State v. Duncan, ___ N.C. App. ___, ___ S.E.2d ___ (Jul. 7, 2020)

The defendant was stopped by a Charlotte-Mecklenburg police officer for a broken taillight and a passenger seatbelt violation. A second officer arrived shortly after the stop. The stopping officer saw an approximately five-inch closed pocketknife in the center console between the driver and passenger. The officer then asked the defendant to step out of the car so the knife could be secured and to check the defendant for weapons. The defendant exited the car and stated that having the knife was not a crime. The officer agreed, stating he was acting out of officer safety. The defendant stated he was not armed and did not consent to a frisk. When the officer said he was “just going to pat [Defendant] down,” the defendant said, “all right,” and raised his arms. The officer felt a bulge the size of a “large grape” near the defendant’s exterior coat pocket but could not locate the item within the pocket. The officer suspected the item was marijuana and asked the defendant about it. The defendant replied that it was an item he purchased from a store. When asked to remove the item, the defendant produced several items wrapped in plastic, telling the officer, “It’s not illegal, man.” The officer then grabbed the bulge from the outside, lifted the defendant’s coat, and reached inside an interior pocket. The defendant repeatedly asked for a supervisor on scene and protested: “This is not a Terry frisk, man. You’re illegally searching me.” At one point the defendant pushed the officer’s arm away. The officer did not remove his hands from the defendant’s pockets and the defendant eventually fled, falling nearby. As the defendant got up from the fall, the officer observed the defendant “digging in his waistband.”  The defendant was then tased and arrested at gunpoint. A bag was found nearby containing crack and powder cocaine. More crack, marijuana, and cash were found on the defendant. The defendant stated the drugs were for personal use during arrest processing. He was charged with possession with intent to sell or deliver cocaine and possession of cocaine and moved to suppress.

The trial court denied the motion. It found the frisk was not based on reasonable suspicion and was therefore unconstitutional, but the defendant’s act of fleeing sufficiently attenuated that violation from the discovery of evidence. The defendant was convicted of two counts of possession of cocaine at trial and appealed. A divided Court of Appeals reversed.

(1) The State argued that the frisk was justified by the presence of the knife in the center console—since the defendant was armed, he was dangerous—and that the trial court erred in concluding otherwise. The majority disagreed. Two officers were present, the defendant was stopped for equipment violations only, and the stop occurred in the middle of the day in uptown Charlotte near the courthouse. The defendant was generally cooperative, did not attempt to conceal the knife, got out of the car (and away from the knife) upon request, and did not otherwise act suspiciously. These facts were “entirely inapposite” from cases where police had “reason to suspect the defendant possessed and concealed a dangerous weapon on their person, coupled with behavior giving rise to a suspicion the defendant may be dangerous.” Slip op. at 12-13 (emphasis in original) (distinguishing State v. Malachi, ___ N.C. App. ___, 825 S.E.2d 666 (2019)). The trial court therefore did not err in concluding the frisk was unconstitutional.

(2) Under the attenuation doctrine, evidence that would be subject to suppression via the exclusionary rule is nonetheless admissible when the connection between the illegal action of law enforcement and the evidence is “remote or has been interrupted by some intervening circumstance.” See Utah v. Strieff, ___ U.S. ___, 136 S. Ct. 2056 (2016). Courts must examine the closeness in time between the police illegality and the discovery of the evidence, any intervening circumstances, and the “purpose and flagrancy of the official misconduct” when deciding whether the attenuation exception applies. Duncan Slip op. at 16 (citation omitted). As to the first factor, Strieff held that only the passing of “substantial time” between the police misconduct and the discovery of evidence favors attenuation. Because the discovery of evidence here occurred within minutes of the illegal frisk, this factor weighed against attenuation. As to the second factor, the trial court found that the defendant committed the crime of resisting a public officer by fleeing the encounter—officers then had probable cause to arrest for that offense and to search incident to the arrest, which was a sufficient intervening circumstance. The Court of Appeals disagreed, finding that even if the frisk was within the mission of the stop, the officer’s search of the defendant’s pocket for suspected marijuana was not. “Because the traffic stop was unlawful at the point of [the officer’s] unconstitutional search, the defendant had ‘the right to resist [the] unlawful arrest.’” Id. at 21. The court rejected the State’s contention that the defendant could have resisted the search by lesser means, pointing out that the defendant repeatedly asked for a supervisor, repeatedly objected to the search, and tried to remove the officer’s hand from his pocket before fleeing. Thus, the defendant’s flight did not constitute a crime or intervening circumstance weighing in favor of attenuation. The court observed that the final factor, the purpose and flagrancy of law enforcement misconduct, was the most significant factor in the analysis. The trial court found the officers acted in good faith and that this supported application of the attenuation doctrine. The majority again disagreed. “Instead of taking the opportunity—indeed, at Defendant’s invitation—to deescalate the situation, [the officer] proceeded with the flagrantly unconstitutional search.” Id. at 26. These “extraordinary facts” weighed against attenuation and in favor of suppression. The trial court’s order denying the motion to suppress was therefore reversed and a new trial ordered.

Judge Tyson dissented. He would have found that the frisk was justified and that attenuation applied to the extent the search became illegal, as well as other grounds supporting the denial of the motion.