State v. McCants, ___ N.C. App. ___, ___ S.E.2d ___ (Dec. 31, 2020)

In this Guilford County case, the defendant was on post-release supervision (PRS) for a previous felony. The Department of Public Safety deemed him to be a “high-risk offender” and a “validated gang member,” and thus included him in a May 2017 search operation conducted jointly with other state and federal law enforcement agencies. During that operation, officers searched the defendant’s residence and found a firearm in his bedside table, which led to a new criminal charge for possession of firearm by a felon. In response to the new criminal charge the defendant moved to suppress the handgun as the fruit of an illegal warrantless search, arguing that a warrantless search of his residence was unconstitutional under the federal and state constitutions in that it was not authorized by statute or as a matter of consent.

The trial court denied the motion to suppress, but the Court of Appeals reversed, agreeing that a warrantless search of the defendant’s home violated both the federal and state constitutions. The court distinguished Samson v. California, 547 U.S. 843 (2006), a case in which the Supreme Court upheld a warrantless search of a California parolee, limiting the reach of that case to situations in which the supervisee chooses supervision in the community (and its attendant conditions) over imprisonment. In North Carolina, defendants do not choose post-release supervision; to the contrary, by statute they may not refuse it. G.S. 15A-1368.2(b). Moreover, the statutory search condition applicable to post-release supervisees, G.S. 15A-1368.4(e)(10), allows searches only of the supervisee’s person, not of his or her premises. The Court of Appeals next rejected the State’s argument that the search was valid under the “catch-all” provision of G.S. 15A-1368.4(c), which allows the Post-Release Supervision and Parole Commission (the Commission) to impose conditions it believes reasonably necessary to ensure a supervisee will lead a law-abiding life. Applying the rule of statutory construction that the specific controls the general, the court took the existence of a specific statutory search condition for PRS limited to searches of the person as an indication that the General Assembly did not intend to grant the Commission general authority to allow other searches by way of the catch-all provision. The court also noted that related statutes applicable to searches of post-release supervisees who are sex offenders (G.S. 15A-1368.4(b1)), probationers (G.S. 15A-1343(b)(13)), and parolees (G.S. 15A-1374(b)(11)), expressly authorize searches of a defendant’s premises in addition to his or her person. The court viewed the omission of any similar language related to the defendant’s premises in the PRS condition as a demonstration of the General Assembly’s intent to limit the scope of the PRS search condition to searches of a defendant’s person.

Finally, the Court of Appeals agreed with the defendant that he did not voluntarily consent to the search of his residence. The officers who conducted the search informed the defendant that the search was permitted pursuant to the terms of his post-release supervision. However, as noted above, the Commission actually lacked the statutory authority to impose that condition. Under the logic of Bumper v. North Carolina, 391 U.S. 543 (1968), if “consent” to a search is based upon an officer’s belief that the officer has legal authority to conduct the search, but that belief turns out to be mistaken, then the purported consent is not valid. Moreover, as also noted above, the defendant had no statutory right to refuse PRS. The Court of Appeals concluded that the law could not “prejudice Defendant for agreeing to something he had no legal right to refuse.” Slip op. at 64.

In the absence of valid consent or an authorizing statute, the warrantless search was presumptively unreasonable and unconstitutional, and the trial court thus erred by denying the defendant’s motion to suppress the firearm and other evidence found during the search. The Court of Appeals reversed the trial court’s order denying the motion suppress, vacated the judgment entered pursuant to the defendant’s plea, and remanded the matter for additional proceedings.