State v. Jackson

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-727

Filed 19 March 2024

Avery County, No. 19 CRS 50701

STATE OF NORTH CAROLINA

v.

WARREN DOUGLAS JACKSON

Appeal by defendant from judgment entered 14 February 2023 by Judge R.

Gregory Horne in Superior Court, Avery County. Heard in the Court of Appeals

28 February 2024.

Attorney General Joshua H. Stein, by Assistant Attorney General Elizabeth G.

Arnette, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Amanda S.

Zimmer, for defendant-appellant.

ARROWOOD, Judge.

Warren Douglas Jackson (“defendant”) appeals from judgment entered upon

his conviction for possession of methamphetamine. For the following reasons, we find

that defendant received a fair trial free from prejudicial error.

I. Background

Detective Ridge Phillips (“Phillips”) of the Avery County Sheriff’s Office was

patrolling in a rural section of Avery County, North Carolina when he saw defendant

driving a truck on Squirrel Creek Road. Knowing that defendant had a revoked

STATE V. JACKSON

Opinion of the Court

driver’s license at the time, Phillips pulled him over. According to Phillips, at the

time of the stop, he had interacted with defendant two to three times in the past.

Specifically, Phillips testified that he had previously arrested defendant for

possession of a firearm by a felon and that he had been aware of defendant’s previous

involvement with narcotics.1

Upon approaching defendant’s truck, Phillips testified that he asked defendant

if he could search the truck to “make sure there were no guns, knives, drugs or

anything in the vehicle” and that defendant consented to the search. Phillips’s body

camera did not record any sound while defendant was sitting in the truck, so the

request to search the truck and defendant’s response cannot be substantiated.

According to Phillips, he then asked defendant to step out of the truck.2

As defendant stepped out of the truck, the audio from Phillips’s body camera

activated, and defendant could be heard stating, “Yeah, I got a pocketknife.” As

Phillips directed defendant in position for a pat-down search, the following exchange

occurred:

Phillips: You just got a pocketknife?

Defendant: Yeah.

Phillips: Alright, keep your hands out of your pockets.

1 However, when asked about specific information that Phillips had on defendant relating to drug

possession, Phillips stated, “I couldn’t tell you.”

2 Phillips testified that while interacting with defendant, defendant did not act nervous or evasive and

complied with his requests. Specifically, when asked whether there was anything “suspicious about

[defendant’s] behavior aside from having a knife on him,” Phillips testified, “No, not on his behavior.”

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I am going [to] pat you down for my safety.

After patting down defendant’s front right pant pocket, Phillips asked

defendant, “What all is in your pocket right here?” While asking the question,

Phillips simultaneously slid a travel-size pill bottle out of the pocket.3 In response,

defendant stated, “cigarette lighter and my medicine.” Phillips testified, “On the pat-

down I felt what was a pill bottle in the front right pocket, what I know through my

training and experience to be a pill bottle. People keep their controlled substances,

whether it be pills or other things, inside of it.” Phillips further testified that when

feeling the bottle, it was not “consistent with a prescription bottle.” With the pill

bottle in Phillips’s hand, Phillips asked defendant what kind of medicine was in the

bottle, and defendant stated, “Percocets.” Phillips opened the bottle and observed two

pills inside. Phillips testified that when he saw the bottle, he noticed it was not a

prescription bottle.

After defendant stated he had a prescription for the pills, Phillips told

defendant he was going to detain him and placed defendant in handcuffs. Phillips

told defendant he “was just detaining him for now because [he] found them Percocets”

and started pulling other items out of defendant’s pockets, including a wallet,

lighters, and a pocketknife. While searching defendant’s pockets, Phillips stated,

“You can’t carry around Percocets in your pocket without the prescription bottle,

3 When asked if he immediately pulled the pill bottle out of defendant’s pocket after feeling it,

Phillips testified, “Yes.”

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okay. That is a controlled substance.”4 Defendant replied that he kept them in a non-

prescription bottle to prevent people from stealing them, given that the prescription

bottle would let people know he had them.

Because of the pills, Phillips told defendant, “I am going to start the search,

okay on you. It is against the law to carry Percocets like that without a prescription

bottle. Like I said right now, you’re just being detained. You ain’t under arrest.”

While searching defendant’s pant leg, Phillips noticed that one of defendant’s pant

legs was slightly stuck in his boot. Phillips searched defendant’s boot and sock area

and found a bag of methamphetamine. Phillips then arrested defendant for

possession of methamphetamine.5 Phillips issued defendant a citation for driving

while license revoked (“DWLR”).

Defendant was indicted for felony possession of methamphetamine and

misdemeanor possession of a Schedule II controlled substance on 29 November 2021.

Defendant moved to suppress the evidence obtained during the traffic stop on

20 May 2022, arguing that Phillips did not have probable cause to search him or the

truck, nor did Phillips have any other basis to conduct the searches.

A suppression hearing was held before trial on 13 and 14 February 2023.

Phillips was the sole witness called during the hearing. When asked on the first day

4 Although it is illegal to possess a controlled substance without a valid prescription, N.C.G.S. § 90-

95(a)(3), no statutory provision exists in North Carolina that prohibits a person from possessing their

prescription medicine outside of its original prescription container.

5 Phillips specifically told defendant he was “under arrest for possession of methamphetamine.”

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of the hearing whether defendant would have been detained based on his revoked

license status—even if no contraband had been found—the following exchange

occurred between Phillips and the State:

Phillips: Yes, he can be arrested for that.

The State: So would he have been able to drive away

from the scene had you found nothing on his

person?

Phillips: No.

On the second day of hearing, the exchange with respect to Phillips’s intentions

continued:

The State: Yesterday you indicated that even if taking

all, if nothing was found during your search of

defendant or nothing was found in the vehicle,

that the defendant would not have been

allowed to leave the scene?

Phillips: Correct.

The State: What would you have done with defendant,

assuming nothing else was found, what would

you have done with him?

Phillips: Arrested him for driving while licensed

revoked.

Phillips further testified that, after arresting someone for DWLR, he would search

their person before placing them in his patrol car. On cross-examination of Phillips,

defendant’s questioning centered on Phillips’s interactions with defendant leading up

to and during the protective frisk and the pocket search. Defendant presented no

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Opinion of the Court

other evidence for the suppression motion. At the hearing’s conclusion, the trial court

denied defendant’s motion and concluded that the search was lawful and that there

was no constitutional violation of defendant’s rights.

The possession of methamphetamine charge proceeded to jury trial, and

defendant was found guilty of possession of methamphetamine. The trial court

sentenced defendant to six to seventeen months’ imprisonment, suspended for

twenty-four months’ supervised probation, on 14 February 2023. Defendant gave

notice of appeal in open court. The misdemeanor possession charge was dismissed on

14 June 2023.

II. Discussion

Defendant raises numerous arguments on appeal. Defendant contends the

seizure of the pill bottle exceeded the scope of a protective frisk and that because

defendant was never arrested for DWLR, the search incident to arrest exception to

the warrant requirement was inapplicable. Defendant also argues that defendant

lacked probable cause to open the container. Lastly, in the alternative, defendant

argues that the arrest for possession of the pills was not supported by probable cause.

The State contends that the search and seizure were lawful, and, even if unlawful,

the motion was still properly denied because the methamphetamine found in

defendant’s boot was admissible under the inevitable discovery doctrine.

A. Standard of Review

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

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to a determination of whether the trial court’s findings are supported by competent

evidence, and in turn, whether the findings support the trial court’s ultimate

conclusion.” State v. Reynolds, 161 N.C. App. 144, 146–47 (2003) (cleaned up). “The

trial court’s conclusions of law, however, are reviewed de novo.” State v. Duncan, 272

N.C. App. 341, 345 (2020) (citing State v. Fernandez, 346 N.C. 1, 11 (1997)). “In

reviewing the denial of a motion to suppress, we examine the evidence introduced at

trial in light most favorable to the State.” Id. (cleaned up).

B. The “Plain Feel” Doctrine and Probable Cause

Evidence of contraband during a protective frisk may be admissible under the

“plain feel” doctrine, provided that the officer “feels an object whose contour or mass”

make its incriminating nature immediately apparent. Minnesota v. Dickerson, 508

U.S. 366, 375 (1993). In other words, evidence of contraband—plainly felt during a

frisk—may be admissible if “the officer had probable cause to believe that the item

was in fact contraband.” State v. Shearin, 170 N.C. App. 222, 226 (2005) (citing

Dickerson, 508 U.S. at 375–77). In determining whether an object’s incriminating

nature was immediately apparent and whether probable cause existed to seize it, the

totality of the circumstances is considered. State v. Robinson, 189 N.C. App. 454, 459

(2008) (citation omitted). When such “facts and circumstances within the officer’s

knowledge are sufficient to warrant a person of reasonable caution in the belief that

the item may be contraband, probable cause exists.” State v. Briggs, 140 N.C. App.

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484, 493 (2000) (citing Texas v. Brown, 460 U.S. 730, 742 (1983) (emphasis in

original).

In Robinson, this Court held that there was probable cause to seize a film

canister during a protective frisk because sufficient information existed to believe it

contained contraband. 189 N.C. App. at 459–60. In concluding that probable cause

existed, this Court considered that (1) the defendant was stopped in an area known

for being a “drug location,” (2) the officer had reports that the defendant sold drugs

nearby; (3) the defendant “stopped talking, straightened up very abruptly, and looked

surprise or frightened” when the officer made eye contact; (4) the officer thought

defendant would flee and that the defendant then “started backing away, turned his

right side away from the officer, and reached into his right pocket”; (5) the officer had

“arrested at least three others who had exactly the same type of canister” with

narcotics stored in them; and (6) the officer testified that it was immediately apparent

that crack-cocaine was packaged in the film canister. Id. at 459 (cleaned up).

Here, the State, relying heavily on Robinson, contends that Phillips had

probable cause to seize the pill bottle under the “plain feel” doctrine. We do not accept

this contention because the facts and circumstances present at the time Phillips

seized the pill bottle are substantially different from those in Robinson. Unlike

Robinson, defendant was not in a “drug location,” and there were no reports that

defendant sold drugs in the area. Defendant also provided no reason for Phillips to

believe that he was nervous during the stop and complied with Phillips’s requests.

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Further, Phillips felt what he knew to be a pill bottle, which is distinct from a film

canister in that people commonly carry such containers with their medication inside.6

Thus, the State’s application of the “plain feel” doctrine and reliance on Robinson is

incorrect.7

We also reject the State’s contention that the unlabeled pill bottle, for which

defendant was unable to provide a prescription during the stop, gave Phillips

probable cause that it contained contraband and to seize it. The State was unable to

cite to a single case in North Carolina to support this contention, and many

jurisdictions expressly reject the idea. See People v. Alemayehu, 494 P.3d 98, 108–09

(Colo. App. 2021) (citing several “authorities [that] reject the idea that an unlabeled

pill pottle, in and of itself, constitutes probable cause” and concluding the same).

However, even assuming arguendo that Phillips’s search and seizure violated

defendant’s constitutional rights, the methamphetamine found in defendant’s boot

was still admissible because the contraband’s discovery was shown to be inevitable.

C. Inevitable Discovery

6 We do not imply that possessing a film canister alone constitutes probable cause either. See State v.

Sapatch, 108 N.C. App. 321, 325 (1992) (holding that “[p]ossession of film canisters, without more, is

insufficient to give rise to probable cause of a crime” even if the officer “had personal knowledge of

their illegal use in other incidents.”). However, carrying around a film canister in the digital age is

less common than having a pill bottle with medication.

7 This case is further distinct from Robinson in that Phillips never testified to previously arresting

individuals for carrying controlled substances in the same type of pill bottle, nor did Phillips testify

that it was immediately apparent to him that the pill bottle contained contraband.

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In response to the State’s argument relating to the inevitable discovery

doctrine, defendant contends that Phillip’s discovery of the methamphetamine was

not inevitable because defendant was not placed under arrest for DWLR and the trial

court’s finding was insufficient to support a conclusion that Phillips would have

arrested defendant for driving while license revoked had the drugs not been located.

Because that finding was inferred under our case law, we disagree.

Under the exclusionary rule, evidence obtained via unconstitutional search

and seizure is generally inadmissible in a criminal case. State v. Garner, 331 N.C.

491, 505–06 (1992). However, under the inevitable discovery doctrine, “if the State

can establish by a preponderance of the evidence that the contraband ultimately or

inevitably would have been discovered by lawful, independent means, then it is

admissible.” State v. Larkin, 237 N.C. App. 335, 343 (2014) (cleaned up). This Court

“use[s] a flexible case-by-case approach in determining inevitability.” Id. (citing

Garner, 331 N.C. at 503).

In the case sub judice, Phillips testified that—assuming no contraband had

been discovered on defendant’s person or in the truck—he would have arrested

defendant for DWLR and subsequently searched defendant before transporting him

in his patrol car. Upon review of the suppression hearing transcript, we agree with

defendant that the trial court made no express finding as to whether Phillips would

have made such an arrest. However, our Supreme Court has held that “only a

material conflict in the evidence—one that potentially affects the outcome of the

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suppression motion—must be resolved by explicit factual findings that show the basis

for the trial court’s ruling.” State v. Bartlett, 368 N.C. 309, 312 (2015) (citations

omitted). “When there is no conflict in the evidence, the trial court’s findings can be

inferred from its decision.” Id. (citation omitted); State v. Munsey, 342 N.C. 882, 885

(1996) (“If there is no conflict in the evidence on a fact, failure to find that fact is not

error. Its finding is implied from the ruling of the court.”). Consequently, “our cases

require findings of fact only when there is a material conflict in the evidence and

allow the trial court to make these findings either orally or in writing.” Bartlett, 368

N.C. at 312.

Here, defendant presented no evidence that conflicted with Phillips’s

testimony that he would have arrested defendant for DWLR had no contraband been

found. Instead, defendant’s evidence—consisting only of a brief cross-examination of

Phillips—focused on Phillips’s interactions with defendant regarding the protective

frisk and the pocket search. Because defendant’s evidence failed to controvert

Phillips’s testimony, the finding that Phillips would have arrested defendant for

DWLR is thus inferred under Bartlett. See State v. Baker, 208 N.C. App. 376, 384

(2010) (“[A] material conflict in the evidence exists when evidence presented by one

party controverts evidence presented by an opposing party such that the outcome of

the matter to be decided is likely to be affected.”).

Based on that inferred finding, the State provided sufficient evidence to

support a finding that, had defendant not been arrested for possession of the seized

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substances, he would have been arrested for DWLR. In conjunction with such an

arrest, the officer would have conducted a search incident to that arrest which would

have led to the discovery of methamphetamine. Thus, the seizure was inevitable even

if we reject the State’s contentions regarding the initial pat down and search.

Accordingly, the trial court did not err in denying the defendant’s motion to suppress.

III. Conclusion

For the foregoing reasons, we find defendant had a fair trial free from

prejudicial error.

NO ERROR.

Judge COLLINS concurs.

Judge STADING concurs in result only.

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