State v. Bartlett , 260 N.C. App. 579 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1178
Filed: 7 August 2018
Guilford County, No. 13 CRS 80485
STATE OF NORTH CAROLINA
v.
MARLON LOUIS BARTLETT
Appeal by defendant from order entered 14 March 2014 by Judge Susan E.
Bray in Guilford County Superior Court. Heard in the Court of Appeals 2 May 2018.
Attorney General Joshua H. Stein, by Assistant Attorney General David L.
Gore, III, for the State.
Warren D. Hynson for defendant-appellant.
ZACHARY, Judge.
Defendant Marlon Louis Bartlett appeals from the trial court’s order denying
his Motion to Suppress. For the reasons contained herein, we affirm.
Background
Defendant was indicted for two counts of trafficking heroin following a search
of his person during a traffic stop. Defendant moved to suppress the heroin on the
grounds that it was obtained as the result of an unlawful search, which the trial court
denied. The facts pertaining to the search are largely undisputed:
STATE V. BARTLETT
Opinion of the Court
On 30 May 2013, Officer McPhatter, a tactical narcotics officer with the
Greensboro Police Department, was patrolling the High Point Road area in an
unmarked vehicle. Officer McPhatter noticed a Lincoln sedan weaving in and out of
heavy traffic at a high rate of speed, nearly causing multiple collisions. The Lincoln
then pulled into a Sonic Drive-In parking lot next to an unoccupied Honda.
Officer McPhatter continued surveilling the Lincoln. Defendant, who was
riding in the back passenger seat, exited the Lincoln and approached the Honda.
Defendant placed his hand inside the passenger window of the Honda, though Officer
McPhatter could not discern whether Defendant took anything from the car. The
driver of the Honda appeared and spoke with Defendant for a few seconds. Defendant
then returned to the Lincoln, and he and the other occupants drove away. No one in
the Lincoln had ordered any food. Based on his roughly eighteen months of working
as a tactical narcotics officer and having observed over 200 drug deals, Officer
McPhatter concluded that Defendant had just participated in a drug transaction.
While other officers in the unit watched, the Lincoln next proceeded to a Shell
gas station. Officer Randazzo radioed that the Lincoln continued to be driven in a
careless and reckless manner, at an estimated fifteen miles per hour over the speed
limit. After leaving the Shell gas station, Officer McPhatter stopped the Lincoln for
reckless driving and speeding. Officers Randazzo, Farrish, Hinkle, and Hairston also
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Opinion of the Court
participated in the stop. All five officers were in full uniform as they approached the
Lincoln.
Officer McPhatter approached the passenger’s side of the vehicle while Officer
Hairston and Officer Farrish approached the driver’s side. As he neared the vehicle,
Officer McPhatter noticed Defendant reach toward the floorboard. Because he did not
know whether Defendant had a weapon or was attempting to conceal contraband
underneath the seat, Officer McPhatter asked Defendant to show his hands.
Defendant raised his hands, which were daubed with a light pink substance that
Defendant stated was fabric softener. Officer McPhatter ordered Defendant out of the
vehicle and asked Defendant “if he was attempting to conceal something inside the
vehicle or on his person.” Defendant told Officer McPhatter “that was not the case
and that he did not have anything illegal on his person.” Officer McPhatter testified
that “At that time I asked [Defendant] for consent to search his person, which he
granted me by stating, Go ahead.” However, Defendant testified that he never gave
Officer McPhatter permission to conduct a search.
Officer McPhatter testified that when he proceeded to pat Defendant down, “I
noticed a large—a normal—larger than normal bulge near the groin area that’s not
consistent with like male parts.” Officer McPhatter detained Defendant in handcuffs
at that point because “It was obvious to me in that he had some kind of contraband
on his person.” Officer McPhatter “asked [Defendant] if he had anything inside his
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Opinion of the Court
underwear,” and Defendant said that he did. Officer McPhatter then asked
Defendant “if he’d retrieve—retrieve the item for me and he told me that he would do
so.” Officer McPhatter removed the handcuffs from Defendant, and Defendant
reached into his pants and produced a single plastic bag containing heroin. Defendant
was placed under arrest. Officer McPhatter testified that “maybe five minutes” had
passed from the time he pulled the Lincoln over to the time Defendant pulled the bag
of heroin out of his underwear.
After hearing Defendant’s Motion to Suppress, the trial court adopted Officer
McPhatter’s version of events and found that Defendant had consented to the search.
The trial court denied Defendant’s Motion to Suppress, reasoning:
Officer McPhatter had reasonable suspicion to stop the
Lincoln for the traffic offenses observed. He had reason to
ask Defendant to show his hands (for officer safety) after
he observed Defendant reach toward [the] floorboard. He
had reason to inquire about whether Defendant was trying
to conceal anything or had anything illegal (based on
movement in car and what he observed at Sonic with
Honda). Defendant gave him permission to search. Even if
he hadn’t, officer was justified in patting Defendant down
(frisk for weapons). And once he observed the bulge in
Defendant’s groin, he was justified in asking him about it
and searching further.
Defendant thereafter pleaded guilty to two counts of trafficking heroin, while
reserving his right to appeal the suppression ruling. The trial court sentenced
Defendant to 90 to 120 months’ imprisonment. Defendant appeals, challenging the
trial court’s order denying his Motion to Suppress.
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STATE V. BARTLETT
Opinion of the Court
Standard of Review
In considering the trial court’s denial of a defendant’s motion to suppress, our
review is limited to determining whether “the trial court’s findings of fact are
supported by competent evidence and whether those findings support its conclusions
of law.” State v. King, 206 N.C. App. 585, 587, 696 S.E.2d 913, 914 (2010) (citing State
v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)).
Discussion
Defendant contends that “the trial court erroneously concluded Officer
McPhatter was justified in frisking [Defendant] for weapons when there was no
evidence he was armed and dangerous.” Defendant also argues that his consent did
not render the search permissible (1) because it was not voluntary, and (2) because
even if it was voluntary, Officer McPhatter’s pat-down of Defendant’s groin area
exceeded the scope of his consent. Lastly, Defendant argues that “the trial court’s
conclusion that Officer McPhatter was justified in asking [Defendant] about
suspected contraband and searching him further was not supported by the findings
of fact or evidence.”
I.
We first address Defendant’s argument that his consent cannot properly serve
as a justification for the search in the instant case. Defendant maintains that he
consented only in acquiescence “to the coercive environment fostered by the police[,]”
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Opinion of the Court
and that the trial court erred when it denied his Motion to Suppress the evidence
obtained therefrom. However, we cannot agree.
The Fourth Amendment to the United States Constitution guarantees “the
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures[.]” U.S. Const. amend. IV. “[A] governmental
search and seizure of private property unaccompanied by prior judicial approval in
the form of a warrant is per se unreasonable unless the search falls within a well-
delineated exception to the warrant requirement[.]” Cooke, 306 N.C. at 135, 291
S.E.2d at 620. One such exception to the warrant requirement exists “when the
search is based on the consent of the detainee.” State v. Jones, 96 N.C. App. 389, 397,
386 S.E.2d 217, 222 (1989) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36
L. Ed. 2d 854, 858 (1973) and State v. Belk, 268 N.C. 320, 322, 150 S.E.2d 481, 483
(1966)).
To be valid, however, a defendant’s consent must have been voluntary. State
v. Little, 270 N.C. 234, 239, 154 S.E.2d 61, 65 (1967). That is, the State must
demonstrate that the consent was “not the result of duress or coercion, express or
implied.” Bustamonte, 412 U.S. at 248, 36 L. Ed. 2d at 875. It is well settled that
“[t]o be voluntary the consent must be unequivocal and specific, and freely and
intelligently given[,]” rather than having been “given merely to avoid resistance.”
Little, 270 N.C. at 239, 154 S.E.2d at 65 (citations and quotation marks omitted).
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Opinion of the Court
“ ‘The question whether a consent to a search was in fact “voluntary” or was
the product of duress or coercion, expressed or implied, is a question of fact to be
determined from the totality of the circumstances.’ ” State v. Brown, 306 N.C. 151,
170, 293 S.E.2d 569, 582, cert. denied, 459 U.S. 1080, 74 L. Ed. 2d 642 (1982) (quoting
Bustamonte, 412 U.S. at 227, 36 L. Ed. 2d at 862-63). The State is not required to
demonstrate that a defendant knew that he had a right to refuse the search in order
to establish that his consent was voluntary under the totality of the circumstances.
Bustamonte, 412 U.S. at 249, 36 L. Ed. 2d at 875. However, “the subject’s knowledge
of a right to refuse is a factor to be taken into account[.]” Id. For instance, our
Supreme Court has explained that whether the defendant “was a young and
inexperienced person” may be of relevance. Little, 270 N.C. at 240, 154 S.E.2d at 65.
Otherwise, “the conditions under which the consent to search was given[,]” United
States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (citations omitted), are reviewed
in order to determine whether there is “evidence of any inherently coercive tactics—
either from the nature of the police questioning or the environment in which it took
place.” Bustamonte, 412 U.S. at 247, 36 L. Ed. 2d at 874.
In the instant case, Defendant contends that his race is highly relevant to the
determination of whether he voluntarily consented to the search, in that “there is
strong evidence that people of color will view a ‘request’ to search by the police as an
inherently coercive command.” In support of his argument, Defendant cites various
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Opinion of the Court
studies which tend to indicate that for people of color in general, “any police request
for consent to search will be viewed as an unequivocal demand to search that is
disobeyed or challenged only at significant risk of bodily harm.” Marcy Strauss,
Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 243 (2002). Accordingly,
Defendant urges that his race “gives pause as to whether the consent” in the instant
case was “genuinely voluntary.”
Defendant is correct that his race may be a relevant factor in considering
whether his consent was voluntary under the totality of the circumstances. United
States v. Mendenhall, 446 U.S. 544, 558, 64 L. Ed. 2d 497, 512 (1980) (citation
omitted). However, beyond the studies to which he refers, the record is devoid of any
indication that Defendant’s individual consent in this particular case was
involuntary. See id. (“While these [race] factors were not irrelevant, neither were
they decisive[.]”) (citation omitted). To the contrary, the overall circumstances
presented at the suppression hearing tended to show that Defendant consented
“freely and intelligently[,]” and not “merely to avoid resistance.” Little, 270 N.C. at
239, 154 S.E.2d at 65 (citations and quotation marks omitted).
While multiple officers were present on the scene, Officer McPhatter was the
only officer who interacted with Defendant. See State v. Cobb, ___ N.C. App. ___, ___,
789 S.E.2d 532, 539 (2016) (“Although there were four officers present at defendant’s
residence, only two . . . were speaking with defendant when he initially gave consent
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Opinion of the Court
to search his room.”); see also State v. McDaniels, 103 N.C. App. 175, 184, 405 S.E.2d
358, 364 (1991) (citing State v. Fincher, 309 N.C. 1, 25, 305 S.E.2d 685, 700 (1983)
(Exum, J., dissenting)) (“Defendant makes much of the fact that there were a number
of officers at the scene; however, our Supreme Court has refused to hold that police
coercion exists as a matter of law even when ten or more officers are present . . . before
the suspect consents to a search.”). When Officer McPhatter approached the Lincoln,
he asked Defendant whether he “had anything illegal on [him].” Defendant said that
he did not. Upon competent evidence, the trial court found that Officer McPhatter
then asked if he could conduct a search of Defendant’s person, to which Defendant
responded, “go ahead.” Defendant testified that he and Officer McPhatter had “no
other conversation.” At no point did Defendant testify that he was unaware of his
ability to refuse Officer McPhatter’s request, or that he feared retribution had he
elected to do so. Moreover, the record contains no indication that Officer McPhatter
“made threats, used harsh language, or raised [his] voice[] at any time during the
encounter.” Cobb, ___ N.C. App. at ___, 789 S.E.2d at 539. There was also no evidence
“that any of the officers ever made physical contact with [D]efendant” before asking
for his consent to search. Id. Each of the officers’ firearms remained holstered
throughout the encounter. See McDaniels, 103 N.C. App. at 184, 405 S.E.2d at 364.
Based on these circumstances, we cannot conclude that Defendant’s consent was
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involuntary, and we affirm the trial court’s conclusion that Defendant’s permission
justified Officer McPhatter’s search.
II.
Defendant next argues that “the scope of [his] consent to a search of his person
did not include a frisk of his private parts, and lacking probable cause or exigent
circumstances to justify such a search, [Officer] McPhatter’s pat-down of
[Defendant’s] groin area was constitutionally intolerable.” However, because we
conclude that Defendant’s consent encompassed the sort of limited frisk that was
performed in the instant case, neither probable cause nor exigency was required to
justify the search.
Voluntary consent to a search does not permit an officer to embark upon an
unfettered search free from boundary or limitation. See State v. Stone, 362 N.C. 50,
54, 653 S.E.2d 414, 417 (2007) (citing Florida v. Jimeno, 500 U.S. 248, 251, 114 L.
Ed. 2d 297, 302 (1991)). Rather, “[a] suspect’s consent can impose limits on the scope
of a search in the same way as do the specifications of a warrant.” Id. at 54, 653
S.E.2d at 417-18 (quoting United States v. Milian-Rodriguez, 759 F.2d 1558, 1563
(11th Cir. 1985)). And “[e]ven when an individual gives a general consent without
express limitations, the scope of a permissible search has limits.” Id. at 54, 653 S.E.2d
at 418 (citing United States v. Blake, 888 F.2d 795, 800-01 (11th Cir. 1989)). In such
a case, the limit on the search is that of reasonableness—that is, “what the reasonable
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Opinion of the Court
person would expect.” Id. (citing Blake, 888 F.2d at 800-01). Our Supreme Court
has clearly stipulated that “ ‘[t]he standard for measuring the scope of a suspect’s
consent . . . is that of “objective” reasonableness—what would the typical reasonable
person have understood by the exchange between the officer and the suspect?’ ” Id.
at 53, 653 S.E.2d at 417 (quoting Jimeno, 500 U.S. at 250-51, 114 L. Ed. 2d at 302).
Accordingly, to determine whether Defendant’s general consent to a search of
his person encompassed a pat-down of the area of his genitalia, “we consider whether
a reasonable person would have understood his consent to include such an
examination.” Id. at 54, 653 S.E.2d at 417 (citing Jimeno, 500 U.S. at 251, 114 L. Ed.
2d at 302).
Defendant cites State v. Stone for the proposition that a “reasonable individual
would not understand [the individual’s] consent to a search of his or her body to
include an officer touching his or her genitalia.” In Stone, “the officer pulled [the]
[d]efendant’s sweatpants away from his body and trained his flashlight on [the]
[d]efendant’s groin area[,]” at which point the defendant immediately objected,
“Whoa.” Id. at 55, 653 S.E.2d at 418. Our Supreme Court concluded that “a
reasonable person in defendant’s circumstances would not have understood that his
general consent to search included allowing the law enforcement officer to pull his
pants and underwear away from his body and shine a flashlight on his genitals.” Id.
at 56, 653 S.E.2d at 418-19 (citation omitted). In so concluding, the Supreme Court
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Opinion of the Court
focused on the fact that the officers did not shield the defendant’s exposure from
public view, and noted that the defendant’s immediate objection was relevant to the
overall analysis of whether the officer’s conduct had exceeded the bounds of ordinary
societal expectations. Id. at 55-56, 653 S.E.2d at 418-19. The Court also examined
several federal cases that “disapproved” of “search[es] involving direct frontal
touching of a suspect’s genitals[.]” Id. at 56, 653 S.E.2d at 418 (citing Blake, 888 F.2d
at 800-01, and United States v. Rodney, 956 F.2d 295, 298 (D.C. Cir. 1992)) (quotation
marks omitted).
In the instant case by contrast, we believe that Officer McPhatter’s pat-down
over Defendant’s groin area was within the bounds of what a reasonable person would
have expected the search to include. Officer McPhatter limited his pat-down to the
outer layer of Defendant’s clothing. He did not reach into Defendant’s pants in order
to search his undergarments or directly touch his groin area. Cf. Stone, 362 N.C. at
54-55, 653 S.E.2d at 418 (quoting Blake, 888 F.2d at 797, 800-01) (“ ‘[I]t cannot be
said that a reasonable individual would understand that a search of one’s person
would . . . entail’ ” the officer “reach[ing] into [the defendant’s] groin region where he
did a ‘frontal touching[.]’ ”). Officer McPhatter also did not expose Defendant to either
himself or the public. See State v. Smith, 118 N.C. App. 106, 118, 454 S.E.2d 680,
687 (Walker, J., concurring and dissenting), rev’d, 342 N.C. 407, 464 S.E.2d 45 (1995).
Nor does the record reveal—through either video or testimonial evidence—that the
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Opinion of the Court
pat-down of Defendant’s groin area was otherwise conducted in an unreasonably
offensive manner. Moreover, Officer McPhatter asked for Defendant’s consent to
search after inquiring into whether “he was attempting to conceal something . . . on
his person[,]” thus reasonably alerting Defendant to the fact that the search would
likely include areas in which such items might immediately be hidden.
Based on these circumstances, we conclude that a reasonable person in
Defendant’s position would have understood his consent to include the sort of limited
outer pat-down that was performed in the instant case. Accordingly, the trial court
did not err when it denied Defendant’s Motion to Suppress on the grounds that
Defendant gave his “permission to search.”
Because we conclude that Defendant’s Motion to Suppress was properly denied
in light of Defendant’s valid consent, we need not address Defendant’s argument that
the trial court erred when it concluded that Officer McPhatter was also “justified in
frisking [Defendant] for weapons when there was no evidence he was armed and
dangerous.”
III.
Notwithstanding his consent, Defendant argues that Officer “McPhatter’s
continued detention of [Defendant] after searching his groin area to ‘find out’ what
contraband may have been in [Defendant’s] pants was not justified by the plain feel
doctrine.” This argument is unpersuasive.
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Opinion of the Court
Officer McPhatter’s pat-down of Defendant was lawful by virtue of Defendant’s
consent. At that point, Officer McPhatter felt a bulge that he judged was “not
consistent with . . . male parts[,]” and “was obvious[ly]” contraband. When coupled
with the totality of the circumstances already observed by Officer McPhatter, this
discovery amounted to reasonable suspicion justifying Officer McPhatter’s further
detention of Defendant in order to question him about the contents of his pockets.
See New Jersey v. T.L.O., 469 U.S. 325, 347, 83 L. Ed. 2d 720, 738 (1985); State v.
Johnson, 246 N.C. App. 677, 693, 783 S.E.2d 753, 765 (2016).
Lastly, Defendant argues that
By handcuffing [Defendant] and not allowing him to leave,
McPhatter restrained [Defendant’s] liberty to the degree
associated with formal arrest. Thus, before questioning
[Defendant] further, McPhatter was required to inform
[Defendant] of his Miranda rights. McPhatter did not do
so. [Defendant’s] statement admitting that he had
something in his underwear, in response to McPhatter’s
custodial questioning, was the product of coercion,
obtained in violation of Miranda, and the evidence
obtained from this constitutional violation should have
been suppressed. The trial court erred in denying
[Defendant’s] motion to suppress.
“The Miranda warnings are a prophylactic standard used to safeguard the
privilege against self-incrimination. The exclusionary rule in such a case is applied
differently than it is applied in a case in which a person’s constitutional rights are
violated such as by an illegal search and seizure.” State v. May, 334 N.C. 609, 612,
434 S.E.2d 180, 182 (1993). “If the record shows there was no actual coercion but
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Opinion of the Court
only a violation of the Miranda warning requirement,” physical evidence seized as a
result of the otherwise uncoerced statement need not be suppressed. Id.
In the instant case, and for the same reasoning explained in Section I, supra,
the record contains no evidence which would otherwise suggest that Defendant had
been coerced when he admitted to Officer McPhatter that he had something in his
underwear and handed over the narcotics. Thus, a Miranda violation would not
require suppression of the narcotics ultimately retrieved.
Accordingly, we find no error in the trial court’s denial of Defendant’s Motion
to Suppress.
Conclusion
For the reasoning contained herein, the trial court’s order denying Defendant’s
Motion to Suppress is
AFFIRMED.
Judges ELMORE and TYSON concur.
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