              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




                                         -2-
                                 STATE V. BARTLETT

                                  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



                                         -3-
                                  STATE V. BARTLETT

                                  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.


                                         -4-
                                  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[,]”



                                          -5-
                                 STATE V. BARTLETT

                                  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).



                                         -6-
                                  STATE V. BARTLETT

                                   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



                                          -7-
                                  STATE V. BARTLETT

                                  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



                                         -8-
                                   STATE V. BARTLETT

                                   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




                                          -9-
                                  STATE V. BARTLETT

                                   Opinion of the Court



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



                                          - 10 -
                                  STATE V. BARTLETT

                                   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



                                          - 11 -
                                  STATE V. BARTLETT

                                   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



                                          - 12 -
                                 STATE V. BARTLETT

                                 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.



                                        - 13 -
                                 STATE V. BARTLETT

                                  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


                                         - 14 -
                                 STATE V. BARTLETT

                                  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.




                                         - 15 -
