State v. Wright, COA22-996, ___ N.C. App. ___ (Sept. 12, 2023)

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.