Judges toss Charlotte drug case after ‘flagrantly unconstitutional’ police traffic search
James Duncan got pulled over in 2017 for what the Charlotte-Mecklenburg police officer at the scene described as a busted brake light.
By the time the episode at McDowell and 7th ended, Duncan had been frisked, tasered and booked on felony drug charges for which he was later convicted.
Now, the state’s second highest court has slammed the brakes on the Charlotte man’s case — along with the police officer’s roadside pat-down that led to Duncan’s arrest.
In a ruling this week, a divided three-judge panel of the N.C. Court of Appeals threw out Duncan’s 2019 conviction and ordered a new trial, finding that the 32-year-old had been the victim of a “flagrantly unconstitutional” search after a traffic stop by Charlotte-Mecklenburg police Officer Andrew Isaacs.
The 27-page opinion by appeals court Judge Toby Hampson casts light on one of the lowest common denominators in police departments’ troubled relationship with black communities: the traffic stop.
Police say the stops not only make the roads safer but also help them better serve high-crime areas by knowing who’s coming in and out of the neighborhoods.
Yet, years of data from Charlotte and cities across the country consistently show that black men are far more likely to be searched by police during traffic stops than their white counterparts. When CMPD is making the stop, they are also twice as likely to be arrested.
In its landmark 1967 decision in “Terry vs. Ohio,” the U.S. Supreme Court ruled that police frisks are allowed under the Fourth Amendment’s ban on unreasonable search and seizures only if an officer has a reasonable belief that a person “may be armed and presently dangerous,” or has committed or is about to commit a crime.
Under that guidance, Hampson wrote, Isaacs lacked the probable cause to search Duncan in the first place.
Duncan, who, according to the court filing, had previous convictions for resisting arrest and “multiple” drug-related offenses, already was familiar with the Terry case.
After Isaacs started searching him, Duncan resisted, saying: “Come on, man. This is not a Terry frisk, man. You’re illegally searching me, man,” Hampson’s opinion says.
“Instead of taking the opportunity — indeed at (Duncan’s) invitation — to de-escalate the situation, Isaacs proceeded with the flagrantly unconstitutional search,” Hampson wrote.
Assistant appellate public defender Michele Goldman, who argued Duncan’s case before the appeals court, said the ruling restores some legal balance to police searches during traffic stops, which she says have evolved into “invasive and humiliating experiences” for a disproportionate number of minority drivers.
In too many cases, she says, blanket concerns about officer safety take precedence over individuals’ constitutional rights.
“The exciting thing to me is that the court really took seriously Terry vs. Ohio, which requires a reasonable suspicion that someone is armed and dangerous before you frisk them,” she told the Observer.
“That’s something that has been diluted over the years. ... For the courts to give back some teeth to that idea is important.”
Since the three-judge panel was split — Judge John Tyson, a Republican, dissented, arguing in part that the presence of a pocket knife in the car’s console indicated that Duncan was “armed and dangerous,” thus justifying the search — the state can appeal the ruling to the state Supreme Court.
A spokeswoman for Attorney General Josh Stein, whose office handled the appeal, said Wednesday that the office is “reviewing the decision.”
Asked whether the Mecklenburg County District Attorney’s Office would retry Duncan, a spokeswoman said prosecutors cannot comment about a pending case.
Pulled over
Nationally, 20 million traffic stops occur each year. UNC Chapel Hill political scientist Frank Baumgartner, who has studied traffic stop data for years, says 86 percent of Americans say their last interaction with a cop occurred on a roadside.
Yet as common as the experience is, there is a racial dividing line: Black drivers or their vehicles are more likely to be searched when pulled over.
Racial disparity in Charlotte traffic stops grows, study finds
The personal side of traffic stops
Since January 2019, CMPD has made more than 127,000 vehicle stops, according to police data. Black people, who make up 31 percent of the driving age population in the county, accounted for nearly 58 percent of the stops. Of the vehicles searched, 80 percent belonged to African Americans. Black drivers were also more than twice as likely to be arrested during a traffic stop.
Duncan, who is African American, was pulled over by Isaacs on the afternoon of March 19, 2017. Another officer, identified in court documents as Eric Kelly, parked his car behind Isaacs and also approached Duncan’s car.
Once there, according to the court opinion, police told Duncan his brake light wasn’t working and that his passenger at the time wasn’t wearing a seat belt. Police also say they spotted a 5-inch pocket knife, which was closed and resting in the center console.
Isaacs, who joined CMPD in 2014, told Duncan to get out of his car, and that he planned to retrieve the knife and also search Duncan for other weapons. The officer, according to the opinion, said he did not plan to search the car but was only “securing the knife for ‘our safety.’”
According to the court opinion, Duncan replied, “Okay, no problem at all.”
Duncan also said he was not carrying any weapons. Isaacs said he wanted to search him anyway.
“I don’t give you permission,” Duncan said.
When Isaacs said he intended to only pat him down, Duncan changed his mind and raised his arms.
The course of the incident turned after Isaacs patted down Duncan’s left coat pocket and felt a bulge the size of a “large grape,” which the officer believed was marijuana wrapped in cellophane, according to the opinion.
Isaacs lifted Duncan’s jacket while he held onto the item through the coat. According to the opinion, the officer then reached into Duncan’s pocket.
Duncan protested. Isaacs again tried to get his hand into the driver’s pocket, warning him, “You need to stop,” the opinion says.
Duncan pushed the officer’s hand away and told him to get his sergeant to the scene “because you’re doing some illegal s--- to me.”
When the officer kept trying to get into the pocket, Duncan said, “Come on, dude,” then ran.
Isaacs and Kelly gave chase. When Duncan fell and tried to get up, Kelly said he saw Duncan “digging in his waistband area” — which Isaacs had already frisked — and fired his taser. Duncan, unarmed, fell.
Isaacs, handgun drawn, handcuffed Duncan and resumed the search. He eventually found several grams of crack cocaine and less than a gram of powdered cocaine, along with a separate bag of crack and some cash in one of Duncan’s shoes.
Duncan was indicted on two felony cocaine charges.
Police did not cite him for the brake light or the seat belt violation.
In the courtroom
At trial, Assistant Mecklenburg Public Defender John Blanton told the court that the evidence police gathered was inadmissible since it had been obtained by an illegal search.
Superior Court Judge Jesse Caldwell agreed. To a point.
He said Isaacs lacked a “reasonable justification” for searching Duncan and that the pocket knife was insufficient proof of an existing threat.
But that all changed, Caldwell said, when Duncan fled the search, resisted arrest from a “lawful traffic stop,” which gave police a new probable cause to arrest and search him.
With the drugs and other evidence before it, Duncan’s jury convicted him of two felony counts of possession of cocaine. Caldwell handed down two suspended sentences.
Duncan appealed anyway.
As with Caldwell, the majority opinion from the three-judge appellate panel found that the police search was illegal. “Indeed, the two officers were investigating a broken taillight and a seat-belt violation with no suspicion of any other criminal activity afoot,” Hampson wrote.
Yet the Democratic judge, joined by Republican colleague Richard Dietz, took it further. Rather than holding Duncan accountable for running, they said he had a right under N.C. law “to prevent the unlawful restraint of his liberty.”
In a possible nod to the times, the court ruling chided both Duncan and Isaacs for a series of poor decisions “that could have resulted in disastrous consequences.”
“Defendant was tasered. It could have been far worse.”
“To be fair,” the opinion added, “it was defendant’s decision to transport illegal drugs that at a base level initiated these events.”
