State v. Scott, COA22-326, ___ N.C. App. ___ (Feb. 7, 2023)

In this New Hanover County case, defendant appealed his conviction for possessing a firearm as a felon, arguing error in the denial of his motion to suppress and improper sentencing. The Court of Appeals found no error.  

In February of 2020, a Wilmington police officer observed defendant enter a parking lot known for drug activity and confer with a known drug dealer. When defendant exited the parking lot, the officer followed, and eventually pulled defendant over for having an expired license plate. During the stop, the officer determined that defendant was a “validated gang member,” and had previously been charged with second-degree murder; the officer was also aware that a local gang war was underway at that time. Slip Op. at 2. The officer frisked defendant and did not find a weapon, but defendant told the officer there was a pocketknife in the driver’s door compartment. When the officer went to retrieve the pocketknife he did not find it, but while looking around the driver’s area he discovered a pistol under the seat. During sentencing for defendant, his prior record level was calculated with nine points for prior crimes and one additional point for committing a crime while on probation/parole/post-release supervision, leading to a level IV offender sentence. 

Reviewing defendant’s appeal, the court first noted that the initial traffic stop for an expired plate was proper. The frisk of defendant’s person and vehicle required the officer to have “a reasonable suspicion that the suspect of the traffic stop is armed and dangerous.” Id. at 7, quoting State v. Johnson, 378 N.C. 236 (2021). The court found the totality of the officer’s knowledge about defendant satisfied this standard, as defendant had just exited a parking lot known for drug transactions, had a history of being charged with murder, was a known gang member, and was in an area experiencing a local gang war. Because the officer had a reasonable suspicion that defendant might be armed and dangerous, the frisk of the vehicle leading to the discovery of the pistol was acceptable. 

Turning to defendant’s sentencing, the court explained that under G.S. 15A-1340.14(b)(7), the state was obligated to provide defendant with notice of its intent to add a prior record level point by proving his offense was committed while on probation, parole, or post-release supervision. While the record did not contain evidence that defendant received the required notice 30 days before trial, the court found that the exchange between defense counsel and the trial court represented waiver for purposes of the requirement. While the trial court did not confirm the receipt of notice through the colloquy required by G.S. 15A-1022.1, the exchange between the trial court and defense counsel fell into the exception outlined in State v. Marlow, 229 N.C. App 593, meaning “the trial court was not required to follow the precise procedures . . . as defendant acknowledged his status and violation by arrest in open court.” Slip Op. at 18.