2d 247, 255 (1984).

….

In determining whether a defendant was seized, “relevant circumstances include, but are not limited to, the number of officers present, whether the officer displayed a weapon, the officer’s words and tone of voice, any physical contact between the officer and the individual, whether the officer retained the individual’s identification, or property, the location of the encounter, and whether the officer blocked the individual’s path.” State v. Icard, 363 N.C. 303, 309, 677 S.E.2d 822, 827 (2009).

….

In arguing that he was seized, defendant places great emphasis upon his contention that the law enforcement officers retained his driver’s license during the encounter. Defendant cites several cases, including State v. Jackson, 199 N.C. App. 236, 243, 681 S.E.2d 492, 497 (2009), in which this Court stated, in analyzing

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whether the defendant had been seized, that “a reasonable person under the circumstances would certainly not believe he was free to leave without his driver’s license and registration.” We find this argument persuasive. Indeed, we have not found any cases holding that a defendant whose identification or driver’s license was held by the police without reasonable suspicion of criminal activity was nonetheless “free to leave.”

….

In its appellate brief, the State does not dispute the crucial significance of whether the officers kept defendant’s license. . . . The State instead argues that the trial court’s findings of fact fail to establish whether the officers retained defendant’s license or returned it to him after examination. We agree with this contention.

Witnesses at the hearing on defendant’s suppression motion gave conflicting testimony with regard to the circumstances under which law enforcement officers took possession of defendant’s driver’s license and the time frame in which the relevant events occurred. . . .

[D]efendant testified that the officers retained his license, but the officers did not testify about this issue. Assuming that the law enforcement officers kept defendant’s identification, the testimony is conflicting as to whether defendant’s car was searched before, immediately after, ten minutes after, or a half-hour after defendant gave his license to [Sergeant] Sullivan.

….

In this case, the trial court’s findings of fact do not resolve the question of whether the law enforcement officers returned defendant’s license after examining it, or instead retained it, or the issue of the sequence of events and the time frame in which they occurred. Given that the officers conceded that their interaction with defendant was not

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based upon suspicion of criminal activity, a finding that officers kept defendant’s identification would likely support the legal conclusion that he had been seized.

Thompson I, ___ N.C. App. at ___, 809 S.E.2d at 345-49 (internal citations, quotation marks, and brackets omitted). Accordingly, “[b]ecause the court’s findings of fact fail[ed] to resolve material issues, we vacate[d] the judgment entered against defendant, and remand[ed] for the trial court to enter findings of fact that resolve all material factual disputes.”2 Id. at ___, 809 S.E.2d at 349. Judge Berger dissented on the grounds that “Defendant was never seized by Charlotte-Mecklenburg Police Department . . . officers within the meaning of the Fourth Amendment.” Id. at ___, 809 S.E.2d at 350 (Berger, J., dissenting).

The State appealed of right to our Supreme Court pursuant to N.C. Gen. Stat. § 7A-30(2). On 1 February 2019, the Supreme Court vacated Thompson I and remanded the case to this Court for review in light of its decision in State v. Wilson, 371 N.C. 920, 821 S.E.2d 811 (2018).

Wilson requires this Court to determine, assuming, arguendo, that Defendant was in fact “seized” for purposes of the Fourth Amendment, whether such seizure was nevertheless justified under the rule set forth by the United States Supreme Court

2 We likewise agreed with Defendant “that the judgment entered against [him] and the written transcript of plea, both of which were signed by the trial judge, are inconsistent,” and therefore remanded “for resolution of this discrepancy.” Id. at ___, 809 S.E.2d at 343. The dissent, and thus the resulting appeal, was not predicated upon this ground, nor does the Supreme Court’s decision in Wilson affect that conclusion. Accordingly, we reiterate that portion of our holding from Thompson I, but decline to address it further in this opinion.

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in Michigan v. Summers, 452 U.S. 692, 69 L. Ed. 2d 340 (1981). We conclude that it

was not.

II. Michigan v. Summers and State v. Wilson
In Michigan v. Summers, the United States Supreme Court held that “for Fourth Amendment purposes, . . . a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” 452 U.S. at 705, 69 L. Ed. 2d at 351 (footnote omitted). Our Supreme Court in Wilson identified three prongs to the rule: “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain (1) the occupants, (2) who are within the immediate vicinity of the premises to be searched, and (3) who are present during the execution of a search warrant.” Wilson, 371 N.C. at 924, 821 S.E.2d at 815 (citations and quotation marks omitted). “These three parts roughly correspond to the ‘who,’ ‘where,’ and ‘when’ of a lawful suspicionless seizure incident to the execution of a

search warrant.” Id.
Our Supreme Court in Wilson applied the Summers rule and rejected the

defendant’s challenge to the trial court’s denial of his motion to suppress. In that case, the defendant had arrived on the scene while the Winston-Salem Police Department was in the process of actively securing a home in order to execute a search warrant. Id. at 922, 821 S.E.2d at 813. The defendant penetrated the perimeter securing the

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scene, walked past an officer, and announced that he was going to retrieve his moped. Id. After disobeying the officer’s command to stop, the defendant proceeded down the driveway toward the home, at which point officers detained and frisked him. Id. Officers recovered a firearm, and the defendant was charged with possession of a firearm by a felon. Id. at 922, 821 S.E.2d at 814.

In determining whether the defendant had been lawfully seized under the Summers rule, our Supreme Court noted that the application of the second and third prongs was “straightforward,” and thus focused its inquiry on the first prong, i.e., whether the defendant’s brief detention was justified on the ground that he was an “occupant” of the premises during the execution of a search warrant. Id. at 924-25, 821 S.E.2d at 815.

The United States Supreme Court adopted the Summers rule based in part upon the rationale that “[i]f the evidence that a citizen’s residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen’s privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search [her] home.” Summers, 452 U.S. at 704-05, 69 L. Ed. 2d at 351. Our Supreme Court noted, however, that beyond enumerating the governmental interests that combine to justify a Summers detention, the United States Supreme Court had yet to “directly resolve[ ] the issue

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of who qualifies as an ‘occupant’ for the purposes of the . . . rule.” Wilson, 371 N.C. at 925, 821 S.E.2d at 815.

In attempting to answer this question, the Wilson Court examined the various rationales underlying the Summers rule. The Court ultimately concluded that a person is an “occupant” for purposes of the rule “if he poses a real threat to the safe and efficient execution of a search warrant.” Id. (quotation marks omitted); see also Bailey v. United States, 568 U.S. 186, 195, 185 L. Ed. 2d 19, 29-30 (2013) (“When law enforcement officers execute a search warrant, safety considerations require that they secure the premises, which may include detaining current occupants. By taking unquestioned command of the situation, the officers can search without fear that occupants, who are on the premises and able to observe the course of the search, will become disruptive, dangerous, or otherwise frustrate the search.” (citation and quotation marks omitted)). Thus, under this formulation of the rule, our Supreme Court noted that although a defendant may not be “an occupant of the premises being searched in the ordinary sense of the word,” Wilson, 371 N.C. at 925, 821 S.E.2d at 815, the defendant’s “own actions” may nevertheless “cause[ ] him to satisfy the first part, the ‘who,’ ” of a lawful Summers detention. Id. at 926, 821 S.E.2d at 816.

Applying this definition, although the defendant was not inside the premises when the officers arrived to execute the search warrant, our Supreme Court concluded that the defendant’s own actions had nevertheless rendered him an

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“occupant,” thereby subjecting him to a suspicionless seizure incident to the lawful execution of the search warrant. The Supreme Court reasoned:

We believe defendant posed a real threat to the safe and efficient execution of the search warrant in this case. He approached the house being swept, announced his intent to retrieve his moped from the premises, and appeared to be armed. It was obvious that defendant posed a threat to the safe completion of the search. . . . [I]t was apparent to [the officer] that defendant was attempting to enter the area being searched—or, stated another way, defendant would have occupied the area being searched if he had not been restrained.

Id. at 925, 821 S.E.2d at 815. Because the defendant’s initial detention, lawful under the Summers rule, did not taint the subsequent search, no Fourth Amendment violation occurred, and the Supreme Court therefore affirmed the trial court’s denial of his motion to suppress.

III. Application

In the instant case, there is no question but that the third prong of the Summers rule—the “when”—is satisfied, in that the officers detained Defendant during their lawful execution of a warrant to search his girlfriend’s apartment. Moreover, given the apartment’s proximity to the street on which Defendant’s vehicle was parked, it is also arguable that the circumstances here satisfied the second prong—the “where”—of the Summers rule. See id. at 924, 821 S.E.2d at 815 (“It is also evident that defendant was seized within the immediate vicinity of the premises being searched.”). We conclude, however, that Defendant was not an “occupant” of

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the searched premises, as that term is defined in Wilson, so as to satisfy the first prong—the “who”—of a lawful Summers detention.

Defendant was cleaning his vehicle in the street when officers arrived to execute the search warrant. The officers approached Defendant to question him. Defendant remained inside his vehicle and told the officers that he did not live in the apartment, but that his girlfriend did. At no point did Defendant attempt to approach the apartment. Nor did he exhibit nervousness or agitation, disobey or protest the officers’ directives, appear to be armed, or undertake to interfere with the search.3 Cf. id. at 925-26, 821 S.E.2d at 816 (“Indeed, if such precautionary measures [such as erecting barricades or posting someone at the door] did not carry with them some categorical authority for police to detain individuals who attempt to circumvent them, it is not clear how officers could practically search without fear that occupants, who are on the premises and able to observe the course of the search, would become disruptive, dangerous, or otherwise frustrate the search.” (emphasis added) (quotation marks omitted)). Quite simply, there were no circumstances to indicate

3 The dissent appears to argue that Defendant’s detention was justified, in part, upon his girlfriend “identif[ying] him as the supplier of the drugs that were the target of the search.” Dissent at 7. This is obviously irrelevant, as Defendant had already purportedly been “seized” by the time the officers learned this information.

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that Defendant would pose “a real threat to the safe and efficient execution” of the officers’ search.4 Id. at 925, 821 S.E.2d at 815.

To hold that Defendant’s presence in his vehicle under these circumstances was sufficient to render him an “occupant” of the apartment for purposes of the Summers rule would afford the State the wide discretion to detain any unlucky bystander, simply because he or she happens to be familiar with a resident of the premises being searched.5 Nevertheless, the dissent maintains that “[t]he Court in Wilson addressed [this] main concern when it limited law enforcement’s ability to detain only those who are within ‘the immediate vicinity of the premises to be searched.’ ” Dissent at 5. This contention is misplaced. Nor is the same eliminated by virtue of Defendant’s “connection to the apartment.” Id. at 6.

The dissent’s suggestion that a defendant’s presence in the immediate vicinity of a searched premises should operate categorically to satisfy the first prong of the Summers rule would render entirely superfluous our Supreme Court’s scrupulous effort in Wilson to define “occupant” as someone who “poses a real threat to the safe and efficient execution of a search warrant.” Wilson, 371 N.C. at 925, 821 S.E.2d at 815. To be sure, in arriving at its definition of “occupant” for purposes of the first

4 The dissent would also conclude that Defendant posed a threat “to the efficacy of the search, as CMPD resources were diverted away from the execution of the search to prevent any potential interference by Defendant[.]” Dissent at 6. This circular argument is a logical fallacy.

5 Such a precedent would be particularly concerning given the prevalence of neighborhoods in which family members live within close proximity to one another.

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prong of Summers, the Wilson Court used as a “guidepost” that same reasoning which underlies the lawful spatial dimension of a Summers detention under the second prong. Id. (“The reasoning in Bailey comports with the justification in Summers because someone who is sufficiently close to the premises being searched could pose just as real a threat to officer safety and to the efficacy of the search as someone who is within the premises.”). Such guidance, however, does not amount to a holding that an individual’s presence within the immediate vicinity of a search, by its very nature, poses a threat to the search’s safe and efficient execution.

Had the Supreme Court intended such a rule, it would have had no reason to examine the particular circumstances in order to analyze whether the defendant in that case had, in fact, posed “a real threat to the safe and efficient execution of [the] search warrant.” Id. (emphasis added) (“We believe defendant posed a real threat to the safe and efficient execution of the search warrant in this case. He approached the house being swept, announced his intent to retrieve his moped from the premises, and appeared to be armed. . . . Defendant argues that he was not an occupant of the premises being searched in the ordinary sense of the word. Given defendant’s actions here, however, it was apparent to [the officer] that defendant was attempting to enter the area being searched—or, stated another way, defendant would have occupied the area being searched if he had not been restrained.”). Moreover, although both factors

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were present, our Supreme Court’s holding in Wilson was not based, even in part, upon either the defendant’s “connection” to the premises or his proximity thereto. Id. Thus, under the dissent’s logic—where the second prong of Summers is the only meaningful requirement—Summers would still boundlessly subject to detention any grass-mowing uncle, tree-trimming cousin, or next-door godson checking his mail, merely based upon his “connection” to the premises and hapless presence in the immediate vicinity. We do not interpret Summers or Wilson as creating such a sweeping exception to the Fourth Amendment’s proscription against unreasonable seizures. Nor are we able to perceive any line which might practically be drawn to curtail this tremendous discretion, beyond that which our Supreme Court has already set forth. See id. (“[A] person is an occupant for the purposes of the Summers rule if he poses a real threat to the safe and efficient execution of [the] search warrant.”

(emphasis added) (quotation marks omitted)).
Accordingly, assuming that there was one, we conclude that Defendant’s

suspicionless seizure in the instant case cannot be justified on the ground that he was an “occupant” of the premises during the lawful execution of a search warrant. Therefore, we vacate the judgment entered upon the denial of Defendant’s motion to suppress, and remand the matter to the trial court for entry of an order containing findings of fact necessary to resolve all material factual disputes, pursuant to our holding in Thompson I. See Thompson I, ___ N.C. App. at ___, 809 S.E.2d at 349 (“In

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this case, the trial court’s findings of fact do not resolve the question of whether the law enforcement officers returned defendant’s license after examining it, or instead retained it, or the issue of the sequence of events and the time frame in which they occurred.”). In addition, we reiterate our decision in Thompson I to remand for correction of the discrepancy between the transcript of Defendant’s plea and the judgment entered against him. Id. at ___, 809 S.E.2d at 350.

VACATED AND REMANDED.
Chief Judge McGEE concurs.
Judge BERGER dissents by separate opinion.