‘The Law Is Applied the Same to All Citizens’: Republican N.C. Appeals Court Judges Use Concurring Opinions to Slam Defendant’s Racial Bias Claims

Two North Carolina Court of Appeals judges — both of whom are white and both of whom are Republicans — on Tuesday slammed a Black defendant’s use of a speech by the state’s former chief justice in an attempt to reverse a cocaine conviction after a legally deficient police search and a subsequent guilty plea. The appeals court judges handed the defendant a win on legal grounds alone and not because he raised issues concerning alleged disparate treatment against Black people by the state’s courts. They also used two sharply worded concurrences to chastise the state’s former chief justice, who is Black, for addressing racial issues in the courts during a speech last summer.

The Case

Kevin Lee Johnson pleaded guilty to “Felony Possession of Cocaine and to having attained Habitual-Felon Status,” the opinion states. The opinion explains that Chris Stone, a lieutenant with the Iredell County Sheriff’s Office, stopped defendant Johnson after the defendant drove away from a convenience store parking lot without fastening his seat belt. When Stone stopped Johnson, the lieutenant said he would let the defendant off the hook with a warning assuming nothing else was wrong. According to Stone, he asked Johnson to exit his vehicle and asked Johnson whether he consented to a search. (Johnson says Stone only asked to pat him down for weapons.) Johnson “raise[d] his hands above his waist.” Stone found “a plastic wrapper with some type of soft material inside, which [Lieutenant Stone] believed was possibly powder cocaine,” the opinion states. Stone told Johnson to call a narcotics supervisor about the possibility of becoming a snitch and avoiding charges. Johnson did not place the call. A grand jury subsequently indicted Johnson.

Johnson moved to suppress the discovery of the cocaine in his pocket. He alleged that Stone “did not have reasonable suspicion to stop Defendant for the seatbelt infraction.” Additionally, “even if the stop was lawful, Lieutenant Stone’s going through the Defendant’s pockets for a violation of a seatbelt was excessive, unconstitutional, and unlawful” (internal quotations omitted). More precisely, Johnson said he consented only “to be patted down for weapons” and “not for a search of his pockets.”

The trial court denied Johnson’s motion to suppress, and Johnson subsequently pleaded guilty. He then appealed on two issues: (1) whether he “preserved his argument his consent was involuntary on the basis Lieutenant Stone strayed from the traffic stop’s mission and measurably prolonged the stop,” and (2) if so, whether the trial court erred by refusing to suppress the cocaine as a matter of law because the “Defendant’s consent for the search was involuntary as a matter of law.”

The appeals court spent several pages hashing whether the defendant properly preserved and raised his appeals; ultimately, the court skirted the issue by raising a procedural rule which allowed it to examine the merits of the case even if they weren’t properly preserved.

The court cut to the merits after spending several more pages recapping North Carolina law (citations omitted):

Here, Lieutenant Stone did not articulate any reasonable suspicion of other criminal activity to support his asking for Defendant’s consent to search. In fact, Lieutenant Stone stated he routinely asked for consent to a full search during traffic stops and taught other law enforcement officers to do the same. Thus, the pertinent inquiry is whether Lieutenant Stone’s asking Defendant for consent to search and the subsequent search measurably extended the stop’s duration rendering any consent Defendant gave involuntary as a matter of law. This inquiry, in turn, depends on whether the search deviated from the traffic stop’s mission. Certainly, a full search of Defendant’s person for any illegal contraband was not related to the traffic stop based on a seatbelt infraction. However, officer safety is a part of every traffic stop’s mission.

An officer is permitted to detain and individual when the officer has a reasonable suspicion criminal activity is afoot and may conduct an external frisk of the detained person if the officer has reason to believe the detainee is armed and potentially dangerous. Thus, it may have been reasonable for Lieutenant Stone to conduct an external frisk of Defendant for officer safety as a part of the traffic stop’s mission. Moreover, this traffic stop’s mission could have included a check for outstanding warrants and of Defendant’s license and registration. However, the length and scope of a full search, before any of those permissible checks were completed, measurably — and impermissibly — extended the traffic stop in this case.

The search lasted “approximately twenty-six seconds . . . from the time Defendant appears to raise his arms and complies with the search and when Lieutenant Stone finished reaching into all Defendant’s pockets,” the opinion continues. “Moreover, the video reflects Lieutenant Stone never conducted an external frisk and possibly missed locations where Defendant could have concealed weapons instead focusing on the content of Defendant’s pockets.”

Writing for the unanimous panel, Judge Toby Hampson said a pat-down for officer safety should have lasted just a few seconds, not nearly 30 seconds. He rationed that Stone neither identified nor articulated the reasonable suspicion necessary to request the search of the defendant in the first place.

The court spent several more pages unpacking specific North Carolina cases while rubbishing the state’s attempt to argue that interaction between Stone and the defendant added up to a constitutionally permissible consent search. In conclusion:

Here, the request to search and the full search of Defendant in this case was not related to the mission of the stop and wholly unsupported by any reasonable, articulable suspicion of other criminal activity afoot beyond the seatbelt infraction for which Lieutenant Stone initially stopped Defendant. Thus, because Lieutenant Stone’s request for consent and his subsequent search of Defendant measurably prolonged the traffic stop for reasons unrelated to the stop’s mission without reasonable suspicion, any consent Defendant gave for this full search was involuntary as a matter of law. Therefore, the trial court erred in denying Defendant’s Motion to Suppress the cocaine found as a result of this unreasonable search. Consequently, we reverse the trial court’s denial of Defendant’s Motion to Suppress. Moreover, we vacate the Judgment entered against Defendant based on his guilty pleas—entered subject to this appeal—to the charges of Felony Possession of Cocaine and the concomitant charge of attaining Habitual-Felon Status. We remand this matter to the trial court for further proceedings, including a determination of whether there is evidence to support the charges against Defendant or if these matters should be dismissed.

Concurring Opinions

Judges Jeffery Carpenter and Jefferson G. Griffin issued separate concurring opinions. Carpenter said there was “no indication in the record in this case that racially disparate treatment was at issue” and that he believed such arguments were wholly unnecessary:

Choosing to inject arguments of disparate treatment due to race into matters before the Court where such treatment is not at issue and does not further the goal of the equal application of the law to everyone. Rather, such a discussion functions to overshadow the other important constitutional issues of this case, and is not helpful to maintaining public confidence in the judiciary or the practice of law generally.

Griffin added separately the following more pointed analysis:

I write separately to indicate exactly where Lieutenant Stone violated the Fourth Amendment to the U.S. Constitution. The Defendant’s brief also raises a question of impartiality in traffic stops, and our justice system generally, based on the color of a person’s skin and their gender. This appeal to an emotion, and to nothing before us in the Record, must be addressed, as the law applies equally to everyone. This case presents a very specific set of facts to guide our analysis. The stop of Defendant’s vehicle was supported by reasonable suspicion. “[R]easonable suspicion is the necessary standard for traffic stops[.]” State v. Styles, 362 N.C. 412, 415, 665 S.E.2d 438, 440 (2008) (citation omitted). Lieutenant Stone plainly articulated that he observed Defendant driving the vehicle without wearing a seatbelt. Defendant does not challenge on appeal the validity of the initial traffic stop.

After articulating that Lt. Stone “did lawfully ask Defendant to get out of the vehicle for safety reasons” and why the law allowed him to do so for officer safety purposes, Griffin continued:

The issue in this case arises when Lieutenant Stone asks to search Defendant with no additional reasonable suspicion of other criminal activity. The only violation evident from the Record is the seatbelt violation. Here, Lieutenant Stone’s testimony was clear that his intent was to search Defendant. The evidence in the Record supports this. The video of the interaction between Lieutenant Stone and Defendant cuts against an assertion that the search was for officer safety. Further, the trial court made no findings regarding officer safety concerns. The search was administered only in the pockets of Defendant. There was no pat down frisk. Lieutenant Stone reached directly into Defendant’s pockets and did not search other areas of Defendant’s person where weapons could be hidden. The evidence here does not indicate that the search was motivated by a concern for officer safety. Lieutenant Stone even stated that he asked to search “every single person that I stop” and that for years he had been training new deputies to “ask to search” people that they stop. An officer can certainly ask for consent to search an individual after a lawful detention. However, under this specific set of facts, this search prolonged the mission of the stop in violation of the Fourth Amendment. (Citations omitted.) Lieutenant Stone articulated no additional reasonable suspicion of criminal activity for asking to search Defendant, thereby illegally delaying the stop.

Judge Griffin disagreed with the suggestion by Lt. Stone that the defendant had consented to a search.

“If Lieutenant Stone had reasonable articulable suspicion of other criminal activity or had received valid consent for an additional search, the additional search would not have violated the Fourth Amendment by extending the encounter,” Griffin wrote.

Despite granting a win to the defendant, he also slammed the tactics used during the appeal.

“Defendant’s brief implies that U.S. citizens are treated differently under our laws based on the color of their skin. I reject this argument,” Griffin wrote. “The law is color blind and applies equally to every citizen in the United States of America. This argument in Defendant’s brief is inflammatory and unnecessary.”

Griffin then recounted that Johnson’s brief quoted former North Carolina Supreme Court Chief Justice Cheri Beasley. During a June 2, 2020 speech, Beasley, who is Black, issued statements that Griffin interpreted as having suggested “that our justice system does not treat people equally in the courtroom based on the color of their skin.” From Beasley’s speech:

As the mother of twin sons who are young black men, I know that the calls for change absolutely must be heeded. And while we rely on our political leaders to institute those necessary changes, we must also acknowledge the distinct role that our courts play. As Chief Justice, it is my responsibility to take ownership of the way our courts administer justice, and acknowledge that we must do better, we must be better.

[ . . . ]

In our courts, African-Americans are more harshly treated, more severely punished and more likely to be presumed guilty. There are many ways to create change in the world, but one thing is apparent: the young people who are protesting everyday have made clear that they do not intend to live in a world in which they are denied justice and equality like the generations before them.

We must develop a plan for accountability in our courts. Judges work hard and are committed to serving the public. But even the best judges must be trained to recognize our own biases. We have to be experts not just in the law, but in equity, equity that recognizes the difficult truths about our shared past. We must openly acknowledge the disparities that exist and are too often perpetuated by our justice system.

The full text of the speech is available online.

Griffin said the former chief justice’s words were illustrative of a “problem with the judiciary”:

This statement from the former Chief Justice has motivated Defendant in this case to assert that “[o]ur Constitution gives this Court the legal authority to carry out our Chief Justice’s pledge.” Defendant’s statement highlights the problem with the judiciary becoming involved in public policy. The speech by the former Chief Justice states our justice system does not treat people equally based on the color of their skin. It also encourages and charges the courts to become an active body by involving our judicial branch in policy decisions. The judiciary should at all times practice judicial restraint. Here, this Court reaches the correct legal outcome regardless of the color of Defendant.

We are fortunate to live in the United States of America where the law is applied the same to all citizens.

North Carolina Court of Appeals judges are currently elected in partisan elections. Carpenter and Griffin are Republicans; Hampson is a Democrat. Carpenter told Ballotpedia in 2020 that he is a former state trooper.

Read the full published opinion below:

[images via portraits maintained by the N.C. Court of Appeals]

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