State v. Tripp ( 2022 )

IN THE SUPREME COURT OF NORTH CAROLINA
2022-NCSC-78
No. 27A21
Filed 17 June 2022
STATE OF NORTH CAROLINA
v.
MICHAEL DEVON TRIPP
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, 275 N.C. App. 907, 853 S.E.2d 848 (2020), reversing an order
entered on 8 June 2018 and vacating in part and remanding a judgment entered on
2 July 2018, both by Judge Charles H. Henry in Superior Court, Craven County. On
10 August 2021, the Supreme Court allowed defendant’s petition for discretionary
review of additional issues. Heard in the Supreme Court on 15 February 2022.
Joshua H. Stein, Attorney General, by Kristine M. Ricketts, Special Deputy
Attorney General, for the State-appellee-appellant.
Paul E. Smith, for defendant-appellant-appellee.
BERGER, Justice.
¶1 Following the trial court’s denial of his motion to suppress, defendant pleaded
guilty to various drug offenses including trafficking in heroin, possession with intent
to sell or deliver fentanyl, and possession with intent to sell or deliver heroin. The
Court of Appeals reversed the trial court’s denial of defendant’s motion to suppress.
STATE V. TRIPP
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Opinion of the Court
Based upon a dissent in the Court of Appeals and the allowance of defendant’s
petition for discretionary review, there are two issues now before this Court: whether
the trial court’s findings of fact challenged by defendant are supported by competent
evidence, and whether the seizure and subsequent search of defendant comports with
the Fourth Amendment. For the reasons stated below, we reverse the decision of the
Court of Appeals.
I. Factual and Procedural Background
¶2 Investigator Jason Buck of the Craven County Sheriff’s Office Narcotics
Division was alerted to several overdose deaths which were linked to heroin
reportedly sold by defendant. In response to the information he obtained,
Investigator Buck arranged a controlled buy of heroin between a confidential
informant and defendant on April 25, 2017. Audio and video surveillance of the
controlled buy confirmed the sale of heroin by defendant to the confidential
informant.
¶3 Investigator Buck obtained a search warrant for the location where the
controlled buy had occurred, 8450 U.S. Highway 17 N., Vanceboro, North Carolina.
The warrant authorized a search of the residence, carport, outside storage building,
and three vehicles. Although defendant was identified in the search warrant, search
of his person was neither requested in the application nor authorized in the warrant.
¶4 A law enforcement briefing was held before execution of the search warrant.
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Attendees were briefed on the search warrant and the controlled buy that had
occurred the previous day. Lieutenant John Raynor, who oversees the narcotics unit,
attended the briefing to ensure adherence to the following policy during the execution
of the search warrant:
[A]ll persons on scene or in proximity to our scenes that we
believe to be a threat are dealt with, which means that we
will detain them briefly, pat them down for weapons, make
sure they’re not a threat to us and then one of the narcotics
investigators on scene will make a determination if that
person can leave or not.
Lieutenant Raynor explained in his testimony that individuals considered a threat
included
[a]nyone with a prior history with us, with violent history,
known to carry guns, any known drug dealers that we have
past history with. By nature, generally drug dealers are
considered violent and by nature a majority carry guns in
one nature or another, so everybody inside of a known
narcotics residence or on the scene there we deal with for
our safety purposes, then deem whether or not they’re
suspect at that point to continue further.
¶5 Deputy Josh Dowdy was present at the briefing and understood that defendant
was the target of the operation and that officers were searching for heroin based on
the controlled buy. Deputy Dowdy was familiar with defendant based on prior law
enforcement-related encounters, including three incidents in which defendant had
brandished or discharged firearms. All three incidents occurred in the same area
along U.S. Highway 17 near the residence identified in the search warrant.
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¶6 Nearly a dozen officers participated in the execution of the search warrant.
Upon his arrival at the site, Deputy Dowdy observed defendant and other individuals
on a wheelchair ramp on the neighboring property at 8448 U.S. Highway 17, which
belonged to defendant’s grandfather. Testimony at the suppression hearing
estimated the distance between the two residences to be between fifty and sixty yards.
¶7 Deputy Dowdy approached defendant and instructed him to place his hands on
the railing of the wheelchair ramp. Defendant was wearing baggy jogging pants
which were loose enough to allow Deputy Dowdy to view the contents of defendant’s
pockets without manipulating his clothing. Deputy Dowdy observed money in
defendant’s left pocket and a plastic baggie in defendant’s right pocket. Deputy
Dowdy patted down the exterior of defendant’s clothing and felt a large lump in
defendant’s right pocket. Based on his training and experience, after seeing the
baggie and feeling the lump, in addition to the purpose for which law enforcement
was at the scene, Deputy Dowdy believed the baggie contained narcotics. Deputy
Dowdy removed the baggie from defendant’s pocket and placed him in handcuffs.
Testing later determined the contents of the baggie to be more than seven grams of a
mixture of heroin and fentanyl.
¶8 Defendant moved to suppress the evidence recovered by Deputy Dowdy. In its
written order denying defendant’s motion to suppress, the trial court found the
following:
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1. Investigator Jason Buck, a sworn law enforcement
officer with the Craven County Sheriff’s Office and a
member of the Coastal Narcotics Enforcement
Team, utilized a confidential informant which he
found to be reliable to make a controlled purchase of
heroin from the defendant, Michael Tripp, on April
25, 2017. The informant was equipped with video
and audio equipment from which law enforcement
could monitor the transaction. The defendant, who
was known by law enforcement as a drug dealer in
the Vanceboro area by reputation and criminal
history, was identified by the informant and later
verified by the recordings as the defendant and the
seller of a quantity of heroin to the informant. The
sale was made from within the defendant’s residence
. . . in Vanceboro, North Carolina.
2. As a result of that investigation, Deputy Buck
obtained on April 26, 2017 a search warrant for that
residence and several motor vehicles associated with
that address from Superior Court Judge Benjamin
Alford.
3. At approximately 6:00 p.m. on April 26, 2017 eleven
officers with the Craven County Sheriff’s Office and
Coastal Narcotics Enforcement Team executed that
search warrant for that residence.
4. Prior to the execution of the search warrant an
operation plan meeting was held by the officers
conducting the operation. The plan was to clear the
residence and detain all who were present. The
residence to be searched was on a dirt road
contiguous to homes resided in by other members of
the defendant’s family. The officers utilized four
unmarked vehicles to get to that location. The
officers had not obtained an arrest warrant for the
defendant prior to the operation.
5. Deputy Josh Dowdy, a nine year veteran of the
sheriff's office and a trained member of the Coastal
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Narcotics Enforcement Team, participated in the
execution of the search warrant. Dowdy understood
that the target of the search was the defendant. He
knew the defendant from at least three other
inter[actions] with the defendant. In 2011 and 2013
he had been called to the defendant’s residence due
to domestic disturbances in which the defendant had
been brandishing a firearm. In 2012 he had arrested
the defendant for an assault on a female. At the time
of that arrest, he was at his grandfather’s house
which is located about 60 yards from the residence
being searched pursuant to the April 26, 2017 search
warrant.
6. The Craven County Sheriff’s Office had a policy
described by Lt. John Raynor that required that all
people who are “on scene” or “in proximity to our
scene” whom they believe to be a threat or had
previously dealt with be detained and briefly patted
down for weapons to make sure they are not a threat
to any of the narcotics officers. The policy provided
that anyone who had a prior violent history, [was]
known to carry firearms, or sold narcotics were
deemed to be threats.
7. When the narcotics officers arrived at [the residence]
in Vanceboro, North Carolina, the defendant was
outside at his grandfather’s house within sixty yards
of the residence to be searched and had a direct line
of sight to it and the officers on scene.
8. As Deputy Dowdy was getting out of his motor
vehicle he observed the defendant to his right near
the front porch of the defendant’s grandfather’s
house. Because of his past experiences with the
defendant, his previous firearm possessions, and the
reasons that brought law enforcement to this
residence, Dowdy asked him to put his hands on the
railing of a handicap ramp attached to his
grandfather’s house so he could “pat” him down for
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weapons. It was the policy and normal procedure of
the Sheriff’s Office for the safety of the officers and
those present to pat down all individuals with whom
they made contact while executing a search warrant.
The defendant complied.
9. The defendant was wearing baggy jogging pants.
While patting him down Dowdy could feel what he
thought was money in his left pocket. Because his
pants were so “baggy[,]”[ ] Dowdy could see, without
manipulating the garment, a plastic baggie in his
right pants pocket, and while patting him down he
felt a large lump associated with that baggie. His
training and experience allowed him to reasonably
conclude that the plastic baggie in the defendant’s
pocket contained narcotics. As a result Dowdy
removed the bag and its contents. Dowdy had
concluded that the plastic baggie was consistent
with how narcotics are carried and packaged. He
was also acutely aware of the reasons that they were
searching the defendant’s residence.
10. The baggie contained a white powdery substance
which Dowdy concluded was a controlled substance.
The defendant was handcuffed and detained and
walked over to his residence. He would be later [ ]
charged with multiple counts of trafficking in heroin
and felonious possession of fentanyl and marijuana.
The search of the defendant resulted in the seizure
of 7.01 grams of schedule I heroin and the schedule
II opiate, fentanyl. The search of [the] residence
resulted in the seizure of drug paraphernalia and
marijuana.
¶9 Based upon these findings of fact, the trial court made the following
conclusions of law:
1. That there was probable cause on April 26, 2017 for
the issuance of the search warrant for 8450 U.S.
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Highway 17 in Vanceboro, N.C.
2. Deputy Dowdy was unaware there existed probable
cause to arrest the defendant without a warrant for
the previous day’s felonious sale of heroin to Deputy
Jason Buck’s confidential informant. N.C. Gen. Stat.
§15A-401(b)(2)(a).
3. Under the circumstances then existing, Deputy
Dowdy conducted a limited “frisk” or search for
weapons of the defendant which was reasonable and
constitutional. State v. Long, 37 N.C[.] App. 662,
668-69, 246 S.E.2d 846, 851 (1978).
4. Dowdy had reasonable suspicion and was justified
from the totality of the circumstances and his
previous experience with the defendant in believing
that the defendant, who was the subject of multiple
narcotics sale investigations, was armed and could
pose a danger to those law enforcement officers who
were conducting the search of the defendant’s
residence. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,
88 S. Ct. 1868 (1968).
5. Because the defendant had made a sale of heroin to
an undercover informant the previous day and was
the occupant of the premises searched, it was likely
he was going to be detained while the search was
conducted. An officer executing a warrant directing
a search of premises not open to the public may
detain any person present for such time as is
reasonably necessary to execute the warrant. If the
warrant fails to produce the items named the officer
may then search any person present at the time of
the officer’s entry to the extent reasonably necessary
to find the property described in the warrant. N.C.
Gen. Stat. §15A-256. The defendant, even if the
narcotics had not been uncovered by Dowdy, would
have faced such a search under that statute or
pursuant to his arrest [for the] sale of heroin and for
what was found in the residence. The search of the
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residence did not apparently result in finding any
appreciable amount of heroin.1
6. The bag containing heroin had been located in the
defendant’s baggy pants pocket which Deputy
Dowdy could see into when he frisked the defendant.
At that time Dowdy had legal justification to be at
the place and in the position he was when he saw the
baggie in plain view. Its discovery was inadvertent
as it was discovered during the pat down. The baggie
was immediately apparent to Dowdy to be evidence
of a container for illegal narcotics and would
warrant a man of reasonable caution in believing the
defendant was in possession of drugs and was hiding
evidence which would incriminate him. The plain
view doctrine was applicable in this case and all the
elements were present. State v. Peck, 305 N.C. 734,
743, 291 S.E. 2d 637, 642 (1982).
7. After Dowdy observed the baggie and had felt the
pocket during his pat down for weapons, because of
the totality of the circumstances known to him at the
time, he had probable cause to seize the baggie and
its contents and later place him under arrest.
¶ 10 Following the trial court’s denial of defendant’s motion to suppress, defendant
pleaded guilty to various drug offenses including trafficking in heroin, possession
with intent to sell or deliver fentanyl, and possession with intent to sell or deliver
heroin. Defendant reserved his right to appeal the trial court’s denial of his motion
to suppress.
¶ 11 The majority in the Court of Appeals held that the trial court erred in denying
1 The State did not argue to this Court that N.C.G.S. § 15A-256 applied.
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defendant’s motion to suppress and vacated the convictions. State v. Tripp, 275 N.C.
App. 907, 924, 853 S.E.2d 848, 860 (2020). The dissent in the Court of Appeals argued
that defendant’s detention was justified under the United States Supreme Court’s
holdings in Michigan v. Summers and United States v. Bailey, and this Court’s
decision in State v. Wilson. Id. at 932–35, 853 S.E.2d at 865–66 (Stroud, J.,
concurring in part and dissenting in part). The State timely appealed to this Court
based upon the dissent. In addition, this Court allowed defendant’s petition for
discretionary review to determine whether the trial court’s findings of fact listed in
its order denying the motion to suppress were supported by competent evidence.
II. Standard of Review
¶ 12 Appellate review of a trial court’s denial of a motion to suppress “is strictly
limited to determining whether the trial judge’s underlying findings of fact are
supported by competent evidence, in which event they are conclusively binding on
appeal, and whether those factual findings in turn support the judge’s ultimate
conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).
Findings of fact not challenged on appeal “are deemed to be supported by competent
evidence and are binding on appeal.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d
874, 878 (2011). Even when challenged, a trial court’s findings of fact “are conclusive
on appeal if supported by competent evidence, even if the evidence is conflicting.”
State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (quoting State v.
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Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000)).
¶ 13 “Conclusions of law are reviewed de novo and are subject to full review.” Biber,
365 N.C. at 168, 712 SE.2d at 878. Moreover, “the trial court’s ruling on a motion to
suppress is afforded great deference upon appellate review as it has the duty to hear
testimony and weigh the evidence.” State v. McClendon, 130 N.C. App. 368, 377, 502
S.E.2d 902, 908 (1998), aff’d, 350 N.C. 630, 517 S.E.2d 128 (1999).
III. Analysis
A. Whether competent evidence supports the trial court’s findings of fact
¶ 14 Defendant contends several of the trial court’s findings of fact are not
supported by competent evidence. Specifically, defendant challenges findings of fact
numbers 1, 5, 7, 8, and 9.
1. Finding of fact #1
¶ 15 Defendant asserts that the trial court’s characterization of the 8450 residence
as “defendant’s residence” is not supported by competent evidence. During the
hearing on defendant’s motion to suppress, Investigator Buck testified that law
enforcement had received “several citizen complaints about activity coming out of”
the 8450 residence, and that a bad mixture of heroin “was coming from that residence,
from Michael Tripp.” In addition, the State entered the search warrant application
into evidence. The application indicated that law enforcement had received
information that defendant resided at the 8450 address, and that the controlled buy
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between defendant and the confidential informant took place in the 8450 residence.
Thus, the trial court’s finding that “[t]he sale was made from within the defendant’s
residence” was supported by competent evidence.
¶ 16 Defendant also contends that there is no competent evidence to support the
trial court’s finding that Deputy Dowdy was among the officers who knew defendant
was “a drug dealer in the Vanceboro area by reputation and criminal history.” To the
contrary, Lt. Raynor testified that the officers, including Deputy Dowdy, were briefed
about the sale to the confidential informant in the pre-search meeting, “and that that
was the probable cause for the search warrant.” Audio and video surveillance
captured defendant selling drugs to the confidential informant. In addition,
defendant had a July 2017 conviction for possession with intent to sell and deliver
cocaine. By definition, someone who sells drugs illegally is a drug dealer. See State
v. Williams, 127 N.C. App. 464, 469, 490 S.E.2d 583, 587 (1997) (characterization of
a defendant as a “drug dealer” was a “reasonable inference” based on the defendant’s
convictions for possession of cocaine with intent to sell). Furthermore, the application
for the search warrant stated defendant “is a known drug dealer in the Vanceboro
area and has a criminal history dating back to 2009.” Deputy Dowdy also testified
that in two of his previous encounters with defendant, one involved “some narcotics,”
and another resulted in defendant’s arrest for “assaulting a female and simple
possession of marijuana.” Thus, there is competent evidence in the record to support
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the trial court’s finding that defendant was a drug dealer.
2. Finding of fact #5
¶ 17 Defendant next challenges the trial court’s finding of fact that Deputy Dowdy
was a “member of the Coastal Narcotics Enforcement Team” (CNET), a multiagency
task force developed to coordinate local law enforcement investigations. Deputy
Dowdy testified that he was an investigator with the Craven County Sheriff’s Office
and the record shows he participated in the pre-execution briefing with members of
CNET. Although Deputy Dowdy did not specifically testify that he was a member of
CNET, there is competent evidence in the record to support the trial court’s finding.
3. Finding of fact #7
¶ 18 Next, defendant argues that there is insufficient evidence to support the trial
court’s finding that defendant “had a direct line of sight to the residence to be
searched and . . . the officers on scene.” Testimony at the suppression hearing
described the distance between the 8450 and 8448 residences as “not far at all,” and
Deputy Dowdy estimated the distance to be around fifty to sixty yards. Investigator
Buck testified that he could see people at the 8448 residence from the 8450 residence
before entering the residence to conduct the search, and that he observed Deputy
Dowdy escorting defendant toward the 8450 residence from the 8448 residence after
the search of the residence was completed.
¶ 19 While defendant submitted a photograph that showed certain bushes or trees
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could have possibly obstructed the line of sight between the residences, this Court
affords great deference to a trial court’s determination on conflicting evidence when
reviewing a motion to suppress. See State v. Malone, 373 N.C. 134, 145, 833 S.E.2d
779, 786 (2019) (“A trial court has the benefit of being able to assess the credibility of
witnesses, weigh and resolve any conflicts in the evidence, and find the facts, all of
which are owed great deference by this Court.”). Accordingly, competent evidence in
the record establishes that there was a direct line of sight from defendant’s location
to his residence.
4. Finding of fact #8
¶ 20 Defendant challenges the trial court’s finding that Deputy Dowdy detained and
searched defendant based on “his past experiences with the defendant, his previous
firearm possessions, and the reasons that brought law enforcement to this residence.”
Defendant contests this finding “to the extent it is inconsistent with Deputy Dowdy’s
concession that he believed he was acting pursuant to the search warrant.”
¶ 21 Deputy Dowdy testified that he initially approached defendant because “he
was [the] target of the search warrant.” Deputy Dowdy’s prior encounters with
defendant, which included incidents related to violence, firearms, and illicit drugs,
led Deputy Dowdy to conduct the pat-down for weapons for officer safety. In addition,
Deputy Dowdy testified that he was aware of the recent controlled buy and that law
enforcement was present at the scene to search for evidence related to transporting
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and distributing “Cocaine, Marijuana and other controlled dangerous substances.”
¶ 22 Thus, there is competent evidence in the record to support the finding that
Deputy Dowdy detained and searched defendant “[b]ecause of his past experiences
with the defendant, his previous firearm possessions, and the reasons that brought
law enforcement to this residence.”
5. Finding of fact #9
¶ 23 Defendant challenges the finding that “Deputy Dowdy ‘was also acutely aware
of the reasons that they were searching the defendant’s residence.’ ” Defendant
argues this finding is not supported by the record “to the extent it indicates Deputy
Dowdy knew the details underlying the application for the search warrant.”
Lieutenant Raynor testified that Deputy Dowdy was present at the pre-execution
briefing, that those in attendance were informed of the controlled buy, and that a
search warrant had been issued. Deputy Dowdy testified that he was present at the
pre-execution briefing and had been called “to assist . . . with a search of [defendant’s]
residence.” This evidence supports the finding that Deputy Dowdy was aware of the
reasons for which law enforcement was searching the defendant’s residence.
¶ 24 Defendant also challenges this finding “[t]o the extent it does imply that
[Deputy] Dowdy believed the baggie contained narcotics based solely on his visual
observations.” Nonetheless, defendant admits in the following sentence that the
record “demonstrates it was both the sight of the baggie and how the baggie felt
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during the frisk that made Deputy Dowdy believe it contained narcotics.” Thus,
competent evidence supports a finding that after seeing and feeling the baggie,
Deputy Dowdy, based on his training and experience, reasonably concluded the
baggie contained narcotics.2
6. Conclusion
¶ 25 Because the trial court’s findings of fact are supported by competent evidence,
“they are conclusively binding on appeal.” Cooke, 306 N.C. at 134, 291 S.E.2d at 619.
In addition, the unchallenged findings of fact “are deemed to be supported by
competent evidence and are binding on appeal.” Biber, 365 N.C. at 168, 712 S.E.2d
at 878. Thus, we must now determine “whether those factual findings in turn support
the judge’s ultimate conclusions of law.” Cooke, 306 N.C. at 134, 291 S.E.2d at 619.
B. Summers, Bailey, and Wilson
¶ 26 The Fourth Amendment declares that “[t]he right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. amend. IV. With respect to the Fourth
Amendment, “a warrant to search for contraband founded on probable cause
2Additionally, defendant argues that the trial court’s conclusion of law that defendant
was an occupant of the premises to be searched is a finding of fact not supported by the
evidence. “Whether a statement is an ultimate fact or a conclusion of law depends upon
whether it is reached by natural reasoning or by an application of fixed rules of law,” and the
designation of such by a trial court is not determinative. Brown v. Charlotte Mecklenburg
Bd. of Educ., 269 N.C. 667, 670, 153 S.E.2d 335, 338 (1967) (cleaned up). Here determination
as to whether an individual is an occupant of the premises to be searched is a conclusion of
law and is discussed in our analysis of Summers, Winters, and Bailey below.
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implicitly carries with it the limited authority to detain the occupants of the premises
while a proper search is conducted.” Michigan v. Summers, 452 U.S. 692, 705, 101 S.
Ct. 2587, 2595 (1981) (footnotes omitted).
¶ 27 The Supreme Court reinforced this notion in Bailey v. United States, stating
that “[w]hen law enforcement officers execute a search warrant, safety considerations
require that they secure the premises, which may include detaining current
occupants.” 568 U.S. 186, 195, 133 S. Ct. 1031, 1038 (2013). Officers executing a
search warrant are permitted under the Fourth Amendment to “take reasonable
action to secure the premises and to ensure their own safety and the efficacy of the
search.” United States v. Jennings, 544 F.3d 815, 818 (7th Cir. 2008) (quoting Los
Angeles County, Cal. v. Rettele, 550 U.S. 609, 614, 127 S. Ct. 1989, 1992 (2007) (per
curiam)). Indeed, “officers have a legitimate interest in minimizing the risk of
violence that may erupt when an occupant realizes that a search is underway.” Id.(citing Summers, 452 U.S. at 702–03, 101 S. Ct. at 2594). In addition to officer safety,
“facilitating the completion of the search[ ] and preventing flight” are legitimate
concerns justifying detention of an occupant. State v. Wilson, 371 N.C. 920, 923, 821
S.E.2d 811, 814 (2018) (quoting Bailey, 568 U.S. at 194, 133 S. Ct. at 1038).
¶ 28 “An officer’s authority to detain incident to a search is categorical; it does not
depend on the ‘quantum of proof justifying detention or the extent of the intrusion to
be imposed by the seizure.’ ” Muehler v. Mena, 544 U.S. 93, 98, 125 S. Ct. 1465, 1470
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(2005) (quoting Summers, 452 U.S. at 705 n.19, 101 S. Ct. at 2594 n.19). Even absent
evidence of danger to law enforcement,
the execution of a warrant to search for narcotics is the
kind of transaction that may give rise to sudden violence or
frantic efforts to conceal or destroy evidence. The risk of
harm to both the police and the occupants is minimized if
the officers routinely exercise unquestioned command of
the situation.
Summers, 452 U.S. at 702–03, 101 S. Ct. at 2594 (footnote omitted).
¶ 29 In interpreting Summers and Bailey, this Court has opined that “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.” Wilson, 371 N.C. at, 924, 821 S.E.2d at 815 (cleaned up). These three
factors “correspond to the ‘who,’ ‘where,’ and ‘when’ of a lawful suspicionless seizure
incident to the execution of a search warrant.” Id. at 924, 821 S.E.2d at 815.
¶ 30 Only two of the Wilson factors are at issue in the present case: whether
defendant was an occupant of the 8450 residence as defined by this Court’s precedent
in Wilson and whether defendant was within the immediate vicinity of the area to be
searched.
¶ 31 Determining whether an individual is an occupant and whether that
individual is within the immediate vicinity necessarily involves many of the same
considerations. See Bailey, 568 U.S. at 203, 133 S. Ct. at 1043 (Scalia, J., concurring)
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(Occupants are “persons within the immediate vicinity of the premises to be
searched.” (cleaned up)); cited with approval in United States v. Freeman, 964 F.3d
774, 780–81 (8th Cir. 2020), cert. denied, 141 S. Ct. 1252, 208 L. Ed. 2d 636 (2021).
¶ 32 This Court concluded in Wilson “that a person is an occupant for the purposes
of the Summers rule if he ‘poses a real threat to the safe and efficient execution of a
search warrant.’ ” 371 N.C. at 925, 821 S.E.2d at 815 (quoting Bailey, 568 U.S. at
201, 133 S. Ct. at 1042). Thus, although not an “occupant” in the ordinary sense of
the word, an individual’s “own actions [can] cause[ ] him to satisfy the first part, the
‘who,’ of the Summers rule.” Id. at 926, 821 S.E.2d at 816.
¶ 33 The Supreme Court announced the immediate vicinity rule in Bailey, stating
that “[a] spatial constraint defined by the immediate vicinity of the premises to be
searched is . . . required for detentions incident to the execution of a search warrant.”
568 U.S. at 201, 133 S. Ct. at 1042. But Summers is “not confine[d] . . . to the premises
identified in the search warrant, but extends . . . to the immediate vicinity of those
premises.” Wilson, 371 N.C. at 925, 821 S.E.2d at 815. Because reasonable minds
may disagree on where the immediate vicinity line may be drawn, the Supreme Court
noted that:
In closer cases courts can consider a number of factors to
determine whether an occupant was detained within the
immediate vicinity of the premises to be searched,
including the lawful limits of the premises, whether the
occupant was within the line of sight of his dwelling, the
ease of reentry from the occupant’s location, and other
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relevant factors.
Bailey, 568 U.S. at 201, 133 S. Ct. at 1042. Thus, the spatial limitation for detention
discussed in Bailey is not necessarily the boundary of the property to be searched, but
rather, may extend beyond the lawful limits of the property. Ultimately, determining
whether an occupant was within the vicinity is a question of reasonableness. See id.
at 201, 133 S. Ct. at 1042; see also Wilson, 371 N.C. at 925, 821 S.E.2d at 815.
¶ 34 As the trial court found, “[i]t was the policy and normal procedure of the
Sheriff’s Office for the safety of the officers and those present to pat down all
individuals with whom they made contact while executing a search warrant.” This
practice is consistent with the rationale in Wilson that “someone who is sufficiently
close to the premises being searched could pose just as real a threat to officer safety
and to the efficacy of the search as someone who is within the premises.” Wilson, 371
N.C. at 925, 821 S.E.2d at 815. As noted in Summers, “no special danger to the police”
is required, 452 U.S. at 702, 101 S. Ct. at 2594; yet here defendant was a known drug
dealer with a history of gun violence who was “within sixty yards of the residence to
be searched and had a direct line of sight to it and the officers on scene.” Defendant
was outside a relative’s home with other individuals when officers arrived to search
his residence. This situation could have escalated quickly absent the encounter by
Deputy Dowdy. Based on the totality of the circumstances, defendant was an
occupant within the immediate vicinity of the 8450 residence because defendant was
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close enough to the search that he had access to the residence and could have posed
a real threat to CNET officers and the efficacy of the search.
¶ 35 The risk of harm here was minimized by law enforcement’s “unquestioned
command of the situation.” Id. at 702–03, 101 S. Ct. at 2594.3 Because law
enforcement officers are not required to ignore obvious dangers—here a drug dealer
with a history of gun violence—defendant was an occupant within the immediate
vicinity of his residence “even though [he] was not within the lawful limits of” his
residence. See Freeman, 964 F.3d at 781; see also Wilson, 371 N.C. at 924, 821 S.E.2d
at 815.
¶ 36 “[W]e must determine separately whether the search of defendant’s person was
justified.” Wilson, 371 N.C. at 926, 821 S.E.2d at 816. In making such a
determination, this Court has stated:
In Terry v. Ohio, the Supreme Court determined that a
brief stop and frisk did not violate a defendant’s Fourth
Amendment rights when a reasonably prudent man would
have been warranted in believing the defendant was armed
and thus presented a threat to the officer’s safety while he
was investigating his suspicious behavior. In other words,
an officer may constitutionally conduct what has come to
be called a Terry stop if that officer can reasonably conclude
in light of his experience that criminal activity may be
afoot. The reasonable suspicion standard is a less
demanding standard than probable cause, and a
3 We are ever mindful that “court[s] should not indulge in unrealistic second-
guessing” of judgment calls made by law enforcement. United States v. Sharpe, 470 U.S. 675,
686, 105 S. Ct. 1568, 1575 (1985).
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considerably less demanding standard than preponderance
of the evidence.
Id. at 926, 821 S.E.2d at 816 (cleaned up).
¶ 37 An officer can subject a detainee to a limited frisk only when he acts upon “
‘specific and articulable facts’ ” that led him to conclude that [the] defendant was, or
was about to be, engaged in criminal activity and . . . was ‘armed and presently
dangerous.’ ” State v. Butler, 331 N.C. 227, 233, 415 S.E.2d 719, 722 (1992) (quoting
Terry v. Ohio, 392 U.S. 1, 21, 24, 88 S. Ct. 1868, 1880, 1881 (1968)). Ultimately, “[i]n
determining whether the Terry standard is met,” to justify a frisk for weapons, this
Court considers the law enforcement officer’s actions “in light of the totality of the
circumstances.” Id. at 233, 415 S.E.2d at 722. When analyzing the totality of the
circumstances in cases involving known criminals, the Supreme Court has instructed
courts to consider all of the “various objective observations, information from police
reports, if such are available, and consideration of the modes or patterns of operation
of certain kinds of lawbreakers,” that a “trained officer [uses to] draw[ ] inferences
and make[ ] deductions.” United States v. Cortez, 449 U.S. 411, 418, 101 S. Ct. 690,
695 (1981). In addition, officers may draw on their own experience and specialized
training to make inferences from, and deductions about, the cumulative information
available to them that might well elude an untrained person. See United States v.
Arvizu, 534 U.S. 266, 276, 122 S. Ct. 744, 752 (2002).
¶ 38 Firearms are tools of the trade for individuals involved in the illegal
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distribution of drugs. See State v. Blagg, 377 N.C. 482, 858 S.E. 2d 268, 2021-NCSC-
66, ¶ 26; see also United States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999) (“Guns are
tools of the drug trade and are commonly recognized articles of narcotics
paraphernalia.”); United States v. Kennedy, 32 F.3d 876, 882 (4th Cir. 1994) (“[T]he
law has uniformly recognized that substantial dealers in narcotics possess firearms
and that entrance into a situs of drug trafficking activity carries all too real dangers
to law enforcement officers.” (cleaned up)); United States v. Caggiano, 899 F.2d 99,
103 (1st Cir. 1990) (“It is now recognized by us and other circuits that firearms are
one of the tools of the trade of drug dealers. Guns, like glassine bags, scales and
cutting equipment[,] are an expected and usual accessory of the narcotics trade.”),
abrogated on other grounds by Horton v California, 496 U.S. 128, 110 S. Ct. 2301(1990); United States v. Trullo, 809 F.2d 108, 113 (1st Cir.1987) (“[T]o substantial
dealers in narcotics, firearms are as much tools of the trade as are most common
recognized articles of drug paraphernalia.” (cleaned up)); Polk v. State, 348 Ark. 446,
453, 73 S.W.3d 609, 614 (2002) (recognizing that “firearms are considered a tool of
the narcotic’s dealer’s trade.”).
¶ 39 As discussed above, defendant was a known drug dealer with a history of gun
violence. This information was known to Deputy Dowdy, who had been briefed on
the purpose and justification for issuance of the warrant to search defendant’s
residence. A magistrate had determined probable cause existed that drugs and
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firearms were likely to be found in defendant’s residence during the execution of the
search warrant, and defendant was an occupant within the immediate vicinity of his
residence at the time of the search. The trial court determined that Deputy Dowdy
conducted the frisk “[b]ecause of his past experiences with the defendant,
[defendant’s] previous firearm possessions, and the reasons that brought law
enforcement to this residence.”
¶ 40 In viewing the totality of the circumstances, Deputy Dowdy relied on specific
and articulable facts based on his training, experience, and available information to
form the reasonable belief that defendant was armed. See Butler, 331 N.C. at 233–
34, 415 S.E.2d at 722–23. Thus, Deputy Dowdy’s limited frisk of defendant was
lawful.
¶ 41 During the frisk for weapons, Deputy Dowdy observed a plastic baggie in
defendant’s pocket. Deputy Dowdy eventually seized the plastic baggie, which
contained a white powdery substance. Subsequent testing revealed the substance
was a mixture of heroin and fentanyl.
¶ 42 Our State has adopted the “plain-view” doctrine as an exception to the general
prohibition against warrantless seizures:
While the general rule is that warrantless seizures are
unconstitutional, a warrantless seizure of an item may be
justified as reasonable under the plain view doctrine, so
long as three elements are met: First, “that the officer did
not violate the Fourth Amendment in arriving at the place
from which the evidence could be plainly viewed”; second,
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that the evidence’s “incriminating character . . . [was]
‘immediately apparent’ ”; and third, that the officer had “a
lawful right of access to the object itself.”
State v. Grice, 367 N.C. 753, 756–57, 767 S.E.2d 312, 316 (2015) (quoting Horton v.
California, 496 U.S. 128, 136–37, 110 S. Ct. 2301, 2308 (1990)).
¶ 43 The Supreme Court later extended warrantless seizures of items to “cases in
which an officer discovers contraband through the sense of touch during an otherwise
lawful search.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2137
(1993). The “plain-feel” doctrine states that
[i]f a police officer lawfully pats down a suspect’s outer
clothing and feels an object whose contour or mass makes
its identity immediately apparent, there has been no
invasion of the suspect’s privacy beyond that already
authorized by the officer’s search for weapons; if the object
is contraband, its warrantless seizure would be justified by
the same practical considerations that inhere in the plain-
view context.
Id. at 375–76, 113 S. Ct. at 2137.
¶ 44 During the pat-down for weapons, Deputy Dowdy observed a plastic baggie in
defendant’s pocket and “felt a large lump associated with that baggie.” Based on his
training and experience and the search of defendant’s residence for contraband, the
trial court determined that Deputy Dowdy reasonably and immediately concluded
that the plastic baggie in defendant’s pocket contained narcotics. Thus, seizure of the
plastic baggie was permitted, and the search of defendant was constitutional.
IV. Conclusion
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¶ 45 For the foregoing reasons, competent evidence supports the trial court’s
findings of fact, which, in turn, support its conclusions of law that defendant was
lawfully detained pursuant to Summers and Wilson. Furthermore, the frisk of
defendant, which led to the discovery of the illegal contraband, was reasonable under
the totality of the circumstances. We reverse the decision of the Court of Appeals and
reinstate defendant’s convictions for trafficking in heroin and possession with intent
to sell or deliver fentanyl. Defendant’s remaining convictions are not before this court
on appeal, and those convictions remain undisturbed. This case is remanded to the
Court of Appeals for further remand to the trial court for additional proceedings not
inconsistent with this opinion, including correction of any clerical errors identified by
the Court of Appeals that are consistent with this opinion.
REVERSED AND REMANDED.
Justice BARRINGER concurring in part and concurring in the result.
¶ 46 As the majority holds, competent evidence supports the trial court’s findings of
fact which, in turn, support its conclusion of law that Deputy Dowdy lawfully seized
the evidence from defendant. However, as the majority acknowledges, Deputy Dowdy
had reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968), to search defendant,
rendering the discovery of the evidence lawful. Therefore, I would not reach whether
Deputy Dowdy lawfully detained defendant under Michigan v. Summers, 452 U.S.
692 (1981), and Bailey v. United States, 568 U.S. 186 (2013). Accordingly, I join the
majority in full except for its analysis and application of Summers and Bailey.
Justice EARLS dissenting.
¶ 47 Michael Devon Tripp was standing on his grandfather’s porch when a team of
Craven County police officers executed a search of the neighboring property. By all
accounts, Tripp did nothing to interfere with the search or threaten the officers who
were carrying it out; as his arresting officer later testified, Tripp did not “take any
action to raise any suspicion of criminal activity on his part.” Nonetheless, an officer,
who mistakenly believed that the search warrant targeted Tripp personally, detained
Tripp, patted him down for weapons, found a bag containing narcotics in his pocket,
and then handcuffed him and placed him under arrest. The question before us now is
whether the officer’s warrantless detention and search of Tripp violated the Fourth
Amendment to the United States Constitution, which “protects ‘[t]he right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures’ by the government.” State v. Grady, 372 N.C. 509, 510 (2019)
(quoting U.S. Const. amend. IV).
¶ 48 The majority concludes that the officer’s actions did not violate the Fourth
Amendment. Admittedly, this is a close case. Tripp was located somewhat near to the
property being searched and was believed to have been using that property to
distribute narcotics. The officer who detained and searched Tripp had firsthand
knowledge that Tripp had brandished and fired a weapon many years ago during an
assault that occurred on the same street as the property being searched. Although
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Tripp was not a target of the search warrant, his suspected criminal conduct was
itself the catalyst for the search. Tripp was not an entirely disinterested bystander
who just happened upon the scene. Given these individualized circumstances, it is at
least plausible that detaining Tripp was an objectively reasonable action undertaken
“to secure the premises and to ensure their own safety and the efficacy of the search,”
Los Angeles County v. Rettele, 550 U.S. 609, 614 (2007) (per curiam), or that both the
detention and search could independently have been justified under Terry v. Ohio,
392 U.S. 1 (1968).
¶ 49 Nonetheless, ultimately I disagree with the majority’s interpretation and
application of the law governing warrantless detentions incident to searches carried
out under authority of a valid warrant. In particular, the majority’s articulation of
the test required under controlling United States Supreme Court precedent
compounds an analytical error this Court committed in State v. Wilson, 371 N.C. 920(2018). Once again, this Court adopts an approach to warrantless detentions incident
to searches that is “only tangentially related to the rationales underlying” Michigan
v. Summers, 452 U.S. 692 (1981) and Bailey v. United States, 568 U.S. 186 (2013),
and which “suffers from both overbreadth and vagueness.” Wilson, 371 N.C. at 933
(Beasley, J., concurring in the result only). Functionally, this line of reasoning
collapses Summers and Bailey into Terry and, in the process, elides a crucial
analytical distinction that safeguards every individual’s constitutional right to be free
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from unreasonable intrusions. Accordingly, I respectfully dissent.
¶ 50 In general, the Fourth Amendment prohibits law enforcement officers from
detaining individuals without a warrant or probable cause. Summers, 452 U.S. at 700(“[T]he general rule [is] that every arrest, and every seizure having the essential
attributes of a formal arrest, is unreasonable unless it is supported by probable
cause.”). As with most rules, there are exceptions. One exception is that officers may
stop and frisk an individual when the officer “is justified in believing that the
individual whose suspicious behavior he is investigating at close range is armed and
presently dangerous to the officer or to others.” Terry, 392 U.S. at 24. Another
exception is that officers executing a search warrant at a premises are afforded “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.” Wilson, 371 N.C. at 924 (cleaned up) (footnotes omitted)
(interpreting Summers and Bailey). These exceptions share a common thread: both
were introduced to account for the real and perceived dangers law enforcement
officers face when interacting with the public in the course of carrying out official
duties. See, e.g., Terry, 392 U.S. at 23 (“[I]t would be unreasonable to require that
police officers take unnecessary risks in the performance of their duties.”); Summers,
452 U.S. at 702–03 (“[T]he execution of a warrant to search for narcotics is the kind
of transaction that may give rise to sudden violence or frantic efforts to conceal or
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destroy evidence. The risk of harm to both the police and the occupants is minimized
if the officers routinely exercise unquestioned command of the situation.” (footnotes
omitted)).
¶ 51 Both of these exceptions might apply at the same time in a given set of
circumstances. An officer might possess the authority to detain an individual under
Summers because the individual is an “occupant” in “the immediate vicinity of the
premises being searched” who is “present during the execution of a search warrant,”
and that officer might simultaneously possess the authority to stop and frisk that
individual under Terry because the officer has a reasonable suspicion the individual
is armed and dangerous. But while these exceptions emerge from the same set of
considerations and may apply concurrently, they are analytically distinct. Summers,
452 U.S. at 700-01 (noting the Fourth Amendment exception for “momentary, on-the-
street detention accompanied by a frisk for weapons involved in Terry” before
explaining the separate exception applicable to detention incident to a search based
upon “the character of the official intrusion and its justification”). An officer’s
authority to detain an individual based on a reasonable suspicion the individual is
armed and dangerous is not spatially or temporally limited. Thus, for Summers and
Bailey to have any substantive meaning, these cases must authorize the detention of
an individual who is not reasonably suspected of being armed and dangerous—
otherwise, Summers and Bailey are just another way of characterizing actions that
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already justify a search under Terry.
¶ 52 The most straightforward way to give Summers and Bailey substance is to give
the words the Supreme Court chose to describe the test it was announcing something
approaching their ordinary meaning. In Summers the Supreme Court held that
officers have a limited authority to detain “an occupant of premises being searched
for contraband pursuant to a valid warrant.” 452 U.S. at 702 (emphasis added). An
occupant is “[s]omeone who has possessory rights in, or control over, certain property
or premises.” Occupant, Black’s Law Dictionary (11th ed. 2019). This defines “who”
is subject to a Summers detention. In Bailey the Supreme Court clarified that this
authority only permits officers to detain an “occupant” who is encountered within “the
immediate vicinity of the premises to be searched.” 568 U.S. at 197. This defines
“where” a Summers detention may be carried out. Finally, officers may detain an
occupant in the immediate vicinity of a property “during the execution of a search
warrant.” Id. at 194. This defines “when” a Summers detention may occur. By
contrast, under Terry the “who” is anyone an officer reasonably suspects to be armed
and dangerous, anytime and anywhere that person is encountered.
¶ 53 It may be correct that, as the majority suggests, many individuals who are
found within the immediate vicinity of a property while that property is being
searched are occupants. If Summers and Bailey give law enforcement officers a
“categorical authority to detain” in order to facilitate the safe execution of a search
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warrant, Bailey, 568 U.S. at 197, then officers cannot be required to make real-time
qualitative assessments of an individual’s antecedent connection to a property before
initiating a detention, see id. at 204–05 (Scalia, J., concurring) (“Summers embodies
a categorical judgment that in one narrow circumstance—the presence of occupants
during the execution of a search warrant—seizures are reasonable despite the
absence of probable cause.”) (emphasis omitted). But Wilson maintained the
distinction between the “who” and “where” aspects of the Summers inquiry, as the
Court of Appeals has previously noted. See State v. Thompson, 267 N.C. App. 101,
109 (2019) (“The . . . suggestion that a defendant’s presence in the immediate vicinity
of a searched premises should operate categorically to satisfy the first prong of the
Summers rule would render entirely superfluous our Supreme Court’s scrupulous
effort in Wilson to define ‘occupant’ ….”). If Summers is a source of categorical
authority distinct from Terry, then an officer’s assessment of the danger posed by an
individual is irrelevant. See Bailey, 568 U.S. at 204 (Scalia, J., concurring) (explaining
that even if there is evidence that a defendant “pose[s] a risk of harm to the officers,”
that evidence is “irrelevant to whether Summers authorized the officers to seize [the
defendant] without probable cause”) (cleaned up). The meaning of the term
“occupant” must be found somewhere other than in an assessment of the “threat”
posed by that individual: occupant means “a resident of the searched premises or a
person physically on the premises that are the subject of the search warrant at the
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time the search is commenced.” Wilson, 371 N.C. at 934 (Beasley, J., concurring in
the result only).
¶ 54 Thus, the majority goes astray in attempting to answer the question of whether
Tripp was an “occupant” within the “immediate vicinity” of the premises being
searched by asking whether Tripp “pose[d] a real threat to the safe and efficient
execution of a search warrant.” To be fair to the majority, this Court went astray in
the exact same manner in Wilson when we stated that “a person is an occupant for
the purposes of the Summers rule if he ‘poses a real threat to the safe and efficient
execution of a search warrant.’ ” Id. at 925 (majority opinion) (quoting Bailey, 568
U.S. at 201). The problem for the majority today, as for the majority in Wilson, is that
the quoted language from Bailey was explaining why the interests underpinning the
Summers rule only permitted an “occupant” to be detained within the “immediate
vicinity of the premises.” See Bailey, 568 U.S. at 201 (“Limiting the rule in Summers
to the area in which an occupant poses a real threat to the safe and efficient execution
of a search warrant ensures that the scope of the detention incident to a search is
confined to its underlying justification. Once an occupant is beyond the immediate
vicinity of the premises to be searched, the search-related law enforcement interests
are diminished and the intrusiveness of the detention is more severe.”). A person is
not an occupant of a property because that individual poses a threat to persons
located there as that word is defined either by Supreme Court precedent or by
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ordinary usage; rather, an occupant may be detained under Summers because
individuals located at a premises being searched “pose[ ] a real threat to the safe and
efficient execution of a search warrant.” Id., at 201. Nevertheless, the majority follows
Wilson in choosing to apply Summers in a way that untethers the rule from Bailey’s
spatial moorings.
¶ 55 The majority appears to recognize the awkwardness of its own attempt to
redefine the term “occupant”—as the majority acknowledges, denoting someone to be
an “occupant” of a property based upon the threat that person poses to people located
on that property is inconsistent with “the ordinary sense of the word.” The practical
and conceptual problems with this approach were ably summarized in Justice
Beasley’s concurring opinion in Wilson:
Given the Court’s stated justifications for
Summers’s categorical rule, the term “occupant” can most
reasonably be interpreted as a resident of the searched
premises or a person physically on the premises that are
the subject of the search warrant at the time the search is
commenced. A nonresident arriving on the scene after the
search has commenced has no reason to flee upon the
discovery of contraband, to attempt to dispose of evidence,
to interfere with the search, or to harm law enforcement
officers because, unlike a resident or a person found at the
scene when the officers arrive to conduct the search,
evidence of wrongdoing discovered on the premises could
not reasonably be attributed to him. Furthermore, the
presence of a nonresident could do little to facilitate the
search—a nonresident would not be able to open locked
doors or containers and would have no interest in avoiding
“the use of force that is not only damaging to property but
may also delay the completion of the [search],” as
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contemplated by the Court in Summers. Moreover, the
existence of a valid search warrant—the foundation on
which Summers’s categorical rule is built—is premised on
a judicial officer's determination that police have probable
cause to believe that someone in the home is committing a
crime. That finding of probable cause does not extend
reasonably to a nonresident or a person who is not in the
home during the search.
The majority’s definition of “occupant” requires no
connection whatsoever to the property that is the subject of
a search warrant or the suspected criminal activity—only
that the person detained “poses a real threat to the safe
and efficient execution” of the warrant. It is not unusual
for a crowd of curious onlookers to gather along a police
perimeter. How an officer executing a search warrant
might differentiate a person posing a real threat from a
neighbor or an innocent bystander is unclear, as any
person in the vicinity of a police search could potentially
interfere with the search or harm officers. Moreover, if an
officer were able to conclude that a person posed such a
threat, invocation of Summers’s categorical rule would be
unnecessary because, as was the case here, the detention
and search of that person would be justified by Terry.
371 N.C. at 934–35 (Beasley, J., concurring in the result only) (cleaned up) (footnotes
omitted). This case perfectly illustrates the analytical confusion Justice Beasley
identified. According to the majority, the reason Tripp was an “occupant” of the 8450
residence even though he was located beyond its legal boundaries is because he posed
an “obvious danger[ ]” to the officers as “a drug dealer with a history of gun violence.”
But an individual is not an occupant who can be detained in accord with Summers
because he is within shooting range of a property; an individual that an officer
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reasonably suspects is armed and dangerous can always be detained under Terry.1
¶ 56 As described above, the distinction between an officer’s authority under
Summers and that officer’s authority under Terry might, in certain factual
circumstances, not really matter. If the sole consequence of the majority’s analysis
was that individuals who could be detained under Terry can also be detained under
Summers, nothing much would be lost besides analytical clarity. But conceptually,
an interpretation of Summers that jettisons its spatial dimension would not
necessarily only encompass individuals who could be detained and searched under
Terry because they were reasonably suspected of being armed and dangerous. Rather,
under this interpretation of Summers, the category of individuals who “pose[ ] a real
threat to the safe and efficient execution of a search warrant,” Bailey, 568 U.S. at
201, is capacious and susceptible to subjective expansion. Accordingly, the potential
group of detainees would continue to include an individual who may use a weapon
against officers, certainly, but it could also sweep in “any grass-mowing uncle, tree-
1 The majority tries to justify this elision by invoking the statement in Wilson that a
defendant’s “own actions . . . [may] cause[ ] him to satisfy the first part, the ‘who,’ of the
Summers rule.” 371 N.C. at 926 (majority opinion). This observation is true enough, if a
person’s actions cause that person to be located in the immediate vicinity of a property being
searched pursuant to a valid search warrant. Thus, in Wilson the majority concluded that
the defendant by his own actions became an occupant within the meaning of Summers when
he “approached the house being swept[ and] announced his intent to retrieve his moped from
the premises.” Id. at 925. But if a person’s actions cause an officer to reasonably suspect that
he or she is armed and dangerous, that person is only searchable pursuant to Terry, unless
that person is also simultaneously an occupant in the immediate vicinity of the premises
being searched.
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trimming cousin, or next-door godson checking his mail, merely based upon his
‘connection’ to the premises and hapless presence in the immediate vicinity.”
Thompson, 267 N.C. App. at 110. These people might not place officers executing a
search warrant in physical peril, but their presence could plausibly distract or annoy
officers, who might then have grounds to detain them because they are perceived to
be interfering with the execution of a search warrant. Interpreted in this manner,
Summers becomes “a sweeping exception to the Fourth Amendment’s proscription
against unreasonable seizures” that vests officers with “tremendous” and unbounded
discretion. Id.
¶ 57 Regardless, under the facts of this case, Tripp’s seizure was not justified under
Summers, even as interpreted by Wilson. As the Court of Appeals correctly reasoned,
if (1) the “who” and “where” inquiries under Summers remain distinct under Wilson,
and (2) whether someone is an “occupant” of a property depends upon the nature of
the threat that individual presents to officers located on the property, then an
“occupant” can only be someone who “posed a real threat to the safe and efficient
execution of the officers’ search, not [someone who] could have posed a threat.” State
v. Tripp, 275 N.C. App. 907, 918 (2020) (cleaned up). There is absolutely no evidence
to support the conclusion that Tripp posed a real threat to the officers—indeed,
Tripp’s arresting officer testified that Tripp did not “take any action to raise any
suspicion of criminal activity on his part.” The majority appears to suggest that since
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many courts, although notably not our Court, have labeled firearms one of the “tools
of the trade” of drug dealers, therefore for Fourth Amendment purposes, it is fair to
assume that any person suspected of dealing drugs is armed, is a threat to police
officers, and may be searched at any time in any place. That may be the majority’s
policy preference, but it is not a correct statement of the law. Instead, “whether a
person poses a ‘threat’ turns on the particular circumstances as well as the particular
individual’s conduct during the execution of the warrant.” Id.,at 921 (citing
Thompson, 267 N.C. App. at 110). Tripp did nothing to menace or threaten the officers
who were executing the search warrant, nor did he in any way attempt to interfere
with their actions. Accordingly, he was not an “occupant” within the meaning of
Summers as that term was defined in Wilson.
¶ 58 For similar reasons, the majority is wrong to conclude that the search of Tripp’s
person could be justified under Terry, which also does not allow law enforcement
officers to search any person suspected of dealing drugs at any time based upon the
general insight that drug dealers sometimes utilize firearms when engaged in illegal
activities. Terry requires “specific and articulable facts” that support an officer’s
conclusion that an individual “was, or was about to be, engaged in criminal activity
and . . . was armed and presently dangerous.” State v. Butler, 331 N.C. 227, 233 (1992)
(cleaned up) (emphasis added). Given that Tripp did not “take any action to raise any
suspicion of criminal activity on his part,” it is difficult to discern what specific and
STATE V. TRIPP
2022-NCSC-78
Earls, J., dissenting
articulable basis exists for the conclusion that it was reasonable to believe Tripp “was,
or was about to be, engaged in criminal activity and . . . was armed and presently
dangerous.”
¶ 59 Enforcing constitutional limitations on the government’s authority to engage
in warrantless searches and seizures is not, as the majority suggests, an exercise in
“unrealistic second-guessing of judgment calls made by law enforcement.” It is
instead a necessary function for courts to perform in order to uphold the Fourth
Amendment’s “recognition of individual freedom,” which is “the very essence of
constitutional liberty.” Ker v. California., 374 U.S. 23, 32 (1963) (cleaned up). In fact,
the majority’s illogical distortion of applicable Fourth Amendment precedent is
functionally a nullification of the exclusionary rule. In the majority’s view, having
found Mr. Tripp in illegal possession of narcotics, the State should be able to punish
him. However, in this case the officer’s actions in searching him cannot be authorized
under the doctrines that give meaning to the Fourth Amendment’s prohibition of
unreasonable searches and seizures. Therefore, I respectfully dissent.
Justice HUDSON and Justice MORGAN join in this dissenting opinion.