State v. Tripp, 275 N.C. App. 907 (Dec. 31, 2020)

The defendant in this drug case moved to suppress evidence discovered on his person by a law enforcement officer who was part of a team of officers executing a search warrant at the defendant’s residence.  At the time of the execution of the warrant, the defendant, who the day before had sold heroin to a confidential informant at the subject premises, was standing outside his grandfather’s home situated roughly 60 yards away.  Upon arriving to execute the search warrant, the officer noticed the defendant outside his grandfather’s home, approached him, and ordered him to submit to a pat-down where the officer discovered fentanyl in his pants pocket.  Analyzing the propriety of the seizure of the defendant under both Michigan v. Summers and Terry v. Ohio, the court determined that the seizure was illegal. 

The court explained that under Michigan v. Summers and related North Carolina cases including State v. Wilson, 371 N.C. 920 (2018), “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain (1) the occupants, (2) who are within the immediate vicinity of the premises to be searched, and (3) who are present during the execution of a search warrant.”  Relying on reasoning from State v. Thompson, 267 N.C. App. 101 (2019) that a person is an “occupant” of premises for purposes of Summers when he or she poses a real threat to the safe and efficient execution of the search, the court concluded that the defendant, who was “simply leaning up against the rail” outside his grandfather’s house and “did not take any action to raise any suspicion of criminal activity on his part” did not pose such a threat and therefore was not at that time an “occupant” of the premises subject to the search warrant.

The court then determined, largely because the particular officer who seized the defendant was unaware of the defendant’s sale of heroin to the confidential informant, that there was no basis for the officer to seize the defendant under Terry v. Ohio and that the inevitable discovery doctrine was inapplicable.  Finally, the court remanded the case to the trial court to correct clerical errors arising from judgment forms that were inconsistent with the sentence rendered orally in open court.

Judge Stroud dissented, expressing the view that the trial court correctly denied the defendant’s motion to dismiss because the defendant, due to his proximity to the premises and criminal history which involved possession of firearms, posed a real threat to the safe and efficient execution of the search warrant and thus was an “occupant” of the premises within the meaning of Summers.  Judge Stroud also would have found the frisk of the defendant to be valid under Terry and the confiscation of the drugs on his person to be supported by the plain view doctrine.