State v. Johnson, 279 N.C. App. 475, 2021-NCCOA-501 (Sept. 21, 2021)

In this felony possession of cocaine case, the trial court erred by denying the defendant’s motion to suppress evidence that was discovered pursuant to a consent search where the request for consent and the search measurably extended a traffic stop without reasonable suspicion in violation of Rodriguez.  An officer made a traffic stop of the defendant after observing him driving without wearing a seatbelt.  “Almost immediately,” the officer asked the defendant to exit the vehicle and accompany him to his patrol car.  As they walked, the officer asked if the defendant possessed anything illegal and whether he could search the defendant.  The defendant raised his hands above his waist and the officer reached into the defendant’s sweatshirt pocket, discovering a plastic wrapper containing soft material he believed to be powder cocaine.

The court first determined that the defendant had preserved his undue delay argument for appellate review by generally arguing to the trial court that the stop was unsupported by reasonable suspicion and the search was unreasonable under the Fourth Amendment, regardless of the fact that the defendant’s precise Fourth Amendment argument on appeal differed slightly from his argument to the trial court.  The court went on to say that it would exercise Rule 2 discretion to address the merits in any event.

Addressing the merits, the court determined that while it may have been permissible on the grounds of officer safety to conduct an external frisk if the officer had reasonable suspicion that the defendant was armed and dangerous, the search in this case went beyond such a frisk, lasting almost thirty seconds and appearing to miss areas that would be searched in a safety frisk.  The State also made no argument that reasonable suspicion of being armed and dangerousness justified the search.  The court proceeded to distinguish case law the State argued supported the position that officers need no additional reasonable suspicion to request consent to search during a traffic stop as a universal matter, explaining that in the case at hand the request for consent and the full search were not related to the mission of the stop and were not supported by additional reasonable suspicion beyond the observed seatbelt violation.  The court concluded that any consent the defendant gave for the search was involuntary as a matter of law, reversed the trial court’s denial of the defendant’s motion to suppress, and vacated the judgement entered against the defendant based on his guilty pleas.

Judges Carpenter and Griffin concurred with separate opinions, each agreeing with the Fourth Amendment analysis.  Judge Griffin wrote to address an argument in the defendant’s brief “raising a question of impartiality in traffic stops, and our justice system generally, based on the color of a person’s skin and their gender.”  Judge Griffin rejected that argument, characterizing it as “inflammatory and unnecessary.”  Judge Carpenter wrote that “[c]hoosing to inject arguments of disparate treatment due to race into matters before the Court where such treatment is not at issue . . . does not further the goal of the equal application of the law to everyone.”