In State v. Jackson, No. COA23-637 (Oct. 1, 2024), the Court of Appeals considered whether an officer had reasonable suspicion to detain the defendant for trespassing. Mitchell County Sheriff’s deputies responded to a report that a suspicious vehicle had driven up an unpaved, privately-owned logging trail. “Lieutenant Beam, in his four-wheel-drive truck, drove up to the end of the trail, where he found Defendant, a female companion (“Passenger”), and Defendant’s Volkswagen Bug (the “Bug”) covered in mud and dirt.” Jackson, Slip Op. p. 2. The defendant eventually consented to a search of the car, during which officers found methamphetamine. The issue was whether the defendant was unlawfully seized when he gave consent. This post considers the opinion in Jackson.
Searches and Seizures
The Fourth Amendment to the United States Constitution guarantees the right of the people to be secure against unreasonable searches and seizures. U.S. Const. Amend. IV. Searches conducted by government officials without a warrant are presumptively unreasonable. State v. Terrell, 372 N.C. 657, 665 (2019). Under the automobile exception, law enforcement may search a vehicle without a warrant based on probable cause. State v. Julius, 385 N.C. 331, 339 (2023). Another exception exists when a suspect provides police with consent to search. State v. Stone, 362 N.C. 50, 53 (2007).
Evidence obtained by consent is admissible if it is determined that the consent was both voluntary and not an exploitation of any prior illegality. 4 Wayne R. Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(d) (6th ed. 2020). Though the tests are not identical, North Carolina courts have tended to elide the distinction. Hence, the Court of Appeals has found a defendant’s consent to search was “involuntary” because it was obtained during an illegal seizure. See State v. Parker, 256 N.C. App. 319, 325 (2017). Further, in the context of traffic stops, North Carolina courts have concluded that the stop is not terminated until the officer returns the driver’s license or other documents to the driver. State v. Henry, 237 N.C. App. 311, 324 (2014).
A traffic stop is a seizure under the Fourth Amendment, and police may not conduct such a seizure without at least reasonable suspicion that criminal activity is afoot. State v. Johnson, 378 N.C. 236, 244 (2021). Reasonable suspicion is a less demanding standard than probable cause, required for arrest. State v. Bullock, 370 N.C. 256, 258 (2017). Once police have lawfully stopped a car, they are permitted as a matter of course to order the driver and passenger out of the car. Id. at 261. In addition, police may move a suspect for a short distance if necessary for officer safety. 4 LaFave, Search and Seizure § 9.2(e) (6th ed. 2020). When, however, police transport a suspect over a greater distance they risk transforming the investigatory detention into a de facto arrest. Id.
Criminal Trespassing
A person commits first degree trespass if, without authorization, he or she enters or remains on or in: (1) the building of another, or (2) the premises of another so enclosed or secured as to demonstrate clearly an intent to keep out intruders. G.S. 14-159.12(a). A person commits second degree trespass if, without authorization, he or she enters or remains on: (1) the premises of another after notice not to enter, (2) on premises posted with notice not to enter, or (3) on the curtilage of a dwelling of another between midnight and 6:00 A.M. G.S. 14-159.13(a). Third degree trespass, an uncodified statutory offense, exists only in five enumerated counties, as noted here.
Thus, criminal trespassing generally requires objective notice that access is restricted. See Jackson, Slip Op. 13 (“some indication”). To be sure, the posting of the premises need not include signs saying, “No Trespassing.” In one case, the Court of Appeals held that a “Girl’s Locker Room” sign provided sufficient notice to the male juvenile that he was not authorized to enter. In re S.M.S., 196 N.C. App. 170, 173 (2009). Still, it is an affirmative defense that the person entered under a bona fide claim of right. State v. Baker, 231 N.C. 136, 139 (1949); State v. Mitchell, 234 N.C. App. 423, 430 (2014). To succeed, the defendant would have to show: (1) he believed he had a right to enter the property, and (2) he had reasonable grounds for such a belief. Baker, 231 N.C. at 139.
State v. Jackson
As stated above, Lieutenant Beam found the defendant, his passenger, and his car at the end of an unpaved logging trail. The defendant provided his driver’s license upon request and told the officer he did not know he was on private property. Jackson, Slip Op. 2. The defendant and his passenger would not be still, and their behavior made the officer nervous. Retaining their drivers’ licenses, Lieutenant Beam asked the defendant to drive his car back down the trail to meet another officer. At the bottom of the trail, the passenger was arrested on outstanding warrants. Lieutenant Beam asked the defendant if he had anything illegal in the car, and the defendant said, “you’re welcome to look.” During a search, Lieutenant Beam discovered methamphetamine. Jackson, Slip Op. 3.
The defendant was charged with possession of methamphetamine. The trial court denied his motion to suppress, and the defendant was convicted by a jury. On appeal, the defendant argued the trial court erred by denying his motion to suppress. In particular, he argued that his consent to search was “involuntary” because he was unlawfully seized when he gave it. Jackson, Slip Op. 9.
Upon review, the Court of Appeals found the defendant was seized once the officer had his driver’s license and that the seizure continued so long as the license was withheld, including when the defendant gave consent. Id., Slip Op. 14. Turning to whether the seizure was justified, the Court of Appeals concluded the officer had probable cause to investigate the alleged trespassing. Id., Slip Op. 15. The officer’s suspicion was not dispelled, it said, by the defendant’s interactions with the officer, nor did Lieutenant Beam unlawfully extend the stop by having the defendant drive his car to the bottom of the trial. Id. Slip Op. pp. 15-16. Hence, the defendant was not unlawfully seized when he gave consent to search, and thus his consent was not “involuntary.” Id. Slip Op. p. 16.
Conclusion
As Roscoe Pound observed, criminal law consists of prohibitions upon the individual and limitations upon the enforcement of those prohibitions, resulting in “a condition of internal opposition.” Roscoe Pound, Introduction to Lester Bernhardt Orfield, Criminal Appeals in America, 3, 10 (1939). That opposition is evident in Jackson. On the one hand, Lieutenant Beam legitimately responded to a citizen complaint of a suspicious vehicle on private property. On the other hand, it is not apparent the premises were posted or restricted so that the defendant would know not to enter. Would a reasonably prudent officer in those circumstances be justified in conducting a traffic stop?
Was a traffic stop conducted in Jackson? It is unclear from the opinion whether Lieutenant Beam, when he reached the top of the trail, found the defendant and his passenger inside a moving car. (Presumably only the Volkswagen was “covered in mud and dirt,” but the syntax is ambiguous. Jackson, Slip Op. 2) This matters because not every interaction between citizen and police constitutes a seizure. Indeed, even without reasonable suspicion, police may approach a person on the street and pose questions, ask for identification, and request consent to search – provided they do not induce cooperation by coercive means. United States v. Drayton, 536 U.S. 194, 201 (2002).
In any event, the Court of Appeals analyzed the encounter as though a seizure had occurred and that the seizure was not terminated so long as the offer retained the defendant’s driver’s license. More importantly, given a legitimate investigation into possible trespassing, the officer did not improperly extend the duration of the seizure by relocating the defendant to the bottom of the trail. Many North Carolina cases recognize that an officer may ask a driver to step out of the vehicle, but Jackson is unusual in countenancing so drastic a change of scene: a movable traffic stop.
“The time required to drive to the bottom of the trail was negligible,” the Court of Appeals said, and time devoted to officer safety is time that is reasonable required to complete the mission. Jackson, Slip Op. 16. Of course, not every officer will feel comfortable shifting the scene of a stop, but the isolated mountain road in Jackson — to say nothing of the second officer at the bottom of the hill — made it unlikely the suspect would flee. For prosecutors, Jackson adds to the list of negligibly burdensome precautions that an officer might take during a traffic stop without infringing upon a defendant’s rights. Prosecutors should beware, however, that movement over a greater distance might amount to an arrest, which would require probable cause.