State v. Michael ( 2023 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA22-846
Filed 19 December 2023
Davidson County, No. 19 CRS 53826
STATE OF NORTH CAROLINA
v.
KEVIN BRIAN MICHAEL, Defendant.
Appeal by defendant from judgment entered 3 February 2022 by Judge Lori I.
Hamilton in Davidson County Superior Court. Heard in the Court of Appeals 4
October 2023.
Attorney General Joshua H. Stein, by Assistant Attorney General Matthew W.
Bream, for the State.
Kimberly P. Hoppin, for the Defendant.
DILLON, Judge.
Defendant Kevin Brian Michael appeals his conviction for possession of a
controlled substance. We conclude that Defendant received a fair trial, free of
reversible error.
I. Background
On 11 July 2019, Defendant was driving with two passengers. He was pulled
over by Officer Kattner of the Thomasville police for failing to yield.
During the stop, Officer Kattner called another officer, Officer Rowe, to the
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Opinion of the Court
scene. At the conclusion of the traffic stop, Officer Kattner returned to Defendant
and the passengers their identification cards and told them that they were free to go.
However, based on the nervous behavior of Defendant and the other
passengers, Officer Kattner asked Defendant for permission to search the vehicle.
Defendant stated that he was on probation and that, therefore, he was required to
allow the search. Officer Kattner again asked for Defendant’s consent, whereupon
Defendant consented.
During the search of the vehicle, Officer Kattner found cocaine and drug
paraphernalia. Defendant and the two occupants were arrested.
Defendant filed a motion to suppress the results of the search, which the trial
court denied. Defendant renewed his motion prior to jury selection, and the trial
court reconfirmed its ruling. However, Defendant did not object during the trial when
the State introduced the results of the search into evidence. Defendant was convicted
of possession of a controlled substance. He appeals.
On appeal, Defendant argues that the search violated his Fourth Amendment
right against unreasonable search and seizure, and further, that the trial court erred
when it denied Defendant’s motion to dismiss because there was insufficient evidence
that he knowingly possessed cocaine.
II. Analysis
Defendant argues that the trial court erred by not suppressing the evidence of
the search and by not granting his motion to dismiss. We address each argument in
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Opinion of the Court
turn.
A. Motion to Suppress
We first consider whether Defendant’s Fourth Amendment right was violated
by Officer Kattner’s search of the vehicle.
Our appellate review is limited to plain error, as Defendant failed to object
during the trial to the admission of cocaine found in the vehicle. State v. Golphin,
352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000) (“[A] motion in limine [is] not sufficient
to preserve for appeal the question of admissibility of evidence if the defendant does
not object to that evidence at the time it is offered at trial.”). Plain error occurs if
“absent the error, the jury would have probably reached a different verdict.” State v.
Faison, 330 N.C. 347, 361, 411 S.E.2d 143, 151 (1991).
Both the federal and our state constitutions generally render evidence obtained
from a suspect in violation of the Fourth Amendment inadmissible at trial. Mapp v.
Ohio, 367 U.S. 643 (1961); State v. McKinney, 361 N.C. 53, 58, 637 S.E.2d 868, 872
(2006).
“A traffic stop is a seizure even though the purpose of the stop is limited and
the resulting detention quite brief.” State v. Barnard, 362 N.C. 244, 246, 658 S.E.2d
643, 645 (2008). “[R]easonable suspicion is the necessary standard for traffic stops.”
State v. Styles, 362 N.C. 412, 415, 665 S.E.2d 438, 440 (2008). Further, “the duration
of a traffic stop must be limited to the length of time that is reasonably necessary to
accomplish the mission of the stop.” State v. Bullock, 370 N.C. 256, 257, 805 S.E.2d
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671, 673 (2017).
“An investigation unrelated to the reasons for the traffic stop must not prolong
the roadside detention.” State v. Reed, 373 N.C. 498, 509, __ S.E.2d __, __ (2020). To
prolong a detention “beyond the scope of a routine traffic stop” requires that an officer
“possess a justification for doing so other than the initial traffic violation that
prompted the stop in the first place”, which requires “either the driver’s consent or a
‘reasonable suspicion’ that illegal activity is afoot.” Id. at 510, __ S.E.2d at __.
Here, Officer Kattner testified that as she approached the vehicle . . .
[t]he backseat passenger was making it a point to avoid any
eye contact with me. She was trying to hide her face from
me. The front two were -- I could at least see their faces,
but they were still nervous upon initial interaction… [t]hey
were not wanting to maintain eye contact. They were short
in their responses to me…. They were a little
fidgety…anxious.
She ran the information of all the vehicle occupants, which revealed that Defendant
and one of the passengers did not have any outstanding warrants but that the other
passenger had an outstanding warrant for failure to appear in another county.
As Officer Kattner was completing the traffic stop, Officer Rowe arrived on the
scene. Officer Kattner approached the vehicle with Officer Rowe to give Defendant a
verbal warning and to return identification cards to Defendant and the other
passengers. She gave a verbal warning to Defendant and told him and the passengers
that they were free to leave. We conclude that the seizure associated with the traffic
stop was concluded at this point. See Reed, 373 N.C. at 513, __ S.E. at __.
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Opinion of the Court
Officer Kattner testified that the vehicle occupants, however, continued to
appear “nervous” even though “they knew they weren’t getting in trouble for a traffic
violation.” She reiterated that the traffic stop was completed but then asked
Defendant if there was anything illegal in the vehicle, to which he responded, “No.”
She then proceeded to ask for consent to search the vehicle, to which Defendant
replied, “By law, since I am on probation, I cannot tell you no.”
Officer Kattner, though, responded by asking Defendant “to confirm yes or no,”
to which Defendant responded in the affirmative. It was during the search of the
vehicle that Officer Kattner found cocaine and other drug paraphernalia.
The State argues that Defendant consented to the search or, otherwise, Officer
Kattner had reasonable suspicion to conduct the search.
Defendant, as a probationer, is considered to have given consent to a search
where an officer has reasonable suspicion of a crime. Specifically, our General
Statutes provide that a probationer agrees to:
(14) Submit to warrantless searches by a law enforcement
officer of the probationer’s person and of the probationer’s
vehicle, upon a reasonable suspicion that the probationer
is engaged in criminal activity…
N.C. Gen. Stat. § 15A-1343 (2021) (emphasis added).
Defendant, otherwise, may consent to a search absent reasonable suspicion
where his consent is given freely and voluntarily. State v. Little, 270 N.C. 234, 239,
154 S.E.2d 61, 65 (1967) (“Implicit in the very nature of the term ‘consent’ is the
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Opinion of the Court
requirement of voluntariness. To be voluntary the consent must be ‘unequivocal and
specific,’ and freely and intelligently given.”). “[T]he question whether a consent to
search was in fact voluntary or was the product of duress or coercion, express or
implied, is a question of fact to be determined from the totality of circumstances.”
Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). See also State v. Romano, 369
N.C. 678, 691, 800 S.E.2d 644, 652-53 (2017) (holding that whether consent to a
search was voluntary is a question of fact, not law).
The trial court judge did not articulate in her written order her reasoning for
denying Defendant’s suppression motion. However, she stated in open court that she
was denying the motion based on her conclusion that Officer Kattner had reasonable
suspicion to conduct the search:
The motion to suppress with regard to the basis for -- I'm
not going to refer to it as extending the traffic stop, because
it’s something else. But it’s so dangerously close to
extending the traffic stop as to be almost indistinguishable
-- is denied, because I believe the North Carolina courts
have held as long as the officer can articulate a reasonable
suspicion of additional criminal activity, they may, at least
minimally, extend the stop without getting into
constitutionally unreasonable conduct. And I will find from
a totality of the circumstances, based just on Kattner's
testimony of what she observed, that she had that very
minimal reasonable articulable suspicion.
We note that the trial court judge did not articulate any finding as to whether
Defendant had otherwise validly consented to the search as an alternative ground for
denying Defendant’s suppression motion.
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Opinion of the Court
We hold that the trial court did not plainly err in allowing the results of the
search of Defendant’s vehicle into evidence at trial. Even assuming Officer Kattner
lacked reasonable suspicion to conduct the search of Defendant’s vehicle, we conclude
that Defendant has failed to show plain error. Specifically, we note that there was
sufficient evidence from which the trial court could have found as fact at trial that
Defendant voluntarily consented to the search had Defendant objected when the
evidence was offered by the State. That is, whether the outcome of the trial
“probably” would have been different hinges on whether the trial court probably
would not have found at trial had Defendant objected that Defendant had voluntarily
consented to the search, at least as an alternate ground to uphold her prior ruling.
See State v. Mann, 355 N.C. 294, 311, 560 S.E.2d 776,787 (2002) (holding that “[t]o
establish plain error, defendant must demonstrate not only that there was error, but
also had the error not occurred, the outcome of the proceeding probably would have
been different.”).
B. Motion to Dismiss
To survive a motion to dismiss, there must be substantial evidence of each
essential element of the crime and that the defendant is the perpetrator. State v.
Winkler, 368 N.C. 572, 574, 780 S.E.2d 824, 826 (2015). Whether the evidence is
sufficient to survive a motion to dismiss, it must be considered in the light most
favorable to the State; and the State is entitled to every reasonable inference from
the evidence. Id. at 574, 780 S.E.2d 826.
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Opinion of the Court
Here, Defendant contends that the State failed to present sufficient evidence
that he constructively possessed the cocaine found in his car, contending that his
mere presence “in an automobile in which illicit drugs are found does not, without
more, constitute sufficient proof of his possession of such drugs.” State v. Weems, 31
N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976). However, our Court has likewise
recognized that:
[A]n inference of constructive possession can . . . arise from
evidence which tends to show that a defendant was the
custodian of the vehicle where the [contraband] was found.
In fact, the courts in this State have held consistently that
the driver of a borrowed car, like the owner of the car, has
the power to control the contents of the car. Moreover,
power to control the automobile where [contraband] was
found is sufficient, in and of itself, to give rise to the
inference of knowledge and possession sufficient to go to
the jury.
State v. Mitchell, 224 N.C. App. 171, 177, 735 S.E.2d 438, 443 (internal citations
omitted). See also State v. Alson, 193 N.C. App. 712, 716, 668 S.E.2d 383, 386-87
(2008), aff’d per curiam, 363 N.C. 367, 677 S.E.2d 455 (2009).
It is undisputed that Defendant was the driver of the vehicle and, therefore,
exercised a degree of dominion and control over the vehicle. Additionally, the State
also presented evidence of other incriminating circumstances, including the
placement of the cocaine in the driver’s door, as well as the Defendant’s nervous
behavior. We conclude that the State’s evidence was, therefore, sufficient to survive
a motion to dismiss.
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Opinion of the Court
III. Conclusion
For the reasons stated above, we conclude that the trial court did not plainly
err by allowing the results of Officer Kattner’s search of Defendant’s vehicle into
evidence. We further conclude that the trial court did not err by denying Defendant’s
motion to dismiss the charge of possession of cocaine for insufficiency of the evidence.
NO ERROR.
Judge STADING concurs.
Judge ARROWOOD concurs with separate opinion.
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No. COA22-846 – State v. Michael
ARROWOOD, Judge, concurring.
I agree with the majority that the trial court did not plainly err because of the
evidence indicating defendant voluntarily consented to the search. However, because
it appears that the trial court’s primary analysis turned on whether the officer had a
reasonable suspicion to extend the traffic stop rather than on the defendant’s consent
to search his car, I believe the trial court’s analysis of that issue is incorrect. Thus, I
write separately to clarify the issue of reasonable suspicion.
Officer Kattner testified that when she approached defendant’s car during the
traffic stop, defendant and his passengers were acting “nervous.” When asked what
made her believe they were nervous, Officer Kattner stated, “They were not wanting
to maintain eye contact[,] [t]hey were short in their responses[,]” and “were a little
fidgety.” Officer Kattner further testified that such signs of nervousness continued
after giving defendant a verbal warning for failing to yield.
When ruling on defendant’s motion to dismiss, the trial court concluded that
reasonable suspicion existed based on these observations alone. However, such a
conclusion is sharply at odds with North Carolina law. Specifically, an appearance
of nervousness does not give police carte blanche to extend a stop or conduct a search.
See State v. Fields, 195 N.C. App. 740, 745 (2009) (citing United States v. Sokolow,
490 U.S. 1, 9, 104 L. Ed. 2d 1, 11 (1989)) (“In order to preserve an individual’s Fourth
Amendment rights, it is of the utmost importance that we recognize that the presence
of [extreme nervousness] is not, by itself, proof of any illegal conduct and is often quite
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ARROWOOD, J., concurrence
consistent with innocent travel.”); see also State v. Myles, 188 N.C. App. 42, 50 (2008),
aff’d, 362 N.C. 344 (2008) (“[O]ur Supreme Court has never said nervousness alone
is sufficient to determine whether reasonable suspicion exists when looking at the
totality of the circumstances.”).
For example, in State v. McClendon, our Supreme Court explained that
“several factors . . . gave rise to reasonable suspicion under the totality of the
circumstances.” 350 N.C. 630, 637 (1999). Such factors specified by the McClendon
Court were (1) extreme nervousness, which involved defendant sweating, breathing
rapidly, sighing heavily, chuckling nervously when answering questions, and
refusing to make eye contact; (2) inconsistent and confusing statements; and (3) the
fact that “although defendant seemed unsure of who owned the car, the address of
the owner listed seem[ed] to indicate that [defendant and the owner] both lived in the
same residence.” Id. Thus, in McClendon, “extreme nervousness” constituted
reasonable suspicion only when combined with two other pertinent factors.
Here, unlike in McClendon, no factors were present other than Officer
Kattner’s perception of nervousness. The perceived fidgetiness, eye contact
avoidance, and short responses were not separate factors supporting reasonable
suspicion; rather, they were physical mannerisms that—when combined—led Officer
Kattner to believe defendant and the passengers were nervous. See State v. Downey,
251 N.C. App. 829, 834 (2017) (explaining that police testimony that defendant
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avoided eye contact supported the trial court’s finding that defendant exhibited
nervous behavior). Moreover, a general statement that defendant was acting
nervous—without specific facts to support such observation like the ones discussed
here—does not constitute a factor supporting reasonable suspicion. See United States
v. Crawford, 891 F.2d 680, 682 n.4 (8th Cir. 1989). (“The statement that [defendant]
appeared nervous . . . is a mere rephrasing of the other evidence, offered in an
attempt to enhance the value of that evidence.”). Accordingly, Officer Kattner’s
observations were inadequate to support a finding of reasonable suspicion.
It is also important to point out that nothing in the record suggests that Officer
Kattner had prior knowledge of defendant or his passengers before the traffic stop. I
thus find it hard to understand how Officer Kattner would know whether they were
indeed nervous or simply behaving normally. Without such prior knowledge, Officer
Kattner’s observations likely constitute subjective and “unparticularized suspicion.”
See State v. Watkins, 337 N.C. 437, 442 (1994) (quoting Brown v. Texas, 443 U.S. 47,
51, 61 L. Ed. 2d 357, 362 (1979)) (stating that reasonable suspicion must be “ ‘based
on objective facts, that the individual is involved in criminal activity.’ ”).
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