State v. Icard

677 S.E.2d 822, 363 N.C. 303, 2009 N.C. LEXIS 615

• Court: Supreme Court of North Carolina
• Decided: June 18, 2009
• Docket: 236A08
• Status: Published

Opinions

EDMUNDS, Justice.

This case presents the question whether a police encounter with defendant triggered defendant’s Fourth Amendment protection against unreasonable seizure. We conclude that a reasonable person in defendant’s position would not have felt free to refuse an officer’s request to search her purse or otherwise terminate the encounter under the totality of circumstances that here included the officer’s initiation of the encounter, his declaration to defendant and her companion that he was investigating drug crimes and prostitution, his call for a backup officer, his persistence when defendant did not respond to his initial efforts to make contact, his request that defendant produce identification, and his requests to defendant that she both exit the vehicle with her purse and allow him to ascertain its contents. Accordingly, we determine that defendant was seized within the meaning of the Fourth Amendment. Because the taint of the illegal seizure of defendant had no opportunity to dissipate before the search of her purse, we hold that the trial court erred in denying defendant’s motion to suppress.

At defendant’s trial, the State presented evidence that at approximately 12:30 a.m. on 21 September 2004, Maiden Police Department Officer Curt Moore drove into the parking lot of Fairview Market, a truck stop on the corner of West Maiden Road and Startown Road in Maiden, North Carolina. Officer Moore considered Fairview Market to be a high crime area because of complaints of prostitution and drug-related activity there. As he entered the parking lot, Officer Moore noticed a pickup truck approximately fifteen feet from the northwest comer of the Fairview Market building. He did not then see anyone in the truck. Although the truck was taking up two spaces, it was not illegally parked.

Officer Moore drove past the truck from behind, then circled the building. As he again approached the truck, he observed a silhouette above the steering wheel that, because of the lighting, he could not identify. Officer Moore parked his police vehicle directly behind the truck with his headlights on and his blue strobe visor lights activated. The truck was not pinned in by the police car. Officer Moore provided the truck’s plate number and description to his dispatcher.

Officer Moore, who was in uniform with his service revolver visible, exited his vehicle and walked toward the driver’s side door of the truck. As he approached, the driver partially lowered his window and Officer Moore observed two individuals sitting in the truck. He subsequently learned that the driver was Carmen Coleman and the passenger was defendant Lori Icard. Officer Moore requested Coleman’s driver’s license and vehicle registration and also asked why he and defendant were parked at Fairview Market. Coleman explained that they were from Connelly Springs, North Carolina, and were waiting to meet a friend named Jody who was coming from Taylorsville, North Carolina. Officer Moore advised Coleman that he and defendant were being “checked out. . . because of the numerous complaints of prostitution and drugs in that area.” He took Coleman’s driver’s license and registration back to his police vehicle, where he requested a warrant check, a license check, and backup assistance. Although these checks did not reveal anything suspicious, Officer Moore held on to Coleman’s license and registration.

Responding to Officer Moore’s call for backup, Officer Darby Hedrick arrived in a marked police car and parked behind Coleman’s truck, parallel to Officer Moore’s vehicle. Officer Moore turned off his visor lights and Officer Hedrick activated his take-down spotlights to illuminate defendant’s side of the truck. Officer Moore approached the truck door on defendant’s side, while Officer Hedrick stood behind him at the midpoint of the truck bed.

Officer Moore rapped on defendant’s side window with his knuckles, but she did not respond. He rapped again, and when defendant again did not respond, Officer Moore opened the truck door, identified himself as a police officer, and asked if she was carrying identification. Although defendant answered that her ID card was in her other purse, Officer Moore pointed to a small black zippered bag on the truck’s floorboard and asked if the ID might be inside. Defendant opened the bag and removed a billfold, from which she produced a North Carolina identification card. Officer Moore looked at the card, then asked defendant to bring her purse with her to the back of the truck, where both officers proceeded to question her. During the questioning, Officer Moore asked if he could look in defendant’s purse. She responded by handing it to him. Officer Moore searched the purse and in it found several bullets, a glass tube that appeared burned at one end, and a clear plastic bag containing a residue that was later determined to be methamphetamine.

The officers had separated defendant from Coleman to determine whether they gave consistent stories. When Coleman was questioned, Officer Moore took a lockblade clip-type knife from Coleman’s pocket. Coleman also handed Officer Moore a clear plastic bag containing marijuana, and another clear plastic bag containing a white- and tan-colored powder. Coleman then struggled briefly and unsuccessfully with Officer Moore. Once Coleman was subdued, a search of the truck revealed glass pipes commonly used to inhale controlled substances, crack pipes, a digital scale, a loaded Rossi .357 pistol, and a transparent yellow plastic bag containing tan powder.

Defendant was charged with resisting and obstructing a law enforcement officer, possession with intent to sell and deliver cocaine, possession with intent to sell and deliver marijuana, possession with intent to sell and deliver methamphetamine, carrying a concealed weapon, and possession of drug paraphernalia. At trial, defendant made an oral motion to suppress the State’s evidence. The trial court conducted a voir dire hearing on defendant’s motion outside the presence of the jury. In addition to the evidence recited above, Officer Moore testified that he had not observed any contraband and did not have a reason to pat down defendant for weapons when he asked her to step out of the truck. Officer Moore believed his encounter with defendant was consensual because she complied with his verbal instructions. However, Officer Moore testified that he did not tell defendant she was free to leave, that in fact she was not free to leave, and that he would not have allowed defendant to walk away from the truck.

The trial court denied defendant’s motion to suppress, orally stating that, as a matter of law, defendant was not seized at the time she consented to the search of her purse. In its subsequent written order, the trial court made findings of fact that Officer Moore “did not pat down or frisk the defendant for weapons,” “did not threaten the defendant in any way,” and “did not place his hand on her at any time.” The court also found that while Officer Moore carried a service weapon, “[h]e did not remove that weapon from its holster.” Finally, the trial court found that Officer Moore “did not apply physical force, make any threat of force or make a show of authority at any time prior to the discovery of the drug paraphernalia in the defendant’s purse,” and “did not coerce the defendant’s cooperation with his requests.” Based upon “the totality of the circumstances,” the trial court concluded as a matter of law that “the defendant would not have felt that she was not free to terminate the encounter or decline [Officer] Moore’s requests,” and that “[b]ased on the totality of the circumstances, the defendant cooperated with [Officer] Moore’s requests and her cooperation was not coerced by physical force or a show of authority.”

When the case was called for trial, the State voluntarily dismissed the charge of possession with intent to sell and deliver cocaine. Defendant moved to dismiss all the remaining charges at the close of the State’s evidence, and the trial court allowed defendant’s motion as to the charges of possession with intent to sell and deliver marijuana and carrying a concealed weapon. The court also dismissed the charge of possession with intent to sell and deliver methamphetamine, but found sufficient evidence to support submission of the lesser-included offense of simple possession of methamphetamine. The court denied defendant’s motions to dismiss the charges of possession of drug paraphernalia and resisting and obstructing a law enforcement officer. The jury found defendant guilty of simple possession of methamphetamine and acquitted her of the remaining charges.

Defendant appealed her conviction and sentence to the Court of Appeals, arguing the trial court erred in concluding that the episode was a noncoercive encounter between citizen and officer that fell outside the protections of the Fourth Amendment. The Court of Appeals majority found that Officer Moore seized defendant and that, as a result, the search of defendant’s purse was subject to Fourth Amendment analysis. State v. Icard, 190 N.C. App. 76, 660 S.E.2d 142 (2008). The majority emphasized that defendant did not live near Fairview Market and that to terminate the encounter, defendant would have had to leave the Market and enter a high crime area on foot, after midnight. Id. at 84, 660 S.E.2d at 148 (“At 12:30 a.m. in an area known for drug activity and prostitution, any passenger, particularly a female, would undoubtedly have felt uncomfortable or unsafe by attempting to leave the parking lot on foot.”). Because the trial court had not made findings of fact as to whether defendant’s consent to search her purse was voluntary or coerced, the majority remanded the case to Superior Court, Catawba County for additional findings. Id. at 86, 660 S.E.2d at 149.

The dissent argued that the majority’s emphasis on the location of the encounter was misplaced and that a police officer’s “words and actions” effect a seizure. Id. at 89, 660 S.E.2d at 150 (Bryant, J., dissenting) (internal quotation marks omitted). Finding no “show of authority amounting to a restraint on [defendant's liberty,” the dissenting judge would have affirmed the trial court’s order denying defendant’s motion to suppress. Id. at 89-90, 660 S.E.2d at 151. The State appealed to this Court as a matter of right.

On appeal from denial of a motion to suppress, the trial court’s findings of fact are binding when supported by competent evidence, while conclusions of law are “fully reviewable” by the appellate court. State v. Brooks, 337 N.C. 132, 141, 446 S.E.2d 579, 585 (1994) (internal quotation marks omitted). Here, the trial court made numerous findings of fact that are supported by substantial competent evidence presented at the suppression hearing. However, two of the trial court’s concluding three findings of fact are as follows:

37. [Officer] Moore did not apply physical force, make any threat of force, or make a show of authority at any time prior to the discovery of the drug paraphernalia in the defendant’s purse.

39. [Officer] Moore did not coerce the defendant’s cooperation with his requests. Moore did not tell the defendant that she was not free to terminate this interaction.

Although labeled findings of fact, these quoted findings mingle findings of fact and conclusions of law. For instance, that Officer Moore did not apply physical force is a finding of fact, but the statement in Finding No. 37 that Officer Moore’s actions did not amount to a show of authority resolves a question of law. The finding that Officer Moore did not tell defendant she was not free to terminate the encounter is a factual matter, but the court’s determination in Finding No. 39 that Officer Moore did not coerce defendant is a conclusion of law. While we give appropriate deference to the portions of Findings No. 37 and 39 that are findings of fact, we review de novo the portions of those findings that are conclusions of law. Id.

An individual is seized by a police officer and is thus within the protection of the Fourth Amendment when the officer’s conduct “would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Florida v. Bostick, 501 U.S. 429, 437, 115 L. Ed. 2d 389, 400 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 100 L. Ed. 2d 565, 569 (1988)) (describing the above-quoted standard as “the crucial test”). A reviewing court determines whether a reasonable person would feel free to decline the officer’s request or otherwise terminate the encounter by examining the totality of circumstances. Id. at 436-37, 115 L. Ed. 2d at 400; Brooks, 337 N.C. at 142, 446 S.E.2d at 586.

The totality of circumstances “test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.” Chesternut, 486 U.S. at 573, 100 L. Ed. 2d at 572. Moreover, “an initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave” or otherwise terminate the encounter. INS v. Delgado, 466 U.S. 210, 215, 80 L. Ed. 2d 247, 255 (1984) (internal quotation marks omitted); see also Bostick, 501 U.S. at 436-37, 115 L. Ed. 2d at 400.

Although the standard is not satisfied when a police officer merely engages an individual in conversation in a public place, see, e.g., Brooks, 337 N.C. at 142, 446 S.E.2d at 586, additional circumstances attending such an encounter may reveal that the individual is not participating consensually but instead has submitted to the officer’s authority, see Bostick, 501 U.S. at 434, 115 L. Ed. 2d at 398 (explaining that a police officer may seize an individual through a “show of authority” that “restrain[s] the liberty of a citizen”). Relevant circumstances include, but are not limited to, the number of officers present, whether the officer displayed a weapon, the officer’s words and tone of voice, any physical contact between the officer and the individual, whether the officer retained the individual’s identification or property, the location of the encounter, and whether the officer blocked the individual’s path. See, e.g., United States v. Drayton, 536 U.S. 194, 153 L. Ed. 2d 242 (2002); Bostick, 501 U.S. 429, 115 L. Ed. 2d 389; State v. Farmer, 333 N.C. 172, 424 S.E.2d 120 (1993).

The State cites State v. Brooks, where this Court conducted a totality of the circumstances review of an encounter in which a uniformed SBI agent approached the defendant as he was sitting in the driver’s seat of a car parked at a nightclub. 337 N.C. at 136-37, 446 S.E.2d at 583. The driver’s door was open and the defendant had been talking with another individual outside the car who hastened away as the agent approached. Id. at 142, 446 S.E.2d at 586. The agent observed an empty unsnapped holster within the defendant’s reach,, and when the agent asked, “Where is your gun?,” the defendant responded, “I’m sitting on it.” Id. at 137, 446 S.E.2d at 583. Under the totality of circumstances present in Brooks, this Court held that the agent did not seize the. defendant by approaching his open car door and asking a single brief question. Id. at 142, 446 S.E.2d at 586. Instead, we concluded that the defendant’s response gave the officer probable cause to believe the defendant was carrying a concealed weapon and justified the defendant’s arrest. Id. at 145, 446 S.E.2d at 588.

In contrast, the encounter between the officers and defendant in the case at bar was significantly longer in duration and more intrusive in substance. The record reveals that much of the evidence presented to the trial court during the voir dire hearing regarding the seizure was not contested. According to this uncontested evidence, Officer Moore parked directly behind the vehicle in which defendant was a passenger, with his blue lights flashing. Officer Moore, who was in uniform and armed, told Coleman in defendant’s presence that the two were being checked out because the area was known for drugs and prostitution. When Officer Moore requested assistance, Officer Hedrick arrived in a marked police car and used his take-down lights to illuminate defendant’s side of the truck. Both officers then approached defendant. When defendant twice failed to respond to Officer Moore’s attempts to initiate an exchange, the officer opened defendant’s door, compelling contact. Officer Moore requested that defendant produce her identification, then asked defendant to come with her purse to the rear of the vehicle where he and Officer Hedrick continued to ask questions. When Officer Moore left defendant to deal with Coleman, he did not return her purse but instead handed it to Officer Hedrick. The encounter took place late at night, some distance from the address listed on defendant’s identification.

Under the totality of these uncontradicted circumstances, we conclude that the officers mounted a show of authority when: (1) Officer Moore, who was armed and in uniform, initiated the encounter, telling the occupants of the truck that the area was known for drug crimes and prostitution; (2) Officer Moore called for backup assistance; (3) Officer Moore initially illuminated the truck with blue lights; (4) Officer Hedrick illuminated defendant’s side of the truck with his take-down lights; (5) Officer Moore opened defendant’s door, giving her no choice but to respond to him; and (6) Officer Moore instructed defendant to exit the truck and bring her purse. By the time defendant stepped out of the truck at Officer Moore’s request, a reasonable person in defendant’s place would have shared the officer’s belief that she was not free to leave or otherwise terminate the encounter. See Bostick, 501 U.S. at 437, 115 L. Ed. 2d at 400. Therefore, we find the trial court erred when it concluded as a matter of law that defendant’s interaction with Officers Moore and Hedrick was consensual.¹

In so holding, we acknowledge that this encounter between defendant and the officers began legally. Police are free to approach and question individuals in public places when circumstances indicate that citizens may need help or mischief might be afoot. Terry v. Ohio, 392 U.S. 1, 22, 20 L. Ed. 2d 889, 906-07 (1968); State v. Streeter, 283 N.C. 203, 208, 195 S.E.2d 502, 505-06 (1973). Here, the officers’ instincts were sound, as evidenced by Coleman’s guilty pleas to several felonies. Nevertheless, because the search of defendant’s purse occurred after she was illegally seized but before the taint of the illegal seizure could have dissipated, see Wong Sun v. United States, 371 U.S. 471, 491, 9 L. Ed. 2d 441, 457 (1963), we conclude that the trial court erred in denying defendant’s motion to suppress the fruits of the search, see Florida v. Royer, 460 U.S. 491, 496-97, 75 L. Ed. 2d 229, 235-36 (1983) (plurality).

For the reasons stated above, we affirm that part of the decision of the Court of Appeals which held Officer Moore seized defendant and that, as a result, the search of defendant’s purse was subject to Fourth Amendment analysis. We reverse that part of the decision of the Court of Appeals which remanded the matter to Superior Court, Catawba County for additional findings of fact as to whether defendant’s consent to search her purse was voluntary or coerced. We remand this matter to the Court of Appeals for further remand to Superior Court, Catawba County with instructions to grant defendant’s motion to suppress and for further proceedings not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

1 . We do not hold, as the dissent suggests, that the circumstances here “convert” every similar encounter between a law enforcement officer and citizen “to an unlawful seizure.” We hold only that the totality of circumstances establishes that defendant was seized. While such seizures are lawful when supported by reasonable articulable suspicion, see Terry v. Ohio, 392 U.S. 1, 22 L. Ed. 2d 889 (1968), the State did not argue either at trial of on appeal that particularized suspicion exists in this case. Once defendant was seized, the immediately subsequent search of her purse was not consensual.