Link to original WordPerfect file
Link to PDF file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. ROY PURNELL SHEARIN
Filed: 17 May 2005
1. Search and Seizure--car stop--frisk--protection of officer--totality of circumstances
Under the totality of the circumstances, it is reasonable for a police officer at a traffic stop
to suspect that a person is armed and dangerous when that person appears agitated, is reluctant to
answer when asked if he is armed, refuses to be searched, and flees rather than submit to a
search. The officer's search of defendant in this case was a reasonable means of protecting
himself, and defendant's motion to suppress the resulting evidence was correctly denied.
2. Search and Seizure--detention at traffic stop--protection of officer
It was reasonable for an officer to require a passenger to remain in a vehicle during a
lawful traffic stop where the totality of the evidence demonstrated that the officer was taking
precautions for his own safety. The trial court correctly denied defendant's motion to dismiss
evidence subsequently discovered.
3. Arrest--instructions--variance from indictment-- resisting arrest and resisting
search--no plain error
An instruction on resisting arrest was not plain error where the indictment was for
resisting an officer attempting a search. While defendant objected to the instruction at trial, he
did not present to the trial judge his argument that the instruction was inconsistent with the
indictment, and he did not specifically allege plain error in his assignments of error. Moreover,
the difference between the instruction and the indictment would not have changed the verdict.
4. Drugs--instructions--variance from indictment-purpose of drug paraphernalia-same
underlying theory of guilt
The theories of guilt underlying an indictment for possession of drug paraphernalia for
packaging controlled substances and an instruction for possession of drug paraphernalia for
possession of controlled substances are the same, and there was no plain error in the instruction.
5. Arrest--resisting--motion to dismiss--evidence sufficient
The evidence of resisting an officer was sufficient to survive defendant's motion to
dismiss, even though defendant argued that the officer acted unlawfully, where the officer
observed defendant passenger during a traffic stop, told him to remain within his vehicle, and
asked to search him when defendant answered a question about weapons reluctantly, and
defendant ran from the officer. The State is entitled to every reasonable inference on a motion to
dismiss, and the facts in this case support the inference that the officer was acting within his
official duties. It was also concluded elsewhere in this opinion that the officer's detention and
search of defendant did not violate the Fourth Amendment.
6. Sentencing--marijuana possession--erroneous class--consolidated with other offenses
A marijuana possession charge was remanded for resentencing where defendant was
sentenced for Class 1 possession even though the evidence supported only Class 3 possession.
Although the State argued that remand was unnecessary because the charge had beenconsolidated with others for sentencing and the result was consistent with the Structured
Sentencing Act, the Court of Appeals was not convinced that the sentencing was not affected by
the treatment of the marijuana possession charge.
Judge WYNN concurring.
Appeal by defendant from judgments entered 14 November 2003 by
Judge W. Russell Duke, Jr. in Superior Court, Halifax County.
Heard in the Court of Appeals 7 December 2004.
Attorney General Roy A. Cooper, by Special Deputy Attorney
General Gerald K. Robbins, for the State.
Russell J. Hollers, III for defendant.
Roy P. Shearin (defendant) was convicted of possession of
marijuana, possession of cocaine, possession of drug paraphernalia,
and resisting, obstructing, and delaying a public officer.
sentenced to ten to twelve months in prison plus 180 days.
Defendant assigns as error the trial court's denial of defendant's
motion to suppress, jury instructions on resisting arrest and
possession of drug paraphernalia, denial of defendant's motion to
dismiss, and entry of judgment as a Class 1 misdemeanor possession
of marijuana. We find no error at trial but remand for imposition
of judgment and sentencing as a Class 3 misdemeanor possession of
Defendant was a passenger in a vehicle that was stopped by a
sheriff's deputy on 3 September 2002 at approximately 10:45 p.m.
because the license plate light was not working. The deputy
smelled alcohol on the driver and began administering sobrietytests. Roanoke Rapids Police
Officer Norton was patrolling in the
area, saw the deputy's emergency lights, and drove up to assist the
deputy. The vehicle was stopped in an area that was lit only by a
single street light. Standing about twenty-five feet away from the
stopped vehicle, Officer Norton used a flashlight to observe
defendant, who remained in the passenger seat of the vehicle
Defendant asked Officer Norton if he could leave. Officer Norton
told defendant to stay in the vehicle for a few more minutes.
Defendant again asked Officer Norton whether he could leave, and
Officer Norton approached the vehicle. Officer Norton testified
that defendant "was very agitated and appeared intoxicated at the
time." Officer Norton smelled alcohol on defendant and saw a black
plastic bag at defendant's feet,
with what Officer Norton believed
to be a beer bottle, sticking out of the bag. Officer Norton asked
defendant what was in the bag, and defendant tried to push the bag
under the seat with his foot.
Officer Norton asked defendant to exit the vehicle. He then
asked defendant if he had any weapons. Defendant did not respond.
Officer Norton asked defendant three more times if defendant had
any weapons. Defendant finally responded that he did not. Officer
Norton testified that defendant was originally calm
asked to exit the vehicle, but again became agitated and boisterous
after being asked if he had any weapons. Defendant asked why he
was being held. Officer Norton told defendant to move his hands
away from his pockets so Officer Norton could frisk defendant.
Defendant refused, and "took off running." Officer Norton chased defendant into an enclosed parking lot.
He told defendant to come out of hiding. Defendant complied and
the officer ordered defendant onto the ground. Officer Norton
handcuffed and patted down defendant. Officer Norton found
marijuana, cocaine, scales for measuring drugs, and a pocket knife
The State's evidence showed that defendant appeared agitated
from the beginning of the stop. Defendant, however, asserts that
was fully compliant with the police
and was not "agitated
defendant realized that he was not free to leave.
 Defendant first assigns as error the trial court's denial
of defendant's motion to suppress.
Defendant asserts that his
Fourth Amendment right to be free from unreasonable searches and
seizures was violated. Defendant argues that the items found on
his person, namely marijuana, cocaine, and drug paraphernalia,
should have been suppressed as they were "fruits of the poisonous
The fundamental inquiry under the Fourth Amendment is whether
the governmental intrusion into a private individual's liberty and
property was reasonable. See Terry v. Ohio, 392 U.S. 1, 19, 20 L.
Ed. 2d 889, 904 (1968). It is well-established that a law
enforcement officer may temporarily detain a person for
investigative purposes without violating the Fourth Amendment. Id.
at 22, 20 L. Ed. 2d at 906-07. To make such a stop, an officer
must have a reasonable suspicion of criminal activity based onarticulable facts. Id. at 21, 20 L. Ed. 2d at 906. Similarly, an
officer may frisk a person where the officer reasonably suspects
that "criminal activity may be afoot and that the [person] with
whom he is dealing may be armed and presently dangerous[.]" Id. at
30, 20 L. Ed. 2d at 911. The scope of this search is protective in
nature and is limited to the person's outer clothing and to the
search for weapons that may be used against the officer. Id.
"Such a search is a reasonable search under the Fourth Amendment,
and any weapons seized may properly be introduced in evidence
against the person from whom they were taken." Terry, 392 U.S. at
31, 20 L. Ed. 2d at 911. Evidence of contraband, plainly felt
during a pat-down or frisk, may also be admissible, provided the
officer had probable cause to believe that the item was in fact
contraband. Minnesota v. Dickerson, 508 U.S. 366, 375-77, 124 L.
Ed. 2d 334, 346-47 (1993). When determining whether an officer had
"a reasonable suspicion to make an investigatory stop" or had
reason to believe that a defendant was armed and dangerous, trial
courts must consider the totality of the circumstances. State v.
Willis, 125 N.C. App. 537, 541, 481 S.E.2d 407, 410 (1997).
Defendant argues that he was subjected to a stop and a frisk
that exceeded the scope of what is permissible under Terry.
Specifically, defendant argues that he was illegally detained
because he repeatedly asked if he could leave and was told to
remain where he was. Defendant also argues that he was illegally
searched because Officer Norton did not have a reasonable
articulable suspicion that defendant was armed and dangerous. Defendant argues that while evidence suggested that defendant was
being obnoxious to Officer Norton, there was no evidence that
defendant was threatening Officer Norton, or otherwise indicating
that he would be violent. Defendant also points to Officer
Norton's testimony acknowledging that defendant was "calm when he
exited the vehicle" and that Officer Norton had not observed any
weapon or "any type of bulge" that might indicate that defendant
had a weapon. Defendant further contends that he had told Officer
Norton that he did not want to be searched and that he only ran
away "[w]hen it became obvious that [Officer Norton] was going to
go through with the illegal frisk[.]" Thus, defendant asserts that
because he was illegally detained and illegally searched, the trial
court erred in not granting his motion to suppress the items found
on his person as a result of the search and seizure. We disagree.
"Our review of a motion to suppress is limited to a
determination of whether the trial court's findings of fact are
supported by competent evidence, and whether those findings are in
turn supported by legally correct conclusions of law." Willis, 125
N.C. App. at 540, 481 S.E.2d at 410. In the present case, the
trial court found the following:
8. That the defendant became agitated when
Officer Norton told him that he needed to
remain in the car until Deputy Rooks completed
9. That Officer Norton observed a strong
odor of alcohol coming from the defendant who
appeared to be intoxicated.
10. That while speaking with the [d]efendant
Officer Norton noticed a beer bottle neck
sticking out of a black plastic bag in thefloorboard of the vehicle.
11. That when Officer Norton questioned the
defendant about the bag and its contents the
defendant attempted to push the bag under the
seat with his feet not responding to the
12. That Officer Norton asked the [d]efendant
to exit the vehicle so that he could secure
said bag [and] its contents as evidence.
13. That upon defendant exiting the vehicle
Officer Norton had to ask the defendant three
or four times if he had any weapons on him
before he answered no.
14. That the defendant was standing with his
hands at his pockets and would not move his
hands away from his pockets despite officer's
15. That during this time the defendant
became increasingly agitated.
16. That up to this point Officer Norton had
not touched the defendant.
17. That upon Officer Norton telling the
defendant he wanted to pat his pockets for
weapons in order to assure both his and Deputy
Rooks' safety the defendant refused and ran
from Officer Norton.
Despite defendant's contentions to the contrary, the State's
evidence competently supports these findings of fact which in turn
support the trial court's conclusions of law:
1. That looking at the totality of the
circumstances surrounding the search of the
defendant Officer Norton had reasonable
grounds to believe that criminal activity
might be afoot, justifying his temporary
detention of the defendant.
2. That during and after Officer Norton's
detention of the defendant his personal
observations confirmed his apprehension that
criminal activity might be afoot and indicated
that the defendant might have been armed.
3. That Officer Norton was entitled to frisk
defendant as a matter of self-protection.
4. That the defendant was searched only
after he had run from Officer Norton who had
informed the defendant that he was not free to
In looking at the totality of the circumstances, it is
reasonable for a police officer to suspect that someone is armed
and dangerous when that person appears agitated, is reluctant to
answer when asked whether he is armed, and not only refuses to be
searched for weapons, but also flees when he is about to be
searched. Officer Norton's search of defendant was thus reasonable
as a means of protecting himself from being assaulted by defendant.
 Similarly, Officer Norton's detention of defendant at the
scene was not unreasonable under the circumstances, and thus did
not violate defendant's Fourth Amendment rights. Defendant
concedes that Officer Norton's suspicions might have been raised
after the detention continued, but argues that the initial
detention, when Officer Norton told defendant to "stay seated for
a few minutes" after defendant asked if he could leave the scene,
was unlawful. Defendant argues that at the time Officer Norton
told defendant to remain in the car, Officer Norton "did not have
any suspicion that [defendant] had committed a crime[.]" However,
as defendant points out, the United States Supreme Court has held
that a police officer may order a passenger to exit a vehicle, as
a safety precaution, without any suspicion that the individual has
committed a crime. Maryland v. Wilson, 519 U.S. 408, 412-15, 137
L. Ed. 2d 41, 46-48 (1997). The same rationale may be applied whenan officer orders an individual to remain in a vehicle.
Inherent to assessing the reasonableness of a seizure is the
need to balance public safety and the safety of the officer with
the individual's right to be free from arbitrary governmental
interference. Pennsylvania v. Mimms, 434 U.S. 106, 109, 54 L. Ed.
2d 331, 336 (1977). The United States Supreme Court has held that
public safety and the safety of an officer justify directing a
driver or passenger to exit the vehicle during a traffic stop, and
that the intrusion to an individual's liberty in such circumstances
is minimal. See id. at 110-11, 54 L. Ed. 2d at 336-37 (holding
that asking the driver to step outside of the vehicle is a de
minimis intrusion to the driver's liberty, which is outweighed by
the concern for officer safety); Wilson, 519 U.S. at 413-15, 137 L.
Ed. 2d at 47-48 (extending the holding in Mimms to passengers as
well as drivers). The facts of the case before us differ from
Mimms and Wilson in that defendant was asked to remain in the
vehicle, rather than exit the vehicle. Though neither the United
States Supreme Court nor our Courts have specifically addressed
whether commanding a passenger to remain in the vehicle during a
traffic stop unreasonably intrudes on an individual's personal
liberty, other courts have considered this issue and two lines of
cases have developed. See People v. Forbes, 728 N.Y.S.2d 64, 66
(N.Y. App. Div. 2 Dept. 2001).
The first line of cases holds that requiring a passenger to
remain in the vehicle for the duration of a legal automobile stop
is a de minimis intrusion on that individual's personal liberty. See id.; People v. Gonzalez, 704 N.E.2d 375, 382-83 (Ill. 1998)
(stating that "it is reasonable for a police officer to immediately
instruct a passenger to remain at the car, when that passenger, of
his own volition, exits the lawfully stopped vehicle at the outset
of the stop"), cert. denied, 528 U.S. 825, 145 L. Ed. 2d 63 (1999);
State v. Webster, 824 P.2d 768, 770 (Ariz. App. 1991) (holding that
for safety purposes, a passenger may be ordered back into the
vehicle during a lawful traffic stop); see also Rogala v. District
of Columbia, 161 F.3d 44, 53 (D.C. Cir. 1998) (concluding "that it
was reasonable for [the officer] to order [the defendant] to stay
in the car in order to maintain control of the situation and that
[the officer] therefore did not violate [the defendant's] Fourth
Amendment rights"); United States v. Moorefield, 111 F.3d 10, 13
(3rd Cir. 1997) (holding that it is constitutional for police
officers to order a vehicle's occupants to remain in the vehicle
with their hands in the air during a traffic stop).
Another line of cases holds that the Fourth Amendment is
violated when a police officer detains a passenger in a vehicle
during a traffic stop, unless the officer has an independent
articulable suspicion that the passenger is dangerous or involved
in criminal activity. State v. Mendez, 970 P.2d 722, 728 (Wash.
1999) (holding that under the Washington Constitution, which
affords greater privacy rights than the Fourth Amendment of the
U.S. Constitution, a police officer must "articulate an objective
rationale predicated specifically on safety concerns . . . for
ordering a passenger to stay in the vehicle or to exit thevehicle"); Wilson v. State, 734 So.2d 1107, 1113 (Fla. App. 4 Dist.
1999), cert. denied, 529 U.S. 1124, 146 L. Ed. 2d 820 (2000)
(holding that an officer "should be able to identify objective
circumstances" to support ordering a passenger to return to or
remain in a vehicle during a traffic stop).
We recognize that, for reasons of public safety and personal
safety of an officer, a police officer needs to be able to keep
reasonable control over a situation. As the United States Supreme
Court acknowledged in both Mimms and Wilson, the potential for
danger to an officer during a traffic stop is high. Mimms, 434
U.S. at 109, 54 L. Ed. 2d at 336-37 (citing a study as indicating
that "approximately 30% of police shootings occurred when a police
officer approached a suspect seated in an automobile"); Wilson, 519
U.S. at 413, 137 L. Ed. 2d at 47 (citing a crime report from the
Federal Bureau of Investigation as saying that "[i]n 1994 alone,
there were 5,762 officer assaults and 11 officers killed during
traffic pursuits and stops").
In addition to this inherent risk of danger during a traffic
stop, the totality of the evidence in the present case was
sufficient to demonstrate that Officer Norton was taking
precautions for his own safety. The stop occurred at 10:45 p.m.
in a poorly lit area. The officer making the stop asked Officer
Norton to remain at the scene and to assist the officer by watching
defendant while the officer administered sobriety tests to the
driver. Officer Norton stood twenty-five feet away from the
vehicle where defendant was a passenger. Defendant appearedgenerally agitated to Officer Norton from the beginning. Under
these circumstances, it is reasonable for an officer to decide that
it is safer to have an occupant of a vehicle remain temporarily in
the vehicle for the short duration of a lawful traffic stop. To
the extent that the first line of cases discussed above holds that
such a detention is a minimal intrusion on an individual's rights
and does not violate the Fourth Amendment, we agree.
We thereby affirm the trial court's denial of defendant's
motion to suppress because competent evidence showed that the
search and temporary detention of defendant were consistent with a
Terry stop and frisk, and were reasonable under the circumstances.
See Terry, 392 U.S. 1, 20 L. Ed. 2d 889.
 Defendant next argues that the trial court erred in
instructing the jury on resisting arrest when the theory alleged in
the indictment was resisting while the police officer was
"attempting to search . . . defendant for officer safety after a
car stop." As defendant asserts, "where the indictment for a crime
alleges a theory of the crime, the State is held to proof of that
theory and the jury is only allowed to convict on that theory."
State v. Taylor, 304 N.C. 249, 275, 283 S.E.2d 761, 778 (1981),
cert. denied, 463 U.S. 1213, 77 L. Ed. 2d 1398 (1983). The grand
jury returned an indictment against defendant on 31 March 2003,
stating that defendant "unlawfully and willfully did resist, delay
and obstruct [a public officer], by running from the officer. At
the time, the officer was discharging and attempting to dischargea duty of his office, attempting to search . . . defendant for
officer safety after a car stop." The trial court instructed the
jury on the elements of resisting an officer and included as one of
the elements "that the [public officer] was attempting to make a
lawful arrest." Defendant asserts that this instruction was in
error because it did not comport with the evidence or the
Defendant further asserts that he objected to this instruction
at trial and that the issue is properly preserved. Defense counsel
did object but stated only: "in regard to the resisting arrest
charge and [the trial court's] description of this being a lawful
arrest, that pursuing a person after he was running was a lawful
arrest. We would make an objection to that." Defendant did not
present to the trial court his argument that the instruction was
inconsistent with the theories in the indictment. To preserve an
issue regarding jury instruction for appeal, a defendant must not
only object to the instruction "before the jury retires to consider
its verdict," but must also state "distinctly that to which he
objects and the grounds of his objection[.]" N.C.R. App. P.
10(b)(2). Defendant failed to distinctly state the grounds for his
objection that he now argues on appeal. Though an issue not
properly preserved at trial may be reviewed as plain error, N.C.R.
App. P. 10(c)(4), defendant did not specifically allege plain error
in his assignments of error and therefore waives his right to plain
error review. See State v. Matthews, 166 N.C. App. 281, ___, ___
S.E.2d ___, ___ (COA03-1354) (filed 7 September 2004) (quotingState v. Moore, 132 N.C. App. 197, 201, 511 S.E.2d 22, 25, disc.
review denied, 350 N.C. 103, 525 S.E.2d 469 (1999)).
We note, however, that even if defendant had properly asserted
plain error, there was no plain error in the challenged jury
instruction. It is well established that:
[t]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
"fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done," or "where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,"
or the error has "'resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial'" or where the error is such as to
"seriously affect the fairness, integrity or
public reputation of judicial proceedings" or
where it can be fairly said "the . . . mistake
had a probable impact on the jury's finding
that the defendant was guilty."
State v. Cummings, 352 N.C. 600, 616, 536 S.E.2d 36, 49 (2000)
(citations omitted), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641
(2001). To prevail on a plain error claim, a "defendant must
establish not only that the trial court committed error, but that
'absent the error, the jury probably would have reached a different
result.'" State v. Sierra, 335 N.C. 753, 761 (1994), cert. denied,
544 S.E.2d 242 (2000) (quoting State v. Jordan, 333 N.C. 431, 440,
426 S.E.2d 692, 697, 440 S.E.2d 791, 796 (1993)). In reviewing the
entire record, we fail to see how an instruction that included as
an element that the officer was "attempting to search
. . . defendant for officer safety after a car stop," rather than
"attempting to make a lawful arrest" would change the jury'sverdict.
Defendant similarly asserts that the trial court erred in
its jury instruction on possessing drug paraphernalia, because the
jury instruction was inconsistent with the theory alleged in the
Defendant failed to object at trial and therefore did
not properly preserve this issue. Defendant assigned as plain
error the trial court's instruction on possessing drug
paraphernalia, but he failed to argue plain error in his brief.
Pursuant to N.C.R. App. P. 28(b)(6), this assignment of error is
We note nonetheless that there is no plain error in this
instruction to the jury. The indictment stated that defendant
"unlawfully, willfully did knowingly possess with intent to use
drug paraphernalia, SCALES FOR PACKAGING A CONTROLLED SUBSTANCE,
which it would be unlawful to possess[.]" The trial court
instructed the jury: "that the defendant did [knowingly possess
drug paraphernalia] with the intent to use said drug paraphernalia
in order to possess a controlled substance which would be unlawful
to possess." The subsequent mandate charged the jury to return a
guilty verdict if they found beyond a reasonable doubt that
"defendant unlawfully and knowingly possessed with intent to use
certain drug paraphernalia in order to unlawfully use marijuana or
cocaine, both being controlled substances which would be unlawful
to possess." The only substantial difference in the language of
the indictment and the jury instruction is the description of thedrug paraphernalia: "scales for packaging a controlled substance."
The underlying theory being presented to the jury is the same
theory that supported the indictment for possession of drug
paraphernalia. Contrary to what defendant appears to argue,
"packaging" as used in the indictment is not a different theory of
guilt. Even if defendant had properly argued plain error, there
was no plain error.
 Defendant further argues that the
trial court erred in
denying defendant's motion to dismiss the charge of resisting an
A defendant's motion to dismiss should be denied when
"there is substantial evidence (1) of each essential element of the
offense charged, or of a lesser offense included therein, and (2)
of defendant's being the perpetrator of such offense." State v.
Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). Substantial
evidence is such "relevant evidence that a reasonable mind might
accept as adequate to support a conclusion." State v. Fletcher,
301 N.C. 709, 712, 272 S.E.2d 859, 861 (1981). In ruling on a
defendant's motion to dismiss, the trial court must consider the
evidence in the light most favorable to the State, and the State is
entitled to every reasonable inference that can be drawn from the
evidence. Powell, 299 N.C. at 99, 261 S.E.2d at 117. The elements
of resisting an officer are that a person "willfully and unlawfully
resist[ed], delay[ed] or obstruct[ed] a public officer in
discharging or attempting to discharge a duty of his office." N.C.
Gen. Stat. § 14-223 (2003). In the present case, defendant asserts that the State did not
present substantial evidence of these essential elements.
Specifically, defendant contends that since Officer Norton's
detention and attempted search of defendant were unlawful, Officer
Norton was "not discharging a duty of his office when [defendant]
ran away." We disagree. Even without concluding, as we did above,
that Officer Norton's detention and search of defendant were
reasonable under the circumstances and did not violate the Fourth
Amendment, in considering the motion to dismiss, the State was
entitled to every reasonable inference that could be drawn from the
facts. Certainly, the facts of this case, when viewed in the light
most favorable to the State, support the inference that Officer
Norton was discharging official duties by observing defendant,
telling defendant to remain in the vehicle, and asking to search
defendant after defendant reluctantly answered that defendant did
not have any weapons. This evidence was sufficiently substantial
to survive defendant's motion to dismiss.
Defendant argues that the trial court erred in entering
judgment on the crime of Class 1 misdemeanor possession of
Defendant asserts, and the State concedes, that the
evidence did not support this judgment. A Class 1 misdemeanor for
possessing marijuana arises when an individual possesses more than
one-half ounce but less than one and one-half ounces of marijuana.
N.C. Gen. Stat. § 90-95(d)(4) (2003). Possession of less than one-
half ounce of marijuana constitutes a Class 3 misdemeanor. Id
. The evidence presented at trial only supported a judgment for a
Class 3 misdemeanor, and the trial court erred in entering judgment
for a Class 1 misdemeanor.
While the State agrees that the evidence only supported a
Class 3 misdemeanor for the possession of marijuana conviction, the
State argues it was a clerical error and that "remand for
imposition of judgment is unnecessary." The State argues that the
trial court did not err in imposing the sentence because it had
consolidated for sentencing the convictions of possession of
marijuana and possession of drug paraphernalia, and possession of
drug paraphernalia is a Class 1 misdemeanor. See
N.C. Gen. Stat.
§ 90-113.22 (2003). As the State asserts, under our Structured
when separate offenses of different class
levels are consolidated for judgment, the
trial judge is required to enter judgment
containing a sentence for the conviction at
the highest class. Accordingly, the trial
judge is limited to the statutory sentencing
guidelines, set out at N.C.G.S. § 1340.17(c),
for the class level of the most serious
offense, rather than any of the lesser
offenses in that same consolidated judgment.
State v. Tucker
, 357 N.C. 633, 637, 588 S.E.2d 853, 855 (2003).
The State contends that since possession of drug paraphernalia is
a Class 1 misdemeanor, when the trial court consolidated this
conviction with the Class 3 misdemeanor possession of marijuana
charge, the trial court had a duty to sentence defendant within the
range established by our Structured Sentencing Act for a Class 1
misdemeanor. Defendant has a prior record level of III, for which,
pursuant to N.C. Gen. Stat. § 15A-1340.23(c), the appropriatesentencing range is 1-120 days. The trial court sentenced
defendant to 120 days, and thus the State contends that the trial
court did not err because the sentence imposed was consistent with
the Structured Sentencing Act. However, we are not convinced that
the sentencing was unaffected by the trial court's treatment of
defendant's possession of marijuana as a Class 1 misdemeanor, as
opposed to a Class 3 misdemeanor. We remand for imposition of
judgment and sentencing on the Class 3 misdemeanor conviction of
possession of less than one-half ounce of marijuana.
No error at trial; vacated and remanded for imposition of
judgment and sentencing.
Judge TYSON concurs.
Judges WYNN concurs in the result with a separate opinion.
WYNN, Judge concurring.
While I concur in the majority's result, I disagree with the
majority opinion to the extent that it holds that commanding a
passenger in a vehicle subject to a stop to remain in the vehicle
is per se permissible. In my opinion, allowing police officers
arbitrarily to detain passengers in vehicles stopped for traffic
violations without any reason to believe the passenger poses a
threat to safety or is involved in criminal activity violates the
constitutionally guaranteed privacy rights of our citizens.
The majority posits a dichotomy between two lines of cases,
one holding that requiring a passenger to remain in a vehicleduring a legal automobile stop is a de minimis
intrusion on that
individual's personal liberty and thus per se
other holding that a passenger's constitutional rights are violated
when an officer detains a passenger in a vehicle during a traffic
stop without articulable suspicion that the passenger is dangerous
or engaged in criminal activity.
The cases cited by the majority for the proposition that
detaining a passenger in a vehicle during a traffic stop is per se
constitutional do not provide a strong foundation for the majority
opinion to the extent that it deems such detentions
a matter of course.
In the first case cited by the majority, People v. Gonzalez
184 Ill.2d 402, 418, 704 N.E.2d 375, 382-83 (1998), cert. denied
528 U.S. 825, 145 L. Ed. 2d 63 (1999), superseded on other grounds
People v. Sorenson
, 752 N.E.2d 1078 (2001), the majority of the
Illinois Supreme Court held that
because the public interest in officer safety
outweighs the potential intrusion to the
passenger's liberty interests, it is
reasonable for a police officer to immediately
instruct a passenger to remain at the car,
when that passenger, of his own volition,
exits the lawfully stopped vehicle at the
outset of the stop. We find that because the
. . . risk of harm to officers . . . is
present where a passenger unexpectedly exits a
lawfully stopped vehicle, the officer's need
to exercise 'unquestioned command of the
situation' is likewise present. See Wilson
519 U.S. at 414, 137 L. Ed. 2d at 48, 117 S.
Ct. at 886, quoting Michigan v. Summers
U.S. 692, 702-03, 69 L. Ed. 2d 340, 350, 101
S. Ct. 2587, 2594 (1981).
Notably, however, three of the seven Illinois Supreme Courtjustices joined in a blistering dissent stating, inter alia
The fundamental purpose of the fourth
amendment is to safeguard the privacy and
security of individuals against arbitrary
invasions by government officials.
heart of the protections afforded by the
fourth amendment is the requirement of
individualized suspicion. Even in cases where
obtaining a warrant based on probable cause is
impractical, the police must have knowledge of
sufficient facts to create a reasonable
suspicion that the person in question has
committed, or is about to commit, a crime.
showing of individualized suspicion is
constitutionally required except in the rare
case where the privacy interest implicated by
the search or seizure is minimal and an
important government interest furthered by the
intrusion would be placed in jeopardy by a
requirement of individualized suspicion.
majority's abandonment of the individualized
suspicion standard in this case is wholly
The majority gratuitously asserts that the
intrusion on the passenger's liberty is
minimal because the car in which the passenger
is traveling has already been stopped. In so
ruling, however, the majority trivializes the
liberty interest at stake in this case. The
only encounter many citizens of this state
will ever have with the police will be a
routine traffic stop. Allowing police
officers to arbitrarily detain passengers in
vehicles stopped for traffic violations
without any reason to believe the passenger
has committed a crime or threatens the safety
of the police officer ensures that this
encounter will be annoying, frightening, and
perhaps a humiliating experience. The
thousands upon thousands of petty indignities
legitimized by the majority opinion will have
a substantial impact on the liberty and
freedom of the citizens of this state.
* * *
The right to be free from unreasonable
searches and seizures is one of our most
precious constitutional rights. The exercise
of this right does not depend on the grace oflaw enforcement officials. This opinion
trashes the protections of the fourth
* * *
The majority fails to articulate any reason
why a police officer would be safer if a
passenger in a vehicle stopped for a traffic
violation is detained at the scene rather than
allowed to walk away. A police officer must
have a reasonable suspicion that a passenger
in a vehicle stopped for a traffic violation
has committed or is about to commit a crime.
This standard is more than sufficient to
protect officer safety. It does no disservice
to police officers to insist upon exercise of
* * *
Those who cherish their right to be free from
arbitrary invasions of privacy can only hope
that a more enlightened court in a future case
will restore our citizens' constitutional
rights which this court has today taken away.
Id. at 425-28, 704 N.E.2d at 385-87 (quotations and citations
omitted) (Heiple, J., Harrison, J., and Nickels, J., dissenting).
Moreover, the Gonzalez majority, to support its holding, noted
a trend of decisions reaching similar results and cited several
cases with similar holdings. The very first case cited is State v.
Mendez, 88 Wash. App. 785, 947 P.2d 256 (1997), a case overturned
by the Washington Supreme Court in 1999 on the grounds that [a]n
officer must . . . be able to articulate an objective rationale
predicated specifically on safety concerns, for officers, vehicle
occupants, or other citizens, for ordering a passenger to stay in
the vehicle . . .. This articulated objective rationale prevents
groundless police intrusions on passenger privacy. State v.
Mendez, 137 Wash. 2d 208, 220, 970 P.2d 722, 728 (1999). Mendeztherefore ultimately evidences, if anything, a trend in the
direction directly opposed to that taken by the majority in
The majority here next cites State v. Webster, 170 Ariz. 372,
374, 824 P.2d 768, 770 (1991), wherein the majority in that case,
engaging in only brief analysis, held that:
If a passenger can be ordered out of a vehicle
for the officer's safety, he can also be
ordered back inside the vehicle for safety
purposes. In fact, it may be even less of a
privacy intrusion to order him back inside the
car which is where he was prior to the stop.
We cannot allow the officer's safety to depend
on how fast the driver and passenger can get
out of the vehicle after it has been stopped.
Ordering the occupants back into the vehicle
does no more than establish the status quo at
the time of the stop. To hold otherwise could
well lead to the unnecessary death of an
officer, gunned down by those walking away who
suddenly turn and fire or who circle behind
the officer, either assaulting or killing him
while he is talking to the driver.
Notably, however, as in Gonzalez, the Webster majority of two was
countered by a dissent, authored by the chief judge of the Court of
Appeals of Arizona, Division Two, and stating:
Implicit in the court's ruling is the
proposition that in every case in which police
may stop a person, even for something as minor
as driving with a broken taillight, they may
seize anyone with the person stopped. Of
course, any time a car is stopped everyone
within it is stopped. It does not seem to me
to follow, though, that those incidentally
stopped are powerless to leave if they wish to
and instead must remain involuntarily under
police control until the police decide
otherwise. Their detention is not supported
by reasonable suspicion. The detention, if
justified by considerations of officer safety,
has to be premised on the notion that any stop
creates a significant risk that thoseassociated with the person stopped will
attempt to harm the officer. That may be true
when the reason for the stop is serious
criminal activity. It cannot, it seems to me,
be seriously argued that because danger exists
sometimes, it must be assumed always to exist
so as to justify the seizure of everyone
present when anyone is stopped for whatever
reason. No argument is made, specific to the
facts of this case, that the officer felt the
seizure was necessary for his safety. He
testified otherwise. Instead it is justified
on the broad rule that routine seizures may
occur for officer safety regardless of the
facts of the case. That rule, permitting
wholesale seizures without individual
justification, conflicts with the fourth
Id. at 374-75, 824 P.2d at 770-71 (footnote omitted) (Livermore,
In the third case cited by the majority here, Rogala v. D.C.,
161 F.3d 44, 53 (D.C. Cir. 1998), the officer who ordered a
passenger to remain in a vehicle during a traffic stop did so
explicitly on the grounds that she was blocking traffic and
interfering with the field sobriety test that [the officer] was
conducting . . .. The court therefore conclude[d] that in the
circumstances presented, it follows . . . that a police officer has
the power to reasonably control the situation by requiring a
passenger to remain in a vehicle during a traffic stop,
particularly where, as here, the officer is alone and feels
threatened. Id. Rogala does not stand for the proposition that
requiring a passenger in a car subject to a traffic stop to remain
in the vehicle is per se permissible. Indeed, in a case the
majority cites for its second line of cases, Wilson v. Florida, 734
So. 2d 1107, 1112-13, disc. review denied, 749 So. 2d 504 (1999),cert. denied, 529 U.S. 1124, 146 L. Ed. 2d 820 (2000), the Court of
Appeal of Florida, Fourth District, explicitly included Rogala as
a case meeting the criteria of the second line of cases, which
requires objective circumstances supporting the reasonableness of
ordering a passenger to remain in a vehicle. Rogala therefore is
misplaced in the majority's first line of cases.
In the final case cited by the majority, U.S. v. Moorefield,
111 F.3d 10, 13 (3rd Cir. 1997), the United States Court of Appeals
for the Third Circuit, in a brief opinion, held that:
In view of the Supreme Court's ruling in
Wilson, we have no hesitancy in holding that
the officers lawfully ordered Moorefield to
remain in the car with his hands in the air.
We follow the Court's analysis in Wilson. The
only change in Moorefield's circumstances
resulting from the order to remain in the car
and put his hands in the air, was that he
remained inside of the stopped car with his
hands in view, rather than inside of the
stopped car with his hands lowered into a
passenger compartment that could potentially
contain a concealed weapon. Just as the Court
in Wilson found ordering a passenger out of
the car to be a minimal intrusion on personal
liberty, we find the imposition of having to
remain in the car with raised hands equally
minimal. We conclude that the benefit of
added officer protection far outweighs this
Notably, however, our own Fourth Circuit has emphasized the
incompatibility of bright-line tests, such as that established in
Moorefield, with the Fourth Amendment. See, e.g., Alvarez v.
Montgomery County, 147 F.3d 354, 358 (4th Cir. 1998) (The textual
touchstone of the Fourth Amendment is reasonableness. When
applying this basic principle, the Supreme Court has consistently
eschewed bright-line rules, instead emphasizing the fact-specificnature of the reasonableness inquiry. (internal quotations
In sum, the majority opinion's first line of cases does not
provide a strong foundation on which to hold that North Carolinians
who happen to be passengers in vehicles stopped by law enforcement
may lawfully be detained as a matter of course.
The majority here states that the second line of cases it
cites holds that the Fourth Amendment is violated when a police
officer detains a passenger in a vehicle during a traffic stop,
unless the officer has an independent articulable suspicion that
the passenger is dangerous or involved in criminal activity. I
believe this overstates the holdings of the cases cited.
(See footnote 1)
In the first case cited by the majority, Mendez
, 137 Wash. 2d
at 220, 970 P.2d at 728, the Washington State Supreme Court does
not hold that an officer must have an independent articuable
suspicion that the passenger is dangerous or involved in criminal
activity but that the officer must . . . be able to articulate an
objective rationale predicated specifically on safety concerns, for
officers, vehicle occupants, or other citizens, for ordering a
passenger to stay in the vehicle . . .. Indeed, the Mendez
made clear that the Terry
standard of reasonable suspicion is not
To satisfy this objective rationale, we do not
mean that an officer must meet Terry's
standard of reasonable suspicion of criminal
activity. Terry must be met if the purpose of
the officer's interaction with the passenger
is investigatory. For purposes of controlling
the scene of the traffic stop and to preserve
safety there, we apply the standard of an
objective rationale. Factors warranting an
officer's direction to a passenger at a
traffic stop may include the following: the
number of officers, the number of vehicle
occupants, the behavior of the occupants, the
time of day, the location of the stop, traffic
at the scene, affected citizens, or officer
knowledge of the occupants.
Id. at 220-21, 970 P.2d at 728.
In Wilson, 734 So. 2d at 1113, the second case cited by the
majority, the court held that:
a police officer conducting a lawful traffic
stop may not, as a matter of course, order a
passenger who has left the stopped vehicle to
return to and remain in the vehicle until
completion of the stop. The officer must have
an articulable founded suspicion of criminal
activity or a reasonable belief that the
passenger poses a threat to the safety of the
officer, himself, or others before ordering
the passenger to return to and remain in the
The Wilson court made clear that suspicion of criminal activity was
one ground for ordering a passenger to remain in a vehicle.
However it also made clear, not least by endorsing Rogala,
discussed above, that, for example, a passenger's posing a traffic
hazard constitutes an objective ground for detaining the passenger
in the vehicle. This holding cannot be equated with the Terry stop
reasonable suspicion of criminal activity standard the majority
here implies Wilson and Mendez require.
Moreover, the two cited cases are not alone in holding that
officers may not, as a matter of course, order passengers in carslawfully stopped to remain in the vehicles. See, e.g., Castle v.
State, 999 P.2d 169 (Alaska Ct. App. 2000) (reversing the
defendant's conviction of misconduct involving controlled
substances and suppressing cocaine evidence where the defendant was
a passenger in a stopped vehicle and was seized without
justification); Dennis v. State, 345 Md. 649, 693 A.2d 1150 (1997)
(reversing the defendant's disorderly conduct conviction where
there was no basis for detaining a passenger who ignored an
officer's command to remain in the vehicle), cert. denied, 522 U.S.
928, 139 L. Ed. 2d 255 (1997).
In the case sub judice
, the majority's endorsement of the
first line of cases renders anyone who simply happens to be a
passenger in a car stopped by law enforcement for any reason
powerless to leave the vehicle until law enforcement, at its
discretion, decides otherwise. This holding does not comport with
the Fourth Amendment or United States Supreme Court case law, which
dictate that some objective reason and the availability of judicial
review are required for a seizure to be lawful:
The scheme of the Fourth Amendment becomes
meaningful only when it is assured that at
some point the conduct of those charged with
enforcing the laws can be subjected to the
more detached, neutral scrutiny of a judge who
must evaluate the reasonableness of a
particular search or seizure in light of the
particular circumstances. And in making that
assessment it is imperative that the facts be
judged against an objective standard: would
the facts available to the officer at the
moment of the seizure or the search warrant a
man of reasonable caution in the belief that
the action taken was appropriate? Cf. Carrollv. United States, 267 US 132, 69 L Ed 543, 45
S Ct 280, 39 ALR 790 (1925); Beck v. Ohio, 379
US 89, 96-97, 13 L Ed 2d 142, 147, 148, 85 S
Ct 223, 229 (1964). Anything less would
invite intrusions upon constitutionally
guaranteed rights based on nothing more
substantial than inarticulate hunches, a
result this Court has consistently refused to
sanction. See, e. g., Beck v. Ohio, supra;
Rios v. United States, 364 US 253, 4 L Ed 2d
1688, 80 S Ct 1431 (1960); Henry v. United
States, 361 US 98, 4 L Ed 2d 134, 80 S Ct 168
Terry v. Ohio
, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889,
Moreover, the United States Supreme Court has
instructed us that the application of privacy rights to our
citizens under the Fourth Amendment is not a matter that this
country leaves to the unfettered discretion of law enforcement:
And simple 'good faith on the part of the
arresting officer is not enough.' . . . If
subjective good faith alone were the test, the
protections of the Fourth Amendment would
evaporate, and the people would be 'secure in
their persons, houses, papers, and effects,'
only in the discretion of the police. Beck
v. Ohio, supra, at 97, 13 L Ed 2d at 148.
Further, while it is true that when a vehicle is stopped,
passengers are by definition also stopped, it does not flow from
that that the detention of passengers in the vehicle potentially
for the duration of the traffic stop is a minimal intrusion. In
Maryland v. Wilson
, 519 U.S. 408, 414, 137 L. Ed. 2d 41, 47 (1997),
the United States Supreme Court held that ordering a passenger in
a stopped vehicle to step out of the vehicle was a de minimis
intrusion because the passenger was already stopped and thus [t]he
only change in [the passenger's] circumstances which will resultfrom ordering [him/her] out of the car is that [he/she] will be
outside of, rather than inside of, the stopped car. Here, in
contrast, law enforcement is being empowered to dictate, at its
discretion, not only the location of the passenger but also the
detention and length of detention of the passenger.
I agree with the majority that officer safety must be
prioritized where safety concerns exist. In this case, such
concerns did exist: The traffic stop occurred relatively late at
night, in a poorly lit area, and Defendant appeared agitated from
the beginning. I agree with the majority that, under these
circumstances, it was reasonable for the officer to decide that it
was safer to have Defendant remain in the vehicle for the duration
of the traffic stop.
However, the existence of threats to officer safety in some
cases, as in this one, does not warrant issuing to law enforcement
a carte blanche for seizing anyone present when any vehicle is
stopped for any reason.
Requiring law enforcement to be able to
articulate some objective rationale predicated on safety concerns
for officers, vehicle occupants, or others to justify ordering a
passenger to remain in a vehicle during a traffic stop erects a
relatively low hurdle.
(See footnote 2)
Once law enforcement meets this hurdle, I
agree that the intrusion on passenger privacy is de minimis
balanced against safety concerns. And where the hurdle is not met,
it protects North Carolinians from groundless seizures.
I also note that both opinions cited for the second line of
cases are straight concurrences.
Clearly, if law enforcement has reasonable suspicion that
the passenger is engaged in criminal activity, an investigatory
detention is constitutional.
*** Converted from WordPerfect ***