In this Mecklenburg County case, defendant appealed denial of his motion to suppress, arguing that (1) police did not have reasonable suspicion to stop him, and (2) he did not consent to the search of his backpack. The Court of Appeals found reasonable suspicion supported the stop but that defendant did not consent to the search, and reversed the denial of defendant’s motion.

In January of 2020, defendant, a homeless man, was walking with a bicycle on a dirt path in Charlotte when two officers of the Charlotte-Mecklenburg Police Department approached him. The officers had previously received a tip that a person matching defendant’s description and riding a bike was carrying an illegal firearm. When the officers approached defendant, they gave conflicting reasons for the approach, with one officer referencing trespass and the other officer noting it was a street-level drug sales area. Defendant consented to a pat-down of his person and removed his backpack. At that point, one officer asked for permission to search the backpack; defendant initially consented to the search, but quickly told officers he did not want them to search the backpack. After an exchange with the officers where defendant told them he was cold and scared of the police, defendant eventually opened the backpack and allowed a search, resulting in the officers finding a stolen firearm. The officers arrested defendant, and in the search incident to arrest, discovered cocaine and marijuana in his pockets. At trial, defendant objected to admission of the results of the search, and the trial court denied the motion, finding that the initial contact was voluntary and defendant consented to the search of his backpack. Defendant entered an Alford plea and appealed. When defendant’s appeal was first taken up by the Court of Appeals, the court remanded for further findings of fact and conclusions of law regarding law enforcement’s belief that defendant was trespassing. The trial court entered an amended order denying the motion with new findings of fact and conclusions of law, which defendant again appealed. 

Taking up defendant’s arguments in the current opinion, the Court of Appeals first looked to the findings of fact and conclusions of law challenged by defendant, finding that three findings related to trespassing and one related to the return of defendant’s identification prior to the search were not supported by evidence in the record. After striking four findings of fact, the court turned to (1) the reasonable suspicion analysis, determining that “the officers had reasonable suspicion to stop, question, and perform a protective search of [defendant] based on the informant’s tip.” Slip Op. at 12. The court noted that evidence in the record provided adequate justification for the reasonable suspicion that defendant was armed, justifying a protective search after stopping him. 

Turning to (2), the court found that defendant did not voluntarily consent to the search of his backpack. Explaining the standard for voluntary consent, the court explained that “[t]o be voluntary, consent must be free from coercion, express or implied,” and when making this determination “the court must consider the possibility of subtly coercive questions from those with authority, as well as the possibly vulnerable subjective state of the person who consents.” Id. at 17-18. Here, the officers asked defendant “five times within a period of about one and a half minutes” for permission, even though defendant continued to refuse. Id. at 18. The court went on to explain that:

The combination of multiple uniformed police officers surrounding an older homeless man and making repeated requests to search his backpack on a cold, dark night after he repeatedly asserted his right not to be searched leads us to the conclusion that [defendant’s] consent was the result of coercion and duress and therefore was not freely given.

Id. at 18-19. 

After establishing the officers did not have consent, the court also established that they did not have probable cause to search the backpack based on the tip. The court explained that while the tip was sufficient to create reasonable suspicion for a frisk of defendant, it did not create sufficient probable cause for a search of the backpack. The informant “did not provide any basis for his knowledge about the criminal activity,” and “did not predict any future behavior,” elements that would have demonstrated sufficient reliability for probable cause. Id. at 21. Because the officers did not have consent or probable cause to conduct the search, the court reversed the denial of the motion to dismiss and vacated defendant’s Alford plea. 

Charlotte-Mecklenburg police received a report of a stolen car and information about its possible location. Officers went to the location, which was part residence and part commercial establishment. A car matching the description of the stolen vehicle was in the back parking lot. As police watched, a man came out of the building and approached the car as if to enter it. He noticed the unmarked police car and immediately returned to the building, alerting the occupants to the presence of police. Police pulled into the driveway intending to detain the man. The defendant opened the door of the building from inside and the man who had approached the stolen car went inside, although the door was left open. An officer approached and asked the man to come out and speak with police before immediately stepping into the building through the open door. That officer noticed a safe next to the defendant and saw the defendant close the safe, lock it, and place the key in his pocket. More officers arrived on scene and noticed drug paraphernalia in plain view. Officers swept the house and discovered a gun in a bedroom. At this point, officers established that a man inside either owned or leased the building and requested his consent to search. The man initially refused but assented when officers threatened to place everyone in handcuffs and to obtain a search warrant. The defendant informed officers that anything they found in the home was not his and that he did not live there. He denied owning the safe, but a woman who was present at the time later informed officers that the safe belonged to the defendant. Officers obtained a search warrant for the safe and discovered money, drugs, paraphernalia, and a gun inside. The defendant was subsequently charged with trafficking, firearm by felon, habitual felon, and other offenses. He moved to suppress. The trial court denied the motion, apparently on the basis that the defendant lacked standing (although because no written order was entered, the findings and conclusions of the trial court were not easily determined). The defendant was convicted at trial of the underlying offenses and pled guilty to having obtained habitual felon status. The trial court imposed a minimum term of 225 months in consecutive judgments. On appeal, a unanimous panel of the Court of Appeals reversed.

(1) The defendant had a reasonable expectation of privacy in the building. He opened the door when it was knocked and was one of only four people inside the home at a late hour. The defendant further had apparent permission to keep the safe inside and clearly had an interest in it as the person with its key and the ability to exclude others. While the defendant did not own or lease the property, this was not enough to defeat his expectation of privacy. The defendant also disclaimed ownership of the safe to police, and the State argued that this amounted to abandonment, defeating any privacy interest in the safe. The court disagreed, noting that the defendant only made that remark after the police illegally entered the home and that abandonment does not apply in such a situation. In its words: “[W]hen an individual ‘discards property as the product of some illegal police activity, he will not be held to have voluntarily abandoned the property or to have necessarily lost his reasonable expectation of
privacy with respect to it[.]’” Jordan Slip op. at 14 (citation omitted). Thus, the defendant had standing to challenge the police entry and search.

(2) The trial court determined that officers had reasonable suspicion to speak with the man who was seen approaching the stolen car. However, this did not justify warrantless entry into the home. The State argued that the entry was supported by exigent circumstances, in that the keys to the stolen car and the drug paraphernalia seen inside the building could have been easily destroyed. However, there was no evidence that the first officer who approached the home saw any drug paraphernalia at the time and the officer therefore could not have had a legitimate concern about its destruction. There was likewise no explanation from the State regarding the need for immediate warrantless entry to preserve the car keys evidence. Because officers had already seen the man approach the car with the keys and because possession of a stolen car may be established by constructive possession, there was no immediate need to obtain the car keys. Further, there was no immediate risk of destruction of evidence where the occupants of the home left the door open, and an officer entered the home within “moments” of arrival. Exigent circumstances therefore did not support the warrantless entry.

(3) The State also argued that the person with a property interest in the building gave valid consent, and that this consent removed any taint of the initial illegal entry. Illegally obtained evidence may be admissible where the link between the illegal police activity and the discovery of evidence is sufficiently attenuated. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). Here, the taint of the illegal entry had not dissipated. Officers obtained consent soon after entering the home, no intervening circumstances arose between the entry and the obtaining of consent, and officers purposefully and flagrantly entered the building without a warrant or probable cause. Any consent was therefore tainted by the initial police illegality and could not justify the search.

(4) Although police did ultimately obtain a search warrant for the safe, the information contained in the search warrant application was based on information obtained by police after they were inside the building. There was no evidence that officers saw any drugs prior to entry, so any evidence obtained as a result was the fruit of the poisonous tree. Without the drugs evidence, the stolen car in the parking lot, the man walking up to the stolen car, and his abrupt return from the car to the building did not supply probable cause to search the building or safe. According to the court:

Because the affidavit supporting the issuance of the search warrant, stripped of the facts obtained by the officers’ unlawful entry into the residence, does not give rise to probable cause to search the residence for the evidence of drugs and drug paraphernalia described in the warrant, ‘the warrant and the search conducted under it were illegal and the evidence obtained from them was fruit of the poisonous tree.’ Id. at 24.

The denial of the motion to suppress was therefore reversed and the case was remanded for any further proceedings.

The trial court properly denied the defendant’s motion to suppress heroin discovered following a search of the defendant during a traffic stop. A tactical narcotics officer noticed a Lincoln sedan weaving in and out of heavy traffic at high speeds, nearly causing multiple collisions. The vehicle pulled into a Sonic Drive-In parking lot next to an unoccupied Honda. The defendant, a passenger in the Lincoln, exited the vehicle, approached the Honda, and placed his hand inside the passenger window of that vehicle. The driver of the Honda appeared and spoke with the defendant briefly. The defendant then returned to the Lincoln and the vehicle drove away. No one in the Lincoln had ordered any food. Based on his experience, the officer concluded that the defendant had participated in a drug transaction. Other officers then saw the Lincoln go to a gas station. A second officer radioed that the vehicle continued to be driven in a careless and reckless manner, at approximately 15 miles per hour over the speed limit. After the vehicle left the gas station, the first officer stopped it for reckless driving and speeding. Four other officers participated in the stop; all five officers were in uniform. The first officer approached the passenger side of the vehicle, while two others approached the driver’s side. The officer approaching the passenger side saw the defendant reach toward the floorboard. Because he did not know whether the defendant had a weapon or was trying to conceal contraband, the officer asked the defendant to show his hands. The defendant raised his hands, which were daubed in a light pink substance that the defendant stated was fabric softener. The officer ordered the defendant out of the vehicle and asked whether he was attempting to conceal something. The defendant denied doing so. The officer testified that when he asked for the defendant’s consent to search his person the defendant gave consent saying, “go ahead.” The defendant testified that he never consented to a search. When the officer proceeded to pat down the defendant he noticed a larger than normal bulge near the groin area that was not consistent with “male parts.” The officer then detained the defendant in handcuffs, believing that he had contraband on his person. The officer asked the defendant if he had anything inside of his underwear and the defendant said that he did. The officer asked the defendant if he would retrieve the item and the defendant said he would. The officer removed the handcuffs, the defendant reached into his pants and produced a plastic bag containing heroin. He was then placed under arrest.

                  The court first found that the defendant consented to the search, rejecting the defendant’s argument that his consent was not voluntary given the coercive environment fostered by the police. The defendant argued that his race is highly relevant to the determination of whether he voluntarily consented to the search because people of color will view a “request” to search by the police as an inherently coercive command, and he cited various studies in support of this claim. The court agreed that the defendant’s race may be a relevant factor in considering whether consent was voluntary. However, aside from the studies presented by the defendant, the record is devoid of any indication that the defendant’s consent in this case was involuntary. To the contrary, the circumstances show that the defendant’s consent was freely and intelligently made. Although multiple officers were present, only the first officer interacted with the defendant. When the officer approached the vehicle he asked the defendant whether he had anything illegal and the defendant said that he did not. The officer then asked if he could search the defendant’s person, to which the defendant responded “go ahead.” No other conversation occurred. There is no evidence that the defendant was unaware of his ability to refuse the request or that he feared retribution had he done so. There is no indication that the officer made threats, used harsh language, or raised his voice. There is no evidence of any physical contact with the defendant. Additionally, the officers’ firearms remain holstered throughout the encounter.

                  The court next rejected the defendant’s argument that the scope of his consent to search his person did not include a frisk of his private parts, and lacking probable cause or exigent circumstances to justify such a search, the pat down of his groin area was unconstitutional. The court concluded that because the defendant’s consent encompassed the sort of limited frisk that was performed, neither probable cause nor exigency was required to justify the search. The pat down of the defendant’s groin area was within the bounds of what a reasonable person would have expected the search to include. The officer limited his pat down to the outer layer of the defendant’s clothing. He did not reach into the defendant’s pants to search his undergarments or directly touch his groin area. Nothing about the search involved the exposure of the defendant’s privates to the officer or to the public. And there is no evidence that the groin pat down was conducted in an unreasonably offensive manner. Thus, the court concluded that a reasonable person in the defendant’s position would have understood his consent to include the sort of limited outer pat down that was performed here.

                  Finally, the court rejected the defendant’s argument that the officer’s continued detention of him after searching his groin area was not justified by the plain feel doctrine. During the pat down the officer felt a bulge that he determined was not consistent with male body parts and was obviously contraband. When coupled with the totality of the circumstances already observed by the officer, this discovery amounted to reasonable suspicion justifying further detention of the defendant to question him about the contents of his clothing.

Because the trial court’s findings of fact do not support its conclusion that the defendant was legally seized at the time consented to a search of his person, the court reversed the trial court’s order denying the defendant’s motion to suppress contraband found on his person. Officers were conducting surveillance on a known drug house. They noticed the defendant leave the residence in a truck and return 20 minutes later. He parked his truck in the driveway and walked toward a woman in the driveway of a nearby residence. The two began yelling at each other. Thinking the confrontation was going to escalate, the officers got out of their vehicle and separated the two. One officer asked the defendant for his identification. The officer checked the defendant’s record, verifying that the defendant had no pending charges. Without returning the defendant’s identification, the officer then asked the defendant if he had any narcotics on him and the defendant replied that he did not. At the officer’s request, the defendant consented to a search of his person and vehicle. Drugs were found in his pants pocket. On appeal, the defendant argued that when the officer failed to return his identification after finding no outstanding warrants and after the initial reason for the detention was satisfied, the seizure became unlawful and the defendant’s consent was not voluntary. The court agreed. It noted that the officer failed to return the defendant’s identification before pursuing an inquiry into possession of drugs. It found that the trial court’s order failed to provide findings of fact which would give rise to a reasonable suspicion that the defendant was otherwise subject to detention. Absent a reasonable suspicion to justify further delay, retaining the defendant’s driver’s license beyond the point of satisfying the initial purpose of the detention—the escalating the conflict, checking the defendant’s identification, and verifying that he had no outstanding warrants—was unreasonable. Thus, the defendant’s consent to search his person, given during the period of unreasonable detention, was not voluntary.

The trial court did not err by finding that the defendant consented to a search of his residence. The court rejected the defendant’s argument that the trial court must make specific findings regarding the voluntariness of consent even when there is no conflict in the evidence on the issue. Here, there was a conflict regarding whether the defendant gave consent, not whether if given it was voluntary.

The defendant voluntarily consented to allow officers to take a saliva sample for DNA testing. The defendant was told that the sample could be used to exonerate him in ongoing investigations of break-ins and assaults on women that occurred in Charlotte in 1998. The defendant argued that because the detective failed to inform him of all of the charges that were being investigated—specifically, rape and sexual assault—his consent was involuntary. Following State v. Barkley, 144 N.C. App. 514 (2001), the court rejected this argument. The court concluded that the consent was voluntary even though the defendant did not know that the assaults were of a sexual nature and that a reasonable person in the defendant’s position would have understood that the DNA could be used generally for investigative purposes.

The evidence supported the trial court’s conclusion that the defendant voluntarily consented to a search of his home. Although an officer aimed his gun at the defendant when he thought that the defendant was attempting to flee, the officer promptly lowered the gun. While the officers kicked down the door, they did not immediately handcuff the defendant. Rather, the defendant sat in his living room and conversed freely with the officers, and one officer escorted him to a neighbor’s house to obtain child care. The defendant consented to a search of his house when asked after a protective sweep was completed.

The trial court properly denied the defendant’s motion to suppress heroin discovered following a search of the defendant during a traffic stop. A tactical narcotics officer noticed a Lincoln sedan weaving in and out of heavy traffic at high speeds, nearly causing multiple collisions. The vehicle pulled into a Sonic Drive-In parking lot next to an unoccupied Honda. The defendant, a passenger in the Lincoln, exited the vehicle, approached the Honda, and placed his hand inside the passenger window of that vehicle. The driver of the Honda appeared and spoke with the defendant briefly. The defendant then returned to the Lincoln and the vehicle drove away. No one in the Lincoln had ordered any food. Based on his experience, the officer concluded that the defendant had participated in a drug transaction. Other officers then saw the Lincoln go to a gas station. A second officer radioed that the vehicle continued to be driven in a careless and reckless manner, at approximately 15 miles per hour over the speed limit. After the vehicle left the gas station, the first officer stopped it for reckless driving and speeding. Four other officers participated in the stop; all five officers were in uniform. The first officer approached the passenger side of the vehicle, while two others approached the driver’s side. The officer approaching the passenger side saw the defendant reach toward the floorboard. Because he did not know whether the defendant had a weapon or was trying to conceal contraband, the officer asked the defendant to show his hands. The defendant raised his hands, which were daubed in a light pink substance that the defendant stated was fabric softener. The officer ordered the defendant out of the vehicle and asked whether he was attempting to conceal something. The defendant denied doing so. The officer testified that when he asked for the defendant’s consent to search his person the defendant gave consent saying, “go ahead.” The defendant testified that he never consented to a search. When the officer proceeded to pat down the defendant he noticed a larger than normal bulge near the groin area that was not consistent with “male parts.” The officer then detained the defendant in handcuffs, believing that he had contraband on his person. The officer asked the defendant if he had anything inside of his underwear and the defendant said that he did. The officer asked the defendant if he would retrieve the item and the defendant said he would. The officer removed the handcuffs, the defendant reached into his pants and produced a plastic bag containing heroin. He was then placed under arrest.

                  The court first found that the defendant consented to the search, rejecting the defendant’s argument that his consent was not voluntary given the coercive environment fostered by the police. The defendant argued that his race is highly relevant to the determination of whether he voluntarily consented to the search because people of color will view a “request” to search by the police as an inherently coercive command, and he cited various studies in support of this claim. The court agreed that the defendant’s race may be a relevant factor in considering whether consent was voluntary. However, aside from the studies presented by the defendant, the record is devoid of any indication that the defendant’s consent in this case was involuntary. To the contrary, the circumstances show that the defendant’s consent was freely and intelligently made. Although multiple officers were present, only the first officer interacted with the defendant. When the officer approached the vehicle he asked the defendant whether he had anything illegal and the defendant said that he did not. The officer then asked if he could search the defendant’s person, to which the defendant responded “go ahead.” No other conversation occurred. There is no evidence that the defendant was unaware of his ability to refuse the request or that he feared retribution had he done so. There is no indication that the officer made threats, used harsh language, or raised his voice. There is no evidence of any physical contact with the defendant. Additionally, the officers’ firearms remain holstered throughout the encounter.

                  The court next rejected the defendant’s argument that the scope of his consent to search his person did not include a frisk of his private parts, and lacking probable cause or exigent circumstances to justify such a search, the pat down of his groin area was unconstitutional. The court concluded that because the defendant’s consent encompassed the sort of limited frisk that was performed, neither probable cause nor exigency was required to justify the search. The pat down of the defendant’s groin area was within the bounds of what a reasonable person would have expected the search to include. The officer limited his pat down to the outer layer of the defendant’s clothing. He did not reach into the defendant’s pants to search his undergarments or directly touch his groin area. Nothing about the search involved the exposure of the defendant’s privates to the officer or to the public. And there is no evidence that the groin pat down was conducted in an unreasonably offensive manner. Thus, the court concluded that a reasonable person in the defendant’s position would have understood his consent to include the sort of limited outer pat down that was performed here.

                  Finally, the court rejected the defendant’s argument that the officer’s continued detention of him after searching his groin area was not justified by the plain feel doctrine. During the pat down the officer felt a bulge that he determined was not consistent with male body parts and was obviously contraband. When coupled with the totality of the circumstances already observed by the officer, this discovery amounted to reasonable suspicion justifying further detention of the defendant to question him about the contents of his clothing.

In this peeping with a photographic device case, the trial court erred by denying the defendant’s motion to suppress with respect to evidence obtained during a search of the defendant’s external hard drives. The court rejected the notion that the defendant consented to a search of the external hard drives, concluding that while he consented to a search of his laptops and smart phone, the trial court’s findings of fact unambiguously state that he did not consent to a search of other items. Next, the court held that the defendant had a reasonable expectation of privacy in the external hard drives, and that the devices did not pose a safety threat to officers, nor did the officers have any reason to believe that the information contained in the devices would have been destroyed while they pursued a search warrant, given that they had custody of the devices. The court found that the Supreme Court’s Riley analysis with respect to cellular telephones applied to the search of the digital data on the external data storage devices in this case, given the similarities between the two types of devices. The court concluded: “Defendant possessed and retained a reasonable expectation of privacy in the contents of the external data storage devices …. The Defendant’s privacy interests in the external data storage devices outweigh any safety or inventory interest the officers had in searching the contents of the devices without a warrant.”

The defendant’s voluntary consent to search his vehicle extended to the officer’s looking under the hood and in the vehicle’s air filter compartment.