In a per curiam opinion in this felon in possession of a firearm case, the court reversed the Court of Appeals for reasons stated in the dissenting opinion below, thus holding that the shotgun could be seized as conrtaband in plain view.

In the opinion below, ___ N.C. App. ___, 804 S.E.2d 235 (2017), the Court of Appeals held that the trial court erred by denying the defendant’s motion to suppress. Three officers entered the defendant’s apartment to execute arrest warrants issued for misdemeanors. While two officers made the in-home arrest, the third conducted a protective sweep of the defendant’s apartment, leading to the discovery and seizure of the stolen shotgun. The shotgun was leaning against the wall in the entry of the defendant’s bedroom. The bedroom door was open and the shotgun was visible, in plain view, from the hallway. The officer walked past the shotgun when checking the defendant’s bedroom to confirm that no other occupants were present. After completing the sweep, the officer secured the shotgun “to have it in . . . control and also check to see if it was stolen.” The officer located the serial number on the shotgun and called it into the police department, which reported that the gun was stolen. The officer then seized the weapon. The defendant moved to suppress the shotgun, arguing that the officer lacked authority to conduct a protective sweep and that the seizure could not be justified under the plain view doctrine. The trial court denied the defendant’s motion to suppress. The Court of Appeals began by finding that the protective sweep was proper, and there was no dissent on this issue. It held that the officer was authorized to conduct a protective sweep, without reasonable suspicion, because the rooms in the apartment—including the bedroom where the shotgun was found--were areas immediately adjoining the place of arrest from which an attack could be immediately launched. The court rejected the defendant’s argument that the bedroom area was not immediately adjoining the place of arrest. The defendant was in the living room when the officers placed him in handcuffs. The third officer immediately conducted the protective sweep of the remaining rooms for the sole purpose of determining whether any occupants were present who could launch an attack on the officers. Every room in the apartment was connected by a short hallway and the apartment was small enough that a person hiding in any area outside of the living room could have rushed into that room without warning. Based on the size and layout of the apartment, the trial court properly concluded that all of the rooms, including the bedroom where the shotgun was found, were part of the space immediately adjoining the place of arrest and from which an attack could have been immediately launched.

The Court of Appeals went on to hold however, over a dissent, that the plain view doctrine could not justify seizure of the shotgun. The defendant argued that the seizure could not be justified under the plain view doctrine because the incriminating nature of the shotgun was not immediately apparent. He also argued that the officer conducted an unlawful search, without probable cause, by manipulating the shotgun to reveal its serial number. The court concluded that observing the shotgun in plain view did not provide the officer with authority to seize the weapon permanently where the State’s evidence failed to establish that, based on the objective facts known to him at the time, the officer had probable cause to believe that the weapon was contraband or evidence of a crime. The officers were executing arrest warrants for misdemeanor offenses and were not aware that the defendant was a convicted felon. Before the seizure, the officer asked the other officers in the apartment if the defendant was a convicted felon, which they could not confirm. The court went on to find that the incriminating character of the shotgun became apparent only upon some further action by the officers, here, exposing its serial number and calling that number into the police department. Such action constitutes a search, separate and apart from the lawful objective of the entry. The search cannot be justified under the plain view doctrine because the shotgun’s incriminating nature was not immediately apparent. There was no evidence to indicate that the officer had probable cause to believe that the shotgun was stolen. It was only after the unlawful search that he had reason to believe it was evidence of a crime. The dissent--which was adopted by the supreme court--concluded that regardless of whether the officer knew that defendant was a felon or knew that the shotgun was stolen, it was immediately apparent that the shotgun was contraband. One of the regular conditions of the defendant’s probation was that he possess no firearms. Thus, the dissenting judge concluded, under the regular terms and conditions of probation, the shotgun was contraband. The dissenting judge continued: “Given that the officers were serving a warrant for a probation violation, it was immediately apparent that the shotgun was contraband.”