State v. Michael

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-846

Filed 19 December 2023

Davidson County, No. 19 CRS 53826

STATE OF NORTH CAROLINA

v.

KEVIN BRIAN MICHAEL, Defendant.

Appeal by defendant from judgment entered 3 February 2022 by Judge Lori I.

Hamilton in Davidson County Superior Court. Heard in the Court of Appeals 4

October 2023.

Attorney General Joshua H. Stein, by Assistant Attorney General Matthew W.

Bream, for the State.

Kimberly P. Hoppin, for the Defendant.

DILLON, Judge.

Defendant Kevin Brian Michael appeals his conviction for possession of a

controlled substance. We conclude that Defendant received a fair trial, free of

reversible error.

I. Background

On 11 July 2019, Defendant was driving with two passengers. He was pulled

over by Officer Kattner of the Thomasville police for failing to yield.

During the stop, Officer Kattner called another officer, Officer Rowe, to the

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Opinion of the Court

scene. At the conclusion of the traffic stop, Officer Kattner returned to Defendant

and the passengers their identification cards and told them that they were free to go.

However, based on the nervous behavior of Defendant and the other

passengers, Officer Kattner asked Defendant for permission to search the vehicle.

Defendant stated that he was on probation and that, therefore, he was required to

allow the search. Officer Kattner again asked for Defendant’s consent, whereupon

Defendant consented.

During the search of the vehicle, Officer Kattner found cocaine and drug

paraphernalia. Defendant and the two occupants were arrested.

Defendant filed a motion to suppress the results of the search, which the trial

court denied. Defendant renewed his motion prior to jury selection, and the trial

court reconfirmed its ruling. However, Defendant did not object during the trial when

the State introduced the results of the search into evidence. Defendant was convicted

of possession of a controlled substance. He appeals.

On appeal, Defendant argues that the search violated his Fourth Amendment

right against unreasonable search and seizure, and further, that the trial court erred

when it denied Defendant’s motion to dismiss because there was insufficient evidence

that he knowingly possessed cocaine.

II. Analysis

Defendant argues that the trial court erred by not suppressing the evidence of

the search and by not granting his motion to dismiss. We address each argument in

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Opinion of the Court

turn.

A. Motion to Suppress

We first consider whether Defendant’s Fourth Amendment right was violated

by Officer Kattner’s search of the vehicle.

Our appellate review is limited to plain error, as Defendant failed to object

during the trial to the admission of cocaine found in the vehicle. State v. Golphin,

352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000) (“[A] motion in limine [is] not sufficient

to preserve for appeal the question of admissibility of evidence if the defendant does

not object to that evidence at the time it is offered at trial.”). Plain error occurs if

“absent the error, the jury would have probably reached a different verdict.” State v.

Faison, 330 N.C. 347, 361, 411 S.E.2d 143, 151 (1991).

Both the federal and our state constitutions generally render evidence obtained

from a suspect in violation of the Fourth Amendment inadmissible at trial. Mapp v.

Ohio, 367 U.S. 643 (1961); State v. McKinney, 361 N.C. 53, 58, 637 S.E.2d 868, 872

(2006).

“A traffic stop is a seizure even though the purpose of the stop is limited and

the resulting detention quite brief.” State v. Barnard, 362 N.C. 244, 246, 658 S.E.2d

643, 645 (2008). “[R]easonable suspicion is the necessary standard for traffic stops.”

State v. Styles, 362 N.C. 412, 415, 665 S.E.2d 438, 440 (2008). Further, “the duration

of a traffic stop must be limited to the length of time that is reasonably necessary to

accomplish the mission of the stop.” State v. Bullock, 370 N.C. 256, 257, 805 S.E.2d

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671, 673 (2017).

“An investigation unrelated to the reasons for the traffic stop must not prolong

the roadside detention.” State v. Reed, 373 N.C. 498, 509, __ S.E.2d __, __ (2020). To

prolong a detention “beyond the scope of a routine traffic stop” requires that an officer

“possess a justification for doing so other than the initial traffic violation that

prompted the stop in the first place”, which requires “either the driver’s consent or a

‘reasonable suspicion’ that illegal activity is afoot.” Id. at 510, __ S.E.2d at __.

Here, Officer Kattner testified that as she approached the vehicle . . .

[t]he backseat passenger was making it a point to avoid any

eye contact with me. She was trying to hide her face from

me. The front two were -- I could at least see their faces,

but they were still nervous upon initial interaction… [t]hey

were not wanting to maintain eye contact. They were short

in their responses to me…. They were a little

fidgety…anxious.

She ran the information of all the vehicle occupants, which revealed that Defendant

and one of the passengers did not have any outstanding warrants but that the other

passenger had an outstanding warrant for failure to appear in another county.

As Officer Kattner was completing the traffic stop, Officer Rowe arrived on the

scene. Officer Kattner approached the vehicle with Officer Rowe to give Defendant a

verbal warning and to return identification cards to Defendant and the other

passengers. She gave a verbal warning to Defendant and told him and the passengers

that they were free to leave. We conclude that the seizure associated with the traffic

stop was concluded at this point. See Reed, 373 N.C. at 513, __ S.E. at __.

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Opinion of the Court

Officer Kattner testified that the vehicle occupants, however, continued to

appear “nervous” even though “they knew they weren’t getting in trouble for a traffic

violation.” She reiterated that the traffic stop was completed but then asked

Defendant if there was anything illegal in the vehicle, to which he responded, “No.”

She then proceeded to ask for consent to search the vehicle, to which Defendant

replied, “By law, since I am on probation, I cannot tell you no.”

Officer Kattner, though, responded by asking Defendant “to confirm yes or no,”

to which Defendant responded in the affirmative. It was during the search of the

vehicle that Officer Kattner found cocaine and other drug paraphernalia.

The State argues that Defendant consented to the search or, otherwise, Officer

Kattner had reasonable suspicion to conduct the search.

Defendant, as a probationer, is considered to have given consent to a search

where an officer has reasonable suspicion of a crime. Specifically, our General

Statutes provide that a probationer agrees to:

(14) Submit to warrantless searches by a law enforcement

officer of the probationer’s person and of the probationer’s

vehicle, upon a reasonable suspicion that the probationer

is engaged in criminal activity…

N.C. Gen. Stat. § 15A-1343 (2021) (emphasis added).

Defendant, otherwise, may consent to a search absent reasonable suspicion

where his consent is given freely and voluntarily. State v. Little, 270 N.C. 234, 239,

154 S.E.2d 61, 65 (1967) (“Implicit in the very nature of the term ‘consent’ is the

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Opinion of the Court

requirement of voluntariness. To be voluntary the consent must be ‘unequivocal and

specific,’ and freely and intelligently given.”). “[T]he question whether a consent to

search was in fact voluntary or was the product of duress or coercion, express or

implied, is a question of fact to be determined from the totality of circumstances.”

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). See also State v. Romano, 369

N.C. 678, 691, 800 S.E.2d 644, 652-53 (2017) (holding that whether consent to a

search was voluntary is a question of fact, not law).

The trial court judge did not articulate in her written order her reasoning for

denying Defendant’s suppression motion. However, she stated in open court that she

was denying the motion based on her conclusion that Officer Kattner had reasonable

suspicion to conduct the search:

The motion to suppress with regard to the basis for -- I'm

not going to refer to it as extending the traffic stop, because

it’s something else. But it’s so dangerously close to

extending the traffic stop as to be almost indistinguishable

-- is denied, because I believe the North Carolina courts

have held as long as the officer can articulate a reasonable

suspicion of additional criminal activity, they may, at least

minimally, extend the stop without getting into

constitutionally unreasonable conduct. And I will find from

a totality of the circumstances, based just on Kattner's

testimony of what she observed, that she had that very

minimal reasonable articulable suspicion.

We note that the trial court judge did not articulate any finding as to whether

Defendant had otherwise validly consented to the search as an alternative ground for

denying Defendant’s suppression motion.

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Opinion of the Court

We hold that the trial court did not plainly err in allowing the results of the

search of Defendant’s vehicle into evidence at trial. Even assuming Officer Kattner

lacked reasonable suspicion to conduct the search of Defendant’s vehicle, we conclude

that Defendant has failed to show plain error. Specifically, we note that there was

sufficient evidence from which the trial court could have found as fact at trial that

Defendant voluntarily consented to the search had Defendant objected when the

evidence was offered by the State. That is, whether the outcome of the trial

“probably” would have been different hinges on whether the trial court probably

would not have found at trial had Defendant objected that Defendant had voluntarily

consented to the search, at least as an alternate ground to uphold her prior ruling.

See State v. Mann, 355 N.C. 294, 311, 560 S.E.2d 776,787 (2002) (holding that “[t]o

establish plain error, defendant must demonstrate not only that there was error, but

also had the error not occurred, the outcome of the proceeding probably would have

been different.”).

B. Motion to Dismiss

To survive a motion to dismiss, there must be substantial evidence of each

essential element of the crime and that the defendant is the perpetrator. State v.

Winkler, 368 N.C. 572, 574, 780 S.E.2d 824, 826 (2015). Whether the evidence is

sufficient to survive a motion to dismiss, it must be considered in the light most

favorable to the State; and the State is entitled to every reasonable inference from

the evidence. Id. at 574, 780 S.E.2d 826.

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Opinion of the Court

Here, Defendant contends that the State failed to present sufficient evidence

that he constructively possessed the cocaine found in his car, contending that his

mere presence “in an automobile in which illicit drugs are found does not, without

more, constitute sufficient proof of his possession of such drugs.” State v. Weems, 31

N.C. App. 569, 571, 230 S.E.2d 193, 194 (1976). However, our Court has likewise

recognized that:

[A]n inference of constructive possession can . . . arise from

evidence which tends to show that a defendant was the

custodian of the vehicle where the [contraband] was found.

In fact, the courts in this State have held consistently that

the driver of a borrowed car, like the owner of the car, has

the power to control the contents of the car. Moreover,

power to control the automobile where [contraband] was

found is sufficient, in and of itself, to give rise to the

inference of knowledge and possession sufficient to go to

the jury.

State v. Mitchell, 224 N.C. App. 171, 177, 735 S.E.2d 438, 443 (internal citations

omitted). See also State v. Alson, 193 N.C. App. 712, 716, 668 S.E.2d 383, 386-87

(2008), aff’d per curiam, 363 N.C. 367, 677 S.E.2d 455 (2009).

It is undisputed that Defendant was the driver of the vehicle and, therefore,

exercised a degree of dominion and control over the vehicle. Additionally, the State

also presented evidence of other incriminating circumstances, including the

placement of the cocaine in the driver’s door, as well as the Defendant’s nervous

behavior. We conclude that the State’s evidence was, therefore, sufficient to survive

a motion to dismiss.

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Opinion of the Court

III. Conclusion

For the reasons stated above, we conclude that the trial court did not plainly

err by allowing the results of Officer Kattner’s search of Defendant’s vehicle into

evidence. We further conclude that the trial court did not err by denying Defendant’s

motion to dismiss the charge of possession of cocaine for insufficiency of the evidence.

NO ERROR.

Judge STADING concurs.

Judge ARROWOOD concurs with separate opinion.

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No. COA22-846 – State v. Michael

ARROWOOD, Judge, concurring.

I agree with the majority that the trial court did not plainly err because of the

evidence indicating defendant voluntarily consented to the search. However, because

it appears that the trial court’s primary analysis turned on whether the officer had a

reasonable suspicion to extend the traffic stop rather than on the defendant’s consent

to search his car, I believe the trial court’s analysis of that issue is incorrect. Thus, I

write separately to clarify the issue of reasonable suspicion.

Officer Kattner testified that when she approached defendant’s car during the

traffic stop, defendant and his passengers were acting “nervous.” When asked what

made her believe they were nervous, Officer Kattner stated, “They were not wanting

to maintain eye contact[,] [t]hey were short in their responses[,]” and “were a little

fidgety.” Officer Kattner further testified that such signs of nervousness continued

after giving defendant a verbal warning for failing to yield.

When ruling on defendant’s motion to dismiss, the trial court concluded that

reasonable suspicion existed based on these observations alone. However, such a

conclusion is sharply at odds with North Carolina law. Specifically, an appearance

of nervousness does not give police carte blanche to extend a stop or conduct a search.

See State v. Fields, 195 N.C. App. 740, 745 (2009) (citing United States v. Sokolow,

490 U.S. 1, 9, 104 L. Ed. 2d 1, 11 (1989)) (“In order to preserve an individual’s Fourth

Amendment rights, it is of the utmost importance that we recognize that the presence

of [extreme nervousness] is not, by itself, proof of any illegal conduct and is often quite

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ARROWOOD, J., concurrence

consistent with innocent travel.”); see also State v. Myles, 188 N.C. App. 42, 50 (2008),

aff’d, 362 N.C. 344 (2008) (“[O]ur Supreme Court has never said nervousness alone

is sufficient to determine whether reasonable suspicion exists when looking at the

totality of the circumstances.”).

For example, in State v. McClendon, our Supreme Court explained that

“several factors . . . gave rise to reasonable suspicion under the totality of the

circumstances.” 350 N.C. 630, 637 (1999). Such factors specified by the McClendon

Court were (1) extreme nervousness, which involved defendant sweating, breathing

rapidly, sighing heavily, chuckling nervously when answering questions, and

refusing to make eye contact; (2) inconsistent and confusing statements; and (3) the

fact that “although defendant seemed unsure of who owned the car, the address of

the owner listed seem[ed] to indicate that [defendant and the owner] both lived in the

same residence.” Id. Thus, in McClendon, “extreme nervousness” constituted

reasonable suspicion only when combined with two other pertinent factors.

Here, unlike in McClendon, no factors were present other than Officer

Kattner’s perception of nervousness. The perceived fidgetiness, eye contact

avoidance, and short responses were not separate factors supporting reasonable

suspicion; rather, they were physical mannerisms that—when combined—led Officer

Kattner to believe defendant and the passengers were nervous. See State v. Downey,

251 N.C. App. 829, 834 (2017) (explaining that police testimony that defendant

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avoided eye contact supported the trial court’s finding that defendant exhibited

nervous behavior). Moreover, a general statement that defendant was acting

nervous—without specific facts to support such observation like the ones discussed

here—does not constitute a factor supporting reasonable suspicion. See United States

v. Crawford, 891 F.2d 680, 682 n.4 (8th Cir. 1989). (“The statement that [defendant]

appeared nervous . . . is a mere rephrasing of the other evidence, offered in an

attempt to enhance the value of that evidence.”). Accordingly, Officer Kattner’s

observations were inadequate to support a finding of reasonable suspicion.

It is also important to point out that nothing in the record suggests that Officer

Kattner had prior knowledge of defendant or his passengers before the traffic stop. I

thus find it hard to understand how Officer Kattner would know whether they were

indeed nervous or simply behaving normally. Without such prior knowledge, Officer

Kattner’s observations likely constitute subjective and “unparticularized suspicion.”

See State v. Watkins, 337 N.C. 437, 442 (1994) (quoting Brown v. Texas, 443 U.S. 47,

51, 61 L. Ed. 2d 357, 362 (1979)) (stating that reasonable suspicion must be “ ‘based

on objective facts, that the individual is involved in criminal activity.’ ”).

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