             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA17-108

                             Filed: 7 November 2017

Guilford County, No. 14 CRS 67272

STATE OF NORTH CAROLINA

            v.

BYRON JEROME PARKER


      Appeal by defendant from order entered 18 July 2016 by Judge Susan E. Bray

in Guilford County Superior Court. Heard in the Court of Appeals 22 August 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Joseph L.
      Hyde, for the State.

      Appellate Defender Glenn Gerding, by Assistant Appellate Defender Michele A.
      Goldman, for defendant-appellant.


      BRYANT, Judge.


      Where the trial court’s findings of fact do not support its conclusion that

defendant was legally seized at the time he consented to a search of his person, we

reverse the trial court order denying defendant’s motion to suppress the contraband

found on his person and remand so that the judgment against him can be vacated.

      On 21 April 2014, defendant Byron Jerome Parker was indicted for possession

of cocaine. On 29 June 2016, defendant moved to suppress any evidence obtained as

a result of an unlawful search and seizure. The matter came on for a hearing on 7
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                                 Opinion of the Court



July 2016 in Guilford County Superior Court, the Honorable Susan Bray, Judge

presiding.

      The evidence admitted during the hearing tended to show that on 29 January

2014, Greensboro Police Department Officers Matthew Sletten and Travis Cole were

conducting surveillance “on a known drug house” located at 7 Pipers Glen Court in

Greensboro based on complaints of drug activity, drug use, and prostitution. In the

previous month, heroin had been found at the house and four individuals were

arrested. At approximately 4:25 p.m., the officers noted a man, defendant, leave the

residence in a blue truck and then return twenty minutes later. Defendant parked

his truck in the driveway of 7 Pipers Glen Court, exited his vehicle, and walked

toward a woman salting the driveway of a nearby residence. Officer Sletten observed

defendant and the woman yelling at each other, with defendant asking, “Why are you

taking pictures of me?” Believing that the confrontation was going to escalate into a

physical altercation, the officers exited their surveillance vehicle and separated

defendant and the woman.      Officer Sletten spoke with defendant, asked for his

identification, and checked his record, verifying that defendant had no pending

warrants. Officer Sletten then asked defendant if he had any narcotics on him.

Defendant responded that he did not.        At Officer Sletten’s request, defendant

consented to a search of his person and his vehicle. Pursuant to the search, Officer




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Sletten discovered “small off-white rocks” in defendant’s pants pocket. He arrested

defendant for possession of cocaine.

      At the hearing on the motion to suppress, Officer Sletten testified that after

defendant provided his driver’s license and it was determined he had no outstanding

warrants, Officer Sletten continued to talk with defendant but did not immediately

return his driver’s license. Prior to the discovery of the off-white rocks, defendant

was not under arrest. A video of the incident taken from the vantage of Officer Cole’s

body camera was also admitted into evidence. Officer Sletten testified that from the

moment he exited his vehicle and searched defendant, ten minutes transpired. At

the close of the evidence, defendant again moved to suppress evidence obtained as a

result of the search. Defendant argued that he was seized and unlawfully detained

when Officer Sletten requested defendant’s identification and did not return it, but

instead asked for consent to search. After hearing the evidence and the arguments

of counsel, the trial court orally denied defendant’s motion to suppress and on 18 July

entered a written order to that effect.

      Preserving his right to appeal the order denying his motion to suppress,

defendant entered a guilty plea to the charge of felony possession of cocaine.

Defendant was sentenced to an active term of 8 to 19 months. The sentence was

suspended, and defendant was placed on supervised probation for a term of 18

months. Defendant appeals the order denying his motion to suppress.



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                  ______________________________________________

      On appeal, defendant argues that the trial court erred by denying his motion

to suppress. Defendant contends that his stop was unconstitutional and that in its

order denying his motion to suppress, the trial court committed reversible error by

making unsupported findings of fact and conclusions of law. We agree.

                     In reviewing the denial of a motion to suppress our
             Court

                     is strictly limited to a determination of
                     whether the court’s findings are supported by
                     competent evidence, even if the evidence is
                     conflicting, and in turn, whether those
                     findings support the court’s conclusions of
                     law. If so, the trial court’s conclusions of law
                     are binding on appeal. If there is a conflict
                     between the State’s evidence and defendant's
                     evidence on material facts, it is the duty of the
                     trial court to resolve the conflict and such
                     resolution will not be disturbed on appeal.

             State v. Veazey, 201 N.C. App. 398, 400, 689 S.E.2d 530,
             532 (2009), disc. review denied, 363 N.C. 811, 692 S.E.2d
             876 (2010). The trial court’s conclusions of law must be
             legally correct, reflecting a correct application of applicable
             legal principles to the facts found. We review the trial
             court’s conclusions of law de novo.

State v. Brown, 217 N.C. App. 566, 571, 720 S.E.2d 446, 450 (2011) (citations omitted).

      In its order denying defendant’s motion to suppress, the trial court made the

following findings of fact and conclusion of law:

             1.   On January 29, 2104 [sic], Greensboro Police Officers
                  ML Sletten and Travis Cole were conducting


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     surveillance of a known drug house at 7 Pipers Glen
     Court.
2.   There had been numerous complaints from a neighbor
     about drug use, drug activity and prostitution at 7
     Pipers Glen. The GPD had previously conducted a
     search of the property with consent of the owner and
     located heroin and [drug] paraphernalia. That search,
     about a month prior to the date in this case, resulted
     in 4 arrests.
3.   The neighbor who initiated the complaints had
     documented activity at 7 Pipers Glen by taking
     photographs of people coming and going from the
     residence, recording license tags, vehicle descriptions
     and the like.
4.   This neighbor had contacted Officer Sletten after the
     first search and let him know problems were ongoing,
     so Officers Sletten and [Cole] set up the surveillance
     in an undercover vehicle with tinted windows.
5.   Officers Sletten and [Cole] began surveillance around
     noon, parking at the bottom of the cul de sac. Around
     4:25pm, Officer [Cole] observed Defendant Byron
     Jerome Parker leave the residence of 7 Pipers Glen in
     a blue pickup truck. He returned twenty minutes later
     at 4:45pm.
6.   When Defendant Parker returned to the residence, he
     backed his truck into the driveway. He got out and
     approached the complaining neighbor, who was
     salting the driveway at her own house.
7.   Officers Sletten and Cole saw [defendant] Parker
     throw his arms up and yell at the neighbor.
8.   Officer Sletten rolled the window down in his car and
     heard Defendant Parker ask neighbor why she was
     taking pictures of him. . . .
9.   As Officer Sletten observed Defendant Parker and the
     neighbor continue to approach each other, he and
     Officer Cole decided to break their surveillance and
     deescalate the situation before it turned physical.
     Sletten was concerned the verbal altercation would
     turn into a physical fight. [Defendant] Parker and the
     neighbor were within 6–8 feet of each other.


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            10. Officers Sletten and Cole exited their unmarked
                vehicle. Both officers were in uniform. It was daylight
                outside. They approached [defendant] Parker and the
                neighbor, [sic] separated them. Officer Cole spoke
                with the neighbor, and Officer Sletten talked with
                Defendant Parker.
            11. Officer Sletten told [defendant] Parker that they had
                received drug complaints (verified in the past) and
                located narcotics at the 7 Pipers Glen address. Officer
                Sletten asked [defendant] Parker for his ID, ran it and
                checked for warrants.
            12. There were no outstanding warrants for Defendant
                Parker.
            13. Officer Sletten asked [defendant] Parker if he had any
                narcotics on him or in his vehicle and asked for
                consent to search both. [Defendant] Parker gave
                consent.
            14. Officer Sletten located small off-white rocks of what
                appeared to be cocaine in Parker’s pants pocket and
                arrested him for possession of cocaine.
            15. Officer Sletten kept [defendant] Parker’s ID from [the]
                time he asked for it until he arrested him for
                possession of cocaine.

            Officers Sletten and Cole were in the course of
            investigating and deescalating a potential altercation
            between Defendant Parker and the Pipers Glen neighbor.
            In viewing the totality of the circumstances, it was entirely
            appropriate for Officers Sletten and Cole to separate the
            two, check [defendant] Parker’s ID and ask for consent to
            search. . . .

            The Court concludes, then, as a matter of law, that there
            was no illegal seizure, no fruits of a poisonous tree, and
            that the Motion to Suppress should be denied.

      On appeal, defendant specifically challenges finding of fact 10 and the trial

court’s conclusory statement that “Officers Sletten and Cole were in the course of



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investigating and de-escalating a potential altercation between Defendant Parker

and the Pipers Glen neighbor.” Defendant contends that according to the video of the

incident, Officer Cole exited his police vehicle and spoke with the homeowner of 7

Pipers Glen Court—the residence under surveillance—and then assisted Officer

Sletten in searching defendant. Defendant further contends that the circumstance

which gave rise to the officers’ intervention—the altercation—quickly evaporated

when the officers intervened: defendant stopped arguing and became “very

compliant.” Therefore, it was only after the de-escalation of the conflict between

defendant and the neighbor that Officer Sletten obtained defendant’s identification,

determined that defendant had no outstanding warrants, and asked defendant for

consent to search. Defendant argues that “[Officer] Sletten did not have reasonable

suspicion to detain [defendant] at any point, but certainly not beyond the point where

concern regarding a potential altercation had evaporated[.] [Defendant]’s consent to

search was obtained during an unlawful seizure.”

      We note that Officer Sletten testified during the suppression hearing that “[w]e

intervened to prevent a fight. We approached the two, separated them. My partner

talked to the main complainant while I talked to [defendant].” Therefore, there is

evidence to support the trial court’s finding of fact number 10. See Brown, 217 N.C.

App. at 571, 720 S.E.2d at 450. Furthermore, even presuming defendant’s assertion

is true—that Officer Cole spoke to the homeowner of 7 Pipers Glen Court, the



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residence under surveillance, rather than the neighbor who was arguing with

defendant—the conflict is immaterial, as there is no dispute that Officer Sletten

separated defendant from the neighbor in order to de-escalate the argument. And

whether Officer Cole held a conversation with the neighbor is irrelevant to the

determination of whether defendant was seized illegally.

      Defendant’s main argument appears to be that when Officer Sletten failed to

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

initial reason for the detention was satisfied, he instead requested defendant’s

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

voluntarily given. We agree.

      “[A] municipal law enforcement officer acting within his territorial jurisdiction

is considered a peace officer who possesses ‘all of the powers invested in law

enforcement officers by statute or common law.’ ” State v. Gaines, 332 N.C. 461, 472,

421 S.E.2d 569, 574 (1992) (quoting N.C. Gen. Stat. § 160A–285 (1987)).

             Our United States Supreme Court has held that law
             enforcement officers do not violate the Fourth
             Amendment’s prohibition against unreasonable seizures
             merely by approaching individuals on the street or in other
             public places and putting questions to them if they are
             willing to listen. Even when police officers have no reason
             to suspect that a person is engaged in criminal behavior,
             they may “pose questions, ask for identification, and
             request consent to search . . . provided they do not induce
             cooperation by coercive means.”




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State v. Isenhour, 194 N.C. App. 539, 542, 670 S.E.2d 264, 267 (2008) (alteration in

original) (citations omitted) (quoting United States v. Drayton, 536 U.S. 194, 201, 153

L.Ed.2d 242, 251 (2002)). “Once the original purpose of the stop has been addressed,

there must be grounds which provide a reasonable and articulable suspicion in order

to justify further delay.” State v. Falana, 129 N.C. App. 813, 816, 501 S.E.2d 358,

360 (1998) (citing Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889 (1968)). “In determining

whether the further detention was reasonable, the court must consider the totality of

the circumstances.” State v. Hernandez, 170 N.C. App. 299, 308, 612 S.E.2d 420, 426

(2005) (citation omitted).

      In State v. Myles, a divided panel of this Court held that the defendant’s

consent to search his vehicle was given involuntarily where it was obtained during

an “improper” detention. 188 N.C. App. 42, 51, 654 S.E.2d 752, 758, aff'd per curiam,

362 N.C. 344, 661 S.E.2d 732 (2008). As a result, the trial court’s order denying the

defendant’s motion to suppress contraband discovered during the search was

reversed, and the defendant’s conviction vacated. Id. at 51–52, 654 S.E.2d at 758.

The matter evolved during a traffic stop by a law enforcement officer who observed a

vehicle weaving within its lane. Id. at 43, 654 S.E.2d at 753. At the beginning of the

stop, the law enforcement officer identified himself to the driver and passenger (the

defendant), identified the reason for the stop, asked for the driver’s identification and

vehicle registration, and learned that the vehicle was a rental. Id. The officer issued



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a warning but then asked the driver to step out of the vehicle and accompany the law

enforcement officer to his patrol vehicle, where the officer would write a warning

ticket. Id. Before they reached the officer’s patrol vehicle, the officer frisked the

driver but did not find any weapons or contraband. Id. The officer also did not detect

the odor of alcohol. Id. However, the driver’s heartbeat was unusually fast and he

began “sweating profusely,” despite the cool temperature. Id. at 43–44, 654 S.E.2d

at 753–54. Once in the patrol vehicle, the officer asked the driver about his travel

plans.    The officer then exited the vehicle in order to speak with the driver’s

passenger—the defendant—who was still seated in the rental car. Id. at 43, 654

S.E.2d at 754. After listening to the defendant answer similar questions about travel

plans, the officer stated that he was suspicious of their stories and called a K-9 unit

for assistance. Id. at 44, 654 S.E.2d at 754. The defendant, who had rented the

vehicle, gave the K-9 officers permission to search the vehicle; marijuana was

discovered in the trunk. Id. at 44, 654 S.E.2d at 754. The defendant was charged

with trafficking in marijuana. Id.

         In a pretrial motion, the defendant moved to suppress the evidence, but his

motion was denied. He then entered a guilty plea, preserving his right to appeal the

suppression order. On appeal, this Court noted that during the suppression hearing

the law enforcement officer testified that after issuing the warning ticket, he

“considered the traffic stop ‘completed’ because he had ‘completed all [of his]



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enforcement action of the traffic stop.’ ” Id. at 45, 654 S.E.2d at 755. However, the

driver “was not free to leave because [the officer] felt ‘there was more to the traffic

stop than just failure to maintain a lane.’ ” Id. at 46, 654 S.E.2d at 755. This Court

reasoned that “in order to justify [the law enforcement officer]’s further detention of

[the] defendant, [the officer] must have had [the] defendant’s consent or ‘grounds

which provide a reasonable and articulable suspicion in order to justify further delay’

before he questioned [the] defendant.” Id. at 45, 654 S.E.2d at 755 (citing Falana, 129

N.C. App. at 816, 501 S.E.2d at 360). Upon review, a majority of this Court held that

the record provided insufficient evidence to support a reasonable suspicion

warranting the defendant’s continued detention after the warning ticket was issued.

             In order for [the law enforcement officer] to lawfully detain
             [the] defendant, [the officer]’s suspicion must be based
             solely on information obtained during the lawful detention
             of [the driver] up to the point that the purpose of the stop
             has been fulfilled. . . . Since [the officer]’s continued
             detention of [the] defendant was unconstitutional, [the]
             defendant’s consent to the search of his car was
             involuntary.

Id. at 51, 654 S.E.2d at 758 (citing State v. McClendon, 350 N.C. 630, 636, 517 S.E.2d

128, 134 (1999); State v. Kincaid, 147 N.C. App. 94, 94, 555 S.E.2d 294, 294 (2001));

see also State v. Pearson, 348 N.C. 272, 498 S.E.2d 599 (1998) (holding the defendant’s

nervousness along with inconsistent statements made by the defendant and the

vehicle passenger did not give rise to a reasonable suspicion of criminal activity). This

Court reversed the trial court order denying the defendant’s motion to suppress


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contraband discovered during the search of his vehicle and vacated his conviction. Id.

at 51–52, 654 S.E.2d at 758.

      Although the instant case does not involve a traffic stop, the reasoning in Myles

and cases discussed herein are applicable where, as here, the initial reason for the

stop or detention has been satisfied but law enforcement prolongs the detention. In

Kincaid, this Court quoted United States v. Elliott, 107 F.3d 810 (10th Cir. 1997), for

the proposition “that . . . federal courts ‘have consistently concluded that an officer

must return a driver’s documentation before a detention can end.’ ” Kincaid, 147 N.C.

App. at 99, 555 S.E.2d at 298 (quoting Elliott, 107 F.3d at 814); see also State v.

Jackson, 199 N.C. App. 236, 243, 681 S.E.2d 492, 497 (2009) (“Generally, an initial

traffic stop concludes and the encounter becomes consensual only after an officer

returns the detainee's driver's license and registration.”). The Kincaid Court also

found guidance in State v. Morocco, 99 N.C. App. 421, 393 S.E.2d 545 (1990), in which

the encounter under review was deemed consensual where the law enforcement

officer completed the citation and relinquished the defendant’s license before

requesting permission to search. Kincaid, 147 N.C. App. at 99–100, 555 S.E.2d at

299 (discussing Morocco, 99 N.C. App. 421, 393 S.E.2d 545).

      Here, the trial court found that Officers Sletten and Cole exited their police

vehicle when they observed an escalating altercation between defendant and a

neighbor of the residence under surveillance. The officers separated the two. Officer



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Sletten asked defendant for his identification, “ran it[,] and checked for warrants.”

After de-escalating the potential altercation and finding no outstanding warrants,

Officer Sletten failed to return defendant’s identification before pursuing an inquiry

into defendant’s possession of narcotics. In its order, the trial court noted that, based

on the totality of the circumstances, it was “entirely appropriate for [the] officers [] to

separate the two, check [defendant’s] . . . ID and ask for consent to search,” and

concluded defendant’s seizure was thus not illegal.

        Interestingly, the trial court’s findings of fact make clear the officers were in

the vicinity due to complaints about a “drug house,” but the encounter between

defendant and law enforcement began distinctly as a result of a potential altercation

between defendant and a neighbor. The trial court’s order fails to provide findings of

fact which would give rise to a reasonable, articulable suspicion that defendant was

otherwise subject to detention. Absent a reasonable and articulable suspicion to

justify further delay,1 retaining defendant’s driver’s license beyond the point of

satisfying the purpose of the initial detention—de-escalating the conflict, checking

defendant’s identification, and verifying he had no outstanding warrants—was

unreasonable. See Falana, 129 N.C. App. at 816, 501 S.E.2d at 360 (“Once the

original purpose of the stop has been addressed, there must be grounds which provide


        1 The trial court noted in finding of fact 15 that Officer Sletten kept defendant’s identification
until after defendant was arrested. However, neither the officers nor the trial court indicated that
defendant’s mere presence—including his leaving and returning to the drug house—gave rise to a
reasonable and articulable suspicion to detain him further.

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a reasonable and articulable suspicion in order to justify further [detention].”). Thus,

defendant’s consent to search his person, given during the period of unreasonable

detention, was not voluntary. See Myles, 188 N.C. App. at 51, 654 S.E.2d at 758.

Therefore, defendant’s search was conducted in violation of his rights under the

Fourth Amendment to the United States Constitution. Accordingly, we reverse the

trial court’s order denying defendant’s motion to suppress and remand this matter so

that the judgment against him may be vacated.

      REVERSED AND REMANDED.

      Judges DAVIS and INMAN concur.




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