State v. Miller , 371 N.C. 266 ( 2018 )

IN THE SUPREME COURT OF NORTH CAROLINA
No. 2PA17
Filed 8 June 2018
STATE OF NORTH CAROLINA
v.
JUAN ANTONIA MILLER
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision
of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 374 (2016), ordering that
defendant receive a new trial after appeal from a judgment entered on 4 December
2015 by Judge Eric C. Morgan in Superior Court, Guilford County. Heard in the
Supreme Court on 7 February 2018.
Joshua H. Stein, Attorney General, by Derrick C. Mertz and John G. Batherson,
Special Deputy Attorneys General, for the State-appellant.
Jason Christopher Yoder for defendant-appellee.
Southern Coalition for Social Justice, by Ian A. Mance and Ivy A. Johnson, for
The Beloved Community Center of Greensboro, amicus curiae.
MARTIN, Chief Justice.
During a traffic stop, Officer H.B. Harris of the Greensboro Police Department
found cocaine in defendant’s coat pocket. Defendant did not move to suppress
evidence of the cocaine before or at trial, but instead argued for the first time on
appeal that the seizure of the cocaine resulted from various Fourth Amendment
violations. We hold that defendant’s Fourth Amendment claims are not reviewable
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Opinion of the Court
on direct appeal, even for plain error, because he completely waived them by not
moving to suppress evidence of the cocaine before or at trial. We therefore reverse
the decision of the Court of Appeals and remand this case to the Court of Appeals for
additional proceedings.
Officer Harris pulled defendant over after a DMV records check indicated that
the license plate number for the car that he was driving had been revoked due to
unpaid insurance premiums. At the time of the traffic stop, Derick Sutton, the car’s
owner, was in the passenger’s seat. After a brief conversation, Officer Harris asked
Sutton and then defendant to step out of the car. Both men complied.
The parties dispute exactly what happened next, including whether defendant
consented to be searched. But they do not dispute that Officer Harris ultimately
searched defendant. When Officer Harris checked defendant’s coat pocket, he found
a bag of white powder that was later confirmed to be cocaine and presented as Exhibit
1 at trial. Officer Harris was wearing a body camera that was recording video footage
during this traffic stop.
Defendant did not move in limine to suppress evidence of the cocaine, even
when the trial court specifically asked if there were pretrial matters to address. Nor
did defendant object to the State’s use of the cocaine evidence at any point during his
trial, either when Officer Harris testified about finding cocaine in his pocket or when
the cocaine itself was introduced as evidence. Defendant argued to the Court of
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Appeals that the trial court “plainly erred” by “admitting the cocaine and testimony
about the cocaine,” and that the seizure of the cocaine resulted from various Fourth
Amendment violations. Defendant also argued that his trial counsel was ineffective
for not moving to suppress evidence of the cocaine.
Although the Court of Appeals acknowledged that “footage from an officer’s
body camera may not reveal the totality of the circumstances,” State v. Miller, ___
N.C. App. ___, ___ n.1, 795 S.E.2d 374, 376 n.1 (2016), it nonetheless considered the
evidence that was presented at trial, including Officer Harris’ body camera footage,
and conducted plain error review, see id. at ___, 795 S.E.2d at 376-79. The Court of
Appeals determined that Officer Harris unconstitutionally extended the traffic stop
and that, even if Officer Harris had not unlawfully extended the stop, defendant’s
consent to the search of his person was not valid. Id. at ___, 795 S.E.2d at 378-79. In
the course of its analysis, the Court of Appeals made determinations about the
credibility of Officer Harris’ testimony. See id.
The Court of Appeals ultimately concluded that the trial court committed plain
error by admitting evidence of the cocaine. Id. at ___, 795 S.E.2d at 376-79. Because
the Court of Appeals ordered a new trial based on defendant’s Fourth Amendment
claims, it did not reach defendant’s ineffective assistance of counsel claim. Id. at ___,
795 S.E.2d at 379. The State petitioned this Court for discretionary review of two
issues: whether defendant’s Fourth Amendment claims were susceptible to plain
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error review and, if so, whether the Court of Appeals correctly found plain error. We
allowed review of both issues.
This Court adopted plain error review in State v. Odom, 307 N.C. 655, 300
S.E.2d 375 (1983). As a general rule, “plain error review is available in criminal
appeals for challenges to jury instructions and evidentiary issues.” Dogwood Dev. &
Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008)
(citations omitted) (first citing Odom, 307 N.C. at 660, 300 S.E.2d at 378; and then
citing State v. Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000), cert. denied,
532 U.S. 997, 121 S. Ct. 1660 (2001)). Even after adopting plain error review,
however, we have continued to indicate that the failure to move to suppress evidence
when required by statute constitutes a waiver of those claims on appeal. See, e.g.,
State v. Hucks, 332 N.C. 650, 652-53, 422 S.E.2d 711, 713 (1992); State v. Maccia, 311
N.C. 222, 227-28, 316 S.E.2d 241, 244 (1984). But we have not squarely addressed
whether plain error review is available when a defendant has not moved to suppress.
See, e.g., State v. Walters, 357 N.C. 68, 85, 588 S.E.2d 344, 354, cert. denied, 540 U.S.
971, 124 S. Ct. 442 (2003). This issue is therefore one of first impression for this
Court.
For guidance, we first turn to the statutory framework that governs the
suppression of unlawfully obtained evidence in our trial courts. N.C.G.S. § 15A-
974(a)(1) states that, “[u]pon timely motion, evidence must be suppressed if . . . [i]ts
exclusion is required by the Constitution of the United States or the Constitution of
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the State of North Carolina.” And N.C.G.S. § 15A-979(d) specifies that “[a] motion to
suppress evidence made pursuant to this Article is the exclusive method of
challenging the admissibility of evidence” on constitutional grounds. (Emphasis
added.) A defendant generally “may move to suppress evidence only prior to trial,”
N.C.G.S. § 15A-975(a) (2017), subject to a few, narrow exceptions that permit a
defendant to move during trial, see id. § 15A-975(b), (c) (2017).
In other words, the governing statutory framework requires a defendant to
move to suppress at some point during the proceedings of his criminal trial. Whether
he moves to suppress before trial or instead moves to suppress during trial because
an exception to the pretrial motion requirement applies, a defendant cannot move to
suppress for the first time after trial. By raising his Fourth Amendment arguments
for the first time on appeal, however, that is effectively what defendant has done here.
When a defendant files a motion to suppress before or at trial in a manner that is
consistent with N.C.G.S. § 15A-975, that motion gives rise to a suppression hearing
and hence to an evidentiary record pertaining to that defendant’s suppression
arguments. But when a defendant, such as defendant here, does not file a motion to
suppress at the trial court stage, the evidentiary record pertaining to his suppression
arguments has not been fully developed, and may not have been developed at all.
To find plain error, an appellate court must determine that an error occurred
at trial. See, e.g., State v. Towe, 366 N.C. 56, 62, 732 S.E.2d 564, 568 (2012). The
defendant, additionally, must demonstrate that the error was “fundamental”—
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meaning that the error “had a probable impact on the jury’s finding that the
defendant was guilty” and “seriously affect[ed] the fairness, integrity, or public
reputation of judicial proceedings.” State v. Grice, 367 N.C. 753, 764, 767 S.E.2d 312,
320-21 (alteration in original) (quoting State v. Lawrence, 365 N.C. 506, 518-19, 723
S.E.2d 326, 334-35 (2012)), cert. denied, 576 U.S. ___, 135 S. Ct. 2846 (2015). But
here, considering the incomplete record and the nature of defendant’s claims, our
appellate courts cannot conduct appellate review to determine whether the Fourth
Amendment required suppression. Defendant asked the Court of Appeals to review
the length of an officer’s stop to determine whether the officer unnecessarily
prolonged it, and to review whether defendant voluntarily consented to a search that
resulted in the discovery of incriminating evidence. Fact-intensive Fourth
Amendment claims like these require an evidentiary record developed at a
suppression hearing. Without a fully developed record, an appellate court simply
lacks the information necessary to assess the merits of a defendant’s plain error
arguments.
When a defendant does not move to suppress, moreover, the State does not get
the opportunity to develop a record pertaining to the defendant’s Fourth Amendment
claims. Developing a record is one of the main purposes of a suppression hearing. At
a suppression hearing, both the defendant and the State can proffer testimony and
any other admissible evidence that they deem relevant to the trial court’s suppression
determination. In this case, though, the trial court did not conduct a suppression
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hearing because defendant never moved to suppress evidence of the cocaine. And
because no suppression hearing took place, we do not know whether the State would
have produced additional evidence at a suppression hearing, or, if the State had done
so, what that evidence would have been. Cf. Cardinale v. Louisiana, 394 U.S. 437,
439, 89 S. Ct. 1161, 1163 (1969) (“Questions not raised below are those on which the
record is very likely to be inadequate, since it certainly was not compiled with those
questions in mind.”). To allow plain error review in a case like this one, therefore,
“would ‘penalize the [g]overnment for failing to introduce evidence on probable cause
for arrest [or other matters bearing on the Fourth Amendment claim] when
defendant’s failure to raise an objection before or during trial seemed to make such a
showing unnecessary.’ ” 6 Wayne R. LaFave, Search and Seizure § 11.7(e), at 584
(5th ed. 2012) (alteration in original) (quoting United States v. Meadows, 523 F.2d
365, 368 (5th Cir. 1975), cert. denied, 424 U.S. 970, 96 S. Ct. 1469 (1976)).
The Court of Appeals’ decision in this case illustrates the problem with
conducting plain error review on an incomplete record. Relying primarily on
Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609 (2015), the Court of Appeals
held that Officer Harris unconstitutionally prolonged the traffic stop in question
beyond the time needed to complete the stop’s mission. See Miller, ___ N.C. App. at
___, 795 S.E.2d at 377-79. The Court of Appeals reviewed Officer Harris’ body camera
footage and then determined that Officer Harris did not have reasonable suspicion to
extend the stop when he asked defendant and Sutton to get out of Sutton’s car. See
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id. at ___, 795 S.E.2d at 378. To have reasonable suspicion, “an officer . . . must
‘reasonably . . . conclude in light of his experience that criminal activity may be
afoot,’ ” State v. Bullock, 370 N.C. 256, 258, 805 S.E.2d 671, 674 (2017) (ellipsis in
original) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968)), based on
“specific and articulable facts” and “rational inferences from those facts,” id. (quoting
Terry, 392 U.S. at 21, 88 S. Ct. at 1880). But Officer Harris never testified at a
suppression hearing in this case. As a result, he never gave testimony for the purpose
of establishing that, among other things, he had reasonable suspicion to extend the
stop. He may have observed something during the traffic stop that was not captured
in his body camera footage and that he did not testify about during the guilt/innocence
phase of the trial. If he had testified, his testimony may have provided a basis—
assuming for the sake of argument that he did not have one otherwise—for
constitutionally extending the traffic stop. We just do not know, because no
suppression hearing occurred.
If the Court of Appeals or this Court were to conduct plain error review of a
suppression issue on an undeveloped record when resolution of that issue required a
developed record, moreover, a defendant could unfairly use plain error review to his
tactical advantage. For instance, a defendant might determine that his chances of
winning a motion to suppress before or at trial are minimal because he thinks that,
once all of the facts come out, he will likely lose. But if we were to allow plain error
review when no motion to suppress is filed and hence no record is created, that same
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defendant might wait to raise a Fourth Amendment issue until appeal and take
advantage of the undeveloped record—a record in which some or all of the important
facts may never have been adduced—to claim plain error. Cf. United States v.
Chavez–Valencia, 116 F.3d 127, 132 (5th Cir.) (“If, at trial, the government assumes
that a defendant will not seek to suppress certain evidence, the government may
justifiably conclude that it need not introduce the quality or quantity of evidence
needed otherwise to prevail.”), cert. denied, 522 U.S. 926, 118 S. Ct. 325 (1997).
And the State would not have a good way of defending against this tactic. On
the one hand, the State could try to present evidence at trial in an attempt to prove
the legality of a search or seizure even when the defendant did not move to suppress
evidence derived from the search or seizure. But if the evidence pertinent to
suppression were not relevant to the question of the defendant’s guilt, then the State
could be thwarted by rules that prohibit the admission of evidence not relevant to
issues at trial. See, e.g., N.C. R. Evid. 402. And even if the State were permitted to
introduce the full range of evidence that pertained to suppression, it would have to
expend prosecutorial resources presenting evidence not directly relevant to a
defendant’s guilt—evidence that supported only the legality of a search or seizure
that the defendant may or may not later challenge on appeal. On the other hand, if
the State chose not to present evidence supporting an unchallenged search or seizure,
it could risk reversal on an undeveloped record under the plain error standard. Cf.
Wainwright v. Sykes, 433 U.S. 72, 86-91, 97 S. Ct. 2497, 2506-09 (1977) (using a
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similar rationale to explain why the lack of a contemporaneous objection required
under state law creates a procedural bar to federal habeas review). If a defendant
must move to suppress to keep from forfeiting even plain error review, however, the
incentive for a defendant to underhandedly put the State in this position disappears.
Defendant fails to distinguish between cases like his, on the one hand, and
cases in which a defendant has moved to suppress and both sides have fully litigated
the suppression issue at the trial court stage, on the other. When a case falls into the
latter category but the suppression issue is not preserved for some other reason, our
appellate courts may still conduct plain error review. For example, in State v. Grice,
the defendant moved to suppress evidence of marijuana plants, and the trial court
held a suppression hearing on whether the plants had been obtained through an
illegal search or seizure. See 367 N.C. at 754-55, 764, 767 S.E.2d at 314-315, 320.
We conducted plain error review, rather than harmless error review, only because
the defendant did not renew his objection to the introduction of the evidence at trial.
Id. at 755, 764, 767 S.E.2d at 315, 320.
Similarly, in State v. Bullock, the defendant moved to suppress evidence of
heroin found in the car that he was driving, and his Fourth Amendment claim was
fully litigated at the trial court stage. See 370 N.C. at 256-57, 805 S.E.2d at 673. So
there was a complete record on the suppression issue for our appellate courts to
review. See id. at 258-61, 805 S.E.2d at 674-76. We thus reviewed video footage from
the dash cam of the officer who had stopped the defendant, along with suppression
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hearing testimony from that same officer, to determine whether the trial court’s
findings of fact were supported by competent evidence. See id. at 260-61, 805 S.E.2d
at 675-76. In a few instances, we also used facts that we independently gleaned from
our review of that video footage in our legal analysis to clarify and supplement the
trial court’s findings of fact. See id. at 261-63, 805 S.E.2d at 676-77. In other words,
we used video footage for limited purposes after a suppression hearing had occurred
and a full evidentiary record had been compiled. That is very different from using
video footage to substitute for a suppression hearing and an evidentiary record, and
making determinations about witness credibility in the process, which is what the
Court of Appeals did here.
In sum, because defendant did not file a motion to suppress evidence of the
cocaine in question, he deprived our appellate courts of the record needed to conduct
plain error review. By doing so, he completely waived appellate review of his Fourth
Amendment claims. Because we hold that the Court of Appeals should not have
conducted plain error review in the first place, we do not need to address (and, based
on our analysis, it would not be possible for us to address) the other issue before us—
namely, whether the Court of Appeals reached the right conclusion in its plain error
analysis. We therefore reverse the decision of the Court of Appeals and remand this
case to the Court of Appeals for consideration of defendant’s ineffective assistance of
counsel claim.
REVERSED AND REMANDED.
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