State v. Moua ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-839
Filed 18 July 2023
Mecklenburg County, Nos. 19CRS246618-20
STATE OF NORTH CAROLINA
v.
WANG MENG MOUA, Defendant.
Appeal by Defendant from Order entered 15 March 2022 by Judge Lisa Bell
and Judgment entered 2 May 2022 by Judge Karen Eady-Williams in Mecklenburg
County Superior Court. Heard in the Court of Appeals 7 March 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Tirrill Moore
and Special Deputy Attorney General Kristin J. Uicker, for the State.
BJK Legal, by Benjamin J. Kull, for the Defendant.
RIGGS, Judge.
Defendant Wang Meng Moua appeals the order denying his motion to suppress
evidence which was entered prior his guilty plea for trafficking in methamphetamine
by transport, trafficking in methamphetamine by possession, and keeping or
maintaining a vehicle for keeping or selling methamphetamine. Mr. Moua argues he
has an appeal of right under N.C. Gen. Stat § 15A-979(b) (2021), even though he did
not notify the court and the prosecutor of his intent to appeal prior to his entry of a
guilty plea. But on the chance that this Court concluded he did not have a statutory
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right of appeal, Mr. Moua also submitted a petition for writ of certiorari to consider
the merits of his claim. We granted certiorari review in our discretion under separate
order.
After review of the record, we hold that the search was not consensual, and
accordingly, we reverse the denial of the motion to suppress and vacate the judgment.
I. FACTS & PROCEDURAL HISTORY
At 12:59 a.m. on 5 December 2019, Sgt. Garrett Tryon and Officer J. Housa,
with Charlotte-Mecklenburg County Police Department, initiated a traffic stop of Mr.
Moua, for speeding on North Tryon Street near the Interstate 85 connector in
Mecklenburg County. Sgt. Tryon stopped Mr. Moua, who was driving with a
passenger, on a side street and told Mr. Moua that he had paced him at fifty miles
per hour in a thirty-five mile per hour zone on North Tryon Street. Sgt. Tryon asked
Mr. Moua for his license and registration, and he also asked the passenger to provide
his license. Both Mr. Moua and his passenger cooperated and provided their
identification; both Sgt. Tryon and Officer Housa were calm and professional in
executing the stop, which was recorded on bodycam.
Sgt. Tryon went back to his vehicle and ran the information through different
law enforcement databases while Officer Housa stood by the passenger door of Mr.
Moua’s car, shining his flashlight into the vehicle. After about two minutes of
checking, Sgt. Tryon learned that Mr. Moua was on active probation and had prior
charges; however, Mr. Moua did not have any active warrants. Sgt. Tryon then
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returned to Mr. Moua’s car and said, “Sir come out and talk to me real quick.” As he
was speaking to Mr. Moua, Sgt. Tryon reached through the open window, unlocked
and opened the door.
As soon as Mr. Moua walked to the back of the vehicle, Sgt. Tryon handed back
Mr. Moua’s license and registration. Sgt. Tryon had the following conversation with
Mr. Moua:
SGT. TRYON: Come over here. Here is your stuff back,
man. Um. Look. You gotta slow down. 35 is 35, right? I
get it, North Tryon used to be, like 55, like three years ago.
You’ve been living out here for a while?
MR. MOUA: Yeah.
SGT. TRYON: All right. Um. I see you got some charges
in the past, you’re on probation.
MR. MOUA: Yeah.
SGT. TRYON: You squared away? You straight now?
MR. MOUA: Yeah.
SGT. TRYON: All right. You been checking in?
MR. MOUA: Oh yeah.
SGT. TRYON: Are you unsupervised or –?
MR. MOUA: Supervised.
SGT. TRYON: Supervised. Out of Mecklenburg County or
–?
MR. MOUA: Ah it’s Cabarrus.
SGT. TRYON: Cabarrus County. Cool. Hey, man, you
have anything on you or in the car –
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MR. MOUA: No.
SGT. TRYON: –that I should be worried about?
MR. MOUA: No.
SGT. TRYON: You wouldn’t mind if I check, right?
MR. MOUA: Ya, go ahead.
SGT. TRYON: Mind if I pat you down really quick?
MR. MOUA: Ya.
Sgt. Tryon performed a pat down that did not uncover any contraband. After
the pat down, Sgt. Tryon began to search the vehicle; meanwhile, Mr. Moua smoked
a cigarette on the side of the road. Within fifteen seconds of initiating the search,
Sgt. Tryon noticed a bag sticking out from under the driver’s seat containing a white
powdery substance. After discovering the bag, Sgt. Tryon walked over to Mr. Moua,
placed him in handcuffs, and then continued to search the vehicle.
On 16 December 2019, Mr. Moua was indicted on one count each of trafficking
methamphetamine (more than 200 but less than 400 grams) by transport, trafficking
methamphetamine (more than 200 but less than 400 grams) by possession and
keeping or maintaining a vehicle for keeping or selling methamphetamine. On 26
April 2021, the State filed superseding indictments on the two trafficking counts to
lower the mass of methamphetamine to more than 28 but less than 200 grams.
Mr. Moua moved to suppress the evidence obtained during the search. The
trial court heard this motion on 10 March 2022. During that hearing, Sgt. Tryon
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testified that he typically asks people to get out of the vehicle either for officer safety
or privacy reasons. He testified that in this case, he asked Mr. Moua to step out of
the vehicle so that he could ask him about his probation away from the passenger.
Additionally, Sgt. Tryon testified that in his experience, owner-operators are more
likely to consent to a search of the vehicle when they are separated from their vehicle.
During his testimony, Mr. Moua’s counsel asked Sgt. Tryon about his reason for
questioning Mr. Moua about his probation; Sgt. Tryon testified that it was “a
conversation piece.” Sgt. Tryon testified that, in his opinion, the purpose of the traffic
stop concluded when he returned Mr. Moua’s driver’s license and registration.
After the motion to suppress hearing, the trial court issued an order denying
the motion to suppress. In that order, the court made twenty-one findings of facts,
including:
8. Upon re-approaching the [D]efendant, Sgt. Tryon
requested the [D]efendant step out of the vehicle to speak
with him, which the [D]efendant consented to doing. Sgt.
Tryon said it was common practice for him and officers to
ask occupants out of their vehicles during traffic stops for
safety and privacy purposes.
10. Almost immediately upon the [D]efendant and Sgt.
Tryon getting to the back of the [D]efendant’s vehicle, Sgt.
Tryon returned all of the documents back to the
[D]efendant and the two briefly discussed the [D]efendant
speeding and Sgt. Tryon gave him a warning for the
speeding.
11. After concluding the purpose for the stop, Sgt. Tryon
engaged in a consensual conversation with the
[D]efendant about his probation and asked for consent to
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search his car and person.
12. The [D]efendant freely and voluntarily gave consent
for Sgt. Tryon to search his car and person.
The trial court also made twelve conclusions of law, including:
4. Almost immediately upon stepping out of the vehicle,
Sgt. Tryon handed the [D]efendant his documents back and
gave him a verbal warning for speeding.
5. At that point in time, this [c]ourt finds the reason for
the traffic stop was concluded. The following conversation
and actions after were a consensual encounter between
Sgt. Tryon and the [D]efendant. A reasonable person in
the [D]efendant[’]s position would have felt free to leave or
free to refuse to cooperate at that point and terminate the
encounter.
12. In viewing the totality of the circumstances and the
evidence before this [c]ourt . . .. Sgt. Tryon returned the
[D]efendant[’]s documents to him almost immediately and
the traffic stop concluded once Sgt. Tryon handed the
[D]efendant back all of his documents and gave him a
verbal warning for speeding. The conversations and
actions beyond that point were consensual in nature.
Thereafter, the [D]efendant was no longer seized, the
[D]efendant[’]s Constitutional rights were not violated
within the meaning of the Fourth Amendment, and the
[D]efendant[’]s consent to search his vehicle and person
was freely and voluntarily [sic].
After the denial of his motion to suppress, Mr. Moua subsequently pleaded
guilty as charged to all charges on 2 May 2022. Mr. Moua did not seek nor secure
any agreement with the prosecutor to reduce or dismiss the charges. At the plea and
sentencing hearing, the State submitted, as a factual basis for the plea, the gallon-
sized Ziploc bag which Sgt. Tryon found under the seat containing 194.21 grams of
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methamphetamine. The State indicated that after Sgt. Tryon completed the search
of the car he read Mr. Moua his Miranda rights, and then Mr. Moua confessed that
the methamphetamine in the vehicle was his; neither event appears on the video
recording of the stop. Mr. Moua did not indicate his intent to appeal the motion to
suppress prior to pleading guilty, and neither the colloquy nor the plea transcript
asked Mr. Moua if he wished to reserve any rights to appeal or enter a conditional
plea. However, Mr. Moua made an oral notice of appeal on the record during this
sentencing hearing.
II. ANALYSIS
Mr. Moua argues that he has the right to appeal the denial of the motion to
suppress upon entry of his guilty plea according to N.C. Gen. Stat. § 15A-979(b)
(2021). Generally, notice of intent to appeal is required to ensure the right to appeal
under the statute; however, this Court held in State v. Jonas, that notice of intent to
appeal is not required when a defendant does not negotiate a plea agreement and
simply pleads guilty as charged. State v. Jonas, 280 N.C. App. 511, 516, 867 S.E.2d
563, 567 (2021), review allowed, writ allowed, 876 S.E.2d 272 (2022). The ruling in
Jonas is currently stayed; therefore, Mr. Moua also filed a petition for writ of
certiorari. In our discretion, we granted his petition for writ of certiorari under
separate order.
On appeal, Mr. Moua argues that at the time he gave consent to search his car,
he was unlawfully seized, and therefore, his consent was invalid. We agree.
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A. Appellate Jurisdiction
In North Carolina, a defendant’s right to pursue an appeal from a criminal
conviction is a creation of statute. State v. McBride, 120 N.C. App. 623, 624, 463
S.E.2d 403, 404 (1995). Generally, a defendant who pleads guilty does not have a
statutory right of appeal. See N.C. Gen. Stat. § 15A-1444(e) (2021). However, the
General Assembly has, by statute, allowed a defendant to appeal an adverse ruling
in a pretrial suppression hearing despite the defendant’s conviction based upon a
guilty plea. State v. Reynolds, 298 N.C. 380, 395, 259 S.E.2d 843, 852 (1979).
According to N.C. Gen. Stat. § 15A-979(b), an order denying a motion to suppress
evidence may be reviewed upon an appeal from a judgment of conviction, including a
judgment where the defendant pleads guilty. N.C. Gen. Stat. § 15A-979(b) (2021).
This statutory right to appeal is conditional and not absolute. State v. McBride, 120
N.C. App. 623, 624, 463 S.E.2d 403, 404 (1995).
The North Carolina Supreme Court has held that when a defendant intends to
appeal from a denial of a motion to suppress pursuant to N.C. Gen. Stat. § 15A-979(b),
they must give notice of their intent to the prosecutor and the court before plea
negotiations are finalized, or they will waive the appeal of right provisions of the
statute. State v. Reynolds, 298 N.C. at 397, 259 S.E.2d at 853. The Court reasoned
that the plea-bargaining table is not a “high stakes poker game;” it is much closer to
arm’s length bargaining. Id. Therefore, it would be inappropriate for defendants to
keep their intent to appeal a secret during negotiation to get the benefit of the bargain
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and then surprise the prosecution with an appeal of the conviction. Id.In December 2021, this Court addressed the notice requirement in the context
of a unilateral guilty plea given absent any bargaining with the State. This Court
held that where a defendant does not plead guilty pursuant to a plea arrangement
with the State, the defendant is not required to give notice of intent to appeal prior
to the plea of guilty to invoke his statutory right to appeal. State v. Jonas, 280 N.C.
App. 511, 516, 867 S.E.2d 563, 567 (2021). The Court reasoned that the concerns the
Supreme Court was addressing in Reynolds are not present in a scenario where a
defendant is not receiving any benefit of a plea agreement; the State has not been
“trapped into agreeing to a plea bargain only to later have [d]efendant contest that
bargain.” Id. We agree with this analysis.
Jonas, however, was stayed by our Supreme Court on 21 December 2021. State
v. Jonas, 380 N.C. 301, 865 S.E.2d 886 (2021). Whether the mandate in a stayed
decision is binding precedent is unclear in North Carolina jurisprudence. Mr. Moua
points to Hunnicutt v. Griffin, which says that a case becomes binding upon filing.
Hunnicutt v. Griffin, 76 N.C. App. 259, 263, 332 S.E.2d 525, 527 (1985). Thus,
Hunnicutt would suggest that the rule in Jonas confirms Mr. Moua’s right of appeal.
In contrast, the State argues that according to State v. Gonzalez a stayed case does
not have precedential authority. 263 N.C. App. 527, 530, 823 S.E.2d 886, 888 (2019).
In State v. Gonzalez, though, this Court addressed a conflict in precedent between
several Court of Appeals decisions and declined to follow the stayed case because it
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conflicted with prior precedent. Id.Strictly speaking, Jonas does not conflict with the ruling in Reynolds; the latter
did not address the type of unilateral guilty plea in the former. Jonas only clarifies
the universe of scenarios in which the Reynolds notice requirement applies. Further,
at the time of the plea and sentencing hearing in this case, the Supreme Court had
not issued an opinion in Jonas.
The facts in this case are similar to Jonas. Mr. Moua did not negotiate any
plea agreement with the State, and he did not receive any benefit from the State. The
State argues that even when a defendant does not negotiate a plea with the State, a
defendant is still required to provide notice of intent to appeal in addition to the notice
of appeal. At oral argument, the State asserted that even without a plea agreement,
Mr. Moua needed to give notice of intent to appeal as he was pleading guilty “prior to
pronouncement of sentence” in addition to giving notice of appeal at the conclusion of
the hearing to meet the requirements under Reynolds. We fail to see any meaningful
value to the State in requiring a defendant, who is unilaterally pleading as charged,
to provide notice of intent to appeal as he enters his plea in addition to providing
notice of appeal only a few minutes later in the same hearing.
However, because Jonas has been stayed by the Supreme Court, we considered
Mr. Moua’s petition for writ of certiorari as an alternate and appropriate basis for our
review. In light of the unsettled law in this area, and our ultimate holding, we
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granted certiorari under separate order to consider the merits of his appeal.1
B. Motion to Suppress
Mr. Moua argues that his consent to search the car was not voluntary because,
at the time he gave consent, he was unlawfully seized under the Fourth Amendment.
He challenges several findings of fact—which the trial court used to support the
denial of the motion to suppress—as unsupported by competent evidence and argues
that several findings of fact are in reality conclusions of law that this Court should
review de novo.
After review, we agree that Mr. Moua was unlawfully seized when the police
asked for consent to search his car. Based upon the totality of the circumstances, a
reasonable person would not have felt free to terminate this encounter and a search
of the car was not within the scope of the original stop. Therefore, his consent was
not voluntary and the motion to suppress was erroneously denied. While we hold
that the trial court had competent evidence upon which to base its findings of fact,
the trial court comingled conclusions of law with findings of fact. Accordingly, we
consider those conclusions of law de novo.
1. Standard of Review
This Court’s review of a trial court’s denial of a motion to suppress is strictly
limited to determining whether the trial court’s underlying findings of fact are
1 Judge MURPHY dissented from this grant of certiorari in the order and would have found
jurisdiction existed on the grounds described supra.
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supported by competent evidence and whether those factual findings, in turn, support
the ultimate conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618,
619 (1982). Where the trial court’s findings of fact are not challenged on appeal, they
are deemed to be supported by competent evidence and binding on appeal. State v.
Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735–36 (2004). The trial court’s
conclusions of law are reviewed de novo. State v. Hernandez, 170 N.C. App. 299, 304,
612 S.E.2d 420, 423 (2005).
When a trial court’s findings comingle findings of facts with conclusions of law,
we give appropriate deference to the findings of fact and review the portions of those
findings that are conclusions of law de novo. State v. Icard, 363 N.C. 303, 308, 677
S.E.2d 822, 826 (2009). The North Carolina Supreme Court has defined findings of
fact as statements of what happened in space and time. State v. Parisi, 372 N.C. 639,
655, 831 S.E.2d 236, 247 (2019). A conclusion of law, however, requires the exercise
of judgment or the application of legal principles to the facts found. State v.
McFarland, 234 N.C. App. 274, 284, 758 S.E.2d 457, 465 (2014) (internal quotes and
citation omitted). Therefore, when statements identified as findings of fact required
the trial court to exercise its judgment or apply law to come to a determination, those
statements are considered as conclusions of law.
2. Findings of Fact
Mr. Moua specifically challenges the trial court’s finding of fact 10 that Sgt.
Tryon had given Mr. Moua a warning for speeding as unsupported by evidence. The
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finding states that: “Almost immediately upon the [D]efendant and Sgt. Tryon getting
to the back of the [D]efendant’s vehicle, Sgt. Tryon returned all of the documents back
to the [D]efendant and the two briefly discussed the [D]efendant speeding and Sgt.
Tryon gave him a warning for speeding.”
However, the competent evidence presented at the motion to suppress hearing
supports this finding. The video footage of the incident, which was introduced as
evidence during the motion to suppress hearing, shows that Sgt. Tryon said to Mr.
Moua “You gotta slow down. 35 is 35, right? I get it, North Tryon used to be, like 55,
like three years ago.” The bodycam footage provided the trial court with competent
evidence as to what Sgt. Tryon said and the statement plainly put Mr. Moua on notice
to slow down and desist from going faster than the current speed limit on North Tryon
Street. Accordingly, we hold that the trial court had competent evidence upon which
to make the finding of fact that Sgt. Tryon gave Mr. Moua a warning. However, the
key issue, which we discuss later, is whether this warning is sufficient, under the
totality of the circumstance, to communicate to a reasonable person that the purpose
of the stop had ended, and the person was free to terminate the encounter.
Additionally, Mr. Moua challenges finding of fact 13 that Mr. Moua “freely and
voluntarily” consented to the search by arguing that the finding is actually a
conclusion of law. The “question of whether consent to a search was in fact voluntary
or was the product of duress or coercion, expressed or implied, is a question of fact to
be determined based upon the totality of the circumstances.” State v. Hall, 268 N.C.
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App. 425, 429, 836 S.E.2d 670, 674 (2019) (quoting Schneckloth v. Bustamonte, 412
U.S. 218, 227, 36 L.Ed.2d 854, 863 (1973)). Here, the competent evidence does not
support the finding of fact that Mr. Moua “freely and voluntarily” consented to the
search. Mr. Moua had just been separated from his vehicle through a show of force
by Sgt. Tryon, where Sgt. Tryon had reached through the car window, unlocked and
opened the car door. Sgt. Tryon was questioning Mr. Moua behind the car about his
probation status with the State while his partner was shining his flashlight in the
car. Sgt. Tryon presented the questions in a rapid-fire manner which quickly
transitioned into a request to search the car. Based upon the totality of the
circumstances, this finding of fact is not supported by competent evidence.
3. Conclusions of Law
Additionally, Mr. Moua argues that the trial court comingled findings of facts
with conclusions of law. Specifically, Mr. Moua asserts that findings of fact 11 and
12—that the stop concluded prior to Sgt. Tryon's request to search and the request
came during a “consensual” conversation—are actually conclusions of law. These
items appear in the order as both findings of fact and conclusions of law. The ultimate
conclusion of the trial court was that the purpose of the traffic stop ended when Sgt.
Tryon returned Mr. Moua’s documents, and the ensuing conversation were
consensual; therefore, when Mr. Moua gave consent to search the car it was voluntary
and consensual because a reasonable person would feel free to leave or refuse to
cooperate. We review these conclusions de novo. See State v. Reed, 257 N.C. App.
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524, 530, 810 S.E.2d 245, 249, aff”d, 373 N.C. 498, 838 S.E.2d 414 (2020) (explaining
that while a traffic stop only concludes and becomes consensual after an officer
returns the detainee’s paperwork, the governing inquiry is whether under the totality
of the circumstances, a reasonable person in the detainee’s position would believe
they are free to leave). See also State v. Icard, 363 N.C. at 308, 677 S.E.2d at 826(stating that whether an officer’s actions amount to a show of authority is a conclusion
of law).
4. Consent to search was not valid
On appeal, Mr. Moua argues that when he gave consent to search his car, he
was still “seized” within the meaning of the Fourth Amendment because the traffic
stop was unlawfully extended. Therefore, his consent was invalid. We agree.
The Fourth Amendment to the U.S. Constitution provides that “the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated. . ..” United States v. Mendenhall, 446
U.S. 544, 550, 64 L. Ed. 2d 497, 507 (1980). Similarly, the North Carolina
Constitution, Article 1, Section 20 guarantees the right of people to be secure in their
person and property and free from unreasonable search. State v. Arrington, 311 N.C.
633, 319 S.E.2d 254 (1984).
When a party gives consent to a search while they are seized or when the
bounds of an investigative stop have been exceeded, the consent is invalid. Florida
v. Royer, 460 U.S. 491, 501, 75 L. Ed. 2d 229, 239 (1983) (emphasis added). Stopping
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an automobile and detaining its occupants constitutes a “seizure” within the meaning
of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 59 L. Ed. 2d 660,
667 (1979). A traffic stop is permitted when an officer sees a motorist committing a
violation or when the officer has a reasonably articulable suspicion that there is
criminal activity afoot. State v. Heien, 226 N.C. App. 280, 286, 741 S.E.2d 1, 5 (2013).
Generally, the allowable duration of police inquiry in the traffic-stop context is
determined by the seizure’s “mission”—e.g., to address the traffic violation that
warranted the stop or to attend to related safety concerns.2 State v. Bullock, 370 N.C.
256, 258, 805 S.E.2d 671, 673 (2017).
The return of documents would render further interaction voluntary and
consensual only if a reasonable person under the circumstances would believe that
they are free to leave or disregard the officer’s request for information.” Id. (quoting
State v. Kincaid, 147 N.C. App. 94, 99, 555 S.E.2d 294, 299 (2001)). Once the purpose
of the traffic stop has concluded, there is nothing that precludes a police officer from
asking questions of a citizen; however, the interaction must be consensual and devoid
of a show of authority or force on the part of law enforcement in order to avoid
becoming a seizure within the scope of the Fourth Amendment. United States v.
2 The State submitted a Memorandum of Authority presenting cases that justify the request
for a motorist to exit the car during a traffic stop for safety concerns. The State did not advance that
argument at the trial court level or in its appellate brief. The Rules of Appellate Procedure do not
allow parties to add additional arguments through a Memorandum of Additional Authorities. N.C. R.
App. P. 28(g) (2022). The scope of appeal is limited to issues presented in the briefs. N.C. R. App. P.
28(a).
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Mendenhall, 446 U.S. at 552, 64 L. Ed. 2d at 508.
Here, it is undisputed that the initial traffic stop was lawful. However, the
scope of detention for this traffic stop, “must be carefully tailored to its underlying
justification.” State v. Morocco, 99 N.C. App. 421, 427–28, 393 S.E.2d 545, 549 (1990)
(quoting Florida v. Royer, 460 U.S. at 500, 75 L.Ed.2d at 238). Sgt. Tryon had the
authority to stop Mr. Moua for speeding when he paced Mr. Moua driving fifty-five
miles per hour in a thirty-five mile per hour zone. Beyond determining whether to
issue a traffic ticket for the infraction, the reasonable duration of a traffic stop may
include ordinary inquiries incident to the traffic stop including checking the driver’s
license, determining whether there are outstanding warrants against the driver, and
inspecting the automobile’s registration and proof of insurance. State v. Bullock, 370
N.C. at 257, 805 S.E.2d at 673 (2017) (citing Rodriguez v. United States, 575 U.S. 348,
355, 191 L. Ed. 2d 492, 499 (2015)). Sgt. Tryon completed all these tasks. He ran the
driver’s information through different law enforcement databases. After about two
minutes of checking, Sgt. Tryon learned that Mr. Moua did not have any active
warrants.
When Sgt. Tryon returned the documentation to Mr. Moua and gave him a
verbal warning about speeding, the authority for the seizure ended. Sgt. Tryon
needed reasonable articulable suspicion of a crime to extend the stop beyond that
point and the State has not argued that reasonable articulable suspicion existed to
extend the traffic stop. See Rodriguez v. United States, 575 U.S. at 354, 191 L. Ed.
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2d at 498; See also State v. Myles, 188 N.C. App. 42, 45, 654 S.E.2d 752, 754 (holding
that when the original purpose of the stop has been addressed, there must be grounds
that provide a reasonable and articulable suspicion to justify further delay) aff”d per
curium, 362 N.C. 344, 661 S.E.2d 732 (2008).
Therefore, to determine whether the encounter was unlawfully extended, as
Mr. Moua argues or a voluntary encounter, as the State argues, we consider whether,
based upon the totality of the circumstances, a reasonable person would have felt free
to leave prior to the request to search. In a scenario where a reasonable person would
feel free to leave, the encounter after the documents were returned would be a
voluntary encounter, and the consent may be valid. State v. Heien, 226 N.C. App.
280, 287, 741 S.E.2d 1, 6 (2013). However, if the seizure was unlawfully prolonged,
then consent was invalid. Rodriguez v. United States, 575 U.S. at 351, 191 L. Ed. 2d.
at 496. Neither the subjective beliefs of law enforcement nor those of the defendant
is dispositive of the question of whether a defendant is seized within the meaning of
the Fourth Amendment; instead, the appropriate inquiry is whether a reasonable
person would believe they are free to terminate the encounter. State v. Freeman, 307
N.C. 357, 360, 298 S.E.2d 331, 333 (1983).
The return of the documents is not a bright line that automatically and
inarguably turns a seizure into a consensual encounter. We must consider the return
of the document in the context of the entire encounter. Moments before the return of
the documents, Sgt. Tryon had made a show of authority to remove Mr. Moua from
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his vehicle and instructed him to stand behind the vehicle. The video shows that Sgt.
Tryon did not phrase his direction as a question, instead directing, albeit politely: “Sir
come out and talk to me real quick.” Further, Sgt. Tryon reached into the car,
unlocked, and opened the door, further suggesting that whether to exit the vehicle
was not up to Mr. Moua. The second uniformed police officer was still standing by
the passenger side of the car, shining his flashlight into the car. Sgt. Tryon did not
tell Mr. Moua that the purpose for the traffic stop had concluded or even ask if he
could question him about other topics. During the motion to suppress hearing, Sgt.
Tryon testified that he removed Mr. Moua from his car, not for safety reasons but for
privacy reasons and because people are more likely to consent to a search when they
are separated from their vehicle.3 No written citation or warning was issued, nor was
there any indication from Sgt. Tryon that the traffic stop had ended. Sgt. Tryon
immediately began questioning Mr. Moua about his probation status and whether he
was compliant with the terms of his probation—questions directly implicating Mr.
Moua’s continued supervisory relationship with the State.
In the United States, the social contract that underpins our system of
government is one premised on the fact that we cede the absolute nature of some of
our individual rights in order to secure group safety and order. See United States v.
3 Although this fact may be viewed as one reflective of the subjective intent of Sgt. Tryon,
which we have identified as not part of the Fourth Amendment analysis, we think it provides context
for how certain patterns and practices are employed in attempts to obtain consent that may impact
how reasonable people perceive their ability to withhold consent.
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Opinion of the Court
Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 615 (1975). That agreement
creates an inherent power differential between law enforcement and citizens. Even
if Sgt. Tryon intended to have a consensual conversation with Mr. Moua, we must
objectively consider whether a reasonable person who is being questioned about their
probation status on the side of a dark road in the middle of the night after being
pulled out of their vehicle by a uniformed police officer would feel free to turn his back
on the officer, walk back to their car, and drive away. After a review of the totality
of this four-minute and forty-second encounter, we hold that a reasonable person in
this situation would not have felt free to terminate the encounter even after the police
officer returned his driver’s license and registration four minutes and twelve seconds
into the encounter. Therefore, the seizure was not rendered consensual by the return
of the documents, the request to search was during an unlawful extension of the
traffic stop, and Mr. Moua’s consent to search was invalid.
In its brief, the State argues that the encounter between Sgt. Tryon and Mr.
Moua was consensual based upon United States v. Mendenhall, 446 U.S. 544, 64 L.
Ed. 2d 497 (1980). However, the facts in Mendenhall are distinguishable from the
facts in this case. In Mendenhall, two plainclothes officers, who did not have any
visible weapons, approached the defendant in the Detroit Metropolitan airport
concourse during the morning. Id. at 555, 64 L. Ed. 2d at 510. The officers requested,
not demanded, to see the defendant’s identification. Id. The Court held that the
officer’s conduct without more was insufficient to find a constitutional infringement.
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Opinion of the Court
Id. By contrast, the instant case presents those facts that would convert Mendenhall
into a constitutional infringement. Here, the uniformed police officers displayed,
although they did not draw, weapons. The encounter occurred on a dark street,
largely deserted, in the middle of the night. Further, in a show of authority, Sgt.
Tryon reached into the window, unlocked and opened the car door, and told
Defendant to get out of the car—essentially taking away any option for Mr. Moua to
decline to follow Sgt. Tryon’s instructions. Sgt. Tryon’s conduct was sufficient to
establish that a reasonable person would not feel free to terminate the encounter.
The State also points to State v. Kincaid and State v. Heien to support their
contention that a reasonable person would have felt free to terminate this type of
encounter. The State’s argument is not persuasive. In State v. Kincaid, the police
officer specifically told the defendant the reason for the stop had concluded, and the
officer asked if he could question the defendant on another topic. State v. Kincaid,
147 N.C. App. at 100, 555 S.E.2d at 299. Here, Mr. Moua was not told that the reason
for the stop had concluded, and Sgt. Tryon did not ask to question him on other topics.
In State v. Heien, this Court held that a short encounter after the return of the license
was consensual. 226 N.C. App. 280, 289, 741 S.E.2d 1, 6 (2013). However, the
defendant in Heien was not the driver of the automobile, and the police officer told
the driver that he was free to leave before asking the defendant, who was the
passenger and owner of the vehicle, for consent to search the vehicle. State v. Heien,
214 N.C. App. 515, 516, 714 S.E.2d 827, 828 (2011) rev’d, 366 N.C. 271, 737 S.E.2d
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STATE V. MOUA
Opinion of the Court
351 (2012). Here, Sgt. Tryon never told Mr. Moua that he was free to leave. Thus,
we find the facts here render Heien largely inapplicable.
As to the appropriate remedy, the State, for the first time at oral argument,4
argued that even if this Court reversed the order denying the motion to dismiss, we
should not vacate the judgment because it is based upon a guilty plea. However, the
Legislature specifically created the right to appeal a denial of the motion to suppress
from a guilty plea or a conviction, and the right does not exist until there is a guilty
plea or conviction. N.C. Gen. Stat. § 15A-979(b). This Court only gains jurisdiction
to consider the denial of the motion to suppress when the trial court entered a final
judgment. State v. Horton, 264 N.C. App. 711, 714, 826 S.E.2d 770, 773 (2019). The
plain language of the statute controls, and it explicitly provides relief after a guilty
plea. Therefore, the appropriate remedy is to vacate the judgment and remand.
Based upon the totality of the circumstances, we hold that the seizure was
unlawfully extended, and Mr. Moua was not engaged in a consensual conversation
with law enforcement. A reasonable person would not have felt free to terminate this
encounter, rendering Mr. Moua’s consent invalid. Therefore, we hold that he was
unlawfully seized under the Fourth Amendment, and the consent to search the
vehicle was not freely and voluntarily given.
4 As previously noted, the addition of new arguments not contained in the brief is a violation
of the North Carolina Rules of Appellate procedure. It was improper for the State to raise this new
argument at oral argument because it was not included in their brief.
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Opinion of the Court
III. CONCLUSION
Upon careful consideration of the issues presented, we hold that at the time
the police officer asked for consent to search his car, Mr. Moua was unlawfully seized
under the Fourth Amendment and did not, as a matter of law, freely and voluntarily
give consent to the requested search. Therefore, the search violated his Fourth
Amendment rights. Accordingly, we reverse the order denying the motion to
suppress, vacate the judgment, and remand for further proceedings before the trial
court.
REVERSED AND VACATED.
Judges MURPHY and ARROWOOD concur.
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