In this Watauga County case, defendant appealed his conviction for possession of methamphetamine, arguing error in the denial of his motion to suppress the results of a search of his vehicle. The Court of Appeals affirmed the trial court’s denial.

In October of 2020, a Watauga County Sheriff’s Deputy saw defendant driving a black truck through an intersection in Boone. The deputy was familiar with defendant and knew defendant had outstanding warrants for possession of methamphetamine, so he initiated a traffic stop. A canine unit was called to the scene and conducted a walk-around of the vehicle; after the dog alerted, the deputies searched the vehicle and found a bag with methamphetamine and a substance that appeared to be marijuana. However, after defendant was arrested and indicted for possession of these substances, it was determined that the marijuana was actually hemp, and charges for possession of marijuana were dismissed.

The court summarized defendant’s issue on appeal as whether officers “need probable cause to use a drug-detection dog to sniff a vehicle for narcotics when the dog is unable to distinguish between contraband and noncontraband.” Slip Op. at 10. Defendant argued Fourth Amendment precedent holding the use of a drug-sniffing dog does not constitute a search must be reexamined now that a dog might alert to hemp, as the person may have a legitimate privacy interest in noncontraband. The court found that the privacy interest did not apply as the “drug-sniffing dog was trained and certified to alert on methamphetamine, and [d]efendant did not create a ‘legitimate privacy interest’ as to the methamphetamine simply by storing it in the same bag with the hemp,” and concluded “the Fourth Amendment does not protect against the discovery of contraband, detectable by the drug-sniffing dog, because [d]efendant decided to package noncontraband beside it.” Id. at 18. Applying the motor vehicle exception, the court found probable cause to search the vehicle based on the positive alert by the dog, and the deputies’ knowledge of defendant’s outstanding warrants and previous seizures from defendant of methamphetamine.  

In this Mecklenburg County case, defendant appealed denial of his motion to suppress, arguing that (1) police did not have reasonable suspicion to stop him, and (2) he did not consent to the search of his backpack. The Court of Appeals found reasonable suspicion supported the stop but that defendant did not consent to the search, and reversed the denial of defendant’s motion.

In January of 2020, defendant, a homeless man, was walking with a bicycle on a dirt path in Charlotte when two officers of the Charlotte-Mecklenburg Police Department approached him. The officers had previously received a tip that a person matching defendant’s description and riding a bike was carrying an illegal firearm. When the officers approached defendant, they gave conflicting reasons for the approach, with one officer referencing trespass and the other officer noting it was a street-level drug sales area. Defendant consented to a pat-down of his person and removed his backpack. At that point, one officer asked for permission to search the backpack; defendant initially consented to the search, but quickly told officers he did not want them to search the backpack. After an exchange with the officers where defendant told them he was cold and scared of the police, defendant eventually opened the backpack and allowed a search, resulting in the officers finding a stolen firearm. The officers arrested defendant, and in the search incident to arrest, discovered cocaine and marijuana in his pockets. At trial, defendant objected to admission of the results of the search, and the trial court denied the motion, finding that the initial contact was voluntary and defendant consented to the search of his backpack. Defendant entered an Alford plea and appealed. When defendant’s appeal was first taken up by the Court of Appeals, the court remanded for further findings of fact and conclusions of law regarding law enforcement’s belief that defendant was trespassing. The trial court entered an amended order denying the motion with new findings of fact and conclusions of law, which defendant again appealed. 

Taking up defendant’s arguments in the current opinion, the Court of Appeals first looked to the findings of fact and conclusions of law challenged by defendant, finding that three findings related to trespassing and one related to the return of defendant’s identification prior to the search were not supported by evidence in the record. After striking four findings of fact, the court turned to (1) the reasonable suspicion analysis, determining that “the officers had reasonable suspicion to stop, question, and perform a protective search of [defendant] based on the informant’s tip.” Slip Op. at 12. The court noted that evidence in the record provided adequate justification for the reasonable suspicion that defendant was armed, justifying a protective search after stopping him. 

Turning to (2), the court found that defendant did not voluntarily consent to the search of his backpack. Explaining the standard for voluntary consent, the court explained that “[t]o be voluntary, consent must be free from coercion, express or implied,” and when making this determination “the court must consider the possibility of subtly coercive questions from those with authority, as well as the possibly vulnerable subjective state of the person who consents.” Id. at 17-18. Here, the officers asked defendant “five times within a period of about one and a half minutes” for permission, even though defendant continued to refuse. Id. at 18. The court went on to explain that:

The combination of multiple uniformed police officers surrounding an older homeless man and making repeated requests to search his backpack on a cold, dark night after he repeatedly asserted his right not to be searched leads us to the conclusion that [defendant’s] consent was the result of coercion and duress and therefore was not freely given.

Id. at 18-19. 

After establishing the officers did not have consent, the court also established that they did not have probable cause to search the backpack based on the tip. The court explained that while the tip was sufficient to create reasonable suspicion for a frisk of defendant, it did not create sufficient probable cause for a search of the backpack. The informant “did not provide any basis for his knowledge about the criminal activity,” and “did not predict any future behavior,” elements that would have demonstrated sufficient reliability for probable cause. Id. at 21. Because the officers did not have consent or probable cause to conduct the search, the court reversed the denial of the motion to dismiss and vacated defendant’s Alford plea. 

Charlotte-Mecklenburg police received a report of a stolen car and information about its possible location. Officers went to the location, which was part residence and part commercial establishment. A car matching the description of the stolen vehicle was in the back parking lot. As police watched, a man came out of the building and approached the car as if to enter it. He noticed the unmarked police car and immediately returned to the building, alerting the occupants to the presence of police. Police pulled into the driveway intending to detain the man. The defendant opened the door of the building from inside and the man who had approached the stolen car went inside, although the door was left open. An officer approached and asked the man to come out and speak with police before immediately stepping into the building through the open door. That officer noticed a safe next to the defendant and saw the defendant close the safe, lock it, and place the key in his pocket. More officers arrived on scene and noticed drug paraphernalia in plain view. Officers swept the house and discovered a gun in a bedroom. At this point, officers established that a man inside either owned or leased the building and requested his consent to search. The man initially refused but assented when officers threatened to place everyone in handcuffs and to obtain a search warrant. The defendant informed officers that anything they found in the home was not his and that he did not live there. He denied owning the safe, but a woman who was present at the time later informed officers that the safe belonged to the defendant. Officers obtained a search warrant for the safe and discovered money, drugs, paraphernalia, and a gun inside. The defendant was subsequently charged with trafficking, firearm by felon, habitual felon, and other offenses. He moved to suppress. The trial court denied the motion, apparently on the basis that the defendant lacked standing (although because no written order was entered, the findings and conclusions of the trial court were not easily determined). The defendant was convicted at trial of the underlying offenses and pled guilty to having obtained habitual felon status. The trial court imposed a minimum term of 225 months in consecutive judgments. On appeal, a unanimous panel of the Court of Appeals reversed.

(1) The defendant had a reasonable expectation of privacy in the building. He opened the door when it was knocked and was one of only four people inside the home at a late hour. The defendant further had apparent permission to keep the safe inside and clearly had an interest in it as the person with its key and the ability to exclude others. While the defendant did not own or lease the property, this was not enough to defeat his expectation of privacy. The defendant also disclaimed ownership of the safe to police, and the State argued that this amounted to abandonment, defeating any privacy interest in the safe. The court disagreed, noting that the defendant only made that remark after the police illegally entered the home and that abandonment does not apply in such a situation. In its words: “[W]hen an individual ‘discards property as the product of some illegal police activity, he will not be held to have voluntarily abandoned the property or to have necessarily lost his reasonable expectation of
privacy with respect to it[.]’” Jordan Slip op. at 14 (citation omitted). Thus, the defendant had standing to challenge the police entry and search.

(2) The trial court determined that officers had reasonable suspicion to speak with the man who was seen approaching the stolen car. However, this did not justify warrantless entry into the home. The State argued that the entry was supported by exigent circumstances, in that the keys to the stolen car and the drug paraphernalia seen inside the building could have been easily destroyed. However, there was no evidence that the first officer who approached the home saw any drug paraphernalia at the time and the officer therefore could not have had a legitimate concern about its destruction. There was likewise no explanation from the State regarding the need for immediate warrantless entry to preserve the car keys evidence. Because officers had already seen the man approach the car with the keys and because possession of a stolen car may be established by constructive possession, there was no immediate need to obtain the car keys. Further, there was no immediate risk of destruction of evidence where the occupants of the home left the door open, and an officer entered the home within “moments” of arrival. Exigent circumstances therefore did not support the warrantless entry.

(3) The State also argued that the person with a property interest in the building gave valid consent, and that this consent removed any taint of the initial illegal entry. Illegally obtained evidence may be admissible where the link between the illegal police activity and the discovery of evidence is sufficiently attenuated. Brown v. Illinois, 422 U.S. 590, 603-04 (1975). Here, the taint of the illegal entry had not dissipated. Officers obtained consent soon after entering the home, no intervening circumstances arose between the entry and the obtaining of consent, and officers purposefully and flagrantly entered the building without a warrant or probable cause. Any consent was therefore tainted by the initial police illegality and could not justify the search.

(4) Although police did ultimately obtain a search warrant for the safe, the information contained in the search warrant application was based on information obtained by police after they were inside the building. There was no evidence that officers saw any drugs prior to entry, so any evidence obtained as a result was the fruit of the poisonous tree. Without the drugs evidence, the stolen car in the parking lot, the man walking up to the stolen car, and his abrupt return from the car to the building did not supply probable cause to search the building or safe. According to the court:

Because the affidavit supporting the issuance of the search warrant, stripped of the facts obtained by the officers’ unlawful entry into the residence, does not give rise to probable cause to search the residence for the evidence of drugs and drug paraphernalia described in the warrant, ‘the warrant and the search conducted under it were illegal and the evidence obtained from them was fruit of the poisonous tree.’ Id. at 24.

The denial of the motion to suppress was therefore reversed and the case was remanded for any further proceedings.

The trial court properly denied the defendant’s motion to suppress heroin discovered following a search of the defendant during a traffic stop. A tactical narcotics officer noticed a Lincoln sedan weaving in and out of heavy traffic at high speeds, nearly causing multiple collisions. The vehicle pulled into a Sonic Drive-In parking lot next to an unoccupied Honda. The defendant, a passenger in the Lincoln, exited the vehicle, approached the Honda, and placed his hand inside the passenger window of that vehicle. The driver of the Honda appeared and spoke with the defendant briefly. The defendant then returned to the Lincoln and the vehicle drove away. No one in the Lincoln had ordered any food. Based on his experience, the officer concluded that the defendant had participated in a drug transaction. Other officers then saw the Lincoln go to a gas station. A second officer radioed that the vehicle continued to be driven in a careless and reckless manner, at approximately 15 miles per hour over the speed limit. After the vehicle left the gas station, the first officer stopped it for reckless driving and speeding. Four other officers participated in the stop; all five officers were in uniform. The first officer approached the passenger side of the vehicle, while two others approached the driver’s side. The officer approaching the passenger side saw the defendant reach toward the floorboard. Because he did not know whether the defendant had a weapon or was trying to conceal contraband, the officer asked the defendant to show his hands. The defendant raised his hands, which were daubed in a light pink substance that the defendant stated was fabric softener. The officer ordered the defendant out of the vehicle and asked whether he was attempting to conceal something. The defendant denied doing so. The officer testified that when he asked for the defendant’s consent to search his person the defendant gave consent saying, “go ahead.” The defendant testified that he never consented to a search. When the officer proceeded to pat down the defendant he noticed a larger than normal bulge near the groin area that was not consistent with “male parts.” The officer then detained the defendant in handcuffs, believing that he had contraband on his person. The officer asked the defendant if he had anything inside of his underwear and the defendant said that he did. The officer asked the defendant if he would retrieve the item and the defendant said he would. The officer removed the handcuffs, the defendant reached into his pants and produced a plastic bag containing heroin. He was then placed under arrest.

                  The court first found that the defendant consented to the search, rejecting the defendant’s argument that his consent was not voluntary given the coercive environment fostered by the police. The defendant argued that his race is highly relevant to the determination of whether he voluntarily consented to the search because people of color will view a “request” to search by the police as an inherently coercive command, and he cited various studies in support of this claim. The court agreed that the defendant’s race may be a relevant factor in considering whether consent was voluntary. However, aside from the studies presented by the defendant, the record is devoid of any indication that the defendant’s consent in this case was involuntary. To the contrary, the circumstances show that the defendant’s consent was freely and intelligently made. Although multiple officers were present, only the first officer interacted with the defendant. When the officer approached the vehicle he asked the defendant whether he had anything illegal and the defendant said that he did not. The officer then asked if he could search the defendant’s person, to which the defendant responded “go ahead.” No other conversation occurred. There is no evidence that the defendant was unaware of his ability to refuse the request or that he feared retribution had he done so. There is no indication that the officer made threats, used harsh language, or raised his voice. There is no evidence of any physical contact with the defendant. Additionally, the officers’ firearms remain holstered throughout the encounter.

                  The court next rejected the defendant’s argument that the scope of his consent to search his person did not include a frisk of his private parts, and lacking probable cause or exigent circumstances to justify such a search, the pat down of his groin area was unconstitutional. The court concluded that because the defendant’s consent encompassed the sort of limited frisk that was performed, neither probable cause nor exigency was required to justify the search. The pat down of the defendant’s groin area was within the bounds of what a reasonable person would have expected the search to include. The officer limited his pat down to the outer layer of the defendant’s clothing. He did not reach into the defendant’s pants to search his undergarments or directly touch his groin area. Nothing about the search involved the exposure of the defendant’s privates to the officer or to the public. And there is no evidence that the groin pat down was conducted in an unreasonably offensive manner. Thus, the court concluded that a reasonable person in the defendant’s position would have understood his consent to include the sort of limited outer pat down that was performed here.

                  Finally, the court rejected the defendant’s argument that the officer’s continued detention of him after searching his groin area was not justified by the plain feel doctrine. During the pat down the officer felt a bulge that he determined was not consistent with male body parts and was obviously contraband. When coupled with the totality of the circumstances already observed by the officer, this discovery amounted to reasonable suspicion justifying further detention of the defendant to question him about the contents of his clothing.

Because the trial court’s findings of fact do not support its conclusion that the defendant was legally seized at the time consented to a search of his person, the court reversed the trial court’s order denying the defendant’s motion to suppress contraband found on his person. Officers were conducting surveillance on a known drug house. They noticed the defendant leave the residence in a truck and return 20 minutes later. He parked his truck in the driveway and walked toward a woman in the driveway of a nearby residence. The two began yelling at each other. Thinking the confrontation was going to escalate, the officers got out of their vehicle and separated the two. One officer asked the defendant for his identification. The officer checked the defendant’s record, verifying that the defendant had no pending charges. Without returning the defendant’s identification, the officer then asked the defendant if he had any narcotics on him and the defendant replied that he did not. At the officer’s request, the defendant consented to a search of his person and vehicle. Drugs were found in his pants pocket. On appeal, the defendant argued that when the officer failed to return his identification after finding no outstanding warrants and after the initial reason for the detention was satisfied, the seizure became unlawful and the defendant’s consent was not voluntary. The court agreed. It noted that the officer failed to return the defendant’s identification before pursuing an inquiry into possession of drugs. It found that the trial court’s order failed to provide findings of fact which would give rise to a reasonable suspicion that the defendant was otherwise subject to detention. Absent a reasonable suspicion to justify further delay, retaining the defendant’s driver’s license beyond the point of satisfying the initial purpose of the detention—the escalating the conflict, checking the defendant’s identification, and verifying that he had no outstanding warrants—was unreasonable. Thus, the defendant’s consent to search his person, given during the period of unreasonable detention, was not voluntary.

The trial court did not err by finding that the defendant consented to a search of his residence. The court rejected the defendant’s argument that the trial court must make specific findings regarding the voluntariness of consent even when there is no conflict in the evidence on the issue. Here, there was a conflict regarding whether the defendant gave consent, not whether if given it was voluntary.

The defendant voluntarily consented to allow officers to take a saliva sample for DNA testing. The defendant was told that the sample could be used to exonerate him in ongoing investigations of break-ins and assaults on women that occurred in Charlotte in 1998. The defendant argued that because the detective failed to inform him of all of the charges that were being investigated—specifically, rape and sexual assault—his consent was involuntary. Following State v. Barkley, 144 N.C. App. 514 (2001), the court rejected this argument. The court concluded that the consent was voluntary even though the defendant did not know that the assaults were of a sexual nature and that a reasonable person in the defendant’s position would have understood that the DNA could be used generally for investigative purposes.

The evidence supported the trial court’s conclusion that the defendant voluntarily consented to a search of his home. Although an officer aimed his gun at the defendant when he thought that the defendant was attempting to flee, the officer promptly lowered the gun. While the officers kicked down the door, they did not immediately handcuff the defendant. Rather, the defendant sat in his living room and conversed freely with the officers, and one officer escorted him to a neighbor’s house to obtain child care. The defendant consented to a search of his house when asked after a protective sweep was completed.

The trial court properly denied the defendant’s motion to suppress heroin discovered following a search of the defendant during a traffic stop. A tactical narcotics officer noticed a Lincoln sedan weaving in and out of heavy traffic at high speeds, nearly causing multiple collisions. The vehicle pulled into a Sonic Drive-In parking lot next to an unoccupied Honda. The defendant, a passenger in the Lincoln, exited the vehicle, approached the Honda, and placed his hand inside the passenger window of that vehicle. The driver of the Honda appeared and spoke with the defendant briefly. The defendant then returned to the Lincoln and the vehicle drove away. No one in the Lincoln had ordered any food. Based on his experience, the officer concluded that the defendant had participated in a drug transaction. Other officers then saw the Lincoln go to a gas station. A second officer radioed that the vehicle continued to be driven in a careless and reckless manner, at approximately 15 miles per hour over the speed limit. After the vehicle left the gas station, the first officer stopped it for reckless driving and speeding. Four other officers participated in the stop; all five officers were in uniform. The first officer approached the passenger side of the vehicle, while two others approached the driver’s side. The officer approaching the passenger side saw the defendant reach toward the floorboard. Because he did not know whether the defendant had a weapon or was trying to conceal contraband, the officer asked the defendant to show his hands. The defendant raised his hands, which were daubed in a light pink substance that the defendant stated was fabric softener. The officer ordered the defendant out of the vehicle and asked whether he was attempting to conceal something. The defendant denied doing so. The officer testified that when he asked for the defendant’s consent to search his person the defendant gave consent saying, “go ahead.” The defendant testified that he never consented to a search. When the officer proceeded to pat down the defendant he noticed a larger than normal bulge near the groin area that was not consistent with “male parts.” The officer then detained the defendant in handcuffs, believing that he had contraband on his person. The officer asked the defendant if he had anything inside of his underwear and the defendant said that he did. The officer asked the defendant if he would retrieve the item and the defendant said he would. The officer removed the handcuffs, the defendant reached into his pants and produced a plastic bag containing heroin. He was then placed under arrest.

                  The court first found that the defendant consented to the search, rejecting the defendant’s argument that his consent was not voluntary given the coercive environment fostered by the police. The defendant argued that his race is highly relevant to the determination of whether he voluntarily consented to the search because people of color will view a “request” to search by the police as an inherently coercive command, and he cited various studies in support of this claim. The court agreed that the defendant’s race may be a relevant factor in considering whether consent was voluntary. However, aside from the studies presented by the defendant, the record is devoid of any indication that the defendant’s consent in this case was involuntary. To the contrary, the circumstances show that the defendant’s consent was freely and intelligently made. Although multiple officers were present, only the first officer interacted with the defendant. When the officer approached the vehicle he asked the defendant whether he had anything illegal and the defendant said that he did not. The officer then asked if he could search the defendant’s person, to which the defendant responded “go ahead.” No other conversation occurred. There is no evidence that the defendant was unaware of his ability to refuse the request or that he feared retribution had he done so. There is no indication that the officer made threats, used harsh language, or raised his voice. There is no evidence of any physical contact with the defendant. Additionally, the officers’ firearms remain holstered throughout the encounter.

                  The court next rejected the defendant’s argument that the scope of his consent to search his person did not include a frisk of his private parts, and lacking probable cause or exigent circumstances to justify such a search, the pat down of his groin area was unconstitutional. The court concluded that because the defendant’s consent encompassed the sort of limited frisk that was performed, neither probable cause nor exigency was required to justify the search. The pat down of the defendant’s groin area was within the bounds of what a reasonable person would have expected the search to include. The officer limited his pat down to the outer layer of the defendant’s clothing. He did not reach into the defendant’s pants to search his undergarments or directly touch his groin area. Nothing about the search involved the exposure of the defendant’s privates to the officer or to the public. And there is no evidence that the groin pat down was conducted in an unreasonably offensive manner. Thus, the court concluded that a reasonable person in the defendant’s position would have understood his consent to include the sort of limited outer pat down that was performed here.

                  Finally, the court rejected the defendant’s argument that the officer’s continued detention of him after searching his groin area was not justified by the plain feel doctrine. During the pat down the officer felt a bulge that he determined was not consistent with male body parts and was obviously contraband. When coupled with the totality of the circumstances already observed by the officer, this discovery amounted to reasonable suspicion justifying further detention of the defendant to question him about the contents of his clothing.

In this peeping with a photographic device case, the trial court erred by denying the defendant’s motion to suppress with respect to evidence obtained during a search of the defendant’s external hard drives. The court rejected the notion that the defendant consented to a search of the external hard drives, concluding that while he consented to a search of his laptops and smart phone, the trial court’s findings of fact unambiguously state that he did not consent to a search of other items. Next, the court held that the defendant had a reasonable expectation of privacy in the external hard drives, and that the devices did not pose a safety threat to officers, nor did the officers have any reason to believe that the information contained in the devices would have been destroyed while they pursued a search warrant, given that they had custody of the devices. The court found that the Supreme Court’s Riley analysis with respect to cellular telephones applied to the search of the digital data on the external data storage devices in this case, given the similarities between the two types of devices. The court concluded: “Defendant possessed and retained a reasonable expectation of privacy in the contents of the external data storage devices …. The Defendant’s privacy interests in the external data storage devices outweigh any safety or inventory interest the officers had in searching the contents of the devices without a warrant.”

A consent search of the defendant’s vehicle was not invalid because it involved taking off the rear quarter panels. The trial court found that both rear quarter panels were fitted with a carpet/cardboard type interior trim and that they “were loose.” Additionally, the trial court found that the officer “was easily able to pull back the carpet/cardboard type trim . . . covering the right rear quarter panel where he observed what appeared to be a sock with a pistol handle protruding from the sock.” 

Using a drug-sniffing dog on a homeowner’s porch to investigate the contents of the home is a “search” within the meaning of the Fourth Amendment. The Court’s reasoning was based on the theory that the officers engaged in a physical intrusion of a constitutionally protected area. Applying that principle, the Court held:

The officers were gathering information in an area belonging to [the defendant] and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.

Slip Op. at pp. 3-4. In this way the majority did not decide the case on a reasonable expectation of privacy analysis; the concurring opinion came to the same conclusion on both property and reasonable expectation of privacy grounds.

In this drug case, the trial court did not err by denying the defendant’s motion to suppress. After receiving a tip that the defendant was growing marijuana at his home, officers drove there for a knock and talk. They pulled into the driveway and parked in front of the defendant’s car, which was parked at the far end of the driveway, beside the home. The garage was located immediately to the left of the driveway. An officer went to the front door to knock, while two detectives remained by the garage. A strong odor of marijuana was coming from the garage area. On the defendant’s front door was a sign reading “inquiries” with his phone number, and a second sign reading “warning” with a citation to several statutes. As soon as the defendant opened the front door, an officer smelled marijuana. The officer decided to maintain the residence pending issuance of a search warrant. After the warrant was obtained, a search revealed drugs and drug paraphernalia.

            The court began by rejecting the defendant’s argument that the officers engaged in an unconstitutional search and seizure by being present in his driveway and lingering by his garage. Officers conducting a knock and talk can lawfully approach a home so long as they remain within the permissible scope afforded by the knock and talk. Here, given the configuration of the property any private citizen wishing to knock on the defendant’s front door would drive into the driveway, get out, walk between the car and the path so as to stand next to the garage, and continue on the path to the front porch. Therefore, the officers’ conduct, in pulling into the driveway by the garage, getting out of their car, and standing between the car and the garage, was permitted. Additionally the officers were allowed to linger by the garage while their colleague approached the front door. Thus, “the officers’ lingering by the garage was justified and did not constitute a search under the Fourth Amendment.”

            The court went hold that by failing to raise the issue at the trial level, the defendant failed to preserve his argument that he revoked the officers’ implied license through his signage and that by ignoring this written revocation, the officers of violated the fourth amendment.

In this case in which the defendant was convicted of drug trafficking and related charges, the court held that although the trial court erred by finding that a vehicle was within the curtilage of the defendant’s residence, it properly found that officers had probable cause to search the vehicle. Officers conducted a drug investigation of the defendant, including surveillance of his residence. During the investigation, a confidential police informant arranged and engaged in a controlled purchase of heroin from the defendant’s residence. A couple of months later the same confidential informant conducted another controlled purchase of heroin at the defendant’s residence. Officers saw the confidential informant purchase the drugs from the defendant at the trunk of a black 1985 Mercury Grand Marquis parked on the other side of the road from the defendant’s residence. Officers saw the vehicle regularly parked in this location during their investigation. As a result of the investigation, Officer Kimel got a search warrant for the defendant’s residence; the warrant did not mention the Grand Marquis. When the officers arrived to execute the search warrant, Kimel saw the vehicle parked across the street. The back and sides of the residence were surrounded by a 7- or 8-foot-high chain link fence; a short wooden fence was in the front of the residence. Kimel asked another officer have his K-9 sniff the vehicle. The dog gave a positive alert for drugs. Kimel obtained the keys to the vehicle from the defendant’s pocket and searched the car. In the trunk, officers found the defendant’s wallet, guns, ammunition, a digital scale, and drugs. After the defendant unsuccessfully moved to suppress evidence obtained from the search of the vehicle, the defendant pled guilty to multiple drug charges, reserving the right to appeal the denial of his suppression motion. On appeal the defendant argued that the officers searched the vehicle without either a search warrant or probable cause.

            The court began by holding that the trial court erred by concluding that the vehicle was within the curtilage of the residence while parked on the side of a public street opposite the home and outside the home’s fenced-in area. The State had conceded this issue at oral argument.

            The court went on to find however that the officers had probable cause to search the vehicle based on: the controlled purchases by the informant, during which times the Grand Marquis was always present; the officers’ observation of a drug transaction taking place at the trunk of the Grand Marquis; the Grand Marquis parked on a public street near the defendant’s residence during the officers’ investigation; the defendant’s possession of the keys to the Grand Marquis; and the K-9’s positive alert outside of the vehicle for the potential presence of narcotics. It concluded: “Based upon the automobile being located on a public road exception to the Fourth Amendment warrant requirement, probable cause justified the officers in conducting the warrantless search of the Grand Marquis.”

            In so holding, the court declined to consider the defendant’s argument, raised for the first time on appeal, that the reliability of the K-9 was not sufficiently established under Florida v. Harris, 568 U.S. 237 (2013), noting that a party may not assert on appeal a theory that was not raised at the trial court. It further noted that the K-9 sniff was not a search and the dog’s positive alert provided support for the trial court’s determination that officers had probable cause to conduct a warrantless search of the vehicle. The court did however note that officers had probable cause to search the vehicle even without the sniff.

No fourth amendment violation occurred when officers entered the defendant’s driveway to investigate a shooting. When detectives arrived at the defendant’s property they found the gate to his driveway open. The officers did not recall observing a “no trespassing” sign that had been reported the previous day. After a backup deputy arrived, the officers drove both of their vehicles through the open gate and up the defendant’s driveway. Once the officers parked, the defendant came out of the house and spoke with the detectives. The defendant denied any knowledge of a shooting and denied owning a rifle. However, the defendant’s wife told the officers that there was a rifle inside the residence. The defendant gave verbal consent to search the home. In the course of getting consent, the defendant made incriminating statements. A search of the home found a rifle and shotgun. The rifle was seized but the defendant was not arrested. After leaving and learning that the defendant had a prior felony conviction from Texas, the officers obtained a search warrant to retrieve the other gun seen in his home and a warrant for the defendant’s arrest. When officers returned to the defendant’s residence, the driveway gate was closed and a sign on the gate warned “Trespassers will be shot exclamation!!! Survivors will be shot again!!!” The team entered and found multiple weapons on the premises. At trial the defendant unsuccessfully moved to suppress all of the evidence obtained during the detectives’ first visit to the property and procured by the search warrant the following day. He pled guilty and appealed. The court rejected the defendant’s argument that a “no trespassing” sign on his gate expressly removed an implied license to approach his home. While the trial court found that a no trespassing sign was posted on the day of the shooting, there was no evidence that the sign was present on the day the officers first visited the property. Also, there was no evidence that the defendant took consistent steps to physically prevent visitors from entering the property; the open gate suggested otherwise. Finally, the defendant’s conduct upon the detectives’ arrival belied any notion that their approach was unwelcome. Specifically, when they arrived, he came out and greeted them. For these reasons, the defendant’s actions did not reflect a clear demonstration of an intent to revoke the implied license to approach. The court went on to hold that the officers’ actions did not exceed the scope of a lawful knock and talk. Finally, it rejected the defendant’s argument his fourth amendment rights were violated because the encounter occurred within the curtilage of his home. The court noted that no search of the curtilage occurs when an officer is in a place where the public is allowed to be for purposes of a general inquiry. Here, they entered the property by through an open driveway and did not deviate from the area where their presence was lawful.

The trial court did not err by denying the defendant’s motion to suppress DNA evidence obtained from his discarded cigarette butt. When the defendant refused to supply a DNA sample in connection with a rape and murder investigation, officers sought to obtain his DNA by other means. After the defendant discarded a cigarette butt in a parking lot, officers retrieved the butt. The parking lot was located directly in front of the defendant’s four-unit apartment building, was uncovered, and included 5-7 unassigned parking spaces used by the residents. The area between the road and the parking lot was heavily wooded, but no gate restricted access to the lot and no signs suggested either that access to the parking lot was restricted or that the lot was private. After DNA on the cigarette butt matched DNA found on the victim, the defendant was charged with the crimes. At trial the defendant unsuccessfully moved to suppress the DNA evidence. On appeal, the court rejected the defendant’s argument that the seizure of the cigarette butt violated his constitutional rights because it occurred within the curtilage of his apartment:

[W]e conclude that the parking lot was not located in the curtilage of defendant’s building. While the parking lot was in close proximity to the building, it was not enclosed, was used for parking by both the buildings’ residents and the general public, and was only protected in a limited way. Consequently, the parking lot was not a location where defendant possessed “a reasonable and legitimate expectation of privacy that society is prepared to accept.”

Next, the court rejected the defendant’s argument that even if the parking lot was not considered curtilage, he still maintained a possessory interest in the cigarette butt since he did not put it in a trash can or otherwise convey it to a third party. The court reasoned that the cigarette butt was abandoned property. Finally, the court rejected the defendant’s argument that even if officers lawfully obtained the cigarette butt, they still were required to obtain a warrant before testing it for his DNA because he had a legitimate expectation of privacy in his DNA. The court reasoned that the extraction of DNA from an abandoned item does not implicate the Fourth Amendment.

The police may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. This decision involved a pair of cases in which both defendants were arrested and cell phones were seized. In both cases, officers examined electronic data on the phones without a warrant as a search incident to arrest. The Court held that “officers must generally secure a warrant before conducting such a search.” The Court noted that “the interest in protecting officer safety does not justify dispensing with the warrant requirement across the board.” In this regard it added however that “[t]o the extent dangers to arresting officers may be implicated in a particular way in a particular case, they are better addressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.” Next, the Court rejected the argument that preventing the destruction of evidence justified the search. It was unpersuaded by the prosecution’s argument that a different result should obtain because remote wiping and data encryption may be used to destroy digital evidence. The Court noted that “[t]o the extent that law enforcement still has specific concerns about the potential loss of evidence in a particular case, there remain more targeted ways to address those concerns. If the police are truly confronted with a ‘now or never’ situation—for example, circumstances suggesting that a defendant’s phone will be the target of an imminent remote-wipe attempt—they may be able to rely on exigent circumstances to search the phone immediately” (quotation omitted). Alternatively, the Court noted, “if officers happen to seize a phone in an unlocked state, they may be able to disable a phone’s automatic-lock feature in order to prevent the phone from locking and encrypting data.” The Court noted that such a procedure would be assessed under case law allowing reasonable steps to secure a scene to preserve evidence while procuring a warrant. Turning from an examination of the government interests at stake to the privacy issues associated with a warrantless cell phone search, the Court rejected the government’s argument that a search of all data stored on a cell phone is materially indistinguishable the other types of personal items, such as wallets and purses. The Court noted that “[m]odern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse” and that they “differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” It also noted the complicating factor that much of the data viewed on a cell phone is not stored on the device itself, but rather remotely through cloud computing. Concluding, the Court noted:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.

(Slip Op at. p. 25). And finally, the Court noted that even though the search incident to arrest does not apply to cell phones, other exceptions may still justify a warrantless search of a particular phone, such as exigent circumstances.

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.

(Slip Op at. p. 25). And finally, the Court noted that even though the search incident to arrest does not apply to cell phones, other exceptions may still justify a warrantless search of a particular phone, such as exigent circumstances.

Seizure and search of the defendant’s cell phone was proper as a search incident to arrest. The defendant was arrested for two murders shortly after they were committed. While in custody, he received a cell phone call, at which point the seizure occurred. [Note: The more recent Riley decision, above.]

(1) In this drug case, a search of the defendant’s person was a proper search incident to arrest. An officer stopped the defendant’s vehicle for driving with a revoked license. The officer had recognized the defendant and knew that his license was suspended. The officer arrested the defendant for driving with a revoked license, handcuffed him and placed him in the police cruiser. The officer then asked the defendant for consent to search the car. According to the officer the defendant consented. The defendant denied doing so. Although an initial search of the vehicle failed to locate any contraband, a K-9 dog arrived and “hit” on the right front fender and driver’s seat cushion. When a second search uncovered no contraband or narcotics, the officer concluded that the narcotics must be on the defendant’s person. The defendant was brought to the police department and was searched. The search involved lowering the defendant’s pants and long johns to his knees. During the search the officer pulled out, but did not pull down, the defendant’s underwear and observed the defendant’s genitals and buttocks. Cocaine eventually was retrieved from a hidden area on the fly of the defendant’s pants. The defendant unsuccessfully moved to suppress the drugs and was convicted. On appeal, the court rejected the defendant’s argument that the strip search could only have been conducted with probable cause and exigent circumstances. The court noted however that standard applies only to roadside strip searches. Here, the search was conducted incident to the defendant’s lawful arrest inside a private interview room at a police facility.

(2) The search of the defendant’s person, which included observing his buttocks and genitals, was reasonable. The defendant had argued that even if the search of his person could be justified as a search incident to an arrest, it was unreasonable under the totality of the circumstances. Rejecting this argument, the court noted that the search was limited to the area of the defendant’s body and clothing that would have come in contact with the cushion of the driver’s seat where the dog alerted; specifically, the area between his knees and waist. Moreover, the defendant was searched inside a private interview room at the police station with only the defendant and two officers present. The officers did not remove the defendant’s clothing above the waist. They did not fully remove his undergarments, nor did they touch his genitals or any body cavity. The court also noted the suspicion created by, among other things, the canine’s alert and the failure to discover narcotics in the car. The court thus concluded that the place, manner, justification and scope of the search of the defendant’s person was reasonable.

The court vacated and remanded In re T.A.S., 213 N.C. App. 273 (July 19, 2011) (holding that a search of a juvenile student’s bra was constitutionally unreasonable), ordering further findings of fact. The court ordered the trial court to

make additional findings of fact, including but not necessarily limited to: the names, occupations, genders, and involvement of all the individuals physically present at the “bra lift” search of T.A.S.; whether T.A.S. was advised before the search of the Academy’s “no penalty” policy; and whether the “bra lift” search of T.A.S. qualified as a “more intrusive” search under the Academy’s Safe School Plan.

It provided that “[i]f, after entry of an amended judgment or order by the trial court, either party enters notice of appeal, counsel are instructed to ensure that a copy of the Safe School Plan, discussed at the suppression hearing and apparently introduced into evidence, is included in the record on appeal.”

This opinion arose from a Wake County order imposing satellite-based monitoring (“SBM”) on defendant for first-degree rape of a child, incest, and two counts of first-degree sexual offense. This matter has a complicated procedural history, resulting in four Court of Appeals opinions. Pages 3-5 of the slip opinion describe the relevant history. The court held that the indictments for defendant’s offenses were valid and issued a writ to consider the 2020 SBM orders by the trial court, but did not reach a majority opinion on whether the orders violated the Fourth Amendment, leaving the 2020 SBM orders undisturbed.

Judge Jackson wrote the opinion of the court, taking up defendant’s petition for writ of certiorari to review the orders imposing SBM; Judge Murphy concurred in the issuance of certiorari, while Judge Tyson disagreed with issuing the writ. The opinion explored three questions regarding the SBM orders: (1) Were the indictments valid when they used initials and date of birth to identify the victim? (2) Were the 2020 SBM orders properly before the court? (3) Did the SBM orders violate the Fourth Amendment?

The panel was unanimous in holding that (1) the indictments were valid even though they used initials and date of birth to identify the victim. Judge Jackson explained that short-form indictments using initials were acceptable in rape and statutory sexual offense cases under the court’s holding in State v. McKoy, 196 N.C. App. 652 (2009) and G.S. §§ 15-144.1 and -144.2, and the court applied this reasoning to the incest allegation as well. Slip Op. at 12-13.

Considering (2), the panel looked to the North Carolina Supreme Court’s decision in State v. Ricks, 378 N.C. 737 (2021). The Ricks opinion held that the Court of Appeals abused its discretion in reviewing an SBM order upon issuance of a writ of certiorari where the defendant’s petition did not show merit. Slip Op. at 7. Judge Jackson and Judge Murphy agreed that Ricks was distinguishable from the instant case and that the court could properly grant the writ, although they varied on their reasoning for doing so. Judge Tyson did not support granting the writ.

Reaching (3), each member of the panel split on the question of the 2020 SBM orders and the Fourth Amendment. Judge Jackson wrote that the orders did not violate the Fourth Amendment following recent precedent in State v. Carter, 2022-NCCOA-262, and State v. Anthony, 2022-NCCOA-414, arguing that the court could not overrule itself with this relevant precedent. Slip Op. at 32-33. Judge Tyson argued that the orders were not properly before the court, as noted in issue (2), and the court lacked jurisdiction to consider them under Ricks. Id. at 45-46. Judge Murphy wrote that the 2020 SBM orders should be vacated, leaving 2012 SBM orders in place, as the trial court lacked appropriate jurisdiction under State v. Clayton, 206 N.C. App. 300 (2010). Slip Op. at 69-70.

In this Brunswick County case, defendant appealed an order vacating lifetime satellite-based monitoring (SBM) and imposing a 30-year term of SBM. Defendant argued (1) trial court lacked subject matter jurisdiction to impose SBM upon him; (2) trial court did not have statutory authority to impose a term of years based on his classification as a “recidivist;” and (3) the trial court erred in determining defendant required the highest level of supervision applicable under the statute. The Court of Appeals disagreed and affirmed the order of the trial court. 

Defendant was convicted of four counts of indecent liberties with a child in 1994. Subsequently defendant pleaded guilty to two counts of indecent liberties with a child in 2008 and received lifetime SBM. The court’s form order found that defendant “is classified as a sexually violent predator, is a recidivist, or was convicted of an aggravated offense,” but did not clarify which of these grounds justified the lifetime SBM. Slip Op. at ¶2. After the holding in State v. Grady (Grady III), 327 N.C. 509 (2019), prosecutors advised defendant that he was entitled to a hearing on the unconstitutional nature of his lifetime SBM, and defendant filed a motion for appropriate relief. Defendant’s motion was heard in January of 2021; the trial court found that defendant required the highest level of supervision, vacated the lifetime SBM and imposed a 30-year term, retroactive to the start of defendant’s monitoring in 2010. 

Considering defendant’s first argument, the Court of Appeals found that the trial court had subject matter jurisdiction to conduct the January 2021 hearing and enter the new order imposing SBM. Although defendant pointed to State v. Billings, 278 N.C. App. 267 (2021) to support the trial court’s lack of jurisdiction, the Court of Appeals explained that the Billings fact pattern was not present in the current case, as “[d]efendant’s own motion properly brought the matter before the trial court.” Slip Op. at ¶9. Instead, the court applied State v. Hilton, 378 N.C. 692 (2021) and State v. Strudwick, 379 N.C. 94 (2021), holding that “the trial court had continued jurisdiction over the original 2008 SBM order and could modify it pursuant to [d]efendant’s motion.” Slip Op. at ¶12. 

Reviewing defendant’s argument that the trial court lacked statutory authority to impose SBM, the court held that “[d]efendant’s reading of our statutes conflicts with precedent defining the Legislature’s intent.” Slip Op. at ¶14. The core of defendant’s argument came from the text of N.C.G.S. § 14-208.40A(d) in effect at the time of the 2021 hearing, specifically the following:

If the court finds that the offender committed an offense that involved the physical, mental, or sexual abuse of a minor, that the offense is not an aggravated offense or a violation of G.S. 14-27.23 or G.S. 14-27.28 and the offender is not a recidivist[. . . .]

Slip Op. at ¶18. As explained by the court, “[i]n holding our SBM statutes were unconstitutional as applied to unsupervised, recidivist offenders in Grady III, our Supreme Court created a loophole for individuals in Defendant’s position, as an unsupervised recidivist convicted of an offense involving the physical, mental, or sexual abuse of a minor.” Slip Op. at 21. The court rejected defendant’s reading of the applicable statute, as it “would lead to absurd results, contrary to the intent of the General Assembly in identifying specific categories of sex offenders subject to monitoring.” Slip Op. at 19. Instead, the court construed the applicable provisions along with the entire SBM statute classifying offenders, and applied Hilton and Strudwick to support the application of SBM for offenders like defendant. Slip Op. at 21. The court also noted that just months after the 2021 hearing, the General Assembly amended N.C.G.S. § 14-208.40A(d)-(e) to resolve the issue. Summarizing defendant’s situation, the court explained that the amendments to North Carolina’s SBM program created a ten-year cap on the term of SBM enrollment and a procedure for petitioning the trial court to end SBM, meaning that “since [d]efendant has been enrolled in SBM for more than ten years, he can obtain a court order terminating that enrollment today.” Slip Op. at ¶23. 

Finally, the court examined defendant’s argument that the trial court misapplied his risk assessment when determining he required the highest level of supervision. The court explained that, even if it misapplied or misinterpreted the risk assessment tool, the “trial court made sufficient findings to support its determination that [d]efendant required the ‘highest possible level of supervision and monitoring’ for a term of 30 years.” Slip Op. at ¶28.

(1) The court rejected the defendant’s argument that because SBM is a civil, regulatory scheme, it is subject to the Rules of Civil Procedure and that the trial court erred by failing to exercise discretion under Rule 62(d) to stay the SBM hearing. The court concluded that because Rule 62 applies to a stay of execution, it could not be used to stay the SBM hearing. (2) With respect to the defendant’s argument that SMB constitutes an unreasonable search and seizure, the trial court erred by failing to conduct the appropriate analysis. The trial court simply acknowledged that SBM constitutes a search and summarily concluded that the search was reasonable. As such it failed to determine, based on the totality of the circumstances, whether the search was reasonable. The court noted that on remand the State bears the burden of proving that the SBM search is reasonable. 

In this drug case, the court held, over a dissent, that a strip search of the defendant did not violate the fourth amendment. When officers entered a residence to serve a warrant on someone other than the defendant, they smelled the odor of burnt marijuana. When the defendant was located upstairs in the home, an officer smelled marijuana on his person. The officer patted down and searched the defendant, including examining the contents of his pockets. The defendant was then taken downstairs. Although the defendant initially gave a false name to the officers, once they determined his real name, they found out that he had an outstanding warrant from New York. The defendant was wearing pants and shoes but no shirt. After the defendant declined consent for a strip search, an officer noticed a white crystalline substance consistent with cocaine on the floor where the defendant had been standing. The officer then searched the defendant, pulling down or removing both his pants and underwear. Noticing that the defendant was clenching his buttocks, the officer removed two plastic bags from between his buttocks, one containing what appeared to be crack cocaine and the other containing what appeared to be marijuana. The court held that because there was probable cause to believe that contraband was secreted beneath the defendant’s clothing (in this respect, the court noted the crystalline substance consistent with cocaine on the floor where the defendant had been standing), it was not required to officially deem the search a strip search or to find exigent circumstances before declaring the search reasonable. Even so, the court found that exigent circumstances existed, given the observation of what appeared to be cocaine near where the defendant had been standing and the fact that the concealed cocaine may not have been sealed, leading to danger of the defendant absorbing some of the substance through his large intestine. Also, the court noted that the search occurred in the dining area of a private apartment, removed from other people and providing privacy.

Over a dissent, the court held that the trial court did not err by denying the defendant’s motion to suppress evidence found as a result of a strip search. The court found that the officer had, based on the facts presented, ample basis for believing that the defendant had contraband beneath his underwear and that reasonable steps were taken to protect his privacy.

In three consolidated cases the Court held that while a warrantless breath test of a motorist lawfully arrested for drunk driving is permissible as a search incident to arrest, a warrantless blood draw is not. It concluded: “Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.” Having found that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, the Court turned to the argument that blood tests are justified based on the driver’s legally implied consent to submit to them. In this respect it concluded: “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.”

The court held, in this DWI case, that in light of the U.S. Supreme Court’s decisions in Birchfield v. North Dakota (search incident to arrest doctrine does not justify the warrantless taking of a blood sample; as to the argument that the blood tests at issue were justified based on the driver’s legally implied consent to submit to them, the Court concluded: “motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense”), and Missouri v. McNeely (natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant; exigency must be determined on a case-by-case basis), G.S. 20-16.2(b) (allowing blood draw from an unconscious person) was unconstitutional as applied to defendant because it permitted a warrantless search that violates the Fourth Amendment. An officer, relying on G.S. 20-16.2(b), took possession of the defendant’s blood from a treating nurse while the defendant was unconscious without first obtaining a warrant. The court rejected the State’s implied consent argument: that because the case involved an implied consent offense, by driving on the road, the defendant consented to having his blood drawn for a blood test and never withdrew this statutorily implied consent before the blood draw. It continued:

Here there is no dispute that the officer did not get a warrant and that there were no exigent circumstances. Regarding consent, the State’s argument was based solely on N.C.G.S. § 20-16.2(b) as a per se exception to the warrant requirement. To be sure, the implied-consent statute, as well as a person’s decision to drive on public roads, are factors to consider when analyzing whether a suspect has consented to a blood draw, but the statute alone does not create a per se exception to the warrant requirement. The State did not present any other evidence of consent or argue that under the totality of the circumstances defendant consented to a blood draw. Therefore, the State did not carry its burden of proving voluntary consent. As such, the trial court correctly suppressed the blood evidence and any subsequent testing of the blood that was obtained without a warrant.

The defendant was found guilty by a Cleveland County jury of impaired driving and resisting a public officer and was found responsible for possession of open container. He appealed, challenging the denial of his motion to dismiss, the denial of his mid-trial motion to suppress, an evidentiary ruling, and alleging constitutional violations for lost evidence. The Court of Appeals unanimously affirmed.

(1) The defendant claimed there was insufficient evidence that he operated the vehicle while impaired. As to operation, the defendant was found asleep behind the wheel with the car running in the middle of the road and had a bottle of vodka between his legs. No passengers were present, and the defendant asked the officer if he could move the car, revving the engine several times. He also used the driver side door to exit the vehicle. This was sufficient to establish operation. “An individual who is asleep behind the wheel of a car with the engine running is in actual physical control of the car, thus driving the car within the meaning of the statute.”  As to impairment, while the defendant’s blood alcohol content was only 0.07, the defendant’s blood revealed the presence of marijuana, amphetamine and methamphetamine. In addition to the blood test, the defendant “failed” horizontal and vertical gaze nystagmus tests, refused a breath test, had a strong odor of alcohol, was “confused and disoriented,” and exhibited other signs of impairment. This was sufficient evidence of impairment.

The defendant also claimed there was insufficient evidence to support his conviction for resisting a public officer. Specifically, he argued that he was merely confused and in pain at the time of his interactions with the officers, and that this was the cause of his “negative interactions” with the officers. The court rejected this argument, noting: “The conduct proscribed under [N.C. Gen. Stat. §] 14-223 is not limited to resisting an arrest but includes any resistance, delay, or obstruction of an officer in discharge of his duties.” Here, the defendant committed multiple acts that obstructed the officer’s duties. The defendant would not roll down his window when asked by the officer, he repeatedly tried to start his car after being commanded to stop, he refused a breath test at least 10 times, and repeatedly put his hands in his pockets during the nystagmus testing after being instructed not to do so. He also refused to get into the patrol car once arrested and refused to voluntarily allow his blood to be drawn after a search warrant for it was obtained. In the court’s words:

Through these actions and his inactions, Defendant directly opposed the officers in their efforts to discharge their investigative duties of identifying him, speaking with him, and performing field sobriety tests. Thus, Defendant resisted the officers within the meaning of the statute.

The motion to dismiss for insufficient evidence of resisting a public officer was therefore properly denied.

The defendant also claimed his motion to dismiss for insufficiency as to the possession of open container of alcohol should have been granted. He pointed out that the bottle found in his car was not missing much alcohol and the officer admitted to emptying the bottle on the side of the road. Rejecting this argument, the court observed:

[T]he amount of alcohol missing from the container is irrelevant for purposes of this offense, because a contained is opened ‘[i]f the seal on [the] container of alcoholic beverages has been broken.’ Additionally, the fact that [the officer] poured out the contents of the container goes to the weight of the evidence, not its sufficiency.

The trial court therefore did not err in denying the motion for insufficient evidence for this offense.

(2) As to the suppression motion, the issue was preserved despite the motion being untimely because the court considered and ruled on the motion. The defendant argued that the forcible blood draw violated his rights to be free to unreasonable force. He did not challenge the validity of the search warrant authorizing the blood draw. Claims of excessive force are evaluated under the Fourth Amendment reasonableness standard. Graham v. Conner, 490 U.S. 386 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 22 (citations omitted). Here, the officer had a valid warrant (obtained after the defendant’s repeated refusals to provide a breath sample), and the blood draw was performed by medical professionals at a hospital. Any acts of force by police to obtain the blood sample were the result of the defendant’s own resistance. The court observed:

Defendant had no right to resist the execution of a search warrant, and in fact, his actions rose to the level of criminal conduct under N.C. Gen. Stat. § 14-223, for resisting a public officer. . . Defendant ‘cannot resist a lawful warrant and be rewarded with the exclusion of the evidence.’

The force used to effectuate the blood draw was reasonable under the circumstances and did not violate the Fourth Amendment.

The defendant also argued that his motion to suppress should have been granted for failure of the State to show that his blood was drawn by a qualified professional. G.S. 20-139.1(c) provides that doctor, registered nurse, EMT, or other qualified person shall take the blood sample. “An officer’s trial testimony regarding the qualifications of the person who withdrew the blood is sufficient evidence of the person’s qualifications.” Here, the officer testified that a nurse drew the blood, although he could not identify her by name and no other proof of her qualifications was admitted.  This was sufficient evidence that the blood was drawn by qualified person, and this argument was rejected.

(3) The trial court admitted into evidence the bottle found between the defendant’s legs at the time of arrest. According to the defendant, this was an abuse of discretion because the officers admitted to destroying the content of the bottle (by pouring it out) before trial. The defendant argued this was prejudicial and required a new trial. Because the defendant offered no authority that admission of the bottle into evidence was error, this argument was treated as abandoned and not considered.

(4) During the arrest, the stopping officer forgot to turn on his body camera and only began recording the investigation mid-way through. The officer also failed to record interactions with the defendant during processing after arrest in violation of department policy. The trial court found no constitutional violation. The defendant complained on appeal that the “intentional suppression” of this camera footage violated his Sixth and Fourteenth Amendment rights and sought dismissal or a new trial. However, the defendant only argued the Fourteenth Amendment Brady violation on appeal. His Sixth Amendment argument was therefore abandoned and waived.

As to the alleged Brady violation, the defendant did not seek dismissal in the trial court. “We are therefore precluded from reviewing the denial of any such motion, and Defendant’s request that this Court ‘dismiss the prosecution against him’ is itself dismissed.” However, the defendant’s argument at suppression that the failure to record the blood draw violated due process and warranted suppression was preserved. Under Brady v. Maryland, 373 U.S. 83 (1963), suppression of material evidence relevant to guilt or punishment violates due process, regardless of the government’s good or bad faith. Here though, there was no evidence that the State suppressed anything—the video footage was simply not created. Brady rights apply to materials within the possession of the State. “Defendant essentially asks this Court to extend Brady’s holding to include evidence not collected by an officer, which we decline to do.” There was also no indication that the video footage would have been helpful to the defendant. The court therefore rejected this claim. “Although the officers’ failure to record the interaction violated departmental policy, such violation did not amount to a denial of Defendant’s due process rights under Brady in this case.”

On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 698 (2017), in this felon in possession of a firearm case, the court held that Michigan v. Summers justifies a seizure of the defendant where he posed a real threat to the safe and efficient completion of a search and that the search and seizure of the defendant were supported by individualized suspicion. A SWAT team was sweeping a house so that the police could execute a search warrant. Several police officers were positioned around the house to create a perimeter securing the scene. The defendant penetrated the SWAT perimeter, stating that he was going to get his moped. In so doing, he passed Officer Christian, who was stationed at the perimeter near the street. The defendant then kept going, moving up the driveway and toward the house to be searched. Officer Ayers, who was stationed near the house, confronted the defendant. After a brief interaction, Officer Ayers searched the defendant based on his suspicion that the defendant was armed. Officer Ayers found a firearm in the defendant’s pocket. The defendant, who had previously been convicted of a felony, was arrested and charged with being a felon in possession of a firearm. He unsuccessfully moved to suppress at trial and was convicted. The Court of Appeals held that the search was invalid because the trial court’s order did not show that the search was supported by reasonable suspicion. The Supreme Court reversed holding “that the rule in Michigan v. Summers justifies the seizure here because defendant, who passed one officer, stated he was going to get his moped, and continued toward the premises being searched, posed a real threat to the safe and efficient completion of the search.” The court interpreted the Summers rule to mean that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain occupants who are within the immediate vicinity of the premises to be searched and who are present during the execution of a search warrant. Applying this rule, the court determined that “a person is an occupant for the purposes of the Summers rule if he poses a real threat to the safe and efficient execution of a search warrant.” (quotation omitted). Here, the defendant posed such a threat. It reasoned: “He approached the house being swept, announced his intent to retrieve his moped from the premises, and appeared to be armed. It was obvious that defendant posed a threat to the safe completion of the search.”

         Because the Summers rule only justifies detentions incident to the execution of search warrants, the court continued, considering whether the search of the defendant’s person was justified. On this issue the court held that “both the search and seizure of defendant were supported by individualized suspicion and thus did not violate the Fourth Amendment.”

Although an officer had reasonable suspicion to stop a juvenile, the officer’s subsequent conduct of ordering the juvenile to empty her pockets constituted a search and this search was illegal; it was not incident to an arrest nor consensual. The district court thus erred by denying the juvenile’s motion to suppress.

Probable cause and exigent circumstances supported an officer’s warrantless search of the defendant’s mouth by grabbing him around the throat, pushing him onto the hood of a vehicle, and demanding that he spit out whatever he was trying to swallow. Probable cause to believe that the defendant possessed illegal drugs and was attempting to destroy them was supported by information from three reliable informants, the fact that the defendant’s vehicle was covered in talcum powder, which is used to mask the odor of drugs, while conducting a consent search of the defendant’s person, the defendant attempted to swallow something, and that other suspects had attempted to swallow drugs in the officer’s presence. Exigent circumstances existed because the defendant attempted to swallow four packages of cocaine, which could have endangered his health.

In this McDowell County case, the Supreme Court reversed the Court of Appeals decision affirming the denial of defendant’s motion to suppress the results of a warrantless vehicle search. The Supreme Court held that the search and seizure were not justified under any applicable warrantless search exception and remanded the case to the trial court.

In May of 2018, sheriff’s deputies responded to the scene of a hit-and-run where a vehicle was partially submerged in a ditch. The driver fled the scene before deputies arrived due to outstanding warrants against him, but defendant was present and spoke to the deputies about the accident, explaining that it was her parents’ car but she was not the driver. Because defendant could identify the driver only by his first name, one of the deputies began searching the vehicle for his identification without consent from defendant. Eventually the deputy discovered a box that contained methamphetamine and drug paraphernalia, defendant was arrested, and a search of her backpack found additional contraband. At trial, defendant moved to suppress the results of the search, arguing it violated the Fourth Amendment; the trial court denied the motion and she was convicted of possession and trafficking in methamphetamine. On appeal, the Court of Appeals majority affirmed the denial of defendant’s motion, finding that the warrantless search was incident to arrest and permitted. The dissent disagreed, noting the driver was not arrested, and pointed out the automobile was immobile meaning the automobile exception also did not apply. Defendant appealed based upon this dissent, leading to the current case. 

The Supreme Court noted that “the Court of Appeals held that the search incident to arrest exception justified the warrantless search and merely noted without further explanation that the search still could have been justified as ‘an inventory [search] or for officer safety.’” Slip Op. at 8. For (A) search incident to arrest, the Court explained that this exception is motivated by officer safety and preservation of evidence. Under applicable precedent, officers may search the area of a vehicle within reaching distance of a suspect being arrested, and may conduct a search before an arrest, if the arrest occurs contemporaneous with the search and probable cause existed. Here, the driver fled the scene and could not reach any part of the vehicle. Additionally, “the State presented no evidence at the suppression hearing that [the driver] was ever arrested, let alone arrested contemporaneously with the search of the vehicle.” Id. at 11. Moving to defendant, who was a bystander outside the vehicle, “[t]here was no evidence presented at the suppression hearing that the interior of the vehicle was accessible to defendant or that there were any safety concerns for the officers.” Id. Under these circumstances, the Court held that the search incident to arrest exception was inapplicable. 

The Court then turned to (B) the automobile exception, and explained “[m]obility of the vehicle is a fundamental prerequisite to the application of the automobile exception.” Id. at 12, quoting State v. Isleib, 319 N.C. 634, 637 (1987). Here, this essential principle was missing, as the vehicle was stuck in a ditch. The Court observed that “[i]n fact, [a deputy] testified that he called a tow truck to remove the vehicle from the ditch.” Id. at 13. The Court held this exception was also inapplicable to the case, and no other exceptions plausibly applied. 

After determining the evidence was gathered in violation of the Fourth Amendment, the Court moved to whether the exclusionary rule, which would exclude the results of the search, should apply. Because the trial court previously concluded a valid search occurred, it never considered whether the exclusionary rule was an appropriate remedy. As a result, the Court remanded the matter for consideration of whether to exclude the evidence. 

Chief Justice Newby concurred in part and dissented in part by separate opinion, and would have held that the deputies acted reasonably and did not violate the Fourth Amendment while searching the vehicle for the driver’s identification. He concurred that the appropriate resolution if the defendant’s Fourth Amendment rights were violated was to remand to the trial court. Id. at 18. 

Justice Riggs did not participate in the consideration or decision of the case. 

In this Guilford County case, defendant appealed his attempted heroin trafficking and possession of a firearm convictions pursuant to a plea agreement that preserved his right to appeal the denial of his motion to suppress. The Court of Appeals affirmed the denial of defendant’s motion. 

The Guilford County Sheriff’s Office conducted a narcotics investigation in May of 2019. As part of the investigation, a confidential informant made several purchases of heroin from a person who was associated with defendant. During a purchase set up by the confidential informant, the seller was observed getting into a black SUV, a vehicle later spotted by an officer at a fuel pump near the arranged buy. After spotting the black SUV officers detained defendant, who was operating the SUV, and searched the vehicle, finding heroin and a loaded firearm. At trial, defendant moved to suppress the warrantless search and seizure, which the trial court denied after finding probable cause for the search. 

Reviewing defendant’s appeal, the Court of Appeals first examined the challenged findings of fact related to the officers’ testimony. Defendant argued that inconsistences between the testimony of the two officers meant that both could not be considered credible, and certain other findings of fact were inconsistent with the evidence presented. The court explained that slight inconsistencies between the testimony of two witnesses did not prevent both from being credible, and the trial court is tasked with evaluating the evidence and resolving inconsistencies. Because competent evidence supported the findings of fact even with the slight inconsistences, the court rejected defendant’s challenges. 

The court then reviewed the probable cause for a search of defendant’s SUV and the seizure of heroin and a firearm found inside the vehicle. The court explained that the “automobile exception” to the Fourth Amendment requires that the “vehicle be in a public vehicular area and the police have probable cause.” Slip Op. at 16. The first issue was whether defendant’s SUV was in a “public vehicular area” when searched; defendant argued that the area next to a fuel pump did not fall under the definition provided by G.S. § 20-4.01(32). The court explained that a “service station” is gas station for purposes of the statute, and although the fuel pump area may not be a “driveway, road, alley, or parking lot” as listed by the statute, this list is intended to be illustrative and not limiting. Slip Op. at 19. After examining applicable precedent, the court held that “the driving or parking area adjacent to a fuel pump at a service station is a ‘public vehicular area’” for purposes of G.S. § 20-4.01(32). 

After determining that defendant’s SUV was in a public vehicular area, the court turned to the probable cause for searching the vehicle. Defendant argued that the plain view and plain smell doctrines could not support the search of the vehicle. Regarding the plain view doctrine, the court pointed out that the vehicle was in a public vehicular area and near the location of the drug buy the officers were observing. For the plain smell doctrine, the court noted that there was no applicable precedent regarding the smell of heroin supporting a search, but ample precedent used the smell of other narcotics, such as marijuana and cocaine, to support probable cause for a search. The court saw “no reason to treat the plain smell of heroin any differently than the plain smell of marijuana or cocaine” for purposes of the plain smell doctrine, and affirmed the trial court’s determination of probable cause for the search. Slip Op. at 29.