State v. Willis

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA14-111

NORTH CAROLINA COURT OF APPEALS

Filed: 16 September 2014

STATE OF NORTH CAROLINA

v. Sampson County

Nos. 12 CRS 50372-73

REGINALD WILLIS

Appeal by the State from order entered 7 October 2013 by

Judge Arnold Jones in Sampson County Superior Court. Heard in

the Court of Appeals 5 June 2014.

Roy Cooper, Attorney General, by Teresa M. Postell,

Assistant Attorney General, for the State.

Amanda S. Zimmer for defendant-appellee.

DAVIS, Judge.

The State appeals from the trial court’s 7 October 2013

order granting a motion to suppress filed by Reginald Willis

(“Defendant”). After careful review, we vacate and remand to

the trial court for further proceedings.

Factual Background

On 16 February 2012, Corporal Nick Pope (“Corporal Pope”),

a deputy sheriff employed by the Sampson County Sheriff’s

-2-

Office1, was sitting in his patrol car, stationed in the center

median of Interstate 40 at mile marker 351, when Defendant’s

vehicle drove by him. Corporal Pope thought it “looked weird”

that he was only able to see Defendant’s hat because Defendant

“was leaning so far back and so low in the seat” as if “he was

hiding himself from [Corporal Pope].”

Corporal Pope pulled into the left lane and followed

Defendant for approximately four miles. Immediately after

Corporal Pope pulled onto the highway, Defendant switched lanes,

“indicating to [Corporal Pope] that he was still busy looking at

[Corporal Pope] in the rearview mirror.” As Corporal Pope

followed Defendant, he noticed Defendant was “not driving

straight” as well as the fact that Defendant had “weav[ed] from

the solid, fog line to the center divider line” and “crossed . .

. the white fog line, on more than one occasion.” Corporal Pope

called a backup officer and informed him that he was going to

initiate a traffic stop based on Defendant’s traffic violation.

As Corporal Pope approached the passenger side of

Defendant’s stopped vehicle, Defendant rolled the window down,

at which point the odor of “raw marijuana hit [Corporal Pope] in

1

On the date of the suppression hearing, Corporal Pope was

employed as a trooper by the North Carolina State Highway

Patrol.

-3-

the face.” There were no other passengers in Defendant’s

vehicle.

Defendant handed Corporal Pope his New Jersey driver’s

license and a rental agreement entered into in Wilmington, North

Carolina, indicating the vehicle had been rented to a female who

was not in the vehicle. Defendant initially told Corporal Pope

that he was returning home to New Jersey but then “immediately

changed his story, [stating] that he was heading to Winston-

Salem.” Corporal Pope also noticed that Defendant had “tobacco

guts” on his shirt and in his lap, which he knew “came from

rolling a marijuana joint or blunt from a cigar” based on his

having received over 256 hours of training in criminal and drug

interdiction.

Corporal Pope asked Defendant to step out of the vehicle.

When he asked Defendant about the “tobacco guts” on his shirt,

Defendant “brushed them off his shirt really quick, like he

didn’t want [Corporal Pope] to see them.” Corporal Pope

conducted a Terry2 search of Defendant to check for “weapons,

firearms, knives, or anything that could hurt [him].” When

2

In Terry, the Supreme Court held that a police officer who “has

reason to believe that he is dealing with an armed and dangerous

individual” may conduct a limited pat-down of the individual for

weapons regardless of whether he has probable cause to make an

arrest. Terry v. Ohio, 392 U.S. 1, 27, 20 L.E.2d 889, 909

(1968).

-4-

Corporal Pope did not find any weapons, he asked Defendant to

sit in the passenger seat of his patrol car.

Corporal Donald Carter (“Corporal Carter”), another deputy

sheriff with the Sampson County Sheriff’s Office Criminal

Interdiction Team, arrived on the scene to assist Corporal Pope.

Corporal Pope asked Corporal Carter to sit with Defendant while

he conducted a search of Defendant’s vehicle “based on the smell

of marijuana.”

Corporal Pope searched Defendant’s vehicle and found

“bright green” marijuana residue mixed with brown tobacco in the

floorboard, seat, and cup holder. Corporal Pope also searched

the center console of the vehicle and found “large bundles of

U.S. currency” in the total amount of $6,052.00 and several cell

phones.

Corporal Pope informed Corporal Carter about what he had

found in Defendant’s vehicle, and Corporal Carter decided to

conduct a more extensive search of Defendant’s person because he

“still smelled an extreme odor of marijuana emitting from

[Defendant’s] person.” During this search, Corporal Carter

reached into Defendant’s back pocket and found three small wax

paper bags that he believed to contain heroin.

-5-

Defendant was then handcuffed, told he was under arrest,

and placed in the front seat of Corporal Pope’s patrol vehicle.

The bags were placed in the center console of Corporal Pope’s

vehicle. Although Defendant was handcuffed, he was able to gain

access to the bags and “attempted to tear them up into pieces.”

Approximately 15 to 20 minutes after Defendant was placed

in handcuffs, Corporal Pope retrieved his drug-sniffing dog from

the back seat of his patrol vehicle to see if the dog could

detect the presence of any narcotics in Defendant’s vehicle.

The dog immediately indicated the presence of narcotics at the

driver’s side door of Defendant’s vehicle. The deputies placed

the currency found in Defendant’s vehicle into a paper bag, and

the dog detected “the presence of narcotic odor on the bag which

contained the currency.”

On 2 April 2012, Defendant was indicted by a Sampson County

grand jury on charges of (1) possession of heroin; (2)

possession of up to one half ounce of marijuana; (3) possession

of drug paraphernalia; and (4) altering or destroying criminal

evidence. On 17 April 2012, Defendant filed a motion to

suppress, alleging that the vehicle stop, the search of the

vehicle, and the search of his person were unlawful and that all

evidence seized as a result should be suppressed.

-6-

Defendant’s motion to suppress was heard in Sampson County

Superior Court on 12 August 2013. On that same day, the trial

court announced that it was granting Defendant’s motion. On 7

October 2013, the trial court entered a written order

containing, in pertinent part, the following findings of fact:

6. Cpl. Nick Pope with the Sampson County

Sheriff’s Department was working traffic

patrol on Interstate 40 at approximately

10:30 am on February 16, 2012 when he

observed the Defendant’s vehicle driving

westbound.

7. Cpl. Pope stated the driver appeared

overly nervous, had his ball cap pulled low

and was leaned back in the seat.

8. Cpl. Pope then pulled out and followed

the vehicle for approximately four miles.

9. Cpl. Pope indicated the vehicle was

weaving within the lane and then crossed the

fog line multiple times.

10. Cpl. Pope stated he did not pull the

vehicle immediately upon observing the

traffic violation as he had to check

multiple factors such as the location of his

back up, the number of occupants of the

vehicle, if any minors were in the vehicle,

and to make further observations of the

vehicle.

11. Cpl. Pope stated his in car camera was

not operational on the date of the stop.

12. Cpl. Pope activated his blue lights and

sirens and the Defendant pulled the car onto

the shoulder of the highway.

-7-

13. Cpl. Pope stated he smelled what he

believed to be and [sic] extremely strong

odor of marijuana.

14. Cpl. Pope stated he knew through his

training and experience that drugs are often

accompanied by guns.

15. Cpl. Pope stated the driver’s hands

were shaking and he appeared nervous, the

vehicle was a rental and had been rented to

a third party not in the vehicle, the

Defendant gave two different destinations

when being questioned by the officer. All

of which in his training and experience are

evidence of drug activity.

16. Cpl. Pope asked the driver to exit the

vehicle and conducted frisked [sic] the

Defendant before placing him into the front

seat of the patrol vehicle.

17. Cpl. Pope requested backup, Cpl. Carter

responded.

18. Cpl. Carter’s in car camera was also

not operational on the date of this action.

19. Cpl. Carter stated he could smell the

odor of marijuana coming from the

defendant’s person as soon as he walked up

to the passenger side of the patrol car

where the defendant was sitting.

20. Cpl. Pope searched the suspect vehicle

and located marijuana residue and a large

amount of US Currency from the suspect

vehicle.

21. Cpl. Cater [sic] stated he then removed

the Defendant from the patrol vehicle and

searched the driver again because he knew

there must be more marijuana on the

Defendant since only residue was found in

-8-

the vehicle.

22. During this second search, Cpl. Carter

discovered three bags of heroine [sic] in

the Defendant’s pant pocket.

23. The Defendant was then handcuffed and

placed back into the patrol vehicle.

The trial court then made the following conclusions of law:

1. The stop of the vehicle was lawful due

to Cpl. Pope’s observation of the traffic

violation of weaving within the lane and

crossing the fog line as well as his

subjective opinion of the Defendant’s level

of nervousness.

2. Cpl. Pope’s frisk of the Defendant for

weapons was valid.

3. [A]t the time that Cpl. Carter searched

the Defendant for the second time, the

Defendant was not free to leave the scene

and was seized within the meaning of the

Fourth Amendment on [sic] the Constitution

of the United States, the Constitution of

the State of North Carolina and case law

such as Minnesota v. Dickerson, 508 U.S. 366

(1993).

4. During the seizure of the Defendant,

Cpl. Carter conducted an illegal search

without a search warrant as the Defendant

had previously been frisked for weapons.

Based on these conclusions of law, the trial court ordered

“all of the evidence obtained as a result of the unreasonable

search . . . [be] suppressed as fruit of the poisonous tree . .

. .” The State appealed to this Court.

-9-

Analysis

This Court's review of a trial court's ruling concerning 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). Any findings of fact

that are not challenged on appeal are “deemed to be supported by

competent evidence and are binding on appeal.” State v.

Roberson, 163 N.C. App. 129, 132, 592 S.E.2d 733, 735-36, disc.

review denied, 358 N.C. 240, 594 S.E.2d 199 (2004). Our review

of a trial court’s conclusions of law is de novo. State v.

Kincaid, 147 N.C. App. 94, 97, 555 S.E.2d 294, 297 (2001).

We believe the trial court’s order must be vacated for two

reasons. First, virtually every “finding of fact” the trial

court made in its suppression order merely recited that Corporal

Pope or Corporal Carter had stated that particular fact.

“Recitations of the testimony of each witness do not constitute

findings of fact by the trial judge.” In re Bullock, ___ N.C.

App. ___, ___, 748 S.E.2d 27, 30 (2013) (citation and quotation

marks omitted); see Lane v. Am. Nat’l Can Co., 181 N.C. App.

-10-

527, 531, 640 S.E.2d 732, 735 (2007) (“[F]indings of fact must

be more than a mere summarization or recitation of the evidence

. . . .”), disc. review denied, 362 N.C. 236, 659 S.E.2d 735

(2008). If the trial court includes the recitation of testimony

in its suppression order, “our review is limited to . . . facts

found by the trial court and the conclusions reached in reliance

on those facts, not the testimony recited by the trial court in

its order.” State v. Derbyshire, ___ N.C. App. ___, ___, 745

S.E.2d 886, 893 (2013), disc. review denied, ___ N.C. ___, 753

S.E.2d 785 (2014).

It is well established that where, as here, “the trial

court fails to make findings sufficient to allow the reviewing

court to apply the correct legal standard, it is necessary to

remand the case to the trial court.” State v. Salinas, 366 N.C.

119, 124, 729 S.E.2d 63, 67 (2012). We therefore vacate the

trial court’s order and remand this action for the entry of

actual factual findings.

Second, we believe that remand is also necessary because

the trial court utilized the incorrect legal framework in

evaluating Defendant’s motion to suppress. Both this Court and

our Supreme Court have recognized that remand may be appropriate

in instances in which the trial court has applied the wrong

-11-

legal standard. See State v. Buchanan, 353 N.C. 332, 339-40,

543 S.E.2d 823, 828 (2001) (“The trial court in the instant case

mistakenly applied the broader ‘free to leave’ test in

determining whether defendant was ‘in custody’ for the purposes

of Miranda. We therefore remand the case to the trial court for

a redetermination of whether a reasonable person in defendant’s

position, under the totality of the circumstances, would have

believed he was under arrest or was restrained in his movement

to the degree associated with a formal arrest.”); State v.

Williams, 195 N.C. App. 554, 561, 673 S.E.2d 394, 398-99 (2009)

(“Where . . . the trial court mistakenly applies an incorrect

legal standard in determining whether a defendant’s

constitutional rights have been violated for purposes of a

motion to suppress, the appellate court must remand the matter

to the trial court for a ‘redetermination’ under the proper

standard.”).

In the present case, during the suppression hearing, the

trial court stated as follows:

I find that the defendant was not free to

leave. And consistent with Minnesota versus

Dickerson, when the defendant’s back pocket

was manipulated and the heroin was pulled

out, that was a violation of his Fourth

Amendment rights. That went beyond a frisk.

He hadn’t been advised of his rights. He

wasn’t free to leave. As it relates to the

-12-

heroin pulled out of his pocket, I’ll order

that suppressed. That wasn’t valid according

to the law.

The trial court then memorialized this ruling in conclusion of

law 3 of its written order, stating that

at the time that Cpl. Carter searched

Defendant for the second time, the Defendant

was not free to leave the scene and was

seized within the meaning of the Fourth

Amendment on [sic] the Constitution of the

United States, the Constitution of the State

of North Carolina and case law such as

Minnesota v. Dickerson, 508 U.S. 366 (1993).

In Minnesota v. Dickerson, the case the trial court relied

upon in concluding that the search of Defendant was unlawful,

the United States Supreme Court held that a police officer may

seize nonthreatening contraband obtained during a warrantless

Terry pat-down for weapons as long as the search stays within

the scope of Terry and the incriminating nature of the object is

immediately apparent. Dickerson, 508 U.S. 366, 379, 124 L.E.2d

334, 348 (1993). The Supreme Court held that the search in

Dickerson had exceeded the lawful bounds set out in Terry

because the officer had to physically manipulate the object in

the defendant’s pocket in order to determine its incriminating

nature. Id.

Here, however, Corporal Pope had already completed a

protective frisk of Defendant for weapons. Corporal Carter’s

-13-

subsequent physical search of Defendant was not a Terry frisk

but rather was a warrantless physical search of Defendant’s

person based on the deputy’s belief that probable cause existed

for the search. As such, the trial court’s analysis of the

search under Dickerson was erroneous.

Because the trial court’s conclusion that the search was

unconstitutional was premised on the fact that “Defendant had

previously been frisked for weapons,” the court did not analyze

whether the search was valid on other grounds. While the trial

court noted that the search was conducted without a search

warrant, the analysis of whether the search was constitutional

should not have ended there. See State v. Allison, 298 N.C.

135, 141, 257 S.E.2d 417, 421 (1979) (“A warrantless search is

not unconstitutional . . . when (1) probable cause to search

exists and (2) the government satisfies its burden of

demonstrating that the exigencies of the situation made search

without a warrant imperative.”).

Indeed, as the State points out, this Court has previously

upheld a warrantless search of a defendant based on the odor of

marijuana emanating from the defendant’s person. See State v.

Yates, 162 N.C. App. 118, 123, 589 S.E.2d 902, 905 (2004)

(concluding that probable cause and exigent circumstances

-14-

justified officer’s warrantless search of defendant where (1)

defendant walked by law enforcement officer twice “emanating a

strong odor of marijuana, and each time defendant was alone”;

and (2) immediate search was warranted because officer’s partner

was occupied and “narcotics can be easily and quickly hidden or

destroyed”).

However, the issue of whether a warrantless search is

constitutionally valid based on probable cause and exigent

circumstances is a case-by-case determination that must be made

by the finder of fact. State v. Harper, 158 N.C. App. 595, 602,

582 S.E.2d 62, 67 (“Generally, warrantless searches are not

allowed absent probable cause and exigent circumstances, the

existence of which are factual determinations that must be made

on a case by case basis.”), appeal dismissed and disc. review

denied, 357 N.C. 509, 588 S.E.2d 372 (2003). Accordingly, we

remand to the trial court for determination of the legal issues

raised by Defendant’s motion to suppress

because it is the trial court that is

entrusted with the duty to hear testimony,

weigh and resolve any conflicts in the

evidence, find the facts, and, then based

upon those findings, render a legal

decision, in the first instance, as to

whether or not a constitutional violation of

some kind has occurred.

-15-

Salinas, 366 N.C. at 124, 729 S.E.2d at 67 (citation and

quotation marks omitted).

Conclusion

For the reasons stated above, we vacate and remand for

further proceedings not inconsistent with this opinion.

VACATED AND REMANDED.

Judges HUNTER, JR. and ERVIN concur.

Report per Rule 30(e).

Judge HUNTER, JR. concurred in this opinion prior to 6

September 2014.