A drug charge landed Perry Pitts in prison. Now, the 49-year-old who suffers from asthma and hypertension is terrified of contracting COVID-19 behind bars.

A drug sale three years ago sent a 49-year-old Winston-Salem man with hypertension and asthma to prison. Last month, he was transferred to Neuse Correctional Institution, a COVID-19 hotspot that could amount to a death sentence.

One night in April 2017, two Winston-Salem police officers were attempting to serve a warrant at the Piedmont Circle Apartments public housing community when they spotted Perry Pitts lean into the back window of a nearby car and touch hands with a passenger. Based on the encounter, one of the officers frisked Pitts, but didn’t find anything.

The officers ordered Pitts to sit on the curb while they investigated the odor of marijuana. According to court records, that’s when Pitts went down on one knee and began experiencing a seizure. An officer traveled with Pitts while he was being transported by EMS in an ambulance, according to an appellate court opinion, and searched his underwear, finding cocaine and marijuana. (The officer who observed Pitts touch hands with the passenger later testified that he didn’t see an exchange of items at the time.)

In October 2018, Pitts began serving a prison sentence for drug possession and habitual felon status.

Now 49 years old, Pitts suffers from asthma, hypertension, seizures and obesity.

Functionally illiterate, Pitts dropped out of middle school. A psychologist at Pender Correctional Institution in Burgaw wrote in a summary for the prison’s day program that she observed “a sharp drop in his intellectual and academic functioning scores that correlates with his report of being beaten in the head with a carjack in the 1990s.” Pitts also told the psychologist that on other occasions he had been assaulted by 12 people, hit by a car and beaten by police officers, resulting in additional head trauma.

The case notes by Pitts’ psychologist describe him as “developmentally delayed” with a mild “intellectual disability,” and show that he needed to be reminded to go to evening medications call after being confused by a correctional officer who incorrectly told him he didn’t need to take his medication. The psychologist said Pitts’ “difficulty with adherence to medication regimens” was not surprising “as it has been witnessed at this unit that he struggles to find his way around the camp.” Noting Pitts’ “difficulty relaying his day-to-day needs regarding services such as medical and mental health,” the psychologist also wrote that he was continually “at risk for exploitation by other offenders” who bullied him into buying items for them in the canteen.

On May 27, Pitts was transferred from Pender Correctional Institution to Neuse Correction Institution, a state prison in Goldsboro that has become the epicenter for COVID-19 in the state prison system, with three inmate deaths and 466 cases — more than half of all deaths and overall cases across the entire system.

Local and state officials have acknowledged the danger posed by COVID-19 to prison and jail populations, but as of June 8, only about 750 people — roughly 2 percent of the overall prison population — had been released, according to the ACLU of North Carolina.

“This is a crisis for him right now,” said Kellie Mannette, Pitts’ lawyer, who is filing a motion for appropriate relief in Forsyth County court in an attempt to secure his early release. “I believe there is a significant Eighth Amendment issue for cruel and unusual punishment because it’s a nonviolent crime. He’s served a significant amount of his sentence. He’s got an underlying medical condition such that if he catches COVID, it could be devastating. He could easily die as a result of this.”

‘Vulnerable to COVID-19’s threat of serious injury or death’

Local and state officials have acknowledged the danger posed by COVID-19 to prison and jail populations, but as of June 8, only about 750 people — roughly 2 percent of the overall prison population — had been released, according to the ACLU of North Carolina.

The ACLU and other groups sued in effort to force the state to protect prisoners, and on June 8 Superior Court Judge Vinston Rozier Jr. ordered the state to work with the plaintiffs to develop a plan for ensuring that prisoners across the state are safe. A plan was due on noon on Monday. The order also requires the state to submit a detailed description of conditions in all prisons, including the number of residents placed in each cell and spacing between bunks.

Judge Rozier’s decision found that the state has “failed to provide the sufficient COVID-19 testing to accompany the crowded and communal social distancing protocols,” and said that the state’s practice of transferring “incarcerated individuals between facilities” contradicts Centers for Disease Control guidelines. The plaintiffs have established a risk of irreparable harm, Judge Rozier said, “including the risk of COVID-19 rapidly spreading throughout the vulnerable prison population, along with the substantial risk of death and long-lasting health consequences stemming from the disease.

“Thousands of these individuals in defendants’ custody are elderly, have disabilities, or have underlying health conditions,” Rozier wrote, “making them particularly vulnerable to COVID-19’s threat of serious injury and death.”

The state Department of Public Safety announced plans on June 18 to test all 31,000 residents of the state prison system.

To protect residents and staff, the state Division of Adult Correction is allowing offenders who meet specific criteria to serve the remainder of their sentences “under the supervision of community corrections officers,” typically under house arrest or through electronic monitoring. The criteria includes offenders who are pregnant, along with offenders who are 65 or older and those of the ages 50-64 with underlying health conditions who have a 2020 or 2021 release date.

There’s little doubt that Perry Pitts’ asthma, hypertension, seizures and obesity qualify as underlying health conditions, but he’s scheduled for release in 2022 and he’s five months short of age 50.

The state Court of Appeals has upheld Pitts’ conviction, rejecting a challenge arguing that the officers detained him without reasonable suspicion. Mannette filed a petition to the state Supreme Court on June 3, asking the high court to review whether Pitts’ Fourth Amendment protection against unreasonable search was upheld. There’s no guarantee that the Supreme Court will agree to hear the case, and it could take months to file briefs, so Mannette also filed a motion for appropriate relief in Forsyth County court on June 11. The motion for appropriate relief allows for the court to consider facts outside of the trial record.

“We didn’t know about COVID at the time [Pitts] was convicted,” Mannette said. “I’m trying to be as expedient as possible. I noted we would waive a hearing. It is important to be as speedy as possible because every day in that prison is another day he could contract COVID.”

Forsyth County District Attorney Jim O’Neill, who is running for state attorney general, said in a statement to TCB that his office will respond to Pitts’ motion if a superior court judge asks them to do so.

O’Neill’s statement alluded to an initial charge against Pitts of possession with intent to sell or deliver marijuana within 1,000 feet of a park, which was dismissed. (It is unclear what park is referenced in the dismissed charge; there is a large swath of undeveloped land between Piedmont Circle Apartments and Smith Reynolds Airport that owned by the city of Winston-Salem, Forsyth County and Ogburn Investments, but there are no amenities like playground equipment there.) O’Neill’s statement also implies deception on Pitts’ part, saying he “feigned having a seizure” while being placed under arrest, but the trial court found that Pitts “appeared to have a seizure” and the validity of his medical issues is reflected in the fact that he was transported by EMS in an ambulance.

“Despite popular opinion, selling drugs, especially near a public park, is not a victimless crime,” O’Neill told TCB. “In fact, it drives so many other crimes and sadness in our community.

“Pitts has proven to be an incorrigible recidivist, time and time again,” he continued. “Repeated attempts to change his behavior have all failed. Pitts is behind bars for a reason.”

Jodi Harrison, the deputy general counsel for the state Department of Public Safety, told Mannette in a May 28 email that Pitts was transferred to Neuse Correctional Institute, the epicenter of the COVID-19 emergency in the state prison system “because he was promoted from Medium to Minimum I” custody, “and the facility he was previously housed in (Pender CI) is not a Minimum custody facility.”

“I understand there has been some resumption of transfers, but this is terrifying — Neuse has had the largest outbreak,” Mannette wrote to Harrison.

Harrison told Mannette she understood her concerns, adding, “I would respectfully point out that those concerns are likely to be widely shared by many offenders and, while understandable, the department is not in a position to permit COVID-19 concerns to prevent it from fully utilizing available space at operational facilities.”

‘The phrase ‘high-crime area’ has the effect of criminalizing race’

While the threat of COVID-19 is the driver behind Pitts’ motion for appropriate relief, the eruption of global protest in the wake of the police killing of George Floyd in Minneapolis is the backdrop for his petition for the state Supreme Court to review his case.

Pitts is asking the Supreme Court to consider whether the Court of Appeals erred when it found that there was reasonable suspicion to detain him.

The petition notes that Officer Dalton McGuire and Officer GS Amaya “self-initiated” a foot patrol at Piedmont Circle Apartments after unsuccessfully attempting to serve a warrant unrelated to Pitts.

In denying a motion to suppress, the trial court judge found that the officers had met the burden of reasonable, articulable suspicion for detaining Pitts after observing him touch hands with the passenger in the back of the car.

“It’s a salient fact that this is a high-crime area,” the judge said at the conclusion of the hearing. “It’s an open-air drug market. Piedmont Circle is known as that, 1 a.m. in the morning.”

Pitts’ petition argues that the behavior cited as suspicious “is entirely consistent with a normal, every-day social interaction. People commonly end social interactions with the same type of physical contact like a handshake or a ‘fist bump.’”

The petition goes on to say that Officer Amaya, the trial court and Court of Appeals’ continued characterization of the touching of hands as a “hand-to-hand transaction” “demonstrates how the location transforms innocent actions into suspicious ones. As the Court of Appeals noted, a ‘hand-to-hand transaction’ is the term used to describe buying drugs. In 2017, all over the country, people were touching hands. Yet it is Mr. Pitts for whom hand touching leaps to ‘hand-to-hand transaction,’ even by a court who explicitly recognized that the officer witnessed no exchanged of items.”

Citing a 2011 case, the petition notes that the Court of Appeals “held that allowing the investigatory stop in question ‘would render any person who is unfortunate enough to live in a high-crime area subject to an investigatory stop merely for the act of running.’ Finding reasonable suspicion here would subject residents of ‘high crime’ neighborhoods to investigatory stop merely for otherwise innocent behavior.”

Pitts’ petition also cites a 2004 critique published in the Mississippi Law Journal of the US Supreme Court’s decisive 1969 decision in Terry v. Ohio, which established a legal framework for law enforcement to justify stop-and-frisk practices.

“‘High crime area’ becomes a centerpiece of the Terry analysis, serving almost as a talismanic signal justifying investigative stops,” wrote Lewis R. Katz, a law professor at Case Western University. “Location in America, in this context, is a proxy for race or ethnicity. By sanctioning investigative stops on little more than the area in which the stop takes place, the phrase ‘high crime area’ has the effect of criminalizing race.”

In her petition for state Supreme Court review of Pitts’ case, Mannette wrote, “Policing of predominantly black communities has come under fire as footage [of] everyday interactions has enabled viewers to see how police treat citizens differently based on where they live or their race.”

In the wake of the massive protests in response to the killing of George Floyd, there has been widespread acknowledgement of systemic racism in the court system.

“The data overwhelmingly bears out the truth… [that] in our courts, African Americans are more harshly treated, more severely punished, and more likely to be presumed guilty,” Chief Justice Cheri Beasley said in a June 2 press conference.

Less than a year after Pitts’ arrest at Piedmont Circle Apartments, Officer Dalton McGuire — the officer who discovered 8 grams of cocaine in Pitts’ underwear while he was being transported by ambulance — conducted a traffic stop two miles away on Bowen Boulevard.

Officer McGuire made the stop after running a “DMV query” and finding that the owner of the vehicle had a suspended driver’s license, according to O’Neill. Almost immediately, a passenger in the backseat of the vehicle named Edward McCrae caught McGuire’s attention. McGuire thought McCrae was trying to conceal something and ordered him out of the car and lie on the ground. Police body-camera video records McGuire shouting at McCrae: “Gun. Gun…. Don’t reach for the gun.” Then McGuire fired four shots, killing McCrae, a 60-year-old Black man. A pistol was later recovered from a storm drain near McCrae’s body.

A review of the shooting by District Attorney Jim O’Neill found that McGuire “acted appropriately and lawfully.” The city of Winston-Salem later settled with McCrae’s family for $20,000 to resolve a wrongful death claim.