N.D.Tex.: Plea of guilty without plea agreement still waives 4A challenge

Defendant made a Fourth Amendment challenge then pled to the indictment without a plea agreement. He still waives his Fourth Amendment claim because he could have appealed. Dunbar v. United States, 2019 U.S. Dist. LEXIS 217464 (N.D. Tex. Nov. 14, 2019), adopted, 2019 U.S. Dist. LEXIS 216268 (N.D. Tex. Dec. 17, 2019).

Defendant was loudly and apparently obnoxiously talking on a cell phone in a convenience store, and the clerk was concerned that he was seriously annoying other customers. The officer, a Captain in plainclothes with a badge and gun on his ankle came in and saw it all. He called for backup. When backup arrived, he talked to defendant and told him to take the conversation elsewhere from the store. Defendant became nervous to the point his nervousness made the officer nervous. The officer was concerned defendant was armed. He asked for and received permission for a weapons patdown which resulted in the officer feeling an unmistakable group of packaged drugs in his pocket. That was plain feel. Defendant wasn’t seized by the request for consent. State v. Johnson, 2019 N.C. App. LEXIS 1017 (Dec. 17, 2019).*