                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-477

                                Filed: 2 January 2018

Mecklenburg County, Nos. 15 CRS 212911-212913

STATE OF NORTH CAROLINA, Plaintiff,

             v.

JERRY GIOVANI THOMPSON, Defendant.


      Appeal by defendant from judgment entered 3 January 2017 by Judge William

R. Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 5

October 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Robert T.
      Broughton, for the State.

      Robinson, Bradshaw & Hinson, P.A., by Erik R. Zimmerman, for defendant-
      appellant.


      ZACHARY, Judge.


      Jerry Thompson (defendant) appeals from the judgment sentencing him for

convictions of felony possession of marijuana, possession with intent to sell or deliver

marijuana, possession of drug paraphernalia, and possession of a firearm by a

convicted felon. On appeal, defendant argues that the trial court erred by denying

his motion seeking the suppression of evidence, and that the judgment sentencing

him for felony possession of marijuana should be vacated on the grounds that he did

not plead guilty to that offense. After review of defendant’s arguments, in light of the
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                                      Opinion of the Court



record and the applicable law, we conclude that the factual findings in the order

denying defendant’s suppression motion did not resolve a pivotal disputed issue of

fact, requiring us to vacate the judgment and remand for further findings. We further

conclude that the judgment entered against defendant and the written transcript of

plea, both of which were signed by the trial judge, are inconsistent, and we remand

for resolution of this discrepancy.

                             Factual and Procedural Summary

       On 10 April 2015, law enforcement officers executed a search warrant for an

apartment on Basin Street, in Charlotte, North Carolina. When the officers arrived

at the apartment, defendant was sitting in his car in front of the residence. Two

officers approached defendant in order to prevent any interference with the execution

of the search warrant, and remained near defendant while the apartment was being

searched. During this time, defendant was asked to provide identification, which he

did.   Defendant also consented to a search of his person, which did not reveal

contraband. At some point, another officer came out of the apartment and asked

defendant for permission to search his car, and upon searching the trunk of

defendant’s car, found marijuana and a firearm. Defendant was arrested on charges

of possession of drug paraphernalia, possession with the intent to sell or deliver

marijuana, and possession of a firearm by a convicted felon.




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      On 28 March 2016, defendant was indicted for possession of drug

paraphernalia, possession with the intent to sell or deliver marijuana, felony

possession of marijuana, maintaining a vehicle for the purpose of keeping or selling

controlled substances, and possession of a firearm by a convicted felon. On 4 October

2016, defendant filed a motion seeking suppression of the evidence seized at the time

of his arrest, on the grounds that the evidence was seized pursuant to an illegal

search and seizure that violated his rights under the Fourth Amendment to the

United States Constitution.

      The charges against defendant came on for trial beginning on 3 January 2017.

A hearing was conducted prior to trial on defendant’s motion to suppress.        The

evidence adduced at the hearing tended to show the following: Sergeant Michael

Sullivan of the Charlotte-Mecklenburg Police Department testified that on 10 April

2015, he led a group of officers in the execution of a search warrant for the Basin

Street apartment. The target of the search warrant was a woman. When the officers

arrived, Sergeant Sullivan saw a person seated in the front seat of an automobile

parked in front of the apartment building. Sergeant Sullivan approached the car, in

order to make sure that the individual in the passenger seat was not the woman

named in the search warrant, and to ensure that the person did not interfere with

the execution of the search warrant. Defendant, who was the person sitting in the




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car, told Sergeant Sullivan that he did not live in the apartment, but that his

girlfriend did.

       Sergeant Sullivan remained near defendant’s car and informed defendant that

the officers were executing a drug-related search warrant in his girlfriend’s

apartment. At the officer’s request, defendant consented to a search of his person,

which did not reveal the presence of contraband. Sergeant Sullivan then asked

defendant for his identification, before “hand[ing] him off”’ to Officer Justin Price,

giving Officer Price defendant’s license, and going inside to supervise the search.

Sergeant Sullivan left defendant with Officers Price and Blackwell, and had no

further contact with defendant. Officer Price, however, testified that when he came

outside, defendant was already in custody.

       Officer Michael Blackwell testified that he and Sergeant Sullivan remained

with defendant during the search, and explained to defendant why the officers were

there. Defendant told Officer Blackwell that the woman named in the search warrant

was his girlfriend. After eight to ten minutes, Officer Hefner came outside and asked

for permission to search defendant’s car. Defendant consented to the search.

Marijuana and a firearm were found in the trunk of the car. On cross-examination,

Officer Blackwell testified that eight to twelve officers were present, that he and

Sergeant Sullivan had approached defendant to ensure that no one interfered with

their execution of the search warrant, and that both officers were armed and in



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uniform.     Officer Mark Hefner testified that during the search, he “received

information that the defendant was the supplier of the drugs.” Accordingly, he

obtained defendant’s consent to search his car.

       Defendant testified that he was 61 years old and worked for the Red Cross. On

10 April 2015, he drove to the Basin Street apartment to visit his girlfriend, who was

the person named in the search warrant. He was “taken aback” when a number of

law enforcement officers arrived wearing “SWAT attire” and went inside. Officer

Blackwell approached him and told him that he could not leave, and took his keys

and wallet. Defendant waited for twenty or thirty minutes with the officers, before

Officer Hefner came out of the apartment. Defendant denied giving the officers

permission to search his car.

       Following the presentation of evidence and the arguments of counsel, the trial

court orally denied defendant’s motion to suppress. Defendant then pleaded guilty,

pursuant to a plea bargain with the State, to possession of drug paraphernalia,

possession with the intent to sell or deliver marijuana, and possession of a firearm by

a convicted felon.1 Under the terms of the plea agreement, the State would dismiss

the charge of maintaining a vehicle for keeping or selling controlled substances, and

defendant would receive a consolidated sentence for the remaining offenses.

Defendant pleaded guilty while preserving his right to appeal the denial of his motion


       1 As discussed elsewhere in this opinion, there is a dispute as to whether defendant also
pleaded guilty to felony possession of marijuana.

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to suppress. The trial court sentenced defendant to a term of 13 to 25 months’

imprisonment, suspended the sentence, and placed defendant on 24 months’

supervised probation. On 5 January 2017, the trial court entered a written order

denying defendant’s suppression motion. Defendant gave notice of appeal to this

Court.

                                      Standard of Review

         Defendant argues on appeal that the trial court erred by denying his

suppression motion. “The standard of review in evaluating the denial of a motion to

suppress is whether competent evidence supports the trial court’s findings of fact and

whether the findings of fact support the conclusions of law.” State v. Biber, 365 N.C.

162, 167-68, 712 S.E.2d 874, 878 (2011) (citation omitted). “This Court reviews

conclusions of law stemming from the denial of a motion to suppress de novo. . . .

Under a de novo review, the court considers the matter anew and freely substitutes

its own judgment for that of the lower tribunal.” State v. Borders, 236 N.C. App. 149,

157, 762 S.E.2d 490, 498-99 (2014).

                                 Motion to Suppress

                                   Legal Principles

         The Fourth Amendment to the United States Constitution protects the “right

of the people to be secure . . . against unreasonable searches and seizures.” U.S.

Const. amend. IV. “The Fourth Amendment is applicable to the states through the



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                                   Opinion of the Court



Due Process Clause of the Fourteenth Amendment. Article I, Section 20 of the North

Carolina Constitution provides similar protection against unreasonable seizures.

N.C. Const. art. I, § 20.” State v. Campbell, 359 N.C. 644, 659, 617 S.E.2d 1, 11 (2005)

(citing State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 69 (1994)). However, not

all interactions between citizens and law enforcement officers fall within the ambit

of the Fourth Amendment:

             U.S. Supreme Court holdings carve out . . . three tiers of
             police encounters: communication between the police and
             citizens involving no coercion or detention and therefore
             outside the compass of the Fourth Amendment, brief
             ‘seizures’ that must be supported by reasonable suspicion,
             and full-scale arrests that must be supported by probable
             cause.

State v. Sugg, 61 N.C. App. 106, 108, 300 S.E.2d 248, 250 (1983) (citing United States

v. Berry, 670 F. 2d 583 (5th Cir. 1982)).

      Accordingly, a law enforcement officer does not require any suspicion of

criminal activity to engage in a consensual interaction with a citizen, and in such a

situation the protections of the Fourth Amendment are not implicated:

             Our cases make it clear that a seizure does not occur simply
             because a police officer approaches an individual and asks
             a few questions. So long as a reasonable person would feel
             free to disregard the police and go about his business, the
             encounter is consensual and no reasonable suspicion is
             required. The encounter will not trigger Fourth
             Amendment scrutiny unless it loses its consensual nature.
             . . . Only when the officer, by means of physical force or
             show of authority, has in some way restrained the liberty
             of a citizen may we conclude that a ‘seizure’ has occurred.


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Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398 (1991) (internal

quotations omitted).

      It is long-established that “a person has been ‘seized’ within the meaning of the

Fourth Amendment only if, in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that he was not free to leave.”

United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509 (1980). As a

result, “an initially consensual encounter between a police officer and a citizen can be

transformed into a seizure or detention within the meaning of the Fourth

Amendment, ‘if, in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave.’ ” INS v.

Delgado, 466 U.S. 210, 215, 80 L. Ed. 2d 247, 255 (1984) (quoting Mendenhall, 446

U.S. at 554, 64 L. Ed. 2d at 509).

                                            Discussion

      In its order denying defendant’s suppression motion, the trial court concluded

that, at the time defendant was asked for consent to search his car, he “was neither

seized nor in custody.”    On appeal, defendant argues that this conclusion was

erroneous, and was not supported by the evidence adduced at the hearing. We

conclude that the trial court’s order failed to resolve disputed issues of fact that are

central to our ability to conduct a meaningful appellate review.




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                                  Opinion of the Court



      As noted above, “the United States Supreme Court has long held that the

Fourth Amendment permits a police officer to conduct a brief investigatory stop of an

individual based on reasonable suspicion that the individual is engaged in criminal

activity.” State v. Jackson, 368 N.C. 75, 77, 772 S.E.2d 847, 849 (2015) (citing Terry

v. Ohio, 392 U.S. 1, 30-31, 20 L. Ed. 2d 889, 911 (1968)). Reasonable suspicion

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 [the

officer’s] experience and training.”   Watkins, 337 N.C. at 441, 446 S.E.2d at 70

(citation omitted).

      Because the trial court concluded that defendant had not been seized, it did

not address the issue of whether reasonable suspicion could have supported a seizure

of defendant. However, it is undisputed that the law enforcement officers’

interactions with defendant were not based upon suspicion of criminal activity.

Officer Sullivan testified that defendant was not named in the search warrant and

that he approached defendant to “make sure that [he] wasn’t the target of the search

warrant, and that [he] didn’t interfere with the search warrant since [he was] in such

close proximity to where we were going.”        Defendant consented to show Officer

Sullivan his driver’s license and to be searched, neither of which revealed anything

suspicious. Similarly, Officer Blackwell agreed that “the purpose of [his] making

contact [with defendant] was to ensure that he would not interfere with the execution



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of the search warrant.” The State did not elicit testimony at the hearing suggesting

that the officers suspected defendant of engaging in criminal behavior, and does not

argue on appeal that reasonable suspicion existed to detain defendant. We have

carefully reviewed the transcript and conclude that there was no evidence that the

law enforcement officers approached defendant based on a reasonable suspicion of

criminal activity. Therefore, if defendant was seized by law enforcement officers, the

seizure was a violation of defendant’s rights under the Fourth Amendment, and

would require suppression of the evidence found in his trunk. See, e.g., Bostick, 501

U.S. at 433-34, 115 L. Ed. 2d at 398:

             The sole issue presented for our review is whether a police
             encounter on a bus of the type described above necessarily
             constitutes a “seizure” within the meaning of the Fourth
             Amendment. The State concedes, and we accept for
             purposes of this decision, that the officers lacked the
             reasonable suspicion required to justify a seizure and that,
             if a seizure took place, the drugs found in Bostick’s suitcase
             must be suppressed as tainted fruit.

      As discussed above, a criminal defendant has been subjected to a seizure by

police “only if, in view of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to leave.” Mendenhall,

446 U.S. at 554, 64 L. Ed. 2d at 509. “[T]he Mendenhall test does not take into account

a defendant’s subjective impressions of an encounter with police officers, but instead

asks whether the police officers’ actions would have led a ‘reasonable person’ to

believe that he was not free to leave the scene.” State v. Isenhour, 194 N.C. App. 539,


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543, 670 S.E.2d 264, 268 (2008) (citing Mendenhall). In determining whether a

defendant was seized, “[r]elevant circumstances include, but are not limited to, the

number of officers present, whether the officer displayed a weapon, the officer’s words

and tone of voice, any physical contact between the officer and the individual, whether

the officer retained the individual’s identification, or property, the location of the

encounter, and whether the officer blocked the individual’s path.” State v. Icard, 363

N.C. 303, 309, 677 S.E.2d 822, 827 (2009).

      In this case, the trial court’s findings generally established the following:

             1. An unspecified number of law enforcement officers
             executed a search warrant for an apartment on Basin
             Street, in Charlotte.
             2. The search was conducted during daylight hours.
             3. When the law enforcement officers arrived, defendant
             was seated in his car in front of the apartment building.
             4. While other officers conducted the search, Officers
             Sullivan and Blackwell approached defendant. The officers
             were armed and in uniform, but their weapons were not
             drawn.
             5. The officers approached defendant for two reasons: (1) to
             make sure that the person in the car was not the target of
             the search or a resident of the apartment, and (2) to ensure
             that the person in the car did not interfere with the search.
             6. Officer Sullivan told defendant why the officers were at
             the apartment. Officer Sullivan did not tell defendant that
             he had to remain at the scene.
             7. At some point “within the first ten minutes of their
             encounter” and after “the residence was secured,” Officer
             Sullivan asked defendant for his identification.
             8. Officer Sullivan also asked defendant for permission to
             search his person. Defendant consented to the search,
             which did not reveal any contraband.



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             9. After an unspecified period of time, Officer Price joined
             the group with defendant. Officer Sullivan gave Officer
             Price defendant’s identification and left.
             10. After an unspecified period of time, Officer Hefner came
             outside and asked defendant for permission to search his
             car. Defendant consented to the search, during which
             marijuana and a firearm were found in the trunk.
             11. During the time that the officers were with defendant,
             he was not told that he could not leave.

      Most of these findings are generally undisputed by the parties, such as the

finding that the officers did not draw their weapons. The trial court’s findings that

defendant was never told that he had to remain at the scene, and that defendant

consented to the search of his car were the subject of conflicting testimony; however,

it is appropriate for the court to resolve inconsistencies and weigh the credibility of

conflicting testimony in making its findings.

      In arguing that he was seized, defendant places great emphasis upon his

contention that the law enforcement officers retained his driver’s license during the

encounter. Defendant cites several cases, including State v. Jackson, 199 N.C. App.

236, 243, 681 S.E.2d 492, 497 (2009), in which this Court stated, in analyzing whether

the defendant had been seized, that “a reasonable person under the circumstances

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

registration[.]” We find this argument persuasive. Indeed, we have not found any

cases holding that a defendant whose identification or driver’s license was held by

the police without reasonable suspicion of criminal activity was nonetheless “free to



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leave.” Moreover, it would defy common sense to interpret “free to leave” as meaning

“free to leave and break the law by driving without a license,” or “free to leave your

car by the side of the road and proceed on foot.”

      We also note that a recent opinion of this Court reached the same conclusion.

In State v. Parker, 2017 N.C. App. LEXIS *940, the defendant appealed from the

denial of his motion to suppress evidence seized at the time of his arrest. The record

showed that two law enforcement officers initially detained defendant and another

person who were engaged in a verbal dispute which the officers feared would escalate

into a physical fight. The officers separated the two people, checked defendant’s

driver’s license, and determined that he was not subject to any outstanding warrants.

While retaining possession of defendant’s driver’s license, the officer obtained

defendant’s consent to a search, which revealed the presence of narcotics. On appeal,

the defendant argued that “when [the law enforcement officer] failed to return

defendant’s identification after finding no outstanding warrants and after the initial

reason for the detention was satisfied, [and] he instead requested defendant’s consent

to search, the seizure was unlawful, and defendant’s consent was not voluntarily

given.” This Court agreed, and held that “[a]bsent a reasonable and articulable

suspicion to justify further delay, retaining defendant’s driver’s license beyond the

point of satisfying the purpose of the initial detention -- de-escalating the conflict,




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checking defendant’s identification, and verifying [that] he had no outstanding

warrants -- was unreasonable.”

      In its appellate brief, the State does not dispute the crucial significance of

whether the officers kept defendant’s license. Nor does the State cite any cases in

which, although law enforcement officers confiscated the defendant’s license without

reasonable suspicion of criminal activity, it was nonetheless held that the defendant

had not been seized. The State instead argues that the trial court’s findings of fact

fail to establish whether the officers retained defendant’s license or returned it to him

after examination. We agree with this contention.

      Witnesses at the hearing on defendant’s suppression motion gave conflicting

testimony with regard to the circumstances under which law enforcement officers

took possession of defendant’s driver’s license and the time frame in which the

relevant events occurred. Sergeant Sullivan testified that he and Officer Blackwell

approached defendant upon arrival at the apartment, and that after the apartment

was secured, he asked to see defendant’s identification and searched his person.

             SERGEANT SULLIVAN: I asked him for his ID. About the
             time I was asking him for his ID, I was -– I went -– I handed
             him off. I think I handed him off to Officer Price, and I went
             inside to supervise the search warrant[.] . . .

             PROSECUTOR: How long would you say you had been
             with the defendant at this point, when you first approached
             him?




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             SERGEANT SULLIVAN: I was probably with him three
             minutes, you know, less than five.

             PROSECUTOR: And you stated that you gave the ID that
             the defendant handed to you to Officer Price, and then you
             went into the house?

             SERGEANT SULLIVAN: That’s right.

      However, Officer Price testified that when he came outside after completing

the search of the apartment, defendant was already in custody. Officer Blackwell,

who was not asked about the confiscation of defendant’s identification, testified that

he and Sergeant Sullivan spent eight to ten minutes with defendant before Officer

Hefner came outside and obtained defendant’s permission to search his car. Officer

Hefner testified that he did not recall how long he was inside the apartment, but that

it usually took at least two hours to search a residence. Defendant testified that when

he was searched, the officers took his keys and wallet, and that when Officer

Blackwell ordered defendant not to leave, he had possession of defendant’s wallet and

keys. Defendant also testified that he stood outside with the officers for twenty or

thirty minutes before Officer Hefner came outside. Thus, defendant testified that the

officers retained his license, but the officers did not testify about this issue. Assuming

that the law enforcement officers kept defendant’s identification, the testimony is

conflicting as to whether defendant’s car was searched before, immediately after, ten

minutes after, or a half-hour after defendant gave his license to Officer Sullivan.




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      Counsel for defendant and the State offered contrasting interpretations of the

testimony in their arguments to the trial court:

             MS. WALLWORK [Defense Counsel]: I will cut to the
             chase. That’s what varies in Sergeant Sullivan’s
             confiscation of Mr. Thompson’s identification. That’s what
             [United States v.] Black is about, that officers in Black
             attempted to make a voluntary contact. They took the
             identification of Nathaniel Black in that case and pinned it
             to their vest and continued on their way. The court in Black
             said that renders it a seizure. In this case we heard from
             Sergeant -–

                                          ...

             MS. WALLWORK: We know from Officer Blackwell’s
             testimony that that period of time, in the light most
             favorable to the State, was eight to ten minutes. That he
             was with Mr. Thompson outside the home while apparently
             Sergeant Sullivan had already gone back inside and Officer
             Price has Mr. Thompson’s ID. So there’s an eight to ten
             minute delay here. I would argue to the Court that that is
             a seizure, and that that seizure is without reasonable
             suspicion.

      In response, the prosecutor challenged defense counsel’s interpretation of the

testimony:

             MS. HINSON [Prosecutor]: Yes, Your Honor. Your Honor,
             I would argue that that point wasn’t made as clear as Ms.
             Wallwork seems to assert it to the Court. Sergeant
             Sullivan did testify that he retrieved the defendant’s
             identification and handed it to Officer Price. But when
             Officer Price testified, he said the first time he approached
             that scene and/or encountered the defendant was after he
             was in the residence and conducted the search. He at no
             point testified that he was handed a license, that he went
             inside for eight to ten minutes, and then came back out.


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              And Sergeant Sullivan never testified that at any point he
              took a license, went inside for eight to ten minutes, and
              then came back out. . . . So I would argue, Your Honor, that
              the evidence does not say that the defendant’s license was
              seized for that period of time. We know that it was taken
              by Sergeant Sullivan, and we know that at some point
              Officer Price ran his information, but that eight to ten
              minutes is to me a leap.

       In its order, the “judge must set forth in the record his findings of facts and

conclusions of law.” N.C. Gen. Stat. § 15A-977(f) (2016). “[T]he general rule is that

[the trial court] should make findings of fact to show the bases of [its] ruling. If there

is a material conflict in the evidence on voir dire, he must do so in order to resolve the

conflict.” State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980) (emphasis

in original) (citation omitted). “ ‘Findings and conclusions are required in order that

there may be a meaningful appellate review of the decision’ on a motion to suppress.”

State v. Salinas, 366 N.C. 119, 124, 729 S.E.2d 63, 66 (2012) (quoting State v. Horner,

310 N.C. 274, 279, 311 S.E.2d 281, 285 (1984)). Remand is required if the trial court’s

order fails to resolve critical issues of fact:

              [W]hen the trial court fails to make findings of fact
              sufficient to allow the reviewing court to apply the correct
              legal standard, it is necessary to remand the case to the
              trial court. Remand is necessary because 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.”




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Salinas, 366 N.C. at 124, 729 S.E.2d at 67 (quoting State v. Cooke, 306 N.C. 132, 134,

291 S.E.2d 618, 620 (1982)).

      In this case, the trial court’s findings of fact do not resolve the question of

whether the law enforcement officers returned defendant’s license after examining it,

or instead retained it, or the issue of the sequence of events and the time frame in

which they occurred. Given that the officers conceded that their interaction with

defendant was not based upon suspicion of criminal activity, a finding that officers

kept defendant’s identification would likely support the legal conclusion that he had

been seized. A citizen “ ‘may not be detained even momentarily without reasonable,

objective grounds for doing so; and his refusal to listen or answer does not, without

more, furnish those grounds.” State v. Farmer, 333 N.C. 172, 186-87, 424 S.E.2d 120,

128-29 (1993) (quoting Florida v. Royer, 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 236

(1983)). Because the court’s findings of fact fail to resolve material issues, we vacate

the judgment entered against defendant, and remand for the trial court to enter

findings of fact that resolve all material factual disputes.

                           Judgment Entered Against Defendant

      Defendant also argues that the judgment entered against him for felony

possession of marijuana must be vacated on the grounds that he did not plead guilty

to this offense. It is undisputed that defendant was indicted on charges of possession

of drug paraphernalia, possession with the intent to sell or deliver marijuana, felony



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possession of marijuana, maintaining a vehicle for the purpose of keeping or selling

controlled substances, and possession of a firearm by a convicted felon. It is also

agreed by the parties that, pursuant to a plea arrangement, the State dropped the

charge of maintaining a vehicle for the purpose of keeping or selling controlled

substances, and that defendant pleaded guilty to the charges of possession of drug

paraphernalia, possession with the intent to sell or deliver marijuana, and possession

of a firearm by a convicted felon. However, upon review of the record documents and

the transcript, we note several inconsistencies in the treatment of the charge of felony

possession of marijuana.

      During the hearing on the plea arrangement, the prosecutor stated that

defendant was charged with four offenses, including felony possession of marijuana,

and defendant’s counsel stated that she was authorized to enter a plea of guilty to the

offenses, subject to defendant’s reservation of the right to appeal the denial of his

suppression motion. In its colloquy with defendant, the court first enumerated the

offenses to which defendant was pleading guilty, and included felony possession of

marijuana. However, the court then asked defendant if he was prepared to enter a

plea of guilty to “those three charges” and, when the court orally pronounced

judgment, it did not include felony possession of marijuana in the recitation of the

charges to which defendant was pleading guilty.




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       Of greater significance than the inconsistencies among the oral statements of

the parties is the fact that the written documents signed by the trial court are not

consistent. The written transcript of plea states that defendant is pleading guilty to

the three offenses about which there is no dispute, and does not state that defendant

is pleading guilty to felony possession of marijuana.2 However, the judgment entered

against defendant includes felony possession of marijuana as a charge for which

judgment is entered. We conclude that the record is inconsistent and unclear as to

whether defendant pleaded guilty to felony possession of marijuana.

       The State argues that defendant is not entitled to review of the issue of

whether the judgment sentenced him for an offense of which he was not convicted.

The State characterizes defendant’s argument as a challenge to the trial court’s

compliance with N.C. Gen. Stat. § 15A-1022 (2016), which requires a court to make

certain inquiries of a defendant before accepting a plea of guilty. The defendant is

not, however, arguing that the trial court failed to conduct the requisite colloquy.

Moreover, we easily conclude that if, as is posited by defendant, he was sentenced for

an offense of which he was not convicted, it is in the interest of preserving the

integrity of our judicial system to address this matter. We choose to treat defendant’s

appeal as a petition for issuance of a writ of certiorari, in order to reach this issue.


       2  The Notice of Dismissal recites that the State is dismissing the charge of maintaining a
vehicle in exchange for defendant’s agreement to plead guilty to the other four offenses, including
felony possession of marijuana. However, this document was not filed until the day after judgment
was entered against defendant. Moreover, it is not signed by the trial court.

                                              - 20 -
                                STATE V. THOMPSON

                                  Opinion of the Court



      On appeal, defendant stresses that he “is not seeking to withdraw his guilty

plea” or to change his sentence, but simply wants the “misstatement in the judgment”

corrected. In essence, defendant characterizes this as a clerical error. The State

directs our attention to the parts of the record that tend to support the conclusion

that defendant pleaded guilty to felony possession of marijuana. We conclude that,

on the basis of the record as presently constituted, it is not possible to determine

whether judgment was properly entered on the charge of felony possession of

marijuana. As the judgment must be vacated and this matter remanded, we direct

the court to take the necessary steps to resolve the discrepancy between the

transcript of plea and the written judgment.

                                         Conclusion

      For the reasons discussed above, we conclude that the trial court’s order

denying defendant’s suppression motion failed to include findings of fact resolving

significant disputed issues of fact. As a result, we must vacate the judgment against

defendant and remand for entry of additional findings. We further conclude that the

transcript of plea and the judgment are inconsistent and remand for correction of this

discrepancy.

      VACATED AND REMANDED.

      Judge DAVIS concurs.

      Judge BERGER dissents with separate opinion.



                                         - 21 -
 No. COA17-477 – State v. Thompson


       BERGER, Judge, dissenting in separate opinion.


       Because Defendant was never seized by Charlotte-Mecklenburg Police

Department (“CMPD”) officers within the meaning of the Fourth Amendment, I

would affirm the trial court’s denial of the motion to suppress, and respectfully

dissent.

       The North Carolina Supreme Court has stated that law enforcement officers

“may approach individuals in public to ask them questions and even request consent

to search their belongings, so long as a reasonable person would understand that he

or she could refuse to cooperate. . . . Such encounters are considered consensual and

no reasonable suspicion is necessary.” State v. Brooks, 337 N.C. 132, 142, 446 S.E.2d

579, 585-86 (1994) (citations omitted).            Only when the encounter ceases to be

consensual are Fourth Amendment concerns implicated. State v. Garcia, 197 N.C.

App. 522, 528, 677 S.E.2d 555, 559 (2009). The initial inquiry is “whether under the

totality of the circumstances a reasonable person would feel that he was not free to .

. . terminate the encounter.” Brooks, 337 N.C. at 142, 446 S.E.2d at 586 (citations

omitted).3


       3  This case brings to mind a famous scene from Star Wars. In the first movie, Episode IV, A
New Hope, Obi-Wan Kenobi, Luke Skywalker, R2-D2, and C-3PO arrive in Mos Eisley and are greeted
by Stormtroopers. A Stormtrooper asks Skywalker for identification, and with a wave of his hand,
Kenobi uses a Jedi mind trick to avoid Imperial authorities. Kenobi asserts that the Stormtrooper
does not need to see Skywalker’s identification and that he can go about his business because “these
aren’t the droids [Stormtroopers] are looking for.” Unfortunately for Defendant, he consented to this
encounter with the authorities, and these were the drugs that officers were looking for.
                                 STATE V. THOMPSON

                                 BERGER, J., dissenting



      The following findings of fact by the trial court were supported by competent

evidence in the record and transcript, and, therefore, these findings are conclusively

binding on appeal, State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982):


      (1)    CMPD officers were “going to execute a search warrant at 404 Basin

             Street, an apartment.”

      (2)    Before arriving at the location, the officers were advised that an

             individual in a Volvo “was parked in front of the residence.”

      (3)    Sergeant Sullivan went to the Volvo while his team executed the search

             warrant “because of its proximity to the apartment to be searched.”

      (4)    Sergeant Sullivan approached the Volvo to make sure the target of the

             search warrant was not in the vehicle, and “to assure that [the] person

             did not interfere with the execution of the search warrant.”

      (5)    Defendant was the occupant of the Volvo, and when asked by Sergeant

             Sullivan if he lived at 404 Basin Street, “he replied ‘No’ but . . . that his

             girlfriend did.”

      (6)    Although in uniform and armed, officers did not have their weapons

             drawn.

      (7)    Sergeant Sullivan and Defendant stood next to each other as Defendant

             was advised that a search warrant was being executed at his girlfriend’s

             apartment.


                                           2
                                    STATE V. THOMPSON

                                    BERGER, J., dissenting



       (8)    Sergeant Sullivan “did not tell the Defendant that he had to remain at

              the scene.”

       (9)    Within ten minutes of his initial contact with Defendant, Sergeant

              Sullivan asked Defendant for identification and for consent to search his

              person. Defendant consented to the search of his person, which revealed

              no weapons or contraband.

       (10)   Sergeant Sullivan provided Defendant’s identification to another officer.

       (11)   “[A]fter [the apartment] had been secured,” Officer Hefner left the

              residence to speak with Defendant because he had “received information

              that the Defendant was the supplier of the drugs that were being

              searched for inside the residence.”4 (Emphasis added).

       (12)   Officer Hefner asked for and received consent to search Defendant’s

              vehicle.

       (13)   Defendant assisted CMPD officers with the search of his Volvo.

       (14)   “Defendant’s encounter with the police . . . was voluntary and

              consensual.”

       (15)   Defendant “was never told nor was it intimated by word or deed that he

              was not free to leave at any point.” (Emphasis added).




       4An active search of the apartment was taking place when Officer Hefner made contact with
Defendant.

                                               3
                                        STATE V. THOMPSON

                                        BERGER, J., dissenting



        Defendant’s behavior was not indicative of an involuntary encounter with

CMPD officers. It was permissible for Sergeant Sullivan to approach Defendant in a

public area at any time to ask questions. Sergeant Sullivan did just that: he engaged

Defendant to explain why CMPD officers were present on the scene, determine if he

was the target of the search warrant, and prevent interference. The two stood outside

Defendant’s vehicle while officers gained entry to the apartment. Defendant was

never told he could not leave the scene, never placed in handcuffs, and never

restrained. Defendant was not required to cooperate or even speak with Sergeant

Sullivan. Competent evidence also showed that Defendant was calm and never asked

if he could leave the scene.5

        Sergeant Sullivan asked for Defendant’s identification and “if he would allow”

Sergeant Sullivan to search his person for drugs and weapons. Defendant provided

his identification and consented to the search even though he was not required to do

so. There is no evidence that Sergeant Sullivan or any other CMPD officer used force

or intimidation to obtain the identification or consent to search.

        After the residence was secured, and while execution of the search warrant

was taking place, Sergeant Sullivan gave Defendant’s identification to another officer




        5From the findings of fact, it appears the trial court gave Defendant’s testimony little to no
weight. The trial court asked defense counsel during her argument if the factual questions to be
resolved were a matter of “credibility,” and the trial court’s findings are consistent with the officers’
testimony.

                                                   4
                                 STATE V. THOMPSON

                                 BERGER, J., dissenting



and went into the residence. Defendant did not request his identification be returned,

nor did he request to go about his business.

      Shortly thereafter, Officer Hefner approached Defendant and obtained consent

to search the vehicle. Defendant assisted Officer Hefner in the search. Defendant’s

interaction with CMPD officers was relatively brief under the circumstances. Officer

Blackwell, who assisted with Defendant at the scene, estimated that the time from

Sergeant Sullivan’s initial contact with Defendant until Defendant consented to

search of his vehicle was approximately eight to ten minutes.

      The majority focuses on the location of Defendant’s identification as the sole

reason to vacate Defendant’s conviction. We are required, however, to look at more

than one fact. Under the totality of the circumstances, a reasonable person would

have felt free to decline the officers’ requests and terminate this encounter at any

point up to the discovery of more than 85 grams of marijuana, $4,195.77 in cash, and

a firearm in the trunk of the vehicle.

      The trial court’s findings support the conclusion that Defendant’s encounter

with CMPD officers was “voluntary and consensual.”           No additional findings

regarding Defendant’s identification, or any other matter, are necessary to support

that conclusion.

      Moreover, even if we assume that Defendant was seized as Defendant argues

and the majority finds, the search of the vehicle was still valid. The majority cites



                                           5
                                   STATE V. THOMPSON

                                 BERGER, J., dissenting



State v. Jackson, 199 N.C. App. 236, 241-42, 681 S.E.2d 492, 496 (2009), and State v.

Parker, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, COA17-108, 2017 WL 5145987, *6

(2017), for the proposition that retaining a defendant’s identification “beyond the

point of satisfying the purpose of the initial detention” is unreasonable. Parker, 2017

WL 5145987, at *6. While this may be a correct statement of the law under the facts

of those cases, the initial purpose of the detention under our facts had not been

satisfied.

       The trial court found that CMPD officers approached Defendant because of his

“proximity to the apartment to be searched[,]” to make sure the target of the search

was not in the vehicle, and to prevent that person from interfering with execution of

the search warrant. Defendant was parked in front of the residence, and in close

proximity to the area in which the officers would be executing the search warrant.

While speaking with Defendant, officers determined that he did in fact have a

connection to the residence to be searched because his girlfriend was the target of the

search warrant. There is no evidence that Defendant was detained by CMPD officers

beyond the point of satisfying their initial purpose to prevent interference with

execution of the search warrant.

       In addition, individuals with a “connection to the residence to be searched” may

be detained within the “immediate vicinity of the premises to be searched.” Bailey v.

U.S., 568 U.S. 186, 197, 201, 185 L. Ed. 2d 19, 31, 33-34 (2013) (factors to consider in



                                           6
                                  STATE V. THOMPSON

                                  BERGER, J., dissenting



determining what constitutes “immediate vicinity” include, but are not limited to, the

“lawful limits of the premises” to be searched, the individual was “within the line of

sight” of the property to be searched, the ability to re-enter the property, and “other

relevant factors”). “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, 161 L. Ed.

2d 299, 307 (2005) (citation and internal quotation marks omitted).

       Defendant here was in the immediate vicinity of the apartment to be searched,

and CMPD officers determined that Defendant did in fact have a connection with the

apartment. While in close proximity to the apartment, Defendant certainly had the

ability to disrupt or otherwise interfere with the officers as they conducted the search.

CMPD officers had the authority to detain Defendant incident to the search.

       For these reasons, I would affirm the denial of Defendant’s motion to suppress.

       As to Defendant’s second issue concerning his conviction for felony possession

of marijuana, Defendant has requested that the judgment entered against him be

corrected to accurately reflect the offenses for which he pleaded guilty. Neither the

plea transcript nor the colloquy between the trial court and Defendant reference the

possession of marijuana charge that is set forth on the judgment. Judgment should

simply be arrested as to that charge, or the matter should be remanded for correction

of the clerical error.



                                            7
STATE V. THOMPSON

BERGER, J., dissenting




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