State v. Parker ( 2017 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-108
Filed: 7 November 2017
Guilford County, No. 14 CRS 67272
STATE OF NORTH CAROLINA
v.
BYRON JEROME PARKER
Appeal by defendant from order entered 18 July 2016 by Judge Susan E. Bray
in Guilford County Superior Court. Heard in the Court of Appeals 22 August 2017.
Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
Hyde, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A.
Goldman, for defendant-appellant.
BRYANT, Judge.
Where the trial court’s findings of fact do not support its conclusion that
defendant was legally seized at the time he consented to a search of his person, we
reverse the trial court order denying defendant’s motion to suppress the contraband
found on his person and remand so that the judgment against him can be vacated.
On 21 April 2014, defendant Byron Jerome Parker was indicted for possession
of cocaine. On 29 June 2016, defendant moved to suppress any evidence obtained as
a result of an unlawful search and seizure. The matter came on for a hearing on 7
STATE V. PARKER
Opinion of the Court
July 2016 in Guilford County Superior Court, the Honorable Susan Bray, Judge
presiding.
The evidence admitted during the hearing tended to show that on 29 January
2014, Greensboro Police Department Officers Matthew Sletten and Travis Cole were
conducting surveillance “on a known drug house” located at 7 Pipers Glen Court in
Greensboro based on complaints of drug activity, drug use, and prostitution. In the
previous month, heroin had been found at the house and four individuals were
arrested. At approximately 4:25 p.m., the officers noted a man, defendant, leave the
residence in a blue truck and then return twenty minutes later. Defendant parked
his truck in the driveway of 7 Pipers Glen Court, exited his vehicle, and walked
toward a woman salting the driveway of a nearby residence. Officer Sletten observed
defendant and the woman yelling at each other, with defendant asking, “Why are you
taking pictures of me?” Believing that the confrontation was going to escalate into a
physical altercation, the officers exited their surveillance vehicle and separated
defendant and the woman. Officer Sletten spoke with defendant, asked for his
identification, and checked his record, verifying that defendant had no pending
warrants. Officer Sletten then asked defendant if he had any narcotics on him.
Defendant responded that he did not. At Officer Sletten’s request, defendant
consented to a search of his person and his vehicle. Pursuant to the search, Officer
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Sletten discovered “small off-white rocks” in defendant’s pants pocket. He arrested
defendant for possession of cocaine.
At the hearing on the motion to suppress, Officer Sletten testified that after
defendant provided his driver’s license and it was determined he had no outstanding
warrants, Officer Sletten continued to talk with defendant but did not immediately
return his driver’s license. Prior to the discovery of the off-white rocks, defendant
was not under arrest. A video of the incident taken from the vantage of Officer Cole’s
body camera was also admitted into evidence. Officer Sletten testified that from the
moment he exited his vehicle and searched defendant, ten minutes transpired. At
the close of the evidence, defendant again moved to suppress evidence obtained as a
result of the search. Defendant argued that he was seized and unlawfully detained
when Officer Sletten requested defendant’s identification and did not return it, but
instead asked for consent to search. After hearing the evidence and the arguments
of counsel, the trial court orally denied defendant’s motion to suppress and on 18 July
entered a written order to that effect.
Preserving his right to appeal the order denying his motion to suppress,
defendant entered a guilty plea to the charge of felony possession of cocaine.
Defendant was sentenced to an active term of 8 to 19 months. The sentence was
suspended, and defendant was placed on supervised probation for a term of 18
months. Defendant appeals the order denying his motion to suppress.
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______________________________________________
On appeal, defendant argues that the trial court erred by denying his motion
to suppress. Defendant contends that his stop was unconstitutional and that in its
order denying his motion to suppress, the trial court committed reversible error by
making unsupported findings of fact and conclusions of law. We agree.
In reviewing the denial of a motion to suppress our
Court
is strictly limited to a determination of
whether the court’s findings are supported by
competent evidence, even if the evidence is
conflicting, and in turn, whether those
findings support the court’s conclusions of
law. If so, the trial court’s conclusions of law
are binding on appeal. If there is a conflict
between the State’s evidence and defendant's
evidence on material facts, it is the duty of the
trial court to resolve the conflict and such
resolution will not be disturbed on appeal.
State v. Veazey, 201 N.C. App. 398, 400, 689 S.E.2d 530,
532 (2009), disc. review denied, 363 N.C. 811, 692 S.E.2d
876 (2010). The trial court’s conclusions of law must be
legally correct, reflecting a correct application of applicable
legal principles to the facts found. We review the trial
court’s conclusions of law de novo.
State v. Brown, 217 N.C. App. 566, 571, 720 S.E.2d 446, 450 (2011) (citations omitted).
In its order denying defendant’s motion to suppress, the trial court made the
following findings of fact and conclusion of law:
1. On January 29, 2104 [sic], Greensboro Police Officers
ML Sletten and Travis Cole were conducting
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Opinion of the Court
surveillance of a known drug house at 7 Pipers Glen
Court.
2. There had been numerous complaints from a neighbor
about drug use, drug activity and prostitution at 7
Pipers Glen. The GPD had previously conducted a
search of the property with consent of the owner and
located heroin and [drug] paraphernalia. That search,
about a month prior to the date in this case, resulted
in 4 arrests.
3. The neighbor who initiated the complaints had
documented activity at 7 Pipers Glen by taking
photographs of people coming and going from the
residence, recording license tags, vehicle descriptions
and the like.
4. This neighbor had contacted Officer Sletten after the
first search and let him know problems were ongoing,
so Officers Sletten and [Cole] set up the surveillance
in an undercover vehicle with tinted windows.
5. Officers Sletten and [Cole] began surveillance around
noon, parking at the bottom of the cul de sac. Around
4:25pm, Officer [Cole] observed Defendant Byron
Jerome Parker leave the residence of 7 Pipers Glen in
a blue pickup truck. He returned twenty minutes later
at 4:45pm.
6. When Defendant Parker returned to the residence, he
backed his truck into the driveway. He got out and
approached the complaining neighbor, who was
salting the driveway at her own house.
7. Officers Sletten and Cole saw [defendant] Parker
throw his arms up and yell at the neighbor.
8. Officer Sletten rolled the window down in his car and
heard Defendant Parker ask neighbor why she was
taking pictures of him. . . .
9. As Officer Sletten observed Defendant Parker and the
neighbor continue to approach each other, he and
Officer Cole decided to break their surveillance and
deescalate the situation before it turned physical.
Sletten was concerned the verbal altercation would
turn into a physical fight. [Defendant] Parker and the
neighbor were within 6–8 feet of each other.
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Opinion of the Court
10. Officers Sletten and Cole exited their unmarked
vehicle. Both officers were in uniform. It was daylight
outside. They approached [defendant] Parker and the
neighbor, [sic] separated them. Officer Cole spoke
with the neighbor, and Officer Sletten talked with
Defendant Parker.
11. Officer Sletten told [defendant] Parker that they had
received drug complaints (verified in the past) and
located narcotics at the 7 Pipers Glen address. Officer
Sletten asked [defendant] Parker for his ID, ran it and
checked for warrants.
12. There were no outstanding warrants for Defendant
Parker.
13. Officer Sletten asked [defendant] Parker if he had any
narcotics on him or in his vehicle and asked for
consent to search both. [Defendant] Parker gave
consent.
14. Officer Sletten located small off-white rocks of what
appeared to be cocaine in Parker’s pants pocket and
arrested him for possession of cocaine.
15. Officer Sletten kept [defendant] Parker’s ID from [the]
time he asked for it until he arrested him for
possession of cocaine.
Officers Sletten and Cole were in the course of
investigating and deescalating a potential altercation
between Defendant Parker and the Pipers Glen neighbor.
In viewing the totality of the circumstances, it was entirely
appropriate for Officers Sletten and Cole to separate the
two, check [defendant] Parker’s ID and ask for consent to
search. . . .
The Court concludes, then, as a matter of law, that there
was no illegal seizure, no fruits of a poisonous tree, and
that the Motion to Suppress should be denied.
On appeal, defendant specifically challenges finding of fact 10 and the trial
court’s conclusory statement that “Officers Sletten and Cole were in the course of
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Opinion of the Court
investigating and de-escalating a potential altercation between Defendant Parker
and the Pipers Glen neighbor.” Defendant contends that according to the video of the
incident, Officer Cole exited his police vehicle and spoke with the homeowner of 7
Pipers Glen Court—the residence under surveillance—and then assisted Officer
Sletten in searching defendant. Defendant further contends that the circumstance
which gave rise to the officers’ intervention—the altercation—quickly evaporated
when the officers intervened: defendant stopped arguing and became “very
compliant.” Therefore, it was only after the de-escalation of the conflict between
defendant and the neighbor that Officer Sletten obtained defendant’s identification,
determined that defendant had no outstanding warrants, and asked defendant for
consent to search. Defendant argues that “[Officer] Sletten did not have reasonable
suspicion to detain [defendant] at any point, but certainly not beyond the point where
concern regarding a potential altercation had evaporated[.] [Defendant]’s consent to
search was obtained during an unlawful seizure.”
We note that Officer Sletten testified during the suppression hearing that “[w]e
intervened to prevent a fight. We approached the two, separated them. My partner
talked to the main complainant while I talked to [defendant].” Therefore, there is
evidence to support the trial court’s finding of fact number 10. See Brown, 217 N.C.
App. at 571, 720 S.E.2d at 450. Furthermore, even presuming defendant’s assertion
is true—that Officer Cole spoke to the homeowner of 7 Pipers Glen Court, the
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Opinion of the Court
residence under surveillance, rather than the neighbor who was arguing with
defendant—the conflict is immaterial, as there is no dispute that Officer Sletten
separated defendant from the neighbor in order to de-escalate the argument. And
whether Officer Cole held a conversation with the neighbor is irrelevant to the
determination of whether defendant was seized illegally.
Defendant’s main argument appears to be that when Officer Sletten failed to
return defendant’s identification after finding no outstanding warrants and after the
initial reason for the detention was satisfied, he instead requested defendant’s
consent to search, the seizure was unlawful, and defendant’s consent was not
voluntarily given. We agree.
“[A] municipal law enforcement officer acting within his territorial jurisdiction
is considered a peace officer who possesses ‘all of the powers invested in law
enforcement officers by statute or common law.’ ” State v. Gaines, 332 N.C. 461, 472,
421 S.E.2d 569, 574 (1992) (quoting N.C. Gen. Stat. § 160A–285 (1987)).
Our United States Supreme Court has held that law
enforcement officers do not violate the Fourth
Amendment’s prohibition against unreasonable seizures
merely by approaching individuals on the street or in other
public places and putting questions to them if they are
willing to listen. Even when police officers have no reason
to suspect that a person is engaged in criminal behavior,
they may “pose questions, ask for identification, and
request consent to search . . . provided they do not induce
cooperation by coercive means.”
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Opinion of the Court
State v. Isenhour, 194 N.C. App. 539, 542, 670 S.E.2d 264, 267 (2008) (alteration in
original) (citations omitted) (quoting United States v. Drayton, 536 U.S. 194, 201, 153
L. Ed. 2d 242, 251 (2002)). “Once the original purpose of the stop has been addressed,
there must be grounds which provide a reasonable and articulable suspicion in order
to justify further delay.” State v. Falana, 129 N.C. App. 813, 816, 501 S.E.2d 358,
360 (1998) (citing Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968)). “In determining
whether the further detention was reasonable, the court must consider the totality of
the circumstances.” State v. Hernandez, 170 N.C. App. 299, 308, 612 S.E.2d 420, 426
(2005) (citation omitted).
In State v. Myles, a divided panel of this Court held that the defendant’s
consent to search his vehicle was given involuntarily where it was obtained during
an “improper” detention. 188 N.C. App. 42, 51, 654 S.E.2d 752, 758, aff'd per curiam,
362 N.C. 344, 661 S.E.2d 732 (2008). As a result, the trial court’s order denying the
defendant’s motion to suppress contraband discovered during the search was
reversed, and the defendant’s conviction vacated. Id. at 51–52, 654 S.E.2d at 758.
The matter evolved during a traffic stop by a law enforcement officer who observed a
vehicle weaving within its lane. Id. at 43, 654 S.E.2d at 753. At the beginning of the
stop, the law enforcement officer identified himself to the driver and passenger (the
defendant), identified the reason for the stop, asked for the driver’s identification and
vehicle registration, and learned that the vehicle was a rental. Id. The officer issued
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Opinion of the Court
a warning but then asked the driver to step out of the vehicle and accompany the law
enforcement officer to his patrol vehicle, where the officer would write a warning
ticket. Id. Before they reached the officer’s patrol vehicle, the officer frisked the
driver but did not find any weapons or contraband. Id. The officer also did not detect
the odor of alcohol. Id. However, the driver’s heartbeat was unusually fast and he
began “sweating profusely,” despite the cool temperature. Id. at 43–44, 654 S.E.2d
at 753–54. Once in the patrol vehicle, the officer asked the driver about his travel
plans. The officer then exited the vehicle in order to speak with the driver’s
passenger—the defendant—who was still seated in the rental car. Id. at 43, 654
S.E.2d at 754. After listening to the defendant answer similar questions about travel
plans, the officer stated that he was suspicious of their stories and called a K-9 unit
for assistance. Id. at 44, 654 S.E.2d at 754. The defendant, who had rented the
vehicle, gave the K-9 officers permission to search the vehicle; marijuana was
discovered in the trunk. Id. at 44, 654 S.E.2d at 754. The defendant was charged
with trafficking in marijuana. Id.
In a pretrial motion, the defendant moved to suppress the evidence, but his
motion was denied. He then entered a guilty plea, preserving his right to appeal the
suppression order. On appeal, this Court noted that during the suppression hearing
the law enforcement officer testified that after issuing the warning ticket, he
“considered the traffic stop ‘completed’ because he had ‘completed all [of his]
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Opinion of the Court
enforcement action of the traffic stop.’ ” Id. at 45, 654 S.E.2d at 755. However, the
driver “was not free to leave because [the officer] felt ‘there was more to the traffic
stop than just failure to maintain a lane.’ ” Id. at 46, 654 S.E.2d at 755. This Court
reasoned that “in order to justify [the law enforcement officer]’s further detention of
[the] defendant, [the officer] must have had [the] defendant’s consent or ‘grounds
which provide a reasonable and articulable suspicion in order to justify further delay’
before he questioned [the] defendant.” Id. at 45, 654 S.E.2d at 755 (citing Falana, 129
N.C. App. at 816, 501 S.E.2d at 360). Upon review, a majority of this Court held that
the record provided insufficient evidence to support a reasonable suspicion
warranting the defendant’s continued detention after the warning ticket was issued.
In order for [the law enforcement officer] to lawfully detain
[the] defendant, [the officer]’s suspicion must be based
solely on information obtained during the lawful detention
of [the driver] up to the point that the purpose of the stop
has been fulfilled. . . . Since [the officer]’s continued
detention of [the] defendant was unconstitutional, [the]
defendant’s consent to the search of his car was
involuntary.
Id. at 51, 654 S.E.2d at 758 (citing State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d
128, 134 (1999); State v. Kincaid, 147 N.C. App. 94, 94, 555 S.E.2d 294, 294 (2001));
see also State v. Pearson, 348 N.C. 272, 498 S.E.2d 599 (1998) (holding the defendant’s
nervousness along with inconsistent statements made by the defendant and the
vehicle passenger did not give rise to a reasonable suspicion of criminal activity). This
Court reversed the trial court order denying the defendant’s motion to suppress
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contraband discovered during the search of his vehicle and vacated his conviction. Id.
at 51–52, 654 S.E.2d at 758.
Although the instant case does not involve a traffic stop, the reasoning in Myles
and cases discussed herein are applicable where, as here, the initial reason for the
stop or detention has been satisfied but law enforcement prolongs the detention. In
Kincaid, this Court quoted United States v. Elliott, 107 F.3d 810 (10th Cir. 1997), for
the proposition “that . . . federal courts ‘have consistently concluded that an officer
must return a driver’s documentation before a detention can end.’ ” Kincaid, 147 N.C.
App. at 99, 555 S.E.2d at 298 (quoting Elliott, 107 F.3d at 814); see also State v.
Jackson, 199 N.C. App. 236, 243, 681 S.E.2d 492, 497 (2009) (“Generally, an initial
traffic stop concludes and the encounter becomes consensual only after an officer
returns the detainee's driver's license and registration.”). The Kincaid Court also
found guidance in State v. Morocco, 99 N.C. App. 421, 393 S.E.2d 545 (1990), in which
the encounter under review was deemed consensual where the law enforcement
officer completed the citation and relinquished the defendant’s license before
requesting permission to search. Kincaid, 147 N.C. App. at 99–100, 555 S.E.2d at
299 (discussing Morocco, 99 N.C. App. 421, 393 S.E.2d 545).
Here, the trial court found that Officers Sletten and Cole exited their police
vehicle when they observed an escalating altercation between defendant and a
neighbor of the residence under surveillance. The officers separated the two. Officer
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Opinion of the Court
Sletten asked defendant for his identification, “ran it[,] and checked for warrants.”
After de-escalating the potential altercation and finding no outstanding warrants,
Officer Sletten failed to return defendant’s identification before pursuing an inquiry
into defendant’s possession of narcotics. In its order, the trial court noted that, based
on the totality of the circumstances, it was “entirely appropriate for [the] officers [] to
separate the two, check [defendant’s] . . . ID and ask for consent to search,” and
concluded defendant’s seizure was thus not illegal.
Interestingly, the trial court’s findings of fact make clear the officers were in
the vicinity due to complaints about a “drug house,” but the encounter between
defendant and law enforcement began distinctly as a result of a potential altercation
between defendant and a neighbor. The trial court’s order fails to provide findings of
fact which would give rise to a reasonable, articulable suspicion that defendant was
otherwise subject to detention. Absent a reasonable and articulable suspicion to
justify further delay,1 retaining defendant’s driver’s license beyond the point of
satisfying the purpose of the initial detention—de-escalating the conflict, checking
defendant’s identification, and verifying he had no outstanding warrants—was
unreasonable. See Falana, 129 N.C. App. at 816, 501 S.E.2d at 360 (“Once the
original purpose of the stop has been addressed, there must be grounds which provide
1 The trial court noted in finding of fact 15 that Officer Sletten kept defendant’s identification
until after defendant was arrested. However, neither the officers nor the trial court indicated that
defendant’s mere presence—including his leaving and returning to the drug house—gave rise to a
reasonable and articulable suspicion to detain him further.
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a reasonable and articulable suspicion in order to justify further [detention].”). Thus,
defendant’s consent to search his person, given during the period of unreasonable
detention, was not voluntary. See Myles, 188 N.C. App. at 51, 654 S.E.2d at 758.
Therefore, defendant’s search was conducted in violation of his rights under the
Fourth Amendment to the United States Constitution. Accordingly, we reverse the
trial court’s order denying defendant’s motion to suppress and remand this matter so
that the judgment against him may be vacated.
REVERSED AND REMANDED.
Judges DAVIS and INMAN concur.
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