               IN THE SUPREME COURT OF NORTH CAROLINA

                                    No. 2PA17

                                 Filed 8 June 2018

STATE OF NORTH CAROLINA

             v.
JUAN ANTONIA MILLER



      On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 374 (2016), ordering that

defendant receive a new trial after appeal from a judgment entered on 4 December

2015 by Judge Eric C. Morgan in Superior Court, Guilford County. Heard in the

Supreme Court on 7 February 2018.


      Joshua H. Stein, Attorney General, by Derrick C. Mertz and John G. Batherson,
      Special Deputy Attorneys General, for the State-appellant.

      Jason Christopher Yoder for defendant-appellee.

      Southern Coalition for Social Justice, by Ian A. Mance and Ivy A. Johnson, for
      The Beloved Community Center of Greensboro, amicus curiae.


      MARTIN, Chief Justice.


      During a traffic stop, Officer H.B. Harris of the Greensboro Police Department

found cocaine in defendant’s coat pocket.    Defendant did not move to suppress

evidence of the cocaine before or at trial, but instead argued for the first time on

appeal that the seizure of the cocaine resulted from various Fourth Amendment

violations. We hold that defendant’s Fourth Amendment claims are not reviewable
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                                  Opinion of the Court



on direct appeal, even for plain error, because he completely waived them by not

moving to suppress evidence of the cocaine before or at trial. We therefore reverse

the decision of the Court of Appeals and remand this case to the Court of Appeals for

additional proceedings.

      Officer Harris pulled defendant over after a DMV records check indicated that

the license plate number for the car that he was driving had been revoked due to

unpaid insurance premiums. At the time of the traffic stop, Derick Sutton, the car’s

owner, was in the passenger’s seat. After a brief conversation, Officer Harris asked

Sutton and then defendant to step out of the car. Both men complied.

      The parties dispute exactly what happened next, including whether defendant

consented to be searched. But they do not dispute that Officer Harris ultimately

searched defendant. When Officer Harris checked defendant’s coat pocket, he found

a bag of white powder that was later confirmed to be cocaine and presented as Exhibit

1 at trial. Officer Harris was wearing a body camera that was recording video footage

during this traffic stop.

      Defendant did not move in limine to suppress evidence of the cocaine, even

when the trial court specifically asked if there were pretrial matters to address. Nor

did defendant object to the State’s use of the cocaine evidence at any point during his

trial, either when Officer Harris testified about finding cocaine in his pocket or when

the cocaine itself was introduced as evidence. Defendant argued to the Court of



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Appeals that the trial court “plainly erred” by “admitting the cocaine and testimony

about the cocaine,” and that the seizure of the cocaine resulted from various Fourth

Amendment violations. Defendant also argued that his trial counsel was ineffective

for not moving to suppress evidence of the cocaine.

      Although the Court of Appeals acknowledged that “footage from an officer’s

body camera may not reveal the totality of the circumstances,” State v. Miller, ___

N.C. App. ___, ___ n.1, 795 S.E.2d 374, 376 n.1 (2016), it nonetheless considered the

evidence that was presented at trial, including Officer Harris’ body camera footage,

and conducted plain error review, see id. at ___, 795 S.E.2d at 376-79. The Court of

Appeals determined that Officer Harris unconstitutionally extended the traffic stop

and that, even if Officer Harris had not unlawfully extended the stop, defendant’s

consent to the search of his person was not valid. Id. at ___, 795 S.E.2d at 378-79. In

the course of its analysis, the Court of Appeals made determinations about the

credibility of Officer Harris’ testimony. See id.

      The Court of Appeals ultimately concluded that the trial court committed plain

error by admitting evidence of the cocaine. Id. at ___, 795 S.E.2d at 376-79. Because

the Court of Appeals ordered a new trial based on defendant’s Fourth Amendment

claims, it did not reach defendant’s ineffective assistance of counsel claim. Id. at ___,

795 S.E.2d at 379. The State petitioned this Court for discretionary review of two

issues: whether defendant’s Fourth Amendment claims were susceptible to plain



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error review and, if so, whether the Court of Appeals correctly found plain error. We

allowed review of both issues.

         This Court adopted plain error review in State v. Odom, 307 N.C. 655, 300

S.E.2d 375 (1983). As a general rule, “plain error review is available in criminal

appeals for challenges to jury instructions and evidentiary issues.” Dogwood Dev. &

Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008)

(citations omitted) (first citing Odom, 307 N.C. at 660, 300 S.E.2d at 378; and then

citing State v. Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000), cert. denied,

532 U.S. 997, 121 S. Ct. 1660 (2001)). Even after adopting plain error review,

however, we have continued to indicate that the failure to move to suppress evidence

when required by statute constitutes a waiver of those claims on appeal. See, e.g.,

State v. Hucks, 332 N.C. 650, 652-53, 422 S.E.2d 711, 713 (1992); State v. Maccia, 311

N.C. 222, 227-28, 316 S.E.2d 241, 244 (1984). But we have not squarely addressed

whether plain error review is available when a defendant has not moved to suppress.

See, e.g., State v. Walters, 357 N.C. 68, 85, 588 S.E.2d 344, 354, cert. denied, 540 U.S.

971, 124 S. Ct. 442 (2003). This issue is therefore one of first impression for this

Court.

         For guidance, we first turn to the statutory framework that governs the

suppression of unlawfully obtained evidence in our trial courts. N.C.G.S. § 15A-

974(a)(1) states that, “[u]pon timely motion, evidence must be suppressed if . . . [i]ts

exclusion is required by the Constitution of the United States or the Constitution of

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the State of North Carolina.” And N.C.G.S. § 15A-979(d) specifies that “[a] motion to

suppress evidence made pursuant to this Article is the exclusive method of

challenging the admissibility of evidence” on constitutional grounds.       (Emphasis

added.) A defendant generally “may move to suppress evidence only prior to trial,”

N.C.G.S. § 15A-975(a) (2017), subject to a few, narrow exceptions that permit a

defendant to move during trial, see id. § 15A-975(b), (c) (2017).

      In other words, the governing statutory framework requires a defendant to

move to suppress at some point during the proceedings of his criminal trial. Whether

he moves to suppress before trial or instead moves to suppress during trial because

an exception to the pretrial motion requirement applies, a defendant cannot move to

suppress for the first time after trial. By raising his Fourth Amendment arguments

for the first time on appeal, however, that is effectively what defendant has done here.

When a defendant files a motion to suppress before or at trial in a manner that is

consistent with N.C.G.S. § 15A-975, that motion gives rise to a suppression hearing

and hence to an evidentiary record pertaining to that defendant’s suppression

arguments. But when a defendant, such as defendant here, does not file a motion to

suppress at the trial court stage, the evidentiary record pertaining to his suppression

arguments has not been fully developed, and may not have been developed at all.

      To find plain error, an appellate court must determine that an error occurred

at trial. See, e.g., State v. Towe, 366 N.C. 56, 62, 732 S.E.2d 564, 568 (2012). The

defendant, additionally, must demonstrate that the error was “fundamental”—

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meaning that the error “had a probable impact on the jury’s finding that the

defendant was guilty” and “seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings.” State v. Grice, 367 N.C. 753, 764, 767 S.E.2d 312,

320-21 (alteration in original) (quoting State v. Lawrence, 365 N.C. 506, 518-19, 723

S.E.2d 326, 334-35 (2012)), cert. denied, 576 U.S. ___, 135 S. Ct. 2846 (2015). But

here, considering the incomplete record and the nature of defendant’s claims, our

appellate courts cannot conduct appellate review to determine whether the Fourth

Amendment required suppression. Defendant asked the Court of Appeals to review

the length of an officer’s stop to determine whether the officer unnecessarily

prolonged it, and to review whether defendant voluntarily consented to a search that

resulted in the discovery of incriminating evidence.           Fact-intensive Fourth

Amendment claims like these require an evidentiary record developed at a

suppression hearing. Without a fully developed record, an appellate court simply

lacks the information necessary to assess the merits of a defendant’s plain error

arguments.

      When a defendant does not move to suppress, moreover, the State does not get

the opportunity to develop a record pertaining to the defendant’s Fourth Amendment

claims. Developing a record is one of the main purposes of a suppression hearing. At

a suppression hearing, both the defendant and the State can proffer testimony and

any other admissible evidence that they deem relevant to the trial court’s suppression

determination. In this case, though, the trial court did not conduct a suppression

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hearing because defendant never moved to suppress evidence of the cocaine. And

because no suppression hearing took place, we do not know whether the State would

have produced additional evidence at a suppression hearing, or, if the State had done

so, what that evidence would have been. Cf. Cardinale v. Louisiana, 394 U.S. 437,

439, 89 S. Ct. 1161, 1163 (1969) (“Questions not raised below are those on which the

record is very likely to be inadequate, since it certainly was not compiled with those

questions in mind.”). To allow plain error review in a case like this one, therefore,

“would ‘penalize the [g]overnment for failing to introduce evidence on probable cause

for arrest [or other matters bearing on the Fourth Amendment claim] when

defendant’s failure to raise an objection before or during trial seemed to make such a

showing unnecessary.’ ” 6 Wayne R. LaFave, Search and Seizure § 11.7(e), at 584

(5th ed. 2012) (alteration in original) (quoting United States v. Meadows, 523 F.2d

365, 368 (5th Cir. 1975), cert. denied, 424 U.S. 970, 96 S. Ct. 1469 (1976)).

      The Court of Appeals’ decision in this case illustrates the problem with

conducting plain error review on an incomplete record.           Relying primarily on

Rodriguez v. United States, 575 U.S. ___, 135 S. Ct. 1609 (2015), the Court of Appeals

held that Officer Harris unconstitutionally prolonged the traffic stop in question

beyond the time needed to complete the stop’s mission. See Miller, ___ N.C. App. at

___, 795 S.E.2d at 377-79. The Court of Appeals reviewed Officer Harris’ body camera

footage and then determined that Officer Harris did not have reasonable suspicion to

extend the stop when he asked defendant and Sutton to get out of Sutton’s car. See

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id. at ___, 795 S.E.2d at 378. To have reasonable suspicion, “an officer . . . must

‘reasonably . . . conclude in light of his experience that criminal activity may be

afoot,’ ” State v. Bullock, 370 N.C. 256, 258, 805 S.E.2d 671, 674 (2017) (ellipsis in

original) (quoting Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884 (1968)), based on

“specific and articulable facts” and “rational inferences from those facts,” id. (quoting

Terry, 392 U.S. at 21, 88 S. Ct. at 1880). But Officer Harris never testified at a

suppression hearing in this case. As a result, he never gave testimony for the purpose

of establishing that, among other things, he had reasonable suspicion to extend the

stop. He may have observed something during the traffic stop that was not captured

in his body camera footage and that he did not testify about during the guilt/innocence

phase of the trial. If he had testified, his testimony may have provided a basis—

assuming for the sake of argument that he did not have one otherwise—for

constitutionally extending the traffic stop.       We just do not know, because no

suppression hearing occurred.

      If the Court of Appeals or this Court were to conduct plain error review of a

suppression issue on an undeveloped record when resolution of that issue required a

developed record, moreover, a defendant could unfairly use plain error review to his

tactical advantage. For instance, a defendant might determine that his chances of

winning a motion to suppress before or at trial are minimal because he thinks that,

once all of the facts come out, he will likely lose. But if we were to allow plain error

review when no motion to suppress is filed and hence no record is created, that same

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defendant might wait to raise a Fourth Amendment issue until appeal and take

advantage of the undeveloped record—a record in which some or all of the important

facts may never have been adduced—to claim plain error.          Cf. United States v.

Chavez–Valencia, 116 F.3d 127, 132 (5th Cir.) (“If, at trial, the government assumes

that a defendant will not seek to suppress certain evidence, the government may

justifiably conclude that it need not introduce the quality or quantity of evidence

needed otherwise to prevail.”), cert. denied, 522 U.S. 926, 118 S. Ct. 325 (1997).

      And the State would not have a good way of defending against this tactic. On

the one hand, the State could try to present evidence at trial in an attempt to prove

the legality of a search or seizure even when the defendant did not move to suppress

evidence derived from the search or seizure.         But if the evidence pertinent to

suppression were not relevant to the question of the defendant’s guilt, then the State

could be thwarted by rules that prohibit the admission of evidence not relevant to

issues at trial. See, e.g., N.C. R. Evid. 402. And even if the State were permitted to

introduce the full range of evidence that pertained to suppression, it would have to

expend prosecutorial resources presenting evidence not directly relevant to a

defendant’s guilt—evidence that supported only the legality of a search or seizure

that the defendant may or may not later challenge on appeal. On the other hand, if

the State chose not to present evidence supporting an unchallenged search or seizure,

it could risk reversal on an undeveloped record under the plain error standard. Cf.

Wainwright v. Sykes, 433 U.S. 72, 86-91, 97 S. Ct. 2497, 2506-09 (1977) (using a

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similar rationale to explain why the lack of a contemporaneous objection required

under state law creates a procedural bar to federal habeas review). If a defendant

must move to suppress to keep from forfeiting even plain error review, however, the

incentive for a defendant to underhandedly put the State in this position disappears.

      Defendant fails to distinguish between cases like his, on the one hand, and

cases in which a defendant has moved to suppress and both sides have fully litigated

the suppression issue at the trial court stage, on the other. When a case falls into the

latter category but the suppression issue is not preserved for some other reason, our

appellate courts may still conduct plain error review. For example, in State v. Grice,

the defendant moved to suppress evidence of marijuana plants, and the trial court

held a suppression hearing on whether the plants had been obtained through an

illegal search or seizure. See 367 N.C. at 754-55, 764, 767 S.E.2d at 314-315, 320.

We conducted plain error review, rather than harmless error review, only because

the defendant did not renew his objection to the introduction of the evidence at trial.

Id. at 755, 764, 767 S.E.2d at 315, 320.

      Similarly, in State v. Bullock, the defendant moved to suppress evidence of

heroin found in the car that he was driving, and his Fourth Amendment claim was

fully litigated at the trial court stage. See 370 N.C. at 256-57, 805 S.E.2d at 673. So

there was a complete record on the suppression issue for our appellate courts to

review. See id. at 258-61, 805 S.E.2d at 674-76. We thus reviewed video footage from

the dash cam of the officer who had stopped the defendant, along with suppression

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hearing testimony from that same officer, to determine whether the trial court’s

findings of fact were supported by competent evidence. See id. at 260-61, 805 S.E.2d

at 675-76. In a few instances, we also used facts that we independently gleaned from

our review of that video footage in our legal analysis to clarify and supplement the

trial court’s findings of fact. See id. at 261-63, 805 S.E.2d at 676-77. In other words,

we used video footage for limited purposes after a suppression hearing had occurred

and a full evidentiary record had been compiled. That is very different from using

video footage to substitute for a suppression hearing and an evidentiary record, and

making determinations about witness credibility in the process, which is what the

Court of Appeals did here.

      In sum, because defendant did not file a motion to suppress evidence of the

cocaine in question, he deprived our appellate courts of the record needed to conduct

plain error review. By doing so, he completely waived appellate review of his Fourth

Amendment claims. Because we hold that the Court of Appeals should not have

conducted plain error review in the first place, we do not need to address (and, based

on our analysis, it would not be possible for us to address) the other issue before us—

namely, whether the Court of Appeals reached the right conclusion in its plain error

analysis. We therefore reverse the decision of the Court of Appeals and remand this

case to the Court of Appeals for consideration of defendant’s ineffective assistance of

counsel claim.

      REVERSED AND REMANDED.

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