STATE OF NORTH CAROLINA v. JAMES EDWARD JOYNER,

On the evening of 10 June 2013, Sergeant Michael Mitchell was patrolling the

south side of Statesville in a marked patrol car when he observed a Honda Civic

parked in front of a house that had been involved in prior narcotics investigations.

As soon as the vehicle left the house, Sergeant Mitchell noticed that its tag lights

were out. He followed the vehicle for several miles, initiated his lights and siren, and

pulled the vehicle over.

Sergeant Mitchell approached the driver’s side of the Honda and instructed the

driver, William Elam, to step out and accompany him to the rear of the vehicle.

Defendant, sitting in the passenger’s seat, remained in the car. Sergeant Mitchell

explained to Mr. Elam that he had been stopped for a tag light violation and asked

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Mr. Elam for his license and registration. Sergeant Mitchell noted that Mr. Elam

appeared nervous: Mr. Elam had trouble getting his license out of his wallet and his

hands were shaking. Sergeant Mitchell began asking Mr. Elam a few routine

questions, including how he knew defendant. At that point, defendant opened the

passenger door and stepped out. Sergeant Mitchell immediately ordered defendant

to get back inside the vehicle and called for backup before he resumed questioning.

Sergeant Mitchell asked Mr. Elam, the registered owner of the Honda, if there

was anything illegal inside of the vehicle that he should know about or that should

concern him. Mr. Elam responded, “No.” Sergeant Mitchell then asked for

permission to search his vehicle. Mr. Elam consented. Sergeant Mitchell proceeded

toward the front passenger side of the Honda, asked defendant to step out of the

vehicle, and informed defendant that Mr. Elam had consented to a search of the

vehicle. After defendant exited the car, Sergeant Mitchell asked defendant if there

was anything illegal in the car that he should know about. Defendant replied, “There

was a firearm, a pistol on the seat between his leg and the front passenger’s door of

the vehicle.”

Sergeant Mitchell immediately instructed defendant and Mr. Elam to move to

the rear of the Honda, away from the firearm, and detained them in handcuffs until

backup arrived. Sergeant Mitchell then walked back to the Honda, opened the

passenger door, and saw a black, snub-nosed .32 revolver laying on the rocker panel

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between the front passenger seat and the passenger door. He testified that the

revolver was a “couple of inches” from where defendant had been seated, “right beside

where his leg was” and “within hand’s length.” Sergeant Mitchell picked up the

revolver, determined it was not loaded, and locked it in his patrol car.

Soon thereafter, three other police officers arrived to assist Sergeant Mitchell.

Two of the officers remained with defendant and Mr. Elam while Sergeant Mitchell

and the other officer searched the Honda. The officers found no other contraband in

the vehicle. Sergeant Mitchell had dispatch run a background check on Mr. Elam

and defendant, which revealed that defendant was a convicted felon. As a result,

Sergeant Mitchell placed defendant under arrest for possession of a firearm by a

felon.

II. Discussion

Where a defendant raises an unpreserved evidentiary issue on appeal, our

Court has declined to review for plain error where the substantive argument is

constitutional. In State v. Canty, 224 N.C. App. 514, 736 S.E.2d 532 (2012), writ of

supersedeas and disc. review denied, 366 N.C. 578, 739 S.E.2d 850 (2013), the

defendant argued that the trial court committed plain error in admitting evidence he

claimed was a result of an unlawful traffic stop. Id. at 516, 736 S.E.2d at 535.

Because the defendant “did not file a motion to suppress nor did he argue his Fourth

Amendment claim to the trial court,” the Court dismissed his constitutional

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argument, concluding that it was not preserved for appeal. Id. (citing State v.

Cummings, 353 N.C. 281, 292, 543 S.E.2d 849, 856 (2001)); see also State v. Cousin,

233 N.C. App. 523, 529, 757 S.E.2d 332, 338 (declining to review for plain error

whether exclusion of certain evidence violated the defendant’s constitutional rights

where he conceded no constitutional argument was raised at trial), disc. review

denied, 367 N.C. 521, 762 S.E.2d 446 (2014).

In other cases, our Court has applied plain error review to evidentiary matters

despite the fact that they involve constitutional issues. In State v. Jones, 216 N.C.

App. 225, 715 S.E.2d 896 (2011), appeal dismissed and disc. review denied, 365 N.C.

559, 723 S.E.2d 767 (2012), the defendant claimed that a pretrial identification

procedure was impermissibly suggestive, in violation of his right to due process, and

therefore, the results of the identification should have been excluded from evidence.

Id. at 229–30, 715 S.E.2d at 900. The Court first recognized that the defendant had

failed to preserve this issue for appellate review since it was not raised at trial. Id.

at 230, 715 S.E.2d at 900–01. Nevertheless, we reviewed for plain error “because the

constitutional right at issue involves the admissibility of evidence, and because

defendant has also raised the issue of ineffective assistance of counsel.” Id. at 230,

715 S.E.2d at 901; see also State v. Mohamed, 205 N.C. App. 470, 474–76, 696 S.E.2d

724, 729–30 (2010) (reviewing for plain error the admission of post-arrest statements,

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where the defendant challenged substance of Miranda warnings and voluntariness

of waiver, though no motion to suppress or objection was raised at trial).

Plain error arises when the error is “ ‘so basic, so prejudicial, so lacking in its

elements that justice cannot have been done . . . .’ ” State v. Odom, 307 N.C. 655, 660,

300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002

(4th Cir. 1982), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)).

For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury’s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (quotation marks,

alterations, and citations omitted).

Evidentiary and instructional issues typically involve questions of law which,

if preserved, would be reviewed de novo on appeal. See State v. McLean, 205 N.C.

App. 247, 249, 695 S.E.2d 813, 815 (2010) (“The admissibility of evidence at trial is a

question of law and is reviewed de novo.” (citation omitted)); State v. Osorio, 196 N.C.

App. 458, 466, 675 S.E.2d 144, 149 (2009) (“Assignments of error challenging the trial

court’s decisions regarding jury instructions are reviewed de novo by this Court.”

(citations omitted)). Because error is a prerequisite to plain error analysis, State v.

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Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (1986), we have essentially employed

the same de novo standard to first review for error before deciding whether the error,

if any, was “fundamental,” see, e.g., State v. Towe, 366 N.C. 56, 61–62, 732 S.E.2d 564,

567–68 (2012); see also State v. Steen, 352 N.C. 227, 256, 536 S.E.2d 1, 18 (2000)

(“[T]his Court has not applied the plain error rule to issues which fall within the

realm of the trial court’s discretion, and we decline to do so now.”), cert. denied, 531

U.S. 1167, 148 L. Ed. 2d 997 (2001).

When a defendant challenges the denial of a motion to suppress, our review

is limited to 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). “The trial court’s

conclusions of law . . . are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200,

208, 539 S.E.2d 625, 631 (2000). Our appellate courts have applied this standard in

conjunction with plain error review where a defendant files a motion to suppress

evidence but fails to object to its admission at trial. See State v. Williams, ____ N.C.

App. ____, ____, 786 S.E.2d 419, 424–25 (June 21, 2016) (COA15-1004); see also State

v. Grice, 367 N.C. 753, 755, 764, 767 S.E.2d 312, 315, 320, cert. denied, ____ U.S. ____,

192 L. Ed. 2d 882 (2015).

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Because defendant filed no motion to suppress, however, we have no findings

or conclusions before us, and we cannot employ our usual standard of review to

evaluate defendant’s challenge to the admission of the revolver. Mohamed, 205 N.C.

App. at 476, 696 S.E.2d at 730. Confronted with the same problem in Mohamed, the

Court articulated a new standard which accounts for the trial court’s lack of

opportunity to address and rule upon the defendant’s argument: “[W]e must simply

examine the information before the trial court in order to determine if it committed

plain error by allowing the admission of the challenged [evidence].” Id. We apply

this same framework in addressing defendant’s argument that the revolver was the

result of an unconstitutional detention, and therefore, the trial court committed plain

error by failing sua sponte to exclude it from evidence at trial.

The Fourth Amendment protects “against unreasonable searches and

seizures.” U.S. Const. amend IV. “A traffic stop is a seizure ‘even though the purpose

of the stop is limited and the resulting detention quite brief.’ ” State v. Styles, 362

N.C. 412, 414, 665 S.E.2d 438, 439 (2008) (quoting Delaware v. Prouse, 440 U.S. 648,

653, 59 L. Ed. 2d 660, 667 (1979)). To be reasonable under the Constitution, the stop

must be supported by “reasonable, articulable suspicion that criminal activity is

afoot.” Illinois v. Wardlow, 528 U.S. 119, 123, 145 L. Ed. 2d 570, 576 (2000) (citing

Terry v. Ohio, 392 U.S. 1, 30, 20 L. Ed. 2d 889, 911 (1968)); see also Styles, 362 N.C.

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at 415, 665 S.E.2d at 440 (clarifying that reasonable suspicion is the standard for

traffic stops).

“While something more than a mere hunch is required, the reasonable

suspicion standard demands less than probable cause and considerably less than

preponderance of the evidence.” State v. Williams, 366 N.C. 110, 117, 726 S.E.2d 161,

167 (2012) (citing Wardlow, 528 U.S. at 123, 145 L. Ed. 2d at 576). More precisely, it

requires “specific and articulable facts, as well as the rational inferences from those

facts, as viewed through the eyes of a reasonable, cautious officer, guided by his

experience and training.” State v. Watkins, 337 N.C. 437, 441–42, 446 S.E.2d 67, 70

(1994) (citing Terry, 392 U.S. at 21–22, 20 L. Ed. 2d at 906; State v. Thompson, 296

N.C. 703, 706, 252 S.E.2d 776, 779, cert. denied, 444 U.S. 907, 62 L. Ed. 2d 143 (1979)).

In determining whether reasonable suspicion exists, “the totality of the

circumstances—the whole picture—must be taken into account.” United States v.

Cortez, 449 U.S. 411, 417, 66 L. Ed. 2d 621, 629 (1981).

Where objective circumstances justify a traffic stop, the subjective intent of the

officer is irrelevant. Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89 (1996).

Accordingly, an officer who observes a motorist commit a traffic violation may stop

the vehicle even if the true motivation for the stop is to investigate whether some

other criminal activity—for which the officer lacks reasonable suspicion—is taking or

has taken place. Id. at 813, 135 L. Ed. 2d at 98 (rejecting the petitioner’s argument

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that “the constitutional reasonableness of traffic stops depends on the actual

motivations of the individual officers involved”); see Scott v. United States, 436 U.S.

128, 138, 56 L. Ed. 2d 168, 178 (1978) (“[T]he fact that the officer does not have the

state of mind which is hypothecated by the reasons which provide the legal

justification for the officer’s action does not invalidate the action taken as long as the

circumstances, viewed objectively, justify that action.” (discussing United States v.

Robinson, 414 U.S. 218, 38 L. Ed. 2d 427 (1973))); see also State v. McClendon, 350

N.C. 630, 634–36, 517 S.E.2d 128, 131–32 (1999) (adopting the rule established in

Whren under the North Carolina Constitution).

“After a lawful stop, an officer may ask the detainee questions in order to

obtain information confirming or dispelling the officer’s suspicions.” McClendon, 350

N.C. at 636–37, 517 S.E.2d at 132–33 (citing Berkemer v. McCarty, 468 U.S. 420, 82

L. Ed. 2d 317 (1984); State v. Jones, 96 N.C. App. 389, 386 S.E.2d 217 (1989), appeal

dismissed and disc. review denied, 326 N.C. 366, 389 S.E.2d 809 (1990)). The

Supreme Court of the United States recently explained that “the tolerable duration

of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—

to address the traffic violation that warranted the stop and attend to related safety

concerns.” Rodriguez v. United States, 575 U.S. ____, ____, 191 L. Ed. 2d 492, 498

(2015) (citations omitted). The stop may last no longer than is necessary to address

the infraction. Id. “Authority for the seizure thus ends when tasks tied to the traffic

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infraction are—or reasonably should have been—completed.” Id. (citation omitted).

The critical issue is not whether the extraneous questioning occurred before or after

the officer issued a ticket, but whether the questioning “prolonged” the stop. Id. at

____, 191 L. Ed. 2d at 501.

To extend a lawful stop beyond its original purpose, “there must be grounds

which provide the detaining officer with additional reasonable and articulable

suspicion or the encounter must have become consensual.” State v. Jackson, 199 N.C.

App. 236, 241–42, 681 S.E.2d 492, 496 (2009) (citing State v. Myles, 188 N.C. App. 42,

45, 654 S.E.2d 752, 755, aff’d per curiam, 362 N.C. 344, 661 S.E.2d 732 (2008)); see

also Rodriguez, 575 U.S. at ____, 191 L. Ed. 2d at 499 (“An officer . . . may conduct

certain unrelated checks during an otherwise lawful traffic stop. But . . . he may not

do so in a way that prolongs the stop, absent the reasonable suspicion ordinarily

demanded to justify detaining an individual.”); Williams, 366 N.C. at 116, 726 S.E.2d

at 166 (“[T]o detain a driver beyond the scope of the traffic stop, the officer must have

the driver’s consent or reasonable articulable suspicion that illegal activity is afoot.”

(citations omitted)).

Defendant does not challenge Sergeant Mitchell’s initial authority to stop Mr.

Elam’s vehicle for the tag light violation. He argues instead that Sergeant Mitchell

unlawfully extended the stop by asking Mr. Elam if there was contraband in the car

and seeking his consent to search because, first, he lacked reasonable suspicion to

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ask questions unrelated to the tag light violation, and second, the encounter had not

become consensual. According to defendant, therefore, Sergeant Mitchell’s

questioning measurably extended the duration of the stop which rendered the

detention unconstitutional.

After reviewing the record, we agree with defendant that there is no evidence

that the encounter had become consensual. “Generally, an initial traffic stop

concludes and the encounter becomes consensual only after an officer returns the

detainee’s driver’s license and registration.” Jackson, 199 N.C. App. at 243, 681

S.E.2d at 497 (citing Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398

(1991); State v. Kincaid, 147 N.C. App. 94, 100, 555 S.E.2d 294, 299 (2001)). Like the

encounter in Jackson, here the record shows that Sergeant Mitchell took Mr. Elam’s

driver’s license but never returned it. “As a reasonable person under the

circumstances would certainly not believe he was free to leave without his driver’s

license,” id., Sergeant Mitchell’s continued questioning was not part of a consensual

encounter.

Sergeant Mitchell’s testimony does show, however, that he had reasonable

suspicion, apart from the tag light violation, to extend the stop. In determining

whether reasonable suspicion exists, our courts have considered, inter alia, a

suspect’s nervousness, McLendon, 350 N.C. at 638–39, 517 S.E.2d at 134, and

presence in a high crime area, State v. Butler, 331 N.C. 227, 233–34, 415 S.E.2d 719,

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722–23 (1992). While neither, standing alone, is sufficient to justify an investigatory

stop, see Brown v. Texas, 443 U.S. 47, 52, 61 L. Ed. 2d 357, 362–63 (1979); McLendon,

350 N.C. at 638–39, 517 S.E.2d at 134, each may support reasonable suspicion in

combination with other factors, see, e.g., State v. Jackson, 368 N.C. 75, 80–81, 772

S.E.2d 847, 850–51 (2015) (finding reasonable suspicion based on the defendant’s

evasive action in a high crime area).

At the time of defendant’s arrest, Sergeant Mitchell was assigned to the K-9

division, whose main objective includes enforcing traffic laws and drug violations. He

testified that around 9:00 p.m., he first noticed the Honda parked outside of a house

with which he was “very familiar” from prior drug investigations. See Jackson, 368

N.C. at 80, 772 S.E.2d at 850 (noting that “the trial court based its conclusion on more

than defendant’s presence in a high crime and high drug area” where the findings

showed, inter alia, that “defendant stood at 9:00 p.m. in a specific location known for

hand-to-hand drug transactions that had been the site of many narcotics

investigations”); Butler, 331 N.C. at 233, 415 S.E.2d at 722 (noting that an officer

observed the defendant “not simply in a general high crime area, but on a specific

corner known for drug activity and as the scene of recent, multiple drug-related

arrests”). After Sergeant Mitchell stopped the vehicle, he observed that Mr. Elam

appeared nervous. He testified that usually when he informs a driver of the reason

for a traffic stop, “that nervousness, if there is any nervousness, will go away.”

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According to Sergeant Mitchell, however, there was no change in Mr. Elam’s behavior

even after he informed Mr. Elam that he was stopped for a tag light violation. When

Sergeant Mitchell asked Mr. Elam for his driver’s license, Mr. Elam’s hands were

“visibly shaking” and he had trouble retrieving his license from his wallet.

We believe Mr. Elam’s behavior, coupled with the vehicle’s initial presence in

front of a house known by Sergeant Mitchell for drug activity, justified further

detention and questioning. See Butler, 331 N.C. at 233–34, 415 S.E.2d at 722–23

(finding reasonable suspicion where officers observed the defendant “on a specific

corner known for drug activity” and he immediately left the corner and walked away

from the officers after making eye contact with them); State v. Mello, 200 N.C. App.

437, 447, 684 S.E.2d 483, 490 (2009) (finding reasonable suspicion based on the

defendant’s “presence in an area known to be a center of drug-related activity coupled

with evasive action on the part of individuals involved in some sort of interaction with

Defendant”); see also Jackson, 368 N.C. at 80, 772 S.E.2d at 850–51 (finding

reasonable suspicion where the “defendant stood at 9:00 p.m. in a specific location

known for drug transactions,” walked away upon seeing patrol car approach,

returned once car had passed, and walked away a second time when patrol car

returned). Accordingly, the record supports the trial court’s decision not to intervene.

See Mohamed, 205 N.C. App. at 480, 696 S.E.2d at 732.

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Even if it were error to admit the revolver, we cannot conclude that it was one

that seriously affected the fairness, integrity, or public reputation of judicial

proceedings. See Grice, 367 N.C. at 764, 767 S.E.2d at 321 (“When plain error

analysis fails to adequately account for this element, plain error may become

indistinguishable from the less stringent harmless error standard.”). In fact, this

may be a situation where reversing for the unpreserved error would harm our judicial

proceedings. See Troy D. Shelton, Plain Error but No Plain Future: North Carolina’s

Plain Error Review After State v. Lawrence, 91 N.C. L. Rev. 2218, 2236 (2013) (citing

Nguyen v. United States, 539 U.S. 69, 88, 156 L. Ed. 2d 64, 83 (2003) (Rehnquist, C.J.,

dissenting)).

First, a reversal in this case would not reflect a conclusion that defendant’s

constitutional rights were violated. It would only show that the issue was

“insufficiently ventilated below,” though “we do not know what additional

corroborative and/or other evidence could have been introduced by the State had

[d]efendant pursued his current argument at the trial level.” State v. Garcia, No.

COA09-684, 2010 WL 522629, at * 4 (N.C. Ct. App. Feb. 16, 2010), disc. review denied,

365 N.C. 79, 705 S.E.2d 736 (2011); see also Mohamed, 205 N.C. App. at 480, 696

S.E.2d at 732 (noting that “had Defendant made a timely motion to suppress his

statements to investigating officers, the trial court would have had the

opportunity . . . to address [a] fundamental dispute between the investigating officers

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and Defendant relating to Defendant’s ability to comprehend English”). In effect, we

are being asked to reverse and order a new trial with the suppression of the revolver

based not on insufficient evidence or an erroneous conclusion, but an incomplete

record. Out of fairness to a defendant, our courts do not allow the State “a gratuitous

second chance” to argue on appeal what it failed to at a suppression hearing. Cooke,

306 N.C. at 136–37, 291 S.E.2d at 621. And it would certainly seem unfair to allow a

defendant an opportunity not afforded to the State.

Second, are we to reasonably expect a trial judge to exclude physical evidence

where the matter is never brought to the court’s attention? The preservation rules of

our adversarial system are not merely “technical rules[s] of procedure.” State v.

Black, 308 N.C. 736, 740, 303 S.E.2d 804, 806 (1983). We require objections to

evidentiary admissions to avoid placing “an undue if not impossible burden” on our

trial judges. Id. By way of example, “[t]here are those occasions when a party feels

that evidence which might be incompetent would be advantageous to him, therefore,

he does not object. Since the party does not object a trial judge should not have to

decide ‘on his own’ the soundness of a party’s trial strategy.” Id. In addition, our

Supreme Court has explained that “[t]he purpose of Rule 10(b)(2) is to encourage the

parties to inform the trial court of errors in its instructions so that it can correct the

instructions and cure any potential errors before the jury deliberates on the case and

thereby eliminate the need for a new trial.” Lawrence, 365 N.C. at 517, 723 S.E.2d

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at 333 (quoting Odom, 307 N.C. at 660, 300 S.E.2d at 378). While plain error review

“alleviates the potential harshness of preservation rules,” id. at 514, 723 S.E.2d at

332, it cannot be relied upon for harmless error review as defendant has essentially

argued for in his brief, see Grice, 367 N.C. at 764, 767 S.E.2d at 321; see also Lawrence,

365 N.C. at 516, 723 S.E.2d at 333 (“[T]he North Carolina plain error standard of

review applies only when the alleged error is unpreserved, and it requires the

defendant to bear the heavier burden of showing that the error rises to the level of

plain error.” (citations omitted)).

Third, where a legal determination, such as whether reasonable suspicion

exists, is not raised and discussed at the trial court, our appellate courts are put in a

difficult position. A conclusion of law is based on “a careful assessment of the facts,

and actually constitutes the application of a standard to the facts.” State v.

McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984), cert. denied, 476 U.S. 1164,

90 L. Ed. 2d 732 (1986). Trial courts have “institutional advantages over appellate

courts in the application of facts to fact-dependent legal standards,” State v.

McKinney, 361 N.C. 53, 65, 637 S.E.2d 868, 876 (2006) (citations and quotation marks

omitted), which is why “the conclusion should, in the first instance, be made by the

trial court,” McDowell, 310 N.C. at 74, 310 S.E.2d at 310. The appellate court “sees

only a cold, written record,” State v. Smith, 278 N.C. 36, 41, 178 S.E.2d 597, 601, cert.

denied, 403 U.S. 934, 29 L. Ed. 2d 715 (1971), and cannot substitute itself for the trial

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court “to pass upon the credibility of the evidence and to decide what weight to assign

to it and which reasonable inferences to draw therefrom,” State v. Villeda, 165 N.C.

App. 431, 438, 599 S.E.2d 62, 66 (2004). It is the trial court that “is entrusted with

the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the

facts, and, then based upon those findings, render a legal decision, in the first

instance, as to whether or not a constitutional violation of some kind has occurred.”

Cooke, 306 N.C. at 134, 291 S.E.2d at 620; see also State v. Salinas, 366 N.C. 119,

124, 729 S.E.2d 63, 67 (2012) (remanding to the trial court for findings of fact and to

“reconsider the evidence pursuant to the reasonable suspicion standard” rather than

probable cause standard); id. at 123, 124, 729 S.E.2d at 66, 67 (rejecting the

contention that remand was unnecessary and that the Court of Appeals should

“review[ ] the record to determine if the actions of the police satisfied the [reasonable

suspicion] standard”).