State v. Tripp

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA18-1286

Filed: 31 December 2020

Craven County, Nos. 17CRS000466-67; 17CRS051204-05

STATE OF NORTH CAROLINA

v.

MICHAEL DEVON TRIPP, Defendant.

Appeal by Defendant from order entered 8 June 2018 by Judge Charles H.

Henry in Craven County Superior Court. Heard in the Court of Appeals 13 November

2019.

Attorney General Joshua H. Stein, by Assistant Attorney General Kristine M.

Ricketts, for the State.

Patterson Harkavy, LLP, by Paul E. Smith, for Defendant.

BROOK, Judge.

Michael Devon Tripp (“Defendant”) appeals the trial court’s order denying his

motion to suppress evidence seized from a search of his person as well as to correct

the judgment and commitment forms entered below. On appeal, Defendant argues

that the search and seizure were impermissible because he was not an “occupant” of

the premises for which law enforcement officers possessed a valid search warrant.

Defendant further argues that there are clerical errors on his judgment and

commitment forms. For the following reasons, we reverse the order of the trial court,

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vacate Defendant’s convictions for trafficking heroin under file number 17CRS051205

and possession with intent to sell or deliver fentanyl under file number

17CRS000467, and remand for correction of clerical errors in the judgment and

commitment forms.

I. Factual and Procedural History

A. Factual Background

Around 25 April 2017, the Craven County Sheriff’s Office received complaints

of “bad heroin” coming from 8450 U.S. Highway 17 (“8450”) in Vanceboro, North

Carolina, a property associated with Defendant. After receiving this information,

Investigator Jason Buck, a member of the narcotics unit, arranged a controlled buy

of heroin between a confidential informant and Defendant on 25 April 2017. The

exchange occurred at 8450. Based on that transaction, Investigator Buck obtained a

search warrant for the residence and vehicles connected to Defendant—the warrant

did not authorize a search of Defendant.

Prior to the execution of the warrant, Investigator Buck led a pre-search

operation planning meeting with the officers who would be involved in the search.

Lieutenant John Raynor, who oversees the narcotics unit at the Craven County

Sheriff’s Office and who attended the briefing, testified that at every “preplanning

meeting” he makes sure that the following policy is implemented during the execution

of a warrant:

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all persons on scene or in proximity to our scenes that we

believe to be a threat are dealt with, which means that we

will detain them briefly, pat them down for weapons, make

sure they’re not a threat to us and then one of the narcotics

investigators on scene will make a determination if that

person can leave or not.

He testified that those who pose “a threat” are

[a]nyone with a prior history with us, with violent history,

known to carry guns, any known drug dealers that we have

past history with. By nature, generally drug dealers are

considered violent and by nature a majority carry guns in

one nature or another, so everybody inside of a known

narcotics residence or on the scene there we deal with for

our safety purposes, then deem whether or not they’re

suspect at that point to continue further.

Lt. Raynor also testified that no decision had been made as to whether they were

going to arrest Defendant for the prior day’s sale of heroin, explaining that the

“[d]etermination of whether or not we charge for the buy is made once we execute the

search warrant.”

Around 6:00 p.m. on 26 April 2017, Investigator Buck executed the warrant,

accompanied by Investigator Josh Dowdy, an officer with the Craven County Sheriff’s

Office, and nine other law enforcement officers. The officers arrived in four vehicles.

Investigator Buck testified that the operation plan “was to clear the residence [and]

detain any individuals that were there on the property[.]” Investigator Buck clarified

that the “property” referred to 8450. When Investigator Buck arrived, he saw several

people standing at the neighboring residence, which belonged to Defendant’s

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grandfather, but was not able to identify who they were. During the search of 8450,

officers encountered two individuals in the building along with marijuana, drug

residue, and drug paraphernalia. It was not until Investigator Buck had completed

the search of the residence and walked outside that he learned Defendant had been

detained.

When Investigator Dowdy got out of his car, he identified Defendant—about

“50, 60 yards” away—leaning against a wheelchair ramp on the front porch of his

grandfather’s house. Instead of searching 8450, Investigator Dowdy walked directly

over to Defendant, who he testified “was the target of Investigator Buck’s search

warrant” and whom he believed there existed a warrant to search.

Investigator Dowdy testified that he was familiar with Defendant from prior

domestic violence-related incidents: in 2011 Defendant had allegedly brandished a

firearm at his wife, and in 2013 Defendant was arrested after shooting a shotgun in

the air during an argument with his wife to scare her. These incidents occurred at

Defendant’s residence, 8420 U.S. Highway 17, not 8450. In 2012, Investigator Dowdy

arrested Defendant at his grandfather’s house for an assault on a female warrant.

When Investigator Dowdy arrived at Defendant’s grandfather’s house, he

noticed for the first time that Defendant was also accompanied by his grandfather

and another person. Investigator Dowdy testified that Defendant did not run away

or make any furtive movements with his hands, nor did Defendant, his grandfather,

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or the other individual “take any action to raise any suspicion of criminal activity on

their part[.]” However, Investigator Dowdy ordered Defendant to put his hands on

the ramp and patted him down for weapons “[b]ecause of [his] past experiences . . .

[and f]or my safety.” He also testified that it was office policy to “always pat down for

weapons” whenever an officer has “contact with” somebody on a search warrant “[f]or

our safety, for their safety, so nobody gets hurt.”

As Investigator Dowdy patted Defendant down, he saw a plastic baggie in

Defendant’s right pocket because they were “so baggy” and testified that he felt a

hard lump in Defendant’s right pocket. Based on his training and experience,

Investigator Dowdy believed the plastic baggie contained narcotics and, when he

removed the baggie from Defendant’s pocket, he noted that it contained an off-white

powdery substance. The State Crime Lab later identified the substance to be

fentanyl.

B. Procedural History

Based on the above-described events, on 26 April 2017 Defendant was charged

with trafficking heroin, possession with intent to sell or deliver fentanyl,

manufacturing cocaine, possession with intent to sell or deliver marijuana,

maintaining a dwelling to keep or sell a controlled substance, and possession with

intent to use drug paraphernalia. On 3 May 2017, Defendant was charged with

possession with intent to sell or deliver fentanyl and possession with intent to sell or

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deliver heroin—these charges were unrelated to the 26 April 2017 offenses—and

receiving stolen goods.

Defendant filed a motion to suppress evidence related to the 26 April 2017

search of his person—specifically for the charges of trafficking heroin, trafficking

fentanyl, manufacturing cocaine, possession with intent to sell or deliver marijuana,

and possession with intent to sell or deliver fentanyl—which the trial court denied by

written order on 8 June 2018. The trial court made the following findings of fact and

conclusions of law:

1. Investigator Jason Buck, a sworn law enforcement

officer with the Craven County Sheriff’s Office and a

member of the Coastal Narcotics Enforcement Team,

utilized a confidential informant which he found to be

reliable to make a controlled purchase of heroin from the

defendant, Michael Tripp, on April 25, 2017. The

informant was equipped with video and audio equipment

from which law enforcement could monitor the transaction.

The defendant, who was known by law enforcement as a

drug dealer in the Vanceboro area by reputation and

criminal history, was identified by the informant and later

verified by the recordings as the defendant and the seller

of a quantity of heroin to the informant. The sale was made

from within the defendant’s residence . . . in Vanceboro,

North Carolina.

2. As a result of that investigation, Deputy Buck obtained

on April 26, 2017 a search warrant for that residence and

several motor vehicles associated with that address from

Superior Court Judge Benjamin Alford.

3. At approximately 6:00 p.m. on April 26, 2017 eleven

officers with the Craven County Sheriff’s Office and

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Coastal Narcotics Enforcement Team executed that search

warrant for that residence.

4. Prior to the execution of the search warrant an operation

plan meeting was held by the officers conducting the

operation. The plan was to clear the residence and detain

all who were present. The residence to be searched was on

a dirt road contiguous to homes resided in by other

members of the defendant’s family. The officers utilized

four unmarked vehicles to get to that location. The officers

had not obtained an arrest warrant for the defendant prior

to the operation.

5. Deputy Josh Dowdy, a nine year veteran of the sheriff's

office and a trained member of the Coastal Narcotics

Enforcement Team, participated in the execution of the

search warrant. Dowdy understood that the target of the

search was the defendant. He knew the defendant from at

least three other inter[actions] with the defendant. In 2011

and 2013 he had been called to the defendant’s residence

due to domestic disturbances in which the defendant had

been brandishing a firearm. In 2012 he had arrested the

defendant for an assault on a female. At the time of that

arrest, he was at his grandfather’s house which is located

about 60 yards from the residence being searched pursuant

to the April 26, 2017 search warrant.

6. The Craven County Sheriff’s Office had a policy

described by Lt. John Raynor that required that all people

who are “on scene” or “in proximity to our scene” whom

they believe to be a threat or had previously dealt with be

detained and briefly patted down for weapons to make sure

they are not a threat to any of the narcotics officers. The

policy provided that anyone who had a prior violent

history, [was] known to carry firearms, or sold narcotics

were deemed to be threats.

7. When the narcotics officers arrived at [the residence] in

Vanceboro, North Carolina, the defendant was outside at

his grandfather’s house within sixty yards of the residence

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to be searched and had a direct line of sight to it and the

officers on scene.

8. As Deputy Dowdy was getting out of his motor vehicle he

observed the defendant to his right near the front porch of

the defendant’s grandfather’s house. Because of his past

experiences with the defendant, his previous firearm

possessions, and the reasons that brought law enforcement

to this residence, Dowdy asked him to put his hands on the

railing of a handicap ramp attached to his grandfather’s

house so he could “pat” him down for weapons. It was the

policy and normal procedure of the Sheriff’s Office for the

safety of the officers and those present to pat down all

individuals with whom they made contact while executing

a search warrant. The defendant complied.

9. The defendant was wearing baggy jogging pants. While

patting him down Dowdy could feel what he thought was

money in his left pocket. Because his pants were so

“baggy[,]”[ ] Dowdy could see, without manipulating the

garment, a plastic baggie in his right pants pocket, and

while patting him down he felt a large lump associated

with that baggie. His training and experience allowed him

to reasonably conclude that the plastic baggie in the

defendant’s pocket contained narcotics. As a result Dowdy

removed the bag and its contents. Dowdy had concluded

that the plastic baggie was consistent with how narcotics

are carried and packaged. He was also acutely aware of

the reasons that they were searching the defendant’s

residence.

10. The baggie contained a white powdery substance which

Dowdy concluded was a controlled substance. The

defendant was handcuffed and detained and walked over

to his residence. He would be later charged with multiple

counts of trafficking in heroin and felonious possession of

fentanyl and marijuana. The search of the defendant

resulted in the seizure of 7.01 grams of schedule I heroin

and the schedule II opiate, fentanyl. The search of [the]

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residence resulted in the seizure of drug paraphernalia and

marijuana.

Based upon the foregoing the court concludes as a matter

of law that:

1. That there was probable cause on April 26, 2017 for the

issuance of the search warrant for [the address identified

in the search warrant] on U.S. Highway 17 in Vanceboro,

N.C.

2. Deputy Dowdy was unaware there existed probable

cause to arrest the defendant without a warrant for the

previous day’s felonious sale of heroin to Deputy Jason

Buck’s confidential informant. N.C. Gen. Stat.

§15A-401(b)(2)(a).

3. Under the circumstances then existing, Deputy Dowdy

conducted a limited “frisk” or search for weapons of the

defendant which was reasonable and constitutional. State

v. Long, 37 N.C App. 662, 668-69, 246 S.E.2d 846, 851

(1978).

4. Dowdy had reasonable suspicion and was justified from

the totality of the circumstances and his previous

experience with the defendant in believing that the

defendant, who was the subject of multiple narcotics sale

investigations, was armed and could pose a danger to those

law enforcement officers who were conducting the search

of the defendant’s residence. Terry v. Ohio, 392 U.S. 1, 20

L. Ed. 2d 889, 88 S. Ct. 1868 (1968).

5. Because the defendant had made a sale of heroin to an

undercover informant the previous day and was the

occupant of the premises searched, it was likely he was

going to be detained while the search was conducted. An

officer executing a warrant directing a search of premises

not open to the public may detain any person present for

such time as is reasonably necessary to execute the

warrant. If the warrant fails to produce the items named

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the officer may then search any person present at the time

of the officer’s entry to the extent reasonably necessary to

find the property described in the warrant. N.C. Gen. Stat.

§15A-256. The defendant, even if the narcotics had not

been uncovered by Dowdy, would have faced such a search

under that statute or pursuant to his arrest [for the] sale

of heroin and for what was found in the residence. The

search of the residence did not apparently result in finding

any appreciable amount of heroin.

6. The bag containing heroin had been located in the

defendant’s baggy pants pocket which Deputy Dowdy could

see into when he frisked the defendant. At that time

Dowdy had legal justification to be at the place and in the

position he was when he saw the baggie in plain view. Its

discovery was inadvertent as it was discovered during the

pat down. The baggie was immediately apparent to Dowdy

to be evidence of a container for illegal narcotics and would

warrant a man of reasonable caution in believing the

defendant was in possession of drugs and was hiding

evidence which would incriminate him. The plain view

doctrine was applicable in this case and all the elements

were present. State v. Peck, 305 N.C. 734, 743, 291 S.E. 2d

637, 642 (1982).

7. After Dowdy observed the baggie and had felt the pocket

during his pat down for weapons, because of the totality of

the circumstances known to him at the time, he had

probable cause to seize the baggie and its contents and

later place him under arrest.

On 2 July 2018, in exchange for dismissal of the remaining charges, Defendant

pleaded guilty to four of the April offenses—trafficking heroin, possession with intent

to sell and deliver fentanyl, maintaining a dwelling, and receiving stolen goods—and

the two May offenses—possession with intent to sell or deliver fentanyl and

possession with intent to sell and deliver heroin—preserving his right to appeal the

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denial of his motion to suppress. That same day, the trial court consolidated the two

May offenses into a single active sentence of 8 to 19 months and consolidated the four

April offenses into an active sentence of 70 to 90 months, to run consecutively.

After entry of the judgment, Defendant gave oral notice of appeal in the

following exchange:

[DEFENSE COUNSEL]: Thank you, Judge, and on behalf

of [Defendant] on the record, I would like to announce that

he’s going to give notice of appeal to the Court’s judgment.

THE COURT: Okay. Previous order that I referred to will

be entered.1

II. Analysis

On appeal, Defendant argues that the trial court erred in denying his motion

to suppress evidence seized during the search of his person because he was not an

“occupant” of the premises to be searched. Defendant further argues that the

judgment and commitment forms contain clerical errors requiring remand and

correction. We consider each argument in turn.

A. Motion to Suppress

We first turn to whether the trial court erred in denying Defendant’s motion to

suppress. Defendant challenges several findings of fact and argues that Investigator

1 Defendant filed a petition for writ of certiorari for this Court to allow review of all the counts

to which he pleaded guilty in the event we were to determine his notice of appeal was defective. We

dismiss Defendant’s petition as moot because his oral notice of appeal was adequate to notice appeal

of all counts since the trial transcript makes clear that the notice applied to his entire guilty plea.

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Dowdy lacked the right to detain him under either Michigan v. Summers or Terry v.

Ohio. The State argues that the detention was permissible pursuant to Summers

and, even if it was impermissible, evidence seized from Defendant’s person would

have been admissible under the inevitable discovery doctrine.

i. Standard of Review

Our review of a trial court’s denial of a motion to suppress “is strictly limited

to determining whether the trial judge’s underlying findings of fact are supported

by competent evidence, in which event they are conclusively binding on appeal, and

whether those factual findings in turn support the judge’s ultimate conclusions

of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). “In addition,

the trial court’s unchallenged findings of fact are binding on appeal.” State v.

Ramseur, 226 N.C. App. 363, 366, 739 S.E.2d 599, 602 (2013). “This Court reviews

conclusions of law stemming from the denial of a motion to suppress de novo. . . .

Under a de novo review, the court considers the matter anew and freely substitutes

its own judgment for that of the lower tribunal.” State v. Borders, 236 N.C. App. 149,

157, 762 S.E.2d 490, 498-99 (2014) (citation omitted).

ii. Findings of Fact

Defendant challenges several of the trial court’s findings of fact as not

supported by competent evidence. We assume without deciding that each of the

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challenged findings is supported by competent evidence because, even if so, they

cannot support Defendant’s detention pursuant to either Summers or Terry.

iii. Summers Detention

In Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 2595, 69 L. Ed.

2d 340, 351 (1981), the United States Supreme Court held “for Fourth Amendment

purposes . . . a warrant to search for contraband founded on probable cause implicitly

carries with it the limited authority to detain the occupants of the premises while a

proper search is conducted.” In Bailey v. United States, 568 U.S. 186, 201, 133 S. Ct.

1031, 1042, 185 L. Ed. 2d 19, 33 (2013), the Supreme Court “[l]imit[ed] the rule in

Summers to the area in which an occupant poses a real threat to the safe and efficient

execution of a search warrant[.]” This constraint “ensures that the scope of the

detention incident to a search is confined to its underlying justification. Once an

occupant is beyond the immediate vicinity of the premises to be searched, the search-

related law enforcement interests are diminished and the intrusiveness of the

detention is more severe.” Id.

Our Supreme Court in State v. Wilson, 371 N.C. 920, 924, 821 S.E.2d 811, 815

(2018) (internal marks, alterations, and citations omitted), identified three parts to

the Summers rule: “a warrant to search for contraband founded on probable cause

implicitly carries with it the limited authority to detain (1) the occupants, (2) who are

within the immediate vicinity of the premises to be searched, and (3) who are present

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during the execution of a search warrant[.]” “These three parts roughly correspond

to the ‘who,’ ‘where,’ and ‘when’ of a lawful suspicionless seizure incident to the

execution of a search warrant.” Id. The Wilson Court focused on defining who

qualifies as an “occupant” and ultimately concluded that “a person is an occupant for

the purposes of the Summers rule if he poses a real threat to the safe and efficient

execution of a search warrant.” Id. at 925, 821 S.E.2d at 815 (citation and marks

omitted).

Applying this three-part test, the Court held that a defendant was lawfully

detained where he had penetrated a police perimeter when law enforcement was in

the process of actively securing a home in order to execute a search warrant. Id. at

921, 821 S.E.2d at 812-13. The defendant walked past one officer and attempted to

pass another, claiming he had to retrieve his moped from the home. Id. at 925, 821

S.E.2d at 815. Officers detained and frisked him and recovered a firearm. Id. at 921,

821 S.E.2d at 813. Since the defendant was seized during the execution of a search

warrant and he “was seized within the immediate vicinity of the premises being

searched[,]” the Court held he clearly met the “when” and “where” prongs of

Summers. Id. at 924-25, 821 S.E.2d at 815 (noting the “defendant was well within

the lawful limits of the property containing the house being searched” and “could

easily have accessed the house” had he not been stopped). As to the “who” prong, the

Court held that the defendant was an occupant of the premises to be searched. Id. at

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925-26, 821 S.E.2d at 815-16. Because “[h]e approached the house being swept,

announced his intent to retrieve his moped from the premises, and appeared to be

armed[,]” he posed “a real threat to the safe and efficient execution of” the search

warrant. Id. “[S]tated another way, defendant would have occupied the area being

searched if he had not been restrained.” Id. at 925, 821 S.E.2d at 815.

In State v. Thompson, 267 N.C. App. 101, 832 S.E.2d 510 (2019), on remand

from our Supreme Court in light of its decision in Wilson, see State v. Thompson, 372

N.C. 48, 822 S.E.2d 616 (2019) (per curiam), this Court further clarified who

constitutes an “occupant” for purposes of the Summers rule. Law enforcement officers

arrived at an apartment in Charlotte to execute a search warrant of a woman and

encountered the defendant, who was cleaning his car in the street adjacent to the

apartment. Thompson, 267 N.C. App. at 102, 832 S.E.2d at 511. He told officers that

he did not live in the apartment, but his girlfriend did. Id. After searching the

apartment, officers searched the defendant’s car and found marijuana, drug

paraphernalia, and a firearm in the trunk. Id. at 103, 832 S.E.2d at 511.

Concluding that there was “no question” that the defendant was detained

during the execution of a search warrant and granting that it was “arguable that the

circumstances [ ] satisfied the second prong—the ‘where’—of the Summers rule[,]”

this Court nonetheless concluded that the defendant was not an occupant of the

searched premises. Id. at 108, 832 S.E.2d at 515.

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At no point did [the d]efendant attempt to approach the

apartment. Nor did he exhibit nervousness or agitation,

disobey or protest the officers’ directives, appear to be

armed, or undertake to interfere with the search. . . . Quite

simply, there were no circumstances to indicate that [the

d]efendant would pose “a real threat to the safe and

efficient execution” of the officers’ search.

Id. at 108-09, 832 S.E.2d at 515 (internal citations, marks, and footnotes omitted).

Our Court based its decision, as our Supreme Court did in Wilson, on whether the

defendant “‘pose[d] a real threat to the safe and efficient execution of the officers’

search[,]’” not whether he could have posed a threat. Id. (emphasis added) (marks

omitted) (quoting Wilson, 371 N.C. at 925, 821 S.E.2d at 815); see also Bailey, 568

U.S. at 201, 133 S. Ct. at 1042 (considering the same).

Our Court also emphasized the importance of distinguishing between the first

and second prongs of the Summers rule, noting that “an individual’s presence within

the immediate vicinity of a search” cannot operate categorically to pose “a threat to

the search’s safe and efficient execution.” Thompson, 267 N.C. App. at 109, 832

S.E.2d at 516. In other words, focusing the occupant inquiry on a defendant’s

proximity to the house being searched risks conflating the “where” with the “who”

inquiry outlined in Wilson. As our Court noted, this “would [ ] boundlessly subject to

detention any grass-mowing uncle, tree-trimming cousin, or next-door godson

checking his mail, merely based upon his ‘connection’ to the premises and hapless

presence in the immediate vicinity.” Id. at 110, 832 S.E.2d at 516.

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Here, “there is no question” that the “when” prong is satisfied because officers

detained Defendant during their lawful execution of a warrant. Id. at 108, 832 S.E.2d

at 515. And we assume without deciding that “the circumstances here satisf[y] the

second prong—the ‘where’—of the Summers rule.”2 Id. The critical inquiry in this

case, as in Wilson and Thompson, is whether Defendant posed a threat to the safe

and efficient execution of the warrant. We conclude that he did not.

The trial court did not make findings sufficient to support the conclusion that

Defendant posed a real threat to the execution of this search warrant. Unlike the

defendant in Wilson, Defendant made no attempt to penetrate the police perimeter

nor did he evince an intent to enter the premises or appear to be armed. The trial

court further did not find that Defendant appeared nervous or agitated, made any

furtive movement, or disobeyed police commands. See Thompson, 267 N.C. App. at

108, 832 S.E.2d at 515 (same factors also absent). By Investigator Dowdy’s own

admission, Defendant was “simply leaning up against the rail” and did “not take any

2 Defendant was at his grandfather’s neighboring property approximately 60 yards away from

the premises to be searched. The State has repeatedly claimed in its brief and at oral argument that,

based on the testimony of Lt. Raynor, the 60 yards between 8450 and Defendant’s grandfather’s house

was a “five to six second walk,” putting Defendant within the “immediate vicinity” of 8450.

Olympian and 11-time world champion Usain Bolt, widely considered to be the greatest

sprinter of all time and the fastest human in recorded history, ran the 40-yard dash in 4.22 seconds in

2019. See Usain Bolt: Biography, https://www.biography.com/athlete/usain-bolt (last visited 14

December 2020); Andrew Dawson, Usain Bolt Ties NFL Record in 40-Yard Dash, Runner’s World (4

February 2019), https://www.runnersworld.com/news/a26074900/usain-bolt-40-yard-dash/. Given

that the fastest man on Earth could not sprint 60 yards in six seconds, it stands to reason that

Defendant could not walk this distance more quickly.

Nonetheless, as we stressed in Thompson, even if Defendant was in the “immediate vicinity”

of the premises to be searched, that does not mean he was an “occupant” as defined by our Supreme

Court in Wilson.

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action to raise any suspicion of criminal activity on his part[.]” In fact, his behavior

was so unremarkable that none of the other 10 officers executing the warrant sought

to interact with, let alone detain, Defendant until after Investigator Dowdy did so.

Though the trial court and the dissent reason that Defendant was an occupant

because of his “criminal history, his history of use of guns, and his proximity to the

house being searched,” Tripp, infra at ___ (Stroud, J., concurring in part and

dissenting in part), this reasoning transgresses controlling precedent in three related

ways.

First, focusing the occupant inquiry on Defendant’s “proximity to the house

being searched” conflates the “where” with the “who” inquiry. In determining the

defendant in Wilson occupied the premises subject to the search warrant, our

Supreme Court did not consider “even in part [ ] either the defendant’s ‘connection’ to

the premises or his proximity thereto” despite the fact that “both factors were

present[.]” Thompson, 267 N.C. App. at 110, 832 S.E.2d at 516 (citing Wilson, 371

N.C. at 925, 821 S.E.2d at 815).

Second, as discussed below, Defendant’s criminal history, standing alone, does

not support a Terry stop, which, like a Summers detention, is concerned with officer

safety.3 See State v. Rinck, 303 N.C. 551, 559, 280 S.E.2d 912, 919 (1981) (“If upon

3 This is not to say the Terry and Summers tests are the same; it is merely to show that the

dissent’s arguments could not even serve to clear the relatively low bar of reasonable suspicion. See

State v. Smathers, 232 N.C. App. 120, 123, 753 S.E.2d 380, 382-83 (2014) (“Reasonable suspicion is a

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detaining the individual, the officer’s personal observations confirm that criminal

activity may be afoot and suggest that the person detained may be armed, the officer

may frisk him as a matter of self-protection.”); see also United States v. Black, 707

F.3d 531, 540 (4th Cir. 2013) (“A prior criminal record is not, standing alone,

sufficient to create reasonable suspicion.” (brackets and citation omitted)); United

States v. Sandoval, 29 F.3d 537, 543 (10th Cir. 1994) (“If the law were otherwise, any

person with any sort of criminal record—or even worse, a person with arrests but no

convictions—could be subjected to a Terry-type investigative stop by a law

enforcement officer at any time without the need for any other justification at all.”);

State v. Bouknight, 252 N.C. App. 265, 797 S.E.2d 340, 2017 N.C. App. LEXIS 150,

at *6 n.6 (2017) (unpublished) (“[R]easonable suspicion cannot rest on the basis of

prior criminal activity alone.”).

All of which points to the dissent’s central flaw: failing to grapple with whether

Defendant, in this “particular circumstance[,] . . . posed a real threat to the safe and

efficient execution of the search warrant.” Thompson, 267 N.C. App. at 110, 832

S.E.2d at 516 (emphasis added) (citation and marks omitted). While it is no doubt

true that Defendant could have posed a threat if he had a gun, the trial court’s

findings do not suggest he was armed on the evening in question, that he had ever

less demanding standard than probable cause and requires a showing considerably less than

preponderance of the evidence. The standard is satisfied by some minimal level of objective

justification.” (citation omitted)).

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Opinion of the Court

been armed around law enforcement, or even that he was known to regularly carry

firearms.4

Taken to its logical end, the dissent’s reasoning would not only hollow out

Summers, Wilson, and Thompson but also justify nearly any detention. Particular to

this situation, the dissent seems to understand the rule from Summers and its

progeny as follows: if law enforcement knows an individual has ever used a firearm

for allegedly untoward ends, then that person is an “occupant” so long as he or she is

within a firearm’s range of the warrant execution. But that is not the law. Were

there any support for such a capacious reading of the controlling cases, we suspect

the dissent would note it. More broadly, the dissent also leans ever so slightly on the

Craven County Sheriff Department’s warrant execution policy (which cannot

establish compliance with constitutional obligations), subtly endorsing the detention

and search of “all persons . . . in proximity to our scenes[,]” “with a prior history with

us[,]” or “with [a] violent history[.]” But see Bailey, 568 U.S. at 197, 133 S. Ct. at 1034

(“A general interest in avoiding obstruction of a search . . . cannot justify detention

beyond the vicinity of the premises to be searched.”). But, again, Bailey, Wilson, and

4 While arguing we go beyond our mandate as an appellate court by re-weighing evidence

(without ever specifying how), the dissent goes further by disregarding unchallenged (and therefore)

binding findings. Seeking to bolster its rickety “true threat” conclusion, the dissent suggests that

Investigator Dowdy approached Defendant in part because he knew he “had made a sale of heroin in

that same residence to an undercover agent the previous day.” Tripp, infra at ___ (Stroud, J.,

concurring in part and dissenting in part). This is flatly contrary to the trial court’s unchallenged

finding that Investigator Dowdy was not aware “of the previous day’s felonious sale of heroin to [the]

confidential informant.”

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Opinion of the Court

Thompson teach that whether a person poses a “threat” turns on the particular

circumstances as well as the particular individual’s conduct during the execution of

the warrant, not whether the “grass-mowing uncle, tree-trimming cousin, or next-

door godson checking his mail . . . in the immediate vicinity” got into a fistfight years

ago.5 Thompson, 267 N.C. App. at 110, 832 S.E.2d at 516.

Here, the particular circumstances show that Defendant did not pose a threat

to the safe and efficient execution of the search warrant. Thus, Defendant’s detention

cannot be justified on the grounds that he was an occupant of the premises during

the lawful execution of the search warrant.

iv. Terry Investigatory Stop6

Defendant next argues that his detention was not a permissible Terry stop.

To justify a Terry stop, a law enforcement officer must act upon “specific and

articulable facts” giving rise to a reasonable suspicion that an individual “was, or was

about to be, engaged in criminal activity and . . . was armed and presently dangerous.”

State v. Butler, 331 N.C. 227, 233, 415 S.E.2d 719, 722 (1992) (citing Terry v. Ohio,

392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). And, as detailed

5 Our point is not that Defendant is the same as the grass-mowing uncle who got into a fistfight

years ago; he is not. It is instead to point out the dissent’s break with precedent by moving the

goalposts from a “real” threat to something far more ephemeral. In so doing, the dissent sweeps up

not only Defendant but also the grass-mowing uncle.

6 The State does not argue before our Court that Defendant’s detention and frisk is justified

by Terry. The Terry rationale for Defendant’s detention and frisk is thus arguably not before us. State

v. Hardy, 242 N.C. App. 146, 152 n.2, 774 S.E.2d 410, 415 n.2 (2015) (citing N.C. R. App. 28(a) (2015))

(treating as abandoned issue the State did not raise on appeal). But, given that the trial court’s

suppression order references Terry, we address this issue out of an abundance of caution.

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STATE V. TRIPP

Opinion of the Court

in the above discussion of Summers, Bailey, and their progeny, a search warrant for

a place associated with a person does not, in and of itself, provide reasonable

suspicion to search that person.

In an unchallenged mixed finding of fact and conclusion of law, the trial court

found and concluded that Investigator Dowdy, who detained Defendant, “was

unaware there existed probable cause to arrest the defendant without a warrant.”

More particularly, Investigator Dowdy was not aware “of the previous day’s felonious

sale of heroin to [the] confidential informant” and indeed conceded that Defendant

did “not take any action to raise any suspicion of criminal activity on his part[.]” And,

again, there were no findings to suggest Defendant was armed on the evening in

question. Investigator Dowdy therefore had no basis for a Terry investigatory stop of

Defendant.

v. Inevitable Discovery

Finally, the State argues that even if evidence was unconstitutionally obtained

from Defendant, it would have been admissible under the inevitable discovery

doctrine because probable cause existed to arrest Defendant for the prior day’s sale

of heroin.

Under the inevitable discovery doctrine,

evidence which would otherwise be excluded because it was

illegally seized may be admitted into evidence if the State

proves by a preponderance of the evidence that the

evidence would have been inevitably discovered by the law

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STATE V. TRIPP

Opinion of the Court

enforcement officers if it had not been found as a result of

the illegal action.

State v. Pope, 333 N.C. 106, 114, 423 S.E.2d 740, 744 (1992). “The State need not

prove an ongoing independent investigation; we use a flexible case-by-case approach

in determining inevitability.” State v. Larkin, 237 N.C. App. 335, 343, 764 S.E.2d

681, 687 (2014).

“Courts have previously considered a discovery of evidence as ‘inevitable’

where the police have sufficient identifying information about the specific item sought

and where it appears that in the normal course of an investigation, the item would

have been discovered even without the information that was obtained illegally.” Id.

at 345, 764 S.E.2d at 688. In State v. Vick, 130 N.C. App. 207, 219, 502 S.E.2d 871,

879 (1998), during the execution of the warrant, police detained the defendant and

asked him, “If we were looking for drugs[,] where would we look[?]” Id. at 213, 502

S.E.2d at 875. The defendant replied, “[T]he refrigerator.” Id. Despite any alleged

Miranda violation, this Court held the discovery of the cocaine inevitable because

officers had a search warrant for narcotics in defendant’s home, and the cocaine was

“blatantly laying [sic] in the refrigerator.” Id. at 218, 502 S.E.2d at 878.

Again in State v. Harris, 157 N.C. App. 647, 654, 580 S.E.2d 63, 67 (2003), this

Court held the discovery of evidence admissible despite any alleged Miranda violation

when law enforcement asked the defendant “if he had any keys” to open a locked

toolbox, the defendant gave the keys to officers, and they opened the box and found

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Opinion of the Court

cocaine. Id. at 650, 580 S.E.2d at 65. Given there was “no dispute that the officers

had a search warrant specifically authorizing them to search defendant’s person[,]”

this Court held the discovery of the keys (which were located in the defendant’s front

jeans pocket) was inevitable. Id. at 654, 580 S.E.2d at 68.

But in State v. Wells, 225 N.C. App. 487, 490-91, 737 S.E.2d 179, 181-82 (2013),

this Court rejected an inevitable discovery argument when no evidence was

introduced regarding “common practices of the [law enforcement agency] for

inventorying [ ] belongings or through testimony regarding continued search efforts

in [the] case, indicating that investigating officers would have located” the evidence

at issue. Id. at 490-91, 737 S.E.2d at 181-82. Though it seemed “entirely logical that

the police would search [the location where the evidence was found] and discover” it,

“there [was] no evidence in the record to support this assumption.” Id. at 490, 737

S.E.2d at 181.

Here, unlike in Vick and Harris, there was no warrant to search or arrest

Defendant for the prior day’s sale of heroin. Nor were there findings or evidence

consistent with concluding that the narcotics “would have been discovered even

without the information that was obtained illegally.” Larkin, 237 N.C. App. at 345,

764 S.E.2d at 688. Lt. Raynor testified that law enforcement had not decided whether

they were going to charge or arrest Defendant for the sale on the day that they

executed the warrant, explaining that the decision was going to be made after the

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STATE V. TRIPP

Opinion of the Court

execution of the warrant. Though Investigator Buck arguably had probable cause to

arrest Defendant given his knowledge of Defendant’s earlier sale of heroin to a

confidential informant, see N.C. Gen. Stat. § 15A-401(b)(2)(a) (2019), the trial court

found and concluded that Investigator Dowdy detained, searched, and arrested

Defendant without that knowledge. Accordingly, the State has not met its burden of

showing that it was “more likely than not” that an arrest based on the 25 April 2017

sale of heroin—and a subsequent search of his person—was inevitable. See Vick, 130

N.C. App. at 218, 502 S.E.2d at 878; see also Larkin, 237 N.C. App. at 346, 764 S.E.2d

at 689 (evidence would have been inevitably discovered where search warrant

contained a description of the item sought and testimony established that the officer

“would have searched for the [item], no matter the location”). Based on Lt. Raynor’s

testimony, it would be mere speculation to hold otherwise.

B. Clerical Errors on Judgment and Commitment Forms

Lastly, Defendant argues, and the State concedes, that the judgment and

commitment forms contain clerical errors.

“When, on appeal, a clerical error is discovered in the trial court’s judgment or

order, it is appropriate to remand the case to the trial court for correction because of

the importance that the record ‘speak the truth.’” State v. Lark, 198 N.C. App. 82,

95, 678 S.E.2d 693, 702 (2009) (citation and marks omitted). “A clerical error is an

error resulting from a minor mistake or inadvertence, especially in writing or copying

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Opinion of the Court

something on the record, and not from judicial reasoning or determination.” Id.

(marks, alterations, and citations omitted).

Here, the trial court sentenced Defendant for six offenses: four related to the

26 April 2017 incident that were consolidated into a single 70- to 93-month sentence,

and the remaining two related to the 3 May 2017 incident that were consolidated into

a separate judgment for 8 to 19 months. The sentences were to run consecutively.

However, the trial court entered two judgment and commitment forms that were

inconsistent with these oral rulings. The first form includes only three of the four 26

April 2017 convictions and includes one of the 3 May 2017 offenses, possession with

intent to sell and deliver fentanyl, as the fourth count. The second form consolidates

the 26 April 2017 conviction for receiving stolen goods with the 3 May 2017 charge

for possession with intent to sell and deliver heroin.

The forms entered by the trial court therefore conflict with the sentence

rendered in open court, and since this is merely a clerical error, we remand to the

trial court for entry of a corrected judgment to match that which was announced in

court. See State v. Allen, 249 N.C. App. 376, 379, 790 S.E.2d 588, 591 (2016) (“If the

alleged sentencing error is only clerical in nature, it is appropriate to remand the case

to the trial court for correction because of the importance that the record speak the

truth.” (marks and citation omitted)).

III. Conclusion

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STATE V. TRIPP

Opinion of the Court

For the reasons stated above, we hold that the trial court erred in denying

Defendant’s motion to suppress and vacate Defendant’s convictions for possession

with intent to sell or deliver fentanyl and trafficking heroin. We further hold that

the judgment and commitment forms contain clerical errors. On remand, the trial

court shall resentence Defendant and correct the judgment and commitment forms

consistent with this opinion.

VACATED IN PART; REMANDED FOR CORRECTION OF CLERICAL

ERRORS.

Judge MURPHY concurs.

Judge STROUD concurs in part and dissents in part by separate opinion.

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No. COA18-1286 – State v. Tripp

STROUD, Judge, concurring in part and dissenting in part.

I concur with the majority’s opinion as to remand for correction of clerical

errors in the judgments. But I must respectfully dissent from the remainder of the

majority’s opinion reversing the trial court’s order denying Defendant’s motion to

suppress and vacating his convictions for trafficking heroin under file number

17CRS051205 and possession with intent to sell or deliver fentanyl under file number

17CRS000467. I would affirm the trial court’s order on the motion to suppress

because the trial court’s findings of fact are supported by the evidence and those

findings demonstrate that Defendant “posed a real threat to the safe and efficient

completion of the search.” State v. Wilson, 371 N.C. 920, 921, 821 S.E.2d 811, 813

(2018) (citing Bailey v. United States, 568 U.S. 186, 200-01, 133 S.Ct. 1031, 1041-42,

185 L. Ed. 2d 19 (2013)). And thus, Defendant is included in the definition of an

“occupant” based on the totality of the circumstances under State v. Wilson, 371 N.C.

at 924, 821 S.E.2d at 815.

I. Standard of Review

The majority opinion notes that “Defendant challenges several of the trial

court’s findings of fact as not supported by competent evidence,” but “assum[es]

without deciding that each of the challenged findings is supported by competent

evidence because, even if so, they cannot support Defendant’s detention pursuant to

either Summers or Terry.”

“Appellate courts are bound by the trial court’s findings if

STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

there is some evidence to support them, and may not

substitute their own judgment for that of the trial court

even when there is evidence which could sustain findings

to the contrary.” “[A]n appellate court accords great

deference to the trial court in this respect [.]”

State v. Ingram, 242 N.C. App. 173, 180, 774 S.E.2d 433, 439 (2015) (alterations in

original) (citations omitted).

If the trial court’s findings of fact are supported by the evidence or

unchallenged by the Defendant, this Court may then determine de novo if those

findings of fact support the conclusions of law:

When reviewing a trial court’s ruling on a motion for

appropriate relief, the appellate court must “determine

whether the findings of fact are supported by evidence,

whether the findings of fact support the conclusions of law,

and whether the conclusions of law support the order

entered by the trial court.” “If no exceptions are taken to

findings of fact [made in a ruling on a motion for

appropriate relief], such findings are presumed to be

supported by competent evidence and are binding on

appeal.’” In such a case, the reviewing court considers only

“whether the conclusions of law are supported by the

findings, a question of law fully reviewable on appeal.”

State v. Mbacke, 365 N.C. 403, 406-07, 721 S.E.2d 218, 220 (2012) (alteration in

original) (citations omitted).

The majority opinion recites the correct standard of review, citing to State v.

Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982), but it did not apply this

standard. Instead, the majority essentially considered all of the issues de novo. Using

the proper standard of review, I would affirm the trial court’s order.

-2-

STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

II. Findings of Fact

The trial court made detailed findings of fact and Defendant raised several

arguments as to the findings. Since the majority opinion assumes without deciding

that the findings of fact are supported by the evidence, it does not address Defendant’s

arguments regarding the findings. Although the majority opinion states that it

assumed the trial court’s findings of fact are supported by the record, its analysis

reweighs and reconsiders the evidence and tacitly rejects some of the trial court’s

findings. Most relevant to the issues on appeal is its determination that “[t]he trial

court did not make any findings consistent with, nor does the record reveal, that

Defendant posed a real threat to the execution of this search warrant.” The trial

court did make findings addressing the real threat to the execution of the search

warrant. Findings 4 through 8 address the reasons Deputy Dowdy determined

Defendant posed a threat to the execution of the warrant. The majority takes a

different view of the evidence than the trial court, but this Court’s role is not to re-

evaluate the evidence; we are only to determine if the findings of fact are supported

by the evidence and if those findings support the conclusions of law. See State v.

Mbacke, 365 N.C. at 406-07, 721 S.E.2d at 220.

Upon detailed review of the Defendant’s arguments regarding the findings of

fact, I would find that all are supported by competent evidence, except for a portion

of Finding No. 5. I will therefore address that finding. I will also address Findings

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STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

No. 7 and 8 as the majority’s opinion interprets the evidence regarding the proximity

of the two houses differently than the trial court.

A. Finding of Fact 5

5. Deputy Josh Dowdy, a nine year veteran of the sheriff's

office and a trained member of the Coastal Narcotics

Enforcement Team, participated in the execution of the

search warrant. Dowdy understood that the target of the

search was the defendant. He knew the defendant from at

least three other interventions with the defendant. In 2011

and 2013 he had been called to the defendant’s residence

due to domestic disturbances in which the defendant had

been brandishing a firearm. In 2012 he had arrested the

defendant for an assault on a female. At the time of that

arrest, he was at his grandfather’s house which is located

about 60 yards from the residence being searched pursuant

to the April 26, 2017 search warrant.

Defendant challenges whether “Deputy Dowdy was ‘a trained member of the

Coastal Narcotics Enforcement Team[.]’” Deputy Dowdy testified that he is an

investigator with the Craven County Sheriff’s Office. Finding of fact 5 is not based

on competent evidence to the extent it states Deputy Dowdy was a “member” of the

Narcotics Enforcement Team, but Defendant does not challenge the remainder of this

finding.

B. Finding of Fact 7

Defendant challenges whether he “had a direct line of sight to [the building to

be searched] and the officers on scene.” (Alteration in original.) Defendant argues

there is no evidence to support this finding, and “photographs introduced into

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STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

evidence instead show that there was a large amount of foliage between the two

buildings.”

Defendant’s brief includes a photograph labeled “Def. Trial Ex. 1.” The

photograph shows the house to be searched, Defendant’s grandfather’s house, and

some plants, perhaps bushes or small trees, in the area between the buildings. The

photograph shows a view from the front of the houses, far enough away to show both

of them. Defendant argues the bushes between the houses would have blocked the

view from one to the other. But Defendant’s argument presents an issue of the

credibility of Deputy Dowdy and the weight of the evidence. Deputy Dowdy agreed

that Defendant’s Exhibit 1 depicted the houses where the search occurred, but he was

not asked any other questions about his exact position, Defendant’s position, where

he was when he saw defendant, or the lines of sight between various locations. From

the angle in the photograph, it is impossible to see if there are gaps within the planted

area, even assuming the leaves were the same on the date of the photograph as on

the date of the search. The photograph does not necessarily refute Deputy Dowdy’s

testimony, and even if it did, this Court generally defers to the trial court’s

determination on conflicts in the evidence when reviewing denial of a motion to

suppress. See State v. Malone, 373 N.C. 134, 145, 833 S.E.2d 779, 786 (2019) (“A trial

court has the benefit of being able to assess the credibility of witnesses, weigh and

resolve any conflicts in the evidence, and find the facts, all of which are owed great

-5-

STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

deference by this Court.” (citing State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618,

619-20 (1982))). The presence of bushes or trees between the buildings does not refute

Deputy Dowdy’s testimony that he could see Defendant standing on the wheelchair

ramp at his grandfather’s house. Investigator Buck also testified that he observed

several people at Defendant’s grandfather’s house before entering the building to be

searched. In addition, Investigator Buck later observed Deputy Dowdy walking

toward the property to be searched from Defendant’s grandfather’s house. The trial

court’s finding regarding Defendant’s line of sight to the residence and the officers on

scene is supported by competent evidence.

C. Finding of Fact 8

“Defendant challenges [Finding of Fact 8] to the extent it is inconsistent with

Deputy Dowdy’s concession that he believed he was searching Mr. Tripp pursuant to

the search warrant.” Defendant does not challenge this finding as unsupported by

competent evidence, but rather argues it is not consistent with Deputy Dowdy’s

testimony. Finding of Fact 8 states:

As Deputy Dowdy was getting out of his motor vehicle he

observed the defendant to his right near the front porch of

the defendant’s grandfather’s house. Because of his past

experiences with the defendant, his previous firearm

possessions, and the reasons that brought law enforcement

to this residence, Dowdy asked him to put his hands on the

railing of a handicap ramp attached to his grandfather’s

house so he could “pat” him down for weapons. It was the

policy and normal procedure of the Sheriff’s Office for the

safety of the officers and those present to pat down all

-6-

STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

individuals with whom they made contact while executing

a search warrant. The defendant complied.

“The trial court’s findings of fact on a motion to suppress ‘are conclusive on

appeal if supported by competent evidence, even if the evidence is conflicting.’” State

v. Williams, 366 N.C. 110, 114, 726 S.E.2d 161, 165 (2012) (quoting State v. Eason,

336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994)). Deputy Dowdy acknowledged he

thought Defendant was a subject of the search warrant. However, based upon Deputy

Dowdy’s testimony and the trial court’s findings of fact, he searched Defendant to

secure the safety of the scene, due to his prior encounters with Defendant, and his

knowledge of Defendant’s criminal history. This finding is supported by competent

evidence.

III. Conclusions of Law

Since all of the trial court’s findings of fact are supported by the evidence except

for the one minimal challenged portion of Finding of Fact 5, I will address Defendant’s

arguments that the trial court’s conclusions of law are not supported by the findings

of fact.

A. Conclusion of Law 5

Defendant argues he was not an occupant of the “premises searched,” and “[t]o

the extent this is a finding of fact, defendant challenges it as unsupported by the

record.”

-7-

STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

This Court does “not base our review of findings of fact and conclusions of law

on the label in the order, but rather, on the substance of the finding or conclusion.”

State v. Johnson, 246 N.C. App. 677, 683, 783 S.E.2d 753, 758 (2016). To the extent

Defendant challenges that he was not an “occupant” of the premises searched, the

trial court’s findings address the fact that the property was his residence, at least

part of the time, as he also spent time at another residence in a trailer park. But in

the context of a search warrant, the term “occupant” has a different meaning than

someone who lives in a particular residence.

Our Supreme Court in Wilson identified three prongs to the

rule: “a warrant to search for contraband founded on

probable cause implicitly carries with it the limited

authority to detain (1) the occupants, (2) who are within

the immediate vicinity of the premises to be searched, and

(3) who are present during the execution of a search

warrant.” “These three parts roughly correspond to the

‘who,’ ‘where,’ and ‘when’ of a lawful suspicionless seizure

incident to the execution of a search warrant.”

State v. Thompson, ___ N.C. App. ___, ___, 832 S.E.2d 510, 513–14 (2019) (citation

omitted) (quoting State v. Wilson, 371 N.C. 920, 924, 821 S.E.2d 811, 815 (2018)).

“The Court ultimately concluded that a person is an ‘occupant’ for purposes of the

rule ‘if he poses a real threat to the safe and efficient execution of a search warrant.’”

Id. at ___, 832 S.E.2d at 514. This determination is a conclusion of law. See id.

At trial, Lt. Raynor testified about the policy:

Q. And can you tell the Court what that [policy] is?

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STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

A. My policy-- execution of search warrants, all persons on

scene or in proximity to our scenes that we believe to be a

threat are dealt with, which means that we will detain

them briefly, pat them down for weapons, make sure

they’re not a threat to us and then one of the narcotics

investigators on scene will make a determination if that

person can leave or not. If they’re gonna stay due to the

fact they’re in the residence where narcotics are found or if

at that point when they’re no longer deemed a threat to us,

they can be released from the scene and can go.

Q. And what types of things do you consider as far as

whether someone who’d be deemed a threat to you when

you’re executing a search warrant?

A. Anyone with prior history with us, with violent history,

known to carry guns, any known drug dealers that we have

past history with. By nature, generally drug dealers are

considered violent and by nature a majority carry guns in

one nature or another, so everybody inside of a known

narcotics residence or on the scene there we deal with for

our safety purposes, then deem whether or not they’re

suspect at that point to continue further.

Certainly, the law enforcement policy alone does not eliminate any

constitutional objections to the application of the policy. The fact that a person has

used a firearm in the past, taken in isolation, would not make a person an “occupant”

subject to a detention or search. In this case, many factors relevant to the potential

threat to the officers executing the warrant were present and noted in the trial court’s

findings. And an officer’s violation of the policies of his law enforcement agency could

be a factor weighing in favor of a defendant’s challenge to a search. But in this case,

Deputy Dowdy’s frisk of Defendant fell within the requirements of the policy. Even

-9-

STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

though Defendant was approximately sixty yards away from the house being

searched, there were eleven officers conducting the search, and Deputy Dowdy saw

Defendant on his grandfather’s porch after parking his vehicle in front the residence

being searched. In addition, Defendant was clearly close enough to the search and

the officers to pose an immediate threat if he had a gun. Based upon Defendant’s

criminal history, his history of use of guns, and his proximity to the house being

searched, Defendant was an “occupant” because “he pose[d] a real threat to the safe

and efficient execution of a search warrant.” Id. at ___, 832 S.E.2d at 514.

The majority opinion focuses on a few facts—such as how far a person could

possibly run within five or six seconds—in determining that Defendant did not pose

a “real threat to the safe and efficient execution” of the search warrant. I agree

Defendant was not capable of walking, or running, sixty yards within five or six

seconds. But the typical bullet from any type of handgun or rifle travels this distance

in a fraction of a second. If Defendant had a gun, the law enforcement officers

executing the warrant could have been in peril; Defendant would not have to run

faster than Usain Bolt to endanger their lives. And Deputy Dowdy’s concern was not

that Defendant would run to the house being searched; his concern was the possibility

Defendant may have a gun, based upon his extensive past experience with Defendant.

See Michigan v. Summers, 452 U.S. 692, 702-03, 101 S. Ct. 2587, 2594 (1981) (“Less

obvious, but sometimes of greater importance, is the interest in minimizing the risk

- 10 -

STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

of harm to the officers. . . . [T]he execution of a warrant to search for narcotics is the

kind of transaction that may give rise to sudden violence or frantic efforts to conceal

or destroy evidence. The risk of harm to both the police and the occupants is

minimized if the officers routinely exercise unquestioned command of the situation.”).

Deputy Dowdy testified he had responded to three prior calls involving

Defendant. In 2011, he responded to a call from Defendant’s mother, who reported a

domestic dispute where Defendant was “waving a firearm around.” The officers did

not find the firearm where Defendant’s mother had reported, but Defendant then told

the officers where it was, and they found it “under the pillow where a baby was also

on the bed” and “seized it for safekeeping.” In 2012, Deputy Dowdy “arrested

[Defendant] at his grandfather’s house for an assault on a female warrant.” In 2013,

Deputy Dowdy responded to a report that Defendant was “walking down the road

with a shotgun.” This report was from the “same address with same two parties,” at

the residence “down the path from 8420.” When the officers arrived, they walked

“down the path towards where [Defendant] was going to, which was his grandfather’s

house.” They ultimately found the gun at “[Defendant’s] residence back at 8420.”

Defendant told Deputy Dowdy that he “shot a shotgun in the air to scare her,” after

an altercation.

I agree with the majority that “‘an individual’s presence within the immediate

vicinity of a search’ cannot operate categorically to pose ‘a threat to the search’s safe

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STROUD, J., concurring in part, dissenting in part

and efficient execution.’” But in this situation, the majority holds that law

enforcement officers should have assumed Defendant posed no threat to their safety,

even though his own residence was being searched, a day after he had made a sale of

heroin in that same residence to an undercover agent the previous day, 7 and even

though they knew he had previously possessed guns and fired guns in domestic

disputes. Defendant was simply not comparable to “any grass-mowing uncle, tree-

trimming cousin, or next-door godson checking his mail” who was searched “merely

based upon his ‘connection’ to the premises and hapless presence in the immediate

vicinity.” Thompson, ___ N.C. App. at ___, 832 S.E.2d at 516. Neither Summers nor

Wilson requires the law enforcement officers to wait until a person near the scene of

a search attempts to enter the residence or displays a weapon before they are

considered a “real threat to the safe and efficient execution of a search warrant.” See

id. at ___, 832 S.E.2d at 515-16.

B. Conclusion of Law 6

Defendant argues, “[t]o the extent this is a finding of fact, it is unsupported by

the record to the extent it implies Dowdy believed the baggie contained narcotics

based solely on his initial visual observation, for the reasons stated above.” As noted

above, the majority has taken all of the findings of fact as supported by the record,

7 The trial court found that Deputy Dowdy chose to approach Defendant in part due to “the reasons

that brought law enforcement to this residence[.]”

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STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

and I would conclude the challenged portion of this mixed finding of fact and

conclusion of law is supported by competent evidence.

IV. Detention

Defendant does not challenge a specific conclusion of law on this issue but

argues his detention by Deputy Dowdy was unlawful:

Deputy Dowdy’s decision to detain Mr. Tripp

violated the Fourth Amendment and the North Carolina

Constitution. It is unclear whether the trial court

considered Mr. Tripp’s detention an investigatory stop

under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), or a

detention under Michigan v. Summers, 452 U.S. 692, 101

S.Ct. 2587 (1981). Regardless, Dowdy was not permitted

to detain Mr. Tripp under either line of cases.

I review this conclusion of law de novo, but this review must be based upon the trial

court’s findings of fact. State v. Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631

(2000).

In Michigan v. Summers, the United States Supreme Court concluded “for

Fourth Amendment purposes, we hold that a warrant to search for contraband

founded on probable cause implicitly carries with it the limited authority to detain

the occupants of the premises while a proper search is conducted.” 452 U.S. at 705,

101 S. Ct. at 2595 (footnotes omitted). The United States Supreme Court further

defined the spatial constraints of a detention subject to a search warrant in Bailey v.

United States:

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STROUD, J., concurring in part, dissenting in part

A spatial constraint defined by the immediate

vicinity of the premises to be searched is therefore required

for detentions incident to the execution of a search

warrant. The police action permitted here—the search of

a residence—has a spatial dimension, and so a spatial or

geographical boundary can be used to determine the area

within which both the search and detention incident to that

search may occur. Limiting the rule in Summers to the

area in which an occupant poses a real threat to the safe

and efficient execution of a search warrant ensures that the

scope of the detention incident to a search is confined to its

underlying justification. Once an occupant is beyond the

immediate vicinity of the premises to be searched, the

search-related law enforcement interests are diminished

and the intrusiveness of the detention is more severe.

568 U.S. 186, 201, 185 L. Ed. 2d 19 (2013).

Our Supreme Court in Wilson identified three prongs to the

rule: “a warrant to search for contraband founded on

probable cause implicitly carries with it the limited

authority to detain (1) the occupants, (2) who are within

the immediate vicinity of the premises to be searched, and

(3) who are present during the execution of a search

warrant.” “These three parts roughly correspond to the

‘who,’ ‘where,’ and ‘when’ of a lawful suspicionless seizure

incident to the execution of a search warrant.”

Our Supreme Court in Wilson applied the Summers

rule and rejected the defendant’s challenge to the trial

court’s denial of his motion to suppress. In that case, the

defendant had arrived on the scene while the Winston-

Salem Police Department was in the process of actively

securing a home in order to execute a search warrant. The

defendant penetrated the perimeter securing the scene,

walked past an officer, and announced that he was going to

retrieve his moped. After disobeying the officer’s command

to stop, the defendant proceeded down the driveway toward

the home, at which point officers detained and frisked him.

Officers recovered a firearm, and the defendant was

charged with possession of a firearm by a felon.

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STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

In determining whether the defendant had been

lawfully seized under the Summers rule, our Supreme

Court noted that the application of the second and third

prongs was “straightforward,” and thus focused its inquiry

on the first prong, i.e., whether the defendant’s brief

detention was justified on the ground that he was an

“occupant” of the premises during the execution of a search

warrant.

The United States Supreme Court adopted the

Summers rule based in part upon the rationale that “[i]f

the evidence that a citizen’s residence is harboring

contraband is sufficient to persuade a judicial officer that

an invasion of the citizen’s privacy is justified, it is

constitutionally reasonable to require that citizen to

remain while officers of the law execute a valid warrant to

search [her] home.” Our Supreme Court noted, however,

that beyond enumerating the governmental interests that

combine to justify a Summers detention, the United States

Supreme Court had yet to “directly resolve[ ] the issue of

who qualifies as an ‘occupant’ for the purposes of the . . .

rule.”

In attempting to answer this question, the Wilson

Court examined the various rationales underlying the

Summers rule. The Court ultimately concluded that a

person is an “occupant” for purposes of the rule “if he poses

a real threat to the safe and efficient execution of a search

warrant.” Thus, under this formulation of the rule, our

Supreme Court noted that although a defendant may not

be “an occupant of the premises being searched in the

ordinary sense of the word,” the defendant’s “own actions”

may nevertheless “cause[ ] him to satisfy the first part, the

‘who,’” of a lawful Summers detention.

Applying this definition, although the defendant

was not inside the premises when the officers arrived to

execute the search warrant, our Supreme Court concluded

that the defendant’s own actions had nevertheless

rendered him an “occupant,” thereby subjecting him to a

suspicionless seizure incident to the lawful execution of the

search warrant.

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STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

State v. Thompson, ___ N.C. App. at ___, 832 S.E.2d at 513-14 (alterations in original)

(citations omitted).

When officers arrived at Defendant’s property to execute the search warrant,

Defendant was watching from approximately sixty yards away at his grandfather’s

house. He was close enough to be “within the immediate vicinity of the premises to

be searched.” Id. at ___, 832 S.E.2d at 513. Based on the specific facts of this case, I

would hold Defendant was within the area that “poses a real threat to the safe and

efficient execution of a search warrant.” Id. at ___, 832 S.E.2d at 514. Accordingly,

Defendant was lawfully detained by Deputy Dowdy.

V. Frisk

Defendant argues that [e]ven if Deputy Dowdy’s seizure of Mr. Tripp was

justified, his frisk was not.” “Before Dowdy could frisk Mr. Tripp, he was required to

have some specific, articulable facts suggesting Mr. Tripp was armed and presently

dangerous. Because Dowdy knew of no such facts, all evidence discovered through

the frisk must be suppressed even if Mr. Tripp’s detention were lawful.”

In Terry v. Ohio, the Supreme Court determined that a

brief stop and frisk did not violate a defendant’s Fourth

Amendment rights when “a reasonably prudent man would

have been warranted in believing [the defendant] was

armed and thus presented a threat to the officer’s safety

while he was investigating his suspicious behavior.” In

other words, an officer may constitutionally conduct what

has come to be called a Terry stop if that officer can

“reasonably . . . conclude in light of his experience that

criminal activity may be afoot.” “The reasonable suspicion

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STROUD, J., concurring in part, dissenting in part

standard is a ‘less demanding standard than probable

cause’ and ‘a considerably less [demanding standard] than

preponderance of the evidence.’” To meet this standard, an

officer “must be able to point to specific and articulable

facts” and to “rational inferences from those facts”

justifying the search or seizure at issue. “To determine

whether reasonable suspicion exists, courts must look at

‘the totality of the circumstances’ as ‘viewed from the

standpoint of an objectively reasonable police officer.’”

State v. Wilson, 371 N.C. 920, 926, 821 S.E.2d 811, 812 (alterations in original)

(citations omitted).

Here, Deputy Dowdy testified about three prior interactions with Defendant,

and the trial court made findings noting these interactions. On one of these occasions,

Defendant told Deputy Dowdy that he fired a shotgun in the air to scare his partner,

and on a separate occasion officers retrieved a firearm from Defendant’s residence for

safekeeping, and the trial court’s Finding of Fact 5 references these interactions:

He knew the defendant from at least three other

interventions with the defendant. In 2011 and 2013 he had

been called to the defendant’s residence due to domestic

disturbances in which the defendant had been brandishing

a firearm. In 2012 he had arrested the defendant for an

assault on a female.

The trial court found Deputy Dowdy’s past experiences in addition to his safety and

the sheriff’s office policy to be relevant to his decision to frisk Defendant:

8. As Deputy Dowdy was getting out of his motor vehicle he

observed the defendant to his right near the front porch of

the defendant's grandfather’s house. Because of his past

experiences with the defendant, his previous firearm

possessions, and the reasons that brought law enforcement

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STROUD, J., concurring in part, dissenting in part

to this residence, Dowdy asked him to put his hands on the

railing of a handicap ramp attached to his grandfather’s

house so he could “pat” him down for weapons. It was the

policy and normal procedure of the Sheriff’s Office for the

safety of the officers and those present to pat down all

individuals with whom they made contact while executing

a search warrant. The defendant complied.

Here, the sheriff’s office was conducting a search at a location where the

previous day, Defendant had sold drugs in a controlled buy at the residence to be

searched. Deputy Dowdy was aware of Defendant’s reputation in the community as

a drug dealer, and he had personal experience with calls involving domestic violence

and firearms in some of those instances. Defendant was close enough to the officers

conducting the search to pose a threat to them, particularly if he had a gun. Based

on the totality of the circumstances, I would conclude that “a reasonably prudent man

in the circumstances would be warranted in the belief that his safety or that of others

was in danger.” Terry v. Ohio, 392 U.S. 1, 27, 20 L. Ed. 2d 889 (1968).

VI. Plain View Doctrine

Defendant makes two arguments in support of his position that, “the seizure

of narcotics from [Defendant’s] pocket was not justified by the ‘plain view’ doctrine.”

“First, Dowdy did not see or feel the bag “from a place where he has legal right to

be[.]” (Alteration in original.) And second, “even if Dowdy had been allowed to enter

the neighboring yard and seize [Defendant], Dowdy never claimed that upon seeing

the bag, it was ‘immediately apparent’ it contained narcotics. Instead, he testified he

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STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

saw the bag, and that while patting [Defendant] down, he felt an associated lump

that made him believe the bag contained narcotics.”

“Under the plain view doctrine, a warrantless seizure is lawful if (1) the officer

views the evidence from a place where he has legal right to be, (2) it is immediately

apparent that the items observed constitute evidence of a crime, are contraband, or

are subject to seizure based upon probable cause, and (3) the officer has a lawful right

of access to the evidence itself.” State v. Alexander, 233 N.C. App. 50, 55, 755 S.E.2d

82, 87 (2014) (citing State v. Nance, 149 N.C. App. 734, 740, 562 S.E.2d 557, 561-62

(2002)).

Here the trial court found:

9. The defendant was wearing baggy jogging pants. While

patting him down Dowdy could feel what he thought was

money in his left pocket. Because his pants were so

“baggy”, Dowdy could see, without manipulating the

garment, a plastic baggie in his right pants pocket, and

while patting him down he felt a large lump associated

with that baggie. His training and experience allowed him

to reasonably conclude that the plastic baggie in the

defendant’s pocket contained narcotics. As a result Dowdy

removed the bag and its contents. Dowdy had concluded

that the plastic baggie was consistent with how narcotics

are carried and packaged. He was also acutely aware of

the reasons that they were searching the defendant’s

residence.

As to Defendant’s first argument, because I would hold that Defendant was

within the area that “poses a real threat to the safe and efficient execution of a search

warrant,” State v. Thompson, ___ N.C. App. at ___, 832 S.E.2d at 514, I would

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STROUD, J., concurring in part, dissenting in part

conclude Deputy Dowdy was in a place he had the legal right to be. Defendant’s

second argument is that because Deputy Dowdy saw the bag and then felt it before

determining it to be consistent with narcotics, it was not “immediately apparent” as

narcotics. I disagree and would conclude that even though Deputy Dowdy did not

himself use the words “immediately apparent,” his actions and testimony make it

clear that this is a situation where it was “immediately apparent that the items

observed constitute evidence of a crime, [or] are contraband . . . .” State v. Alexander,

233 N.C. App. at 55, 755 S.E.2d at 87. Deputy Dowdy’s warrantless seizure of the

drugs in Defendant’s pocket was subject to the plain view doctrine. See Minnesota v.

Dickerson, 508 U.S. 366, 375-76, 124 L. Ed. 2d 334, 375-376 (1993) (“If a police officer

lawfully pats down a suspect’s outer clothing and feels an object whose contour or

mass makes its identity immediately apparent, there has been no invasion of the

suspect’s privacy beyond that already authorized by the officer’s search for

weapons.”).

VII. Additional Arguments

Because I would hold the trial court did not err by denying Defendant’s motion

to suppress, I need not address Defendant’s argument regarding inevitable discovery.

VIII. Conclusion

For the foregoing reasons, I would hold the trial court did not err in denying

Defendant’s motion to suppress. However, there are clerical errors on Defendant’s

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STATE V. TRIPP

STROUD, J., concurring in part, dissenting in part

judgment and commitment forms, and I concur in the majority opinion as to remand

for correction of the clerical errors.

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