Smith's Criminal Case Compendium

Criminal Offenses > Motor Vehicle Offenses > Felony Death & Serious Injury by Vehicle

The defendant was convicted of first-degree murder based on felony murder, attempted first-degree murder, felonious discharge of a firearm into an occupied vehicle in operation, and two counts of conspiracy to commit first-degree murder. The defendant’s brother was the shooter and was convicted in a separate case. (1) On appeal the defendant argued that the trial judge committed plain error by admitting the following evidence. (A) A witness testified that the defendant knew that the defendant’s brother intended to shoot the victims. The Court found that the testimony was inadmissible because a witness may not testify to another person’s mind or purpose without personal knowledge of the person’s mind or purpose, a foundation not laid by the State. The Court concluded, however, that erroneous admission of the testimony did not have a probable impact on the jury’s finding that the defendant counseled and knowingly aided the shooting by assisting in luring the victims to the place where the defendant’s brother shot them. (B) Two witnesses who were not called as experts, one of whom was a detective, testified that the defendant concealed evidence about the planned shooting by using a smartphone texting app. Applying Rule 701 of the North Carolina Rules of Evidence, which requires that opinion testimony by lay witnesses be rationally based on a witness’s perception and helpful to the jury, the Court found that the State failed to lay a foundation showing that the witnesses were familiar with how the use of such apps affects cell phone records. The Court concluded that the erroneous admission of the testimony was not plain error because other evidence showed that the defendant was communicating with her brother via cellphone, that her brother destroyed his cellphone, and there were no records of their communications, which the jury could have viewed in a manner disadvantageous to the defendant. (C) A witness testified to the good character of one of the victims— that he was kind, protective, and nonviolent, among other qualities. The Court held that this testimony was inadmissible under Rule 404(a)(2) because it was not offered to rebut any evidence by the defendant that the victim was the first aggressor in the altercation. The Court concluded that the erroneous admission of the testimony was not plain error given other evidence consistent with the defendant’s guilt. (2) The defendant argued, the State conceded, and the Court found that the trial judge erred in allowing the jury to convict her of two counts of conspiracy because the evidence showed a single conspiracy to shoot two people. The Court therefore vacated one of the conspiracy convictions and remanded for resentencing. One judge concurred in the result only.

Criminal Procedure > DWI Procedure > Blood Test Results

(Dec. 31, 1969) , COA22-572, ___ N.C. App. ___ 2023-05-02

Evidence > Alcohol Tests, Generally

In this Edgecombe County case, defendant appealed his convictions for second-degree murder and aggravated serious injury by vehicle, arguing error in the denial of his motion to suppress a warrantless blood draw and motion to dismiss for insufficient evidence. The Court of Appeals found no error and affirmed.

In June of 2015, defendant crossed the centerline of a highway and hit another vehicle head on, causing the death of one passenger. Officers responding to the scene interviewed defendant, and noted his responses seemed impaired and the presence of beer cans in his vehicle. A blood draw was performed at the hospital, although the officer ordering the draw did not read defendant his Chapter 20 implied consent rights or obtain a search warrant before the draw. The results of defendant’s blood draw showed a benzodiazepine, a cocaine metabolite, two anti-depressants, an aerosol propellant, and a blood-alcohol level of 0.02.

Reviewing defendant’s argument that no exigent circumstances supported the warrantless draw of his blood, the Court of Appeals first noted that defense counsel failed to object to the admission of the drug analysis performed on defendant’s blood, meaning his arguments regarding that exhibit were overruled. The court then turned to the exigent circumstances exception to justify the warrantless search, noting that the investigation of the scene took significant time and defendant was not taken to the hospital until an hour and forty-five minutes afterwards. Acknowledging Supreme Court precedent “that the natural dissipation of alcohol in the bloodstream cannot, standing alone, create an exigency in a case of alleged impaired driving sufficient to justify conducting a blood test without a warrant,” the court looked for additional justification in the current case. Slip Op. at 11. Here the court found such justification in the shift change occurring that would prevent the officer from having assistance, and the delay in going to obtain a warrant from the magistrate’s office that would add an additional hour to the process. These circumstances supported the trial court’s finding of exigent circumstances.

The court then turned to defendant’s argument that insufficient evidence was admitted to establish he was impaired at the time of the accident. The record contained evidence that defendant had beer cans in his truck along with an aerosol can of Ultra Duster, and several witnesses testified as to defendant’s demeanor and speech after the accident. The record also contained a blood analysis showing defendant had five separate impairing substances in his system at the time of the accident, “alcohol, benzyl ethylene (a cocaine metabolite), Diazepam (a benzodiazepine such as Valium), Citalopram (an anti-depressant) and Sertraline (another anti-depressant called “Zoloft”).” Id. at 16. The court found that based on this evidence there was sufficient support for denying defendant’s motion.

Criminal Procedure > DWI Procedure > Implied Consent Issues

(Dec. 31, 1969) , 588 U.S. ___, 139 S. Ct. 2525 2019-06-27

Arrest, Search, and Investigation > Searches > Of People > Biological: Cheek Swab, Blood, Breath

The petitioner appealed from his impaired driving conviction on the basis that the State violated the Fourth Amendment by withdrawing his blood while he was unconscious without a warrant following his arrest for impaired driving. A Wisconsin state statute permits such blood draws. The Wisconsin Supreme Court affirmed the petitioner’s convictions, though no single opinion from that court commanded a majority, and the Supreme Court granted certiorari to decide “[w]hether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.”

Justice Alito, joined by Chief Justice Roberts, Justice Breyer and Justice Kavanaugh announced the judgment of the court and wrote the plurality opinion. The plurality noted at the outset that the Court’s opinions approving the general concept of implied consent laws did not rest on the idea that such laws create actual consent to the searches they authorize, but instead approved defining elements of such statutory schemes after evaluating constitutional claims in light of laws developed over the years to combat drunk driving. The plurality noted that the Court had previously determined that an officer may withdraw blood from an impaired driving suspect without a warrant if the facts of a particular case establish exigent circumstances. Missouri v.McNeely, 569 U.S. 141 (2013); Schmerber v. California, 384 U. S. 757, 765 (1966). While the natural dissipation of alcohol is insufficient by itself to create per se exigency in impaired driving cases, exigent circumstances may exist when that natural metabolic process is combined with other pressing police duties (such as the need to address issues resulting from a car accident) such that the further delay necessitated by a warrant application risks the destruction of evidence. The plurality reasoned that in impaired driving cases involving unconscious drivers, the need for a blood test is compelling and the officer’s duty to attend to more pressing needs involving health or safety (such as the need to transport an unconscious suspect to a hospital for treatment) may leave the officer no time to obtain a warrant. Thus, the plurality determined that when an officer has probable cause to believe a person has committed an impaired driving offense and the person’s unconsciousness or stupor requires him to be taken to the hospital before a breath test may be performed, the State may almost always order a warrantless blood test to measure the driver’s blood alcohol concentration without offending the Fourth Amendment. The plurality did not rule out that in an unusual case, a defendant could show that his or her blood would not have been withdrawn had the State not sought blood alcohol concentration information and that a warrant application would not have interfered with other pressing needs or duties. The plurality remanded the case because the petitioner had no opportunity to make such a showing.

Justice Thomas concurred in the judgment only, writing separately to advocate for overruling Missouri v. McNeely, 569 U.S. 141 (2013), in favor of a rule that the dissipation of alcohol creates an exigency in every impaired driving case that excuses the need for a warrant.

Justice Sotomayer, joined by Justices Ginsburg and Kagan, dissented, reasoning that the Court already had established that there is no categorical exigency exception for blood draws in impaired driving cases, although exigent circumstances might justify a warrantless blood draw on the facts of a particular case. The dissent noted that in light of that precedent, Wisconsin’s primary argument was always that the petitioner consented to the blood draw through the State’s implied-consent law. Certiorari review was granted on the issue of whether this law provided an exception to the warrant requirement. The dissent criticized the plurality for resting its analysis on the issue of exigency, an issue it said Wisconsin had affirmatively waived.

Justice Gorsuch dissented by separate opinion, arguing that the Court had declined to answer the question presented, instead upholding Wisconsin’s implied consent law on an entirely different ground, namely the exigent circumstances doctrine.

(Dec. 31, 1969) , COA22-408, ___ N.C. App. ___ 2023-07-05

Arrest, Search, and Investigation > Searches > Of People > Biological: Cheek Swab, Blood, Breath

Evidence > Opinions > Lay Opinions > DWI Cases

In this Buncombe County case, defendant appealed his convictions for driving while impaired and reckless driving, arguing (1) there was insufficient evidence that he was driving the vehicle, and (2) error in denying his motion to suppress the results of a warrantless blood draw. The Court of Appeals majority found no error.

In November of 2014, a trooper responded to a single vehicle accident and found a heavily damaged pickup truck against a steel fence off the side of the road. Defendant was inside the vehicle, unconscious and seriously injured. The trooper noticed the smell of alcohol and open beer cans in the vehicle. Defendant was the owner of the wrecked vehicle and there were no other people at the scene of the accident. At the hospital, the trooper ordered a warrantless blood draw. The results of this blood draw were that defendant was intoxicated, and these results were admitted at trial. The jury subsequently convicted defendant of drunk driving solely on the grounds that his blood alcohol level was above the legal limit under G.S. 20-138.1(a)(2).

The Court of Appeals first considered (1), noting that admitting opinion testimony from the trooper that defendant was operating the vehicle was improper, as the trooper did not observe defendant actually drive the pickup truck. The court explained this was not reversible error because the trial court provided a curative instruction to the jury, directing them to disregard the trooper’s testimony that defendant was the driver. The court found that sufficient evidence beyond the trooper’s testimony supported finding that defendant was the driver, justifying denial of defendant’s motion to dismiss.

Considering (2), the court explained that exigent circumstances supporting a warrantless blood draw almost always exist where a defendant is unconscious and being taken to a hospital. In Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019), the Supreme Court’s plurality held that normally law enforcement may order a warrantless blood draw when the suspect is unconscious and taken to a hospital for treatment, but that the defendant must have an opportunity to argue the lack of exigency and show an “unusual case” that would require a warrant. Slip Op. at 8. Here, the court found that defendant had such an opportunity, and found no error in admitting the results of the blood draw.

Judge Tyson concurred in the judgment on (1), but dissented by separate opinion regarding (2), disagreeing with the majority’s application of Mitchell and the admission of the results obtained through the warrantless blood draw.

Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Human Trafficking and Related Offenses

(Dec. 31, 1969) , ___ N.C. App. ___, 2021-NCCOA-694 2021-12-21 review granted, ___ N.C. ___, 871 S.E.2d 511 (May 4 2022)

Criminal Procedure > Counsel Issues > Right to Proceed Pro Se/Termination of Right

Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Rape

(Dec. 31, 1969) , 283 N.C. App. 259 2022-05-03

In this Randolph County case, the defendant appealed from his conviction for statutory rape, arguing that the trial court erred in (1) denying his motion to suppress evidence from his interrogation because he requested and did not receive counsel, and (2) denying his motion to dismiss because the dates alleged in the indictment varied from the victim’s testimony.

(1) The defendant came to the sheriff’s office for questioning at a detective’s request. Detectives told him about the victim’s allegations that they had vaginal intercourse over a two-year period beginning in 2016, when the victim was 14 and the defendant was 33. After the detectives played a recording of the defendant speaking to the victim, the defendant admitted he had engaged in vaginal intercourse with the victim multiple times in 2017 and 2018. A detective subsequently told the defendant he was under arrest and read the defendant Miranda rights. The defendant said, “I’ll talk to you but I want a lawyer with it and I don’t have the money for one.” The detectives asked additional questions about whether the defendant wanted to speak without a lawyer present. One detective told the defendant that speaking with the detectives “can’t hurt.” This exchange culminated in the defendant signing a waiver of his right to counsel and continuing to speak with the detectives.

The defendant moved to suppress any statements from the interrogation. The trial court denied the motion. The Court of Appeals found no error, concluding that the defendant was not in custody when he initially confessed and that a reasonable police officer would not have understood the defendant’s statement after he was arrested as an unambiguous request for counsel during interrogation. The Court determined that the trial court’s findings were supported by competent evidence that defendant’s request for counsel was ambiguous and the detectives’ statements were an attempt to clarify the defendant’s statements.

(2) The date of the vaginal intercourse listed on the indictment was 2017, but the victim testified at trial that the intercourse occurred in 2016. The defendant moved to dismiss based on this variance. The trial court denied the motion and the Court of Appeals found no error. The Court reasoned that the date given in an indictment for statutory rape is not an essential element of the crime, and noted that courts are lenient concerning dates in cases involving the sexual abuse of minors. The Court concluded that the victim’s testimony alleging vaginal intercourse in 2016 between her and Defendant—when she was 14 and the defendant was 19 years her elder—was sufficient to survive a motion to dismiss.

Judge Arrowood concurred in the result, but wrote separately to opine that once the defendant stated that he wanted a lawyer, the custodial interrogation should have ceased. Nevertheless, given that defendant’s initial confession was made voluntarily and prior to custodial interrogation, Judge Arrowood would have found the trial court’s denial of the suppression motion to be harmless error.

Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Felon in Possession

(Dec. 31, 1969) , COA22-669, ___ N.C. App. ___ 2023-05-16

In this Cleveland County case, defendant appealed his conviction for aiding and abetting possession of a firearm by a felon, arguing a fatally defective indictment and error in dismissing his motion to dismiss for insufficient evidence. The Court of Appeals disagreed on both points and found no error.

Detectives in an unmarked vehicle observed a black pickup truck swerve left of the center line several times while driving, and initiated a traffic stop. Defendant was seated in the passenger seat of the truck when the detectives approached. The driver of the vehicle was known to be a felon by the detectives, and they conducted Terry frisks of defendant and the driver of the truck, finding .32 caliber ammunition in the pocket of the driver. After finding the ammunition, the detectives searched the truck, finding a handgun inside the glovebox and another hidden under the center seat, as well as magazines and ammunition around the vehicle.

Reviewing defendant’s challenge to the indictment, the Court of Appeals first explained the necessary elements of aiding and abetting another person in a crime, and the then the necessary elements of possession of a firearm by a felon. Turning to the text of the indictment, the court found all the necessary elements for the crime, overruling defendant’s argument.

The court next looked to the sufficiency of the evidence, explaining that defendant argued no proof of his intent to commit the crime, even though the elements of the offense do not include an intent requirement, because the indictment referenced his knowledge of the driver’s prior felony conviction. Looking at the evidence in the record, the court found sufficient evidence that defendant provided a firearm to the driver of the vehicle, and that defendant was aware of the driver’s prior felony conviction. This led the court to conclude sufficient evidence existed to support the conviction.

Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Drug Name

(Dec. 31, 1969) , COA22-715, ___ N.C. App. ___ 2023-03-07

In this Henderson County case, defendant appealed his conviction for trafficking opium or heroin by possession, arguing error in the denial of his requested instruction that the jury must find he knew what he possessed was fentanyl. The Court of Appeals found no error.

In March of 2018 the Henderson County Sheriff’s Office executed a warrant for defendant’s arrest at a home in Fletcher. During the arrest, an officer smelled marijuana and heard a toilet running in the house, leading the police to obtain a search warrant for the entire home. During this search, officers found a plastic bag with white powder inside, as well as some white powder caked around the rim of a toilet. Officers performed a field test on the substance which came back positive for cocaine, but when lab tested, the substance turned out to be fentanyl. At trial, one of the officers testified that “everyone” at the scene believed the substance they found was cocaine on the day of the search. Defendant chose not to testify during the trial, and had previously refused to give a statement when arrested.

Turning to defendant’s arguments, the court found that no evidence in the record supported defendant’s contention that he lacked guilty knowledge the substance was fentanyl. Defendant pointed to the officer’s testimony that “everyone” believed the substance was cocaine, but “[r]ead in context, it is apparent that [the officer] was referring to the knowledge of the officers who initially arrested [defendant and another suspect] for possession of cocaine, as the excerpted testimony immediately follows a lengthy discussion of their rationale for doing so.” Slip Op. at 8. Because defendant did not testify and no other evidence supported his contention that he lacked knowledge, his circumstances differed from other cases where a defendant was entitled to a guilty knowledge instruction. The court explained that evidence of a crime lacking specific intent, like trafficking by possession, creates a presumption that defendant has the required guilty knowledge; unless other evidence in the record calls this presumption into question, a jury does not have to be instructed regarding guilty knowledge. Id. at 9.

Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Amount of Drugs

(Dec. 31, 1969) , 286 N.C. App. 160, 2022-NCCOA-600 2022-11-01

Criminal Offenses > Drug Offenses > Proof the Substance is a Controlled Substance

Criminal Procedure > Appellate Issues > Failure to Raise Issue/Object at Trial & Related Issues

There was therefore sufficient evidence of the conspiracy conviction and no error in admission of the phone call between law enforcement and the co-conspirator.

Criminal Procedure > Jury Argument > Incorrect Statement of Law

(Dec. 31, 1969) , COA23-319, ___ N.C. App. ___ 2024-04-02

Criminal Offenses > Sexual Exploitation of a Minor & Obscenity

In this New Hanover county case, defendant appealed his convictions for two counts of first-degree sexual exploitation of a minor, arguing error in (1) denying his motion to dismiss for insufficient evidence, (2) failing to instruct the jury on second-degree exploitation of a minor as a lesser-included offense, (3) allowing a detective to provide testimony regarding the elements of the charged offense, and (4) mistakenly identifying the charge as “sexual assault” one time during the jury instruction. The Court of Appeals found no error.

In 2018, defendant and a group of friends attended a Halloween party with the plan to find a girl and have sex with her while filming it. Several members of the group made recordings of defendant and others having sex with a minor girl from the party, and these videos were discovered by law enforcement during an unrelated traffic stop. Defendant filed a motion to dismiss the charges, but the trial court denied the motion, and defendant was subsequently convicted of both counts.

For (1), defendant argued that there was insufficient evidence that he engaged in the sex with a minor for the purpose of producing material showing their sexual activity, an essential element of the charges. The Court of Appeals explained that defendant was guilty of the offense because he acted in concert with others. Even if defendant was not the principal offender, the court concluded that “substantial evidence demonstrates [defendant] acted in concert with his friends by engaging in the sexual activity which they recorded with the knowledge they were recording it.” Slip Op. at 9.

Moving to (2), the court looked to the statutes creating the relevant offenses, noting that under G.S. 14-190.16(a)(1) “[t]he focus of first-degree sexual exploitation is the direct mistreatment of the minor or the production of material for sale or profit.” Id. at 13. This contrasted with G.S. 14-190.17(a)(1), where second-degree sexual exploitation criminalized the actions of those “involved in the production or after-the-fact distribution of such material,” without the requirement of producing material for sale or gain. Id. The court also pointed to State v. Fletcher, 370 N.C. 313 (2017), where the Supreme Court highlighted that the second-degree sexual exploitation did not involve directly facilitating the involvement of a minor victim. This led the court to conclude that second-degree exploitation of a minor was not a lesser-included offense.

In (3), defendant argued that the officer’s testimony instructed the jury that merely being filmed having sex constituted a violation of G.S. 14-190.16(a)(1), and this testimony confused the jury as to the statute’s requirement that defendant must have intent to produce material. The court disagreed, pointing out that the testimony was during cross-examination related to the questioning of one of the friends who attended the party, and the officer “simply answered why he did not feel compelled to question [one of the friends] regarding the filming of the sexual activity, and he gave a logical, albeit legally incorrect, response.” Id. at 16. The court determined this response made sense in context, and was not improperly instructing the jury as to the elements of the offense.

Arriving at (4), the court explained that the trial court’s mistaken statement that the offense was “sexual assault” only occurred once, during the instruction related to acting in concert. This was inadvertent, and the trial court provided the correct instruction on the elements of first-degree exploitation of a minor, as well as the correct charge when providing a second instruction on acting in concert where the trial court did not make the mistake. As a result, the court found no danger that the jury was confused as to the charge.

Criminal Procedure > Jury Argument > Miscellaneous Cases

(Dec. 31, 1969) , 2022-NCCOA-908, ___ N.C. App. ___ 2022-12-29

Criminal Offenses > Homicide > Premeditation & Deliberation

Evidence > Relevancy--Rule 401 > Context Evidence

In this Randolph County case, the Court of Appeals upheld defendant’s conviction for solicitation to commit first-degree murder, finding no prejudicial error by the trial court.

In 2018, defendant, a high school student, confessed to his girlfriend that he had homicidal thoughts towards several of his fellow students, and attempted to recruit his girlfriend to help him act on them. His girlfriend showed the messages they exchanged to her mother and the school resource officer, leading to further investigation that found defendant had a cache of guns and knives, as well as a detailed list of persons he wished to kill and methods he would use. When the matter came to trial, the state offered testimony from 11 of the 13 persons on the kill list, and during closing arguments made reference to the “current events” that were presumably mass shootings at high schools. Defendant was subsequently convicted in 2020.

Reviewing the appeal, the court first considered (a) defendant’s motion to dismiss for insufficient evidence, reviewing whether defendant solicited his girlfriend for the crime. The court found sufficient evidence of solicitation, explaining that solicitation is an “attempt to conspire,” and the offense does not require fully communicating the details of the plan. Instead, once defendant proposed the killings he had planned to his girlfriend, and attempted to recruit her to assist, the offense was complete, despite the fact that he did not fully share his detailed plans. Slip Op. at 12-13.

The court next considered (b), dismissing defendant’s argument that the indictment fatally varied from the jury instruction; the court found that this was actually an attempt to present an instructional error “within the Trojan horse of a fatal variance.” Id. at 15. Considering (c), the court disagreed with defendant’s allegation that Rules of Evidence 401 and 402 barred admission of defendant’s drawings and notes of the Joker and weapons, and testimony from 11 of the potential victims. The drawings were relevant to show defendant’s state of mind and evaluate the nature of the potential crime, and the testimony was relevant to show the potential victims were real people and that defendant had the specific intent to commit the crime. Id. at 17-18. The court also considered (d) whether Rule of Evidence 403 barred admission of this evidence as prejudicial, finding no abuse of discretion as “the evidence served a probative function arguably above and beyond inflaming [the jury’s passions].” Id. at 20.

Considering the final issue (e), whether the trial court should have intervened ex mero moto during the state’s closing argument, the court found error but not prejudicial error. The court found error in the state’s closing argument when the prosecutor “appealed to the jury’s sympathies by describing the nature of the Joker and insinuating that [d]efendant was planning a mass shooting.” Id. at 25. The court presumed that these statements were intended to suggest that defendant’s conviction would assist in preventing another mass shooting, but noted that they did not rise to the level of prejudicial error due to the other factual details in the argument, and the “multiple items of physical evidence and segments of testimony evidencing [d]efendant’s intent.” Id. at 28.

Criminal Procedure > Jury Instructions > Specific Instructions > Acting in Concert

(Dec. 31, 1969) , 376 N.C. 420 2020-12-18

Officers investigating complaints of drug activity at a home where the defendant lived with several others discovered methamphetamine, heroin, and cocaine in a small yellow tin in a dresser in the alcove near defendant’s bedroom, an area that the defendant claimed as his personal space. The defendant had allowed officers to search the area, acknowledging that he had used methamphetamine and prescription pills, and that his bedroom likely contained needles and pipes (which were in fact found by the officers), but telling the officers that he did not think they would find any illegal substances. Without the defendant’s knowledge, another resident of the home, Autumn Stepp, had placed the yellow tin, which she referred to as her “hard time stash,” in the dresser before leaving the home earlier that day.

The defendant was charged with possession with intent to sell and deliver methamphetamine, heroin, and cocaine and with maintaining a dwelling house for the sale of controlled substances. He also was indicted for having attained the status of an habitual felon. At the close of the State’s evidence, the trial court dismissed all charges except for simple possession of heroin, methamphetamine, and cocaine. The State requested, and the judge delivered over the defendant’s objection, a jury instruction on the theory of acting in concert in addition to constructive possession. The jury convicted the defendant of simple possession of heroin, methamphetamine, and cocaine and determined that he had attained the status of an habitual felon. The trial court imposed two consecutive sentences of 50 to 72 months of imprisonment. Defendant appealed.

In a divided opinion, the court of appeals determined that the instruction was proper as it was supported by the evidence. The defendant appealed to the North Carolina Supreme Court.

The state supreme court noted that to support a jury instruction on the theory of acting in concert, the State must produce evidence that the defendant acted together with another who did the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. Mere presence at the scene of the crime is insufficient to support such an instruction. The supreme court agreed with the dissent below that there was no evidence that the defendant acted together with Stepp pursuant to a common plan or purpose; therefore, the supreme court concluded that the trial court erred by giving the instruction. The court reasoned that the discovery of the tin in the defendant’s personal area could indicate his capability to maintain dominion and control over it, thereby supporting a theory of constructive possession, but did not show a common plan or purpose in which the defendant acted in concert with Stepp to protect her “hard time stash.” Likewise, defendant’s admission that he had used illegal drugs on the day of the search and with Stepp in the past could support a theory of constructive possession, but did not demonstrate a common plan or purpose between defendant and Stepp as to the substances in the yellow tin.

Because the State’s evidence supporting the theory of constructive possession was controverted and not exceedingly strong and given the prospect of confusion presented by proceeding on a theory of possession by acting in concert and constructive possession, the court concluded there was a reasonable possibility that had the trial court not instructed on acting in concert a different result would have been reached. The state supreme court thus reversed the decision of the court of appeals, vacated the defendant’s convictions and ordered a new trial.

Justice Newby dissented based on his view that the majority failed to consider the evidence in the light most favorable to the State. Through that lens, he would have found sufficient evidence to support the theory of acting in concert.

Criminal Procedure > Jury Instructions > Specific Instructions > Eyewitness Identification

(Dec. 31, 1969) , ___ N.C. App. ___, ___ S.E.2d ___ 2020-05-05

Two men attempted to rob the victim in a McDonald’s parking lot. One of the suspects fired a gun, and both suspects fled. The victim ran to a nearby parking lot, where he found a law enforcement officer. The victim told the officer what had occurred and described the suspects. Two suspects matching the description were located nearby a few minutes later. When officers approached, the defendant ran. He was apprehended a few minutes later. The victim was taken to the location where the defendant was apprehended, and the victim identified the defendant as the person with a gun who had tried to rob him earlier. The identification was recorded on one of the officer’s body cameras.

The defendant was indicted for attempted robbery with a dangerous weapon. He moved to suppress the victim’s show-up identification. The trial court denied the motion, and the defendant was convicted at trial. The defendant appealed, arguing that the trial court erred when it denied his motion to suppress evidence of the show-up identification and when it failed to instruct the jury about purported noncompliance with the North Carolina Eyewitness Identification Reform Act (“the Act”).

(1) G.S. 15A-284.52(c1) of the Act provides that

A show-up may only be conducted when a suspect matching the description of the perpetrator is located in close proximity in time and place to the crime, or there is reasonable belief that the perpetrator has changed his or her appearance in close time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness;
A show-up may only be performed using a live suspect; and
Investigators must photograph a suspect at the time and place of the show-up to preserve a record of the suspect’s appearance at the time of the show-up.

The Court of Appeals determined that the trial court made findings that supported each of these requirements. The defendant, who matched the victim’s description, was detained less than a half-mile from the site of the attempted robbery. He was suspected of a violent crime that involved the discharge of a firearm and he fled when officers first attempted to detain him. These circumstances required an immediate display of the defendant. An armed suspect who is not detained poses an imminent threat to the public. And had the victim determined that the defendant was not the perpetrator, officers could have released the defendant and continued their search. Finally, the show-up involved a live suspect and was recorded on camera.

The Court of Appeals rejected the defendant’s argument that the Act requires law enforcement officers to obtain a confidence statement and information related to the victim’s vision. G.S. 15A-284.52(c2) requires the North Carolina Criminal Justice Education and Training Standards Commission to develop a policy regarding standard procedures for show-ups. The policy must address “[c]onfidence statements by the eyewitness, including information related to the eyewitness’ vision, the circumstances of the events witnessed, and communications with other eyewitnesses, if any.” The court reasoned that because G.S. 15A-284.52 does not place additional statutory requirements on law enforcement, but instead requires the North Carolina Criminal Justice Education and Training Standards Commission to develop nonbinding guidelines, only G.S. 15A-284.52(c1) sets forth the requirements for show-up identification compliance.

The court further determined that the show-up did not violate the defendant’s due process rights as it was not impermissibly suggestive and did not create a substantial likelihood of misidentification.

(2) G.S. 15A-284.52(d)(3) provides that when evidence of compliance or noncompliance with “this section” of the Act is presented at trial, the jury must be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications. The defendant argued on appeal that he was entitled to a jury instruction on noncompliance with the Act because the officer did not obtain an eyewitness confidence level under G.S. 15A-284.52(c2)(2). The Court of Appeals rejected that argument on the basis that G.S. 15A-284.52(c2) concerns policies and guidelines established by the North Carolina Criminal Justice Education and Training Standards Commission, not the requirements for show-up identifications. Because the officers complied with the show-up procedures in G.S. 15A-284.52(c1), the defendant was not entitled to a jury instruction on noncompliance with the Act.

Criminal Procedure > Jury Instructions > Specific Instructions > Flight

(Dec. 31, 1969) , 284 N.C. App. 473 2022-07-19

Criminal Offenses > Motor Vehicle Offenses > Impaired Driving

In this Brunswick County case, defendant appealed his conviction for habitual impaired driving. The Court of Appeals found no error after examining the trial court’s denial of defendant’s motion to suppress and motion to dismiss, and the jury instruction provided regarding defendant’s flight from the scene.

Evidence admitted at trial showed that a witness heard a crash and ran outside to see defendant with a bloody nose sitting behind the wheel of his truck, which was crashed into a ditch. After talking with the witness for several minutes, defendant walked off down the highway and up a dirt road into the woods. Law enforcement arrived, received a description from the witness, and conducted a search, finding defendant behind a bush in the woods 15 minutes later. After handcuffing defendant, the law enforcement officer conducted a “show-up” identification by taking defendant back to the witness and allowing the witness to identify defendant through the rolled-down window of the police vehicle.

The court first examined defendant’s motion to suppress the eyewitness “show-up” identification on due process and Eyewitness Identification Reform Act grounds (“EIRA”) (N.C.G.S § 15A-284.52(c1)-(c2)). Following State v. Malone, 373 N.C. 134 (2019), the court performed a two-part test, finding that although the “show-up” was impermissibly suggestive, the procedures used by law enforcement did not create a likelihood of irreparable misidentification when examined through the five reliability factors articulated in Malone. Applying EIRA, the court found that all three of the requirements in subsection (c1) were followed, as law enforcement provided a live suspect found nearby a short time after the incident and took photographs at the time of the identification. The court also held that subsection (c2) imposes no duty on law enforcement, and instead imposes a duty to develop guidelines on the North Carolina Criminal Justice Education and Training Standards Commission.

The court then reviewed defendant’s motion to dismiss for insufficient evidence showing that he was driving the vehicle. Applying State v. Burris, 253 N.C. App. 525 (2017), and State v. Clowers, 217 N.C. App. 520 (2011), the court determined that circumstantial evidence was sufficient to support a conclusion that defendant was driving the vehicle. Because the circumstantial evidence was substantial and supported the inference that defendant was driving, the lack of direct evidence did not support a motion to dismiss.

Finally, the court examined the jury instruction given regarding defendant’s flight from the scene, Pattern Jury Instruction 104.35. Defendant argued that the evidence showed only that he was leaving the scene of the accident and walking towards his home, actions that did not represent evidence of consciousness of guilt. The court applied the extensive caselaw finding no error in a flight jury instruction when evidence shows the defendant left the scene and took steps to avoid apprehension. Because evidence in the record showed that defendant fled and hid behind a bush, the court found sufficient evidence to support the use of the jury instruction, despite defendant’s alternate explanation of his conduct.

Criminal Procedure > Jury Instructions > Specific Instructions > Self-Defense

(Dec. 31, 1969) , 375 N.C. 434 2020-09-25

Defenses > Self-Defense

In this felony murder case based on the underlying felony of assault with a deadly weapon with intent to kill inflicting serious injury, the trial court erred by not instructing the jury on self-defense and the doctrine of transferred intent. The evidence at trial showed that the defendant and a friend arrived at the apartment of Beth and Jon intending to buy marijuana from Jon. By the time the defendant and his friend left the apartment, Jon, Beth, and the defendant had been shot. Jon died as a result. The defendant testified that while in the apartment living room, he picked up a gun he found on a coffee table because “it looked cool,” which caused Jon to become aggressive and Beth to emerge from a bedroom pointing a gun at the defendant. After convincing Beth to drop her weapon by threatening to kill Jon, the defendant testified that he ran from the apartment, saw Jon pull a gun, and felt himself be shot in the side. This caused the defendant to shoot in Jon’s direction “as best as [he] could” and “intentionally” at him. The court explained that this testimony taken in the light most favorable to the defendant entitled him to a jury instruction on perfect self-defense for any shot intended for Jon because , if believed, it showed (1) he subjectively believed that he was going to die if he did not return fire; (2) such a belief was reasonable; (3) he was not the aggressor; and (4) did not use excessive force. Further, he was entitled to an instruction on self-defense through transferred intent for the AWDWIKISI charge relating to Beth as her injury could have been caused by a bullet intended for Jon. The trial court correctly gave a self-defense instruction on premeditated murder but erred by refusing to give the defendant’s requested self-defense instruction on felony murder or any underlying felony, including the assault. This error was prejudicial because it impaired the defendant’s ability to present his defense to felony murder and the assault charge.

In addition, the Court of Appeals erred by remanding the case for entry of a judgment convicting the defendant of second-degree murder, a verdict the jury returned after the trial court accepted a partial verdict on the felony murder charge and directed the jury to continue to deliberate on the premeditated murder charge. The trial court’s decision to require continued deliberation and its associated instructions could have resulted in an improper finding by the jury that the defendant was guilty of second-degree murder. Thus, the court remanded for a new trial on all charges.

Justice Newby dissented, stating his view that the trial court’s jury instructions, which included a general transferred-intent instruction but not the specific instruction requested by the defendant, enabled the defendant to make the jury argument he desired. Justice Newby interpreted the jury’s verdicts as a rejection of the defendant’s self-defense theory.

Criminal Procedure > Jury Instructions > Miscellaneous Issues

(Dec. 31, 1969) , 274 N.C. App. 135 2020-10-20

The defendant, a fisherman, was charged with violating marine fisheries regulations after he left gill nets and crab pots unattended for too long. The officer that cited Defendant for these violations used a form citation indicating that the Defendant was being charged with committing these regulatory violations “unlawfully and willfully.” The defendant was convicted by a jury of the unattended gill net offense in superior court. (1) On appeal, the defendant argued that the trial court committed plain error by failing to instruct the jury that the State must prove that his violation was willful, contending that the offense was not a strict liability offense. The Court of Appeals disagreed, concluding that G.S. 113-135(a), the statute that criminalizes the conduct at issue, did not establish a mens rea for the offense. The Court rejected the defendant’s argument that the General Assembly did not authorize the creation of strict liability regulatory offenses. In light of the language of the statutes governing these “public welfare” offenses, their relatively minor punishment, and the logistical difficulty of investigating the willfulness of every such violation, the Court held that they are strict liability offenses that do not require the State to prove intent. (2) The Court also held that the trial court did not err in failing to instruct the jury on willfulness, despite the language in the charging instrument alleging that the defendant acted “willfully.” That language went beyond the elements of the offense and was properly disregarded as surplusage.

(Dec. 31, 1969) , ___ N.C. App. ___, ___ S.E.2d ___ 2020-07-07

Criminal Offenses > Obstruction of Justice and Related Offenses > Obstruction of Justice

Arrest, Search, and Investigation > Identification of Defendant > Pretrial Line-Up

Criminal Procedure > Motions > Suppression Motions > Findings of Fact & Conclusions of Law

(Dec. 31, 1969) , ___ N.C. App. ___, 836 S.E.2d 670 2019-11-19

An officer patrolling the parking area of a park just before closing discovered the defendant asleep in her car. Based on the defendant’s positioning, he was concerned there might be a medical emergency, so he knocked on the window of her car. After he knocked several times, the defendant sat up, looked at him, and opened the driver’s side door. She said she was camping in the park with her son and decided to take a nap in her car. Her speech was slurred, her eyes were bloodshot, and she was unsteady on her feet when she got out of her car. The officer also saw track marks on her arms that were consistent with heroin use. The officer asked for the defendant’s license, and, while holding it, asked for consent to search the defendant’s car and her purse, which was sitting in the front seat of the car.

The State and defendant presented conflicting evidence about what happened next. The officer said that defendant responded, “Sure.” The defendant said the officer asked three times for permission to search her car and each time she said, “I would really rather you not.” She said she only consented to the search after the officer threatened to arrest her.

The officer searched the defendant’s purse and found several syringes in its top section. He then asked the defendant whether she was carrying anything illegal. The defendant asked whether she was going to jail. The officer told her that he would not take her to jail if she cooperated. The defendant told him she had a syringe containing heroin in the side compartment of her purse. The officer found the syringe there, along with a burnt spoon and two grams of heroin.

The defendant was not arrested that evening, but subsequently was indicted for possession of heroin and possession of drug paraphernalia. She filed a motion to suppress the evidence obtained from the search, which the trial court denied. She pled guilty, preserving her right to appeal. On appeal, she argued that she did not voluntarily consent to the search of her purse, and that the trial court’s findings on that issue were insufficient. The court of appeals disagreed. Rejecting the defendant’s argument to the contrary, the court explained that the question of whether consent to search was voluntary is one of fact, not law.

The trial court determined that the defendant freely gave consent to the officer to search her vehicle and her purse. This finding was supported by the officer’s testimony at the suppression hearing that he asked defendant for consent to search her car and purse, and she said, “Sure.” The court of appeals concluded, therefore, that the trial court’s finding that the defendant’s consent was “freely given” was supported by competent evidence and was binding on appeal. Though the trial court failed to make a specific finding that the search did not violate the defendant’s Fourth Amendment rights, the appellate court reached that conclusion based on the finding of fact that the defendant voluntarily consented to the search. Thus, the court of appeals concluded that the trial court did not err in denying the defendant’s motion to suppress.

(Dec. 31, 1969) , ___ N.C. App. ___, 833 S.E.2d 223 2019-09-17

Officers obtained a search warrant to search the defendant’s house. They executed the warrant, found drugs, and charged the defendant with drug offenses. The defendant moved to suppress, arguing that the warrant contained material misrepresentations and did not provide probable cause to support the issuance of the warrant. A superior court judge denied the motion, and the defendant was convicted and appealed. The court of appeals reversed. (1) The trial judge did not set forth adequate conclusions of law. Although formal findings of fact are not required when the evidence regarding a motion to suppress is not in conflict, a judge must still provide conclusions of law, i.e., must explain the reason for the judge’s ruling. In this case, the defendant made multiple challenges to the warrant and the trial judge merely denied the motion without further explanation. (2) The warrant was not supported by probable cause. The application was based on information from a confidential and reliable informant. The informant claimed to have purchased drugs from the defendant in the past, but reported that the defendant had become more cautious recently and now would sell drugs only through a specific middleman. The informant reported that she had recently picked up the middleman, dropped the middleman off in “the general area of defendant’s home” and picked him up shortly thereafter in possession of drugs. The court of appeals concluded that this did not provide probable cause as the middleman was of unknown reliability and no one had observed him entering the defendant’s home. A dissenting judge would have found that the informant’s history of purchasing drugs from the defendant, plus what amounted to an imperfectly controlled purchase by the middleman, provided probable cause.

Criminal Procedure > Motions > Suppression Motions > Appeal/Preservation for Appellate Review

(Dec. 31, 1969) , 2022-NCCOA-58, ___ N.C. App. ___ 2022-02-01

In this Hoke County case, defendant Stanley Draughon was found guilty by a jury of assault with a deadly weapon with the intent to kill inflicting serious injury (AWDWIKISI) and conspiracy to commit AWDWIKISI, and defendant Phyllis Mull was found guilty of conspiracy to commit AWDWIKISI. The charges arose from an incident in which Draughon and an unidentified man beat a victim, McBryde, with an object and tased him, breaking several bones in his arms and legs, among other injuries. At trial, Draughon’s lawyer objected to the State’s questioning related to Draughon’s cell phone, which had been seized from the vehicle of the person who drove Draughon to the sheriff’s office to turn himself in. Evidence from the phone indicated that Draughon and Mull had exchanged many text messages and calls. Additional testimony indicated that Mull wound up in possession of a box cutter that McBryde typically carried and had used in self-defense when he was assaulted.

(1) On appeal, Draughon argued that the evidence related to his cell phone should have been suppressed. The Court of Appeals disagreed, concluding that Draughon’s lawyer made only a general objection to the evidence at trial without specifying that he was making a motion to suppress or requesting a voir dire, as required by G.S. 15A-977. As a result, the defendant waived appellate review of the issue.

(2) Defendant Draughon also challenged the trial court’s denial of his motion to dismiss the conspiracy to commit AWDWIKISI charge at the close of the State’s evidence and at the close of all evidence. The Court of Appeals disagreed, concluding that, viewed in the light most favorable to the State, there was sufficient evidence of each element of the conspiracy charge. The numerous calls and texts between Draughon and Mull reflected that they had a relationship, and the facts that Mull was standing behind Draughon when he assaulted McBryde and that Mull wound up with McBryde’s box cutter constituted substantial evidence that Draughon had conspired to assault McBryde. Defendant Mull likewise argued that the trial court erred by denying her motion to dismiss. Again, the Court of Appeals disagreed, citing evidence indicating that Mull had agreed to invite Draughon and the other assailant into her house so they could wait for McBryde to assault him.

(3) Finally, the Court of Appeals concluded that Defendant Mull’s argument regarding the trial court’s denial of her motion for judgment notwithstanding the verdict was not preserved for appeal, because her trial lawyer did not state the basis for the motion. The Court went on to decline Mull’s request to invoke Rule 2 of the Rules of Appellate Procedure to consider the issue, reasoning that Mull’s not guilty verdict on her AWDWIKISI charge was neither contradictory to nor mutually exclusive with her conviction for conspiracy to commit AWDWIKISI, as the conspiracy was complete when there was a meeting of minds between the conspirators, without any requirement for an overt act.

Criminal Procedure > Motions > Suppression Motions > For Substantial Violation of 15A

(Dec. 31, 1969) , ___ N.C .App. ___, 2022-NCCOA-164 2022-03-15

Evidence > Opinions > Expert Opinions > Ballistics

In this first-degree murder case, the defendant challenged (1) the validity of a search warrant for his home; (2) the trial court’s refusal to suppress electronic monitoring data from a GPS unit the defendant was wearing at the time of the offense; (3) the trial court’s refusal to allow him to cross examine a witness on a particular issue; (4) the admission of expert testimony concerning firearms identification and examination: (5) the trial court’s denial of his motion to dismiss the murder charge. The Court of Appeals rejected each of the defendant’s arguments and upheld his conviction.

(1) The court rejected the defendant’s argument that a search warrant for his home address was defective because of an insufficient nexus between the murder, the evidence sought, and the defendant’s address. The court noted, among other things, that the search warrant affidavit explained that officers looking through a window had seen bullets on a shelf inside a building at the defendant’s address, that firearms were found in the defendant’s truck when he was arrested, and that there were blood smears on the defendant’s truck and his hands when he was arrested. The allegations in the warrant affidavit were sufficient for a magistrate to reasonably infer that the items sought under the warrant, such as weapons, ammunition, bloodstains, and DNA evidence, likely could be found at the defendant’s residence. The court also determined that the trial court’s findings of fact related to the defendant’s motion to suppress supported the trial court’s conclusion that there was probable cause to support the issuance of the warrant.

(2) The Court of Appeals determined that no plain error occurred in connection with the trial court refusing to suppress electronic monitoring data from a GPS device the defendant was wearing at the time of the offense because was on post-release supervision. Among other things, the court noted that the defendant moved to suppress the data under G.S. 15A-974(a)(2) as a substantial violation of Chapter 15A while alleging that the evidence was obtained in violation of G.S. 15-207. The court explained that G.S. 15A-974(a)(2) “does not provide a mechanism by which [the defendant] could allege evidence was obtained as a result of a substantial violation of Chapter 15.”

(3) The Court of Appeals rejected the defendant’s argument that he should have been allowed to cross-examine a witness a witness concerning a Facebook message that the victim sent his mother on the day of the murder suggesting that the victim, who was killed in his home, planned to go somewhere else to fight an unknown person. The trial court properly excluded the testimony on hearsay grounds, and, given that the message did not point directly towards the guilt of another party, the Court of Appeals concluded that it was “too remote and speculative to be relevant.”

(4) The court next rejected the defendant’s challenge to expert firearm identification evidence, which it examined for plain error because of the defendant’s failure to object to the admission of the testimony at trial. Conducting a detailed Rule 702 analysis and recounting significant portions of the expert’s testimony, which generally opined that casings and bullets collected from the crime scene were fired from a pistol seized from the defendant, the court determined that the testimony was based on sufficient facts or data and was the product of reliable principles and methods which the expert applied reliably to the facts of the case, as required under Rule 702.

(5) Finally, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the first-degree murder charge on the basis of insufficient evidence of malice, premeditation, and deliberation or that the defendant was the perpetrator. The court found that the defendant had both the opportunity and the capability to commit the murder, as evidenced by GPS data placing him at the crime scene and witness testimony that on the day in question the defendant brandished a firearm matching the murder weapon. Evidence tending to show that the defendant fired three shots into the victim’s head, two of which were from close range, was sufficient on the issues of malice and premeditation and deliberation.

Criminal Procedure > Sentencing > Drug Offenses

(Dec. 31, 1969) , COA22-3, ___ N.C. App. ___ 2023-03-07

Arrest, Search, and Investigation > Identification of Defendant > Show Ups

In this Duplin County case, defendant appealed his convictions for sale and delivery of cocaine, arguing error (1) in denying his motion to suppress certain eyewitness testimony for due process violations, (2) denying the same motion to suppress for Eyewitness Identification Reform Act (“EIRA”) violations, (3) in permitting the jury to examine evidence admitted for illustrative purposes only, and (4) in entering judgment for both selling and delivering cocaine. The Court of Appeals affirmed the denial of defendant’s motion and found no plain error with the jury examining illustrative evidence, but remanded for resentencing due to the error of sentencing defendant for both the sale and delivery of cocaine.

In December of 2017, the Duplin County Sheriff’s Office had confidential informants performing drug buys from defendant in a trailer park. The informants purchased crack cocaine on two different days from defendant, coming within three to five feet of him on clear days. At a trial preparation meeting in October of 2020, the prosecutor and a detective met with the lead informant; at the meeting, the informant saw a DMV picture of defendant with his name written on it, and responded “yes” when asked if that was the person from whom the informant purchased cocaine. No other pictures were shown to the informant at this meeting. Defense counsel subsequently filed a motion to suppress the testimony of the informant based on this meeting, as well as motions in limine, all of which the trial court denied.

The Court of Appeals first considered (1) the denial of defendant’s motion to suppress, where defendant argued that the identification procedure violated his due process rights. The due process inquiry consists of two parts: whether the identification procedure was “impermissibly suggestive,” and if the answer is yes, “whether the procedures create a substantial likelihood of irreparable misidentification” after a five-factor analysis. Slip Op. at 9-10, quoting State v. Rouse, 284 N.C. App. 473, 480-81 (2022). Applying the Rouseframework and similar circumstances in State v. Malone, 373 N.C. 134 (2019) and State v. Jones, 98 N.C. App. 342 (1990), the court determined that “[the informant] seeing the photo of Defendant in the file during the trial preparation meeting was impermissibly suggestive,” satisfying the first part. Id. at 18. However, when the court turned to the five-factor analysis, it determined that only the third factor (accuracy of the prior description of the accused) and the fifth factor (the time between the crime and the confrontation of the accused) supported finding of a due process violation. The court concluded that “[b]ecause there was not a substantial likelihood of irreparable misidentification, the identification did not violate due process.” Id. at 24.

The court also considered (2) defendant’s argument that the EIRA applied and supported his motion to suppress. After reviewing the scope of the EIRA, the court applied State v. Macon, 236 N.C. App. 182 (2014), for the conclusion that a single-photo identification could not be a lineup for EIRA purposes. Slip Op. at 28. The court then considered whether the procedure was a show-up:

In contrast to our longstanding description of show-ups, the procedure here was not conducted in close proximity to the crime and, critically, it was not conducted to try to determine if a suspect was the perpetrator. The identification here took place during a meeting to prepare for [trial]. As a result, the State, both the police and the prosecution, had already concluded Defendant was the perpetrator. The identification acted to bolster their evidence in support of that conclusion since they would need to convince a jury of the same. Since the identification here did not seek the same purpose as a show-up, it was not a show-up under the EIRA.

Id. at 30. The court emphasized the limited nature of its holding regarding the scope of the EIRA, and that this opinion “[did] not address a situation where the police present a single photograph to a witness shortly after the crime and ask if that was the person who committed the crime or any other scenario.” Id. at 32.

Moving to (3), the court rejected defendant’s argument of plain error in allowing the jury to review his DMV photograph as substantive evidence when it was admitted for illustrative purposes, pointing to the “overwhelming evidence” of defendant’s guilt in the record, including other photographs and recordings of defendant. Id. at 34.

Finally, the court considered (4) the sentencing issues by the trial court. Here, the trial court improperly sentenced defendant for both selling and delivering cocaine. The court explained that while “a defendant can be tried for both the sale and delivery of a controlled substance, he cannot be sentenced for ‘both the sale and the delivery of a controlled substance arising from a single transfer.’” Id. at 35, quoting State v. Moore, 327 N.C. 378, 382-83 (1990). This error required remand to the trial court for resentencing in keeping with only one conviction for sale or delivery.

Criminal Procedure > Sentencing > Restitution

(Dec. 31, 1969) , 281 N.C. App. 437 2022-01-18

The defendant was charged with and convicted of dogfighting and related offenses in Orange County. (1) He argued the evidence was insufficient to establish his specific intent to keep the dogs for purposes of fighting. The court disagreed. When the county Animal Services officials visited the property, they found equipment used in the strength training of dogs, at-home medications used to treat animal wounds, and an apparent dogfighting pit, as well as notes on preparing dogs for fights and dogfighting magazines. There was also evidence that many of the dogs had medical conditions commonly associated with dogfighting. This was sufficient evidence of the defendant’s specific intent, and the trial court properly denied the motion to dismiss for insufficient evidence.

(2) During direct examination of its expert witness, the State asked a leading question about the defendant’s intent. The defendant did not object at trial but complained on appeal that the question amounted to plain error. The court disagreed, noting that trial courts have the discretion to allow leading questions concerning evidence previously admitted without objection, as was the case here. The court further observed that plain error review is not available for discretionary decisions of the trial court, and the case “did not remotely approach” the circumstances where invocation of Rule 2 of the Rules of Appellate Procedure was warranted to obtain review. Even assuming plain error review was available, the court found there was no error—plain or otherwise—and rejected this argument.

(3) The trial court ordered the defendant to pay Animal Services restitution in the amount of $70,000 for its care and keep of the animals and immediately converted the award to a civil judgment (presumably based on the 60-month minimum active portion of the sentence imposed in the case). Thirty dogs were seized from the defendant’s property, but he was only convicted of offenses relating to 17 of the animals. According to the defendant, the restitution award should have therefore been proportionally reduced. The court disagreed, observing that “[t]he trial court may impose restitution for ‘any injuries or damages arising directly and proximately out of the offense committed by the defendant,’” pointing to G.S. 15A-1340.34(c). Crew Slip op. at 9. Because the defendant’s crimes resulted in the removal of all the animals, he could properly be held responsible for the cost of caring for the animals.

The defendant also argued that the trial court erred in failing to consider his ability to pay before ordering restitution. While the trial court need not make express findings on the issue, G.S. 15A-1340.36(a) requires the judge to consider the defendant’s ability to pay among several other factors when deciding restitution. Here, there was evidence in the record concerning the defendant’s income, the price of a “good puppy,” and of the defendant’s living arrangements. “Based on this evidence, the trial court’s determination that the defendant had the ability to pay was within the court’s sound discretion and certainly not manifestly arbitrary or outside the realm of reason.” Crew Slip op. at 10-11.

Finally, the defendant argued the trial court improperly converted the restitution award to a civil judgment. The court agreed. The restitution statutes distinguish between offenses subject to the Crime Victim’s Rights Act (“VRA”) and offenses exempt from that law. G.S. 15A-1340.38 expressly authorizes a trial court to convert an award of restitution to a civil judgment in VRA cases. No similar statutory authorization exists for non-VRA cases. While some other offenses have separate statutory provisions permitting conversion of a restitution award to a civil judgment (see, e.g., G.S. 15-8 for larceny offenses), no such statute applied to the crimes of conviction here. The court noted that G.S. 19A-70 authorizes animal services agencies to seek reimbursement from a defendant for the expenses of seized animals and observed that the agency failed to pursue that form of relief. The court rejected the State’s argument that the trial court’s action fell within its inherent authority. The civil judgments were therefore vacated. The convictions and sentence were otherwise undisturbed.

Criminal Procedure > Verdict > Unanimous Verdict Issues

(Dec. 31, 1969) , 370 N.C. 305 2017-12-08

Criminal Offenses > Sexual Assaults & Related Offenses > Rape > By Aiding & Abetting

The court reversed a unanimous, unpublished decision of the Court of Appeals in this first-degree sexual offense case, holding that the trial court did not err by giving a disjunctive jury instruction. One of the factors that can elevate a second-degree sexual offense to a first-degree sexual offense is that the defendant was aided and abetted by one or more other persons; another is that the defendant used or displayed a dangerous or deadly weapon. Here, the trial court gave a disjunctive instruction, informing the jury that it could convict the defendant of the first-degree offense if it found that he was aided and abetted by another or that he used or displayed a dangerous or deadly weapon. Where, as here, the trial court instructs the jury disjunctively as to alternative acts which establish an element of the offense, the requirement of unanimity is satisfied. However, when a disjunctive instruction is used, the evidence must be sufficient under both theories. In this case it was undisputed that the evidence was sufficient under the dangerous or deadly weapon prong. The defendant contested the sufficiency of the evidence under the aiding and abetting prong. The court found the evidence sufficient, holding that the Court of Appeals erred in concluding that actual or constructive presence is required for aiding and abetting. As the Court stated in State v. Bond, 345 N.C. 1 (1996), actual or constructive presence is no longer required to prove aiding and abetting. Applying that law, the court held that although the defendant’s accomplices left the room before the defendant committed the sexual act, there was sufficient evidence for the jury to conclude that the others aided and abetted him. Among other things, two of the accomplices taped the hands of the residents who were present; three of them worked together to separate the sexual assault victim from the rest of the group; one of the men grabbed her and ordered her into a bedroom when she tried to sit in the bathroom; and in the bedroom the defendant and an accomplice groped and fondled the victim and removed her clothes. Most of these acts were done by the defendant and others. The act of taping her mouth shut, taping her hands behind her back, moving her into the bedroom, removing her clothing and inappropriately touching her equate to encouragement, instigation and aid all of which “readily meet the standards of . . . aiding and abetting.” The court rejected the defendant’s argument that the evidence was insufficient because he was the only person in the room when the sex act occurred.

Criminal Procedure > Verdict > Mutually Exclusive Verdicts

(Dec. 31, 1969) , ___ N.C. App. ___, 2021-NCCOA-186 2021-05-04

The defendant was convicted by a jury of first-degree murder under the felony-murder rule. The underlying felony was statutory rape of a child under 13. And yet the jury acquitted the defendant of the charge of statutory rape of a child under 13. The defendant appealed, arguing that statutory rape of a child under 13 could not support a felony-murder conviction because it lacks the necessary intent to support such a charge. He also argued that because the jury acquitted him of the predicate felony, his first-degree murder conviction must be vacated. The Court of Appeals rejected both arguments.

(1) The Court of Appeals determined that while the offense of statutory rape does not require that the defendant intended to commit a sexual act with an underage person, it does require that the defendant intend to commit a sexual act with the victim. The Court held that this intent satisfies the intent required for a crime to serve as the basis for a felony-murder charge. The Court distinguished the sort of intent required to engage in vaginal intercourse with a victim from the culpable negligence required to commit the offense of assault with a deadly weapon inflicting serious injury based on driving a vehicle while impaired, which the court held in State v. Jones, 353 N.C. 159 (2000), was insufficient to support a felony-murder charge. Statutory rape requires that the person be purposely resolved to participate in the conduct that comprises the criminal offense.

(2) The Court of Appeals determined that the jury verdicts finding the defendant (a) guilty of felony murder with statutory rape as the underlying felony but (b) not guilty of statutory rape were inconsistent but were not legally contradictory or, in other words, mutually exclusive. The Court of Appeals reasoned that a jury could rely on the act of committing statutory rape to support a felony murder conviction without also having a conviction of statutory rape. Indeed, the State could proceed to trial on such a felony murder theory without also charging statutory rape.

The Court noted that a defendant is not entitled to relief for a merely inconsistent verdict as it is not clear in such circumstances “‘whose ox has been gored.’” (Slip op. at ¶ 44 (quoting United States v. Powell, 469 U.S. 57, 65 (1984)). The jury may have thought the defendant was not guilty. Equally possibly, it may have reached an inconsistent verdict through mistake, compromise, or lenity. The defendant receives the benefit of the acquittal, but must accept the burden of conviction.

Evidence > Alcohol Tests, Generally

(Dec. 31, 1969) , COA22-572, ___ N.C. App. ___ 2023-05-02

Criminal Offenses > Motor Vehicle Offenses > Felony Death & Serious Injury by Vehicle

Criminal Procedure > DWI Procedure > Blood Test Results

Evidence > Personal Knowledge

(Dec. 31, 1969) , ___ N.C. App. ___, ___ S.E.2d ___ 2020-02-18

Evidence > Character Evidence > Of Victim > Victim’s Good Character

Evidence > Relevancy--Rule 401 > Context Evidence

(Dec. 31, 1969) , 2022-NCCOA-908, ___ N.C. App. ___ 2022-12-29

Criminal Offenses > Homicide > Premeditation & Deliberation

Criminal Procedure > Jury Argument > Miscellaneous Cases

In this Randolph County case, the Court of Appeals upheld defendant’s conviction for solicitation to commit first-degree murder, finding no prejudicial error by the trial court.

Evidence > Character Evidence > Of Victim > Victim’s Good Character

(Dec. 31, 1969) , ___ N.C. App. ___, ___ S.E.2d ___ 2020-02-18

Criminal Offenses > Motor Vehicle Offenses > Impaired Driving

Evidence > Crawford Issues & Confrontation Clause > Substitute Analyst & Related Cases

(Dec. 31, 1969) , ___ N.C. App. ___, 2021-NCCOA-659 2021-12-07 temp. stay granted, 380 N.C. 288, 866 S.E.2d 900 (Jan 12 2022)

In this Martin County case, the defendant was convicted of assault with a deadly weapon inflicting serious injury, felony serious injury by vehicle and driving while impaired for his driving of a vehicle after consuming prescription medications, crossing into oncoming traffic, hitting two other vehicles, and seriously injuring another driver.

(1) The defendant, who was seriously injured in the crash and was taken to the hospital, had a “few coherent moments” in which he agreed to allow his blood to be withdrawn and analyzed for evidence of impairment. The defendant subsequently moved to suppress evidence of the blood analysis on the basis that there was not probable cause to believe he was driving while impaired, the blood was withdrawn without a warrant, and there were no exigent circumstances. The trial court denied the motion, and the Court of Appeals found no error. The Court first determined that the following evidence established probable cause: (a) a witness called 911 to report erratic driving by the defendant before the defendant crashed his vehicle into two other vehicles; (b) there were no skid marks at the scene to indicate that the defendant attempted to stop his vehicle; (c) the defendant admitted to taking oxycodone, valium, and morphine earlier in the day; and (d) after the crash, the defendant was lethargic, had slurred speech, droopy eyelids, and a blank stare. The Court then concluded that exigent circumstances existed as the officer did not have time to obtain a search warrant given the extent of the defendant’s injuries; indeed, the hospital postponed administering necessary pain medication to the defendant until after the State withdrew his blood. After the blood draw, the defendant was air-lifted to another hospital for a higher level of care.

(2) The defendant argued that the trial court erred by failing to take judicial notice of the National Weather Station’s weather conditions (the “Weather Report”) on the date of the collision. The Court of Appeals disagreed, reasoning that the Weather Report was not a document of indisputable accuracy for purposes of Rule 201(b) of the North Carolina Rules of Evidence because it did not state the level of rain that was occurring at the time of the crash. Thus, the Court of Appeals reasoned, the trial court was not required to take judicial notice of the report under Rule 201(d), but was free to use its discretion pursuant to Rule 201(c). And, the Court of Appeals concluded, the trial court did not abuse its discretion by declining to take judicial notice of the Weather Report.

(3), (4) The defendant argued on appeal that the trial court erred in admitting testimony from an analyst regarding the analysis of defendant’s blood, the analyst’s report, and the accompanying chain of custody report. The Court of Appeals found no error. The Court determined that the analyst’s testimony and his report were admissible because, even though the analyst relied on data collected by and tests performed by others, the analyst himself analyzed and reviewed the data, forming his own independent expert opinion and writing his own report. The Court further held that the trial court did not err by admitting the chain of custody report because the State established an adequate chain of custody through testimony of the law enforcement officer who submitted the blood and the analyst who prepared the report.

(5) The Court of Appeals determined that the trial court did not err in denying defendant’s motion to dismiss for insufficient evidence. Defendant’s erratic driving, the severity of the crash, his admission to taking medications, his impaired behavior, and the results of the analysis of defendant’s blood provided substantial evidence of impaired driving. Defendant’s driving in an erratic and reckless manner while impaired and crashing into another vehicle without appearing to have braked, seriously injuring the other driver provided substantial evidence of assault with a deadly weapon inflicting serious injury. Finally, the serious injury to the other driver caused by defendant’s impaired driving provided substantial evidence of felony serious injury by vehicle.

Judge Dietz concurred in the judgment, writing separately to state that he would have resolved the suppression issue solely based on the evidence of impairment establishing probable cause and the exigency resulting from the need to draw blood before medical professionals administered additional medications.

Evidence > Cross-Examination, Impeachment, Corroboration & Related Issues > Impeachment, Evidence of Bias

(Dec. 31, 1969) , 274 N.C. App. 325 2020-11-17

Criminal Offenses > General Crimes > Conspiracy

The defendant was indicted for attempted first-degree murder, robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and other offenses. The State alleged that the defendant shot a man and his wife, Bruce and Joanne Parker, as they were getting into their car in a darkened Charlotte parking lot. After shooting Mr. Parker, the defendant, who was accompanied by a male and female companion, took Mr. Parker’s wallet and cell phone.

Off-duty officers arrived on the scene shortly after the couple was shot and saw the defendant and his two companions leaving the scene in the defendant’s car. Mr. Parker identified the defendant as the person who shot him. The officers gave chase, and the defendant’s male companion, who was driving, crashed the car. The defendant and his companions ran from the car. The driver was apprehended. The defendant and his female companion ran into a parking garage, where they were captured on surveillance footage, but were not apprehended by officers. On the driver’s seat floorboard of the crashed car, officers found the gun used to shoot the couple, the husband’s cell phone and wallet, and a purse and driver’s license belonging to the defendant’s female companion. Forty-five minutes later, the defendant called law enforcement officers to report that he had been carjacked earlier in the evening.

A few days after the shooting, an officer came to Mr. Parker’s hospital room and showed him a photographic lineup. The defendant’s picture was in the lineup, but Mr. Parker identified another person as the shooter. During trial, Mr. Parker testified that he was able to make out the shooter’s face during the attack. He then, without objection, identified the defendant in the courtroom, stating that the defendant was “pretty much the same man as he was that night,” only that he “appeared a little bit thinner.”

(1) On appeal, the defendant argued that the trial court erred by denying his motion to dismiss because there was insufficient evidence both that he was the perpetrator of the offenses and that there was a conspiracy to commit robbery with a dangerous weapon. The Court of Appeals rejected this argument, noting that Mr. Parker identified the car and the defendant as the shooter at the scene; that the officers saw the defendant leaving the scene and the car he was in; that Mr. Parker gave a description of the defendant that same night; that the description matched a person seen on surveillance after the car crashed; that the defendant was the owner of the car; and that Mr. Parker identified the defendant as the shooter in court. The Court also rejected the defendant’s insufficiency of the evidence argument regarding the conspiracy. The Court relied on State v. Lamb, 342 N.C. 151 (1995), and State v. Miles, 267 N.C. App. 78 (2019), in concluding that there was sufficient evidence from which a reasonable juror could conclude that the defendant acted in coordination with the other occupants of the vehicle to rob the Parkers with a dangerous weapon.

(2) The defendant next argued that the trial court erred by sustaining the State’s objection to the defendant’s question concerning a civil lawsuit filed by the Parkers against the owner of the parking lot alleging inadequate security. The defendant contended that the civil lawsuit was relevant because it showed that the Parkers had an interest in the outcome of the criminal prosecution. The Court has previously held that “where a witness for the prosecution has filed a civil suit for damages against the criminal defendant himself, the pendency of the suit is admissible to impeach the witness by showing the witness’s interest in the outcome of the criminal prosecution.” State v. Dixon, 77 N.C. App. 27, 31– 32 (1985); State v. Grant, 57 N.C. App. 589, 591 (1982). The Court concluded that because the civil suit was not filed against the defendant and because it was not necessary for the Parkers to prove in the civil suit that the defendant was the assailant, the pendency of the civil suit did not show Mr. Parker’s interest in the outcome of the criminal prosecution and was therefore not admissible to impeach the witness.

(3) The defendant’s final argument was that the trial court plainly erred by failing to exclude Mr. Parker’s in-court identification, which the defendant did not object to at trial. The defendant contended that the in-court identification was tainted by Mr. Parker’s exposure to media coverage of the case, his filing of a civil lawsuit that named the defendant as the assailant, the lapse of time, and his identification of someone other than the defendant in the photo lineup. The Court of Appeals concluded that these factors alone did not trigger due process concerns and that the alleged defects of the in-court identification were issues of credibility for the jury to resolve. The Court explained that absent any indication that the in-court identification was tainted by an impermissibly suggestive pre-trial identification procedure, there was no error, let alone plain error, in admitting Mr. Parker’s in-court identification.

Evidence > Opinions > Expert Opinions > Ballistics

(Dec. 31, 1969) , ___ N.C .App. ___, 2022-NCCOA-164 2022-03-15

Criminal Procedure > Motions > Suppression Motions > For Substantial Violation of 15A

Evidence > Opinions > Lay Opinions > Foundation

(Dec. 31, 1969) , ___ N.C. App. ___, ___ S.E.2d ___ 2020-02-18

Evidence > Character Evidence > Of Victim > Victim’s Good Character

Arrest, Search, and Investigation > Searches > Of People > Biological: Cheek Swab, Blood, Breath

Evidence > Opinions > Lay Opinions > DWI Cases

(Dec. 31, 1969) , COA22-408, ___ N.C. App. ___ 2023-07-05

Criminal Procedure > DWI Procedure > Implied Consent Issues

Evidence > Opinions > Lay Opinions > Surveillance Video/Photographs

(Dec. 31, 1969) , 274 N.C. App. 417 2020-12-01

(1) In this murder case, the trial court did not err by instructing the jury on the doctrine of acting in concert where there was evidence that the defendant and another man met together at a store, discussed with the defendant’s brother that the victim owed the brother money, received instructions from the brother to collect the money, traveled together to the scene of the murder, and fled together from the scene after the defendant shot the victim.

(2) The trial court erred in allowing the co-defendant’s aunt, who was present at the scene of the murder but did not witness it directly, to testify that she believed the defendant was holding a gun in surveillance video footage published to the jury. This lay opinion testimony, which was not based on any personal knowledge, invaded the role of the jury in violation of Rule 602 because the aunt was in no better position to know what the video showed than the jurors. The error did not prejudice the defendant.

Arrest, Search, and Investigation > Dog Sniff

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of Vehicles > Generally

In this Union County case, defendant appealed his convictions for trafficking in heroin by possession and by transportation, arguing error by (1) denying his motion to suppress based on insufficient probable cause, and (2) sentencing him for both convictions as possession is a lesser-included offense of trafficking. The Court of Appeals found no error.

In November of 2020, a lieutenant with the Union County Sheriff’s Office received a call from a confidential informant regarding a man driving a Honda Accord who had recently left a known heroin trafficker’s house. Another officer received the report and initiated a traffic stop of defendant after observing him run a red light. A canine officer responded to the stop and conducted a search around the vehicle; the dog alerted at the passenger side door. A search of the vehicle found a plastic bag with brownish residue. Defendant moved to suppress the results of this search before trial, but the trial court denied the motion, finding the dog’s alert and the confidential informant’s tip supported probable cause.

Taking up (1), the Court of Appeals outlined defendant’s arguments challenging both the reliability of the dog’s alert and the reliability of the confidential informant. Concerning the dog’s alert, defendant argued due to the legalization of hemp, the alert did not necessarily indicate illegal drugs, and thus could not represent probable cause. The court rejected this argument, explaining that caselaw supported a drug dog’s alert as probable cause to search the area where the dog alerted, and “[t]he legalization of hemp does not alter this well-established general principle.” Slip Op. at 7. The court noted that this argument also did not fit the facts of the case, as no officer noticed the smell of marijuana, and the confidential informant referenced heroin, which was also the substance found in the car. Because the dog’s alert alone formed sufficient probable cause, the court did not reach the confidential information argument.

Arriving at (2), the court explained that “[d]efendant was sentenced for trafficking in heroin by transportation and possession, not trafficking and possession.” Id. at 11. The court pointed to State v. Perry, 316 N.C. 87 (1986), for the principle that a defendant could be convicted for trafficking in heroin by possession and by transporting “even when the contraband material in each separate offense is the same.” Id., quoting Perry at 103-04. Based on this precedent, the court rejected defendant’s arguments, and also rejected his “challenge” to create “a hypothetical where a defendant transports drugs without possessing drugs.” Id.

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of Vehicles > Generally

In this Union County case, defendant appealed his conviction for trafficking by possession and transportation of heroin, arguing error in the denial of his motion to suppress the results of a warrantless search of his vehicle. The Court of Appeals found no error.

In January of 2020, the Union County Sheriff's Office was observing several individuals involved in drug trafficking based on information from two confidential informants. Based on the observations and information received, officers ended up detaining defendant and searching his vehicle, finding heroin after searching the vehicle. Although a canine unit was present, the dog did not alert on a search around the perimeter of the car. Despite the lack of alert, the officers believed they had probable cause based on “the tips provided by two unrelated confidential informants and officers’ observations that confirmed these specific tips.” Slip Op. at 4. Defendant subsequently pleaded guilty to charges of trafficking heroin but reserved his right to appeal the dismissal of his motion to suppress.

The court walked through each challenged finding of fact and conclusion of law, determining that none of the issues highlighted by defendant represented error. In particular, the court explained that the lack of an alert from the canine unit did not prevent the officers from having probable cause, and noted “[d]efendant has cited no case, either before the trial court or on appeal, holding that officers cannot have probable cause to search a vehicle if a canine search is conducted and the canine fails to alert . . . [n]or did we find such a case.” Id. at 29. Because the totality of the circumstances supported probable cause, the court found no error in the trial court’s conclusion.

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of Vehicles > Automobile Exception

Arrest, Search, and Investigation > Searches > Reasonable Expectation of Privacy

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.

(Dec. 31, 1969)

Criminal Offenses > Drug Offenses > Proof the Substance is a Controlled Substance

Criminal Procedure > Appellate Issues > Failure to Raise Issue/Object at Trial & Related Issues

Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Amount of Drugs

There was therefore sufficient evidence of the conspiracy conviction and no error in admission of the phone call between law enforcement and the co-conspirator.

(Dec. 31, 1969)

Criminal Offenses > Drug Offenses > Proof the Substance is a Controlled Substance

Criminal Offenses > Drug Offenses > Trafficking > Conspiracy to Traffic

There was therefore sufficient evidence of the conspiracy conviction and no error in admission of the phone call between law enforcement and the co-conspirator.

(Dec. 31, 1969)

In this Duplin County case, defendant appealed his conviction for felony possession of marijuana. The Court of Appeals found no error and no ineffective assistance of counsel.

Officers of the Duplin County Sheriff’s Office observed a vehicle leaving a residence where they had received several complaints of narcotics being sold. Defendant was in the passenger seat of the vehicle, and the officers recognized him from past encounters and arrests for marijuana possession. The officers also observed a box of ammunition on the back seat and noted that the vehicle was not registered to any of the occupants. After a K-9 unit arrived and signaled the possible presence of illegal substances, the officers searched and found a vacuum-sealed bag of possible marijuana under defendant’s seat. The search also turned up a digital scale and a large amount of cash. Chemical analysis later determined the substance was marijuana.

At trial, defendant made a motion to suppress the bag of marijuana, arguing that the K-9 alert could not support probable cause for the seizure due to the similarity of legal hemp and illegal marijuana. Examining the trial court’s decision to deny, the Court of Appeals noted that the “totality of the circumstances” supported the seizure, because defendant made no statements about the bag containing hemp, and the officers found a digital scale and a large amount of cash in the same search, bolstering the assumption that the bag contained illegal marijuana. Slip Op. at ¶20.

The Court of Appeals also examined defendant’s claims that it was plain error not to instruct the jury that defendant must have actual knowledge the product in the bag was illegal marijuana, and that defendant’s counsel was ineffective by not requesting this jury instruction. The court disagreed on both issues, pointing to the evidence that also supported the denial of the motion to suppress.

Arrest, Search, and Investigation > Exclusionary Rule > Scope of the Exclusionary Rule

(Dec. 31, 1969) , ___ N.C. App. ___, 834 S.E.2d 654 2019-10-15

The defendant was convicted of four counts of first-degree murder and other charges and appealed. He argued the trial court erred in denying his motion to suppress, his motion to dismiss, and in admitting certain evidence. The Court of Appeals unanimously affirmed.

The offenses occurred in 2005, although the defendant was not tried until 2017. As a part of the investigation into the homicides and other crimes, law enforcement obtained an order authorizing the use of a pen register to obtain 60 days of cell-site location information (“CSLI”) on a phone connected to the defendant in 2005. Law enforcement acted under G.S. 15A-262, requiring a showing only of “relevance” to an investigation, and did not obtain a search warrant. The defendant alleged this violated U.S. v. Carpenter, __U.S. __, 201 L. Ed. 2d 507 (2018). Rejecting this argument, the court first noted Carpenter’s scope: “Carpenter only established the government must obtain a warrant before it can access a phone company’s historical CSLI; it did not extend its holding to the issue of government acquisition of real-time or prospective CSLI.” Here, the State sought both types of data, and it was unclear which category of information was used to actually locate the defendant. Carpenter would only control as to the historical data (but did indeed apply to that category of data, despite having been decided 13 years after the events in question, since Carpenter was decided while this matter was on direct appeal).

Here, it was unnecessary to decide the extent of protections for real-time or prospective CSLI, given that the evidence was sufficiently attenuated from any illegality (an alternative ground found by the trial court to justify the search). “Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.’”

The Supreme Court has identified three factors to aid in determining whether there was a sufficient intervening event to break the casual link between the government’s unlawful act and the discovery of evidence: (1) the ‘temporal proximity’ of the unconstitutional conduct and the discovery of evidence, (2) the ‘presence of intervening circumstances’, and (3) ‘particularly, the purpose and flagrancy of the official misconduct.’

Here, three days had passed between the court order authorizing the CSLI and law enforcement locating the defendant. That amount of time was not substantial and weighed in favor of suppression. However, the intervening circumstances here weighed heavily in favor of attenuation—the defendant was found with guns and ammo, threatened to shoot at officers when they attempted to apprehend him, and actually fired a gun at officers during the course of his arrest. “[T]his constituted an intervening circumstance sufficient to attenuate the connection between any unconstitutional police conduct and the discovery of evidence.” Finally, the purpose of the exclusionary rule would not be served by suppression here because the misconduct was “neither purposeful nor flagrant.” Officers acted according to the law and common understanding of pen registers in 2005 and no reasons existed at the time to believe those procedures were unconstitutional. The trial court did not therefore err in denying the motion to suppress.

Arrest, Search, and Investigation > Exclusionary Rule > Inevitable Discovery

(Dec. 31, 1969)

In this Avery County case, defendant appealed his conviction for possession of methamphetamine, arguing error in denying his motion to suppress the results from a search. The Court of Appeals disagreed, finding no error.

Defendant was pulled over for driving while his license was revoked. The officer who pulled defendant over asked him to step out of the vehicle so that he could pat him down for weapons. During the pat down, the officer found a pill bottle, and the defendant told the officer the pills were Percocet. The bottle was not a prescription pill bottle. The officer handcuffed defendant and told him he was being detained for having the Percocet pills in a non-prescription bottle. The officer then searched defendant’s person, finding a bag of methamphetamine in defendant’s boot. After defendant was indicted for felony possession of methamphetamine, he moved to suppress the results of the search, arguing no probable cause. The trial court denied the motion, and defendant was subsequently convicted.

Considering defendant’s argument, the Court of Appeals first noted the “plain feel doctrine” allows admission of contraband found during a protective frisk if the incriminating nature of the contraband is immediately apparent to the officer. Slip Op. at 7. The State pointed to State v. Robinson, 189 N.C. App. 454 (2008), as supporting the officer’s actions in the current case; the court rejected this comparison, noting that the supporting circumstances of location and nervousness of the suspect from Robinson were not present here. Slip Op. at 8. The court also rejected the assertion that the unlabeled pill bottle gave the officer probable cause to seize it. However, even if the search and seizure violated defendant’s constitutional rights, the court concluded “the methamphetamine found in defendant’s boot was still admissible because the contraband’s discovery was shown to be inevitable.” Id. at 9. Testimony from the officer at the suppression hearing supported the assumption that he would have arrested defendant for driving with a revoked license if he had not found the contraband. This triggered the “inevitable discovery doctrine” and justified admission of the contraband evidence despite the lack of probable cause for the search. Id. at 10.

Judge Stading concurred in the result only.

Arrest, Search, and Investigation > Exclusionary Rule > Fruit of Poisonous Tree

(Dec. 31, 1969)

Arrest, Search, and Investigation > Exclusionary Rule > Scope of the Exclusionary Rule

Arrest, Search, and Investigation > Exigent Circumstances

(Dec. 31, 1969)

In this case, the Court held, in an opinion by Justice Kagan, that the flight of a person suspected of a misdemeanor offense does not categorically justify an officer’s warrantless entry into a home. Instead, an officer must consider all the circumstances in a case involving the pursuit of a suspected misdemeanant to determine whether there is an exigency that would excuse the warrant requirement.

A California highway patrol officer attempted to stop the petitioner Lange’s car after observing him driving while playing loud music through his open windows and repeatedly honking his horn. Lange, who was within 100 feet of his home, did not stop. Instead, he drove into his attached garage. The officer followed Lange into the garage, where he questioned Lange and saw that Lange was impaired. Lange was subsequently charged with the misdemeanor of driving under the influence of alcohol and a noise infraction.

Lange moved to suppress the evidence obtained after the officer entered his garage, arguing that the warrantless entry violated the Fourth Amendment. The trial court denied Lange’s motion, and the appellate division affirmed. The California Court of Appeal also affirmed, concluding that an officer’s hot pursuit of a fleeing misdemeanor suspect is always permissible under the exigent circumstances to the warrant requirement. The United States Supreme Court rejected the categorial rule applied by the California Court of Appeal and vacated the lower court’s judgment.

In rejecting a categorial exception for hot pursuit in misdemeanor cases, the Court noted that the exceptions allowing warrantless entry into a home are “‘jealously and carefully drawn,’ in keeping with the ‘centuries-old principle’ that the ‘home is entitled to special protection.’” Slip op. at 6. Assuming without deciding that United States v. Santana, 427 U.S. 38 (1976), created a categorical exception that allows officers to pursue fleeing suspected felons into a home, the Court reasoned that applying such a rule to misdemeanors, which “run the gamut of seriousness” from littering to assault would be overbroad and would result in treating a “dangerous offender” and “scared teenager” the same. Slip op. at 11. Instead, the Court explained that the Fourth Amendment required that the exigencies arising from a misdemeanant’s flight be assessed on a case-by-case basis – an approach that “will in many, if not most, cases allow a warrantless home entry.” Id. The Court explained that “[w]hen the totality of the circumstances shows an emergency — such as imminent harm to others, a threat to the officer himself, destruction of evidence, or escape from the home” law enforcement officers may lawfully enter the home without a warrant. Id. The Court also cited as support the lack of a categorical rule in common law that would have permitted a warrantless home entry in every misdemeanor pursuit.

Justice Kavanaugh concurred, observing that “there is almost no daylight in practice” between the majority opinion and the concurrence of Chief Justice Roberts, in which the Chief Justice concluded that pursuit of a fleeing misdemeanant constitutes an exigent circumstance. The difference between the two approaches will, Justice Kavanaugh wrote, be academic in most cases as those cases will involve a recognized exigent circumstance such as risk of escape, destruction of evidence, or harm to others in addition to flight.

Justice Thomas concurred on the understanding that the majority’s articulation of the general case-by-case rule for evaluating exceptions to the warrant requirement did not foreclose historical categorical exceptions. He also wrote to opine that even if the state courts on remand concluded the officer’s entry was unlawful, the federal exclusionary rule did not require suppression. Justice Kavanaugh joined this portion of Justice Thomas’s concurrence.

The Chief Justice, joined by Justice Alito, concurred in the judgment. The Chief Justice criticized the majority for departing from the well-established rule that law enforcement officers may enter premises without a warrant when they are in hot pursuit of a fleeing suspect – regardless of what offense the suspect was suspecting of doing before he fled. He characterized the rule adopted by the Court as “famously difficult to apply.” Roberts, C.J., concurrence, slip op. at 14. The Chief Justice concurred rather than dissenting because the California Court of Appeals assumed that hot pursuit categorically permits warrantless entry. The Chief Justice would have vacated the lower court’s decision to allow consideration of whether the circumstances in this case fell within an exception to the general rule, such as a case in which a reasonable officer would not believe that the suspect fled into the home to thwart an otherwise proper arrest.

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of People > Biological: Cheek Swab, Blood, Breath

Criminal Procedure > DWI Procedure > Implied Consent Issues

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of People > Biological: Cheek Swab, Blood, Breath

Criminal Procedure > DWI Procedure > Implied Consent Issues

Evidence > Opinions > Lay Opinions > DWI Cases

(Dec. 31, 1969)

Criminal Offenses > Motor Vehicle Offenses > Felony Death & Serious Injury by Vehicle

Criminal Procedure > DWI Procedure > Blood Test Results

Evidence > Alcohol Tests, Generally

(Dec. 31, 1969) temp. stay granted, ___ N.C. ___, 871 S.E.2d 101 (Apr 21 2022)

Arrest, Search, and Investigation > Search Warrants > Probable Cause Insufficient

Arrest, Search, and Investigation > Searches > Consent Searches > Voluntariness of Consent

Arrest, Search, and Investigation > Standing > To Challenge Search of Premises

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.

(Dec. 31, 1969) temp. stay granted, 380 N.C. 288, 866 S.E.2d 900 (Jan 12 2022)

Criminal Offenses > Motor Vehicle Offenses > Impaired Driving

Evidence > Crawford Issues & Confrontation Clause > Substitute Analyst & Related Cases

Arrest, Search, and Investigation > Identification of Defendant > In Court

(Dec. 31, 1969)

Arrest, Search, and Investigation > Identification of Defendant > Other Pretrial Identification

Two men were angry about being cheated in a drug deal. They approached a house and shot two other men – one fatally – who they thought were involved in the rip-off. The victims were on the front porch at the time of the shooting. Two women who were also on the porch viewed photo lineups in an attempt to identify the perpetrators. They both identified one suspect. Neither identified the defendant as the other man, though one said that his picture “looked like” the suspect. The defendant was charged with murder and other offenses. Several years later, a legal assistant with the district attorney’s office asked the women to come to the office for trial preparation. The legal assistant showed the women part of the defendant’s video-recorded interview with police as well as updated pictures of the defendant. One of the women looked out the window and saw the defendant, in a jail uniform and handcuffs, being led into the courthouse for a hearing. She immediately stated that he was one of the killers. The other woman came to the window and also saw the defendant. Both women later identified the defendant at trial as one of the perpetrators. The defendant argued that the identification was tainted by what he contended was a suggestive identification procedure conducted by the legal assistant. The trial judge found that the procedure was not unduly suggestive, and that in any event, the women’s in court testimony was based on their independent recollection of the events in question. The defendant was convicted and appealed. The court of appeals found the procedure to be impermissibly suggestive and reversed the defendant’s conviction. The State appealed, and the supreme court ruled: (1) The trial preparation session was an “impermissibly suggestive” identification procedure. Given that the women had not previously identified the defendant as a participant in the crime, the legal assistant’s “actions in showing [the women] the video of [the defendant’s] interview and recent photographs of [the defendant and the co-defendant] are exactly the kind of highly suggestive procedures that have been widely condemned as inherently suggestive” and amounted to improper “witness coaching.” (2) However, the procedure did not give “rise to a substantial likelihood of irreparable misidentification . . . because the trial court’s findings of fact support the legal conclusion that [one of the women’s] in-court identification of defendant was of independent origin and sufficiently reliable.” Among other factors, the court highlighted the woman’s proximity to the perpetrators, her opportunity to observe them, and the fact that when she saw a picture of the defendant online shortly after the crime – wearing his hair in a style different from his lineup photo and apparently more similar to his appearance at the time of the crime – she identified him as a perpetrator. (3) Because one of the women made a valid in-court identification, any error in admitting the other woman’s identification of the defendant was harmless. Three Justices, dissenting in part, would not have addressed whether the procedure at issue was unduly suggestive and would have decided the case based only on the “independent origin” holding.

(Dec. 31, 1969)

Criminal Offenses > General Crimes > Conspiracy

Evidence > Cross-Examination, Impeachment, Corroboration & Related Issues > Impeachment, Evidence of Bias

(Dec. 31, 1969)

In this drug case, the trial court did not err by denying the defendant’s motion to suppress evidence regarding in-court identifications on grounds that they were unreliable, tainted by an impermissibly suggestive DMV photograph. Detective Jurney conducted an undercover narcotics purchase from a man known as Junior, who arrived at the location in a gold Lexus. A surveillance team, including Sgt. Walker witnessed the transaction. Junior’s true identity was unknown at the time but Walker obtained the defendant’s name from a confidential informant. Several days after the transaction, Walker obtained a photograph of the defendant from the DMV and showed it to Jurney. Walker testified that he had seen the defendant on another occasion driving the same vehicle with the same license plate number as the one used during the drug transaction. At trial Jurney and Walker identified the defendant as the person who sold the drugs in the undercover purchase. The defendant was convicted and he appealed.

On appeal the defendant argued that the trial court erred by failing to address whether the identification was impermissibly suggestive. The court found that although the trial court did not make an explicit conclusion of law that the identification procedure was not impermissibly suggestive it is clear that the trial court implicitly so concluded. The court found the defendant’s cited cases distinguishable, noting in part that there is no absolute prohibition on using a single photograph for an identification. The court noted that even if the trial court failed to conclude that the identification procedure was not impermissibly suggestive, it did not err in its alternative conclusion that the identification was reliable under the totality of the circumstances. It concluded:

While we recognize that it is the better practice to use multiple photos in a photo identification procedure, the trial court did not err in its conclusion that, in this case, the use of a single photo was not impermissibly suggestive. And even if the procedure was impermissibly suggestive, the trial court’s findings of fact also support a conclusion that the procedure did not create “a substantial likelihood of irreparable misidentification.” The trial court’s findings of fact in this order are supported by competent evidence, and these factual findings support the trial court’s ultimate conclusions of law.

(Dec. 31, 1969)

Arrest, Search, and Investigation > Identification of Defendant > Pretrial Line-Up

Arrest, Search, and Investigation > Identification of Defendant > Show Ups

The trial court properly denied the defendant’s motion to suppress a victim’s identification of the defendant as the perpetrator. The defendant was charged with armed robbery of a Game Stop store and threatening use of a firearm against a store employee, Cintron, during the robbery. Although Cintron failed to identify an alleged perpetrator in a photographic lineup shown to him two days after the robbery, he later identified the defendant when shown a single still-frame photograph obtained from the store’s surveillance video. Cintron then identified the defendant as the perpetrator in the same photographic lineup shown to him two days after the robbery and again in four close-up, post-arrest photographs of the defendant showing his neck tattoos. The defendant unsuccessfully moved to suppress Cintron’s in-court and out-of-court identifications.

On appeal the defendant argued that the State conducted an impermissibly suggestive pretrial identification procedure that created a substantial likelihood of misidentification. The court rejected that argument, finding that the trial court’s challenged findings and conclusions—that the authorities substantially followed statutory and police department policies in each photo lineup and that the substance of any deviation from those policies revolved around the defendant’s neck tattoos—are supported by the evidence. The defendant fit the victim’s initial description of the perpetrator, which emphasized a tattoo of an Asian symbol on the left side of his neck and notable forehead creases. Based on this description, the victim had the ability to identify the defendant both in court and in photographs reflecting a close-up view of the defendant’s tattoos, and he specifically testified to his ability to recognize the defendant as the perpetrator independent of any lineup or photo he had been shown. Thus, the trial court’s ultimate conclusion—that the procedures did not give rise to a substantial likelihood that the defendant was mistakenly identified—is supported by the totality of the circumstances indicating that the identification was sufficiently reliable.

Arrest, Search, and Investigation > Identification of Defendant > Pretrial Line-Up

(Dec. 31, 1969) , COA22-3, ___ N.C. App. ___ 2023-03-07

Arrest, Search, and Investigation > Identification of Defendant > Show Ups

Criminal Procedure > Sentencing > Drug Offenses

(Dec. 31, 1969) , ___ N.C. App. ___, 822 S.E.2d 51 2018-11-06

Arrest, Search, and Investigation > Identification of Defendant > Show Ups

(Dec. 31, 1969) , COA22-3, ___ N.C. App. ___ 2023-03-07

Arrest, Search, and Investigation > Identification of Defendant > Pretrial Line-Up

Criminal Procedure > Sentencing > Drug Offenses

(Dec. 31, 1969)

Criminal Offenses > Motor Vehicle Offenses > Impaired Driving

Criminal Procedure > Jury Instructions > Specific Instructions > Flight

(Dec. 31, 1969)

Criminal Procedure > Jury Instructions > Specific Instructions > Eyewitness Identification

(1) G.S. 15A-284.52(c1) of the Act provides that

A show-up may only be conducted when a suspect matching the description of the perpetrator is located in close proximity in time and place to the crime, or there is reasonable belief that the perpetrator has changed his or her appearance in close time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness;
A show-up may only be performed using a live suspect; and
Investigators must photograph a suspect at the time and place of the show-up to preserve a record of the suspect’s appearance at the time of the show-up.

(Dec. 31, 1969)

In this case involving armed robbery and other convictions, the trial court did not err by denying the defendant’s motion to suppress evidence which asserted that the pre-trial identification was impermissibly suggestive. Three victims were robbed in a mall parking lot by three assailants. The defendant was apprehended and identified by the victims as one of the perpetrators. The defendant unsuccessfully moved to suppress the show-up identification made by the victims, was convicted and appealed. On appeal the defendant argued that the show-up identification should been suppressed because it was impermissibly suggestive. Before the robbery occurred the defendant and the other perpetrators followed the victims around the mall and the parking lot; the defendant was 2 feet from one of the victims at the time of the robbery; the show-up occurred approximately 15 minutes after the crime; before the show-up the victims gave a physical description of the defendant to law enforcement; all three victims were seated together in the back of a police car during the show-up; the defendant and the other perpetrators were handcuffed during the show-up and standing in a well-lit area of the parking lot in front of the police car; the defendant matched the description given by the victims; upon approaching the area where the defendant and the others were detained, all three victims spontaneously shouted, “That’s him, that’s him”; and all of the victims identified the defendant in court. Although these procedures “were not perfect,” there was not a substantial likelihood of misidentification in light of the reliability factors surrounding the crime and the identification. “Even though the show-up may have been suggestive, it did not rise to the level of irreparable misidentification.”

(Dec. 31, 1969) , ___ N.C. App. ___, 822 S.E.2d 51 2018-11-06

Arrest, Search, and Investigation > Identification of Defendant > Pretrial Line-Up

Arrest, Search, and Investigation > Identification of Defendant > Other Pretrial Identification

(Dec. 31, 1969) , 373 N.C. 134 2019-11-01

(Dec. 31, 1969)

Arrest, Search, and Investigation > Identification of Defendant > Pretrial Line-Up

Arrest, Search, and Investigation > Identification of Defendant > Show Ups

Criminal Procedure > Sentencing > Drug Offenses

(Dec. 31, 1969)

In this murder and attempted murder case, an officer responded to the shooting at the victim’s apartment. Upon arrival, he saw a man running with a towel in his hands and gave chase. The officer could not catch the man and instead found one of the victims, the defendant’s ex-girlfriend. She was able to describe the assailant and provide his name. The officer then located a DMV picture of the suspect and identified the defendant as the person he saw running earlier. The defendant sought to suppress this identification as a violation of the Eyewitness Identification Reform Act (“EIRA”). Specifically, the defendant argued the officer failed to conduct the “show-up” in accord with EIRA procedure. The trial court denied the motion and the court of appeals affirmed. The EIRA applies to “live lineups, photo lineups, and show-ups.” “Here, the inadvertent out-of-court identification of defendant, based on a single DMV photo accessed by an investigating officer, was neither a lineup or a show-up under the EIRA, and thus not subject to those statutory protections.” Even if the identification was suggestive, there was no substantial likelihood of misidentification under the facts of the case, and the denial of the motion was affirmed.

Arrest, Search, and Investigation > Interrogation and Confession > Voluntariness of Statement

(Dec. 31, 1969) , 371 N.C. 870 2018-12-21

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 625 (2017), in this first-degree murder case the court held that the defendant’s statements to officers were voluntary. The defendant voluntarily met with detectives at the police station in connection with a robbery and murder. He was questioned in an interview room for just under five hours before being placed under arrest and warned of his rights as required by Miranda. After being advised of his rights, the defendant signed a written waiver of those rights and made inculpatory statements. He was charged with first-degree felony murder. At trial he sought to suppress his statements to officers, arguing that he was subjected to custodial interrogation before being informed of his rights as required by Miranda, and that his inculpatory statements were made in response to improper statements by detectives inducing a hope that his confession would benefit him. The trial court denied his motion and he was convicted. On appeal the Court of Appeals concluded that the defendant’s inculpatory statements to law enforcement were given under the influence of fear or hope caused by the interrogating officers’ statements and actions and were therefore involuntarily made. The unanimous Court of Appeals panel held that the confession should have been suppressed but concluded the error was harmless beyond a reasonable doubt due to the overwhelming evidence of defendant’s guilt. The Supreme Court held that the Court of Appeals erred in condensing the Miranda and voluntariness inquiries into one; that the defendant did not preserve the argument that officers employed the “question first, warn later” technique to obtain his confession in violation of Miranda and Seibert; that the trial court’s conclusion that the requirements of Miranda were met is adequately supported by its findings of fact, as is its conclusion that defendant’s statements to officers were voluntarily made. The court thus modified and affirmed the decision of the Court of Appeals.

(Dec. 31, 1969)

The defendant was accused of killing his aunt in Lenoir County. Following his arrest, the defendant initially requested an attorney and was not interrogated, but later contacted detectives and signed a Miranda waiver. The defendant offered to make a full statement if he could see his family face-to-face again (visits at the jail were conducted by computer and phone only). Officers initially declined the offer but eventually agreed to a face-to-face family visit, and the defendant confessed. The trial court refused to suppress the statement and the defendant was convicted of first-degree murder at trial. He appealed, arguing that his confession was the product of improper inducement by police and therefore not voluntary.

Due process prohibits the admission of an involuntary confession by a person in custody. “[A] confession obtained by the improper ‘influence of hope or fear implanted in the defendant’s mind’ by law enforcement can render the confession involuntary.” Slip. op. at 5. However, for an inducement to be improper, it “must promise relief from the criminal charge to which the confession relates, not to any merely collateral advantage.” Id. at 6 (citations omitted). Here, the defendant initiated the contact with law enforcement and offered to confess in exchange for the family visit; the plan did not originate with law enforcement. The defendant also testified at suppression that he was motivated in part to confess after talking with his father, who encouraged the defendant to make a truthful statement. The totality of circumstances showed that the confession was knowing and voluntary. Further, the purported inducement here related only to a collateral advantage and did not promise relief from the crime. The denial of the motion to suppress was therefore unanimously affirmed.

(Dec. 31, 1969)

The defendant was convicted of first-degree murder, robbery with a dangerous weapon, and assault with a deadly weapon with the intent to kill inflicting serious injury. He was sentenced to life without parole for the murder conviction and to shorter terms for the other convictions. The case arose out of the robbery of a bar by two masked individuals, during which the owner of the bar was shot and killed and the perpetrators fled with the cash register. The 18-year-old defendant was arrested and waived his Miranda rights. The defendant adamantly denied his involvement throughout much of the three-hour, recorded interrogation but toward the end confessed his involvement. The defendant’s motion to suppress his confession was denied by the trial judge, and at trial the State introduced his confession and the testimony of others involved in the robbery implicating the defendant. The defendant argued on appeal that his confession was not voluntary because it was induced by hope of a sentence of life imprisonment instilled by the statements and actions of the officers who interrogated him. The Court of Appeals reviewed the transcript of the confession and concluded that in the totality of the circumstances the defendant’s confession was involuntary. The Court found that the defendant was predisposed to deny involvement and believed he would receive a life sentence whether he confessed or not. The Court also found that without being prompted by the defendant, the interrogators introduced the idea that they had ample evidence against the defendant, that they knew he was lying, that the judge could be influenced to show leniency if he confessed, and that they would be willing to testify on his behalf. The Court further found that the State failed to meet its burden to show that admission of the confession, which was constitutional error, was harmless beyond a reasonable doubt. The Court observed that there was sufficient evidence to convict the defendant without the confession in light of testimony from others involved in the robbery and video surveillance footage showing the masked perpetrators; however, no physical evidence linked the defendant to the crime and no one at the bar could identify the defendant as one of the perpetrators. The Court stated that it could not conclude beyond a reasonable doubt that all twelve jurors would have voted to convict without the confession.

(Dec. 31, 1969) , ___ N.C. App. ___, 815 S.E.2d 690 2018-05-01

(1) In this case involving a gang-related home invasion and murder, the court remanded to the trial court on the issue of whether the defendant’s waiver of his right to counsel was voluntary. Officers interrogated the 15-year-old defendant four times over an eight hour period. Although he initially denied being involved in either a shooting or a killing, he later admitted to being present for the shooting. He denied involvement in the killing, but gave a detailed description of the murders and provided a sketch of the home based on information he claimed to have received from another person. All four interviews were videotaped. At trial, the State sought to admit the videotaped interrogation and the defendant’s sketch of the home into evidence. The defendant moved to suppress on grounds that the evidence was obtained in violation of his Sixth Amendment rights. The trial court denied the motion and the defendant was convicted. He appealed arguing that the trial court’s suppression order lacks key findings concerning law enforcement’s communications with him after he invoked his right to counsel. The video recording of the interrogation shows that the defendant initially waived his right to counsel and spoke to officers. But, after lengthy questioning, he re-invoked his right to counsel and the officers ceased their interrogation and left the room. During that initial questioning, law enforcement told the defendant that they were arresting him on drug charges. The officers also told the defendant they suspected he was involved in the killings, but they did not tell him they were charging him with those crimes, apparently leaving him under the impression that he was charged only with drug possession. Before being re-advised of his rights and signing a second waiver form, the defendant engaged in an exchange with the police chief, who was standing outside of the interrogation room. During the exchange, the defendant asked about being able to make a phone call; the police chief responded that would occur later because he was being arrested and needed to be booked for the shooting. The defendant insisted that he had nothing to do with that and had told the police everything he knew. The chief responded: “Son, you f***** up.” Later, when officers re-entered the interrogation room, the defendant told them that he wanted to waive his right to counsel and make a statement. The trial court’s order however did not address the exchange with the chief. Because of this, the court concluded that it could not examine the relevant legal factors applicable to this exchange, such as the intent of the police; whether the practice is designed to elicit an incriminating response from the accused; and any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion. The court thus remanded for the trial court to address this issue.

(2) The court went on however to reject the defendant’s argument that separate and apart from the chief’s communication with him, his waiver of his right to counsel was involuntary given his age, the officers’ interrogation tactics, and his lack of sleep, food, and medication. The court concluded that the trial court’s order addressed these factors and, based on facts supported by competent evidence in the record, concluded that the defendant’s actions and statements showed awareness and cognitive reasoning during the entire interview and that he was not coerced into making any statements, but rather made his statements voluntarily. Because the trial court’s fact findings on these issues are supported by competent evidence, and those findings in turn support the court’s conclusions, the court rejected this voluntariness challenge.

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > Warnings

(Dec. 31, 1969)

Arrest, Search, and Investigation > Interrogation and Confession > Voluntariness of Statement

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > “Custodial”

(Dec. 31, 1969)

In this McDowell Countyt case of first impression, the Court of Appeals determined that law enforcement officers were not required to provide the defendant with Miranda warnings while he barricaded himself in a bedroom for many hours and threatened to commit suicide while officers served an arrest warrant for him at his aunt’s home. Because the defendant was not in custody for Miranda purposes while barricaded in the bedroom, the court rejected his argument that un-warned incriminating statements he made indicating that there were drugs in the bedroom should be suppressed. The court explained that the defendant’s own actions prevented officers from placing him in Miranda custody and noted that negotiations between the defendant and officers while he was barricaded were “limited to the purpose of having defendant safely leave the bedroom.” The court vacated and remanded one judgment in the case for correction of a clerical error related to sentencing.

(Dec. 31, 1969) , ___ N.C. App. ___, 824 S.E.2d 904 2019-03-19

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > “Interrogation”

Considering the circumstances under which Miranda warnings are required when a member of the Armed Forces is questioned by a superior officer about involvement in the commission of a crime, the court concluded that the trial court’s order denying the defendant’s motion to suppress statements to the officer lacked findings of fact on key issues and that the trial court did not fully apply the correct legal standard; it held however that the trial court properly denied a motion to suppress statements in a jail letter. The defendant’s motion to suppress pertained, in relevant part, to two items of inculpatory evidence: an oral statement made to Sgt. Schlegelmilch, a non-commissioned first sergeant in the third brigade of the United States Army, on 18 August 2011; and written statements contained in a letter sent by the defendant from jail to Sgt. Schlegelmilch.

(1) As to the oral statement made to Schlegelmilch, the court vacated and remanded, finding that the trial court did not make factual findings on several issues integral to the question of whether a Miranda violation had occurred and it failed to fully apply the correct legal standard applicable to the issue. The defendant argued that because he was interrogated by a superior officer who had the power to arrest him, a custodial interrogation occurred. The State countered that no custodial arrest can occur unless the soldier is questioned by a commissioned officer with independent arrest authority. Citing federal law, the court noted that a commanding officer may delegate arrest authority to a non-commissioned officer. When this has occurred, the non-commissioned officer’s interrogation of the soldier can trigger the need for Miranda warnings. Here, it is undisputed that Schlegelmilch was a non-commissioned officer. Therefore to resolve the issue of whether the defendant was entitled to Miranda warnings, it is necessary to determine whether she had previously been delegated authority to arrest the defendant by a commanding officer as authorized by federal law. However, the trial court did not make any findings of fact as to whether such a delegation occurred. Additionally, the trial court’s order suggests that it failed to understand the potential applicability of Miranda if Schlegelmilch had, in fact, been delegated authority to arrest and then proceeded to question him under circumstances amounting to custodial interrogation. Nor, the court continued, did the trial court make findings about the specific degree to which the defendant’s liberty had been restricted when he made the statements. The court thus vacated the portion of the trial court’s suppression order relating to the statements and remanded for additional findings of fact and conclusions of law, along with a new hearing if necessary.

(2) The trial court properly denied the defendant’s motion to suppress the contents of the jail letter. While the defendant was being held in jail after his arrest, the decision was made to initiate military discharge proceedings against him. When the defendant was delivered a notice of separation, he signed a memorandum indicating that he would not contest the proceedings. Thereafter and while in jail, he exchanged letters with Schlegelmilch. In the reply letter at issue, the defendant gave an account of the victim’s death, including inculpatory statements. The defendant argued that the letter should have been suppressed because it was a response to a letter from Schlegelmilch asking the defendant to explain how the victim had died and thus constituted a custodial interrogation. The court rejected this argument, finding the circumstances under which the letter was written did not implicate Miranda. First, it noted the defendant’s failure to cite any cases supporting the proposition that questioning conducted through an exchange of letters can constitute a custodial interrogation for purposes of Miranda, nor did the court’s own research reveal any legal authority for that proposition. Furthermore, the court noted, when the defendant responded to Schlegelmilch’s letter, he was in the midst of being discharged from the military, was not contesting those proceedings, and thus the circumstances “simply do not amount to the type of coercive environment that Miranda was intended to address.” The court thus affirmed the trial court’s denial of the motion to suppress with respect to the letter.

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > “Interrogation”

(Dec. 31, 1969) , ___ N.C. App. ___, 824 S.E.2d 904 2019-03-19

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > “Custodial”

(Dec. 31, 1969)

The defendant was subject to interrogation within the meaning of Miranda when he made incriminating statements to a detective. The detective should have known that his conduct was likely to elicit an incriminating response when, after telling the defendant that their conversation would not be on the record, the detective turned discussion to the defendant’s cooperation with the investigation. Also, the detective knew that the defendant was particularly susceptible to an appeal to the defendant’s relationship with the detective, based on prior dealings with the defendant, and that the defendant was still under the effects of an attempted overdose on prescription medication and alcohol. Additionally the defendant testified that he knew that the detective was trying to get him to talk.

(Dec. 31, 1969)

Officers did not interrogate the defendant within the meaning of Miranda. An officer asked the defendant to explain why he was hanging out of a window of a house that officers had approached on an informant’s tip that she bought marijuana there. The defendant responded, “Man, I’ve got some weed.” When the officer asked if that was the only reason for the defendant’s behavior, the defendant made further incriminating statements. Additional statements made by the defendant were unsolicited.

(Dec. 31, 1969)

The police did not impermissibly interrogate the defendant after he requested a lawyer by offering to allow him to speak with his grandmother by speaker phone. Once the defendant stated that he wished to have a lawyer, all interrogation ceased. However, before leaving for the magistrate’s office, an interpreter who had been working with the police, informed an officer that he had promised to let the defendant’s grandmother know when the defendant was in custody. The officer allowed the interpreter to use a speaker phone to call the grandmother to so inform the grandmother. When the interpreter asked the defendant if he wanted to speak with his grandmother, the defendant responded affirmatively. While on the phone with his grandmother, the defendant admitted that he did the acts charged. The grandmother urged him to tell the police everything. Thereafter, the defendant indicated that he wanted to make a statement, was given Miranda warnings, waived his rights, and made a statement confessing to the crime.

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > Assertion of Miranda Rights

(Dec. 31, 1969)

The defendant was arrested in connection with a shooting that left one victim dead and another injured. At the start of their interrogation of the defendant, officers presented him with a written notification of his constitutional rights, which contained Miranda warnings. During the three-hour interrogation, the defendant never said that he wanted to remain silent, did not want to talk with the police, or he wanted a lawyer. Although he was largely silent, he gave a limited number of verbal answers, such as “yeah,” “no,” and “I don’t know,” and on occasion he responded by nodding his head. After two hours and forty-five minutes, the defendant was asked whether he believed in God and whether he prayed to God. When he answered in the affirmative, he was asked, “Do you pray to God to forgive you for shooting that boy down?” The defendant answered “yes,” and the interrogation ended shortly thereafter. The Court rejected the defendant’s argument that his answers to the officers’ questions were inadmissible because he had invoked his privilege to remain silent by not saying anything for a sufficient period of time such that the interrogation should have ceased before he made his inculpatory statements. Noting that in order to invoke the Miranda right to counsel, a defendant must do so unambiguously, the Court determined that there is no reason to adopt a different standard for determining when an accused has invoked the Miranda right to remain silent. It held that in the case before it, the defendant’s silence did not constitute an invocation of the right to remain silent. The Court went on to hold that the defendant knowingly and voluntarily waived his right to remain silent when he answered the officers’ questions. The Court clarified that a waiver may be implied through the defendant’s silence, coupled with an understanding of rights, and a course of conduct indicating waiver. In this case, the Court concluded that there was no basis to find that the defendant did not understand his rights, his answer to the question about praying to God for forgiveness for the shooting was a course of conduct indicating waiver, and there was no evidence that his statement was coerced. Finally, the Court rejected the defendant’s argument that the police were not allowed to question him until they first obtained a waiver as inconsistent with the rule that a waiver can be inferred from the actions and words of the person interrogated.

(Dec. 31, 1969)

The court rejected the defendant’s argument that by telling officers that he did not want to snitch on anyone and declining to reveal the name of his accomplice, the defendant invoked his right to remain silent requiring that all interrogation cease.

(Dec. 31, 1969)

Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Sexual Assaults and Related Offenses > Rape

(Dec. 31, 1969)

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > Re-Interrogation After an Assertion of Rights > Defendant’s Initiation of Communication

The trial court did not err by denying the defendant’s motion to suppress incriminating statements made to police during a custodial interview. The defendant asserted that the statements were made after he invoked his right to counsel. Before the custodial interview, the defendant was advised of his Miranda rights, initialed and signed the Miranda rights form, waived his Miranda rights, and spoke with law enforcement. The defendant asked at one point “Can I consult with a lawyer, I mean, or anything?” Finding that the trial court did not err by concluding that this question was not an unambiguous assertion of the right to counsel, the court noted:

Merely one-tenth of a second elapsed between the time that defendant asked, “[c]an I consult with a lawyer, I mean, or anything?” and then stated, “I mean I – I – I did it. I’m not laughing man, I want to cry because its f[*]cked up to be put on the spot like this.” The officers then immediately reminded defendant of his Miranda rights, that they had just read him those rights, that defendant “ha[d] the right to have [his attorney] here,” and that the officers “[could] never make that choice for [him] one way or another.” After police attempted to clarify whether defendant’s question was an affirmative assertion of his Miranda rights, defendant declined to unambiguously assert that right, continued communications, and never again asked about counsel for the rest of the interview.

The court concluded that although the defendant explicitly asked if he could consult with a lawyer, considering the totality of the circumstances his statement was ambiguous or equivocal, such that the officers were not required to cease questioning. He did not pause between the time he asked for counsel and gave his initial confession, the officers immediately reminded him of his Miranda rights to clarify if he was indeed asserting his right to counsel, and the defendant declined the offered opportunity to unambiguously assert that right but instead continued communicating with the officers. The court went on to hold that even if his question could be objectively construed as an unambiguous invocation of his Miranda rights it was immediately waived when he initiated further communication.

(Dec. 31, 1969)

On remand from the NC Supreme Court the court held, in this murder case, that the defendant’s Fifth Amendment rights were not violated. The defendant argued on appeal that the trial court erred in denying his motion to suppress because he invoked his Fifth Amendment right to counsel during a custodial interrogation. The court disagreed, holding that the defendant never invoked his right to counsel. It summarized the relevant facts as follows:

[D]uring the police interview, after defendant asked to speak to his grandmother, Detective Morse called defendant’s grandmother from his phone and then handed his phone to defendant. While on the phone, defendant told his grandmother that he called her to “let [her] know that [he] was alright.” From defendant’s responses on the phone, it appears that his grandmother asked him if the police had informed him of his right to speak to an attorney. Defendant responded, “An attorney? No, not yet. They didn’t give me a chance yet.” Defendant then responds, “Alright,” as if he is listening to his grandmother’s advice. Defendant then looked up at Detective Morse and asked, “Can I speak to an attorney?” Detective Morse responded: “You can call one, absolutely.” Defendant then relayed Detective Morse’s answer to his grandmother: “Yeah, they said I could call one.” Defendant then told his grandmother that the police had not yet made any charges against him, listened to his grandmother for several more seconds, and then hung up the phone.

After the defendant refused to sign a Miranda waiver form, explaining that his grandmother told him not to sign anything, Morse asked, “Are you willing to talk to me today?” The defendant responded: “I will. But [my grandmother] said—um—that I need an attorney or a lawyer present.” Morse responded: “Okay. Well you’re nineteen. You’re an adult. Um—that’s really your decision whether or not you want to talk to me and kind-of clear your name or—” The defendant then interrupted: “But I didn’t do anything, so I’m willing to talk to you.” The defendant then orally waived his Miranda rights. The defendant’s question, “Can I speak to an attorney?”, made during his phone conversation with his grandmother “is ambiguous whether defendant was conveying his own desire to receive the assistance of counsel or whether he was merely relaying a question from his grandmother.” The defendant’s later statement —“But [my grandmother] said—um—that I need an attorney or a lawyer present”—“is also not an invocation since it does not unambiguously convey defendant’s desire to receive the assistance of counsel.” (quotation omitted). The court went on to note: “A few minutes later, after Detective Morse advised defendant of his Miranda rights, he properly clarified that the decision to invoke the right to counsel was defendant’s decision, not his grandmother’s.”

(Dec. 31, 1969)

The court rejected the defendant’s argument that his Fifth Amendment right to remain silent was violated where there was ample evidence to support the trial court’s finding that the defendant did not invoke that right. The defendant had argued that his refusal to talk to police about the crimes, other than to deny his involvement, was an invocation of the right to remain silent. The court found that the defendant’s “continued assertions of his innocence cannot be considered unambiguous invocations of his right to remain silent.”

(Dec. 31, 1969)

Citing Berghuis v. Thompkins, 560 U.S. 370 (2010), the court held that the defendant’s silence or refusal to answer the officers’ questions was not an invocation of the right to remain silent.

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > Waiver of Rights > Generally

(Dec. 31, 1969)

Applying Berghuis v. Thompkins, 560 U.S. 370 (2010),the court held that the defendant understood his Miranda rights and through a course of conduct indicating waiver, provided a knowing and voluntary waiver of those rights. During the interrogation, the defendant never said that he wanted to remain silent, did not want to talk with the police, or that he wanted an attorney. In fact, the 40-minute video of the interrogation shows that the defendant was willing to speak with the detective. After being read his rights, the defendant indicated that he wanted to tell his side of the story and he talked at length during the interrogation, often interrupting the detective, and responding without hesitation to the detective’s questions. The video also shows that the defendant emphatically denied any wrongdoing; provided a detailed account of the evening’s events; and seemed to try to talk his way out of custody. The court found this last point “worth emphasizing because it appears that, when faced with a choice between invoking his rights or trying to convince the police that he was innocent, defendant chose to do the latter.” The court concluded that the defendant’s course of conduct indicating waiver was much more pronounced than that of the defendant in Berghuis, who largely remained silent during a lengthy interrogation and who gave very limited responses when he did speak and nonetheless was found to have implicitly waived his rights. The court went on to conclude that, as in Berghuis, there was no evidence that the defendant’s statements were involuntary. The defendant was not threatened in any way and the detective did not make any promises to get the defendant to talk. The interrogation was conducted in a standard room and lasted less than 40 minutes. The only factor that could even arguably constitute coercion was the fact that the defendant’s arm was handcuffed to a bar on the wall in the interrogation room. The court noted however that his chair had an armrest, his arm had an ample range of motion, and he did not appear to be in discomfort during the interrogation. Thus, the court concluded, the defendant voluntarily waived his Miranda rights. The court went on to reject the defendant’s argument that he did not understand his rights, again citing Berghuis. Here, the detective read all of the rights aloud, speaking clearly. The video shows that the defendant appeared to be listening and paying attention and that he speaks English fluently. The court noted that the defendant was mature and experienced enough to understand his rights, in part because of his prior experience with the criminal justice system. The trial court found the defendant gave no indication of cognitive issues, nor was there anything else that could have impaired his understanding of his rights. The court rejected the defendant’s argument that the State must prove that the defendant explicitly stated that he understood his rights. Rather, it concluded that the State simply must prove, under the totality of the circumstances, that the defendant in fact understand them. The court went on to conclude that even if the defendant had expressly denied that he understood his rights, such a bare statement, without more, would not be enough to outweigh other evidence suggesting that he in fact understand them. The court summarized:

[T]he fact that a defendant affirmatively denies that he understands his rights cannot, on its own, lead to suppression. Again, while an express written or oral statement of waiver of Miranda rights is usually strong proof of the validity of that waiver, it is neither necessary nor sufficient to establish waiver. Likewise, a defendant’s affirmative acknowledgement that he understands his Miranda rights is neither necessary nor sufficient to establish that a defendant in fact understood them, because the test for a defendant’s understanding looks to the totality of the circumstances. Just because a defendant says that he understands his rights, after all, does not mean that he actually understands them. By the same token, just because a defendant claims not to understand his rights does not necessarily mean that he does not actually understand them. In either situation, merely stating something cannot, in and of itself, establish that the thing stated is true. That is exactly why a trial court must analyze the totality of the circumstances to determine whether a defendant in fact understood his rights. As a result, even if defendant here had denied that he understood his rights—and again, in context it appears that he did not—that would not change our conclusion in this case. (citation omitted).

It continued, noting that any suggestion in the Court of Appeals’ opinion suggesting that a defendant must make some sort of affirmative verbal response or affirmative gesture to acknowledge that he has understood his Miranda rights for his waiver to be valid “is explicitly disavowed.” (citation omitted).

(Dec. 31, 1969)

(1) After being read his Miranda rights, the defendant knowingly and intelligently waived his right to counsel. The court rejected the defendant’s argument that the fact that he never signed the waiver of rights form established that that no waiver occurred. The court also rejected the defendant’s argument that he was incapable of knowingly and intelligently waiving his rights because his borderline mental capacity prevented him from fully understanding those rights. In this regard, the court relied in part on a later psychological evaluation diagnosing the defendant as malingering and finding him competent to stand trial. (2) After waiving his right to counsel the defendant did not unambiguously ask to speak a lawyer. The court rejected the defendant’s argument that he made a clear request for counsel. It concluded: “Defendant never expressed a clear desire to speak with an attorney. Rather, he appears to have been seeking clarification regarding whether he had a right to speak with an attorney before answering any of the detective’s questions.” The court added: “There is a distinct difference between inquiring whether one has the right to counsel and actually requesting counsel. Once defendant was informed that it was his decision whether to invoke the right to counsel, he opted not to exercise that right.”

(Dec. 31, 1969)

The defendant’s waiver of Miranda rights was knowing, voluntary, and intelligent. Among other things, the defendant was familiar with the criminal justice system, no threats or promises were made to him before he agreed to talk, and the defendant was not deprived of any necessaries. Although there was evidence documenting the defendant’s limited mental capacity, the record in no way indicated that the defendant was confused during the interrogation, that he did not understand any of the rights as they were read to him, or that he was unable to comprehend the ramifications of his statements.

(Dec. 31, 1969)

The defendant’s waiver of Miranda rights was valid where Miranda warnings were given by an officer who was not fluent in Spanish. The officer communicated effectively with the defendant in Spanish, notwithstanding the lack of fluency. The defendant gave clear, logical, and appropriate responses to questions. Also, when the officer informed the defendant of his Miranda rights, he did not translate English to Spanish but rather read aloud the Spanish version of the waiver of rights form. Even if the defendant did not understand the officer, the defendant read each right, written in Spanish, initialed next to each right, and signed the form indicating that he understood his rights. The court noted that officers are not required to orally apprise a defendant of Miranda rights to effectuate a valid waiver.

(Dec. 31, 1969)

The trial court did not commit plain error by failing to exclude the defendant’s statements to investigating officers after his arrest. The defendant had argued that because of his limited command of English, the Miranda warnings were inadequate and he did not freely and voluntarily waive his Miranda rights. The court determined that there was ample evidence to support a conclusion that the defendant’s English skills sufficiently enabled him to understand the Miranda warnings that were read to him. Among other things, the court referenced the defendant’s ability to comply with an officer’s instructions and the fact that he wrote his confession in English. The court also concluded that the evidence was sufficient to permit a finding that the defendant’s command of English was sufficient to permit him to knowingly and intelligently waive his Miranda rights, referencing, among other things, his command of conversational English and the fact that he never asked for an interpreter.

(Dec. 31, 1969)

A SBI Agent’s testimony at the suppression hearing supported the trial court’s finding that the Agent advised the defendant of his Miranda rights, read each statement on the Miranda form and asked the defendant if he understood them, put check marks on the list by each statement as he went through indicating that the defendant had assented, and then twice confirmed that the defendant understood all of the rights read to him. The totality of the circumstances fully supports the trial court’s conclusion that the defendant’s waiver of Miranda rights was made freely, voluntarily, and understandingly.

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > Waiver of Rights > Requirement that Defendant Understand Rights Before Waiver

(Dec. 31, 1969)

[T]he fact that a defendant affirmatively denies that he understands his rights cannot, on its own, lead to suppression. Again, while an express written or oral statement of waiver of Miranda rights is usually strong proof of the validity of that waiver, it is neither necessary nor sufficient to establish waiver. Likewise, a defendant’s affirmative acknowledgement that he understands his Miranda rights is neither necessary nor sufficient to establish that a defendant in fact understood them, because the test for a defendant’s understanding looks to the totality of the circumstances. Just because a defendant says that he understands his rights, after all, does not mean that he actually understands them. By the same token, just because a defendant claims not to understand his rights does not necessarily mean that he does not actually understand them. In either situation, merely stating something cannot, in and of itself, establish that the thing stated is true. That is exactly why a trial court must analyze the totality of the circumstances to determine whether a defendant in fact understood his rights. As a result, even if defendant here had denied that he understood his rights—and again, in context it appears that he did not—that would not change our conclusion in this case. (citation omitted).

(Dec. 31, 1969)

This Lee county case has a lengthy procedural history, summarized in State v. Benitez, 258 N.C. App. 491, 813 S.E.2d 268 (2018) (Benitez I). Most recently, the case was remanded to the trial court to conduct a review of the totality of the circumstances of the juvenile defendant’s statements to law enforcement to determine if he knowingly and voluntarily waived his Miranda rights. The defendant made the statements at age 13 during two and a half hours of questioning that occurred at the Sheriff’s office. The statements were made through an interpreter and in the presence of the juvenile’s uncle. The juvenile’s initial motion to suppress was denied, and he subsequently pled guilty to first-degree murder. On remand, the trial court again denied the motion to suppress.

The Court of Appeals rejected the defendant’s argument that the trial court was not in a position to make certain findings without the benefit of expert testimony. Whether a juvenile understood Miranda warnings does not require testimony of an expert. It is, the Court concluded, a question of law to be answered by the court based on the evidence presented by both sides. The trial court appropriately considered evidence regarding the circumstances surrounding the interrogation, as well as the juvenile’s age, experience, education, background, intelligence, and capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. The trial court did not need further expert testimony on these topics to make its determination. The trial court was also clear that evidence from the capacity hearing, held well after the interrogation occurred, was not used in determining that the defendant understood the Miranda warnings at the time of interrogation. The binding findings of fact, considered as directed by Benitez I, support the trial court’s denial of the motion to suppress. The Court of Appeals therefore affirmed the trial court.

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > Waiver of Rights > Waiver of Right to Counsel

(Dec. 31, 1969)

Arrest, Search, and Investigation > Interrogation and Confession > Voluntariness of Statement

(Dec. 31, 1969)

No prejudicial error occurred when the trial court denied the defendant’s motion to suppress statements made by him while being transported in a camera-equipped police vehicle. After being read his Miranda rights, the defendant invoked his right to counsel. He made the statements at issue while later being transported in the vehicle. The court explained that to determine whether a defendant’s invoked right to counsel has been waived, courts must consider whether the post-invocation interrogation was police-initiated and whether the defendant knowingly and intelligently waived the right. Although the trial court did not apply the correct legal standard and failed to make the necessary factual findings, any error was harmless beyond a reasonable doubt, given that the defendant’s statements contained little relevant evidence, they were not “particularly prejudicial,” and the other evidence in the case in strong.

(Dec. 31, 1969)

The court rejected the State’s argument that the defendant initiated contact with the police following his initial request for counsel and thus waived his right to counsel. After the defendant asserted his right to counsel, the police returned him to the interrogation room and again asked if he wanted counsel, to which he said yes. Then, on the way from the interrogation room back to the jail, a detective told the defendant that an attorney would not able to help him and that he would be served with warrants regardless of whether an attorney was there. The police knew or should have known that telling the defendant that an attorney could not help him with the warrants would be reasonably likely to elicit an incriminating response. It was only after this statement by police that the defendant agreed to talk. Therefore, the court concluded, the defendant did not initiate the communication. The court went on to conclude that even if the defendant had initiated communication with police, his waiver was not knowing and intelligent. The trial court had found that the prosecution failed to meet its burden of showing that the defendant made a knowing and intelligent waiver, relying on the facts that the defendant was 18 years old and had limited experience with the criminal justice system, there was a period of time between 12:39 p.m. and 12:54 p.m. where there is no evidence as to what occurred, and there was no audio or video recording. The court found that the defendant’s age and inexperience, when combined with the circumstances of his interrogation, support the trial court’s conclusion that the State failed to prove the defendant’s waiver was knowing and intelligent.

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > Waiver of Rights > Waiver of the Right to Remain Silent

(Dec. 31, 1969)

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > Re-Interrogation After an Assertion of Rights > Break in custody

(Dec. 31, 1969)

The Court held that a 2½ year break in custody ended the presumption of involuntariness established in Edwards v. Arizona, 451 U.S. 477 (1981) (when a defendant invokes the right to have counsel present during a custodial interrogation, a valid waiver of that right cannot be established by showing that the defendant responded to further police-initiated custodial interrogation even if the defendant has been advised of his Miranda rights; the defendant is not subject to further interrogation until counsel has been provided or the defendant initiates further communications with the police). The defendant was initially interrogated about a sexual assault while in prison serving time for an unrelated crime. After Miranda rights were given, he declined to be interviewed without counsel, the interview ended, and the defendant was released back into the prison’s general population. 2½ years later another officer interviewed the defendant in prison about the same sexual assault. After the officer read the defendant his Miranda rights, the defendant waived those rights in writing and made incriminating statements. At trial, the defendant unsuccessfully tried to suppress his statements pursuant to Edwards. The Court concluded: “The protections offered by Miranda, which we have deemed sufficient to ensure that the police respect the suspect’s desire to have an attorney present the first time police interrogate him, adequately ensure that result when a suspect who initially requested counsel is reinterrogated after a break in custody that is of sufficient duration to dissipate its coercive effects.” The Court went on to set a 14-day break in custody as the bright line rule for when the Edwards protection terminates. It also concluded that the defendant’s release back into the general prison population to continue serving a sentence for an unrelated conviction constituted a break in Miranda custody.

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > Re-Interrogation After an Assertion of Rights > Defendant’s Initiation of Communication

(Dec. 31, 1969) , ___ N.C. App. ___, 818 S.E.2d 129 2018-07-03

(Dec. 31, 1969)

The court rejected the defendant’s argument that his confession was improperly obtained after he invoked his right to counsel. Although the defendant invoked his right to counsel before making the statements at issue, because he re-initiated the conversation with police, his right to counsel was not violated when detectives took his later statements.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to suppress where, although the defendant initially invoked his Miranda right to counsel during a custodial interrogation, he later reinitiated conversation with the officer. The defendant was not under the influence of impairing substances, no promises or threats were made to him, and the defendant was again fully advised of and waived his Miranda rights before he made the statement at issue.

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > Re-Interrogation After Unwarned Interrogation

(Dec. 31, 1969)

The Court, per curiam, held that the Sixth Circuit erroneously concluded that a state supreme court ruling affirming the defendant’s murder conviction was contrary to or involved an unreasonable application of clearly established federal law. The defendant and an accomplice murdered the victim, obtained an identification card in the victim’s name, and sold the victim’s car. An officer first spoke with the defendant during a chance encounter when the defendant was voluntarily at the police station for completely unrelated reasons. The officer gave the defendant Miranda warnings and asked to talk to him about the victim’s disappearance. The defendant declined to answer questions without his lawyer and left. Five days later, after receiving information that the defendant had sold the victim’s car and forged his name, the defendant was arrested for forgery and was interrogated. Officers decided not to give the defendant Miranda warnings for fear that he would again refuse to speak with them. The defendant admitted to obtaining an identification card in the victim’s name but claimed ignorance about the victim’s disappearance. An officer told the defendant that “now is the time to say” whether he had any involvement in the murder because “if [the accomplice] starts cutting a deal over there, this is kinda like, a bus leaving. The first one that gets on it is the only one that’s gonna get on.” When the defendant continued to deny knowledge of the victim’s disappearance, the interrogation ended. That afternoon the accomplice led the police to the victim’s body, saying that the defendant told him where it was. The defendant was brought back for questioning. Before questioning began, the defendant said that he heard they had found a body and asked whether the accomplice was in custody. When the police said that the accomplice was not in custody, the defendant replied, “I talked to my attorney, and I want to tell you what happened.” Officers read him Miranda rights and obtained a signed waiver of those rights. At this point, the defendant admitted murdering the victim. The defendant’s confession to murder was admitted at trial and the defendant was convicted of, among other things, murder and sentenced to death. After the state supreme court affirmed, defendant filed for federal habeas relief. The district court denied relief but the Sixth Circuit reversed.

The Court found that the Sixth Circuit erred in three respects. First, it erred by concluding that federal law clearly established that police could not speak to the defendant when five days earlier he had refused to speak to them without his lawyer. The defendant was not in custody during the chance encounter and no law says that a person can invoke his Miranda rights anticipatorily, in a context other than custodial interrogation. Second, the Sixth Circuit erroneously held that police violated the Fifth Amendment by urging the defendant to “cut a deal” before his accomplice did so. No precedent holds that this common police tactic is unconstitutional. Third, the Sixth Circuit erroneously concluded that the state supreme court unreasonably applied Oregon v. Elstad, 470 U.S. 298 (1985), when it held that the defendant’s second confession was voluntary. As the state supreme court explained, the defendant’s statements were voluntary. During the first interrogation, he received several breaks, was given water and offered food, and was not abused or threatened. He freely acknowledged that he forged the victim’s name and had no difficulty denying involvement with the victim’s disappearance. Prior to his second interrogation, the defendant made an unsolicited declaration that he had spoken with his attorney and wanted to tell the police what happened. Then, before giving his confession, the defendant received Miranda warnings and signed a waiver-of-rights form. The state court recognized that the defendant’s first interrogation involved an intentional Miranda violation but concluded that the breach of Miranda procedures involved no actual compulsion and thus there was no reason to suppress the later, warned confession. The Sixth Circuit erred by concluding that Missouri v. Seibert, 542 U.S. 600 (2004), mandated a different result. The nature of the interrogation here was different from that in Seibert. Here, the Court explained, the defendant denied involvement in the murder and then after Miranda warnings were given changed course and confessed (in Seibert the defendant confessed in both times). Additionally, the Court noted, in contrast to Seibert, the two interrogations at issue here did not occur in one continuum.

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > Military setting

(Dec. 31, 1969)

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > “Custodial”

Arrest, Search, and Investigation > Interrogation and Confession > Miranda > “Interrogation”

Arrest, Search, and Investigation > Interrogation and Confession > Sixth Amendment Right to Counsel

(Dec. 31, 1969)

The defendant was arrested for murder, waived his Miranda rights, and gave statements in response to officers’ interrogation. He was brought before a judge for a preliminary hearing, who ordered that the defendant be held without bond and appointed counsel to represent him. Later that day, two officers visited the defendant in prison and asked him to accompany them to locate the murder weapon. He was again read his Miranda rights and agreed to go with the officers. During the trip, he wrote an inculpatory letter of apology to the murder victim’s widow. Only on his return did the defendant finally meet his court-appointed attorney. The issue before the Court was whether the letter of apology was erroneously admitted in violation of the defendant’s Sixth Amendment right to counsel. In Michigan v. Jackson, 475 U.S. 625 (1986), the Court had ruled that when a defendant requests counsel at an arraignment or similar proceeding at which the Sixth Amendment right to counsel attaches, an officer is thereafter prohibited under the Sixth Amendment from initiating interrogation. In this case, the defendant was appointed counsel as a matter of course per state law; no specific request for counsel was made. Instead of deciding whether Jackson barred the officers from initiating interrogation of the defendant after counsel was appointed, the Court overruled Jackson. Thus, it now appears that the Sixth Amendment is not violated when officers interrogate a defendant after the defendant has requested counsel, provided a waiver of the right to counsel is obtained. The Court hinted that a standard Miranda waiver will suffice to waive both the Fifth Amendment right to counsel and Sixth Amendment right to counsel. The Court remanded the case to the state court to determine unresolved factual and legal issues. Note that after Montejo, a defendant’s 5^th Amendment right to counsel under Miranda for custodial interrogations remains intact.

Arrest, Search, and Investigation > Interrogation and Confession > Sixth Amendment Right to Counsel > Offense Specific Right

(Dec. 31, 1969)

No violation of the defendant’s sixth amendment right to counsel occurred when detectives interviewed him on new charges when he was in custody on other unrelated charges. The sixth amendment right to counsel is offense specific and had not attached for the new crimes.

Arrest, Search, and Investigation > Interrogation and Confession > Sixth Amendment Right to Counsel > Request for a Lawyer

(Dec. 31, 1969)

After waiving his right to counsel the defendant did not unambiguously ask to speak a lawyer. The court rejected the defendant’s argument that he made a clear request for counsel. It concluded: “Defendant never expressed a clear desire to speak with an attorney. Rather, he appears to have been seeking clarification regarding whether he had a right to speak with an attorney before answering any of the detective’s questions.” The court added: “There is a distinct difference between inquiring whether one has the right to counsel and actually requesting counsel. Once defendant was informed that it was his decision whether to invoke the right to counsel, he opted not to exercise that right.”

(Dec. 31, 1969)

When the defendant asked, “Do I need an attorney?” the officer responded, “are you asking for one?” The defendant failed to respond and continued telling the officer about the shooting. The defendant did not unambiguously request a lawyer.

(Dec. 31, 1969)

The defendant’s statement, “I’m probably gonna have to have a lawyer,” was not an invocation of his right to counsel. The defendant had already expressed a desire to tell his side of the story and was asked to wait until they got to the station. Notwithstanding this, he gave a brief unsolicited statement to one officer while en route to the station, and this statement was relayed to the questioning officer. The questioning officer reasonably expected the defendant to continue their former conversation and proceed with the statement he apparently wished to make. Thus, when the defendant made the remark, the officer was understandably unsure of the defendant’s purpose, and followed up with an attempt to clarify the defendant’s intentions, at which point the defendant agreed to talk.

Arrest, Search, and Investigation > Interrogation and Confession > Sixth Amendment Right to Counsel > Admissibility of Statements Made in Violation of 6th Amendment Right to Counsel

(Dec. 31, 1969)

The defendant’s incriminating statement to a jailhouse informant, obtained in violation of the defendant's Sixth Amendment right to counsel, was admissible on rebuttal to impeach the defendant’s trial testimony that conflicted with statement. The statement would not have been admissible during the state's presentation of evidence in its case-in-chief.

Arrest, Search, and Investigation > Interrogation and Confession > Juveniles

(Dec. 31, 1969)

In this North Carolina case, the Court held, in a five-to-four decision, that the age of a child subjected to police questioning is relevant to the Miranda custody analysis. J.D.B. was a 13-year-old, seventh-grade middle school student when he was removed from his classroom by a uniformed police officer, brought to a conference room, and questioned by police. This was the second time that police questioned J.D.B. in a week. Five days earlier, two home break-ins occurred, and items were stolen. Police stopped and questioned J.D.B. after he was seen behind a residence in the neighborhood where the crimes occurred. That same day, police spoke to J.D.B.’s grandmother—his legal guardian—and his aunt. Police later learned that a digital camera matching the description of one of the stolen items had been found at J.D.B.’s school and in his possession. Investigator DiCostanzo went to the school to question J.D.B. A uniformed school resource officer removed J.D.B. from his classroom and escorted him to a conference room, where J.D.B. was met by DiCostanzo, the assistant principal, and an administrative intern. The door to the conference room was closed. With the two police officers and the two administrators present, J.D.B. was questioned for 30-45 minutes. Before the questioning began, J.D.B. was given neither Miranda warnings nor the opportunity to speak to his grandmother. Nor was he informed that he was free to leave. J.D.B. eventually confessed to the break-ins. Juvenile petitions were filed against J.D.B. and at trial, J.D.B.’s lawyer moved to suppress his statements, arguing that J.D.B. had been subjected to a custodial police interrogation without Miranda warnings. The trial court denied the motion and J.D.B. was adjudicated delinquent. The N.C. Court of Appeals affirmed. The N.C. Supreme Court held that J.D.B. was not in custody, declining to extend the test for custody to include consideration of the age of the individual questioned. The U.S. Supreme Court reversed, holding that the Miranda custody analysis includes consideration of a juvenile suspect’s age and concluding, in part: “[A] reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. We think it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis.” Slip Op. at 8. The Court distinguished a child’s age “from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person’s understanding of his freedom of action.” Slip Op. at 11. It held: “[S]o long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test.” Slip Op. at 14. However, the Court cautioned: “This is not to say that a child’s age will be a determinative, or even a significant, factor in every case.” Id. The Court remanded for the North Carolina courts to determine whether J.D.B. was in custody when the police interrogated him, “this time taking account of all of the relevant circumstances of the interrogation, including J.D.B.’s age.” Slip Op. at 18.

(Dec. 31, 1969)

On discretionary review of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 803 S.E.2d 33 (2017), the court reversed, holding that the trial court’s order denying the defendant’s motion to suppress contained sufficient findings of fact to support its conclusion that the defendant knowingly and voluntarily waived his juvenile rights pursuant to G.S. 7B-2101 before making certain incriminating statements. After the trial court denied the defendant’s suppression motion, the defendant entered a negotiated plea reserving his right to seek review of the denial of suppression motion. After sentencing, the defendant appealed. The Court of Appeals held that the trial court erred by denying the suppression motion because the defendant’s statement, “Can I call my mom,” required the officer to clarify whether the defendant was invoking his right to have a parent present during the interview. The Supreme Court granted the State’s petition seeking discretionary review of that decision, reversed that decision, and remanded to the Court of Appeals for consideration of the defendant’s other challenges to the suppression order. In reversing the Court of Appeals in Saldierna I, the Supreme Court concluded that the statement “Can I call my mom” did not constitute a clear and unambiguous invocation of his right to have his parent or guardian present. On remand in (Saldierna II) the Court of Appeals found that the trial court’s findings of fact did not support its conclusion of law that the State carried its burden of showing that the defendant knowingly, willingly, and understandingly waived his juvenile rights. The Supreme Court granted the State’s petition for discretionary review of the Court of Appeals’ remand decision in Saldierna II. The court noted that the totality of the circumstances analysis requires inquiry into all of the circumstances surrounding the interrogation, including evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether the juvenile has the capacity to understand the warnings given, the nature of his or her rights, and the consequences of waiving those rights. In applying this test to the custodial interrogation of juveniles, the record must be carefully scrutinized, with particular attention to both the characteristics of the accused and the details of the interrogation. However, a defendant’s juvenile status does not compel a determination that the juvenile did not knowingly and intelligently waive his or her rights. Instead, the juvenile’s age is a factor to consider in the analysis. Turning to the record before it, the court found that the trial court’s findings of fact have adequate evidentiary support and that those findings support the trial court’s conclusion that the defendant knowingly and voluntarily waived his juvenile rights. In reaching a contrary conclusion, the Court of Appeals failed to focus on the sufficiency of the evidence to support the findings of fact that the trial court actually made and to give proper deference to those findings. Thus, the Court of Appeals erred in determining that the record did not support the trial court’s findings to the effect that the defendant understood his juvenile rights. Although the record contains evidence that would have supported a different determination, it was, at most, in conflict. Evidentiary conflicts are a matter for the trial court, which has the opportunity to see and hear the witnesses. The court further found that the trial court’s findings support its conclusion of law that the defendant knowingly, willingly, and understandingly waived his juvenile rights.

(Dec. 31, 1969)

Reversing the Court of Appeals, the court held that the juvenile defendant’s request to telephone his mother while undergoing custodial questioning by police investigators was not a clear indication of his right to consult with a parent or guardian before proceeding with the questioning. The trial court had found that the defendant was advised of his juvenile rights and after receiving forms setting out these rights, indicated that he understood them; that the juvenile informed the officer that he wished to waive his juvenile rights and signed a form to that effect; and that although the defendant unsuccessfully tried to contact his mother by telephone, he did not at any time indicate that he had changed his mind regarding his desire to speak to the officer, indicate that he revoked his waiver of rights, or make an unambiguous request to have his mother present during questioning. The trial court thus found that the defendant’s rights were not violated under G.S. 7B-2101 or the constitution. The Court of Appeals had concluded that a juvenile need not make a clear and unequivocal request in order to exercise his or her right to have a parent present during questioning. Instead, it concluded that when a juvenile between the ages of 14 and 18 makes an ambiguous statement that potentially pertains to the right to have a parent present, an interviewing officer must clarify the juvenile’s meaning before proceeding with questioning. The court granted the State’s petition for discretionary review. It first held that the defendant’s statement--“Um. Can I call my mom?”--was not a clear and unambiguous invocation of his right to have his parent or guardian present during questioning and thus his rights under G.S. 7B-2101 were not violated. The court remanded for a determination of whether the defendant knowingly, willingly, and understandingly waived his rights.

(Dec. 31, 1969)

(1) On an appeal from an adverse ruling on the defendant’s motion for appropriate relief (MAR) in this murder case, the court held that because the defendant’s attorney made an objectively reasonable determination that the defendant’s uncle would qualify as his “guardian” under G.S. 7B-2101(b) and therefore did not seek suppression of the defendant’s statements on grounds of a violation of that statute, counsel did not provide ineffective assistance. When he was 13 year old, the defendant a signed statement, during an interrogation, that he “shot the lady as she was sleeping on the couch in the head.” The defendant’s uncle, with whom the defendant had been living, was present during the interrogation. Two weeks later, the trial court sua sponte entered an order appointing the director of the County Department of Social Services as guardian of the person for the defendant pursuant to G.S. 7B-2001. The district court found that “the juvenile appeared in court with no parent, guardian or custodian but he lived with an uncle who did not have legal custody of him” and “[t]hat the mother of the juvenile resides in El Salvador and the father of the juvenile is nowhere to be found and based on information and belief lives in El Salvador.” The defendant was prosecuted as an adult for murder. The defendant unsuccessfully moved to suppress his statement and was convicted. He filed a MAR arguing that his lawyer rendered ineffective assistance by failing to challenge the admission of his confession on grounds that his uncle was not his “parent, guardian, custodian, or attorney[,]” and therefore that his rights under G.S. 7B-2101(b) were violated as no appropriate adult was present during his custodial interrogation. The trial court denied the MAR and it came before the court of appeals. Noting that the statute does not define the term “guardian,” the court viewed state Supreme Court law as establishing that guardianship requires a relationship “established by legal process.” The requirement of “legal process” means that the individual’s authority is “established through a court proceeding.” But, the court concluded, it need not precisely determine what the high court meant by “legal process,” because at a minimum the statute “requires authority gained through some legal proceeding.” Here, the defendant’s uncle did not obtain legal authority over the defendant pursuant to any legal proceeding. Thus, there was a violation of the statute when the defendant was interrogated with only his uncle present. However, to establish ineffective assistance, the defendant must establish that his counsel’s conduct fell below an objective standard of reasonableness. Here, the trial court found--based on the lawyer’s actions and in the absence of any expert or opinion testimony that his performance fell below an objective standard of reasonableness--that defense counsel appropriately researched the issue and acted accordingly. Although the defendant’s counsel made a legal error, it was not an objectively unreasonable one. In the course of its holding, the court noted that expert evidence “is not necessarily required for every claim of [ineffective assistance of counsel],” though “some evidence from practicing attorneys as to the standards of practice is often helpful, particularly in cases such as this where the issue is the interpretation of case law rather than a more blatant error such as a failure to prepare for a hearing at all.” Because the court held the counsel’s conduct did not fall below an objective standard of reasonableness, it did not address the prejudice prong of the ineffective assistance of counsel claim.

(2) The court remanded to the trial court for further findings of fact on the defendant’s claim that he did not make a knowing and intelligent waiver of rights during the police interrogation. G.S. 7B-2101(d) provides that “Before admitting into evidence any statement resulting from custodial interrogation, the court shall find that the juvenile knowingly, willingly, and understandingly waived the juvenile’s rights.” To determine if a defendant has knowingly and voluntarily waived his or her rights, the trial court must consider the totality of the circumstances of the interrogation, and for juveniles, this includes the juvenile’s age, experience, education, background, and intelligence, and an evaluation into whether the juvenile has the capacity to understand the warnings given, the nature of his or her Fifth Amendment rights, and the consequences of waving them. Here, competency to stand trial was an issue, although the trial court did ultimately determine that the defendant was competent to stand trial. However, the competency determination was made when the defendant was an 18-year-old adult; because the defendant was 13 years old at the time of the interrogation, a determination of the defendant’s competency at age 18 “has little weight in the analysis of defendant’s knowing and intelligent waiver at age 13.” Nevertheless, the competency order found that the defendant suffered from a mental illness or defect that existed since before age 18. This fact is relevant to the totality of the circumstances analysis regarding the waiver issue. The competency order did not identify the mental illness or defect or describe its impact on the defendant’s abilities or understanding. Although the trial court’s findings of fact in the motion to suppress do address the defendant’s age and the circumstances surrounding the interrogation, they do not address the defendant’s experience, education, background, and intelligence or whether he had the capacity to understand the warnings, the nature of the rights, and the consequences of waving them. The absence of findings on these issues is “especially concerning” since the trial court had found that the defendant suffered from an unnamed mental illness or defect. The court thus remanded to the trial court to make additional findings of fact addressing whether the defendant’s waiver of rights at age 13 was knowing and intelligent. The court added a cautionary note about later evaluations:

Certainly the trial court may consider later evaluations and events in its analysis of defendant’s knowing and intelligent waiver at age 13 but should take care not to rely too much on hindsight. Hindsight is reputed to be 20/20, but hindsight may also focus on what it is looking for to the exclusion of things it may not wish to see. The trial court’s focus must be on the relevant time period and defendant’s circumstances at that time as a 13 year old boy who required a translator and who suffered from a “mental illness or defect” and not on the 10 years of litigation of this case since that time.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to suppress statements made to an officer while the officer was transporting the defendant to the law enforcement center. It was undisputed that the defendant made the inculpatory statements while in custody and before he had been given his Miranda rights. However, the court held that the defendant was not subjected to interrogation; rather, his statements were spontaneous utterances.

(Dec. 31, 1969)

In this robbery case, the court rejected the defendant’s argument that the trial court erred by denying his motion to suppress statements to a police officer during an interrogation outside of the presence of his parent. Notwithstanding an issue about how the Juvenile Waiver of Rights Form was completed, the court held that because the defendant was advised of his right to have a parent present pursuant to G.S. 7B-2101 and failed to invoke that right, it was waived.

(Dec. 31, 1969)

The trial court did not err by denying a fourteen-year-old juvenile’s motion to suppress his oral admissions to investigating officers. The motion asserted that the juvenile was in custody and had not been advised of his rights under Miranda and G.S. 7B-2101. The court found that the juvenile was not in custody. Responding to a report of shots fired, officers approached the juvenile’s home. After speaking with the juvenile’s parents, the juvenile talked with the officers and admitted firing the shots. Among other things, the court noted that the juvenile was asked—not instructed—to step outside the house, the officers remained at arm’s length, one of the officers was in plain clothes, and the conversation took place in an open area of the juvenile’s yard while his parents were nearby, it occurred in broad daylight, and it lasted about five minutes. The court rejected the notion that fact that the juvenile’s parents told him to be honest with the officers compelled a different conclusion.

(Dec. 31, 1969)

A thirteen-year-old juvenile was not in custody within the meaning of G.S. 7B-2101 or Miranda during a roadside questioning by an officer. Responding to a report of a vehicle accident, the officer saw the wrecked vehicle, which had crashed into a utility pole, and three people walking from the scene. When the officer questioned all three, the juvenile admitted that he had been driving the wrecked vehicle. Noting that under J.D.B. v. North Carolina, 131 S. Ct. 2394, 2406 (2011), a reviewing court must take into account a juvenile’s age if it was known to the officer or would have been objectively apparent to a reasonable officer, the court nevertheless concluded that the juvenile was not in custody.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to suppress statements made during a police interrogation where no violation of G.S. 7B-2101 occurred. The defendant, a 17-year-old juvenile, was already in custody on unrelated charges at the time he was brought to an interview room for questioning. When the defendant invoked his right to have his mother present during questioning, the detectives ceased all questioning. After the detectives had trouble determining how to contact the defendant’s mother, they returned to the room and asked the defendant how to reach her. The defendant then asked them when he would be able to talk to them about the new charges (robbery and murder) and explained that the detectives had “misunderstood” him when he requested the presence of his mother for questioning. He explained that he only wanted his mother present for questioning related to the charges for which he was already in custody, not the new crimes of robbery and murder. Although the defendant initially invoked his right to have his mother present during his custodial interrogation, he thereafter initiated further communication with the detectives; that communication was not the result of any further interrogation by the detectives. The defendant voluntarily and knowingly waived his rights.

(Dec. 31, 1969)

The trial court erred by denying a juvenile’s motion to suppress when the juvenile’s confession was made in the course of custodial interrogation but without the warnings required by Miranda and G.S. 7B-2101(a), and without being apprised of and afforded his right to have a parent present. Following In re J.D.B., 363 N.C. 664 (2009), a case that was later reversed, the court concluded that when determining whether in-school questioning amounted to a custodial interrogation, the juvenile’s age was not relevant. The court found that that the juvenile was in custody, noting that he knew that he was suspected of a crime, he was questioned by a school official for about six hours, mostly in the presence of an armed police officer, and he was frisked by the officer and transported in the officer’s vehicle to the principal’s office where he remained alone with the officer until the principal arrived. Although the officer was not with the juvenile at all times, the juvenile was never told that he was free to leave. Furthermore, the court held that although the principal, not the officer, asked the questions, an interrogation occurred, noting that the officer’s conduct significantly increased the likelihood that the juvenile would produce an incriminating response to the principal’s questioning. The court concluded that the officer’s near-constant supervision of the juvenile’s interrogation and “active listening” could cause a reasonable person to believe that the principal’s interrogation was done in concert with the officer or that the person would endure harsher criminal punishment for failing to answer.

(Dec. 31, 1969)

The trial court erred by denying the juvenile’s motion to suppress his incriminating statement where the juvenile’s waiver was not made “knowingly, willingly, and understandingly.” The juvenile was not properly advised of his right to have a parent, guardian, or custodian present during questioning. After being told that he had a “right to have a parent, guardian, custodian, or any other person present,” the juvenile elected to have his brother present. The brother was not a parent, guardian or custodian.

Arrest, Search, and Investigation > Interrogation and Confession > Recording of Interview

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to suppress asserting that his interrogation was not electronically recorded in compliance with G.S. 15A-211. The statute applies to interrogations occurring on or after March 1, 2008; the interrogation at issue occurred more than one year before that date.

Arrest, Search, and Investigation > Jurisdiction of Officers

(Dec. 31, 1969)

The respondent in this case, a non-Indian, was detained and searched by a tribal police officer on a public highway that traversed the Crow Reservation in Montana. The officer discovered the respondent in his truck on the roadside, noticed that he had watery, bloodshot eyes and saw two semiautomatic rifles in his front seat. The officer detained the defendant and seized the guns and the drugs that he later discovered in the respondent’s truck. The respondent was federally indicted for drug and gun offenses. The trial court suppressed the drug evidence on the basis that the tribal officer lacked the authority to investigate nonapparent violations of law by a non-Indian on a public right of way on the reservation. The Ninth Circuit affirmed.

A unanimous Supreme Court vacated the Ninth Circuit’s judgment.

The Court, in an opinion authored by Justice Breyer, held that the officer was authorized to detain and search the respondent based on the tribe’s inherent sovereign authority to address conduct that threatens or has some direct effect on the health or welfare of the tribe. This authority is an exception to the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers. The Court explained that to deny a tribal police officer the authority to detain and search a person the officer believes may commit or has committed a crime would make it difficult for tribes to protect themselves against ongoing threats. Earlier cases denying tribal jurisdiction over the activities of non-Indians on a reservation relied in part on the fact that applying full tribal jurisdiction would subject non-Indians to tribal law they had no role in creating. The tribal officer’s detention and search of the respondent, in contrast, did not subject him to tribal law, but instead to state and federal laws that apply whether the person is outside the reservation or on a state or federal highway within it. Finally, the Court rejected the argument that existing federal statutes granting tribes limited authority to enforce federal law divested tribes of this sovereign authority.

Justice Alito concurred, stating that he joined the opinion of the Court with the understanding that it only held the following: On a public right-of-way that traverses an Indian reservation and is primarily patrolled by tribal police, a tribal officer may (a) stop a non-Indian motorist based on reasonable suspicion of a violation of state or federal law; (b) search to the extent necessary to protect the officer and others; and (c) if the officer has probable cause, detain the motorist for the period of time reasonably necessary for a non-tribal officer to arrive.

(Dec. 31, 1969)

NC A&T campus police had territorial jurisdiction to execute a search warrant at the defendant’s off-campus private residence where A&T had entered into a Mutual Aid agreement with local police. The Agreement gave campus police authority to act off-campus with respect to offenses committed on campus. Here, the statutes governing unauthorized access to a computer—the crime in question—provide that any offense “committed by the use of electronic communication may be deemed to have been committed where the electronic communication was originally sent or where it was originally received.” Here, the defendant “sent” an “electronic communication” when she accessed the email account of an A&T employee and sent a false email. The court continued, concluding that the offenses were “committed on Campus” because she sent the email through the A&T campus computer servers.

(Dec. 31, 1969)

Even if a stop and arrest of the defendant by campus police officers while off campus violated G.S. 15A-402(f), the violation was not substantial. The stop and arrest were constitutional and the officers were acting within the scope of their mutual aid agreement with the relevant municipality.

(Dec. 31, 1969)

A wildlife enforcement officer had authority under G.S. 113-136(d) to stop the plaintiff’s vehicle for impaired driving and to arrest her for that offense. Driving while impaired satisfies the statutory language, “a threat to public peace and order which would tend to subvert the authority of the State if ignored.”

Arrest, Search, and Investigation > Knock & Talk

(Dec. 31, 1969)

The trial court erred in denying the defendant’s motion to suppress because the officers did not lawfully have a right of access to the contraband seized. The Court of Appeals considered the following factors to distinguish a knock and talk from a search: “how law enforcement approach[ed] the home, the hour at which they did so, and whether there were any indications that the occupant of the home welcomed uninvited guests on his or her property.” Slip op. at 13. In short, the Court asks whether the behavior of law enforcement is in line with something a “reasonably respectful citizen” (or a Girl Scout) would do. Id. at 12, 16.

After receiving an anonymous drug complaint and obtaining information that the defendant was a felon in possession of a firearm, Gaston County law enforcement decided to conduct a knock and talk at the defendant’s residence to investigate. After considering the factors mentioned above, the Court held that the officers did not act like reasonable, respectful citizens. The officers here carried out the knock and talk at night, a time when members of society do not expect to be called upon at their homes unexpectedly and a practice not customary for the officers. Additionally, the officers parked their vehicles in an adjacent lot, approached the defendant’s home in the dark, dressed in dark clothing, and cut through trees, rather than parking in the driveway or street and proceeding towards the home along the paved path. The officers also passed directly by a “plainly visible no trespassing sign” which indicated the defendant’s yard was not open to public visitors. Id. at 20. Based on these factors, the Court of Appeals determined that the conduct of the officers implicated the Fourth Amendment because they “strayed beyond the bounds of a knock and talk; therefore, the seizure of evidence based on their trespassory invasion cannot be justified under the plain view doctrine.” The motion to suppress therefore should have been granted.

Justice Berger dissented and would have affirmed the trial court’s ruling on the basis that the officers acted within the scope of their implied license to approach the defendant’s home.

(Dec. 31, 1969)

After discovering stolen property at a home across the street, officers approached the front door of the defendant’s residence after being informed by a witness that the person who stole the property was at the residence. No one answered the knock, and officers observed a large spiderweb in the door frame. After knocking several minutes, an officer observed a window curtain inside the home move. An officer went to the back of the home. No one answered the officer at the back door either, despite the officer again knocking for several minutes. That officer then left the back door and approached the left front corner of the home. There, the officer smelled marijuana. Another officer confirmed the smell, and they observed a fan loudly blowing from the crawl space area of the home. The odor of marijuana was emanating from the fan and an officer looked between the fan slats, where he observed marijuana plants. A search warrant was obtained on this basis, and the defendant was charged with trafficking marijuana and other drug offenses. The trial court denied the motion to suppress, finding that the smell and sight of the marijuana plants were in plain view. The court of appeals unanimously reversed. Florida v. Jardines, 569 U.S. 1 (2013), recognizes the importance of the home in the Fourth Amendment context and limits the authority of officers conducting a knock and talk. Jardines found a search had occurred when officers conducting a knock and talk used a drug sniffing dog on the suspect’s front porch, and that such action exceeded the permissible boundaries of a knock and talk. Even though no police dog was present here, “[t]he detectives were not permitted to roam the property searching for something or someone after attempting a failed ‘knock and talk’. Without a warrant, they could only ‘approach the home by the front path, knock promptly, and then (absent invitation to linger longer) leave.” (citing Jardines). North Carolina applies the home protections to the curtilage of the property, and officers here exceeded their authority by moving about the curtilage of the property without a warrant. Once the knocks at the front door went unanswered, the officers should have left. The court discounted the State’s argument that the lack of a “no trespassing” sign on the defendant’s property meant that the officers could be present in and around the yard of the home. In the words of the court:

While the evidence of a posted no trespassing sign may be evidence of a lack of consent, nothing . . . supports the State’s attempted expansion of the argument that the lack of such a sign is tantamount to an invitation for someone to enter and linger in the curtilage of the residence.

Because the officers here only smelled the marijuana after leaving the front porch and lingering in the curtilage, officers were not in a position they could lawfully be, and the plain view exception to the Fourth Amendment did not apply. Even if officers were lawfully present in the yard, the defendant had a reasonable expectation of privacy in his crawl space area, and officers violated that by looking through the fan slats. The denial of the motion to suppress was therefore reversed.

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of Premises > Homes & Curtilage

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.

(Dec. 31, 1969)

The knock and talk conducted by officers in this drug case violated the fourth amendment. After a confidential informant notified officers that he had purchased heroin from a person at an apartment located at 1013 Simmons Street, officers conducted three controlled drug buys at the apartment. On all three occasions the purchases were made at the back door of the apartment from an individual named Meager, who did not live there. Officers then obtained a warrant for Meager’s arrest and approached the apartment to serve him. Upon arrival, they immediately walked down the driveway that led to the back of the apartment and knocked on the door. Events then transpired which lead to, among other things, a pat down of the defendant and the discovery of controlled substances on the defendant’s person. The defendant was arrested and charged with drug offenses. He filed a motion to suppress which was denied. He pled guilty, reserving his right to appeal. On appeal, the court addressed the defendant’s argument that the knock and talk was unlawful. It began by noting that officers may approach the front door and conduct a knock and talk without implicating the fourth amendment. However, it also noted that knock and talks occurring at a home’s back door have been held to be unconstitutional. It held: to pass constitutional muster the officers were required to conduct the knock and talk by going to the front door, which they did not do. Rather than using the paved walkway that led directly to the unobstructed front door, they walked along the gravel driveway into the backyard to knock on the back door, which was not visible from the street. This was unreasonable. The court rejected the trial court’s determination that the officers had an implied license to approach the back door because the confidential informant had purchased drugs there. The court stated: “the fact that the resident of a home may choose to allow certain individuals to use a back or side door does not mean that similar permission is deemed to have been given generally to members of the public.” The court recognized that “unusual circumstances in some cases may allow officers to lawfully approach a door of the residence other than the front door in order to conduct a knock and talk.” However no such unusual circumstances were presented in this case and the knock and talk was unconstitutional.

(Dec. 31, 1969)

In this drug case, an officer lawfully approached the front of the defendant’s home and obtained information that was later used to procure a search warrant. Specifically, he heard a generator and noticed condensation and mold, factors which in his experience and training were consistent with the conditions of the home set up to grow marijuana. “It is well-established that an officer may approach the front door of a home, and if he is able to observe conditions from that position which indicate illegal activity, it is completely proper for him to act upon that information.”

Arrest, Search, and Investigation > Police Power

(Dec. 31, 1969)

The supreme court held that the Campus Police Act, as applied to the defendant, does not violate the Establishment Clause of the First Amendment to the U.S. Constitution. The facts underlying the case involved a Davidson College Police Department officer’s arrest of the defendant for impaired and reckless driving. The court of appeals held, in State v. Yencer, 206 N.C. App. 552 (Aug. 17, 2010), that because Davidson College is a religious institution, delegation of state police power to Davidson’s campus police force was unconstitutional under the Establishment Clause. Applying the three-pronged test of Lemon v. Kurtzman, 403 U.S. 602 (1971), the supreme court reversed, holding that as applied to the defendant’s case, the Campus Police Act does not offend the Establishment Clause.

(Dec. 31, 1969) aff’d in part, rev’d in part, 367 N.C. 400 (Jun 12 2014)

(1) Reversing the trial court, the court held that the Town of Chapel Hill’s Towing Ordinance is a valid exercise of police power under G.S. 160A-174(a). (2) The trial court improperly enjoined enforcement of the Town’s Mobile Phone Ordinance. The ordinance prohibits the use of mobile phones while driving. The court found that the trial court erred in determining that the Plaintiff was subject to a manifest threat of irreparable harm through enforcement of the Mobile Phone Ordinance. The court noted that “[i]f Plaintiff wishes to challenge the validity of the Mobile Phone Ordinance, he must do so in the context of his own case."

Arrest, Search, and Investigation > Plain Feel

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Consent Searches > Scope of Consent

Arrest, Search, and Investigation > Searches > Consent Searches > Voluntariness of Consent

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.

(Dec. 31, 1969)

Seizure of cocaine was justified under the “plain feel” doctrine. While searching the defendant the officer “felt a large bulge” in his pocket and immediately knew based on its packing that it was narcotics.

(Dec. 31, 1969)

The evidence supported the trial court’s finding that based on an officer’s training and experience, he immediately formed the opinion that a bulge in the defendant’s pants contained a controlled substance when conducting a pat down. The officer was present at the location to execute a search warrant in connection with drug offenses.

(Dec. 31, 1969)

Remanding for a determination of whether the officer had probable cause to seize a crack cocaine cookie during a frisk, where the trial court improperly applied a standard of reasonable suspicion to the plain feel doctrine.

Arrest, Search, and Investigation > Plain View

(Dec. 31, 1969)

Arrest, Search, and Investigation > Protective Sweep

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.”

(Dec. 31, 1969)

(1) Reversing the court of appeals, the court held that officers did not violate the Fourth Amendment by seizing marijuana plants seen in plain view. After receiving a tip that the defendant was growing marijuana at a specified residence, officers went to the residence to conduct a knock and talk. Finding the front door inaccessible, covered with plastic, and obscured by furniture, the officers noticed that the driveway led to a side door, which appeared to be the main entrance. One of the officers knocked on the side door. No one answered. From the door, the officer noticed plants growing in several buckets about 15 yards away. Both officers recognized the plants as marijuana. The officers seized the plants, returned to the sheriff’s office and got a search warrant to search the home. The defendant was charged with manufacturing a controlled substance and moved to suppress evidence of the marijuana plants. The trial court denied the motion and the court of appeals reversed. The supreme court began by finding that the officers observed the plants in plain view. It went on to explain that a warrantless seizure may be justified as reasonable under the plain view doctrine if the officer did not violate the Fourth Amendment in arriving at the place from where the evidence could be plainly viewed; the evidence’s incriminating character was immediately apparent; and the officer had a lawful right of access to the object itself. Additionally, it noted, “[t]he North Carolina General Assembly has . . . required that the discovery of evidence in plain view be inadvertent.” The court noted that the sole point of contention in this case was whether the officers had a lawful right of access from the driveway 15 yards across the defendant’s property to the plants’ location. Finding against the defendant on this issue, the court stated: “Here, the knock and talk investigation constituted the initial entry onto defendant’s property which brought the officers within plain view of the marijuana plants. The presence of the clearly identifiable contraband justified walking further into the curtilage.” The court rejected the defendant’s argument that the seizure was improper because the plants were on the curtilage of his property, stating:

[W]e conclude that the unfenced portion of the property fifteen yards from the home and bordering a wood line is closer in kind to an open field than it is to the paradigmatic curtilage which protects “the privacies of life” inside the home. However, even if the property at issue can be considered the curtilage of the home for Fourth Amendment purposes, we disagree with defendant’s claim that a justified presence in one portion of the curtilage (the driveway and front porch) does not extend to justify recovery of contraband in plain view located in another portion of the curtilage (the side yard). By analogy, it is difficult to imagine what formulation of the Fourth Amendment would prohibit the officers from seizing the contraband if the plants had been growing on the porch—the paradigmatic curtilage—rather than at a distance, particularly when the officers’ initial presence on the curtilage was justified. The plants in question were situated on the periphery of the curtilage, and the protections cannot be greater than if the plants were growing on the porch itself. The officers in this case were, by the custom and tradition of our society, implicitly invited into the curtilage to approach the home. Traveling within the curtilage to seize contraband in plain view within the curtilage did not violate the Fourth Amendment.

(citation omitted). (2) The court went on to hold that the seizure also was justified by exigent circumstances, concluding: “Reviewing the record, it is objectively reasonable to conclude that someone may have been home, that the individual would have been aware of the officers’ presence, and that the individual could easily have moved or destroyed the plants if they were left on the property.”

(Dec. 31, 1969)

The court remanded for findings of fact as to the third element of the plain view analysis. Investigating the defendant’s involvement in the theft of copper coils, an officer walked onto the defendant’s mobile home porch and knocked on the door. From the porch, the officer saw the coils in an open trailer parked at the home. The officer then seized the coils. The court noted that under the plain view doctrine, a warrantless seizure is lawful if the officer views the evidence from a place where he or she has legal right to be; it is immediately apparent that the items observed constitute evidence of a crime, are contraband, or are subject to seizure based upon probable cause; and the officer has a lawful right of access to the evidence itself. The court found that the officer viewed the coils from the porch, a location where he had a legal right to be. In the course of its ruling, the court clarified that inadvertence is not a necessary condition of a lawful search pursuant to the plain view doctrine. Next, noting in part that the coils matched the description of goods the officer knew to be stolen, the court concluded that the trial court’s factual findings supported its conclusion that it was immediately apparent to the officer that the coils were evidence of a crime. On the third element of the test however—whether the officer had a lawful right of access to the evidence—the trial court did not make the necessary findings. Specifically, the court noted:

Here, the trial court failed to make any findings regarding whether the officer[] had legal right of access to the coils in the trailer. The trial court did not address whether the trailer was located on private property leased by defendant, private property owned by the mobile home park, or public property. It also did not make any findings regarding whether, assuming that the trailer was located on private property, the officer[] had legal right of access either by consent or due to exigent circumstances.

(Dec. 31, 1969)

In a drug case, the trial court did not err by denying the defendant’s motion to suppress when an officer saw the item in question—a bong—in plain view while standing on the defendant’s front porch and looking through the open front door. The court rejected the defendant’s argument that the officer had no right to be on the porch. The officer responded to a call regarding a dog shooting, the defendant confirmed that his dog was shot by a neighbor, and the officer went to the defendant's residence to investigate. Once there he encountered a witness from whom he sought to obtain identification as he followed her to the porch.

(Dec. 31, 1969)

Holding that the plain view exception to the warrantless arrest rule did not apply. When the officer approached the defendant’s vehicle from the passenger side to ask about an old and worn temporary tag, he inadvertently noticed several whole papers in plain view on the passenger seat. The officer then returned to his cruiser to call for backup. When the officer came back to the defendant’s vehicle to arrest the defendant, the previously intact papers had been torn to pieces. Under the plain view doctrine, police may seize contraband or evidence if (1) the officer was in a place where the officer had a right to be when the evidence was discovered; (2) the evidence was discovered inadvertently; and (3) it was immediately apparent to the police that the items observed were evidence of a crime or contraband. The court found that the first two prongs of the test were satisfied but that the third prong was not. It concluded that the officer’s suspicion that the defendant was trying to conceal information on the papers was not sufficient to bypass the warrant requirement.

Arrest, Search, and Investigation > Plain Smell

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of Vehicles > Automobile Exception

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.

(Dec. 31, 1969)

Officers had probable cause to enter a home and do a protective sweep when an informant told them that she bought marijuana at the house and, as they approached the house for a knock and talk, they detected a strong odor of marijuana.

(Dec. 31, 1969)

The plain smell of marijuana emanating from the defendant’s vehicle provided sufficient probable cause to support a search.

Arrest, Search, and Investigation > Pretrial Detention

(Dec. 31, 1969)

The Fourth Amendment governs a §1983 claim for unlawful pretrial detention even beyond the start of legal process. According to the petitioner’s complaint, he was arrested without probable cause and based solely on his possession of pills that had field-tested negative for an illegal substance. The complaint alleged that upon being brought to the police station an evidence technician tested the pills again and also got a negative result. But the petitioner alleged the technician lied in his report, claiming that one of the pills tested positive for ecstasy, a controlled substance. Also, one of the arresting officers wrote in his report that based on his training and experience, he knew the pills to be ecstasy. Another officer swore out a complaint charging the defendant with possession of a controlled substance and the defendant was brought before a judge for determination of probable cause. The judge relied exclusively on the complaint, which in turn relied exclusively on police fabrications, to support a finding of probable cause. Based on that determination, he sent the defendant to jail to await trial. The defendant’s subsequent detention was thus pursuant to “legal process” because it followed from, and was authorized by, the judge’s probable cause determination. The complaint alleged that while the defendant sat in jail, the State police lab re-examined the pills and issued a report concluding that they contained no controlled substances. For unknown reasons, however, the defendant remained in detention for another month until the prosecutor’s office sought and obtained dismissal of the drug charge. The defendant spent a total of 48 days in pretrial detention. He brought his 1983 action, alleging a violation of his Fourth Amendment rights, in part because of his detention for almost 7 weeks based on entirely made-up evidence. The lower courts dismissed his Fourth Amendment claim, finding that once a person is detained pursuant to legal process, a Fourth Amendment claim cannot be asserted. The Supreme Court rejected that analysis concluding:

[P]retrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case. The Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause. That can happen when the police hold someone without any reason before the formal onset of a criminal proceeding. But it also can occur when legal process itself goes wrong—when, for example, a judge’s probable-cause determination is predicated solely on a police officer’s false statements. Then, too, a person is confined without constitutionally adequate justification. Legal process has gone forward, but it has done nothing to satisfy the Fourth Amendment’s probable-cause requirement. And for that reason, it cannot extinguish the detainee’s Fourth Amendment claim …. If the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment. (Citations omitted).

The Court remanded for further proceedings.

Arrest, Search, and Investigation > Protective Sweep

(Dec. 31, 1969) , 371 N.C. 469 2018-09-21

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to suppress evidence discovered as a result of a protective sweep of his residence where the officers had a reasonable belief based on specific and articulable facts that the residence harbored an individual who posed a danger to the officers’ safety. Officers were at the defendant’s residence to serve an order for arrest. Although the defendant previously had answered his door promptly, this time he did not respond after an officer knocked and announced his presence for 10-15 minutes. The officer heard shuffling on the other side of the front door. When two other officers arrived, the first officer briefed them on the situation, showed them the order for arrest, and explained his belief that weapons were inside. When the deputies again approached the residence, “the front door flew open,” the defendant exited and walked down the front steps with his hands raised, failing to comply with the officers’ instructions. As soon as the first officer reached the defendant, the other officers entered the home and performed a protective sweep, lasting about 30 seconds. Evidence supporting the protective sweep included that the officers viewed the open door to the residence as a “fatal funnel” that could provide someone inside with a clear shot at the officers, the defendant’s unusually long response time and resistance, the known potential threat of weapons inside the residence, shuffling noises that could have indicated more than one person inside the residence, the defendant’s alarming exit from the residence, and the defendant’s own actions that led him to be arrested in the open doorway.

Arrest, Search, and Investigation > Random Drug Testing

(Dec. 31, 1969)

County Board of Education policy mandating random, suspicionless drug and alcohol testing of all Board employees violated the N.C. Constitutional protection against unreasonable searches and seizures. The policy could not be justified as a “special needs search.” The court determined that the policy was “remarkably intrusive,” that Board employees did not have a reduced expectation of privacy by virtue of their employment in a public school system, and that there was no evidence of a concrete problem that the policy was designed to prevent. It concluded: “[c]onsidering and balancing all the circumstances . . . the employees’ acknowledged privacy interests outweigh the Board’s interest . . . .”

Arrest, Search, and Investigation > Search Warrants > Probable Cause - Generally

(Dec. 31, 1969)

Concluding that a dog sniff “was up to snuff,” the Court reversed the Florida Supreme Court and held that the dog sniff in this case provided probable cause to search a vehicle. The Court rejected the holding of the Florida Supreme Court which would have required the prosecution to present, in every case, an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability. The Court found this “demand inconsistent with the ‘flexible, common-sense standard’ of probable cause. It instructed:

In short, a probable-cause hearing focusing on a dog’s alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State’s case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe, as the Florida Supreme Court did, an inflexible set of evidentiary requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime. A sniff is up to snuff when it meets that test.

Applying that test to the drug dog’s sniff in the case at hand, the Court found it satisfied.

(Dec. 31, 1969)

Arrest, Search, and Investigation > Search Warrants > Staleness of Information

(Dec. 31, 1969)

In a case involving unlawful access to computers and identity theft, a search warrant authorizing a search of the defendant and her home and vehicle was supported by probable cause. The court rejected the defendant’s argument that hearsay evidence was improperly considered in the probable cause determination. It went on to conclude that the warrant was supported by probable cause where the defendant’s home was connected to an IP address used to unlawfully access an email account of a NC A&T employee.

(Dec. 31, 1969)

In a drug trafficking case, a search warrant was supported by probable cause. The affiant was an officer with more than 22 years of experience and who had been involved in numerous drug investigations. The affidavit included background on the circumstances of the detective’s dealings with the defendant’s accomplice; detailed that the person who acquired the cocaine went to the house identified in the search warrant; stated that that the same person then delivered the cocaine to the detective; included the fact that a phone registered to the defendant repeatedly called the accomplice after the accomplice was arrested; and stated that the defendant resided at the house that was the subject of the search warrant.

(Dec. 31, 1969)

The court held in this drug case, the search warrant was supported by probable cause. In his affidavit, the Investigator stated that he had received information within the past 30 days from confidential reliable informants (“CRIs”) that the defendant was selling narcotics from his residence; during June and July of 2008, the sheriff’s department had received information from anonymous callers and CRIs that drugs were being sold at the defendant’s residence; in July 2008, the Investigator met with a “concerned citizen” who stated that the defendant was supplying drugs to his sister who was addicted to “crack” cocaine; the defendant’s residence had been “synonymous with the constant sale and delivery of illegally controlled substances” as the defendant had been the subject of past charges and arrests for possession with intent to sell and deliver illegal controlled substances; and the defendant’s criminal background check revealed a “prior history” of possession of narcotics. Given the specific information from multiple sources that there was ongoing drug activity at the defendant’s residence combined with the defendant’s past criminal involvement with illegal drugs, sufficient probable cause was presented the affidavit. The court further concluded that the information from the informants properly was considered, noting that the CRIs had been “certified” because information provided by them had resulted in arrests and convictions in the past, they were familiar with the appearance, packaging, and effects of cocaine, they provided statements against penal interest, the Investigator had met personally with the concerned citizen, and the CRIs, callers, and the concerned citizen had all given consistent information that during the months of June and July 2008, illegal drugs were being sold at the defendant’s residence.

(Dec. 31, 1969)

An affidavit was sufficient to establish probable cause to believe that stolen items would be found in the defendant’s home, notwithstanding alleged omissions by the officer.

(Dec. 31, 1969) rev’d on other grounds, 364 N.C. 414 (Oct 8 2010)

An informant’s observations of methamphetamine production and materials at the location in question and an officer’s opinion that, based on his experience, an ongoing drug production operation was present supplied probable cause supporting issuance of the warrant.

(Dec. 31, 1969)

A positive alert for drugs by a specially trained drug dog provides probable cause to search the area or item where the dog alerts.

Arrest, Search, and Investigation > Search Warrants > Probable Cause Sufficient

(Dec. 31, 1969)

Criminal Procedure > Motions > Suppression Motions > For Substantial Violation of 15A

Evidence > Opinions > Expert Opinions > Ballistics

(Dec. 31, 1969)

This Carteret County drug case involved a challenge to a search warrant for the defendant’s home. A detective observed what he believed to be a drug transaction occur in a parking lot between a Jeep and another car. He knew the occupants of the Jeep and their address. The detective also knew that they had previously been involved in illegal drug sales. Both cars were followed by police. The car was stopped for traffic violations, and the woman inside ultimately admitted to having purchased heroin in the parking lot from one of the people inside the Jeep. The Jeep was separately followed to the occupants’ residence. Officers obtained a warrant to search the house, and the defendant (who lived at the house, but was not one of the occupants of the Jeep) was charged with trafficking in cocaine. His motion to suppress was denied and he pled guilty, reserving his right to appeal the denial of the motion. A divided panel of the Court of Appeals affirmed (here) [Jeff Welty blogged about that decision, here]. Judge Zachary dissented and would have found that the warrant application failed to establish a nexus to the home, comparing the facts to those of State v. Campbell, 282 N.C .125 (1972) (conclusory allegations of drug dealing without underlying facts tying the home to criminal activity were insufficient to establish nexus to search residence). The Supreme Court unanimously affirmed.

The court agreed that a search warrant for a residence must demonstrate some nexus between the suspected criminal activity and the home. “Such connection need not be direct, but cannot be merely conclusory.” Slip op. at 6. Comparing cases, the court determined that the affidavit here established a sufficient connection to the home. The detective observed a probable drug transaction and was familiar with the subjects in the Jeep, including their drug histories and address. Coupled with the close-in-time admission from the buyer that she purchased heroin from one of the men and the fact that another officer followed the Jeep from the site of the suspected buy to the residence, the search warrant affidavit supported an inference that drugs or evidence of drug dealing would be found in the home. In the court’s words:

It is true that [the detective’s] affidavit did not contain any evidence that drugs were actually being sold at the apartment. But our case law makes clear that such evidence was not necessary for probable cause to exist. Rather, the affiant was simply required to demonstrate some nexus between the apartment . . . and criminal activity. Id. at 10 (emphasis in original).

The warrant was therefore supported by probable cause and comported with the Fourth Amendment. Concluding, the court observed: “In so holding, we break no new legal ground, and instead apply well-established principles of law to the facts presented.” Id. at 11.

(Dec. 31, 1969)

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 814 S.E.2d 855 (2018), the court per curiam affirmed. The Court of Appeals had held, over a dissent, that the search warrant of the defendant’s residence was supported by probable cause. The warrant was supported by the following information: A detective received information from a reliable confidential source regarding a mid-level drug dealer who sold MDMA, heroin, and crystal methamphetamine. The source had previously provided truthful information that the detective could corroborate, and the source was familiar with the packaging and sale of the drugs in question. The source had assisted the detective with the purchase of MDMA one week prior to the issuance of the search warrant. For that purchase, the detective gave the source money to purchase the drugs. The source met a middleman with whom he then traveled to the defendant’s residence. The detective saw the middleman enter the residence and return to the source after approximately two minutes. The detective found this conduct indicative of drug trafficking activity based on his training and experience. The source then met with the detective, and provided him with MDMA. A subsequent purchase of drugs occurred 72 hours prior to the issuance of the search warrant. The details of that transaction were very similar, except that the officer also saw two males enter the residence and exit approximately two minutes later, conduct he believed to be indicative of drug trafficking activity. The Court of Appeals held that this was sufficient to establish probable cause.

(Dec. 31, 1969) , 370 N.C. 337 2017-12-08

On appeal from a decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 791 S.E.2d 505 (2016), the court affirmed in a per curiam opinion. Over a dissent, the Court of Appeals had held that the search warrant was supported by sufficient probable cause. At issue was the reliability of information provided by a confidential informant. Applying the totality of the circumstances test, and although the informant did not have a “track record” of providing reliable information, the court found that the informant was sufficiently reliable. The court noted that the information provided by the informant was against her penal interest (she admitted purchasing and possessing marijuana); the informant had a face-to-face communication with the officer, during which he could assess her demeanor; the face-to-face conversation significantly increase the likelihood that the informant would be held accountable for a tip that later proved to be false; the informant had first-hand knowledge of the information she conveyed; the police independently corroborated certain information she provided; and the information was not stale (the informant reported information obtained two days prior).

(Dec. 31, 1969)

Affirming the Court of Appeals, the court held that a search warrant authorizing a search of the premises where the defendant was arrested was supported by probable cause. The affidavit stated that officers received an anonymous tip that Michael Turner was selling, using and storing narcotics at his house; that Turner had a history of drug related arrests; and that a detective discovered marijuana residue in the trash from Turner’s residence, along with correspondence addressed to Turner. Under the totality of the circumstances there was probable cause to search the home for controlled substances.

(Dec. 31, 1969)

Reversing the Court of Appeals, the court held that because the magistrate had a substantial basis to find that probable cause existed to issue the search warrant, the trial court erred by granting the defendant’s motion to suppress. The affidavit stated that an officer stopped a car driven by Jeremy Black. Black’s half-brother Sean Whitehead was a passenger. After K-9 alerted on the car, a search found 8.1 ounces of marijuana packaged in a Ziploc bag and $1600 in cash. The Ziploc bag containing marijuana was inside a vacuum sealed bag, which in turn was inside a manila envelope. Both individuals had previously been charged on several occasions with drug crimes. Whitehead maintained that the two lived at Twin Oaks Dr. The officer went to that address and found that although neither individual lived there, their mother did. The mother informed the officer that the men lived at 4844 Acres Drive and had not lived at Twin Oaks Drive for years. Another officer went to the Acres Drive premises and determined that its description matched that given by the mother and that a truck outside the house was registered to Black. The officer had experience with drug investigations and, based on his training and experience, knew that drug dealers typically keep evidence of drug dealing at their homes. Supported by the affidavit, the officer applied for and received a search warrant to search the Acres Drive home. Drugs and paraphernalia were found. Based on the quantity of marijuana and the amount of cash found in the car, the fact that the marijuana appeared to be packaged for sale, and Whitehead’s and Black’s criminal histories, it was reasonable for the magistrate to infer that the brothers were drug dealers. Based on the mother’s statement that the two lived at the Acres Drive premises, the fact that her description of that home matched its actual appearance, and that one of the trucks there was registered to Black, it was reasonable for the magistrate to infer that the two lived there. And based on the insight from the officer’s training and experience that evidence of drug dealing was likely to be found at their home and that Whitehead lied about where the two lived, it was reasonable for the magistrate to infer that there could be evidence of drug dealing at the Acres Drive premises. Although nothing in the affidavit directly connected the defendant’s home with evidence of drug dealing, federal circuit courts have held that a suspect drug dealer’s lie about his address in combination with other evidence of drug dealing can give rise to probable cause to search his home. Thus, under the totality of the circumstances there was probable cause to support search warrant.

(Dec. 31, 1969)

In this Johnson County Case, defendant appealed the denial of his motion to suppress evidence obtained from his cellphone. The Court of Appeals affirmed the trial court’s denial of defendant’s motion.

Defendant was convicted of burglary, robbery, kidnapping, conspiracy, and habitual felony status for a home invasion in September of 2018. The evidence supporting defendant’s conviction came from a search of his cellphone found in a vehicle tied to the home invasion. Defendant argued at trial that the search warrant for his cellphone was not supported by probable cause, but the trial court denied defendant’s motion to suppress.

The Court of Appeals explained that probable cause to support the warrant came from the totality of the circumstances around the cellphone. Here, the cellphone was found in a car identified by an eyewitness as leaving the scene; the car was owned by defendant’s cousin. This same cousin told law enforcement that defendant’s was the owner of a white LG cellphone, matching the phone found in the car after a search. The car also contained a distinctive Tourister case stolen from the home in question. The court found that “[u]nder the totality of the circumstances, these facts show a nexus between [d]efendant’s white LG cellphone and the home invasion.” Slip Op. at 8.

(Dec. 31, 1969)

An acquaintance of the defendant contacted the local police department about several posts made on a Facebook account with the defendant’s name. The department used screenshots of the Facebook posts to obtain an arrest warrant for communicating threats and later obtained a search warrant of the defendant’s home to seize items related to the crime. The search warrant application included screenshots of the Facebook posts and outlined the defendant’s prior encounters with the police department.

One of the items seized in the search was the defendant’s cell phone, on which images of alleged child pornography were found. These images led to a subsequent search warrant and search of the defendant’s home, ultimately leading to the defendant being charged and indicted with five counts of second-degree sexual exploitation of a child. The trial court denied the defendant’s motion to suppress, and the defendant ultimately pled guilty to all five counts of second-degree sexual exploitation of a child, having given proper notice of his intention to appeal.

On appeal, the defendant first argued that the trial court erred in denying his motion to suppress evidence because the affidavit to the warrant application did not establish probable cause he committed the designated offense. In rejecting this argument, the Court of Appeals noted that the affidavit included screenshots of Facebook posts allegedly made by the defendant which contained content relating to threats, violence, and referencing schools, as well as information of defendant’s prior encounters with the police, including an arrest for trespassing at a nearby elementary school. The Court thus concluded that the information was sufficient to support a magistrate’s finding, under the totality of the circumstances test, that evidence of a crime may be found at the place to be searched and in the items to be seized.

The defendant next argued that the information listed in the affidavit was stale because it failed to establish when the Facebook posts were made or discovered. More specifically, the defendant contended that the screenshots of the Facebook posts did not include dates and times, nor did the affidavit provide information as to when the acquaintance provided the information to the police. The search warrant provided the items to be seized were electronic devices to include cell phones, computers, tablets, hard drive devices, USB drives, CDs, and disks; written documentation to include any handwritten notes, printed notes, photographs, or other documents; and weapons to include handguns, long guns, weapons of mass destruction, or explosives. The Court of Appeals concluded that because the items to be seized included items with enduring utility, the information was not stale, despite the lack of date and time information.

The defendant’s final argument was that the trial court erred because its order did not find that the affidavit supplied probable cause to believe that the designated crimes had occurred or were about to occur. However, the trial court explicitly found that the affidavit established probable cause in its findings of fact and conclusions of law.

(Dec. 31, 1969)

In this drug trafficking case, a warrant to search the defendant’s person and vehicle was supported by probable cause. After a three-month investigation prompted by a confidential informant’s tip that the defendant was dealing heroin, Detective Cole obtained a warrant to search the defendant’s residence for evidence of drug dealing. The warrant also authorized the search of a specified Range Rover and of the defendant. On appeal the defendant argued that the searches of his person and vehicle were not supported by probable cause. He conceded that there was probable cause to search the house. The court rejected the defendant’s argument noting that a confidential informant known to law enforcement stated that the defendant was using the Range Rover to transport heroin and other drugs to and from the residence and was selling drugs from the vehicle. The ensuing investigation included authorized GPS tracking of the Range Rover and visual surveillance of the defendant and the vehicle. It revealed that the defendant appeared to reside at the residence and that he frequented locations known for drug sales. Additionally at one point the defendant was stopped in the vehicle which displayed a fictitious or altered tag and when the defendant’s driving privileges had been suspended or revoked. Officers performed “trash pulls” at the residence which found paraphernalia that tested positive for heroin and cocaine, as well as bills and other papers indicating that the defendant lived there. The most recent trash pull occurred within one week of the search. These facts support the trial court’s conclusion that there was probable cause to issue the warrant to search the defendant and the Range Rover. The confidential informant’s statements were corroborated by a month’s-long investigation, the drug evidence recovered from the multiple trash pulls was not stale, and the allegations sufficiently linked the defendant and the Range Rover to the residence and the known drug evidence.

(Dec. 31, 1969)

In this felony counterfeit trademark goods case, the court held that a search warrant was supported by probable cause. A Special Agent obtained a search warrant to search the residence and vehicles at 13606 Coram Place in Charlotte, North Carolina. The affidavit indicated that the Agent had 26 years of law enforcement experience and investigated thousands of counterfeit merchandise cases. It stated that in May 2013 a County police officer informed the Agent that the defendant was found in possession of possible counterfeit items and was charged with violating the peddlers license ordinance. The items seized were later confirmed to be counterfeit. In October 2013, as part of a compliance check/counterfeit merchandise interdiction operation at a shipping hub in Charlotte, the Agent intercepted two packages from a known counterfeit merchandise distributor in China, addressed to the defendant at the residence in question. The boxes contained counterfeit items. The Agent attempted a controlled delivery of the packages at the residence but no one was home. Two other packages previously delivered by the shipper were on the porch. The Agent contacted the defendant, who agreed to meet with him and agreed to bring the two packages. The defendant consented to a search of the packages and they were found to contain counterfeit merchandise. The defendant said that she did not realize the merchandise was counterfeit and voluntarily surrendered all of the merchandise. She was issued a warning. In November 2013, while the Agent was working as part of a compliance check at a football game, the defendant was found selling counterfeit items. The defendant was charged with felony criminal use of counterfeit trademark and pled guilty to the lesser misdemeanor charge. During another compliance check outside of the Charlotte Convention Center in May 2015 the Agent found a booth with a large display of counterfeit items. The booth was unmanned but business cards listed the owner as “Tammy.” The Agent verified that the address listed in the search warrant was the premises of the defendant, Tammy Renee Howard. During a search of the premises pursuant to the warrant at issue hundreds of counterfeit items with an approximate retail value of $2 million were seized. The defendant was indicted and unsuccessfully moved to suppress the evidence seized pursuant to the search. The defendant was convicted and appealed. On appeal the defendant asserted that the affidavit failed to contain sufficient evidence to support a reasonable belief that evidence of counterfeit items would be found at the premises. The affidavit included evidence of counterfeit merchandise being delivered to the premises, evidence that the defendant continued to conduct her illegal business after warnings and arrests, and evidence that the officer confirmed that the defendant resided at the premises. The defendant also argued that the evidence in the affidavit was stale, noting that the only evidence linking the premises with criminal activity allegedly took place in October 2013, some 20 months prior to the issuance of the warrant. However the evidence showed that the defendant was conducting a business involving counterfeit goods over a number of years at numerous locations and involving the need to acquire counterfeit merchandise from China. The court however found that a remand was required because the trial court failed to provide any rationale during its ruling from the bench to explain or support the denial of the motion. It thus remanded for the trial court to make appropriate conclusions of law to substantiate its ruling.

(Dec. 31, 1969)

In this drug case, the court held that the affidavit provided sufficient probable cause for a search of the residence in question. The affidavit indicated that after the officer received an anonymous tip that drugs were being sold at the residence, he conducted a “refuse investigation” at the premises. The defendant asserted that this information was stale and could not properly support issuance of the warrant. The court noted that although the affidavit does not state when or over what period of time the tipster observed criminal activity at the residence, when the tipster relayed the information to the police or the exact date when the officer conducted the refuse search, the affidavit was based on more than just this information. Specifically, it included details regarding database searches indicating that the defendant had a waste and water utility account at the residence, that the defendant lived at the residence, that the officer was familiar with the residence and the defendant from his previous assignment as a patrol officer, and recounted the defendant’s prior drug charges. To the extent the information in the anonymous tip was stale, it was later corroborated by the refuse search in which the officer found a cup containing marijuana residue, plastic bags containing marijuana residue and a butane gas container that the officer said is consistent with potential manufacturing of butane hash oil. Also the affidavit stated that the officer conducted the refuse investigation on Thursday, “regular refuse day.” A common sense reading of the affidavit would indicate that this referred to the most recent Thursday, the date the affidavit was completed. The court continued noting that even if the anonymous tip was so stale as to be unreliable, the marijuana-related items obtained from the refuse search, the defendant’s criminal history, and the database searches linking the defendant to the residence provided a substantial basis upon which the magistrate could determine that probable cause existed.

(Dec. 31, 1969) , ___ N.C. App. ___, 808 S.E.2d 294 2017-11-07

In this attempted murder and robbery case, a search warrant was supported by probable cause. On appeal, the defendant argued that the warrant lacked probable cause because a statement by a confidential informant provided the only basis to believe the evidence might be found at the premises in question and the supporting affidavit failed to establish the informant’s reliability. The court disagreed. The detective’s affidavit detailed a meeting between an officer and the confidential informant in which the informant stated that he witnessed described individuals running from the crime scene and said that one of them entered the premises in question. The informant’s statement corroborated significant matters previously known to the police department, including the general time and location of the offenses, the victim’s physical description of his assailants, and the suspect’s possession of items similar in appearance to those stolen from the victim. The affidavit therefore demonstrated the informant’s reliability.

(Dec. 31, 1969)

The trial court properly denied the defendant’s motion to suppress evidence seized during the executions of warrants to search his rental cabin and truck for stolen goods connected to a breaking and entering of a horse trailer. The defendant argued that the search warrant affidavit establish no nexus between the cabin and the criminal activity. The court found however “that under the totality of the circumstances, the accumulation of reasonable inferences drawn from information contained within the affidavit sufficiently linked the criminal activity to defendant’s cabin.” Among other things, the affidavit established that when one of the property owners hired the defendant to work at their farm, several tools and pieces of equipment went missing and were never recovered; immediately before the defendant moved out of state, someone broke into their daughter’s car and stole property; the defendant rented a cabin close to their property around the same time as the reported breaking and entering and larceny; and the defendant had prior convictions for first-degree burglary and felony larceny. Based on this and other evidence discussed in detail in the court’s opinion, the affidavit established a sufficient nexus between the criminal activity and the defendant’s cabin.

(Dec. 31, 1969)

In this sexual exploitation of a minor case, the information contained in an officer’s affidavit was sufficient to provide probable cause for issuance of a search warrant for child pornography. In this case, an officer and certified computer forensic examiner identified child pornography through the use of a SHA1 algorithm; the officer downloaded and reviewed some of the images and compared SHA1 values to confirm that the files were child pornography. Although less detailed than the officer’s testimony at the hearing, the affidavit went into technical detail regarding law enforcement methods and software used to identify and track transmissions of child pornography over the Internet. The court rejected the defendant’s argument that the affidavit’s identification of alleged pornographic images as known child pornography based upon computer information was insufficient and that the pictures themselves must be provided with the affidavit.

Arrest, Search, and Investigation > Search Warrants > Probable Cause Insufficient

(Dec. 31, 1969)

On discretionary review of a consolidated appeal from two decisions of the Court of Appeals, ___ N.C. App. ___, 816 S.E.2d 212 (2018), and ___ N.C. App. ___, 812 S.E.2d 730 (2018) (unpublished), the Supreme Court affirmed in part and reversed in part the decisions of the Court of Appeals. A sheriff’s deputy arrested Robert Lewis, who had been recognized as the possible perpetrator of a string of bank robberies committed over two months. After arresting the defendant, an officer observed in plain sight a BB&T money bag on the floor of a Kia Optima that matched the description of a vehicle reportedly used to flee the scene of one of the robberies. The officer also spoke with the defendant’s stepfather, who confirmed that the defendant lived at the residence. A detective prepared a search warrant application seeking permission to search the residence where the defendant was arrested, the Kia, and another vehicle reportedly used to flee a different robbery. The affidavit accompanying the search warrant application failed to disclose several pieces of information, including that the defendant lived at the residence to be searched, that the first detective had seen the Kia parked in front of the residence, and that the Kia contained the incriminating money bag. A magistrate nonetheless issued the warrant, which led to the seizure of more evidence linking the defendant to the robberies. After the defendant was indicted on multiple counts of armed robbery, kidnapping, and common law robbery, he filed motions to suppress, arguing that there was an insufficient connection between the items sought and the property to be searched, and that the search of the Kia was not permissible under the plain view doctrine. The trial court denied the motion. The defendant pled guilty, preserving his right to appeal the denial of his motion to suppress, which he did. The Court of Appeals deemed the detective’s warrant application sufficient to establish probable cause to search the cars but insufficient to establish probable cause to search the dwelling because the supporting affidavit failed to state that the defendant resided there.

The Supreme Court granted the parties’ petitions for discretionary review. As for the warrant to search the residence, though much of the information in the affidavit linked the defendant to the robberies, it failed to set forth the circumstances of the defendant’s arrest at this particular address, including how the detective initially obtained the address from officers in Johnston County, and how the defendant’s stepfather had confirmed where the defendant resided. Absent information linking the defendant to the residence, the magistrate lacked probable cause to issue a warrant to search it, and so the court affirmed the Court of Appeals’ ruling that the defendant’s motion to suppress should have been allowed. Regarding the search of the Kia, the court concluded that the limited information actually set out in the affidavit failed to establish probable cause for the search. As a result, the court reversed the portion of the Court of Appeals’ decision concluding that there was probable cause and remanded the case for consideration of the trial judge’s alternative finding that the vehicle search was valid under the plain view doctrine.

Justice Morgan, joined by Justice Newby, dissented in part, writing that he would have found probable cause for the search of the car based on the totality of the information contained in the search warrant application.

(Dec. 31, 1969) , ___ N.C. App. ___, 2022 NCCOA 215 2022-04-05 temp. stay granted, ___ N.C. ___, 871 S.E.2d 101 (Apr 21 2022)

Arrest, Search, and Investigation > Searches > Consent Searches > Voluntariness of Consent

Arrest, Search, and Investigation > Standing > To Challenge Search of Premises

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

(Dec. 31, 1969)

In this Buncombe County case, the defendant was convicted by a jury of possession with intent to sell or deliver fentanyl, possession of fentanyl, possession of firearm by a felon, and maintaining a building for keeping or selling controlled substances. Officers conducted a search of the defendant’s home when they believed it to be the place where another man, Robert Jones, obtained drugs that were sold to a confidential informant. That suspicion was based on officers’ multiple observations of Jones visiting the defendant’s address for short periods before engaging in controlled purchases, including an incident in which officers conducted a traffic stop on Jones immediately after he visited the defendant’s address, which prompted Jones to ingest narcotics while officers were pursuing him. The defendant moved to suppress the evidence obtained pursuant to the search, arguing that the warrant affidavit lacked sufficient probable cause. The trial court denied the motion.

Over a dissent, the Court of Appeals reversed the trial court. The majority concluded that the affidavit lacked sufficient facts to establish probable cause in that it did not describe how much time passed between Jones leaving the defendant’s house and being pulled over, how Jones obtained drugs, or why law enforcement believed the defendant’s address was the source of supply. The Court thus concluded that the trial court erred in denying the defendant’s motion to suppress, and that the defendant was entitled to a new trial.

A dissenting judge would have concluded that the affidavit provided a sufficient basis for probable cause to search the defendant’s residence. The judge noted that the affidavit’s references to drug purchases by Jones in “recent days” was a specific enough reference to the passage of time, and the trial court’s reference to officers’ stop of Jones after leaving the defendant’s residence as “immediate” was accurate under a commonsense reading of the warrant.

(Dec. 31, 1969)

In this Cleveland County case, police were dispatched to a commercial business around 3 a.m. in response to a noise complaint. Upon arrival, they noticed a strong odor of burning marijuana and loud noises from a party within the building. The property owner-defendant approached police on scene and refused to consent to a search of the property. Officers applied for a search warrant. The defendant was ultimately charged with possession of firearm by felon based on the discovery of firearms inside, along with having obtained the status of habitual felon. He moved to suppress all evidence derived from the search, arguing that the warrant did not establish probable cause, was based on stale information, and was overbroad. Following the denial of his motion, the defendant was convicted of both offenses at trial. The Court of Appeals unanimously reversed.

The affidavit in support of the warrant alleged an investigation at the location and the odor of marijuana but failed to recount any specific time or date of the officer’s observation. This was fatal to a finding of probable cause. In the words of the court:

[W]e agree with Defendant that the affidavit in support of the search warrant application did not provide sufficient facts from which the magistrate could conclude there was probable cause because it did not specify when the purported events occurred nor did it indicate sufficient facts from which the magistrate could reasonably infer the timing of such events . . . Logan Slip op. at 12.

The trial court erred in considering information (the timing of the officer’s observations) not found within the four corners of the warrant. The denial of the motion to suppress was therefore reversed, the convictions vacated, and the matter remanded for a new trial. Because the court determined that the warrant application failed to establish probable cause, it did not consider the defendant’s other arguments regarding the validity of the warrant. Judge Gore and Judge Dillon concurred.

(Dec. 31, 1969)

Criminal Procedure > Motions > Suppression Motions > Findings of Fact & Conclusions of Law

(Dec. 31, 1969)

In this possession of a firearm by a felon case, the court held that the affidavit contained insufficient details to support issuance of the search warrant. When officers went to the defendant’s home to conduct a knock and talk, the defendant’s brother answered the door and invited them in. An officer asked if anyone else was present and the brother said he was alone. The brother however gave consent for an officer to check a back bedroom. In the bedroom the officer saw a woman lying on a bed and a “glass smoke pipe” on a dresser. The officer applied for and was issued a search warrant for the residence. A search of the home revealed a shotgun in the bedroom. After the defendant admitted that he owned the gun, he was charged with possession of a firearm by a felon. The defendant unsuccessfully moved to suppress evidence from the search. The defendant was convicted and appealed. Applying the plain error standard, the court began by addressing whether the trial court did in fact err by denying the motion to suppress. Here, the affidavit stated that the officer saw a “smoke pipe used for methamphetamine” in the bedroom. It did not mention the officer’s training and experience, nor did the officer offer information explaining the basis for his belief that the pipe was being used to smoke methamphetamine as opposed to tobacco. The affidavit did not explain how the officer was qualified to distinguish between a pipe used for lawful versus unlawful purposes. And it did not purport to describe in any detail the appearance of the pipe or contain any indication as to whether it appeared to have been recently used. It further lacked any indication that information had been received connecting the defendant or his home to drugs. The court stated: “a pipe—standing alone--is neither contraband nor evidence of a crime.” Because the affidavit was insufficient to establish probable cause for issuance of the warrant, the trial court erred in denying the defendant’s motion to suppress. The court went on to find that this error constituted plain error.

(Dec. 31, 1969)

(1) In this methamphetamine trafficking case, the trial court erred by denying the defendant’s motion to suppress evidence seized during execution of a search warrant. Noting that a factual showing sufficient to support probable cause “requires a truthful showing of facts,” the court rejected the defendant’s argument that a statement in the affidavit supporting the search warrant was made in reckless disregard for the truth. However, the court went on to find that the application for the search warrant and attached affidavit insufficiently connected the address in question to the objects sought. It noted that none of the allegations in the affidavit specifically refer to the address in question and none establish the required nexus between the objects sought (evidence of a methamphetamine lab) and the place to be searched. The court noted that the defendant’s refusal of an officer’s request to search the property cannot establish probable cause to search. (2) Although federal law recognizes a good-faith exception to the exclusionary rule where evidence is suppressed pursuant to the federal Constitution, no good faith exception exists for violations of the North Carolina Constitution.

Arrest, Search, and Investigation > Search Warrants > Based on False/Misleading Information

(Dec. 31, 1969)

A Jones County deputy applied for a search warrant of defendant’s residence. In his affidavit in support, the deputy represented that he had observed drug transactions at the defendant’s residence. In fact, all the drug transactions had taken place away from the defendant’s home. The defendant was charged with marijuana offenses following execution of the search warrant and moved to suppress. He alleged the warrant lacked probable cause and sought a Franks hearing to establish false and misleading statements in the affidavit. The trial court first held a hearing on probable cause and determined it existed based on the allegations in the affidavit that a drug transaction had been observed on the defendant’s property. It then turned to the Franks issue and granted the defendant a hearing on the matter. The deputy-affiant testified that none of the buys occurred on the defendant’s property and that he was aware of this at the time he wrote the affidavit. The trial court denied the Franks motion as well, finding that the deputy’s statements were not false or misleading. The defendant pled guilty and appealed.

Where the defendant shows by a preponderance of evidence that false or misleading statements were intentionally made, or that such statements were made in reckless disregard of the truth, those portions of the affidavit must be excised from the affidavit. The affidavit will then be examined to determine whether the remaining portions establish probable cause. Franks v. Delaware, 438 U.S. 154 (1978). Here, the trial court’s findings at the Franks hearing were not supported by the evidence. In its initial ruling on the probable cause issue, “the trial court itself was misled by the statements in the affidavit.” Moore Slip op. at 16. In the words of the court:

Contrary to the trial court’s conclusion, [the officer’s] statements in his affidavit indicating that the alleged controlled drug buys and meetings between ‘Matt’ and the informant took place at 133 Harriet Ln. were false and his material omissions regarding the actual locations of the drug buys and meetings were misleading. Id. at 17.

Striking the false statements from the affidavit, the remainder of the allegations were insufficient to establish a nexus to the defendant’s residence supporting a finding of probable cause. They failed to establish that drugs were sold on or from the defendant’s residence and failed to allege any basis to believe the informant was reliable, among other deficiencies. The trial court’s order denying the motion to suppress was therefore reversed, the defendant’s plea vacated, and the matter remanded for further proceedings.

Judge Tyson dissented and would have affirmed the trial court.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to suppress which asserted that the search warrant in question was issued based on an affidavit containing false and misleading information. The court concluded that although not all of the statements in the affidavit are “entirely accurate,” the evidence supports some version of the challenged statements and the defendant has not met his burden to establish by a preponderance that the affiant made the statements in reckless disregard to the truth or in bad faith. Thus, the trial court did not err in denying the defendant’s motion to suppress.

(Dec. 31, 1969)

In this child sex case, the court rejected the defendant’s argument that the affidavit was based on false and misleading information, concluding that to the extent the officer-affiant made mistakes in the affidavit, they did not result from false and misleading information and that the affidavit’s remaining content was sufficient to establish probable cause.

Arrest, Search, and Investigation > Search Warrants > Drug Activity

(Dec. 31, 1969)

Reversing the court of appeals in this drug case, the court held that the trial court properly denied the defendant’s motion to suppress, finding that probable cause existed to justify issuance of a search warrant authorizing a search of defendant’s apartment. The application was based on the following evidence: an anonymous citizen reported observing suspected drug-related activity at and around the apartment; the officer then saw an individual named Foushee come to the apartment and leave after six minutes; Foushee was searched and, after he was found with marijuana and a large amount of cash, arrested; and a search of Fouchee’s phone revealed text messages between Foushee and an individual named Chad proposing a drug transaction. The court rejected the defendant’s argument that the citizen’s complaint was unreliable because it gave no indication when the citizen observed the events, that the complaint was only a “naked assertion” that the observed activities were narcotics related, and that the State failed to establish a nexus between Foushee’s vehicle and defendant’s apartment, finding none of these arguments persuasive, individually or collectively. The court held that “under the totality of circumstances, all the evidence described in the affidavit both established a substantial nexus between the marijuana remnants recovered from Foushee’s vehicle and defendant’s residence, and also was sufficient to support the magistrate’s finding of probable cause to search defendant’s apartment.”

Arrest, Search, and Investigation > Search Warrants > DVPO ≠ Search Warrant

(Dec. 31, 1969)

Modifying and affirming the decision below, State v. Elder, 232 N.C. App. 80 (2014), the supreme court held that the district court exceeded its statutory authority under G.S. 50B-3 by ordering a search of defendant’s person, vehicle, and residence pursuant to an ex parte civil Domestic Violence Order of Protection (“DVPO”) and that the ensuing search violated the defendant’s constitutional rights. Relying on G.S. 50B-3(a)(13) (authorizing the court to order “any additional prohibitions or requirements the court deems necessary to protect any party or any minor child”) the district court included in the DVPO a provision stating: “[a]ny Law Enforcement officer serving this Order shall search the Defendant’s person, vehicle and residence and seize any and all weapons found.” The district court made no findings or conclusions that probable cause existed to search the defendant’s property or that the defendant even owned or possessed a weapon. Following this mandate, the officer who served the order conducted a search as instructed. As a result of evidence found, the defendant was charged with drug crimes. The defendant unsuccessfully moved to suppress, was convicted and appealed. The supreme court concluded that the catch all provision in G.S. 50B-3 “does not authorize the court to order law enforcement, which is not a party to the civil DVPO, to proactively search defendant’s person, vehicle, or residence.” The court further concluded “by requiring officers to conduct a search of defendant’s home under sole authority of a civil DVPO without a warrant or probable cause, the district court’s order violated defendant’s constitutional rights” under the Fourth Amendment.

Arrest, Search, and Investigation > Search Warrants > “Freezing” The Scene

(Dec. 31, 1969)

A search of the defendant’s recording studio was proper. After the officers developed probable cause to search the recording studio but the defendant declined to give consent to search, the officers “froze” the scene and properly obtained a search warrant to search the studio.

Arrest, Search, and Investigation > Search Warrants > Informants’ Tips/Information

(Dec. 31, 1969)

Arrest, Search, and Investigation > Search Warrants > Probable Cause Sufficient

(Dec. 31, 1969)

The court held that an affidavit supporting a search warrant failed to provide a substantial basis for the magistrate to conclude that probable cause existed. In the affidavit, the affiant officer stated that another officer conveyed to him a tip from a confidential informant that the suspect was growing marijuana at a specified premises. The affiant then recounted certain corroboration done by officers. The court first held that the tipster would be treated as anonymous, not one who is confidential and reliable. It explained: “It is clear from the affidavit that the information provided does not contain a statement against the source’s penal interest. Nor does the affidavit indicate that the source previously provided reliable information so as to have an established ‘track record.’ Thus, the source cannot be treated as a confidential and reliable informant on these two bases.” The court rejected the State’s argument that because an officer met “face-to-face” with the source, the source should be considered more reliable, reasoning: “affidavit does not suggest [the affiant] was acquainted with or knew anything about [the] source or could rely on anything other than [the other officer’s] statement that the source was confidential and reliable.” Treating the source as an anonymous tipster, the court found that the tip was supported by insufficient corroboration. The State argued that the following corroboration supported the tip: the affiant’s knowledge of the defendant and his property resulting “from a criminal case involving a stolen flatbed trailer”; subpoenaed utility records indicating that the defendant was the current subscriber and the kilowatt usage hours are indicative of a marijuana grow operation; and officers’ observations of items at the premises indicative of an indoor marijuana growing operation, including potting soil, starting fertilizer, seed starting trays, plastic cups, metal storage racks, and portable pump type sprayers. Considering the novel issue of utility records offered in support of probable cause, the court noted that “[t]he weight given to power records increases when meaningful comparisons are made between a suspect’s current electricity consumption and prior consumption, or between a suspect’s consumption and that of nearby, similar properties.” It continued: “By contrast, little to no value should be accorded to wholly conclusory, non-comparative allegations regarding energy usage records.” Here, the affidavit summarily concluded that kilowatt usage was indicative of a marijuana grow operation and “the absence of any comparative analysis severely limits the potentially significant value of defendant’s utility records.” Thus, the court concluded: “these unsupported allegations do little to establish probable cause independently or by corroborating the anonymous tip.” The court was similarly unimpressed by the officers’ observation of plant growing items, noting:

The affidavit does not state whether or when the gardening supplies were, or appeared to have been, used, or whether the supplies appeared to be new, or old and in disrepair. Thus, amid a field of speculative possibilities, the affidavit impermissibly requires the magistrate to make what otherwise might be reasonable inferences based on conclusory allegations rather than sufficient underlying circumstances. This we cannot abide.

As to the affidavit’s extensive recounting of the officers’ experience, the court held:

We are not convinced that these officers’ training and experience are sufficient to balance the quantitative and qualitative deficit left by an anonymous tip amounting to little more than a rumor, limited corroboration of facts, non-comparative utility records, observations of innocuous gardening supplies, and a compilation of conclusory allegations.

(Dec. 31, 1969)

A confidential informant who had provided reliable information in the past told officers that the defendant was selling drugs from his home. The officers had the informant conduct a controlled buy, then obtained a search warrant for the residence. They executed the warrant, found drugs, and charged the defendant with drug trafficking and other offenses. The defendant moved to suppress, a judge denied the motion, and the defendant entered an Alford plea and appealed. On appeal, he argued that the search warrant should have been analyzed under the anonymous tip standard and was not supported by probable cause. The court of appeals ruled that the anonymous tip standard did not apply as the lead officer “met with [the informant] both before and after the controlled purchase and had worked with [the informant] previously.” Furthermore, the controlled buy corroborated the informant’s claims, so the warrant was supported by probable cause.

(Dec. 31, 1969)

Arrest, Search, and Investigation > Search Warrants > Probable Cause Sufficient

(Dec. 31, 1969)

In this drug case, a search warrant application relying principally upon information obtained from a confidential informant was sufficient to support a magistrate’s finding of probable cause and a subsequent search of the defendant’s home. The court rejected the defendant’s argument that the affidavit failed to show that the confidential informant was reliable and that drugs were likely to be found in the home. The affidavit stated that investigators had known the confidential informant for two weeks, that the informant had previously provided them with information regarding other people involved in drug trafficking and that the detective considered the informant to be reliable. The confidential informant had demonstrated to the detective that he was familiar with drug pricing and how controlled substances are packaged and sold for distribution. Moreover, the informant had previously arranged, negotiated and purchased cocaine from the defendant under the detective’s direct supervision. Additionally, the confidential informant told the detective that he had visited the defendant’s home approximately 30 times, including within 48 hours before the affidavit was prepared, and saw the defendant possessing and selling cocaine each time. The court noted: “The fact that the affidavit did not describe the precise outcomes of the previous tips from the [informant] did not preclude a determination that the [informant] was reliable.” It added: “although a general averment that an informant is ‘reliable’ -- taken alone -- might raise questions as to the basis for such an assertion,” the fact that the detective also specifically stated that investigators had received information from the informant in the past “allows for a reasonable inference that such information demonstrated the [confidential informant’s] reliability.” Moreover, the detective had further opportunity to gauge his reliability when the informant arranged, negotiated and purchased cocaine from the defendant under the detective’s supervision.

(Dec. 31, 1969)

In this drug case, a search warrant was properly supported by probable cause. At issue was whether a confidential informant was sufficiently reliable to support a finding of probable cause. The affidavit noted that the confidential informant was familiar with the appearance of illegal narcotics and that all previous information the informant provided had proven to be truthful and accurate. This information was sufficient to establish the confidential informant’s reliability.

(Dec. 31, 1969)

Reversing the trial court, the court held that probable cause supported issuance of a search warrant to search the defendant’s residence. Although the affidavit was based on anonymous callers, law enforcement corroborated specific information provided by a caller so that the tip had a sufficient indicia of reliability. Additionally, the affidavit provided a sufficient nexus between the items sought and the residence to be searched. Finally, the court held that the information was not stale.

(Dec. 31, 1969)

The fact that an officer who received the tip at issue had been receiving accurate information from the informant for nearly thirteen years sufficiently established the informant’s reliability. The affidavit sufficiently described the source of the informant’s information as a waitress who had been involved with the defendant. The reliability of the information was further established by an officer’s independent investigation.

Arrest, Search, and Investigation > Search Warrants > Recording Information Not in Affidavit

(Dec. 31, 1969)

In this child sex case, the court held that although the magistrate violated G.S. 15A-245 by considering the officer’s sworn testimony when determining whether probable cause supported the warrant but failing to record that testimony as required by the statute, this was not a basis for granting the suppression motion. Significantly, the trial court based its ruling solely on the filed affidavit, not the sworn testimony and the affidavit was sufficient to establish probable cause.

Arrest, Search, and Investigation > Search Warrants > Staleness of Information

(Dec. 31, 1969) , ___ N.C. App. ___, 817 S.E.2d 239 2018-06-05

(Dec. 31, 1969)

Because an affidavit failed to specify when an informant witnessed the defendant’s allegedly criminal activities, there was insufficient evidence establishing probable cause to support issuance of the search warrant. In the affidavit, the officer stated that he received a counterfeit $100 bill from an informant who claimed it had been obtained from the defendant’s home. At the suppression hearing, the officer testified that what he meant to state in the affidavit was that the informant had obtained the bill within the last 48 hours. It was error for the trial court to consider this additional testimony from the officer that was outside of the facts recited in the affidavit. Considering the content of the affidavit, the court held that without any indication of when the informant received the bill, the affidavit failed on grounds of staleness.

(Dec. 31, 1969)

In this child sex case, the trial court did not err by denying the defendant’s motion to suppress evidence obtained pursuant to a search warrant authorizing a search of his house. The victim told the police about various incidents occurring in several locations (the defendant’s home, a motel, etc.) from the time that she was eight years old until she was eleven. The affidavit alleged that the defendant had shown the victim pornographic videos and images in his home. The affidavit noted that the defendant is a registered sex offender and requested a search warrant to search his home for magazines, videos, computers, cell phones, and thumb drives. The court first rejected the defendant’s argument that the victim’s information to the officers was stale, given the lengthy gap of time between when the defendant allegedly showed the victim the images and the actual search. It concluded: “Although [the victim] was generally unable to provide dates to the attesting officers . . . her allegations of inappropriate sexual touching by Defendant over a sustained period of time allowed the magistrate to reasonably conclude that probable cause was present to justify the search of Defendant’s residence.” It went on to note that “when items to be searched are not inherently incriminating [as here] and have enduring utility for the person to be searched, a reasonably prudent magistrate could conclude that the items can be found in the area to be searched.” It concluded:

There was no reason for the magistrate in this case to conclude that Defendant would have felt the need to dispose of the evidence sought even though acts associated with that evidence were committed years earlier. Indeed, a practical assessment of the information contained in the warrant would lead a reasonably prudent magistrate to conclude that the computers, cameras, accessories, and photographs were likely located in Defendant’s home even though certain allegations made in the affidavit referred to acts committed years before.

(Dec. 31, 1969)

Reversing the trial court, the court held that probable cause supported issuance of a search warrant to search the defendant’s residence. Although the affidavit was based an anonymous caller, law enforcement corroborated specific information provided by the caller so that the tip had a sufficient indicia of reliability. Additionally, the affidavit provided a sufficient nexus between the items sought and the residence to be searched. Finally, the court held that the information was not stale.

(Dec. 31, 1969) rev’d on other grounds, 364 N.C. 414 (Oct 8 2010)

Rejecting the defendant’s argument that information relied upon by officers to establish probable cause was stale. Although certain information provided by an informant was three weeks old, other information pertained to the informant’s observations made only one day before the application for the warrant was submitted. Also an officer opined, based on his experience, that an ongoing drug production operation was present at the location.

Arrest, Search, and Investigation > Search Warrants > Identification of Place to be Searched

(Dec. 31, 1969)

The court rejected the defendant’s argument that a search warrant executed at a residence was invalid because the application and warrant referenced an incorrect street address. Although the numerical portion of the street address was incorrect, the warrant was sufficient because it contained a correct description of the residence.

Arrest, Search, and Investigation > Search Warrants > Executing > Search of Vehicle at Premises

(Dec. 31, 1969)

Reversing the Court of Appeals, the court held that a search of a vehicle located on the premises was within the scope of the warrant. The vehicle in question was parked in the curtilage of the residence and was a rental car of the defendant, an overnight guest at the house. If a search warrant validly describes the premises to be searched, a car on the premises may be searched even though the warrant contains no description of the car. In departing from this general rule, the Court of Appeals held that the search of the car was invalid because the officers knew that the vehicle in question did not belong to the suspect in the drug investigation. Noting that the record was unclear as to what the officers knew about ownership and control of the vehicle, the court concluded; “Nonetheless, regardless of whether the officers knew the car was a rental, we hold that the search was within the scope of the warrant.”

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of Premises > Homes & Curtilage

Arrest, Search, and Investigation > Searches > Of Vehicles > Automobile Exception

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.

Arrest, Search, and Investigation > Search Warrants > Executing > Knock and Announce

(Dec. 31, 1969)

The court rejected the defendant’s argument that the search of the premises was unreasonable. The defendant argued that because the officers deliberately waited until he vacated the premises before breaking open the door without knocking and announcing their presence, they violated the statutory knock and announce requirement. Here, before executing the warrant a detective loudly announced three times that officers would be entering the residence to execute the search warrant. After waiting a reasonable time and hearing no response officers made a forced entry into the residence. These facts establish that no statutory violation occurred.

(Dec. 31, 1969)

In a drug case, officers properly knocked and announced their presence when executing a search warrant. The court rejected the defendant’s argument that the period of time between the knock and announcement and the entry into the house was too short. It concluded that because the search warrant was based on information that marijuana was being sold from the house and because that drug could be disposed of easily and quickly, the brief delay between notice and entry was reasonable.

Arrest, Search, and Investigation > Search Warrants > Executing > Detaining Persons On or Off the Premises

(Dec. 31, 1969)

Michigan v. Summers, 452 U.S. 692 (1981) (officers executing a search warrant may detain occupants on the premises while the search is conducted), does not justify the detention of occupants beyond the immediate vicinity of the premises covered by a search warrant. In this case, the defendant left the premises before the search began and officers waited to detain him until he had driven about one mile away. The Court reasoned that none of the rationales supporting the Summers decision—officer safety, facilitating the completion of the search, and preventing flight—apply with the same or similar force to the detention of recent occupants beyond the immediate vicinity of the premises. It further concluded that “[a]ny of the individual interests is also insufficient, on its own, to justify an expansion of the rule in Summers to permit the detention of a former occupant, wherever he may be found away from the scene of the search.” It stated: “The categorical authority to detain incident to the execution of a search warrant must be limited to the immediate vicinity of the premises to be searched.” The Court continued, noting that Summers also relied on the limited intrusion on personal liberty involved with detaining occupants incident to the execution of a search warrant. It concluded that where officers arrest an individual away from his or her home, there is an additional level of intrusiveness. The Court declined to precisely define the term “immediate vicinity,” leaving it to the lower courts to make this determination based on “the lawful limits of the premises, whether the occupant was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other relevant factors.”

(Dec. 31, 1969)

In this Craven County case, the Supreme Court reversed and remanded a Court of Appeals majority opinion overturning the denial of defendant’s motion to suppress and vacating defendant’s convictions. The Supreme Court determined that defendant was lawfully detained and searched during the execution of a search warrant even though he was not located on the premises identified by the warrant.

Defendant was the subject of a narcotics investigation and sold heroin to a confidential informant during a controlled buy arranged by the Craven County Sheriff’s Office. Officers obtained a search warrant for the premises used by the defendant during the controlled buy of narcotics, but not for a search of defendant’s person. When executing the search warrant, an officer observed defendant at a neighboring property owned by defendant’s grandfather. The officer detained the defendant, saw what appeared to be a baggie visible in the pocket of defendant’s pants, and patted down the defendant, ultimately finding a baggie containing narcotics. Defendant moved to suppress the evidence obtained through that search.

The Supreme Court found that all findings of fact challenged by defendant were supported by competent evidence in the record. The Court then examined whether the search of defendant and warrantless seizure of the narcotics were lawful. Based upon State v. Wilson, 371 N.C. 920 (2018), the Court held that a search warrant carries with it the authority for law enforcement to detain occupants on or in the vicinity of the premises being searched, and defendant was just 60 yards from the premises and close enough to pose a safety threat. The frisk of defendant was justified by the risk that he would be carrying a firearm, given the connection between guns and drug activity. After determining the law enforcement officer had authority to detain and frisk defendant, the Court held that the “plain view” and “plain feel” doctrines supported the warrantless seizure of the baggie found in defendant’s pocket, which was later determined to be a heroin/fentanyl mixture. This analysis determined that the search of defendant was constitutional and the seizure of the baggie of narcotics was permitted, supporting the trial court’s denial of the motion to suppress.

Justice Barringer concurred in part and concurred in the result, but felt that the reasonable suspicion standard under Terry v. Ohio, 392 U.S. 1 (1968), would have supported the search and seizure, not necessitating the full analysis the majority utilized.

Justice Earls, joined by Justices Hudson and Morgan, dissented and took issue with the majority’s characterization of defendant as an “occupant” while not located on the premises, ultimately disagreeing with the majority’s interpretation of the Wilson analysis as well as the concurrence’s Terry justification.

(Dec. 31, 1969)

The defendant was cleaning his car in the street adjacent to his girlfriend’s apartment when several law enforcement officers arrived to execute a search warrant for the apartment. Before entering the apartment, a law enforcement officer approached the defendant and asked for his driver’s license. Officers remained outside with the defendant while the search warrant was executed. Defendant later consented to a search of his vehicle, where officers found marijuana, paraphernalia, and a firearm. He was charged with drug crimes and possession of firearm by a felon.

The defendant moved to suppress the evidence seized from the search of his vehicle on the basis that the officers obtained the evidence as a result of an unlawful, suspicionless seizure. The court of appeals in State v. Thompson, ___ N.C. App. ___, 809 S.E.2d 340 (2018) (Thompson I) determined, over a dissent, that the trial court’s order denying the defendant’s suppression motion did not resolve a pivotal issue of fact. Thus, the court vacated the judgment and remanded for further findings.

The North Carolina Supreme Court vacated Thompson I and remanded for reconsideration in light of State v. Wilson, 371 N.C. 920 (2018). Wilson addressed the authority of law enforcement officers to detain a person who arrives on the scene while a search warrant is being executed. Wilson held that pursuant to the rule announced by the United States Supreme Court in Michigan v. Summers, 452 U.S. 692 (1981), a search warrant authorizes the detention of (1) occupants, (2) who are within the immediate vicinity of the premises to be searched, and (3) who are presented during the execution of a search warrant for the premises. An occupant is a person who poses a real threat to the safe and efficient execution of a search warrant.

On remand, and again over a dissent, the court of appeals held that the defendant was not an occupant of the searched premises. The court noted that he remained inside his vehicle and did not attempt to approach the apartment or otherwise interfere with the search. Thus, the court found no circumstances to indicate that the defendant posed a threat to the safe and efficient execution of the search. The court therefore again vacated the trial court’s judgment and remanded the matter to the trial court for resolution of material factual disputes, pursuant to Thompson I.

The dissent would have held that the defendant was an occupant of the premises as he was within the line of sight of the apartment being searched and was a threat to enter or attempt to enter the premises.

(Dec. 31, 1969)

Officers did not unreasonably seize the defendant in connection with execution of the search warrant. The defendant asserted that his seizure was unreasonable because it occurred two miles away from the residence in question. The court noted in part that the warrant authorized a search of both the premises and the defendant.

Arrest, Search, and Investigation > Search Warrants > Executing > Pat Down of Those Present

(Dec. 31, 1969)

An officer executing a search warrant at a home reasonably believed that for officer safety he should pat down the defendant, who was present at the house when officers arrived to execute the search warrant. The search warrant application stated that illegal narcotics were being sold from the residence and that officers had conducted two previous controlled buys there, one only 72 hours earlier. When officers entered, they found six individuals, including defendant and saw drugs in plain view. Based on his experience as a narcotics officer, the officer testified to a connection between guns and drugs.

Arrest, Search, and Investigation > Search Warrants > Executing > Statements Made During Execution of the Warrant

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to suppress statements made while a search warrant was being executed. The defendant and his wife were present when the search warrant was executed. After handcuffing the defendant, an officer escorted him to a bathroom, read him Miranda rights, and questioned him about drug activities in the apartment. While this procedure was applied to the defendant’s wife, an officer discovered a digital scale and two plastic bags of a white, powdery substance; the defendant then stated that the drugs were his not his wife’s. The court rejected the defendant’s argument that he was arrested when he was moved to the bathroom and read his rights, noting that the questioning occurred during the search.

Arrest, Search, and Investigation > Search Warrants > Executing > Inventory

(Dec. 31, 1969)

In this drug case, the court rejected the defendant’s argument that the trial court erred by denying his motion to suppress evidence collected from his residence on the grounds that the inventory list prepared by the detective was unlawfully vague and inaccurate in describing the items seized. The defendant argued that the evidence gathered from his residence was obtained in substantial violation of G.S. 15A-254, which requires an officer executing a search warrant to write and sign a receipt itemizing the items taken. Specifically, he asserted that the inventory receipt was vague and inaccurate and thus failed to satisfy the statute’s requirements. In order for suppression to be warranted for a substantial violation of the statute, G.S. 15A-974 requires that the evidence be obtained as a result of officer’s unlawful conduct and that it would not have been obtained but for the unlawful conduct. Here, citing prior case law, the court held, in part, that because the evidence was seized before the inventory required by the statute had to be prepared, the defendant failed to show that the evidence would not have been obtained but for the alleged violations of G.S. 15A-254. The court held that G.S. 15A-254 “applies only after evidence has been obtained and does not implicate the right to be free from unreasonable search and seizure. In turn, because evidence cannot be obtained ‘as a result of’ a violation of [G.S.] 15A-254, [G.S.] 15A-974(a)(2) is inapplicable to either alleged or actual [G.S.] 15A-254 violations.”

Arrest, Search, and Investigation > Search Warrants > Executing > Miscellaneous Cases

(Dec. 31, 1969)

In this Watauga County case, defendant appealed after pleading guilty to indecent liberties with a child, arguing error in denying his motion to suppress the evidence obtained from a search of his notebooks. The Court of Appeals found no error and affirmed the trial court.

In May of 2018, officers from the Boone Police Department were investigating child pornography distribution when they discovered files uploaded to a sharing network from defendant’s IP address. The officers obtained a search warrant for defendant’s residence, and during a search of notebooks found at the home for passwords or passcodes related to the child pornography, the officers discovered a reference to a “hands-on sexual offense involving a minor.” Slip Op. at 4. Officers obtained additional search warrants and eventually defendant was indicted for additional counts of sexual exploitation of a minor and sexual offense. Defendant moved to suppress the evidence seized in excess of the scope of the initial search warrant, and to quash the subsequent search warrants. The trial court denied defendant’s motions and he pleaded guilty, reserving his right to appeal the order denying his motion to suppress and motion to quash.

Examining defendant’s motion to suppress, the Court of Appeals noted that defendant’s challenge was divided into two issues, (1) that many of the findings of fact were not actual findings or were not supported by competent evidence, and (2) that searching defendant’s notebooks went beyond the scope of the initial search warrant. While the court rejected the majority of defendant’s challenges to the findings of fact in (1), the court did agree several were not appropriately categorized, but explained that it would review them “under the appropriate standard depending on their actual classification, not the label given by the trial court.” Id. at 14.

After walking through defendant’s objections to the findings of fact, the court reached (2), whether the officers exceeded the scope of the search warrant by searching through defendant’s substance abuse recovery notebooks. Defendant argued “the agents were allowed to cursorily look in the notebook but immediately upon discovering it was a substance abuse journal, they should have looked no further, not even for passwords or passcodes.” Id. at 17. The court noted this would lead to the absurd result of requiring officers to trust the label or classification of a defendant’s records when performing a search, and rejected defendant’s argument.

(Dec. 31, 1969)

The court rejected the defendant’s argument that the right to have a witness present for blood alcohol testing performed under G.S. 20-16.2 applies to blood draws taken pursuant to a search warrant. The court also rejected the defendant’s argument that failure to allow a witness to be present for the blood draw violated his constitutional rights, holding that the defendant had no constitutional right to have a witness present for the execution of the search warrant.

(Dec. 31, 1969)

Although an officer “inappropriately” took documents related to the defendant’s civil action against A&T and covered by the attorney-client privilege during his search of her residence, the trial court properly suppressed this material and the officer’s actions did not otherwise invalidate the search warrant or its execution.

Arrest, Search, and Investigation > Search Warrants > Sealing Warrants

(Dec. 31, 1969)

Where search warrants were unsealed in accordance with procedures set forth in a Senior Resident Superior Court Judge’s administrative order and where the State failed to make a timely motion to extend the period for which the documents were sealed, the trial judge did not err by unsealing the documents. At least 13 search warrants were issued in an investigation. As each was issued, the State moved to have the warrant and return sealed. Various judges granted these motions, ordering the warrants and returns sealed “until further order of the Court.” However, an administrative order in place at the time provided that an order directing that a warrant or other document be sealed “shall expire in 30 days unless a different expiration date is specified in the order.” Subsequently, media organizations made a made a public records request for search warrants more than thirty days old and the State filed motions to extend the orders sealing the documents. A trial judge ordered that search warrants sealed for more than thirty days at the time of the request be unsealed. The State appealed. The court began by rejecting the State’s argument that the trial court erred by failing to give effect to the language in the original orders that the records remain sealed “until further order of the Court.” The court noted the validity of the administrative order and the fact that the trial judge acted in compliance with it. The court also rejected the State’s argument that the trial judge erred by having the previously sealed documents delivered without any motion, hearing, or notice to the State and without findings of fact. The court noted that the administrative order afforded an opportunity and corresponding procedure for the trial court to balance the right of access to records against the governmental interests sought to be protected by the prior orders. Specifically, the State could make a motion to extend the orders. Here, however, the State failed to make a timely motion to extend the orders. Therefore, the court concluded, the administrative order did not require the trial court to balance the right to access against the governmental interests in protecting against premature release. The court further found that the State had sufficient notice given that all relevant officials were aware of the administrative order.

Arrest, Search, and Investigation > Searches > Reasonable Expectation of Privacy

(Dec. 31, 1969) , 372 N.C. 657 2019-08-16

Arrest, Search, and Investigation > Searches > Private Search Exception

On appeal from a divided panel of the Court of Appeals, ___ N.C. App. ___, 810 S.E. 2d 719 (2018) (discussed in an earlier blog post by Shea Denning, https://nccriminallaw.sog.unc.edu/state-v-terrell-private-search-doctrine/), the Supreme Court affirmed the Court of Appeals’ decision that an officer’s warrantless search of a defendant’s USB drive following a prior search by a private individual violated the defendant’s Fourth Amendment rights. While examining a thumb drive belonging to the defendant, the defendant’s girlfriend saw an image of her 9-year-old granddaughter sleeping, exposed from the waist up. Believing the image was inappropriate, the defendant’s girlfriend contacted the sheriff’s office and gave them the thumb drive. Later, a detective conducted a warrantless search of the thumb drive to locate the image in question, during which he discovered other images of what he believed to be child pornography before he found the photograph of the granddaughter. At that point the detective applied for and obtained a warrant to search the contents of the thumb drive for “contraband images of child pornography and evidence of additional victims and crimes.” The initial warrant application relied only on information from the defendant’s girlfriend, but after the State Bureau of Investigation requested additional information, the detective included information about the images he found in his initial search of the USB drive. The SBI’s forensic examination turned up 12 images, ten of which had been deleted and archived in a way that would not have been viewable without special forensic capabilities. After he was charged with multiple sexual exploitation of a minor and peeping crimes, the defendant filed a pretrial motion to suppress all of the evidence obtained as a result of the detective’s warrantless search. The trial court denied the motion, finding that the girlfriend’s private viewing of the images frustrated the defendant’s expectation of privacy in them, and that the detective’s subsequent search therefore did not violate the Fourth Amendment. After his trial and conviction, the defendant appealed the trial court’s denial of his motion to suppress.

The Supreme Court agreed with the Court of Appeals that the girlfriend’s opening of the USB drive and viewing some of its contents did not frustrate the defendant’s privacy interest in the entire contents of the device. To the contrary, digital devices can retain massive amounts of information, organized into files that are essentially containers within containers. Because the trial court did not make findings establishing the precise scope of the girlfriend’s search, it likewise could not find that the detective had the level of “virtual certainty” contemplated by United States v. Jacobsen, 466 U.S. 109 (1984), that the device contained nothing else of significance, or that a subsequent search would not tell him anything more than he already had been told. The search therefore was not permissible under the private-search doctrine. The court affirmed the decision of the Court of Appeals and remanded the case for consideration of whether the warrant would have been supported by probable cause without the evidence obtained through the unlawful search.

Justice Newby dissented, writing that the majority’s application of the virtual certainty test needlessly eliminates the private-search doctrine for electronic storage devices unless the private searcher opens every file on the device.

(Dec. 31, 1969) , 2022-NCCOA-796, ___ N.C. App. ___ 2022-12-06

Arrest, Search, and Investigation > Searches > Of Vehicles > Automobile Exception

(Dec. 31, 1969)

The court reversed and remanded for further findings of fact regarding the defendant’s motion to suppress evidence obtained as a result of a search of the digital contents of a GPS device found on the defendant’s person which, as a result of the search, was determined to have been stolen. The court held that under Riley v. California, 134 S. Ct. 2473 (2014), the search was not justified as a search incident to arrest. As to whether the defendant had a reasonable expectation of privacy in the GPS device, the court held that a defendant may have a legitimate expectation of privacy in a stolen item if he acquired it innocently and does not know that the item was stolen. Here, evidence at the suppression hearing would allow the trial court to conclude that defendant had a legitimate possessory interest in the GPS. However, because the trial court failed to make a factual determination regarding whether the defendant innocently purchased the GPS device, the court reversed and remanded for further findings of fact, providing additional guidance for the trial court in its decision.

Arrest, Search, and Investigation > Searches > Consent Searches > Implied Consent

(Dec. 31, 1969)

The defendant gave implied consent to the recording of three-way telephone calls in which he participated while in an out-of-state detention center. Although the defendant did not receive a recorded message when the three-way calls were made informing him that the calls were being monitored and recorded, he was so informed when he placed two other calls days before the three-way calls at issue were made.

(Dec. 31, 1969)

Officers had implied consent to search a residence occupied by the defendant and his mother. After the defendant’s mother told the officers that the defendant had a gun in the residence, the defendant confirmed that to be true and told the officers where it was located. The defendant and his mother gave consent by their words and actions for the officers to enter the residence and seize the weapon.

Arrest, Search, and Investigation > Searches > Consent Searches > Third-Party Consent

(Dec. 31, 1969)

Police officers lawfully were present in a common hallway outside of the defendant’s individual storage unit. The hallway was open to those with an access code and invited guests, the manager previously had given the police department its own access code to the facility, and facility manager gave the officers permission on the day in question to access the common area with a drug dog, which subsequently alerted on the defendant’s unit.

Arrest, Search, and Investigation > Searches > Consent Searches > Consent by One Occupant

(Dec. 31, 1969)

Consent to search a home by an abused woman who lived there was valid when the consent was given after her male partner, who objected, was arrested and removed from the premises by the police. Cases firmly establish that police officers may search jointly occupied premises if one of the occupants consents. In Georgia v. Randolph, 547 U. S. 103 (2006), the Court recognized a narrow exception to this rule, holding that the consent of one occupant is insufficient when another occupant is present and objects to the search. In this case, the Court held that Randolph does not apply when the objecting occupant is absent when another occupant consents. The Court emphasized that Randolph applies only when the objecting occupant is physically present. Here, the defendant was not present when the consent was given. The Court rejected the defendant’s argument that Randolph controls because his absence should not matter since he was absent only because the police had taken him away. It also rejected his argument that it was sufficient that he objected to the search while he was still present. Such an objection, the defendant argued should remain in effect until the objecting party no longer wishes to keep the police out of his home. The Court determined both arguments to be unsound.

(Dec. 31, 1969)

A search of the defendant’s living area, which was connected to his wife’s store, was valid where his wife consented to the ALE officers’ request to search the living area.

Arrest, Search, and Investigation > Searches > Consent Searches > Voluntariness of Consent

(Dec. 31, 1969)

Criminal Offenses > Drug Offenses > Possession > Constructive Possession

In this Davidson County case, defendant appealed his conviction for possession of a controlled substance, arguing error in (1) denying his motion to suppress the evidence obtained from a search of his vehicle, and (2) denying his motion to dismiss for insufficient evidence that he knowingly possessed cocaine. The Court of Appeals found no error.

In July of 2019, defendant was driving with two passengers when he was pulled over for failing to yield. After the officers had returned ID cards to defendant and his passengers, one officer asked for permission to search the vehicle. Defendant told the officer that he was on probation and had to allow the search. The officers discovered cocaine and drug paraphernalia during a search of the vehicle. Before trial, defendant filed a motion to suppress, which was denied. Defendant failed to object during trial when the State admitted evidence obtained through the search.

Taking up (1), the Court of Appeals noted the standard of review was plain error as defendant did not object to the admission of evidence during the trial. Here, the search of the vehicle occurred after the traffic stop had concluded. Because defendant was on probation, he is presumed to “have given consent to a search where an officer has reasonable suspicion of a crime.” Slip Op. at 5. The trial court did not provide justification in writing, but in open court stated that she concluded the officer “had reasonable suspicion to conduct the search.” Id. at 6. The court noted that, although the trial court did not consider defendant freely giving consent in the absence of reasonable suspicion, “there was sufficient evidence from which the trial court could have found as fact at trial that Defendant voluntarily consented to the search had Defendant objected when the evidence was offered by the State.” Id. at 7. As a result, defendant could not show plain error from the failure to suppress.

Dispensing with (2), the court noted that the State presented “evidence of other incriminating circumstances, including the placement of the cocaine in the driver’s door, as well as the Defendant’s nervous behavior,” to support the inference that defendant constructively possessed the cocaine. Id. at 8.

Judge Arrowood concurred by separate opinion, writing to address the analysis of the trial court related to the officer’s reasonable suspicion to extend the stop and conduct a search.

(Dec. 31, 1969) , ___ N.C. App. ___, 2022 NCCOA 215 2022-04-05 temp. stay granted, ___ N.C. ___, 871 S.E.2d 101 (Apr 21 2022)

Arrest, Search, and Investigation > Search Warrants > Probable Cause Insufficient

Arrest, Search, and Investigation > Standing > To Challenge Search of Premises

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

(Dec. 31, 1969)

Criminal Procedure > Motions > Suppression Motions > Findings of Fact & Conclusions of Law

(Dec. 31, 1969) , ___ N.C. App. ___, 818 S.E.2d 710 2018-08-07

Arrest, Search, and Investigation > Searches > Consent Searches > Scope of Consent

(Dec. 31, 1969)

In this drug case, the court held that the defendant’s consent to search his room in a rooming house was voluntarily given. The court rejected the defendant’s argument that he was in custody at the time consent was given. There was no evidence that the defendant’s movements were limited by the officers during the encounter. Also, the officers did not supervise the defendant while they were in the home; rather, they simply followed the defendant to his room after he gave consent to search.

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

The fact that officers advised the defendant that if he did not consent to giving oral swabs and surrendering certain items of clothing they would detain him until they obtained a search warrant did not negate the defendant’s voluntary consent to the seizure of those items.

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

A warrantless search of the defendant’s car was valid on grounds of consent. The court rejected the defendant’s argument that his consent was invalid because the officer who procured it was not fluent in Spanish. The court noted that the defendant was non-responsive to initial questions posed in English, but that he responded when spoken to in Spanish. The officer asked simple questions about weapons or drugs and when he gestured to the car and asked to “look,” the defendant nodded in the affirmative. Although not fluent in Spanish, the officer had Spanish instruction in high school and college and the two conversed entirely in Spanish for periods of up to 30 minutes. The officer asked open ended-questions which the defendant answered appropriately. The defendant never indicated that he did not understand a question. The court also rejected the defendant’s argument that his consent was invalid because the officer wore a sidearm while seeking the consent, concluding that the mere presence of a holstered sidearm does not render consent involuntary.

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

The defendant’s consent to search his residence was voluntary, even though it was induced by an officer’s false statements. After receiving information that the defendant was selling marijuana and cocaine from his apartment, an officer went to the apartment to conduct a knock and talk. The officer untruthfully told the defendant that he had conducted surveillance of the apartment, saw a lot of people coming and going, stopped their cars after they left the neighborhood, and each time recovered either marijuana or cocaine. The exchange continued and the defendant gave consent to search. Based on the totality of circumstances, the consent was voluntary.

Arrest, Search, and Investigation > Searches > Consent Searches > Scope of Consent

(Dec. 31, 1969) aff'd on other grounds, 574 U.S. ___, 135 S. Ct. 530 (Dec 15 2014)

The court per curiam affirmed the decision below, State v. Heien, 226 N.C. App. 280 (2013). Over a dissent the court of appeals had held that a valid traffic stop was not unduly prolonged and as a result the defendant’s consent to search his vehicle was valid. The stop was initiated at 7:55 am and the defendant, a passenger who owned the vehicle, gave consent to search at 8:08 am. During this time, the two officers discussed a malfunctioning vehicle brake light with the driver, discovered that the driver and the defendant claimed to be going to different destinations, and observed the defendant behaving unusually (he was lying down on the backseat under a blanket and remained in that position even when approached by an officer requesting his driver’s license). After each person’s name was checked for warrants, their licenses were returned. The officer then requested consent to search the vehicle. The officer’s tone and manner were conversational and non-confrontational. No one was restrained, no guns were drawn and neither person was searched before the request to search the vehicle was made. The trial judge properly concluded that the defendant was aware that the purpose of the initial stop had been concluded and that further conversation was consensual. The court of appeals also had held, again over a dissent, that the defendant’s consent to search the vehicle was valid even though the officer did not inform the defendant that he was searching for narcotics.

(Dec. 31, 1969) , ___ N.C. App. ___, 818 S.E.2d 710 2018-08-07

Arrest, Search, and Investigation > Searches > Consent Searches > Voluntariness of Consent

(Dec. 31, 1969)

An officer’s search of the defendant’s rental car did not exceed the scope of the defendant’s consent. During a traffic stop, the defendant consented to a search of the vehicle but not to a search of his personal belongings in it, a bag and two hoodies. After searching the defendant’s vehicle, the officer’s K-9--which had failed to alert to the vehicle--alerted to the presence of narcotics in the defendant’s bag, which had been removed from the vehicle before the search began. The scope of the officer’s search of the vehicle did not exceed the scope of the defendant’s consent.

(Dec. 31, 1969)

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.”

(Dec. 31, 1969)

The defendant’s voluntary consent to search his vehicle extended to the officer’s looking under the hood and in the vehicle’s air filter compartment.

(Dec. 31, 1969)

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.”

(Dec. 31, 1969)

By consenting to a search of all personal and real property at 19 Doc Wyatt Road, the defendant consented to a search of an outbuilding within the curtilage of the residence. The defendant’s failure to object when the outbuilding was searched suggests that he believed that the outbuilding was within the scope of his consent. For a more detailed analysis of this case, see the blog post.

Arrest, Search, and Investigation > Searches > Consent Searches > Revocation of Consent

(Dec. 31, 1969)

The defendant did not revoke consent to search his vehicle. Although the defendant asked the officer what would happen if he revoked his consent, the defendant never revoked consent to search the vehicle, even after the officer explained that he needed to wait for a second officer to arrive to conduct the search.

(Dec. 31, 1969)

The defendant did not withdraw his consent to search his car when, while sitting in a nearby patrol car, he said several times: “they’re tearing up my trunk.” A reasonable person would not have considered these statements to be an unequivocal revocation of consent.

Arrest, Search, and Investigation > Searches > Private Search Exception

(Dec. 31, 1969) , 372 N.C. 657 2019-08-16

Arrest, Search, and Investigation > Searches > Reasonable Expectation of Privacy

Arrest, Search, and Investigation > Searches > Of Premises > Homes & Curtilage

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of Vehicles > Automobile Exception

The automobile exception to the Fourth Amendment does not permit an officer, uninvited and without a warrant, to enter the curtilage of a home to search a vehicle parked there. Officer McCall saw the driver of an orange and black motorcycle with an extended frame commit a traffic infraction. The driver eluded McCall’s attempt to stop the motorcycle. A few weeks later, Officer Rhodes saw an orange and black motorcycle traveling well over the speed limit, but the driver got away from him, too. The officers compared notes, determined that the two incidents involved the same motorcyclist, and that the motorcycle likely was stolen and in the possession of Ryan Collins. After discovering photographs on Collins’ Facebook page showing an orange and black motorcycle parked at the top of the driveway of a house, Rhodes tracked down the address of the house, drove there, and parked on the street. It was later established that Collins’ girlfriend lived in the house and that Collins stayed there a few nights per week. From the street, Rhodes saw what appeared to be a motorcycle with an extended frame covered with a white tarp, parked at the same angle and in the same location on the driveway as in the Facebook photo. Rhodes, who did not have a warrant, walked toward the house. He stopped to take a photograph of the covered motorcycle from the sidewalk, and then walked onto the residential property and up to the top of the driveway to where the motorcycle was parked. Rhodes removed the tarp, revealing a motorcycle that looked like the one from the speeding incident. He ran a search of the license plate and vehicle identification numbers, which confirmed that the motorcycle was stolen. Rhodes photographed the uncovered motorcycle, put the tarp back on, left the property, and returned to his car to wait for Collins. When Collins returned, Rhodes approached the door and knocked. Collins answered, agreed to speak with Rhodes, and admitted that the motorcycle was his and that he had bought it without title. Collins was charged with receiving stolen property. He unsuccessfully sought to suppress the evidence that Rhodes obtained as a result of the warrantless search of the motorcycle. He was convicted and his conviction was affirmed on appeal. The U.S. Supreme Court granted certiorari and reversed. The Court characterized the case as arising “at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.” After reviewing the law on these doctrines, the Court turned to whether the location in question is curtilage. It noted that according to photographs in the record, the driveway runs alongside the front lawn and up a few yards past the front perimeter of the house. The top portion of the driveway that sits behind the front perimeter of the house is enclosed on two sides by a brick wall about the height of a car and on a third side by the house. A side door provides direct access between this partially enclosed section of the driveway and the house. A visitor endeavoring to reach the front door would have to walk partway up the driveway, but would turn off before entering the enclosure and instead proceed up a set of steps leading to the front porch. When Rhodes searched the motorcycle, it was parked inside this partially enclosed top portion of the driveway that abuts the house. The Court concluded that the driveway enclosure here is properly considered curtilage. The Court continued, noting that by physically intruding on the curtilage, the officer not only invaded the defendant’s fourth amendment interest in the item searched—the motorcycle—but also his fourth amendment interest in the curtilage of his home. Finding the case an “easy” one, the Court concluded that the automobile exception did not justify an invasion of the curtilage. It clarified: “the scope of the automobile exception extends no further than the automobile itself.” The Court rejected Virginia’s request that it expand the scope of the automobile exception to permit police to invade any space outside an automobile even if the Fourth Amendment protects that space. It continued:

Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.

It also rejected Virginia’s argument that the Court’s precedent indicates that the automobile exception is a categorical one that permits the warrantless search of a vehicle anytime, anywhere, including in a home or curtilage. For these and other reasons discussed in the Court’s opinion, the Court held that “the automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein.” It left for resolution on remand whether Rhodes’ warrantless intrusion on the curtilage may have been reasonable on a different basis, such as the exigent circumstances exception to the warrant requirement.

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

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.

(Dec. 31, 1969) , ___ N.C. App. ___, 822 S.E.2d 876 2018-12-18

(Dec. 31, 1969)

Because officers had permission from an occupant to enter a home where incriminating evidence was discovered, the subsequent search of the home was valid. Officers responded to a report of domestic violence at a home the defendant shared with his girlfriend Kristy Fink. A 911 call had reported the domestic violence incident and asserted that Fink suspected the defendant of being involved in an armed robbery of a Game Stop store a few days earlier. Officers knocked at the front door and the defendant and Fink answered and exited the home together. Pursuant to Police Department policy of separating parties on domestic calls, the officers separated the two for questioning. Officer Saine remained outside with the defendant, while Officer Francisco entered the home with Fink after being authorized by her to do so. Fink confirmed that the defendant assaulted her and corroborated the 911 caller’s information, telling Francisco that the incident began when she confronted the defendant about the robbery. Fink then led Francisco to a bedroom she shared with the defendant and showed him potentially incriminating evidence she had found prior to the incident. This included money and clothing matching the description of the robbery suspect’s clothing. When Saine entered the home at the defendant’s request for warmer clothing, Fink repeated to Saine what she had told Francisco. Officers got a search warrant and searched the home. The defendant was charged with armed robbery of the Game Stop store. The defendant unsuccessfully filed a motion to suppress evidence obtained from the search. The defendant was convicted and appealed.

On appeal the defendant argued that because the officer’s initial entry into the home was illegal, the fruits of the subsequent search should have been suppressed. The court disagreed. Here, the defendant never objected to the officer’s entry into his home. Thus, the matter was not controlled by Georgia v. Randolph, 547 U.S. 103 (2006), in which one spouse consented to the search and the other refused to give consent. The court further rejected the defendant’s argument that the officer’s entry into the home to investigate the allegations of domestic violence was mere subterfuge to investigate the robbery.

(Dec. 31, 1969) , ___ N.C. App. ___, 820 S.E.2d 331 2018-09-04

Arrest, Search, and Investigation > Searches > Of Vehicles > Automobile Exception

(Dec. 31, 1969)

Because an officer violated the defendant’s fourth amendment rights by searching the curtilage of his home without a warrant, the trial court erred by denying the defendant’s motion to suppress. The officer saw a vehicle with its doors open at the back of a 150-yard driveway leading to the defendant’s home. Concerned that the vehicle might be part of a break-in or home invasion, the officer drove down the driveway, ran the vehicle’s tags, checked—but did not knock—on the front door, checked the windows and doors of the home for signs of forced entry, “cleared” the sides of the house, and then went through a closed gate in a chain-link fence enclosing the home’s backyard and approached the storm door at the back of the house. As the officer approached the door, which was not visible from the street, he smelled marijuana, which led to the defendant’s arrest for drug charges. At the suppression hearing, the State relied on two exceptions to the warrant requirement to justify the officer’s search of the curtilage: the knock and talk doctrine and the community caretaker doctrine. The court found however that neither exception applies. First, the officer did more than nearly knock and talk. Specifically, he ran a license plate not visible from the street, walked around the house examining windows and searching for signs of a break-in, and went first to the front door without knocking and then to a rear door not visible from the street and located behind a closed gate. “These actions went beyond what the U.S. Supreme Court has held are the permissible actions during a knock and talk.” Likewise, the community caretaker doctrine does not support the officer’s action. “The presence of a vehicle in one’s driveway with its doors open is not the sort of emergency that justifies the community caretaker exception.” The court also noted that because the fourth amendment’s protections “are at their very strongest within one’s home,” the public need justifying the community caretaker exception “must be particularly strong to justify a warrantless search of a home.”

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

In this drug case, the trial court erred in denying the defendant’s motion to suppress evidence obtained as a result of a warrantless search of her residence. According to the court: “The trial court’s findings that the officers observed a broken window, that the front door was unlocked, and that no one responded when the officers knocked on the door are insufficient to show that they had an objectively reasonable belief that a breaking and entering had recently taken place or was still in progress, such that there existed an urgent need to enter the property” and that the search was justified under the exigent circumstances exception to the warrant requirement. It continued:

In this case, the only circumstances justifying the officers’ entry into defendant’s residence were a broken window, an unlocked door, and the lack of response to the officers’ knock at the door. We hold that although these findings may be sufficient to give the officers a reasonable belief that an illegal entry had occurred at some point, they are insufficient to give the officers an objectively reasonable belief that a breaking and entering was in progress or had occurred recently.

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

A search of the defendant’s garage pursuant to a search warrant was improper. Following up on a tip that the defendant was growing marijuana on his property, officers went to his residence. They knocked on the front door but received no response. They then went to the back of the house because they heard barking dogs and thought that an occupant might not have heard them knock. Once there they smelled marijuana coming from the garage and this discovery formed the basis for the search warrant. The court concluded that “the sound of barking dogs, alone, was not sufficient to support the detectives’ decision to enter the curtilage of defendant’s property by walking into the back yard of the home and the area on the driveway within ten feet of the garage.” The court went on to conclude that when the detectives smelled the odor of marijuana, “their purported general inquiry about the information received from the anonymous tip was in fact a trespassory invasion of defendant’s curtilage, and they had no legal right to be in that location.” The subsequent search based, in part, on the odor of marijuana was unlawful.

Arrest, Search, and Investigation > Searches > Of Premises > Open Fields

(Dec. 31, 1969)

The trial court did not err by rejecting the defendant’s motion to suppress evidence obtained by officers when they entered the property in question. The court concluded that the property constituted an “open field,” so that the investigating officers’ entry onto the property and the observations made there did not constitute a “search” for Fourth Amendment purposes. The property consisted of 119 acres of wooded land used for hunting and containing no buildings or residences.

Arrest, Search, and Investigation > Searches > Of Premises > Other Warrantless Searches of Premises

(Dec. 31, 1969)

The trial court erred by concluding that the police had probable cause to conduct a warrantless search of the defendant, a passenger in a stopped vehicle. After detecting an odor of marijuana on the driver’s side of the vehicle, the officers conducted a warrantless search of the vehicle and discovered marijuana in the driver’s side door. However, officers did not detect an odor of marijuana on the vehicle’s passenger side or on the defendant. The court found that none of the other circumstances, including the defendant’s location in an area known for drug activity or his prior criminal history, nervousness, failure to immediately produce identification, or commission of the infraction of possessing an open container of alcohol in a motor vehicle, when considered separately or in combination, amounted to probable cause to search the defendant’s person.

(Dec. 31, 1969)

The trial court erred by denying the defendant’s motion to suppress property seized in a warrantless search. After receiving a tip that a person living at a specified address was growing marijuana, officers went to the address and knocked on the front and side doors. After getting no answer, two officers went to the back of the residence. In the backyard they found and seized marijuana plants. The officers were within the curtilage when they viewed the plants, no evidence indicated that the plants were visible from the front of the house or from the road, and a “no trespassing” sign was plainly visible on the side of the house. Even if the officers did not see the sign, it is evidence of the homeowner’s intent that the side and back of the home were not open to the public. There no evidence of a path or anything else to suggest a visitor’s use of the rear door; instead, all visitor traffic appeared to be kept to the front door and traffic to the rear was discouraged by the posted sign. Further, no evidence indicated that the officers had reason to believe that knocking at the back door would produce a response after knocking multiple times at the front and side doors had not. The court concluded that on these facts, “there was no justification for the officers to enter Defendant’s backyard and so their actions were violative of the Fourth Amendment.”

Arrest, Search, and Investigation > Searches > Of People > Incident to Arrest

(Dec. 31, 1969)

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.”

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of Vehicles > Automobile Exception

Arrest, Search, and Investigation > Searches > Of Vehicles > Gant Search Incident to Arrest

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.

(Dec. 31, 1969)

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.]

(Dec. 31, 1969)

Criminal Offenses > Motor Vehicle Offenses > DWLR

In this Catawba County case, the state appealed an order granting defendant’s motion to suppress evidence obtained after his arrest. The Court of Appeals reversed and remanded, determining that officers had reasonable suspicion to stop defendant and probable cause to arrest him and conduct a search.

In 2018, officers were surveilling a residence where drug-related activity was allegedly occurring, and they had been informed a black male with dreadlocks frequented the location. Defendant drove into the driveway of the residence to drop off a passenger and then depart; the officers observed his license plate. After accessing database information related to the license plate, officers determined defendant was driving with a medically cancelled license and pulled him over. Defendant was arrested for driving with a revoked license; during the arrest, officers searched defendant and found baggies containing methamphetamine hidden in his hair. Before trial, defendant moved to suppress the results of the search. The trial court granted his motion, finding that officers did not have reasonable suspicion to stop defendant based only upon the tip about a male with dreadlocks, and defendant’s offense was no operator’s license under G.S. 20-29.1, which did not constitute probable cause for arrest. Slip Op. at 4.

The Court of Appeals disagreed with the trial court’s analysis, finding that officers did not need reasonable suspicion to investigate a license plate as Fourth Amendment protections do not apply where there is no reasonable expectation of privacy. Id. at 6-7. Once officers determined defendant had a medically cancelled license, they had reasonable suspicion based upon the traffic violation, not upon the original tip. Id. at 8-9. The court also examined the nature of defendant’s offense, exploring whether his medically cancelled license led to an infraction (which would not support the arrest/search), or a misdemeanor (which would support the arrest/search). Looking to G.S. 20-35(a), the court found that the offense was a Class 2 misdemeanor, and none of the enumerated exceptions applied to defendant’s situation. Id. at 15.

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of People > Strip Searches

(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.

(Dec. 31, 1969)

A search of the defendant’s jacket incident to arrest was lawful. When the officer grabbed the defendant, the defendant ran. While attempting to evade capture, the defendant tried to punch the officer while keeping his right hand inside his jacket. The defendant refused to remove his hand from his jacket pocket despite being ordered to do so and the jacket eventually came off during the struggle. This behavior led the officer to believe that the defendant may be armed. After the defendant was subdued, handcuffed, and placed in a patrol vehicle, the officer walked about ten feet and retrieved the jacket from the ground. He searched the jacket and retrieved a bag containing crack cocaine.

Arrest, Search, and Investigation > Searches > Of People > Of Students

(Dec. 31, 1969)

Although school officials had reasonable suspicion to search a middle school student’s backpack and outer clothing for pills, they violated the Fourth Amendment when they required her to pull out her bra and underwear. After learning that the student might have prescription strength and over-the-counter pain relief pills, school officials searched her backpack but found no pills. A school nurse then had her remove her outer clothing, pull her bra and shake it, and pull out the elastic on her underpants, exposing her breasts and pelvic area to some degree. No pills were found. Because there was no indication that the drugs presented a danger to students or were concealed in her undergarments, the officials did not have sufficient justification to require the students to pull out her bra and underpants. However, the school officials were protected from civil liability by qualified immunity.

(Dec. 31, 1969)

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.”

(Dec. 31, 1969)

The reasonableness standard of New Jersey v. T.L.O., 469 U.S. 325 (1985), applied to a search of a student by an officer assigned to the school. The officer was working in conjunction with and at the direction of the assistant principal to maintain a safe and educational environment. For the reasons discussed in the opinion, the search satisfied the two-pronged inquiry for determining reasonableness: (1) whether the action was justified at its inception; and (2) whether the search as conducted was reasonably related in scope to the circumstances which justified the interference in the first place.

Arrest, Search, and Investigation > Searches > Of People > SBM

(Dec. 31, 1969)

Reversing the North Carolina courts, the Court held that under Jones and Jardines, satellite based monitoring for sex offenders constitutes a search under the Fourth Amendment. The Court stated: “a State … conducts a search when it attaches a device to a person’s body, without consent, for the purpose of tracking that individual’s movements.” The Court rejected the reasoning of the state court below, which had relied on the fact that the monitoring program was “civil in nature” to conclude that no search occurred, explaining: “A building inspector who enters a home simply to ensure compliance with civil safety regulations has undoubtedly conducted a search under the Fourth Amendment.” The Court did not decide the “ultimate question of the program’s constitutionality” because the state courts had not assessed whether the search was reasonable. The Court remanded for further proceedings.

(Dec. 31, 1969)

Criminal Offenses > Sexual Assaults & Related Offenses > Incest

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.

(Dec. 31, 1969)

In this case, arising from a Craven County court order imposing satellite-based monitoring (“SBM”) on defendant after his Alford plea to first-degree sex offense with a child, the Court of Appeals considered for the third time whether the imposition of a thirty-year term of SBM represented a violation of defendant’s rights under the Fourth Amendment. After reviewing applicable precedent from the North Carolina Supreme Court, the court affirmed the trial court’s SBM order.

This opinion is the third to be issued by the Court of Appeals in this matter, following a series of remands due to evolving caselaw regarding the constitutionality of SBM. In a 2018 opinion the court overruled the trial court’s imposition of SBM, following the similar case State v. Grady, 259 N.C. App. 664 (2018). The path of the Griffin and Grady matters remained intertwined as the North Carolina Supreme Court released State v. Grady, 372 N.C. 509 (2019), creating a new three-factor test for the imposition of SBM. The Griffin matter was remanded to the court, which issued a second opinion in 2020, again overturning the SBM order. By the time the matter reached the supreme court a second time, it had already issued State v. Hilton, 378 N.C. 692 (2021), and State v. Strudwick, 379 N.C. 94 (2021), and the General Assembly had passed several revisions to the SBM laws. As a result, the supreme court remanded a third time for consideration of the applicable caselaw and statutory changes.

In the current opinion, the court applied the three-part test from Hilton and Strudwick, considering (1) the State’s interest in imposing SBM, (2) defendant’s privacy interests, and (3) the level of intrusion SBM represents into defendant’s privacy interests. Exploring (1), the court noted that the legitimacy of the State’s interest in preventing future sex crimes was clear from legislative enactment of the program and weighed in favor of imposing SBM. Considering (2), the court explained that defendant’s status as a sex offender supported a more limited scope of privacy than the general public, holding that since “[d]efendant’s liberty and privacy interests are limited for the protection of children particularly, and [] [d]efendant was convicted of sexually abusing a minor . . . his privacy rights are appreciably diminished for purposes of analyzing SBM’s reasonableness.” Slip Op. at 15. When considering intrusiveness under (3), the court compared the SBM device defendant must wear to the devices in Hilton and Strudwick, where the supreme court held they were “more inconvenient than intrusive.” Id. at 16, quoting Hilton. Finally the court noted that the recent changes to the SBM program meant that defendant could appeal to have his SBM term capped at ten years, drastically reducing the intrusiveness of the original order.

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

In this Rowan County case, defendant appealed the imposition of lifetime satellite-based monitoring (“SBM”) after his Alford plea to an aggravated sex offense. Defendant argued that the order imposing lifetime SBM violated the Fourth Amendment, as the United States Supreme Court held that SBM is a search subject to the Fourth Amendment in Grady v. North Carolina, 575 U.S. 306 (2015).

The Court of Appeals first took up defendant’s appeal in 2019, reversing the trial court’s order imposing SBM. After the first review of defendant’s case, the North Carolina Supreme Court remanded the case for reconsideration in light of State v. Grady, 372 N.C. 509 (2019). The Court of Appeals reviewed the case again in 2020, considering the relevant Grady precedent, and again reversed the trial court’s order imposing SBM.

After the second consideration of defendant’s case, the North Carolina General Assembly enacted changes to the SBM program in September of 2021; of note is defendant’s ability to petition for termination of SBM after 10 years. The North Carolina Supreme Court remanded defendant’s case a second time so that the Court of Appeals could consider relevant changes in statute and additional caselaw relevant to the SBM program, specifically State v. Hilton, 378 N.C. 692 (2021) and State v. Strudwick, 379 N.C. 94 (2021).

In the current opinion, the Court of Appeals considered the new structure of the SBM program and the three-step reasonableness analysis created by Hilton and Strudwick. The new reasonableness standard requires the court to weigh (1) an offender’s privacy interest, (2) SBM’s intrusion into the privacy of the offender, and (3) the State’s interest in monitoring a sex offender. Notably, the efficacy of SBM is not a factor in this analysis, and the analysis takes place in the present, not in the future when defendant is released from prison. Here, the Court of Appeals first determined that the State presented sufficient evidence to the trial court for it to make an adequate reasonableness determination. Then the court conducted a de novo review of the imposition of SBM and concluded that it was reasonable under the required analysis, upholding the trial court’s order.

Judge Hampson concurred only in the result.

(Dec. 31, 1969)

(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.

(Dec. 31, 1969)

The trial court erred by failing to conduct the appropriate analysis with respect to the defendant’s argument that SMB constitutes an unreasonable search and seizure. 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.

Arrest, Search, and Investigation > Searches > Of People > Strip Searches

(Dec. 31, 1969) , ___ N.C. App. ___, 809 S.E.2d 157 2017-12-19

(Dec. 31, 1969) aff'd on other grounds, 369 N.C. 60 (Sep 23 2016)

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.

(Dec. 31, 1969)

In a drug case the court held that probable cause and exigent circumstances supported a roadside search of the defendant’s underwear conducted after a vehicle stop and that the search was conducted in a reasonable manner. After finding nothing in the defendant’s outer clothing, the officer placed the defendant on the side of his vehicle with the vehicle between the defendant and the travelled portion of the highway. Other troopers stood around the defendant to prevent passers-by from seeing him. The officer pulled out the front waistband of the defendant’s pants and looked inside. The defendant was wearing two pairs of underwear—an outer pair of boxer briefs and an inner pair of athletic compression shorts. Between the two pairs of underwear the officer found a cellophane package containing several smaller packages. There was probable cause to search where the defendant smelled of marijuana, officers found a scale of the type used to measure drugs in his car, a drug dog alerted in his car, and during a pat-down the officer noticed a blunt object in the inseam of the defendant’s pants. Because narcotics can be easily and quickly hidden or destroyed, especially after a defendant has notice of an officer’s intent to discover whether the defendant was in possession of them, sufficient exigent circumstances justified the warrantless search. Additionally, the search was conducted in a reasonable manner. Although the officer did not see the defendant’s private parts, the level of the defendant’s exposure is relevant to the analysis of whether the search was reasonable. The court reasoned that the officer had a sufficient basis to believe that contraband was in the defendant’s underwear, including that although the defendant smelled of marijuana a search of his outer clothing found nothing, the defendant turned away from the officer when the officer frisked his groin and thigh area, and that the officer felt a blunt object in the defendant’s crotch area during the pat-down. Finally, the court concluded that when conducting the search the officer took reasonable steps to protect defendant’s privacy.

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

Roadside strip searches of the defendant were reasonable and did not violate the constitution. The court first rejected the State’s argument that the searches were not strip searches. During both searches the defendant’s private areas were observed by an officer and during one search the defendant’s pants were removed and an officer searched inside of the defendant’s underwear with his hand. Next, the court held that probable cause supported the searches. The officers stopped the defendant’s vehicle for speeding after receiving information from another officer and his informant that the defendant would be traveling on a specified road in a silver Kia, carrying 3 grams of crack cocaine. The strip search occurred after a consensual search of the defendant’s vehicle produced marijuana but no cocaine. The court found competent evidence to show that the informant, who was known to the officers and who had provided reliable information in the past, provided sufficient reliable information, corroborated by an officer, to establish probable cause to believe that the defendant would be carrying a small amount of cocaine in his vehicle. When the consensual search of defendant’s vehicle did not produce the cocaine, the officers had sufficient probable cause, under the totality of the circumstances, to believe that the defendant was hiding the drugs on his person. Third, the court found that exigent circumstances supported the search. Specifically, the officer knew that the defendant had prior experience with jail intake procedures and that he could reasonably expect that the defendant would attempt to get rid of evidence in order to prevent his going to jail. Finally, the court found the search reasonable. The trial court had determined that although the searches were intrusive, the most intrusive one occurred in a dark area away from the traveled roadway, with no one other than the defendant and the officers in the immediate vicinity. Additionally, the trial court found that the officer did not pull down the defendant’s underwear or otherwise expose his bare buttocks or genitals and no females were present or within view during the search. The court determined that these findings support the trial court’s conclusion that, although the searches were intrusive, they were conducted in a discreet manner away from the view of others and limited in scope to finding a small amount of cocaine based on the corroborated tip of a known, reliable informant.

(Dec. 31, 1969)

A roadside strip search was unreasonable. The search was a strip search, even though the defendant’s pants and underwear were not completely removed or lowered. Although the officer made an effort to shield the defendant from view, the search was a “roadside” strip search, distinguished from a private one. Roadside strip searches require probable cause and exigent circumstances, and no exigent circumstances existed here. Note that although a majority of the three-judge panel agreed that the strip search was unconstitutional, a majority did not agree as to why this was so.

Arrest, Search, and Investigation > Searches > Of People > Biological: Cheek Swab, Blood, Breath

(Dec. 31, 1969) , 588 U.S. ___, 139 S. Ct. 2525 2019-06-27

Criminal Procedure > DWI Procedure > Implied Consent Issues

(Dec. 31, 1969)

The defendant’s Fourth Amendment rights were not violated by the taking of a DNA cheek swab as part of booking procedures. When the defendant was arrested in April 2009 for menacing a group of people with a shotgun and charged in state court with assault, he was processed for detention in custody at a central booking facility. Booking personnel used a cheek swab to take the DNA sample from him pursuant to the Maryland DNA Collection Act (Maryland Act). His DNA record was uploaded into the Maryland DNA database and his profile matched a DNA sample from a 2003 unsolved rape case. He was subsequently charged and convicted in the rape case. He challenged the conviction arguing that the Maryland Act violated the Fourth Amendment. The Maryland appellate court agreed. The Supreme Court reversed. The Court began by noting that using a buccal swab on the inner tissues of a person’s cheek to obtain a DNA sample was a search. The Court noted that a determination of the reasonableness of the search requires a weighing of “the promotion of legitimate governmental interests” against “the degree to which [the search] intrudes upon an individual’s privacy.” It found that “[i]n the balance of reasonableness . . . , the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest.” The Court noted in particular the superiority of DNA identification over fingerprint and photographic identification. Addressing privacy issues, the Court found that “the intrusion of a cheek swab to obtain a DNA sample is a minimal one.” It noted that a gentle rub along the inside of the cheek does not break the skin and involves virtually no risk, trauma, or pain. And, distinguishing special needs searches, the Court noted: “Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial . . . his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen.” The Court further determined that the processing of the defendant’s DNA was not unconstitutional. The information obtained does not reveal genetic traits or private medical information; testing is solely for the purpose of identification. Additionally, the Maryland Act protects against further invasions of privacy, by for example limiting use to identification. It concluded:

In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

(Dec. 31, 1969)

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.

(Dec. 31, 1969) , COA22-408, ___ N.C. App. ___ 2023-07-05

Criminal Procedure > DWI Procedure > Implied Consent Issues

Evidence > Opinions > Lay Opinions > DWI Cases

(Dec. 31, 1969)

Criminal Offenses > Motor Vehicle Offenses > Impaired Driving

Criminal Offenses > Motor Vehicle Offenses > Open Container

Criminal Offenses > Obstruction of Justice and Related Offenses > Resist, Delay & Obstruct Officer

Criminal Procedure > Discovery, Subpoenas & Related Issues > Brady Material/Violations

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

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

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

(Dec. 31, 1969)

In this impaired driving case the trial court properly denied the defendant’s motion to suppress where exigent circumstances supported a warrantless blood draw. The defendant tested at .10 on a roadside test, was arrested at 2:48 AM and then was transported to the police department, where he arrived 18 minutes later. When the defendant refused to comply with further testing within 2 to 3 minutes after arriving at the police department, the detective decided to compel a blood test. The closest hospital was approximately 4 miles away from the police department and 8 miles from the magistrate’s office. The detective read the defendant his rights regarding the blood draw at the hospital at 3:24 AM and waited for the defendant to finish making a phone call before starting the blood draw at 3:55 AM. The detective testified that based on the information he had at the time, he thought the defendant was close to a blood alcohol level of .08. The detective further indicated that he thought it would have taken an additional hour to an hour and half to get a search warrant. The detective was the only officer on the scene and would have had to wait for another officer to arrive before he could travel to the magistrate to get the search warrant. The trial court’s finding regarding the detective’s reasonable belief that the delay would result in the dissipation of alcohol in the defendant’s blood was supported by competent evidence. Thus, the trial court did not err in denying the defendant’s motion to suppress the blood draw.

Arrest, Search, and Investigation > Searches > Of People > Other Warrantless Searches of People

(Dec. 31, 1969)

In this drug case, the court held, deciding an issue of first impression, that an odor of marijuana emanating from inside a vehicle stopped at a checkpoint did not provide an officer with probable cause to conduct an immediate warrantless search of the driver. The defendant was driving the stopped vehicle; a passenger sat in the front seat. The officer was unable to establish the exact location of the odor but determined that it was coming from inside the vehicle. Upon smelling the odor, the officer ordered the defendant out of the vehicle and searched him, finding cocaine and other items. On appeal the defendant argued that although the officer smelled marijuana emanating from the vehicle, there was no evidence that the odor was attributable to the defendant personally. It was not contested that the officer had probable cause to search the vehicle. Probable cause to search a vehicle however does not justify search of a passenger. The State offered no evidence that the marijuana odor was attributable to the defendant. The court held: the officer “may have had probable cause to search the vehicle, but he did not have probable cause to search defendant.”

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

On what it described as an issue of first impression in North Carolina, the court held that a drug dog’s positive alert at the front side driver’s door of a motor vehicle does not give rise to probable cause to conduct a warrantless search of the person of a recent passenger of the vehicle who is standing outside the vehicle.

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

There was probable cause supporting a warrantless search of the defendant. During a pat-down, an officer felt a digital scale in the defendant’s pocket and the defendant confirmed the nature of the object. The officer was justified in concluding that the scale was contraband given informant tips that defendant was selling drugs. Additionally, the defendant was coming from the area in which the informants claimed he was selling drugs, and he was acting nervously. The defendant did not challenge the trial court’s conclusion that exigent circumstances were present.

Arrest, Search, and Investigation > Searches > Of Vehicles > Automobile Exception

(Dec. 31, 1969) , 584 U.S. ___, 138 S. Ct. 1663 2018-05-29

Just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. The automobile exception does not afford the necessary lawful right of access to search a vehicle parked within a home or its curtilage because it does not justify an intrusion on a person’s separate and substantial Fourth Amendment interest in his home and curtilage.

(Dec. 31, 1969) , 95A22, ___ N.C. ___ 2023-10-20

Arrest, Search, and Investigation > Searches > Of Vehicles > Gant Search Incident to Arrest

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

(Dec. 31, 1969) , 2022-NCCOA-796, ___ N.C. App. ___ 2022-12-06

Arrest, Search, and Investigation > Searches > Reasonable Expectation of Privacy

(Dec. 31, 1969) , 2022-NCCOA-655, ___ N.C. App. ___ 2022-10-04

(Dec. 31, 1969) , ___ N.C. App. ___, 820 S.E.2d 331 2018-09-04

Arrest, Search, and Investigation > Searches > Of Premises > Homes & Curtilage

(Dec. 31, 1969)

The court rejected the defendant’s claim that counsel was ineffective by failing to object to the admission of cocaine found during an officer’s warrantless search of the defendant’s vehicle; the court rejected the defendant’s argument that the State was required to prove that the defendant’s car was “readily mobile” in order for the automobile exception to the warrant requirement to apply. An officer searched the vehicle after smelling a strong odor of marijuana and seeing an individual sitting in the passenger seat with marijuana on his lap. The cocaine was found during a subsequent search of the vehicle. The vehicle was parked on the street when the search occurred and no evidence suggested that it was incapable of movement.

(Dec. 31, 1969)

Although a search of the defendant’s vehicle was not proper under Gant, it was authorized under the automobile exception where officers had probable cause that the vehicle contained marijuana. After officers saw a vehicle execute a three-point turn in the middle of an intersection, strike a parked vehicle, and continue traveling on the left side of the road, they activated their blue lights to initiate a traffic stop. Before the vehicle stopped, they saw a brown beer bottle thrown from the driver’s side window. After the driver and passenger exited the vehicle, the officers detected an odor of alcohol and marijuana from the inside of the car and discovered a partially consumed bottle of beer in the center console. The defendant was arrested for hit and run and possession of an open container, put in handcuffs, and placed in the back of the officers’ cruiser. One of the officers searched the vehicle and retrieved the beer bottle from the center console, a grocery bag containing more beer, and a plastic baggie containing several white rocks, which turned out to be cocaine, in car’s glove compartment. After the defendant was charged with possession of cocaine and other offenses, he moved to suppress the evidence found pursuant to the search of his car. The court concluded that although a search of the car was not proper under Gant, it was proper under the automobile exception. Specifically, the fact that the officers smelled a strong odor of marijuana inside the vehicle provided probable cause to search.

Arrest, Search, and Investigation > Searches > Of Vehicles > Gant Search Incident to Arrest

(Dec. 31, 1969)

The exclusionary rule (a deterrent sanction baring the prosecution from introducing evidence obtained by way of a Fourth Amendment violation) does not apply when the police conduct a search in compliance with binding precedent that is later overruled. Alabama officers conducted a routine traffic stop that eventually resulted in the arrests of driver Stella Owens for driving while intoxicated and passenger Willie Davis for giving a false name to police. The police handcuffed both individuals and placed them in the back of separate patrol cars. The police then searched the passenger compartment of Owens’s vehicle and found a revolver inside Davis’s jacket pocket. The search was done in reliance on precedent in the jurisdiction that had interpreted New York v. Belton, 453 U.S. 454 (1981), to authorize automobile searches incident to arrests of recent occupants, regardless of whether the arrestee was within reaching distance of the vehicle at the time of the search. Davis was indicted on a weapons charge and unsuccessfully moved to suppress the revolver. He was convicted. While Davis’s case was on appeal, the Court decided Arizona v. Gant, 556 U.S. 332 (2009), adopting a new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains evidence relevant to the crime of arrest. Analyzing whether to apply the exclusionary rule to the search at issue, the Court determined that “[the] acknowledged absence of police culpability dooms Davis’s claim.” Slip Op. at 10. It stated: “Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Slip Op. at 1.

(Dec. 31, 1969)

Holding that officers may search a vehicle incident to arrest only if (1) the arrestee is unsecured and within reaching distance of the passenger compartment when the search is conducted; or (2) it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle. For more complete analysis of this ruling, see the online paper here.

(Dec. 31, 1969) , 95A22, ___ N.C. ___ 2023-10-20

Arrest, Search, and Investigation > Searches > Of Vehicles > Automobile Exception

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

(Dec. 31, 1969)

The court reversed the court of appeals and determined that a search of the defendant’s vehicle incident to his arrest for carrying a concealed gun did not violate the Fourth Amendment. The defendant was indicted for, among other things, trafficking in cocaine and carrying a concealed gun. Officers were dispatched to a specific street address in response to a 911 reporting that a black male armed with a black handgun, wearing a yellow shirt, and driving a red Ford Escape was parked in his driveway and that the male had “shot up” his house the previous night. Officers Walley and Horsley arrived at the scene less than six minutes after the 911 call. They observed a black male (later identified as the defendant) wearing a yellow shirt and backing a red or maroon Ford Escape out of the driveway. The officers exited their vehicles, drew their weapons, and moved toward the defendant while ordering him to stop and put his hands in the air. Officer Woods then arrived and blocked the driveway to prevent escape. The defendant initially rested his hands on his steering wheel, but then lowered them towards his waist. Officers then began shouting at the defendant to keep his hands in sight and to exit his vehicle. The defendant raised his hands and stepped out of his car, kicking or bumping the driver’s door shut as he did so. Officers ordered the defendant to lie on the ground and handcuffed him, advising him that he was being detained because they had received a report that a person matching his description was carrying a weapon. After the defendant said that he had a gun in his waistband and officers found the gun, the defendant was arrested for carrying a concealed gun. The officers secured the defendant in the back of a patrol car, returned to his vehicle, and opened the driver’s side door. Officer Horsley immediately saw a white brick wrapped in green plastic protruding from beneath the driver’s seat. As Officer Horsley was showing this to Officer Walley, the defendant attempted to escape from the patrol car. After re-securing the defendant, the officers searched his vehicle incident to the arrest but found no other contraband. The white brick turned out to be 993.8 grams of cocaine. The court noted that the case required it to apply Arizona v. Gant, 556 U.S. 332 (2009) (officers may search a vehicle incident to arrest only if (1) the arrestee is unsecured and within reaching distance of the passenger compartment when the search is conducted; or (2) it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle). It began its analysis by concluding that as used in the second prong of the Gant test, the term “reasonable to believe” establishes a threshold lower than probable cause that “parallels the objective ‘reasonable suspicion’ standard sufficient to justify a Terry stop.” Thus, it held that “when investigators have a reasonable and articulable basis to believe that evidence of the offense of arrest might be found in a suspect’s vehicle after the occupants have been removed and secured, the investigators are permitted to conduct a search of that vehicle.” Applying that standard, the court concluded:

[D]efendant was arrested for . . . carrying a concealed gun. The arrest was based upon defendant’s disclosure that the weapon was under his shirt. Other circumstances . . . such as the report of defendant’s actions the night before and defendant’s furtive behavior when confronted by officers, support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant’s vehicle. Accordingly, the search was permissible under Gant . . . .”

The court ended by noting that it “[was] not holding that an arrest for carrying a concealed weapon is ipso facto an occasion that justifies the search of a vehicle.” It expressed the belief that “the ‘reasonable to believe’ standard required by Gant will not routinely be based on the nature or type of the offense of arrest and that the circumstances of each case ordinarily will determine the propriety of any vehicular searches conducted incident to an arrest.”

(Dec. 31, 1969)

After the defendant’s arrest for impaired driving, officers properly searched his vehicle as a search incident to arrest. Applying Arizona v. Gant, the court found that the officer had a reasonable basis to believe that evidence of impaired driving might be found in the vehicle. The defendant denied ownership, possession, and operation of the vehicle to the officer both verbally and by throwing the car keys under the vehicle. Based on the totality of the circumstances, including the strong odor of alcohol on the defendant, the defendant’s efforts to hide the keys and refusal to unlock the vehicle, and the officer’s training and experience with regard to impaired driving investigations, the trial court properly concluded that the officer reasonably believed that the vehicle may contain evidence of the offense. In the factual discussion, the court noted that the officer had testified that he had conducted between 20-30 impaired driving investigations, that at least 50% of those cases involved discovery of evidence associated with impaired driving inside the vehicle, such as open containers of alcohol, and that he had been trained to search a vehicle under these circumstances.

(Dec. 31, 1969)

A search of the defendant’s vehicle was properly done incident to the defendant’s arrest for an open container offense, where the officer had probable cause to arrest before the search even though the formal arrest did not occur until after the search was completed. The court noted that under Gant “[a]n officer may conduct a warrantless search of a suspect’s vehicle incident to his arrest if he has a reasonable belief that evidence related to the offense of arrest may be found inside the vehicle.” Here, the trial court’s unchallenged findings of fact that it is common to find alcohol in vehicles of individuals stopped for alcohol violations; and that the center console in defendant’s car was large enough to hold beer cans support the conclusion that the arresting officer had a reasonable belief that evidence related to the open container violation might be found in the defendant’s vehicle. The court rejected the defendant’s argument that the search was an unconstitutional “search incident to citation,” noting that the defendant was arrested, not issued a citation.

(Dec. 31, 1969)

The search of a vehicle driven by the defendant was valid under Gant as incident to the arrest of the defendant’s passenger for possession of drug paraphernalia. Officers had a reasonable belief that evidence relevant to the passenger’s possession of drug paraphernalia might be found in the vehicle. Additionally, the objective circumstances provided the officers with probable cause for a warrantless search of the vehicle. The drug paraphernalia found on the passenger, an anonymous tip that the vehicle would be transporting drugs, the fact that there were outstanding arrest warrants for the car’s owner, the defendant’s nervous behavior while driving and upon exiting the vehicle, and an alert by a drug-sniffing dog provided probable cause for the warrantless search of the vehicle.

(Dec. 31, 1969)

Although the search of the defendant’s vehicle was not valid as one incident to arrest under Gant, it was a valid consent search.

(Dec. 31, 1969)

The trial court erred by suppressing evidence obtained pursuant to a search incident to arrest. After stopping the defendant’s vehicle, an officer decided not to charge him with impaired driving but to allow the defendant to have someone pick him up. The defendant consented to the officer to retrieving a cell phone from the vehicle. While doing that, the officer saw a weapon and charged the defendant with carrying a concealed weapon. Following the arrest, officers searched the defendant’s vehicle, finding addition contraband, which was suppressed by the trial court. The court noted that under Arizona v. Gant, 556 U.S. 332 (2009), officers may search a vehicle incident to arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or if it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of the vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. Citing State v. Toledo, 204 N.C. App. 170 (2010), the court held that having arrested the defendant for carrying a concealed weapon, it was reasonable for the officer to believe that the vehicle contained additional offense-related contraband, within the meaning of the second Gant exception.

(Dec. 31, 1969)

The defendant’s Fourth Amendment rights were violated when the police searched his vehicle incident to his arrest for driving with a revoked driver’s license. Under Gant (discussed above), the officers could not reasonably have believed that evidence of the defendant’s driving while license suspended might have been found in the car. Additionally, because the defendant was in the police car when the officers conducted the search, he could not have accessed the vehicle’s passenger compartment at the time of the searched.

(Dec. 31, 1969)

A search of a tire found in the undercarriage of the defendant’s vehicle was proper. An officer stopped the defendant for following too closely. The officer asked for and received consent to search the vehicle. During the consent search, the officer performed a “ping test” on a tire found inside the vehicle. When the ping test revealed a strong odor of marijuana, the officer arrested the defendant and searched the rest of the vehicle. At that point, the officer found a second tire located in the vehicle’s undercarriage, which also contained marijuana. The search was justified because (1) the discovery of marijuana in the first tire gave the officer probable cause to believe that the vehicle was being used to transport marijuana and therefore the officer had probable cause to search any part of the vehicle that may have contained marijuana and (2) it was reasonable to believe that the vehicle contained evidence of the crime of arrest under Gant.

(Dec. 31, 1969)

Applying Gant (discussed immediately above) and holding that the trial court erred by denying the defendant’s motion to suppress evidence (papers) obtained during a warrantless search of his vehicle subsequent to his arrest for driving with an expired registration and failing to notify the DMV of an address change. Because the defendant had been removed from the vehicle, handcuffed, and was sitting on a curb when the search occurred, there was no reason to believe that he was within reaching distance or otherwise able to access the passenger compartment of the vehicle. Additionally, there was no evidence that the arresting officer believed that the papers were related to the charged offenses and furthermore, it would be unreasonable to think that papers seen on the passenger seat of the car were related to those offenses.

Arrest, Search, and Investigation > Searches > Of Vehicles > Generally

(Dec. 31, 1969)

Pennsylvania State Troopers pulled over a car driven by Terrence Byrd. Byrd was the only person in the car. During the traffic stop the troopers learned that the car was rented and that Byrd was not listed on the rental agreement as an authorized driver. For this reason, the troopers told Byrd they did not need his consent to search the car, including its trunk where he had stored personal effects. A search of the trunk uncovered body armor and 49 bricks of heroin. The defendant was charged with federal drug crimes. He moved to suppress the evidence. The Federal District Court denied the motion and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car. The Supreme Court granted certiorari to address the question whether a driver has a reasonable expectation of privacy in a rental car when he or she is not listed as an authorized driver on the rental agreement. The Government argued, in part, that drivers who are not listed on rental agreements always lack an expectation of privacy in the automobile based on the rental company’s lack of authorization alone. The Court found that “[t]his per se rule rests on too restrictive a view of the Fourth Amendment’s protections.” It held, in part: “the mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” The Court remanded on two arguments advanced by the Government: that one who intentionally uses a third party to procure a rental car by a fraudulent scheme for the purpose of committing a crime is no better situated than a car thief (who, the Court noted, would lack a legitimate expectation of privacy); and that probable cause justified the search in any event.

(Dec. 31, 1969) , COA23-377, ___ N.C. App. ___ 2024-02-06

(Dec. 31, 1969)

Criminal Procedure > Appellate Issues > Miscellaneous Cases

Judge Murphy concurred in part and dissented in part by separate opinion, and would have found that the State did not adequately invoke the court’s jurisdiction. Id. at 17.

(Dec. 31, 1969) , 2022-NCCOA-903, ___ N.C. App. ___ 2022-12-29

(Dec. 31, 1969)

In this Gaston County case, defendant appealed the trial court’s denial of his motion to suppress after entering a no contest plea to possession of a controlled substance and drug paraphernalia, and failure to stop at a stop sign. The Court of Appeals affirmed the trial court’s judgment.

In October of 2020, police officers observed a car roll through a stop sign and pulled over the vehicle. When officers approached, defendant was behind the wheel; one officer took defendant’s license and information to perform a warrant check, while the other officer stayed with defendant and shined a flashlight through the windows to observe the vehicle. After shining the light around the vehicle, the officer noticed a plastic baggie next to the driver’s door, and defendant was detained while the officers retrieved and tested the baggie. The baggie tested positive for crack-cocaine.

On appeal, defendant argued that the stop was inappropriately pretextual, and that the officer shining a flashlight lacked probable cause to search his vehicle. The Court of Appeals disagreed, explaining that “[o]fficers who lawfully approach a car and look inside with a flashlight do not conduct a ‘search’ within the meaning of the Fourth Amendment.” Slip Op. at 4-5, quoting State v. Brooks, 337 N.C. 132, 144 (1994). The court then turned to the stop, explaining that “both the United States Supreme Court and our North Carolina Supreme Court have ruled that an officer’s subjective motive for a stop has no bearing on the Fourth Amendment analysis.” Slip Op. at 9, citing Whren v. United States, 517 U.S. 806, 813 (1996); and State v. McClendon, 350 N.C. 630, 635-36 (1999). Having established for Fourth Amendment analysis that the subjective motive for the stop was irrelevant and that a flashlight through defendant’s window was not a search, the court affirmed the trial court’s decision to deny the motion.

(Dec. 31, 1969)

Criminal Offenses > Drug Offenses > Possession > Knowing Possession

Officers responded to a single-car accident in May 2018. At the time of the crash, the defendant was the passenger, and her acquaintance, Kyle, was driving the vehicle with the defendant’s permission. Witnesses at the site told the officers the driver fled the scene and walked into nearby woods because he had outstanding warrants. The defendant told the officers that she knew the driver as “Kyle” but that she did not know his full or last name. One officer searched the SUV to look for Kyle’s driver’s license or ID. The officer found a bag in which he discovered a black box that contained two cell phones, a scale, and two large bags of a clear crystal-like substance, which was later determined to be of methamphetamine.

The officers arrested the defendant then searched the bag she had with her outside of the car. Inside of the defendant’s bag, the officers found a glass smoking pipe, five cell phones, a handgun, a notebook, $1,785 in cash, and a clear container holding several bags of a white crystal-like substance, one of which contained one tenth of an ounce of methamphetamine.

Defense counsel filed a pretrial motion to suppress the evidence found in both bags, alleging the search of the vehicle violated the defendant’s Fourth Amendment protection from unreasonable searches and seizures. During a hearing, the officer testified that he had searched the vehicle to locate the driver’s identification in order to investigate the motor vehicle collision and a potential hit-and-run. The trial court concluded the warrantless search was constitutional because the officer had probable cause to search the SUV and denied the defendant’s motion. The defendant pled guilty of possession of methamphetamine and was convicted of trafficking in methamphetamine by possession by a jury’s verdict. The defendant appealed.

(1) On appeal, the defendant argued that the trial court erred in denying her motion to suppress evidence found in a warrantless search of her parents’ vehicle without sufficient probable cause. The Court of Appeals concluded that the officers had reasonable suspicion to search the vehicle to verify the claims of another occupant and custodian of the vehicle to determine that alleged driver’s identity. The Court reasoned that Kyle’s identification may not have been inside the vehicle, but there was no other way for the officers to try to find information to identify the driver if the passenger and other witnesses did not know or would not provide his full name, and the identification of the purported driver may have reasonably been determined from looking inside the wrecked vehicle. The Court thus held that the trial court properly denied the defendant’s motion to suppress.

(2) The defendant also argued that the trial court plainly erred by failing to provide an additional instruction about her actual knowledge of the drugs found inside the vehicle. The Court determined that the trial court adequately advised the jury of the knowledge requirement by stating, “a person possesses methamphetamine if the person is aware of its presence . . . and intent to control the disposition or use of that substance.” Slip op. at ¶ 23. The Court thus concluded the jury was sufficiently instructed that the State had to prove beyond a reasonable doubt that the defendant knowingly possessed methamphetamine, and the defendant could not be convicted if she lacked knowledge of the methamphetamine found inside of her parent’s vehicle.

Judge Inman dissented in part to say that while there may have been probable cause to justify the issuance of a warrant by a magistrate, no exception to the warrant requirement authorized the warrantless search of the vehicle on the scene of the single-car accident in this case. Judge Inman concurred in part to say she would hold that the trial court erred in failing to further instruct the jury about the defendant’s knowledge as prescribed by our pattern jury instructions but did not conclude that the error had a probable impact on the jury’s verdict.

(Dec. 31, 1969)

In this Cabarrus County case, the defendant was convicted of two counts of felony possession of Schedule I controlled substance and having attained habitual felon status. The charges arose from substances recovered from the vehicle defendant was driving when he was stopped for failing to wear his seatbelt. The officer who approached the car smelled the odor of burnt marijuana emanating from the car. The officer told the defendant and his passenger that if they handed over everything they had, he would simply cite them for possession of marijuana. The passenger in the car then admitted that he had smoked a marijuana joint earlier and retrieved a partially smoked marijuana cigarette from his sock. The officer then searched the car and discovered gray rock-like substances that when tested proved to be Cyclopropylfentanyl (a fentanyl derivative compound) and a pill that was N-ethylpentylone (a chemical compound similar to bath salts).

(1) At trial, the defendant moved to suppress evidence of the drugs recovered from his car. The trial court denied the motion. The defendant appealed, arguing that the trial court erred by failing to issue a written order and in finding that the search was supported by probable cause. The Court of Appeals determined that the trial court did not err by failing to enter a written order denying the defendant’s motion to suppress as there was no material conflict in the evidence and the trial court’s oral ruling explained its rationale. The Court further held that regardless of whether the scent of marijuana emanating from a vehicle continues to be sufficient to establish probable cause (now that hemp is legal and the smell of the two is indistinguishable), the officer in this case had probable cause based on additional factors, which included the passenger’s admission that he had just smoked marijuana and the partially smoked marijuana cigarette he produced from his sock. The Court also considered the officer’s subjective belief that the substance he smelled was marijuana to be additional evidence supporting probable cause, even if the officer’s belief might have been mistaken. The Court rejected the defendant’s contention that the probable cause had to be particularized to him, citing precedent establishing that if probable cause justifies the search of a vehicle, an officer may search every part of the vehicle and its contents that may conceal the object of the search.

(2) The defendant argued on appeal that the trial court erred by instructing the jury that Cyclopropylfentanyl and N-ethylpentylone were controlled substances since those substances are not specifically listed as named controlled substances under Schedule I in G.S. 90-89. The Court rejected the defendant’s argument on the basis that the classification of these substances was a legal issue within the province of the trial court. Furthermore, the Court determined that even if the classification was a factual issue, the defendant was not prejudiced because the undisputed evidence demonstrated that the substances were controlled substances fitting within the catch-all provision of Schedule I.

(3) The defendant argued on appeal that because he denied knowing the identity of the substances found in his vehicle the trial court erred in denying his request to instruct the jury that he must have known that what he possessed was a controlled substance. The Court of Appeals found no error. The Court characterized the defendant’s statements to the arresting officer as “amount[ing] to a denial of any knowledge whatsoever that the vehicle he was driving contained drugs” and noted that the defendant never specifically denied knowledge of the contents of the cloth in which the Cyclopropylfentanyl was wrapped, nor did he admit that the substances belonged to him while claiming not to know what they were. The Court concluded that these facts failed to establish the prerequisite circumstance for giving the instruction requested, namely that the defendant did not know the true identity of what he possessed. The Court further noted that defense counsel was allowed to explain to the jury during closing argument that knowing possession was a required element of the offense and the jury instructions required the State to prove that the defendant knowingly possessed the controlled substance and was aware of its presence.

(Dec. 31, 1969)

A search of a tire found in the undercarriage of the defendant’s vehicle was proper. An officer stopped the defendant for following too closely. The officer asked for and received consent to search the vehicle. During the consent search, the officer performed a “ping test” on a tire found inside the vehicle. When the ping test revealed a strong odor of marijuana, the officer arrested the defendant and searched the rest of the vehicle. At that point, the officer found a second tire located in the vehicle’s undercarriage, which also contained marijuana. The search was justified because the discovery of marijuana in the first tire gave the officer probable cause to believe that the vehicle was being used to transport marijuana and therefore the officer had probable cause to search any part of the vehicle that may have contained marijuana.

(Dec. 31, 1969)

Standing alone, the defendant’s statement that a plastic bag in his car contained “cigar guts” did not establish probable cause to search the defendant’s vehicle. Although the officer testified that gutted cigars had become a popular means of consuming controlled substances, that evidence established a link between hollowed out cigars and marijuana, not between loose tobacco and marijuana. There was no evidence that the defendant was stopped in a drug-ridden area, at an unusual time of day, or that the officer had any basis, apart from the defendant’s statements, for believing that the defendant possessed marijuana.

Arrest, Search, and Investigation > Searches > Of Vehicles > Pursuant to Search of Premises

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Of Vehicles > With GPS Devices

(Dec. 31, 1969)

The government’s installation of a GPS tracking device on a vehicle and its use of that device to monitor the vehicle’s movements on public streets constitutes a “search” within the meaning of the Fourth Amendment. Suspecting that the defendant was involved in drug trafficking, the government obtained a search warrant for use of a GPS device on the defendant’s vehicle; the warrant authorized officers to install the device in the District of Columbia within 10 days. Officers ended up installing the device on the undercarriage of the vehicle while it was parked in a public parking lot in Maryland, 11 days after the warrant was signed. Over the next 28 days, the government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a government computer. It relayed more than 2,000 pages of data over the 4-week period. The defendant was charged with several drug offenses. He unsuccessfully sought to suppress the evidence obtained through the GPS device. Before the U.S. Supreme Court the government conceded noncompliance with the warrant and argued only that a warrant was not required for the GPS device. Concluding that the evidence should have been suppressed, the Court characterized the government’s conduct as having “physically occupied private property for the purpose of obtaining information.” So characterized, the Court had “no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” The Court declined to address whether the defendant had a reasonable expectation of privacy in the undercarriage of his car and in the car’s locations on the public roads, concluding that such an analysis was not required when the intrusion—as here—“encroached on a protected area.”

(Dec. 31, 1969)

In this Wake County case, evidence of the defendant’s crimes was obtained using a GPS tracking device installed, pursuant to a court order, on a car owned by Sherry Harris and driven by Ronald Lee Evans. Evans was the target of the investigation. When officers intercepted the vehicle as it returned from a trip to New York, the defendant was driving and Evans was a passenger. After an initial mistrial, the defendant ultimately pled guilty to attempted trafficking heroin by possession and trafficking heroin by transportation, but preserved his right to appeal the trial court’s denial of his motion to suppress evidence obtained as a result of the GPS device.

The Court of Appeals concluded that the defendant did not have standing to challenge use of the GPS device. Under the common law trespass theory of a search, a search happens when government agents intrude into a constitutionally protected area to obtain information. Here, the defendant offered no evidence that he possessed the car to which the GPS device was attached such that any trespass by the government violated his rights as opposed to the rights of the owner (Harris) or usual driver (Evans). Likewise under a reasonable expectation of privacy theory, the defendant could not show that he had a reasonable expectation of privacy in his movements in someone else’s car on a public thoroughfare. To the contrary, the Court said, “[f]or the Defendant, the [car] was a vehicle for a trip to conduct a heroin transaction. Defendant did not have a reasonable expectation of privacy to confer standing to challenge the court order issue on probable cause.” Slip op. ¶ 30.

Arrest, Search, and Investigation > Searches > Of Vehicles > Other Warrantless Searches of Vehicles

(Dec. 31, 1969)

The discovery of marijuana on a passenger provided probable cause to search a vehicle. After stopping the defendant and determining that the defendant had a revoked license, the officer told the defendant that the officer’s K-9 dog would walk around the vehicle. At that point, the defendant indicated that his passenger had a marijuana cigarette, which she removed from her pants. The officer then searched the car and found marijuana in the trunk.

Arrest, Search, and Investigation > Searches > Community Caretaking, as Justification for Warrantless Search

(Dec. 31, 1969)

In this case involving a welfare check that resulted in officers entering petitioner Caniglia’s home without a warrant and seizing his firearms, the court held that its decision in Cady v. Dombrowski, 413 U.S. 433 (1973) upholding as reasonable a “caretaking search” of an impounded vehicle for a firearm did not create a standalone doctrine that justifies warrantless searches and seizures in the home. Following an argument where Caniglia put a gun on a table and told his wife to shoot him, officers accompanied his wife to their shared home to assess his welfare. During that visit, Caniglia agreed to be taken for a mental health evaluation and officers entered his home to confiscate two pistols against his expressly stated wishes. Caniglia later sued, alleging that officers violated his Fourth Amendment rights by the warrantless seizure of him and his pistols. The First Circuit affirmed summary judgment for the officers solely on the basis that the seizures fell within a freestanding “community caretaking exception” to the warrant requirement it extrapolated from Cady. Writing for a unanimous court, Justice Thomas noted Cady’s “unmistakable distinction between vehicles and homes” and the Court’s repeated refusal to expand the scope of exceptions to the warrant requirement in the context of searches and seizures in homes. Finding that the First Circuit’s recognition of a freestanding community caretaking exception to the warrant requirement went “beyond anything this Court has recognized,” the Court vacated the judgment below and remanded for further proceedings.

Chief Justice Roberts, joined by Justice Breyer, concurred by noting that the Court’s opinion was not contrary to the exigent circumstances doctrine. Justice Alito concurred by noting his view that the Court correctly had rejected a special Fourth Amendment rule for a broad category of cases involving “community caretaking” but had not settled difficult questions about the parameters of all searches and seizures conducted for “non-law-enforcement purposes.” Justice Kavanaugh concurred and elaborated on his observations of the applicability of the exigent circumstances doctrine in cases where officers enter homes without warrants to assist persons in need of aid.

Arrest, Search, and Investigation > Searches > Computerized Devices

(Dec. 31, 1969)

The Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements. Police officers arrested four men suspected of robbing Radio Shack and TMobile stores in Detroit. One of the men confessed to a series of robberies in Michigan and Ohio, identified 15 accomplices, and gave law enforcement some of their cell phone numbers. Based on this information, prosecutors applied for court orders under the Stored Communications Act (SCA) to obtain cell phone records for defendant Timothy Carpenter. The SCA permits the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” Federal Magistrate Judges issued two orders directing Carpenter’s wireless carriers—MetroPCS and Sprint—to disclose “cell/site sector [information] for [Carpenter’s] telephone[ ] at call origination and at call termination for incoming and outgoing calls” during the four-month period when the string of robberies occurred. The first order sought 152 days of cell-site records from MetroPCS, which produced records spanning 127 days. The second order requested seven days of CSLI from Sprint, which produced two days of records covering the period when Carpenter’s phone was “roaming” in northeastern Ohio. Altogether the Government obtained 12,898 location points cataloging Carpenter’s movements—an average of 101 data points per day.

Carpenter was charged with six counts of robbery and six counts of carrying a firearm during a federal crime of violence. He moved to suppress the cell-site data provided by the wireless carriers, arguing that the Government’s seizure of the records violated the Fourth Amendment because they had been obtained without a warrant supported by probable cause. The District Court denied the motion. At trial FBI agent Christopher Hess offered expert testimony about the cell-site data. Hess explained that each time a cell phone taps into the wireless network, the carrier logs a time-stamped record of the cell site and particular sector that were used. With this information, Hess produced maps that placed Carpenter’s phone near four of the charged robberies. Carpenter was convicted on all but one count. After an unsuccessful appeal to the Sixth Circuit, the Supreme Court agreed to take the case.

The Court began by noting that for many years Fourth Amendment search doctrine was “tied to common-law trespass” and focused on whether the Government “obtains information by physically intruding on a constitutionally protected area.” But, in Katz v. United States, 389 U.S. 347, 351 (1967), the Court established that “the Fourth Amendment protects people, not places,” and expanded its conception of the Amendment to protect certain expectations of privacy as well. It explained: “When an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.” (quotations omitted).

The Court noted that the digital data at issue in this case does not fit neatly under existing precedents. Instead, requests for cell-site records lie at the intersection of two lines of cases. The first set of cases addresses a person’s expectation of privacy in his physical location and movements, including United States v. Knotts, 460 U. S. 276 (1983) (monitoring a beeper signal in a container in an automobile on public highways did not violate the Fourth Amendment), and United States v. Jones, 565 U.S. 400 (2012)(the government’s installation of a GPS tracking device on a vehicle and its use of that device to monitor the vehicle’s movements on public streets constitutes a search within the meaning of the Fourth Amendment). In the second set of cases, including Smith v. Maryland, 442 U.S. 735 (1979),and United States v. Miller, 425 U.S. 435 (1976), the Court applied the “third-party doctrine” and has drawn a line between what a person keeps to himself and what he shares with others, holding that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Against this review, the Court presented the issue as follows:

The question we confront today is how to apply the Fourth Amendment to a new phenomenon: the ability to chronicle a person’s past movements through the record of his cell phone signals. Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones. Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.

At the same time, the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller. But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records. After all, when Smith was decided in 1979, few could have imagined a society in which a phone goes wherever its owner goes, conveying to the wireless carrier not just dialed digits, but a detailed and comprehensive record of the person’s movements

It held:

We decline to extend Smith and Miller to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search.

The Court characterized its decision as “a narrow one,” noting:

We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval). We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras. Nor do we address other business records that might incidentally reveal location information. Further, our opinion does not consider other collection techniques involving foreign affairs or national security.

Having found that the acquisition of Carpenter’s CSLI was a search, the Court went on to conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records. It noted that the showing required in the SCA “falls well short of the probable cause required for a warrant.” Thus, an order issued under the SCA “is not a permissible mechanism for accessing historical cell-site records. Before compelling a wireless carrier to turn over a subscriber’s CSLI, the Government’s obligation is a familiar one—get a warrant.” The Court continued, noting that while the Government will generally need a warrant to access CSLI, case-specific exceptions may support a warrantless search of an individual’s cellsite records, such as exigent circumstances.

(Dec. 31, 1969)

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.

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Private Search Exception

Arrest, Search, and Investigation > Searches > Reasonable Expectation of Privacy

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Pen Registers

(Dec. 31, 1969)

The trial court properly issued an order authorizing a pen register for the defendant’s phone. The order was issued pursuant to the Stored Communications Act (SCA). The SCA requires only reasonable suspicion for issuance of an order for disclosure. The order in question was based on information provided by a known drug dealer informant, Oliver. The court found that there were “multiple indications of reliability” of Oliver’s statements, including that he made substantial admissions against his penal interest. Also, Oliver provided a nickname, general description of the defendant, background information from dealing with him previously, and current travel information of the suspect. Oliver spoke with the officer, and the two spoke more than once, adding to the reliability of his tip. These facts met the standard under the SCA.

Arrest, Search, and Investigation > Searches > Cell Site Location Information

(Dec. 31, 1969)

In this drug case, no fourth amendment violation occurred when law enforcement officers obtained the defendant’s cell cite location information (CSLI) from his service provider, AT&T, without a warrant based on probable cause. The court noted that while courts have held that “real time” CSLI may be obtained only pursuant to a warrant supported by probable cause, the Stored Communications Act (SCA) allows for access to “historical” information upon a lesser showing. It continued: “The distinguishing characteristic separating historical records from “real-time” information is the former shows where the cell phone has been located at some point in the past, whereas the latter shows where the phone is presently located through the use of GPS or precision location data.” The court concluded that the CSLI at issue was historical information:

[Officers] followed Defendant’s historical travel by entering the coordinates of cell tower “pings” provided by AT&T into a Google Maps search engine to determine the physical location of the last tower “pinged.” Defendant’s cell phone was never contacted, “pinged,” or its precise location directly tracked by the officers. The officers did not interact with Defendant’s cell phone, nor was any of the information received either directly from the cell phone or in “real time.” All evidence shows the cell tower site location information provided by AT&T was historical stored third-party records and properly disclosed under the court’s order as expressly provided in the SCA.

The court found it significant that an officer testified that there was a 5- to 7-minute delay in the CSLI that he received from AT&T. The court went on to conclude that retrieval of the “historical” information was not a search under the fourth amendment. Noting that the U.S. Supreme Court has not decided whether “historical” CSLI raises a fourth amendment issue, the question is one of first impression North Carolina. The court distinguished the U.S. Supreme Court’s recent decision in United States v. Jones, 132 S. Ct. 945 (2012) (the government’s installation of a GPS tracking device on a vehicle and its use of that device to monitor the vehicle’s movements on public streets constitutes a “search” within the meaning of the Fourth Amendment)in three respects. First, unlike in Jones, here, there was no physical trespass on the defendant’s property. Second, the tracking in question here was not “real-time” the court reiterated: “officers only received the coordinates of historical cell tower ‘pings’ after they had been recorded and stored by AT&T, a third party.” Third, the trespass in Jones was not authorized by a warrant or a court order of any kind whereas here a court order was entered. And, “[m]ost importantly,” Jones did not rely on the third-party doctrine. Citing decisions from the Third, Fifth and Eleventh Circuits, the court held that obtaining the CSLI did not constitute a search under the fourth amendment. The court distinguished the recent Fourth Circuit opinion in United States v. Graham, on grounds that in that case the government obtained the defendant’s historical CSLI for an extended period of time. Here, only two days of information were at issue. The court rejected the Graham court’s conclusion that the third-party doctrine did not apply to CSLI information because the defendants did not voluntarily disclose it to their service providers. The court continued, concluding that even if it were to find that a search warrant based on probable cause was required, the good faith exception would apply.

One judge concurred in the final disposition but disagreed with the majority’s characterization of the information as historical rather than real-time. That judge “believe[d that] allowing the majority’s characterization of the information provided by AT&T to law enforcement, based on the facts in this case, would effectively obliterate the distinction between ‘historical’ and ‘real-time’ cell site information.” However, she agreed that the good faith exception applied.

(Dec. 31, 1969)

The defendant in this case pleaded guilty to manslaughter and armed robbery, while preserving his right to appeal the denial of his motion to suppress historical cell site location information (“CSLI”) that the state obtained without a search warrant. Evidence at the suppression hearing showed that police responded to a homicide and learned that a white Altima was seen leaving the scene. Officers soon located and boxed in the car but the driver fled on foot, discarding a bloody handgun as he ran. Inside the car officers found drugs, a gun, and a blood-covered cell phone belonging to the defendant. Officers applied for a court order to obtain the records of the phone, including five days of CSLI from around the time of the homicide. The application was sworn under oath and supported by affidavit, and the order was issued based on a finding of probable cause. The phone records revealed the defendant was in the area of the shooting at the time it occurred, and near the location of the white Altima when it was abandoned. The defendant moved to suppress the records on the basis that they were not obtained pursuant to a search warrant based on probable cause, violating his state and federal constitutional rights. The trial court denied the motion, finding that the court order in this case was the equivalent of a search warrant supported by probable cause. Upon review, the Court of Appeals affirmed the trial court’s ruling.

The court first addressed defendant’s federal constitutional claim. Citing Carpenter v. United States, 201 L.Ed.2d 507 (2018), the appellate court agreed that obtaining historical CSLI constituted a search, which requires a warrant supported by probable cause. A court order issued pursuant to the Stored Communications Act (“SCA”) based only on “reasonable grounds” to believe the records would be “relevant and material” to the investigation would not satisfy that standard. However, the order in this case was obtained two years before Carpenter was decided, and it was issued in compliance with the law at that time. Therefore, as in Carpenter, “even assuming law enforcement did conduct a warrantless search in violation of defendant’s Fourth Amendment rights, the federal good faith exception to the exclusionary rule would apply.”

Turning to the state constitutional claim, and noting that the state right at issue must be interpreted at least as broadly as the federal right, the court held that “a warrantless search of historical CSLI constitutes an unreasonable search in violation of a defendant’s rights under the North Carolina Constitution as well.” But after reviewing the statutory requirements for a search warrant and the probable cause standard, the court concluded that the order in this case did satisfy the warrant requirement. First, although it was denominated a court order rather than a warrant, it nevertheless “contained all of the information required in a search warrant” such as the applicant’s name, sworn allegations of fact to support the applicant’s belief, and a request to produce the records. Second, although a court order issued under the SCA is only required to meet a “reasonable grounds” standard akin to reasonable suspicion, the order in this case was actually based upon a finding that there was “Probable Cause that the information sought is relevant and material to an ongoing criminal investigation, involving a First Degree Murder.” That finding of probable cause was “a significant distinction which compels a different outcome than that of Carpenter. Accordingly, because the trial court determined there was probable cause to search defendant’s historical CSLI, the requirements for a warrant were met and defendant’s constitutional rights were not violated.” Since it held that the warrant requirement was met, the majority declined to address whether a good faith exception could have applied under state law.

In a partial concurrence, Judge Dillon disagreed with the majority’s holding that the court order in this case was the equivalent of a search warrant. In his view, the application failed to provide a sufficient basis for finding probable cause to believe that evidence of a crime would be discovered in the particular place to be searched. However, he concurred in the result on the grounds that both the federal and state constitutional claims were refuted by the good faith exception. He would have held that North Carolina does have a good faith exception, pursuant to the 2011 amendment to G.S. 15A-974, which provides legislative authority for the exception that was lacking when State v. Carter, 322 N.C. 709 (1988) was decided. Alternatively, pursuant to state case law, he would have held that obtaining historical CSLI did not constitute a “search” for state constitutional purposes.

Arrest, Search, and Investigation > Searches > Administrative Inspections

(Dec. 31, 1969)

(1) In this case where a group of motel owners and a lodging association challenged a provision of the Los Angeles Municipal Code (LAMC) requiring motel owners to turn over to the police hotel registry information, the Court held that facial challenges under the Fourth Amendment are not categorically barred. With respect to the relevant LAMC provisions, §41.49 requires hotel operators to record information about their guests, including: the guest’s name and address; the number of people in each guest’s party; the make, model, and license plate number of any guest’s vehicle parked on hotel property; the guest’s date and time of arrival and scheduled departure date; the room number assigned to the guest; the rate charged and amount collected for the room; and the method of payment. Guests without reservations, those who pay for their rooms with cash, and any guests who rent a room for less than 12 hours must present photographic identification at the time of check-in, and hotel operators are required to record the number and expiration date of that document. For those guests who check in using an electronic kiosk, the hotel’s records must also contain the guest’s credit card information. This information can be maintained in either electronic or paper form, but it must be “kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent” thereto for a period of 90 days. LAMC section 41.49(3)(a) states, in pertinent part, that hotel guest records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” A hotel operator’s failure to make his or her guest records available for police inspection is a misdemeanor punishable by up to six months in jail and a $1,000 fine. The respondents brought a facial challenge to §41.49(3)(a) on Fourth Amendment grounds, seeking declaratory and injunctive relief. As noted, the Court held that facial challenges under the Fourth Amendment are not barred. (2) Turning to the merits of the claim, the Court held that the challenged portion on the LAMC is facially unconstitutional because it fails to provide hotel operators with an opportunity for precompliance review. The Court reasoned, in part:

[A]bsent consent, exigent circumstances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. And, we see no reason why this minimal requirement is inapplicable here. While the Court has never attempted to prescribe the exact form an opportunity for precompliance review must take, the City does not even attempt to argue that §41.49(3)(a) affords hotel operators any opportunity whatsoever. Section 41.49(3)(a) is, therefore, facially invalid. (citations omitted)

Clarifying the scope of its holding, the Court continued, “As they often do, hotel operators remain free to consent to searches of their registries and police can compel them to turn them over if they have a proper administrative warrant—including one that was issued ex parte—or if some other exception to the warrant requirement applies, including exigent circumstances.” The Court went on to reject Justice Scalia’s suggestion that hotels are “closely regulated” and that the ordinance is facially valid under the more relaxed standard that applies to searches of that category of businesses.

Arrest, Search, and Investigation > Searches > Jail Searches

(Dec. 31, 1969)

Reasonable suspicion is not required for a close visual inspection of arrestees who will be held in the general population of a detention facility. The petitioner was arrested and taken to the Burlington County Detention Center. Burlington County jail procedures required every arrestee to shower with a delousing agent. Officers would check arrestees for scars, marks, gang tattoos, and contraband as they disrobed. Petitioner claims he was also instructed to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. The petitioner was later transferred to the Essex County Correctional Facility. At that facility all arriving detainees passed through a metal detector and waited in a group holding cell for a more thorough search. When they left the holding cell, they were instructed to remove their clothing while an officer looked for body markings, wounds, and contraband. Without touching the detainees, an officer looked at their ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings. Petitioner alleges he was required to lift his genitals, turn around, and cough in a squatting position. After a mandatory shower, during which his clothes were inspected, petitioner was admitted to the facility. He was released the next day. Petitioner filed suit under 42 U.S.C. §1983 arguing that persons arrested for a minor offense could not be required to remove their clothing and expose their private areas to close visual inspection as a routine part of the intake process. Rather, he contended, officials could conduct this kind of search only if they had reason to suspect a particular inmate of concealing a weapon, drugs, or other contraband. The district court granted the petitioner’s motion for summary judgment. The Third Circuit reversed. The Court affirmed, stating in part:

The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the more invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Petitioner has not met this standard, and the record provides full justifications for the procedures used.

Slip op. at 9-10 (citation omitted). The Court noted that correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process to identify disease, gang affiliation, and locate contraband. The Court rejected the petitioner’s assertion that certain detainees, such as those arrested for minor offenses, should be exempt from this process unless they give officers a particular reason to suspect them of hiding contraband. It concluded: “It is reasonable, however, for correctional officials to conclude this standard would be unworkable. The record provides evidence that the seriousness of an offense is a poor predictor of who has contraband and that it would be difficult in practice to determine whether individual detainees fall within the proposed exemption.” Slip op. at 14.

Arrest, Search, and Investigation > Searches > Of Probationers & their Premises

(Dec. 31, 1969)

In this Macon County case, defendant appealed after entering a guilty plea to trafficking in opiates/heroin and marijuana, arguing the trial court erred by denying his motion to suppress the evidence obtained during a warrantless search of his residence. The Court of Appeals affirmed the denial of defendant’s motion.

Beginning in September of 2017, defendant’s live-in girlfriend was on supervised probation, which included conditions that she submit to warrantless searches of her home and that she not use, possess or control any illegal drug or controlled substance. During her probation, probation officers repeatedly found defendant’s girlfriend with pills and evidence of drug use. In August of 2018, the girlfriend screened positive for cocaine, THC, and opiates. After the positive screening, probation officers decided to search her vehicle, finding additional pills, and subsequently decided to search her residence, which was defendant’s home. Officers smelled marijuana in the residence; after establishing the existence of marijuana in the home, the officers obtained a search warrant for the entire premises, finding drug paraphernalia, opiates, sealed bags of marijuana, and $42,594 in cash. After the trial court denied defendant’s motion to suppress, defendant pleaded guilty to the charges, reserving his right to appeal.

On appeal, the court considered three questions: (1) whether the probation officers properly concluded that defendant’s home was his girlfriend’s residence; (2) did probable cause exist to support the issuance of a search warrant when details from the girlfriend were included without proper evaluation of her reliability as a witness; and (3) was the warrantless search of defendant’s home directly related to the purposes of defendant’s girlfriend’s supervised probation, as required by G.S. § 15A-1343(b)(13)? Rejecting defendant’s argument in (1), the court explained that, although the record suggested that defendant’s girlfriend had moved out on July 24, 2018, an officer observed her back in defendant’s yard on July 29, 2018, and the girlfriend confirmed her address as defendant’s residence on August 8, 2018. Additionally, defendant did not object that his girlfriend had moved out when probation officers arrived to perform a warrantless search on August 15, 2018, something a reasonable person would have done if defendant’s home was not her residence. Slip Op. at 17.

Reviewing (2), the court explained that the detective who prepared the affidavit for the search warrant included his own observations and experience in law enforcement related to narcotics investigations. The court also pointed out that the trial court “identified [defendant’s girlfriend’s] statements as hearsay” and found her credibility “highly questionable” for purposes of the affidavit. Id. at 24. Despite this, the testimony of the officers involved supported the issuance of the search warrant, and the trial court did not give undue weight to defendant’s girlfriend’s statements.

Turning finally to (3), the court examined State v. Powell, 253 N.C. App. 590 (2017), and recent changes to G.S. § 15A-1343(b)(13) requiring a search of a residence by a probation officer to be “directly related to the probation supervision.” Slip Op. at 25-26. The court drew a contrast between Powell, explaining that in the current matter, defendant’s girlfriend failed a drug test screening and was found in possession of narcotics on her person and in her vehicle, activity that was directly related to violations of her probation, and it was these actions that led to the screening. Id. at 28. Despite the presence of other law enforcement at the scene, the court found that “[a]lthough the search may have served two purposes, (1) to further the supervisory goals of probation, and (2) to investigate other potential criminal behavior . . . the dual purpose of the search did not make the search unlawful under [G.S. § 15A-]1343(b)(13).” Id. at 29.

(Dec. 31, 1969)

The defendant was on probation for a conviction of possession of a firearm by a convicted felon, and he was classified by his probation officer as “extreme high risk” for supervision purposes. Officers from several law enforcement agencies, working in conjunction with probation officers, conducted warrantless searches of the residences of high risk probationers in the county, including the defendant. Officers found drugs and paraphernalia during the search of defendant’s residence, and he was charged with several drug-related felonies. The defendant moved to suppress the evidence from the warrantless search, arguing that it was illegal because it was not “directly related” to his probation supervision, as required by G.S. 15A-1343(b)(13). The appellate court disagreed and affirmed the denial of the defendant’s suppression motion. The facts of this case were distinguishable from State v. Powell, __ N.C. App. __, 800 S.E.2d 745 (2017). In Powell, a U.S. Marshals task force conducted warrantless searches of random probationer’s homes as part of an ongoing operation for its own purposes and did not even notify the probation office. The Powell court held that those warrantless searches were not “directly related” to probation supervision. By contrast, the defendant in this case was selected for the enforcement action by his probation officer based on “his risk assessment, suspected gang affiliation, and positive drug screen,” and the “purpose of the search was to give the added scrutiny and closer supervision required of ‘high risk’ probationers such as the Defendant.” The search was therefore directly related to his supervision.

(Dec. 31, 1969)

Because the State failed to meet its burden of demonstrating that a warrantless search was authorized by G.S. 15A-1343(b)(13), the trial court erred by denying the defendant’s motion to suppress. The defendant was subjected to the regular condition of probation under G.S. 15A-1343(b)(13). This provision requires that the probationer “Submit at reasonable times to warrantless searches by a probation officer of the probationer's person and of the probationer's vehicle and premises while the probationer is present, for purposes directly related to the probation supervision . . . .” Here, the search of the defendant’s home occurred as part of an ongoing operation of a US Marshal’s Service task force. The court noted that while prior case law makes clear that the presence or participation of law enforcement officers does not, by itself, render a warrantless search under the statute unlawful, the State must meet its burden of satisfying the “purpose” element of the statute. The State failed to meet its burden here. To conclude otherwise would require the court to read the phrase “for purposes directly related to the probation supervision” out of the statute. The court emphasized however that its opinion should not be read as diminishing the authority of probation officers to conduct warrantless searches of probationers’ homes or to utilize the assistance of law enforcement officers in conducting such searches. Rather, it held that on the specific facts of this case the State failed to meet its burden of demonstrating that the search was authorized under the statute.

Arrest, Search, and Investigation > Searches > Knock and Talk

(Dec. 31, 1969)

Arrest, Search, and Investigation > Searches > Government Employer Searches

(Dec. 31, 1969)

Because a search of a government employee’s text messages sent and received on a government-issued pager was reasonable, there was no violation of Fourth Amendment rights.

Arrest, Search, and Investigation > Standing > To Challenge Stop of Vehicle

(Dec. 31, 1969)

A passenger has standing to challenge a stop of a vehicle in which the passenger was riding.

(Dec. 31, 1969)

As a passenger in a vehicle that was stopped, the defendant had standing to challenge the stop.

(Dec. 31, 1969)

A passenger in a vehicle that has been stopped by the police has standing to challenge the constitutionality of the vehicle stop.

Arrest, Search, and Investigation > Standing > To Challenge Search of Premises

(Dec. 31, 1969) , ___ N.C. App. ___, 2022 NCCOA 215 2022-04-05 temp. stay granted, ___ N.C. ___, 871 S.E.2d 101 (Apr 21 2022)

Arrest, Search, and Investigation > Search Warrants > Probable Cause Insufficient

Arrest, Search, and Investigation > Searches > Consent Searches > Voluntariness of Consent

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

(Dec. 31, 1969)

Where the defendant had no ownership or possessory interest in the warehouse that was searched, he had no standing to challenge the search on Fourth Amendment grounds.

Arrest, Search, and Investigation > Standing > To Challenge Search of Vehicle

(Dec. 31, 1969)

The defendant had no standing to challenge a search of a vehicle when he was a passenger, did not own the vehicle, and asserted no possessory interest in it or its contents.

Arrest, Search, and Investigation > Standing > Regarding Telephone Records

(Dec. 31, 1969)

The defendant did not have standing to assert a Fourth Amendment violation regarding cellular telephone records where there was no evidence that the defendant had an ownership interest in the telephones or had been given a possessory interest by the legal owner of the telephones. Mere possession of the telephones was insufficient to establish standing.

Arrest, Search, and Investigation > Standing > Waiver

(Dec. 31, 1969)

By telling the officer that he had to ask the passenger for permission to search the vehicle, the defendant-driver waived any standing that he might have had to challenge the passenger’s consent to the search.

Arrest, Search, and Investigation > State Actor Cases

(Dec. 31, 1969)

In granting the defendant’s motion to suppress in a DWI case, the trial court erred by concluding that a licensed security officer was a state actor when he stopped the defendant’s vehicle. Determining whether a private citizen is a state actor requires consideration of the totality of the circumstances, with special consideration of the citizen's motivation for the search or seizure; the degree of governmental involvement, such as advice, encouragement, and knowledge about the nature of the citizen’s activities; and the legality of the conduct encouraged by the police. Importantly, the court noted, once a private search or seizure has been completed, later involvement of government agents does not transform the original intrusion into a governmental search. In the alternative, the court held that even if the security officer was a state actor, reasonable suspicion existed for the stop. Separately, the court found that a number of the trial court’s factual findings were not supported by the record.

(Dec. 31, 1969) review granted, 367 N.C. 483 (Jun 12 2014)

(1) A seizure occurred when the defendant stopped her vehicle after a fire truck following behind her flashed its red lights and activated its siren. The fireman took this action after observing the defendant, among other things, weave out of her lane of traffic and almost hit a passing bus. (2) The court remanded to the trial court for findings of fact and conclusions of law regarding whether the fireman was acting as a state agent or a private person when the seizure occurred. (3) Whether the fireman lacked the statutory authority to stop the defendant’s vehicle is irrelevant to whether the stop violated the Fourth Amendment. The court noted that the US Supreme Court has consistently applied traditional standards of reasonableness to searches or seizures effectuated by government actors who lack state law authority to act as law enforcement officers. Thus, if on remand the trial court determines that the fireman was a government actor, it should then determine whether the stop was constitutionally permissible. (4) The trial court erred by holding that the fireman’s stop was justified under G.S. 15A-404, which allows for a citizen’s arrest when there is probable cause that certain crimes have been committed. Although reasonable suspicion may have supported a stop in this case, the evidence did not support a finding of probable cause. (5) If on remand the trial court finds that the stop was illegal, it should address whether evidence stemming from the defendant’s later arrest by the police is admissible under the inevitable discovery and independent source doctrines. One judge concurred in part and dissented in part. This judge concurred with the conclusion that that stop was a seizure and that the fireman was not authorized to stop the defendant under G.S. 15A-404. He dissented however because he found that the fireman was a state actor and that the stop violated the NC Constitution.

(Dec. 31, 1969)

The trial court’s admission of photo identification evidence did not violate the defendant’s right to due process. The day after a break-in at her house, one of the victims, a high school student, became upset in school. Her mother was called to school and brought along the student’s sister, who was also present when the crime occurred. After the student told the Principal about the incident, the Principal took the student, her sister and her mother into his office and showed the sisters photographs from the N.C. Sex Offender Registry website to identify the perpetrator. Both youths identified the perpetrator from one of the pictures. The mother then contacted the police and the defendant was eventually arrested. At trial, both youths identified the defendant as the perpetrator in court. The court rejected the defendant’s argument that the Principal acted as an agent of the State when he showed the youths the photos, finding that his actions “were more akin to that of a parent, friend, or other concerned citizen offering to help the victim of a crime.” Because the Principal was not a state actor when he presented the photographs, the defendant’s due process rights were not implicated in the identification. Even if the Principal was a state actor and the procedure used was unnecessarily suggestive, the procedure did not give rise to a substantial likelihood of irreparable misidentification given the circumstances of the identification. Finally, because the photo identification evidence was properly admitted, the trial court also properly admitted the in-court identifications of defendant.

Arrest, Search, and Investigation > Telephone Records

(Dec. 31, 1969)

Even if the State did not fully comply with 18 U.S.C. § 2703(d) of the Stored Communications Act, which governs disclosure of customer communications or records, there is no suppression remedy for a violation; the statute only provides for a civil remedy.

Arrest, Search, and Investigation > Vienna Convention

(Dec. 31, 1969)

A violation of the Vienna Convention on Consular Relations (requiring notification to arrested foreign national of right to have consul of national’s country notified of arrest) does not require suppression of a confession.

Arrest, Search, and Investigation > Wiretapping

(Dec. 31, 1969)

Police department did not act “willfully” within the meaning of the North Carolina Electronic Surveillance Act (NCESA) by monitoring an officer’s conversations in his patrol car in response to information that the officer was engaging in misconduct. As used in the NCESA, the term requires that the act be done with a bad purpose or without justifiable excuse. Where, as here, the monitoring is done to ensure public safety, it is not done with a bad purpose or without justifiable excuse.

Criminal Offenses > States of Mind > General Intent & Specific Intent Crimes

(Dec. 31, 1969)

Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Drug Offenses > Drug Name

(Dec. 31, 1969)

In a discharging a barreled weapon into occupied property case, the trial court did not err by instructing the jury that because the crime was a general intent crime, the State need not prove that the defendant intentionally discharged the firearm into occupied property, and that it needed only prove that he intentionally discharged the firearm.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s request for a diminished capacity instruction with respect to a charge of discharging a firearm into occupied property that served as a felony for purposes of a felony-murder conviction. Because discharging a firearm into occupied property is a general intent crime, diminished capacity offers no defense.

Criminal Offenses > States of Mind > Transferred Intent

(Dec. 31, 1969)

Criminal Procedure > Jury Instructions > Specific Instructions > Self-Defense

Defenses > Self-Defense

(Dec. 31, 1969)

There was sufficient evidence of premeditation and deliberation when, after having a confrontation with an individual named Thomas, the defendant happened upon Thomas and without provocation began firing at him, resulting in the death of the victim, an innocent bystander. Citing the doctrine of transferred intent, the court noted that “malice or intent follows the bullet.”

(Dec. 31, 1969)

The doctrine of transferred intent permits the conviction of a defendant for discharging a weapon into occupied property when the defendant intended to shoot a person but instead shot into property that he or she knew was occupied.

(Dec. 31, 1969)

An instruction on transferred intent was proper in connection with a charge of attempted first-degree murder of victim B where the evidence showed that B was injured during the defendant’s attack on victim A, undertaken with a specific intent to kill A.

Criminal Offenses > States of Mind > Strict Liability

(Dec. 31, 1969)

Criminal Procedure > Jury Instructions > Miscellaneous Issues

(Dec. 31, 1969) rev’d on other grounds, 369 N.C. 658 (Jun 9 2017)

G.S. 90-95(d1)(1)(c) (possession of pseudoephedrine by person previously convicted of possessing methamphetamine is a Class H felony) is a strict liability offense.

Criminal Offenses > Human Trafficking and Related Offenses

(Dec. 31, 1969)

In this Alamance County case, defendant appealed his convictions for human trafficking and sexual servitude regarding his ex-wife, arguing error in the denial of his motion to dismiss for insufficient evidence. The Court of Appeals found no error.

From 2015 to 2018, defendant operated a prostitution ring in the Alamance County area, operating at truck stops and using websites such as backpage.com to solicit customers. Eight to twelve women were involved in defendant’s prostitution ring, and paid him for drugs and hotel rooms that he provided, which were to be used for liaisons with paying customers. One of the women involved in the prostitution ring was defendant’s ex-wife, who assisted him in doing whatever was needed to operate the prostitution ring. After several incidents with law enforcement, defendant was arrested and charged with several counts of human trafficking, sexual servitude, and promoting prostitution. Another prostitute that worked with defendant was also charged and reached a plea agreement after agreeing to testify for the state.

Reviewing defendant’s appeal, the court found ample evidence to support the denial of defendant’s motion to dismiss. Defendant argued that there was insufficient evidence showing he held his wife in sexual servitude or trafficked her. The court pointed to evidence showing that defendant arranged for and transported his ex-wife to a truck stop on at least one occasion in 2017 for prostitution, including evidence showing his name on a business card used by the caller requesting a prostitute. Evidence also showed that defendant sold drugs to his ex-wife and provided her with a room at the hotel where he provided rooms to the other prostitutes he managed. Based on this evidence in the record, the court found no error in dismissing defendant’s motion. Although the court noted that some evidence supported the conclusion that the ex-wife may have been involved in the management of the prostitution ring, the court explained that “[c]ontradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve.” Slip Op. at 12-13, quoting State v. Scott, 356 N.C. 591, 596 (2002).

(Dec. 31, 1969) review granted, ___ N.C. ___, 871 S.E.2d 511 (May 4 2022)

Criminal Procedure > Counsel Issues > Right to Proceed Pro Se/Termination of Right

Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Human Trafficking and Related Offenses

Criminal Offenses > Participants in Crime > Generally

(Dec. 31, 1969)

(1) The trial court did not err by instructing the jury that it could find the defendant guilty of second-degree burglary under a theory of accessory before the fact, aiding and abetting, or acting in concert. The separate theories were not separate offenses, but rather merely different methods by which the jury could find the defendant guilty. (2) By enacting G.S. 14-5.2 the General Assembly did not abolish the theory of accessory before the fact; the statute merely abolished the distinction between an accessory before the fact and a principal, meaning that a person who is found guilty as an accessory before the fact should be convicted as a principal to the crime.

Criminal Offenses > Participants in Crime > Acting in Concert

(Dec. 31, 1969)

Criminal Procedure > Jury Instructions > Specific Instructions > Acting in Concert

In a divided opinion, the court of appeals determined that the instruction was proper as it was supported by the evidence. The defendant appealed to the North Carolina Supreme Court.

(Dec. 31, 1969)

Criminal Offenses > Sexual Assaults & Related Offenses > Sexual Offense > Penetration

In this juvenile case, the trial court erred by denying the respondent’s motions to dismiss charges of second-degree sexual exploitation of a minor and first-degree forcible sexual offense but did not err by accepting his admission of attempted larceny in an incident unrelated to the alleged sex crimes.

The State relied on an acting in concert theory in proceeding against the respondent on the second-degree sexual exploitation of a minor charge because all testimony was that a person other than the respondent made a video recording of the respondent apparently engaging in non-consensual sexual contact with the victim. The court reviewed the evidence presented at trial and found it insufficient to show that the respondent and the person who recorded the video acted with a common plan or scheme to make the recording. The court stated that the evidence showed that the respondent “did not wish to be recorded and that [the other person’s] decision to record the incident was of his own volition.”

The evidence of penetration was insufficient to support the first-degree forcible sexual offense charge allegedly based on anal intercourse as the victim unambiguously and explicitly denied that anal penetration occurred and the State did not present sufficient other evidence corroborating the allegation of penetration. The court rejected the State’s argument that a witness’s description of the incident as the respondent and the victim “doing it” was sufficient evidence of penetration and noted that at the adjudicatory hearing the State had conceded “that there was not evidence of penetration.”

There was a sufficient factual basis to support the respondent’s admission to an unrelated charge of attempted misdemeanor larceny of a bicycle where the respondent was found near the crime scene with two people fitting a witness’s description of the suspects, had bolt cutters in his backpack, and denied committing but expressed some knowledge of the larceny to an investigating officer. Though the trial court did not err by accepting the respondent’s admission to attempted misdemeanor larceny, the court could not remand the matter for a new disposition hearing to account for its rulings related to the sufficiency of the evidence of the sex crimes because the trial court’s juvenile jurisdiction terminated when the respondent turned eighteen years old while the appeal was pending.

Justice Newby concurred in part and dissented in part, expressing the view that the evidence was sufficient to support the lesser included offense of attempted first-degree forcible sexual offense and that the matter should be remanded for entry of an amended adjudication for that offense.

(Dec. 31, 1969)

In a capital case involving two perpetrators, the court rejected the defendant’s argument that the State should have been obligated to prove that the defendant himself had the requisite intent. The trial court properly instructed on acting in concert with respect to the murder charge, in accordance with State v. Barnes, 345 N.C. 184 (1998).

(Dec. 31, 1969)

Criminal Offenses > Sexual Exploitation of a Minor & Obscenity

Criminal Procedure > Jury Argument > Incorrect Statement of Law

(Dec. 31, 1969) , ___ N.C. App. ___, 2021-NCCOA-97 2021-04-06

A longstanding feud and several prior altercations culminated in the defendant and an accomplice ambushing two victims as they were driving away from the home of a woman who helped set the victims up. As the victims’ vehicle left the woman’s home and approached an intersection, the accomplice was standing in the middle of the road and began shooting at the driver’s side of the victims’ car. The defendant was also present and shot at the passenger side of the car. The diver of the vehicle was killed, but the passenger survived unharmed. The defendant was identified as a suspect, interviewed, and arrested. In the defendant’s first interview with police, he claimed that he had been at home all day when the murder occurred. In his second interview, the defendant admitted he lied in his first interview and admitted that he was present at the scene and fired at the car, but maintained that he was firing in self-defense and not aiming at the vehicle.

The defendant was charged with first-degree murder of the driver, attempted murder of the passenger, conspiracy to commit first-degree murder of the passenger, and discharging a firearm into an occupied vehicle in operation. Following a jury trial, the defendant was convicted of all charges. The jury found the defendant guilty of murder based on both lying in wait and felony murder, but acquitted as to malice, premeditation, and deliberation. Judgment on the discharging a firearm offense was arrested, and the defendant was sentenced to life in prison.

On appeal, the defendant argued that the evidence at trial was insufficient to support his convictions for murder, attempted murder, or conspiracy. The Court of Appeals disagreed, and held that there was sufficient evidence to support all the charges. Even though the state offered the defendant’s initial exculpatory statement into evidence, that statement was inconsistent with other evidence of the defendant’s guilt, such as his admissions to being at the scene and firing a gun, and forensic evidence that showed he fired 13 shots at the passenger side of the vehicle. The bullet that killed the driver came from the other side of the car, but there was sufficient evidence to show that the defendant and the other shooter were acting in concert and engaged in the felony of discharging a firearm into an occupied vehicle. Evidence cited by the court included the longstanding feud that led to the murder, the close friendship between the defendant and the other shooter, incriminating text messages regarding their plan, the coordinated nature of both the set-up to bring the victims to a specific location and the resulting ambush, and the assailants’ joint flight afterward. Based on all the evidence, a reasonable juror could conclude that the two shooters were lying in wait for the victims, and they were acting in concert when they opened fire on the occupied vehicle. Although the passenger in the vehicle survived, the court held that the evidence was likewise sufficient to find that the defendant and his accomplice intended to murder the passenger, made an agreement to do so, and performed an overt act to carry out that intent, thus supporting the convictions for both attempted murder and conspiracy.

(Dec. 31, 1969)

Evidence > Opinions > Lay Opinions > Surveillance Video/Photographs

(Dec. 31, 1969)

(1) The trial court properly denied the defendant’s motion to dismiss a charge of armed robbery where the evidence showed that he acted in concert with the perpetrator. Although the defendant was not identified as being at the crime scene, it would have been reasonable for the jury to infer that the defendant acted in concert to commit the crime. A crime scene witness saw a car fly by him, hit a speed bump and blow out a tire. The Sheriff’s Department reported a silver car was involved in an armed robbery involving 3 to 4 suspects. An officer testified that less than one minute after receiving the 911 communication, she found the defendant changing a flat tire on his vehicle, along with two other individuals, less than a 1/4 mile from the crime scene. The victim’s debit card--the item stolen in the robbery—was found close to the defendant’s vehicle. Other items identified by the victim—a mask, snubnosed revolver, and red clothing—were located or recovered at or near the defendant’s vehicle.

(2) For similar reasons the court held that the trial court did not commit plain error by instructing the jury on acting in concert.

(Dec. 31, 1969) rev’d on other grounds, ___ N.C. ___, ___ S.E.2d ___ (Jun 5 2020)

In this drug case, the trial court rejected the defendant’s argument that the evidence was insufficient to support an acting in concert instruction. Reviewing the evidence, the court rejected the defendant’s argument that it showed only mere presence.

(Dec. 31, 1969)

(1) In this habitual misdemeanor larceny case, the court rejected the defendant’s argument that the trial court created a fatal variance when it instructed the jury on a theory of acting in concert not alleged in the indictment. Citing prior case law, the court held that the theory of acting in concert need not be alleged in the indictment. (2) The court rejected the defendant’s argument that a fatal variance existed between the indictment, the jury instructions, and the verdict sheets because each held him accountable for stealing a different number of items. Neither the jury instructions nor the verdict sheet were required to specify the number of items stolen. (3) The evidence was sufficient to support the trial court’s instruction on the theory of acting in concert. On appeal, the defendant argued that the State’s evidence was insufficient to show that he and his accomplice acted with a common purpose to commit a larceny or that he aided or encouraged his accomplice. According to the defendant, the evidence showed that he was simply present when his accomplice committed the crime. Here, the evidence showed that the defendant rode with his accomplice in the same car to the store; the two entered the store together; they looked at merchandise in the same section of the store; they were seen on surveillance video returning to the same area behind the clothing rack, stuffing shirts into their pants; and the two left the store within seconds of each other and exited the parking lot in a vehicle driven by the accomplice.

(Dec. 31, 1969)

The evidence was sufficient to sustain a charge of assault with a deadly weapon inflicting serious injury based on a theory of acting in concert. It was undisputed that the victim sustained serious injury; the only real issue was whether the evidence was sufficient to allow a reasonable inference that the defendant was a perpetrator of the crime. Another individual, Mr. Robinson, shot the victim. The evidence showed that the defendant and the victim’s wife drove to the victim’s residence, where the victim and his wife engaged in a dispute over custody of their children until the police arrived and required the defendant and the victim’s wife to leave without the children. The next evening the defendant drove his vehicle, with Robinson and the victim’s wife, back to the victim’s residence, carying with them firearms, bulletproof vests, and walkie-talkie radios that were turned on and set the same channel. The vehicle was waiting in the victim’s apartment parking lot when he arrived home. Robinson, who did not know the victim, shot the victim and asked him if he wanted to die. The defendant assisted Robinson in restraining the victim, placed a handcuff on one of the victim’s wrists, tried to cuff both of the victim’s wrists, searched the victim’s pockets, and escorted the victim’s children from his apartment to the vehicle where the victim’s wife was waiting. After neighbors found the victim bleeding from gunshot wounds, the defendant sped away from the scene with the victim’s wife, Robinson, and the children. This evidence was sufficient to sustain and acting in concert charge.

(Dec. 31, 1969)

In this drug case, the trial court committed plain error by instructing the jury on the theory of acting in concert. The State presented no evidence that the defendant had a common plan or purpose to possess the contraband with his alleged accomplice, McEntire. At most, the evidence showed that the two were acquainted and the defendant was present when the drugs were found at McEntire’s home. Mere presence at the scene of a crime however is insufficient where the State presented no evidence that the two shared any criminal intent.

(Dec. 31, 1969)

Reversing the defendant’s convictions for contaminating a public water system, the court held that because the defendant was not constructively present, the evidence was insufficient to support criminal liability under the doctrine of acting in concert. The evidence showed that the defendant offered to pay another person to intentionally break county water lines so that the defendant’s company, which was under contract with the county to repair the lines, would be paid by the county for the necessary repairs. The defendant was never present when the accomplice broke the water lines. The court held that the defendant “was not physically close enough to aid or encourage the commission of the crimes and therefore was not actually or constructively present—a necessary element of acting-in-concert liability.” The court rejected the State’s argument that the defendant was constructively present because she planned the crimes, was accessible if needed by telephone, and later was at the crime scene to repair the broken water lines. In this respect, the court held, in part, that “one cannot be actually or constructively present for purposes of proving acting in concert simply by being available by telephone.” The court noted that the evidence would have supported a conviction based on a theory of accessory before the fact, but the jury was not instructed on that theory of criminal liability, nor was the defendant charged with other offenses, such as conspiracy, that apply to those who help plan a criminal act.

(Dec. 31, 1969)

The evidence was sufficient to support convictions for murder, burglary, and armed robbery on theories of acting in concert and aiding and abetting. The court noted that neither acting in concert nor aiding and abetting require a defendant to expressly vocalize her assent to the criminal conduct; all that is required is an implied mutual understanding or agreement. The State’s evidence showed that the defendant was present for the discussions and aware of the group’s plan to rob the victim Wiggins; she noticed an accomplice’s gun; she was sitting next to another accomplice in a van when he loaded his shotgun; she told the group that she did not want to go up to the house but remained outside the van; she walked toward the house to inform the others that two victims had fled; she told two accomplices “y’all need to come on;” she attempted to start the van when an accomplice returned but could not release the parking brake; and she assisted in unloading the goods stolen from Wiggins’ house into an accomplice’s apartment after the incident.

(Dec. 31, 1969)

In an assault inflicting serious injury case, the evidence was sufficient to show that the defendant acted in concert with other assailants and thus that he was guilty of the offense even if the injuries he personally inflicted did not constitute “serious injury.”

(Dec. 31, 1969) rev’d on other grounds, 367 N.C. 454 (Jun 12 2014)

The evidence was sufficient to show that the defendant committed second-degree murder either alone or in concert with others. The defendant was present with two men who borrowed a red Ford from David Andrews. The three men did not return the car to Andrews and the defendant was later seen driving the car. Two witnesses said that the men who fired the shots at the victim were in a sedan, and one said that the car was red. Two other witnesses established that the red Ford was parked in an apartment complex parking lot shortly after the shooting. The defendant and the others who borrowed the car went to the lot and one of the men was seen wiping the car. The keys to the car were found in the grass near the parking lot after one of the men fled and was seen throwing an object. A bullet casing consistent with bullets found at the murder scene was found in the car, and particles consistent with gunshot residue were found on all of the men, including one particle on the defendant’s pants.

(Dec. 31, 1969)

In a case involving charges of obtaining property by false pretenses arising out of sales to a pawn shop in which another person told the shop that the items were not stolen, the evidence was insufficient to show that the defendant was acting in concert. Assuming that the State sufficiently established the other elements of acting in concert, there was no evidence that the defendant was either actually present or near enough to render assistance as needed to his alleged accomplice.

(Dec. 31, 1969)

In a kidnapping and armed robbery case the evidence was sufficient that the defendant acted in concert with an accomplice. Although the defendant argued that the evidence established that he was merely present at the scene, the evidence showed that he aided his co-conspirator.

(Dec. 31, 1969)

The trial court did not err by dismissing charges of felony breaking or entering and felony larceny. The State presented evidence that an unknown man, who appeared to be concealing his identity, was seen walking around the victim’s yard carrying property later determined to have been taken from the victim’s home. The man fled when he saw officers and was never apprehended or identified. The defendant was also seen in the yard, but was never seen entering or leaving the home or carrying any stolen property. Although the defendant also fled from officers, no evidence linked him to the unknown man. The defendant’s presence in the yard and his flight was insufficient evidence of acting in concert.

(Dec. 31, 1969)

The evidence was sufficient to support a conviction of armed robbery under an acting in concert theory. Although the record did not reveal whether the defendant shared the intent or purpose to use a dangerous weapon during the robbery, this was not a necessary element under the theory of acting in concert.

(Dec. 31, 1969)

In a case in which there was a dissenting opinion, the court held that there was sufficient evidence that the defendant acted in concert with another to commit a robbery. The evidence showed that he was not present at the ATM where the money was taken, but was parked nearby in a getaway vehicle.

(Dec. 31, 1969)

There was sufficient evidence of acting in concert with respect to a murder and felony assault, notwithstanding the defendant’s exculpatory statement that he “got caught in the middle” of the events in question. Other evidence permitted a reasonable inference that the defendant and an accomplice were shooting at the victims pursuant to a shared or common purpose.

(Dec. 31, 1969)

The court rejected the defendant’s argument that to convict of burglary by acting in concert the State was required to show that the defendant had the specific intent that one of her accomplices would assault the victim with deadly weapon. The State’s evidence, showing that the defendant forcibly entered the residence accompanied by two men carrying guns and another person, armed with an axe, who immediately asked where the victim was located, was sufficient evidence that an assault on the victim was in pursuance of a common purpose or as a natural or probable consequence thereof.

Criminal Offenses > Participants in Crime > Aiding & Abetting

(Dec. 31, 1969)

The court per curiam affirmed a divided panel of the Court of Appeals, ___ N.C. App. ___, 804 S.E.2d 199 (2017). Over a dissent, the court of appeals had held that the trial court did not err by denying the defendant’s motion to dismiss a charge of aiding and abetting larceny. The charges arose out of the defendant’s involvement with store thefts. A Walmart loss prevention officer observed Amanda Eversole try to leave the store without paying for several clothing items. After apprehending Eversole, the loss prevention officer reviewed surveillance tapes and discovered that she had been in the store with William Black, who had taken a number of items from store shelves without paying. After law enforcement was contacted, the loss prevention officer went to the parking lot and saw Black with the officers. Black was in the rear passenger seat of an SUV, which was filled with goods from the Walmart. A law enforcement officer testified that when he approached Black’s vehicle the defendant asked what the officers were doing. An officer asked the defendant how he knew Black and the defendant replied that he had only just met “them” and had been paid $50 to drive “him” to the Walmart. The defendant also confirmed that he owned the vehicle. Citing this and other evidence, the court of appeals held that the trial court did not err by denying the motion to dismiss.

In its per curiam opinion, the supreme court “specifically disavowed” the taking of judicial notice by the court of appeals of the prevalence of Wal-Mart stores in Gastonia and in the area between Gastonia and Denver, as well as of the “ubiquitous nature of Wal-Mart stores.”

(Dec. 31, 1969)

Criminal Offenses > Sexual Assaults & Related Offenses > Rape > By Aiding & Abetting

Criminal Procedure > Verdict > Unanimous Verdict Issues

(Dec. 31, 1969) , COA22-1043, ___ N.C. App. ___ 2024-01-16

In this McDowell County case, defendant appealed his convictions for conspiracy to traffic in methamphetamine and aiding and abetting a continuing criminal enterprise (“CCE”), arguing (1) the CCE indictment was fatally flawed as it did not specify each of the acts committed under the CCE, and (2) the conspiracy verdict was fatally ambiguous, as it was impossible to determine if the jury unanimously found trafficking by possession or by transportation. The Court of Appeals majority agreed regarding (1), vacating defendant’s CCE conviction, but upheld the conspiracy to traffic methamphetamine conviction in (2).

Defendant was an admitted participant in a drug trafficking enterprise, but was not an organizer or employee of the principal operation, instead being a routine purchaser of drugs for resale. Considering (1), the Court of Appeals noted that G.S. 90-95.1 defines the offense of CCE, and that the federal crime in 21 U.S.C. § 848 has nearly identical wording. This led the court to consult applicable precedent in Richardson v. United States, 526 U.S. 813 (1999), for the idea that specificity of illegal conduct is essential in a CCE indictment. The court found no such specificity here, explaining:

The indictment does not allege that the enterprise engaged in any specific conduct, only defining the CCE as “a continuing series of violations of Article 5 of Chapter 90 of the General Statutes” and generally naming the participants and their positions in the trafficking scheme’s hierarchy. A juror would have no way of knowing how many criminal acts were committed within the organization or how Defendant’s acts advanced them; while the indictment specifies that Defendant aided and abetted the CCE “by trafficking in methamphetamine[,]” it says nothing of why the enterprise with which Defendant dealt constituted a CCE.

Slip Op. at 8-9. This led the court to hold that “each underlying act alleged under N.C.G.S. § 90-95.1 constitutes an essential element of the offense” and that “a valid indictment under N.C.G.S. § 90-95.1 requires the state to specifically enumerate the acts alleged.” Id. at 9. Because the State did not do so in the current case, the indictment was fatally defective and the court vacated defendant’s CCE conviction.

Moving to (2), the court explained that the core of defendant’s argument was that failing to distinguish between trafficking by possession and by transportation rendered the jury’s verdict fatally ambiguous. The court drew a distinction between disjunctive jury instructions that (a) would allow a jury to find defendant guilty of any one of multiple underlying offenses, or (b) various alternative acts that establish elements of the single offense being charged. Here, the court found (b), as “[w]here a conspiracy charge disjunctively lists multiple offenses . . . each underlying offense does not create a separate conspiracy, but is instead an alternative act by which a Defendant may be found guilty of the singular conspiracy alleged.” Id. at 11. This led the court to find no fatal ambiguity for defendant’s conspiracy conviction.

Judge Stroud concurred in part and dissented in part by separate opinion, and would have found no fatal ambiguity (1), allowing the CCE conviction to stand. Id. at 13.

(Dec. 31, 1969)

Criminal Procedure > Indictment & Pleading Issues > Specific Offenses > Weapons Offenses > Felon in Possession

(Dec. 31, 1969)

In this child sexual assault case, the trial court did not err by denying the defendant’s motion to dismiss five statutory sexual offense charges based on a theory of aiding and abetting. The State’s theory was that the defendant encouraged the victim’s mother to engage in sexual activity with the victim, and that the victim’s mother did this to “bait” the defendant into a relationship with her. On appeal the defendant argued that the evidence was insufficient to show that he encouraged or instructed the victim’s mother to perform cunnilingus or digitally penetrate the victim, or that any statement by him caused the victim’s mother to perform the sexual acts. The court disagreed. The State’s evidence included Facebook conversations between the victim’s mother and the defendant. The defendant argued that these messages were fantasies and that even if taken at face value, were devoid of any instruction or encouragement to the victim’s mother to perform sexual acts, specifically cunnilingus or penetration of the victim. The court rejected this argument, concluding that an explicit instruction to engage in sexual activity is not required. Here, the evidence showed that the defendant knew that the victim’s mother wanted a relationship with him and that he believed she was using the victim to try to initiate that relationship. Numerous messages between the defendant and the victim’s mother support a reasonable inference of a plan between them to engage in sexual acts with the victim. The victim’s mother testified that she described sexual acts she performed on the victim to the defendant because he told her he liked to hear about them. The defendant argued that this description of sexual acts after the fact is insufficient to support a finding that he knew of or about these acts prior to their occurrence, a requirement for aiding and abetting. However, the court concluded, the record supports an inference that he encouraged the victim’s mother to perform the acts. Among other things, the defendant specified nude photos that he wanted of the victim and initiated an idea of sexual “play” between the victim’s mother and the victim. After the victim’s mother videotaped her act of performing cunnilingus on the victim and send it to the defendant, the defendant replied that he wanted to engage in that act. After he requested a video of the victim “playing with it,” the victim’s mother made a video of her rubbing the victim’s vagina. This evidence was sufficient to support an inference that the defendant aided and abetted in the victim’s mother’s sexual offenses against the victim.

(Dec. 31, 1969)

Criminal Offenses > Participants in Crime > Accessory Before the Fact

(Dec. 31, 1969)

In this murder case, the trial court did not err by denying the defendant’s request for a jury instruction on accessory before the fact. Because the defendant was convicted of first-degree murder under theories of both premeditation and deliberation and the felony murder rule and the defendant’s conviction for first-degree murder under the theory of felony murder is supported by the evidence (including the defendant’s own statements to the police and thus not solely based on the uncorroborated testimony of the principal), the court of appeals erred by concluding that a new trial was required.

Criminal Offenses > Animal Fighting

(Dec. 31, 1969)

Criminal Procedure > Sentencing > Restitution

Criminal Offenses > General Crimes > Accessory After the Fact

(Dec. 31, 1969)

Criminal Offenses > Obstruction of Justice and Related Offenses > Obstruction of Justice

The defendant’s husband sexually abused the defendant’s daughter. (The husband was not the daughter’s biological father, but he had adopted her after he married her mother.) The daughter told an aunt about the abuse. This led to law enforcement and DSS investigations. However, the defendant initially did not believe her daughter and instead pressured her to recant her allegations. Even after walking in on the abuse in progress, the defendant sought to prevent her daughter from cooperating with authorities. The defendant was charged with (a) being an accessory after the fact to sexual activity by a substitute parent, based on her failure to report the abuse that she personally observed; (b) felony obstruction of justice for pressuring her daughter to recant; and (c) felony obstruction of justice for denying law enforcement and DSS access to her daughter during the investigation. She was convicted on all counts and appealed, arguing that the evidence was insufficient to support each conviction. The case eventually reached the state supreme court, which ruled: (1) There was insufficient evidence to support the accessory after the fact conviction. “[T]he indictment alleged that [the defendant] did not report [her husband’s] sexual abuse of [her daughter, and] a mere failure to report is not sufficient to make someone an accessory after the fact under North Carolina law.” The court distinguished failure to report a crime from affirmative concealment of a crime. The court also “decline[d] to consider any of defendant’s other acts not alleged in this indictment” that might have supported the accessory after the fact charge. (2) There was sufficient evidence to support the defendant’s conviction of obstruction of justice for denying the authorities access to the daughter during the investigation. The court noted that the defendant interrupted one interview of the daughter by investigators, was present and “talked over” the daughter in several others, and generally “successfully induced [the daughter] to refuse to speak with investigating officers and social workers.” The court remanded the matter to the court of appeals for further consideration of whether there was sufficient evidence that the obstruction was felonious by virtue of an intent to deceive or defraud. (The other count of obstruction of justice, for pressuring the daughter to recant, had been affirmed by the court of appeals and was not before the supreme court.) Two dissenting Justices would have found sufficient evidence of accessory after the fact.

(Dec. 31, 1969)

Criminal Offenses > Obstruction of Justice and Related Offenses > Obstruction of Justice

Criminal Procedure > Jury Instructions > Miscellaneous Issues

(Dec. 31, 1969)

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of accessory after the fact to murder where the defendant gave eight different written statements to authorities providing a wide array of scenarios surrounding the victim’s death. In his statements the defendant identified four different individuals as being the perpetrator. He also admitted that he had not been truthful to investigators. The court concluded: “The jury could rationally have concluded that his false statements were made in an effort to shield the identity of the actual shooter.” The court noted that competent evidence suggested that the defendant knew the identity of the shooter and was protecting that person, including knowledge of the scene that could only have been obtained by someone who had been there and statements made by the defendant to his former girlfriend. Additionally, the defendant admitted to officers that he named one person “as a block” and acknowledged that his false statement made the police waste time. (2) No double jeopardy violation occurred when the trial court sentenced the defendant for obstruction of justice and accessory after the fact arising out of the same conduct. Comparing the elements of the offenses, the court noted that each contains an element not in the other and thus no double jeopardy violation occurred.

(Dec. 31, 1969)

In an accessory after the fact case the evidence was sufficient to establish that the defendant knew that a gun he had hidden was used to commit a murder.

(Dec. 31, 1969)

The trial court erred in failing to arrest judgment on the defendant’s conviction for accessory after the fact to second-degree burglary. A defendant cannot be both a principal and an accessory to the same crime.

(Dec. 31, 1969)

(1) The State presented sufficient evidence of accessory after the fact to a second-degree murder perpetrated by Stevons. After Stevons shot the victim, the defendant drove Stevons away from the scene. The victim later died. The court rejected the defendant’s argument that because he gave aid after the victim had been wounded but before the victim died, he did not know that Stevons had committed murder. It concluded that because the defendant knew that Stevons shot the victim at close range, a jury could reasonably infer that the defendant knew that the shot was fatal. (2) The State presented sufficient evidence of accessory after the fact to armed robbery when it showed both that an armed robbery occurred and that the defendant rendered aid after the crime was completed. The court rejected the defendant’s argument that the robbery was not complete until the defendant arrived at a safe place, concluding that a taking is complete once the thief succeeds in removing the stolen property from the victim’s possession. (3) Although a mere presence instruction may be appropriate for aiding and abetting or accessory before the fact, such an instruction is not proper for accessory after the fact and thus the trial judge did not err by declining to give this instruction.

(Dec. 31, 1969)

A defendant may not be convicted of second-degree murder and accessory after the fact to first-degree murder. The offenses are mutually exclusive.

(Dec. 31, 1969)

The defendant could be convicted of accessory after the fact to assault with a deadly weapon with intent to kill inflicting serious injury even if the principal pled guilty to a lesser offense of that assault.

(Dec. 31, 1969)

Double jeopardy prohibited convictions of both accessory after fact to first-degree murder and accessory after the fact to first-degree kidnapping when the jury could have found that accessory after fact of first-degree murder was based solely on kidnapping under the felony murder rule. The jury’s verdict did not indicate whether it found first-degree murder based on premeditation and deliberation or felony murder based on first-degree kidnapping, or both. The court arrested judgment on the defendant’s convictions of accessory after the fact to first-degree kidnapping, reasoning that if a defendant cannot be convicted of felony murder and the underlying felony, a defendant could not be convicted of accessory after the fact to felony murder and accessory after the fact to the underlying felony.

Criminal Offenses > General Crimes > Attempt

(Dec. 31, 1969)

On discretionary review of a unanimous, unpublished decision of the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 392 (2017), the court reversed, holding that the evidence was insufficient to sustain a conviction for attempted murder. The evidence showed that the defendant solicited an undercover officer—who he thought to be a hired killer--to kill his former wife. He gave the officer $2,500 as an initial payment, provided the officer details necessary to complete the killing, and helped the officer plan how to get his former wife alone and how to kill her out of the presence of their daughter. The defendant was arrested after he left his meeting with the officer; he was charged—and later convicted—of attempted murder and solicitation to commit murder.

The court concluded that while the evidence was sufficient to show solicitation, it “fell short of showing the required overt acts for attempted first-degree murder.” Specifically, none of the defendant’s preparatory acts “amount to proof of overt acts amounting to attempt under our law.” In so ruling, the court determined that the Court of Appeals inappropriately looked to decisions from other jurisdictions to conclude that “although mere solicitation is insufficient to constitute attempt, specific acts taken to complete a murder-for-hire, such as those taken by [defendant] here, can satisfy the elements of attempted murder,” where the law regarding attempt in each of those jurisdictions is materially different from North Carolina law. Justice Morgan dissented, joined by Chief Justice Martin and Justice Newby.

(Dec. 31, 1969)

Reversing the Court of Appeals, the court held that the evidence was sufficient to support the defendant’s conviction for attempted first-degree rape of a child. The Court of Appeals had reversed the defendant’s conviction finding, in part, that the evidence supported only a conviction for completed rape, not an attempted rape. Citing precedent, the Supreme Court held that evidence of a completed rape is sufficient to support an attempted rape conviction.

(Dec. 31, 1969)

Criminal Offenses > Robbery > Attempt

In this Randolph County case, defendant appealed his convictions for attempted first-degree murder, attempted robbery with a dangerous weapon, and possession of a firearm by a felon, arguing error in denying his motions to dismiss for insufficient evidence, and error by the trial court in calculating his prior record level. The Court of Appeals found no error.

In October of 2018, defendant approached the victim at a convenience store and attempted to pull open the victim’s driver’s side door. The door was locked, so defendant tapped on the glass with a revolver while telling the victim to open the door. The victim opened the door and exited the vehicle, but then attempted to grab the gun from defendant. After a scuffle defendant fell to the ground, causing the gun to fire. As the victim fled, defendant fired two more shots at him, missing both times.

On appeal, defendant argued that since he made no express appeal for money or property, there was insufficient evidence to support his attempted robbery conviction. The Court of Appeals disagreed, noting that defendant “displayed a gun, threatened its use, and made an obvious implied demand.” Slip Op. at 7. The court rejected defendant’s argument that since the events did not occur in a retail setting his words could not be interpreted as an implied demand.

The court also rejected defendant’s argument that intent for attempted murder could not be inferred by the multiple gunshots because his first shot was accidental, and his second and third shots were wide misses. Defendant also argued his intent could have been to scare or warn the victim, not kill him. The court explained that where multiple shots were fired and at least one was aimed at the victim, sufficient evidence existed to infer intent under State v. Allen, 233 N.C. App. 507 (2014). Likewise, the court held that defendant’s poor aim did not negate the intent or support his argument of scaring or warning the victim, as the victim saw the gun pointed at him before the shots and other factors such as poor lighting likely influenced the accuracy.

Finally, the court rejected defendant’s argument that the trial court did not properly find substantial similarity between the out-of-state offenses and in-state offenses. The court explained that defendant admitted no evidence to show improper calculation, and “[g]iven the [trial court’s] indication of review in open court and its full execution of the sentencing worksheet finding substantial similarity, this Court presumes the trial court reached this finding properly.” Id. at 12.

(Dec. 31, 1969)

Criminal Offenses > General Crimes > Conspiracy

The defendant was convicted of attempted first-degree murder and conspiracy to commit attempted first-degree murder. (1) The defendant argued that the latter charge is invalid because it alleges a non-existent crime. The defendant argued that an attempt requires that the act fail; therefore, it is an illogical impossibility and a legal absurdity to criminalize an agreement to commit a failed act, which in this case would be an agreement not to commit murder. The Court of Appeals rejected the argument, holding that under North Carolina law “failure” is not an element of attempted first-degree murder and that conspiracy to commit that offense is a cognizable charge. (2) The defendant argued that the evidence was insufficient to support attempted first-degree murder or conspiracy because the evidence showed only that he fired a pellet gun to try scare away the officer who was in pursuit. The Court found that the evidence was sufficient for the jury to find that the defendant fired a gun at the officer, not merely a pellet gun, with the intent to kill.

(Dec. 31, 1969)

In this child sexual assault case, trial court did not err by denying the defendant’s motion to dismiss two charges of attempted statutory sex offense of a child by an adult. On appeal, the defendant argued that there was insufficient evidence of his intent to engage in a sexual act with the victim and of an overt act. The court disagreed. The case involved a scenario where the victim’s mother engaged in sexual acts with the victim to entice the defendant into a relationship with her. The first conviction related to the defendant’s attempted statutory sex offense with the victim in a vehicle, which occurred on or prior to 19 July 2013. While the victim sat between the defendant and her mother, the defendant tried to put his hands up the victim’s skirt, between her legs. The victim pushed the defendant away and moved closer to her mother. The defendant asserted that an intention to perform a sexual act cannot be inferred from this action. The court disagreed, noting, among other things, evidence that the defendant’s phone contained a video and photograph depicting the victim nude; both items were created prior to the incident in question. Additionally, the defendant admitted that the photo aroused him. Moreover, conversations of a sexual nature involving the victim occurred between the defendant and the victim’s mother on 9 July 2013. Messages of a sexual nature were also sent on 15 July 2013, including the defendant’s inquiries about sexual acts between the victim’s mother and the victim, and a request for explicit pictures of the victim. Additional communications indicated that the defendant wanted to see the victim in person. In a conversation on 19 July 2013, the defendant indicated that he had feelings for the victim and expressed the desire to “try something” sexual with the victim. In his interview with law enforcement, the defendant stated he would not have engaged in intercourse with the victim but would have played with her vagina by licking and rubbing it. This evidence supports a reasonable inference that the defendant attempted to engage in a sexual act with the victim when he placed his hands between her legs and tried to put his hand up her skirt. The evidence also supports the conclusion that his act was an overt act that exceeded mere preparation.

The second conviction related to the defendant’s attempted statutory sex offense with the victim in a home. The court upheld this conviction, over a dissent. This incident occurred on 27 July 2013 when the defendant instructed the victim’s mother to have the victim wear a dress without underwear because he was coming over to visit. The defendant argued that the evidence was insufficient to show his intent to engage in a sexual act with the victim or an overt act in furtherance of that intention. The court disagreed. The evidence showed that the victim’s mother and the defendant had an ongoing agreement and plan for the victim’s mother to teach the victim to be sexually active so that the defendant could perform sexual acts with her. Evidence showed that the victim’s mother sent the defendant numerous photos and at least one video of the victim, including one that showed the victim’s mother performing cunnilingus on the victim on 26 July 2013. An exchange took place on 27 July 2013 in which the defendant indicated his desire to engage in that activity with the victim, and her mother’s desire to facilitate it. Specifically the defendant asked the victim’s mother whether she could get the victim to put on a dress without underwear because he was coming over to their home. Based on the context in which the defendant instructed the victim’s mother to have the victim wear a dress without underwear, there was substantial evidence of his intent to commit a sex offense against the victim. Furthermore, the defendant took overt actions to achieve his intention. The victim’s mother admitted that she and the defendant planned to train the victim for sexual acts with the defendant, and the defendant’s Facebook messages to the victim’s mother and his interview with law enforcement show that he agreed to, encouraged, and participated in that plan. The defendant’s instruction to dress the victim without underwear was more than “mere words” because it was a step in his scheme to groom the victim for sexual activity, as was other activity noted by the court.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss a charge of attempting to obtain property by false pretenses. After an officer learned about larcenies of Michael Kors items from a local store, he found an online posting for similar items in an online flea market. Using a fake name and address, the officer created a social media account and started a conversation with the seller, later determined to be the defendant, to discuss purchase of the items. The two agreed to meet. Unbeknownst to the defendant, the officer decided to set up an undercover purchase for one of the items to determine if it in fact was stolen from the local store or whether it was counterfeit merchandise. The undercover purchase occurred and the item in question was determined to be counterfeit. Noting that actual deceit is not an element of attempting to obtain property by false pretenses, the court held that the evidence was sufficient to sustain the conviction. The court rejected the defendant’s argument that because he did not actually represent the item as an authentic Michael Kors item, there was no evidence of a false pretense or intent to deceive. The court noted that the defendant advertised the items as Michael Kors bags and described them as such to the undercover officer. Additionally, the defendant purchased the bags from a warehouse in Atlanta that sold them for only a fraction of their worth, suggesting that the defendant knew the merchandise was counterfeit. The court also rejected the defendant’s argument that because the offense was completed, a conviction for attempt was improper. The offense only occurs if the property actually is obtained in consequence of the victim’s reliance on the false pretense. Here, because of the undercover operation, the officer was never deceived by the defendant’s misrepresentation.

(Dec. 31, 1969)

The evidence was sufficient to convict the defendant of both attempted sex offense and attempted rape. The court rejected the defendant’s argument that the evidence was sufficient to permit the jury to infer the intent to commit only one of these offenses. During a home invasion, the defendant and his brother isolated the victim from her husband. One of the perpetrators said, “Maybe we should,” to which the other responded, “Yeah.” The defendant’s accomplice then forced the victim to remove her clothes and perform fellatio on him at gunpoint. The defendant later groped the victim’s breast and buttocks and said, “Nice.” At this point, the victim’s husband, who had been confined elsewhere, fought back to protect his wife and was shot. This evidence is sufficient for a reasonable jury to infer that the defendant intended to engage in a continuous sexual assault involving both fellatio (like his accomplice) and ultimately rape, and that this assault was thwarted only because the victim’s husband sacrificed himself so that his wife could escape.

(Dec. 31, 1969)

Because attempted first-degree felony murder does not exist under the laws of North Carolina, the court vacated the defendant’s conviction with respect to this charge.

(Dec. 31, 1969)

In a child sex case, the court held that the evidence was sufficient to support a charge of attempted first-degree statutory sexual offense. On the issue of intent to commit the crime, the court stated: “The act of placing one’s penis on a child’s buttocks provides substantive evidence of intent to commit a first degree sexual offense, specifically anal intercourse.”

(Dec. 31, 1969)

Where the evidence showed that the defendant committed the completed crime of felony larceny, the evidence was sufficient to support a conviction of the lesser charged offense of attempted felony larceny.

(Dec. 31, 1969)

Because evidence of vaginal penetration was clear and positive, the trial court did not err by failing to instruct the jury on attempted rape.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss a charge of attempted first-degree murder where the defendant shot the victim in the abdomen. The defendant removed the victim’s cell phone from her reach, left the room, returned with a .45 caliber pistol, and shot her in the abdomen with a hollow point bullet. He then denied her medical assistance for approximately twelve hours.

(Dec. 31, 1969) rev’d on other grounds, 365 N.C. 506 (Apr 13 2012)

(1) The evidence was sufficient to prove attempted kidnapping. To prove an overt act for that crime, the State need not prove that the defendant was in the presence of his intended victim. In this case, the defendant and his accomplices stole get-away cars and acquired cell phones, jump suits, masks, zip ties, gasoline, and guns. Additionally, the defendant hid in the woods behind the home of his intended victim, waiting for her to appear, fleeing only upon the arrival of officers and armed neighbors. (2) The court rejected the defendant’s argument that the evidence of attempted kidnapping was insufficient because the restraint he intended to use on his victim was inherent to his intended robbery of her. The defendant planned to intercept the victim outside of her home and force her back into the house at gunpoint, bind her hands so that she could not move, and threaten to douse her with gasoline if she did not cooperate. These additional acts of restraint by force and threat provided substantial evidence that the defendant’s intended actions would have exposed the victim to greater danger than that inherent in the armed robbery itself. (3) The court rejected the defendant’s argument that to prove an overt act for attempted robbery the State had to prove that the defendant was in the presence of his intended victim. For the reasons stated in (1), above, the court found that there was sufficient evidence of an overt act. (4) The court rejected the defendant’s argument that because the evidence failed to show that he and his co-conspirators entered the property in question, they could not have attempted to enter her residence.

Criminal Offenses > General Crimes > Conspiracy

(Dec. 31, 1969)

In a case involving federal drug and RICO conspiracy charges the Court held that allocating to the defendant the burden of proving withdrawal from the conspiracy does not violate the Due Process Clause. This rule remains intact even when withdrawal is the basis of a statute of limitations defense.

(Dec. 31, 1969)

In this Watauga County case, the Supreme Court reversed the Court of Appeals majority decision vacating defendant’s conviction for conspiracy to commit robbery with a dangerous weapon, reinstating his conviction.

In April of 2017, defendant and two associates planned to rob a drug dealer in Boone. After texting to set up a plan, one of defendant’s associates agreed to go to the apartment of the drug dealer. The associate went to the apartment in question, but initially did not leave his car in the parking lot; after leaving for about 24 minutes, he returned and then entered the apartment. Meanwhile, defendant and the other associate waited, and broke in to the apartment after the meeting was underway. Defendant was indicted for robbery with a dangerous weapon, felonious breaking or entering, and conspiracy to commit both felonies. Defendant moved to dismiss, arguing the State did not present sufficient evidence of multiple conspiracies, but the trial court denied the motion. The jury found defendant guilty of all four charges. On appeal, the Court of Appeals vacated defendant’s conspiracy to commit robbery charge, reasoning that “the State’s evidence established one single conspiracy that continued from on or around 18 April 2017 through the date of the breaking or entering and armed robbery on 27 April 2017.” Slip Op. at 4. The State appealed based upon the dissenting judge’s opinion.

Taking up the State’s appeal, the Supreme Court first noted “the Court of Appeals erred in determining the charge of conspiracy to commit breaking or entering would be the conspiracy charge to remain if there had been sufficient evidence of only one conspiracy.” Id., note 1. The Court then explained that “in the course of completing the target crime of an original conspiracy, a defendant may enter into an additional and separate conspiracy to commit a different crime not conspired to originally.” Id. at 6. Here, the State had the burden of showing that defendant and at least one other person entered into conspiracies for both of the crimes charged. Looking to the record, the Court found adequate evidence of a conspiracy to commit robbery with a dangerous weapon. Additionally, the Court explained that “[i]mportantly, no evidence was produced that the original plan included breaking or entering the apartment.” Id. at 8. Instead, it appeared that defendant and at least one of his associates reevaluated their plan when it became clear that the meeting would occur inside the drug dealer’s apartment, and formed an additional conspiracy to break and enter the apartment on the fly. The Court explained the outcome:

When viewed in the light most favorable to the State, a rational juror could conclude that the original plan was to rob [the drug dealer] in the parking lot. When viewed in the light most favorable to the State, a rational juror could also conclude that, in those twenty-four minutes between [the associate’s] first and second appearances at the apartment complex, defendant and at least one other person formed an additional and separate conspiracy—a new plan. In the new plan, [the associate] would enter [the drug dealer’s] apartment for the meeting, and defendant and [another associate] would feloniously break into the apartment.

Id. at 9.

Justice Riggs, joined by Justice Earls, dissented and would have affirmed the vacatur of the conspiracy to commit felonious breaking or entering conviction (see note 1 of the Slip Opinion), along with remand for resentencing based on the single conspiracy charge. Id. at 11.

(Dec. 31, 1969)

Criminal Offenses > Obstruction of Justice and Related Offenses > Harassment of a Juror

The defendant was the twin brother of another criminal defendant and was attending his brother’s trial for assault on a government official in Watauga County (itself the subject of a published opinion, here). Following the guilty verdict in his brother’s case, the defendant made comments to several jurors as they exited the courthouse. These included statements that the jurors “got it wrong,” that his brother was innocent, that the jurors had “ruined his [brother’s] life,” that he “hoped they slept well,” and similar remarks. Before those comments, the defendant’s brother’s girlfriend exited the courtroom visibly upset, and courthouse video footage showed the defendant briefly comforting her before approaching the jurors. The defendant was charged with six counts of intimating jurors and conspiracy to intimidate jurors with his brother and his brother’s girlfriend under G.S. 14-225.2(a)(2). That subsection provides that a defendant is guilty of juror harassment when he “threatens . . . or intimidates [a] former juror or spouse [of a juror] . . . as a result of the prior official action of [the] juror in a grand jury proceeding or trial.”

The trial court denied pretrial motions challenging the jury intimidation statute as unconstitutional under the First Amendment, denied the motion to dismiss for insufficient evidence, and declined to instruct the jury on the definition of “intimidate.” The defendant was convicted of conspiracy to intimidate jurors at trial and acquitted on the other counts. A majority of the Court of Appeals rejected the defendant’s First Amendment arguments, finding the statute constitutional. The majority also found that the conviction was supported by sufficient evidence, and that the trial court did not err in failing to give the requested jury instructions (here). Chief Judge McGee dissented on each point. The Supreme Court agreed that the evidence was insufficient to support a conspiracy and reversed.

A criminal conspiracy is an agreement between two or more people to commit a crime with intent to carry out the agreement. While such agreement may be proven by circumstantial evidence, the evidence must show either an express agreement between the conspirators, or facts warranting an inference of the agreement. On the other hand, “[c]onspiracies cannot be established by mere suspicion, nor [by] evidence of mere relationship between the parties . . .” Slip op. at 8. The State’s evidence here raised no more than a conjecture of guilt, and the motion to dismiss for insufficient evidence should have been granted. “The record is almost entirely devoid of any interactions between defendant and [his brother] or defendant and [the girlfriend] from which the formation of any agreement can be inferred.” Id. at 13. The court acknowledged that “synchronized, parallel conduct” among defendants can support an inference of criminal agreement but rejected the State’s argument that such circumstances existed here. According to the court:

. . . [S]uch an inference would be far stronger where the conduct at issue is more synchronized, more parallel, and more clearly in furtherance of a crime. . .Moreover, while defendant was acquitted of the charges of harassment of a juror by threats or intimidation and we express no opinion on the sufficiency of the evidence with respect to those charges, the evidence was far from overwhelming. Put simply, this is not a situation like a drug transaction or bank robbery where it is evident that an unlawful act has occurred, and where the degree of coordination associated with those unlawful acts renders an inference of ‘mutual, implied understanding’ between participants far more reasonable. Id. 13-14 (citations omitted).

The matter was therefore reversed and remanded for the conviction to be vacated. In light of its holding, the court declined to consider the First Amendment challenges to the statute.

Justice Ervin dissented, joined by Justices Davis and Newby. According to the dissent, the majority failed to view the evidence in the light most favorable to the State, and the trial court should have been affirmed as to the sufficiency of evidence. Without expressing an opinion on the merits of the issue, the dissenters would have therefore proceeded to examine the defendant’s First Amendment challenges.

(Dec. 31, 1969)

In a per curiam opinion, the court affirmed the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 807 S.E.2d 603 (2017). The defendant was charged with five indictments alleging five separate offenses of conspiracy to commit robbery arising from five separate incidents. The Court of Appeals held, over a dissent, that the trial court did not err by denying the defendant’s motion to dismiss four of the charges. On appeal, the defendant argued that there was only one agreement and thus only one conspiracy charge was proper. The majority disagreed, concluding, in part, that the random nature and happenstance of the robberies did not indicate a one-time, pre-planned conspiracy. It noted that the victims and crimes committed arose at random and by pure opportunity.

(Dec. 31, 1969)

On appeal in this drug case from an unpublished opinion by the court of appeals, the supreme court held that there was sufficient evidence to support a conviction for conspiracy to traffic in opium. Specifically, the court pointed to evidence, detailed in the opinion, that the defendant agreed with another individual to traffic in opium by transportation. The court rejected the defendant’s argument that the evidence showed only a “the mere existence of a relationship between two individuals” and not an unlawful conspiracy.

(Dec. 31, 1969)

Criminal Offenses > Participants in Crime > Aiding & Abetting

Judge Stroud concurred in part and dissented in part by separate opinion, and would have found no fatal ambiguity (1), allowing the CCE conviction to stand. Id. at 13.

(Dec. 31, 1969)

Criminal Offenses > Homicide > Premeditation & Deliberation

Criminal Procedure > Jury Argument > Miscellaneous Cases

Evidence > Relevancy--Rule 401 > Context Evidence

In this Randolph County case, the Court of Appeals upheld defendant’s conviction for solicitation to commit first-degree murder, finding no prejudicial error by the trial court.

(Dec. 31, 1969)

Criminal Procedure > Motions > Suppression Motions > Appeal/Preservation for Appellate Review

(Dec. 31, 1969)

The defendant was convicted of armed robbery, conspiracy to commit armed robbery, felony breaking or entering, and conspiracy to commit breaking or entering in Watauga County. The offenses related to the attempted robbery of a drug dealer in an apartment in Boone. The jury convicted on all counts, and each conspiracy count was consolidated with the related substantive count for judgment.

(1) The defendant argued that the trial court erred in failing to dismiss one of the conspiracy counts. The Court of Appeals agreed. To convict on separate conspiracies, the State has the burden to show separate agreements. A single agreement to commit multiple offenses constitutes only one conspiracy. Factors relevant in determining the existence of multiple conspiracies include “the “nature of the agreement or agreements, the objectives of the conspiracies, the time interval between them, the number of participants, and the number of meetings . . .” Beck Slip op. at 11 (citation omitted). Here, the evidence showed only one agreement to rob drug dealers and thus only supported one conspiracy.

Where multiple conspiracy convictions are vacated, the court must identify the first substantive crime in determining which conviction to vacate. Here, the felony breaking or entering was the first substantive offense committed by the conspirators. The conviction for conspiracy to commit armed robbery was therefore vacated. According to the court:

As the felony breaking and entering was the first substantive crime committed by defendant (i.e., the ‘operative’ crime), because the conspiracy to commit felony breaking and entering was the ‘earlier of the conspiracy convictions’ insofar as defendant is concerned, and because the State failed to prove that defendant conspired with [the co-conspirators] in the weeks leading up to the crimes, we vacate defendant’s conviction for conspiracy to commit armed robbery . . . Id. at 14.

No resentencing was required, however, since the conspiracy to commit armed robbery was consolidated with the substantive robbery offense and the defendant was sentenced within the presumptive range for that crime.

(2) The trial court did not abuse its discretion in failing to provide the jury with a transcript of a witness’s testimony. No party objected to the trial court’s refusal in response to the jury’s request. Under G.S. 15A-1233(a), it is within the trial court’s discretion to allow reexamination of the evidence. Prejudice from the denial of a jury request to reexamine evidence will only be considered where the trial court fails to acknowledge its discretion in responding to the request. The trial court here recognized the matter as within its discretion. Consequently, the denial of the request for a transcript was neither an abuse of discretion nor prejudicial error.

Judge Inman concurred without separate opinion. Judge Tyson concurred in part and dissented in part. He would have found no error with the conviction for conspiracy to commit armed robbery.

(Dec. 31, 1969)

Criminal Offenses > Participants in Crime > Acting in Concert

(Dec. 31, 1969) , 274 N.C. App. 325 2020-11-17

Evidence > Cross-Examination, Impeachment, Corroboration & Related Issues > Impeachment, Evidence of Bias

(Dec. 31, 1969)

Evidence > Character Evidence > Of Victim > Victim’s Good Character

Defenses > Voluntary Intoxication

(Dec. 31, 1969) , ___ N.C. App. ___, ___ S.E.2d ___ 2019-12-03

(Dec. 31, 1969)

Criminal Offenses > Robbery > Generally

The evidence showed that the defendant was in a car with two other men that arrived in a church parking lot near the victim’s house at the same time as another car driven by a female. The female then drove to the victim’s home and beeped her car horn. Shortly after the victim came out of his house and told the woman to leave, the defendant approached the victim with a gun and said, “Don’t f**kin’ move.” After the victim and the defendant exchanged gunfire, the defendant and two other man ran from the victim’s house. The defendant got back into the car in the parking lot. This evidence was sufficient to show that the defendant agreed with at least one other person to commit robbery with a dangerous weapon. Defendant’s actions were substantial evidence of his intent to rob the victim, and his arrival at the victim’s home with the weapon was an overt act to carry out his intentions.

(Dec. 31, 1969)

The evidence was sufficient to support a charge of conspiracy to commit armed robbery. On appeal, the defendant argued that there was insufficient evidence of an agreement to commit the robbery. Here, the victim identified the defendant and others as the individuals who robbed him. Additionally, the defendant confirmed to a detective that his accomplice’s statement that the robbery was in retaliation for the victim’s robbery of another person was accurate. This was sufficient evidence of a conspiracy.

(Dec. 31, 1969)

(1) The evidence was sufficient to support a conviction for conspiracy to traffic in opium by sale and delivery. The defendant was indicted on multiple drug offenses arising from three separate controlled buys. On appeal the defendant argued that the State failed to present evidence, aside from an accomplice’s mere presence at the second control buy, that the defendant conspired with the accomplice to traffic in opium. The court rejected this argument, noting, among other things that the defendant brought the accomplice to the drug transaction location for all three controlled buys. The location of the second exchange was one the defendant did not like and the sale took place at or near dark. The drugs were maintained in the same vehicle as the accomplice and the defendant exchanged the drugs and counted the money in front of him. From this evidence, it would be reasonable for the jury to infer that the accomplice was present at the defendant’s behest to provide safety and comfort to the defendant during the transaction. (2) The evidence supported multiple conspiracy charges. The court rejected the defendant’s argument that the evidence showed only one agreement to engage in three separate transactions. It noted that the first two transactions were separated by one month and that approximately three months passed between the second and third buys. There was no evidence suggesting that the defendant planned the transactions as a series. Rather, the informant or the detective initiated each.

(Dec. 31, 1969)

The evidence was sufficient to support a charge of conspiracy to possess stolen goods, a pistol. After the defendant took the pistol and other items from the victims’ purses, the pistol was found in the field near a residence. The defendant’s alleged accomplice was present at the residence and admitted to officers that he was working with the defendant. This occurred after the defendant called the alleged accomplice from jail. From this evidence a jury could reasonably infer that the accomplice conspired with the defendant to possess the pistol.

(Dec. 31, 1969)

There was sufficient evidence of conspiracy to commit armed robbery. Although circumstantial, the evidence supported the inference that the defendant and his accomplices agreed to commit the robbery and other unlawful acts.

(Dec. 31, 1969)

The State presented insufficient evidence to show that the defendant entered into an agreement to commit common law robbery. The mere fact that the crime the defendant allegedly conspired with others to commit took place does not, without more, prove the existence of a conspiracy. Lacking here was evidence that the defendant conspired to take the property by violence or fear. In fact, his accomplice’s use of violence or fear was unknown to the defendant until after the robbery was completed.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss a charge of conspiracy to sell methamphetamine, given the substantial evidence of an implied understanding among the defendant, Fisher, and Adams to sell methamphetamine to the informants. The informants went to Fisher to buy the drugs. The group then drove to the defendant’s house where Fisher asked the defendant for methamphetamine. The defendant said that he didn’t have any but could get some. The defendant led Fisher and Adams to the trailer where the drugs were purchased.

(Dec. 31, 1969)

The trial court properly determined that a charge of conspiracy to manufacture methamphetamine was a Class C felony. The court rejected the defendant’s argument that G.S. 14-2.4(a) required punishment as a Class D felony (“Unless a different classification is expressly stated, a person who is convicted of a conspiracy to commit a felony is guilty of a felony that is one class lower than the felony he or she conspired to commit[.]”). Here, G.S. 90-98 requires that conviction for conspiracy to manufacture methamphetamine is punished at the same level as manufacture of methamphetamine.

(Dec. 31, 1969)

Finding State v. Euceda-Valle, 182 N.C. App. 268, 276 (2007), controlling, the court held that there was insufficient evidence that the defendant and another person named Hall conspired to sell and deliver cocaine. The evidence showed only that the drugs were found in a car driven by Hall in which the defendant was a passenger.

(Dec. 31, 1969)

The evidence was sufficient to show a drug trafficking conspiracy where there was evidence of an implied agreement between the defendant and his accomplice. The defendant was present at the scene and aware that his accomplice was involved producing methamphetamine and there was sufficient evidence that the defendant himself was involved in the manufacturing process. The court concluded: “Where two subjects are involved together in the manufacture of methamphetamine and the methamphetamine recovered is enough to sustain trafficking charges, we hold the evidence sufficient to infer an implied agreement between the subjects to traffic in methamphetamine by manufacture and withstand a motion to dismiss.”

(Dec. 31, 1969)

The evidence was insufficient to support trafficking by conspiracy convictions against both defendants. The drugs were found in secret compartments of a truck. Defendant Villalvavo was driving the vehicle, which was owned by a passenger, Velazquez-Perez, who hired Villalvavo to drive the truck. While evidence regarding the truck’s log books may have been incriminating as to Velazquez-Perez, it did not apply to Villalvavo, who had not been working for Velazquez-Perez long and had no stake in the company or control over Velazquez-Perez.

(Dec. 31, 1969)

In a case in which the defendant was charged with conspiracy to commit felony larceny, the trial court did not err by denying the defendant’s motion to submit a jury instruction on conspiracy to commit misdemeanor larceny. The court determined that evidence of the cumulative value of the goods taken is evidence of a conspiracy to steal goods of that value, even if the conspirators’ agreement is silent as to exact quantity. Here, the evidence showed that the value of the items taken was well in excess of $1,000.

(Dec. 31, 1969)

There was sufficient evidence of a conspiracy to commit armed robbery. The victim was approached from behind by both defendants while walking alone. One defendant held the gun while the other reached for her cellphone. Although not showing an express agreement between defendants, these circumstances sufficiently establish an implied agreement to rob the victim with a firearm.

(Dec. 31, 1969)

The evidence was sufficient to show a conspiracy to commit a robbery with a dangerous weapon. The defendant argued that there was no express agreement to use a dangerous weapon. The court held, in part, that there was an implied understanding to use such a weapon.

(Dec. 31, 1969)

(1) The evidence was sufficient to support a charge of conspiracy to traffic in cocaine by possession. A detective arranged for a cocaine sale. The defendant and an individual named Blanco arrived at the preset location and both came over to the detective to look at the money. The defendant and Blanco left together, with the defendant telling Blanco to wait at a parking lot for delivery of the drugs. Later, the defendant told Blanco to come to the defendant’s house to get the drugs. Blanco complied and completed the sale. (2) The court rejected the defendant’s argument that verdicts finding him guilty of conspiracy to commit trafficking by possession but not guilty of trafficking by possession were legally inconsistent because both crimes required the defendant to have possession. Because conspiracy to traffic by possession does not include possession as an element, the fact that the defendant was convicted of that crime and not convicted of trafficking by possession does not present any inconsistency, legal or otherwise.

(Dec. 31, 1969) rev’d on other grounds, 365 N.C. 506 (Apr 13 2012)

(1) The evidence was insufficient to support two charges of conspiracy to commit armed robbery. Having failed to achieve the objective of the conspiracy on their first attempt, the defendant and his co-conspirators returned the next day to try again. When the State charges separate conspiracies, it must prove not only the existence of at least two agreements, but also that they were separate. There is no bright-line test for whether multiple conspiracies exist. The essential question is the nature of the agreement(s), but factors such as time intervals, participants, objectives, and number of meetings must be considered. Applying this analysis, the court concluded that only one agreement existed. In both attempts, the intended victim and participants were the same; the time interval between the two attempts was approximately 36 hours; on the second attempt the group did not agree to a new plan; and while the co-conspirators considered robbing a different victim, that only was a back-up plan. The court rejected the State’s argument that because the co-conspirators met after the first attempt, acquired additional materials, made slight modifications on how to execute their plan, and briefly considered robbing a different victim, they abandoned their first conspiracy and formed a second one. (2) The trial judge committed plain error by failing to instruct the jury on all elements of conspiracy to commit armed robbery. The judge instructed the jury that armed robbery involved a taking from the person or presence of another while using or in the possession of a firearm. The judge failed to instruct on the element of use of the weapon to threaten or endanger the life of the victim.

(Dec. 31, 1969)

In a conspiracy to commit robbery case, the evidence was sufficient to establish a mutual, implied understanding between the defendant and another man to rob the victim. The other man drove the defendant to intercept the victim; the defendant wore a ski mask and had a gun; after the defendant hesitated to act, the other person assaulted the victim and took his money; and the two got into the car and departed.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss a charge of conspiracy to discharge a firearm into occupied property. The defendant, Ray, Johnson, and Phelps left a high school basketball game because of the presence of rival gang members. As they left, the defendant suggested that he was going to kill someone. A gun was retrieved from underneath the driver’s side seat of Johnson’s vehicle and Johnson let Ray drive and the defendant to sit in the front because the two “were about to do something.” Ray and the defendant argued over who was going to shoot the victim but in the end Ray drove by the gym and the defendant fired twice at the victim, who was standing in front of the gym. The court rejected the defendant’s argument that the evidence failed to show an agreement to discharge the firearm into occupied property, noting that the group understood and impliedly agreed that the defendant would shoot the victim as they drove by, the victim was standing by the gym doors, and there was a substantial likelihood that the bullets would enter or hit the gym.

(Dec. 31, 1969)

Evidence of the words and actions of the defendant and others, when viewed collectively, provided sufficient evidence of an implied agreement to assault the victim. The court noted that the spontaneity of the plan did not defeat the conspiracy and that a meeting of the minds can occur when a party accepts an offer by actions.

(Dec. 31, 1969)

There was sufficient evidence to support the defendant’s conviction of conspiracy to traffic in marijuana; the fact that the state took a voluntary dismissal of the conspiracy charge against the co-conspirator was irrelevant to that determination.

Criminal Offenses > Overbreadth and Vagueness

(Dec. 31, 1969) aff’d per curiam, 364 N.C. 421 (Oct 8 2010)

A city ordinance prohibiting loitering for the purpose of engaging in drug-related activity is unconstitutionally overbroad. Additionally, one subsection of the ordinance is void for vagueness, and another provision violates the Fourth Amendment by allowing the police to arrest in the absence of probable cause.

Criminal Offenses > First Amendment Issues

(Dec. 31, 1969)

The Stolen Valor Act, 18 U.S.C. § 704, is unconstitutional under the First Amendment. The Act makes it a federal crime to lie about having received a military decoration or medal.

(Dec. 31, 1969)

The First Amendment shields members of a church from tort liability for picketing near a soldier’s funeral. A jury held members of the Westboro Baptist Church liable for millions of dollars in damages for picketing near a soldier’s funeral service. The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment. The picketing occurred in Maryland. Although that state now has a criminal statute in effect restricting picketing at funerals, the statute was not in effect at the time the conduct at issue arose. Noting that statute and that other jurisdictions have enacted similar provisions, the Court stated: “To the extent these laws are content neutral, they raise very different questions from the tort verdict at issue in this case. Maryland’s law, however, was not in effect at the time of the events at issue here, so we have no occasion to consider how it might apply to facts such as those before us, or whether it or other similar regulations are constitutional.” Slip Op. at 11. [Author’s note: In North Carolina, G.S. 14‑288.4(a)(8), criminalizes disorderly conduct at funerals, including military funerals. In a prosecution for conduct prohibited by that statute, the issue that the U.S. Supreme Court did not have occasion to address may be presented for decision].

(Dec. 31, 1969)

Federal statute enacted to criminalize the commercial creation, sale, or possession of certain depictions of animal cruelty was substantially overbroad and violated the First Amendment.

Criminal Offenses > Homicide > Torture

(Dec. 31, 1969)

In this Mitchell County case, the defendant was convicted of first-degree murder (based on the theories of (a) malice, premeditation and deliberation; (b) felony murder; and (c) torture), possession of a firearm by a convicted felon, conspiracy to commit first-degree murder, and first-degree kidnapping for his role in the death of the victim after several days of subjecting the victim to physical abuse and death threats, interspersed with the defendant’s (and the victim’s) use of methamphetamine.

Apparently believing that the victim, an addict to whom the defendant supplied methamphetamine, had informed law enforcement officers about the defendant’s drug trafficking, the defendant began to threaten and assault the victim, firing pistol rounds near his feet, striking him, putting him in a chokehold, threatening to kill him, and asking others, in the victim’s presence, if the victim should live or die. After smoking methamphetamine with the victim and others, the defendant told the victim that people from Georgia had arrived “to take care of” him, took him outside of a house where a laser beam was focused on him, and asked him if he was ready to die. When the victim attempted to run away, the defendant tackled him and dragged him back toward the house. The defendant then used his cell phone to record the victim pleading for his life. Over the next two days, the group used more methamphetamine and the defendant continued to threaten to kill the victim, to physically abuse him, to prevent him from leaving – at one point binding the victim’s hands with duct tape -- and to film him confessing to various acts. On the third day, the defendant shot the victim in the left shin and obtained a telephone cord to “make [the victim] hang himself.” The victim’s face was turning blue when the cord broke and he fell to the ground. The defendant eventually threw the victim into the yard, telling others on the scene that they could either “get involved or [they] could be next.” The defendant ordered others to hit the victim with a large rock. The defendant then ordered his girlfriend to shoot the victim or he was “gonna hurt [them] all.” The woman shot the victim once in the side of the head, killing him. The defendant then told others to help him dispose of the victim’s body.

(1) The defendant argued on appeal that the trial court erred by denying his request for a jury instruction on voluntary intoxication, asserting that his consumption of methamphetamine defeated his ability to form the specific intent necessary to support first-degree murder based on malice, premeditation and deliberation and the felony-murder rule and first-degree kidnapping. Noting that to be entitled to such an instruction, the defendant must produce substantial evidence that he was so intoxicated he could not inform a deliberate and premeditated intent to kill, the Court of Appeals held that the defendant did not satisfy this requirement. Testimony regarding defendant’s consumption of methamphetamine and his girlfriend’s testimony that he was “wigging” -- meaning that he believed things that were not present were in fact present -- were not enough.

The court reasoned that the defendant’s actions showed that he intended to kill the victim. He brandished a gun, saying he “smelled death.” He wondered out loud about what he would do with the witnesses if he killed the victim, ordered others to hit the seriously-injured victim with a large rock, told his girlfriend to shoot the victim, orchestrated the disposal of the victim’s body, kept a bullet he used to shoot the victim in the leg as a trophy, fled to Georgia after the killing, told his family what he did, and showed videos he recorded of the victim.

The Court also found ample evidence of defendant’s specific intent to kill to support his conviction for felony murder based on first-degree kidnapping. His actions showed his specific intent to unlawfully restrain or confine the victim over successive days, stating he was doing this in retribution for the victim’s alleged snitching. The defendant bound the victim’s hands behind his back, stopped the victim when he tried to run away, told the victim he would be freed if the victim killed his own mother, threatened to kill the victim by making him inject methamphetamine combined with poison, and arranged an attempted hanging of the victim.

(2) The Court of Appeals rejected the defendant’s argument that the trial court erred by failing to dismiss the charge of first-degree murder based on torture. The defendant argued that because the victim died from the gunshot delivered by defendant’s girlfriend, torture was not a proximate cause of his death. The Court of Appeals reasoned that the torture of the victim included defendant’s conduct over the days when the victim was detained, humiliated, beaten, and tortured. The torture included all of the abuse the defendant delivered during that time, including the defendant ordering his girlfriend, under threats to her and her families’ lives, to shoot and kill the victim.

Criminal Offenses > Homicide > Born Alive Rule

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss first-degree murder charges where the victim was in utero at the time of the incident but was born alive and lived for one month before dying.

(Dec. 31, 1969)

Because of a procedural error by the State, the court declined to address an issue regarding the born alive rule presented in the State’s appeal of a trial court’s order dismissing capital murder charges. The defendant shot a woman who was pregnant with twins. Although the bullet did not strike the fetuses, the injury caused a spontaneous abortion. While both twins had heartbeats, experts said that they were pre-viable.

Criminal Offenses > Homicide > Drug-Related Deaths

(Dec. 31, 1969)

(1) In a case in which the victim died after consuming drugs provided by the defendant and the defendant was convicted of involuntary manslaughter, the trial court did not err by instructing the jury on second-degree murder and the lesser offense of involuntary manslaughter. The defendant objected to submission of the lesser offense. The evidence showed that the defendant sold the victim methadone and that the defendant had nearly died the month before from a methadone overdose. There was no evidence that the defendant intended to kill the victim by selling him the methadone. This evidence would support a finding by the jury of reckless conduct under either second-degree murder or involuntary manslaughter. (2) The court also rejected the defendant’s argument that under G.S. 14-17, he only could have been convicted of second-degree murder for his conduct.

Criminal Offenses > Homicide > Felony-Murder

(Dec. 31, 1969)

Criminal Procedure > Verdict > Mutually Exclusive Verdicts

(Dec. 31, 1969)

Rejecting the defendant’s ineffective assistance of counsel claim with respect to his first-degree felony murder conviction, the court also rejected the proposition that a felony murder conviction cannot be predicated on a felony of shooting into occupied property where that felony also was the cause of the victim’s death. Reviewing the relevant case law, the court concluded:

[I]t is clear that neither the Supreme Court nor this Court has ever expressly recognized an exception to the felony murder rule for the offense of discharging a weapon into occupied property. At most, North Carolina courts have recognized a very limited “merger doctrine” that precludes use of the felony murder rule in situations where the defendant has committed one assault crime against one victim and the State seeks to use that assault as the predicate felony for a felony murder conviction.

(Dec. 31, 1969)

In this case where the defendant was convicted of felony murder with the underlying felony being felony child abuse, the court rejected the defendant’s argument that the merger doctrine prevents conviction of first-degree felony murder when there is only one victim and one assault. Although a defendant cannot be sentenced for both the underlying felony and first-degree felony murder, that did not occur here.

(Dec. 31, 1969)

(1) The evidence was sufficient to submit felony murder to the jury on the basis of felony larceny with a deadly weapon being the underlying felony. The court rejected the defendant’s argument that the State failed to show that a beer bottle found at the crime scene was used as a “deadly weapon” within the meaning of the homicide statute, G.S. 14-17. The State’s evidence showed, among other things that the murder victim’s injuries could have been caused by the bottle. Thus, the State presented sufficient evidence that the broken beer bottle constituted a deadly weapon. The court also rejected the defendant’s argument that the State failed to prove that the defendant used the broken bottle during the commission of the felonious larceny, noting that the evidence showed that after incapacitating the victim with the broken bottle the defendant stole the victim’s vehicle. Finally, the court rejected the defendant’s argument that the State failed to prove that the killing was committed in the perpetration of the larceny, finding sufficient evidence of a continuous transaction. (2) Where the defendant was convicted of felony murder with the underlying felony being felony larceny, the trial court erred by failing to arrest judgment on the underlying felony.

(Dec. 31, 1969) rev’d on other grounds, 369 N.C. 351 (Dec 21 2016)

Felony discharging of a firearm into an occupied vehicle can serve as an underlying felony supporting a charge of felony murder.

(Dec. 31, 1969)

In this first-degree murder case, the court rejected the defendant’s argument that there was an insufficient relationship between the felony supporting felony-murder (discharging a firearm into occupied property) and the death. The law requires only that the death occur “in the perpetration or attempted perpetration” of a predicate felony; there need not be a causal “causal relationship”’ between the felony and the homicide. All that is required is that the events occur during a single transaction. Here, the defendant stopped shooting into the house after forcing his way through the front door; he then continued shooting inside. The defendant argued that once he was inside the victim attempted to take his gun and that this constituted a break in the chain of events that led to her death. Even if this version of the facts were true, the victim did not break the chain of events by defending herself inside her home after the defendant continued his assault indoors.

(Dec. 31, 1969)

In this child homicide case, the trial court did not err by denying the defendant’s motion to dismiss a charge of felony-murder based on an underlying felony child abuse. Prior to the incident in question the victim was a normal, healthy baby. After having been left alone with the defendant, the victim was found unconscious, unresponsive, and barely breathing. The child’s body had bruises and scratches, including unusual bruises on her buttocks that were not “typical” of the bruises that usually resulted from a fall and a recently inflicted blunt force injury to her ribs that did not appear to have resulted from the administration of CPR. An internal examination showed extensive bilateral retinal hemorrhages in multiple layers of the retinae, significant cerebral edema or swelling, and extensive bleeding or subdural hemorrhage in the brain indicating that her head had been subjected to a number of individual and separate blunt force injuries that were sufficiently significant to damage her brain and to cause a leakage of blood. Her injuries, which could have been caused by human hands, did not result from medical treatment or a mere fall from a couch onto a carpeted floor.

(Dec. 31, 1969)

The evidence was sufficient to support a first-degree felony-murder conviction when the underlying felony was armed robbery and where the defendant used the stolen item—a .357 Glock handgun—to commit the murder and the two crimes occurred during a continuous transaction.

(Dec. 31, 1969)

The trial court properly submitted felony-murder to the jury based on underlying felony of attempted sale of a controlled substance with the use of a deadly weapon. The defendant and an accomplice delivered cocaine to the victim. Approximately one week later, they went to the victim’s residence to collect the money owed for the cocaine and at this point, the victim was killed. At the time of the shooting, the defendant was engaged in an attempted sale of cocaine (although the cocaine had been delivered, the sale was not consummated because payment had not been made) and there was no break in the chain of events between the attempted sale and the murder.

Criminal Offenses > Homicide > Voluntary Manslaughter

(Dec. 31, 1969)

On March 13, 2016, the defendant was out at a bar in Greensboro with his nephews and several other people to celebrate a friend’s birthday. As they were leaving the bar around 2:00 a.m., another group of men approached and one of them asked a woman in the defendant’s group if she would perform sexual acts for money. The defendant’s group rebuked the other man, and the defendant’s group left the parking lot in two vehicles. When they were stopped at a red light, a vehicle occupied by the second group of men pulled up next to the vehicle in which the defendant was riding. One of the men in the second group smashed a bottle against the defendant’s vehicle, and the second group pursued the defendant’s group at high speed as they drove away. The vehicles all pulled into a nearby parking lot, where two off-duty police officers were parked in a patrol vehicle. As the occupants exited their vehicles, a large fight broke out involving different clusters of people, and one person (“Jones”) was killed. Additional officers responded to the scene and attempted to break up the multiple altercations. None of the officers saw a weapon being used, but Jones and several other individuals had suffered deep lacerations, and their statements to the officers on scene indicated the defendant was the one who cut them with a knife. As the fights were being broken up, an officer saw the defendant walking back towards a vehicle, ignoring commands to stop, and making a furtive movement to throw something into the car. Officers checked the car and found a bloody knife on the driver’s seat. The defendant was searched and also found to have “bath salts” in his pocket. The medical examiner concluded that stab wounds consistent with the knife found in the car caused Jones’ death. Additional evidence indicating that the defendant was the person who mortally wounded Jones included blood found on the defendant’s shoes and clothing, the defendant’s close proximity to the wounded individuals, the defendant’s DNA on the knife, and the defendant’s statements to a private investigator that others were stomping and hitting him so he pulled a knife out of his pocket and “came out swinging.”

The defendant was charged with first-degree murder, possession of 4-chloromethcathinone, and attaining habitual felon status. At the conclusion of a jury trial on the substantive charges, the jury was instructed on first-degree murder, second-degree murder, voluntary manslaughter, and the controlled substance offense. The jury convicted the defendant of voluntary manslaughter and drug possession. On appeal, the defendant argued that the trial court should have granted his motion to dismiss for insufficient evidence based on self-defense (or that he received ineffective assistance of counsel if that argument was deemed not adequately preserved), and that the trial court erred in its jury instruction regarding voluntary manslaughter.

Because the jury only convicted the defendant of manslaughter, rather than first- or second-degree murder, and because the state did not advance the theories that the defendant had either killed in the heat of passion or was the initial aggressor, the appellate court concluded that the only issue it needed to determine was whether the state’s evidence was sufficient to withstand a motion to dismiss a charge of voluntary manslaughter premised on a killing that would be second-degree murder (committed with malice) but for the fact that the defendant had an imperfect claim of self-defense (based on his use of excessive force). To survive such a motion, the state’s evidence would have to show that the defendant: (1) intentionally wounded Jones; (2) proximately causing his death; (3) under a reasonable belief that use of force was necessary to avoid death or great bodily harm; but (4) the force used was greater than necessary to prevent such harm. Viewed in the light most favorable to the state, there was sufficient evidence in this case from which a reasonable juror could find each of those four factors, and the motion to dismiss was properly denied.

The defendant also argued on appeal that the parties had agreed to use pattern jury instruction 206.10, but the trial court’s actual instructions to the jury did not directly follow the pattern instruction language. If true, a challenge to that instruction would be preserved for appellate review even though the defense did not object. But based on its review of the record, the appellate court held that there was not an agreement to use a specific instruction, so its review of the jury instructions was limited to plain error. After reviewing the instructions as a whole, the appellate court found that the trial court had adequately instructed the jury as to each element and lesser-included offense. “Because the jury was informed of the essential elements it would have to find beyond a reasonable doubt in order to convict defendant of voluntary manslaughter, the trial court did not err in its jury instructions.”

(Dec. 31, 1969)

The evidence was sufficient with respect to the defendant’s voluntary manslaughter conviction. The defendant was charged with first-degree murder. At trial the defendant admitted that he shot and killed his wife. He argued however that as a result of diabetes, his blood sugar was dangerously low at the time of the shooting, causing him to act in a manner that was not voluntary. The defendant moved for a directed verdict on the first-degree murder charges as well as the lesser charges of second-degree murder and voluntary manslaughter. The judge denied this motion and the jury found him guilty of voluntary manslaughter. The court rejected the defendant’s argument that acting in the “heat of passion” was an element of voluntary manslaughter, noting that for this offense the State need only prove that the defendant killed the victim by an intentional and unlawful act and that the defendant’s act was a proximate cause of death. Here, the defendant admitted that he shot his wife. His sole defense was that he did not act voluntarily due to low blood sugar, which put him in a state of automatism. The State presented expert testimony that he was not in such a state. Thus, there was substantial evidence from which the jury could reject the defendant’s automatism defense and conclude that the defendant intentionally shot and killed his wife—the only elements necessary to prove voluntary manslaughter.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss a voluntary manslaughter charge. The court rejected the defendant’s argument that there was insufficient evidence that she killed the victim by an intentional and unlawful act, noting that although there was no direct evidence that the defendant was aware that she hit the victim with her car until after it occurred, there was circumstantial evidence that she intentionally struck him. Specifically, the victim had a history, while under the influence of drugs and/or alcohol (as he was on the day in question), of acting emotionally and physically abusive towards the defendant; when the victim was angry, he would tell the defendant to “[g]et her stuff and get out,” so the defendant felt “trapped”; on the day in question the victim drank alcohol and allegedly smoked crack before hitting the defendant in the face, knocking her from the porch to the yard; the defendant felt scared and went “to a different state of mind” after being hit; before driving forward in her vehicle, the defendant observed the victim standing in the yard, near the patio stairs; and the defendant struck the stairs because she “wanted to be evil too.” The court concluded: “From this evidence, a jury could find Defendant felt trapped in a cycle of emotional and physical abuse, and after a particularly violent physical assault, she decided it was time to break free.”

Criminal Offenses > Homicide > Involuntary Manslaughter

(Dec. 31, 1969)

Defenses > Self-Defense

In a case where the defendant was found guilty of involuntary manslaughter on the theory that he committed an unlawful act which proximately caused the victim’s death, the trial court committed reversible error by refusing to give a jury instruction on defense of others as an affirmative defense to the unlawful act at issue. The defendant was involved in an altercation at a waterfront bar that resulted in the death of the victim. The defendant’s version of the events was that the victim fell into the water and drown after physical contact by the defendant; the defendant claimed to be defending his friend Jimmy, who had been shoved by the victim. The unlawful act at issue was the offense of affray. On appeal the defendant argued that the trial court committed reversible error by refusing to instruct the jury on defense of others as an affirmative defense to the crime of affray. The defendant asserted that his only act—a single shove—was legally justified because he was defending his friend and thus was not unlawful. The court agreed. It noted that the state Supreme Court has previously sanctioned the use of self-defense by a defendant as an appropriate defense when the defendant is accused of unlawfully participating in affray. Where, as here, the State prosecuted the defendant for involuntary manslaughter based on the theory that the defendant committed an unlawful act (as opposed to the theory that the defendant committed a culpably negligent act) “the defendant is entitled to all instructions supported by the evidence which relate to the unlawful act, including any recognized affirmative defenses to the unlawful act.” Here, the evidence supports the defendant’s argument that the instruction on defense of others was warranted. Among other things, there was evidence that Jimmy felt threatened when shoved by the victim; that the defendant immediately advanced towards the victim in response to his contact with Jimmy; that the victim punched and kicked the defendant; and that the defendant only struck the victim once. The defendant was thus entitled to a defense of others instruction to affray. The court was careful to note that it took no position as to whether the defendant did in fact act unlawfully. It held only that the defendant was entitled to the instruction. The court also noted that the issue in this case is not whether self-defense is a defense to involuntary manslaughter; the issue in this case is whether self-defense is an affirmative defense to affray, the unlawful act used as the basis for the involuntary manslaughter charge.

(Dec. 31, 1969)

The trial court did not commit plain error by failing to instruct the jury on the lesser-included offense of involuntary manslaughter. In the context of a shooting, the charge of involuntary manslaughter requires evidence of the absence of intent to discharge the weapon. This fact distinguishes involuntary manslaughter from its voluntary counterpart, which requires proof of intent. The defendant’s argument fails because there was no evidence at trial suggesting that the defendant did not intend to shoot his wife. Rather, the defendant’s defense relied on his argument that he was in a state of automatism--a complete defense to all criminal charges--which the jury rejected. Here, there was no evidence suggesting that the shooting was an accident.

(Dec. 31, 1969)

The trial court erred by denying the defendant’s motion to dismiss a second-degree murder charge where there was insufficient evidence of malice and the evidence showed that the death resulted from a mishap with a gun. The court remanded for entry of judgment for involuntary manslaughter.

(Dec. 31, 1969)

The trial court properly denied the defendant’s motion to dismiss a charge of involuntary manslaughter. The primary issue raised in the defendant’s appeal was whether there was sufficient evidence that the defendant committed a culpably negligent act which proximately resulted in the victim’s death. The evidence showed that the defendant became angry at the victim during the defendant’s party and “kicked or stomped” his face, leaving the victim semiconscious; the defendant was irritated that he had to take the victim to meet the victim’s parents at a church; instead of taking the victim to the church, the defendant drove him to an isolated parking area and again beat him; the defendant abandoned the victim outside knowing that the temperature was in the 20s and that the victim had been beaten, was intoxicated, and was not wearing a shirt; the defendant realized his actions put the victim in jeopardy; and even after being directly informed by his father that the victim was missing and that officers were concerned about him, the defendant lied about where he had last seen the victim, hindering efforts to find and obtain medical assistance for the victim. On these facts, the court had “no difficulty” concluding that there was sufficient evidence that the defendant’s actions were culpably negligent and that he might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss a charge of involuntary manslaughter where a person under 21 years of age died as a result of alcohol poisoning and it was alleged that the defendant aided and abetted the victim in the possession or consumption of alcohol in violation or G.S. 18B-302. The court rejected the defendant’s argument that the State was required to prove that the defendant provided the victim with the specific alcohol he drank on the morning of his death. The court concluded that the evidence was sufficient, stating:

The evidence established that defendant frequently hosted parties at her home during which defendant was aware that underage people, including [the victim], consumed alcohol. On at least one occasion, defendant was seen offering alcohol to [the victim], and defendant knew the [victim] was under the age of 21. The State presented substantial evidence that defendant’s actions of allowing [the victim] to consume, and providing [the victim] with, alcohol were part of a plan, scheme, system, or design that created an environment in which [the victim] could possess and consume alcohol and that her actions were to consume, and providing [the victim] with, alcohol were part of a plan, scheme, system, or design that created an environment in which [the victim] could possess and consume alcohol and that her actions were done knowingly and were not a result of mistake or accident. Viewed in the light most favorable to the State, we conclude the evidence was sufficient to allow a reasonable juror to conclude that defendant assisted and encouraged [the victim] to possess and consume the alcohol that caused his death.

(Dec. 31, 1969)

G.S. 20-141.4(c) does not bar simultaneous prosecutions for involuntary manslaughter and death by vehicle; it only bars punishment for both offenses when they arise out of the same death.

(Dec. 31, 1969)

The State presented sufficient evidence of involuntary manslaughter. The State proved that an unlawful killing occurred with evidence that the defendant committed the misdemeanor of improper storage of a firearm. Additionally, the State presented sufficient evidence that the improper storage was the proximate cause of the child’s death.

Criminal Offenses > Homicide > Lying in Wait

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss a first-degree murder charge based on the theory of lying in wait. The defendant asserted that no ambush occurred because the defendant announced his presence. The evidence showed that the victim was in his residence with friends when the defendant arrived after dark. The victim went outside to speak with the defendant. There was no evidence that the defendant threatened or directed harm at the victim. The victim returned to his trailer, unharmed, after speaking with the defendant. The defendant waited for the victim to go back inside and then fired his weapon into the trailer, killing the victim. The victim had no warning that the defendant intended any harm. When the defendant spoke with the victim, the defendant told the victim to send another person outside, indicating that he only had an issue with the other person. Therefore, the court concluded, the victim was taken by complete surprise and had no opportunity to defend himself.

(Dec. 31, 1969)

In this first-degree murder case, the trial court did not err by instructing the jury on a theory of lying in wait. The court rejected the defendant’s argument that this theory required the State to prove a “deadly purpose” to kill, noting that the state Supreme Court has held that "lying in wait is a physical act and does not require a finding of any specific intent." (quotation omitted). The court continued:

As the Supreme Court has previously held, [h]omicide by lying in wait is committed when: the defendant lies in wait for the victim, that is, waits and watches for the victim in ambush for a private attack on him, intentionally assaults the victim, proximately causing the victim's death. In other words, a defendant need not intend, have a purpose, or even expect that the victim would die. The only requirement is that the assault committed through lying in wait be a proximate cause of the victim's death.

(quotation and citation omitted). The court went on to find that the evidence was sufficient to support a lying in wait instruction where the defendant waited underneath a darkened staircase for the opportunity to rob the victim.

(Dec. 31, 1969)

The evidence supported a jury instruction for first-degree murder by lying in wait. The evidence showed that the defendant parked outside the victim’s house and waited for her. All of the following events occurred 15-20 minutes after the victim exited her home: the defendant confronted the victim and an argument ensued; the defendant shot the victim; a neighbor arrived and saw the victim on the ground; the defendant shot the victim again while she was lying on the ground; the neighbor drove away and called 911; and an officer arrived on the scene. This evidence suggests that the shooting immediately followed the defendant’s ambush of the victim outside the house.

Criminal Offenses > Homicide > Malice

(Dec. 31, 1969)

In this murder case where the trial court submitted jury instructions on both second-degree murder and voluntary manslaughter, the court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the second-degree murder charge. The defendant argued that there was insufficient evidence that he acted with malice and not in self-defense. The court noted that any discrepancy between the State’s evidence and the defendant’s testimony was for the jury to resolve.

(Dec. 31, 1969)

In a second-degree murder case arising after the defendant drove impaired and hit and killed two bicyclists, there was sufficient evidence of malice. The defendant’s former girlfriend previously warned him of the dangers of drinking and driving; the defendant’s prior incident of drinking and driving on the same road led the girlfriend to panic and fear for her life; the defendant's blood alcohol level was .16; the defendant consumed an illegal controlled substance that he knew was impairing; the defendant swerved off the road three times prior to the collision, giving him defendant notice that he was driving dangerously; despite this, the defendant failed to watch the road and made a phone call immediately before the collision; the defendant failed to apply his brakes before or after the collision; and the defendant failed to call 911 or provide aid to the victims.

(Dec. 31, 1969)

In a second-degree murder case stemming from a vehicle accident, there was sufficient evidence of malice. The defendant knowingly drove without a license, having been cited twice for that offense in the three weeks prior to the accident. When the original driver wanted to pull over for the police, the defendant took control of the vehicle by climbing over the back seat and without stopping the vehicle. He was attempting to evade the police because of a large volume of shoplifted items in his vehicle and while traveling well in excess of the speed limit. He crossed a yellow line to pass vehicles, twice passed vehicles using a turn lane, drove through a mowed corn field and a ditch, and again crossed the center line to collide with another vehicle while traveling 66 mph and without having applied his brakes. To avoid arrest, the defendant repeatedly struck an injured passenger as he tried to get out of the vehicle and escape.

(Dec. 31, 1969)

In a case in which a second officer got into a vehicular accident and died while responding to a first officer’s communication about the defendant’s flight from a lawful stop, the evidence was sufficient to establish malice for purposes of second-degree murder. The defendant’s intentional flight from the first officer–including driving 65 mph in a residential area with a speed limit of 25 mph and throwing bags of marijuana out of the vehicle–reflected knowledge that injury or death would likely result and manifested depravity of mind and disregard of human life.

(Dec. 31, 1969)

There was sufficient evidence of malice to support a second-degree murder conviction. Based on expert testimony the jury could reasonably conclude that the child victim did not die from preexisting medical conditions or from a fall. The jury could find that while the victim was in the defendant’s sole custody, he suffered non-accidental injuries to the head with acute brain injury due to blunt force trauma of the head. The evidence would permit a finding that the victim suffered a minimum of four impacts to the head, most likely due to his head being slammed into some type of soft object. Combined with evidence that the defendant bit the victim, was upset about the victim’s mother’s relationship with the victim’s father, and that the defendant resented the victim, the jury could find that the defendant intentionally attacked the month-old child, resulting in his death.

(Dec. 31, 1969)

There was sufficient evidence of malice to sustain a second-degree murder conviction. Because there was evidence that the defendant killed the victim with a deadly weapon, the jury could infer that the killing was done with malice. The court rejected the defendant’s argument that his statements that he and the victim “had words or something” provided evidence of provocation sufficient to negate the malice presumed from the use of a deadly weapon or require a voluntary manslaughter instruction.

(Dec. 31, 1969)

There was sufficient evidence of malice in a case arising from a vehicle accident involving impairment. The defendant admitted that he drank 4 beers prior to driving. The State’s expert calculated his blood alcohol level to be 0.08 at the time of the collision and other witnesses testified that the defendant was impaired. Evidence showed that he ingested cocaine and that the effects of cocaine are correlated with high-risk driving. The defendant admitted that he was speeding, and experts calculated his speed to be approximately 15 mph over the posted speed limit. The State also introduced evidence that the defendant had 4 prior driving while impaired convictions.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss a charge of second-degree murder. The defendant, after being kicked in the face in a fight inside a nightclub, became angry about his injury, retrieved a 9mm semi-automatic pistol and loaded magazine from his car, and loaded the gun, exclaiming "Fuck it. Who wants some?" He then began firing toward the crowd, killing an officer. Evidence of the intentional use of a deadly weapon — here, a semi-automatic handgun — that proximately causes death triggers a presumption that the killing was done with malice. This presumption is sufficient to withstand a motion to dismiss a second-degree murder charge. The issue of whether the evidence is sufficient to rebut the presumption of malice in a homicide with a deadly weapon is then a jury question.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss charges of second-degree murder, felony serious injury by vehicle, and impaired driving. The evidence showed that the defendant was under the influence of an impairing substance at the time of the accident. A chemical analysis of blood taken from the defendant after the accident showed a BAC of 0.14 and the State’s expert estimated that his BAC was 0.19 at the time of the accident. The defendant admitted having consumed 5 or 6 beers that day. Four witnesses testified that they detected a strong odor of alcohol emanating from the defendant immediately after the accident. The defendant had bloodshot eyes and was combative with emergency personnel immediately after the accident. Finally, the defendant’s speed exceeded 100 miles per hour and he failed to use his brakes or make any attempt to avoid the collision.

(Dec. 31, 1969)

There was sufficient evidence to survive a motion to dismiss in a case in which the defendant was charged with second-degree murder under G.S. 14-17 for having a proximately caused a murder by the unlawful distribution and ingestion of Oxymorphone. There was sufficient evidence of malice where the victim and a friend approached the defendant to purchase prescription medication, the defendant sold them an Oxymorphone pill for $20.00, telling them that it was “pretty strong pain medication[,]” and not to take a whole pill or “do anything destructive with it.” The defendant also told a friend that he liked Oxymorphone because it “messe[d]” him up. The jury could have reasonably inferred that the defendant knew Oxymorphone was an inherently dangerous drug and that he acted with malice when he supplied the pill.

(Dec. 31, 1969)

There was sufficient evidence of malice in a first-degree murder case. The intentional use of a deadly weapon which proximately results in death gives rise to the presumption of malice. Here, the victim was stabbed in the torso with a golf club shaft, which entered the body from the back near the base of her neck downward and forward toward the center of her chest to a depth of eight inches, where it perforated her aorta just above her heart; she was stabbed with a knife to a depth of three inches; her face sustained blunt force trauma consistent with being struck with a clothes iron; and there was evidence she was strangled. The perforation by the golf club shaft was fatal.

(Dec. 31, 1969)

There was sufficient evidence of malice in a second-degree murder case involving a vehicle accident. The defendant, whose license was revoked, drove extremely dangerously in order to evade arrest for breaking and entering and larceny. When an officer attempted to stop the defendant, he fled, driving more than 90 miles per hour, running a red light, and traveling the wrong way on a highway — all with the vehicle's trunk open and with a passenger pinned by a large television and unable to exit the vehicle.

(Dec. 31, 1969)

There was sufficient evidence of malice to support a second-degree murder conviction in a case where the defendant ran over a four-year-old child. When she hit the victim, the defendant was angry and not exhibiting self-control; the defendant’s vehicle created “acceleration marks” and was operating properly; the defendant had an “evil look”; and the yard was dark, several small children were present, and the defendant did not know where the children were when she started her car.

(Dec. 31, 1969)

There was sufficient evidence of malice to sustain a second-degree murder conviction where the defendant drove recklessly, drank alcohol before and while operating a motor vehicle, had prior convictions for impaired driving and driving while license revoked, and fled and engaged in elusive behavior after the accident.

Criminal Offenses > Homicide > Multiple Convictions/Lesser Included Offenses

(Dec. 31, 1969)

The trial court erred by failing to arrest judgment on one of the underlying felonies supporting the defendant’s felony-murder convictions. The court rejected the defendant’s argument that judgment must be arrested on all of the felony convictions. The defendant asserted that because the trial court’s instructions were disjunctive and permitted the jury to find her guilty of felony-murder if it found that she committed “the felony of robbery with a firearm, burglary, and/or kidnapping,” the trial court should have arrested judgment on all of the felony convictions on the theory that they all could have served as the basis for the felony murder convictions. Citing prior case law the court rejected this argument, stating that “[i]n cases where the jury does not specifically determine which conviction serves as the underlying felony, we have held that the trial court may, in its discretion, select the felony judgment to arrest.”

(Dec. 31, 1969)

No double jeopardy violation occurred when the defendant was convicted of attempted first-degree murder and assault with a deadly weapon with intent to kill inflicting serious bodily injury based on the same events. Each offense includes an element not included in the other.

(Dec. 31, 1969)

Citing State v. Washington, 141 N.C. App. 354 (2000), the court held that the defendant was properly charged and convicted of attempted murder and assault as to each victim, even though the offenses arose out of a single course of conduct involving multiple shots from a gun.

(Dec. 31, 1969)

For purposes of double jeopardy, a second-degree murder conviction based on unlawful distribution of and ingestion of a controlled substance was not the same offense as sale or delivery of a controlled substance to a juvenile or possession with intent to sell or deliver a controlled substance.

(Dec. 31, 1969)

A defendant may not be sentenced for both involuntary manslaughter and felony death by vehicle arising out of the same death. A defendant may not be sentenced for both felony death by vehicle and impaired driving arising out of the same incident. However, a defendant may be sentenced for both involuntary manslaughter and impaired driving.

(Dec. 31, 1969)

Criminal Offenses > Homicide > Premeditation & Deliberation

(Dec. 31, 1969)

The defendant’s actions provided sufficient evidence of premeditation and deliberation to survive a motion to dismiss an attempted murder charge. From the safety of a car, the defendant drove by the victim’s home, shouted a phrase used by gang members, and then returned to shoot at her and repeatedly fire bullets into her home when she retreated from his attack. The court noted that the victim did not provoke the defendant in any way and was unarmed; the defendant drove by the victim’s home before returning and shooting at her; during this initial drive-by, the defendant or a companion in his car yelled out “[W]hat’s popping,” a phrase associated with gang activity that a jury may interpret as a threat; the defendant had a firearm with him; and the defendant fired multiple shots toward the victim and her home. This evidence supported an inference that the defendant deliberately and with premeditation set out to kill the victim.

(Dec. 31, 1969) , 2022-NCCOA-908, ___ N.C. App. ___ 2022-12-29

Criminal Procedure > Jury Argument > Miscellaneous Cases

Evidence > Relevancy--Rule 401 > Context Evidence

In this Randolph County case, the Court of Appeals upheld defendant’s conviction for solicitation to commit first-degree murder, finding no prejudicial error by the trial court.

(Dec. 31, 1969)

The defendant was convicted after a jury trial of first-degree murder, attempted first-degree murder, and other serious felony charges after he shot and killed his former girlfriend and then pistol-whipped and fired a gun at another woman, a registered nurse. In light of the facts of the case, the Court of Appeals rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the attempted first-degree murder charge for insufficiency of the evidence that he acted with premeditation and deliberation. The State proved, among other things, that the defendant said he would kill her and that he shot the door near the doorknob four to six times before kicking the door and yelling, which the court deemed sufficient evidence for the jury to reasonably conclude that the defendant attempted to kill the victim with premeditation and deliberation.

The appellate court also concluded that the defendant could not demonstrate prejudicial error resulting from the trial court’s deadly weapon malice instruction. The defendant argued that the instruction could have been misleading to the extent that it allowed an inference of malice on the attempted murder charge for shooting at the victim based on the injury resulting from a different crime, the pistol-whipping. Based on the defendant’s use of a weapon and the related circumstances, the court was unpersuaded that the jury would have reached a different result without the instruction.

(Dec. 31, 1969)

In this murder case, there was sufficient evidence of premeditation and deliberation. The evidence showed that the victim suffered from a heart condition and other ailments. In the months before his death, the defendant and the victim--who were married--were arguing about financial issues. The defendant began a romantic relationship with her therapist and planned to ask the victim for divorce. A search of the home computer discovered Internet searches including “upon death of the veteran,” “can tasers kill people,” “can tasers kill people with a heart condition,” “what is the best handgun for under $200,” “death in absentia USA,” and “declare someone dead if missing 3 years.” On the date of death, the defendant visited her nephew, expressed concern about her safety due to break-ins in her neighborhood, and received from her nephew a gun and a knife. Shortly after that, she returned home and asked the victim to go on a drive with her. The defendant took the gun and knife in the car and used the weapons to kill the victim, shooting him and stabbing him approximately 12 times. Later in the day, the defendant messaged her therapist “it’s almost done” and “it got ugly.” After the incident, the defendant got rid of her bloodstained clothing, threw away the victim’s medications and identification, and said that he had either gone to Florida or was at a rehabilitation center.

(Dec. 31, 1969)

In this first-degree murder case, the evidence was sufficient to go to the jury on the theory of premeditation and deliberation. Among other things, there was no provocation by the victim, who was unarmed; the defendant shot the victim at least four times; and after the shooting the defendant immediately left the scene without aiding the victim.

(Dec. 31, 1969)

In this first-degree murder case there was sufficient evidence of premeditation and deliberation. Among other things, the evidence showed a lack of provocation by the victim, that just prior to the shooting the defendant told others that he was going to shoot a man over a trivial matter, that the defendant shot the victim 3 times and that the victim may have been turning away from or trying to escape at the time.

(Dec. 31, 1969)

In a first-degree murder case, there was sufficient evidence of premeditation and deliberation. The court noted that the victim did not provoke the defendant and that the evidence was inconsistent with the defendant’s claim of self-defense.

(Dec. 31, 1969)

In this first-degree murder case, the evidence was sufficient to show premeditation and deliberation. After some words in a night club parking lot the defendant shot the victim, who was unarmed, had not reached for a weapon, had not engaged the defendant in a fight, and did nothing to provoke the defendant’s violent response. After the victim fell from the defendant’s first shot, the defendant shot the victim 6 more times. Instead of then trying to help the victim, the defendant left the scene and attempted to hide evidence.

(Dec. 31, 1969)

In a first-degree murder case there was sufficient evidence of premeditation and deliberation. There was evidence that the victim begged for his life, that the victim’s body had eight gunshot wounds, primarily in the head and chest, and there was a lack of provocation.

(Dec. 31, 1969)

The State presented sufficient evidence that the defendant acted with premeditation and deliberation where, among other things, the defendant did not want a second child and asked his wife to get an abortion, he was involved in a long-term extramarital affair with a another woman who testified that the defendant was counting down the seconds until his first child would go to college so that he could leave his wife, the defendant had made plans to move out of his martial home but reacted angrily when his wife suggested that if the couple divorced she might move out of the state and take the children with her, and shortly before he shot his wife, he placed her cell phone out of her reach.

(Dec. 31, 1969)

In a first-degree murder case, there was sufficient evidence of premeditation, deliberation, and intent to kill. After the defendant and an accomplice beat and kicked the victim, they hog-tied him so severely that his spine was fractured, and put tissue in his mouth. Due to the severe arching of his back, the victim suffered a fracture in his thoracic spine and died from a combination of suffocation and strangulation.

(Dec. 31, 1969)

(1) The defendant’s statement that he formed the intent to kill the victim and contemplated whether he would be caught before he began the attack was sufficient evidence that he formed the intent to kill in a cool state of blood for purposes of a first-degree murder charge. (2) The court rejected the defendant’s argument that his evidence of alcohol and crack cocaine induced intoxication negated the possibility of premeditation and deliberation as a matter of law.

Criminal Offenses > Homicide > Proximate Cause

(Dec. 31, 1969)

The defendant’s shooting of the victim’s mother (the defendant’s wife) while the victim was in utero was a proximate cause of the victim’s death after being born alive. The gunshot wound necessitated the child’s early delivery, the early delivery was a cause of a complicating condition, and that complicating condition resulted in her death.

(Dec. 31, 1969)

In a case in which a second officer got into a vehicular accident and died while responding to a first officer’s communication about the defendant’s flight from a lawful stop, the defendant’s flight from the first officer was the proximate cause of the second officer’s death. The evidence was sufficient to allow a reasonable jury to conclude that the second officer’s death would not have occurred had the defendant not fled and that the second officer’s death was reasonably foreseeable. The court rejected the defendant’s argument that the second officer’s contributory negligence broke the causal chain.

(Dec. 31, 1969)

There was sufficient evidence that the defendant’s actions were the proximate cause of death. The defendant argued that two unforeseeable events proximately caused the victims’ deaths: a third-party’s turn onto the road and the victims’ failure to yield the right-of-way. The court found that the first event foreseeable. As to the second, it noted that the defendant's speeding and driving while impaired were concurrent proximate causes.

(Dec. 31, 1969)

Criminal Offenses > Assaults > Assault

(Dec. 31, 1969) aff'd on other grounds, 364 N.C. 314 (Dec 9 2011)

In a case involving assault on a firefighter with a firearm, there was sufficient evidence that the defendant committed an assault. To constitute an assault, it is not necessary that the victim be placed in fear; it is enough if the act was sufficientto put a person of reasonable firmness in apprehension of immediate bodily harm. “It is an assault, without regard to the aggressor's intention, to fire a gun at another or in the direction in which he is standing.” Here, the defendant shot twice at his door while firefighters were attempting to force it open and fired again in the direction of the firefighters after they forced entry. The defendant knew that people were outside the door and shot the door to send a warning.

(Dec. 31, 1969)

Assault is not a lesser-included offense of sexual battery.

Criminal Offenses > Assaults > Attempted Assault Is a Crime

(Dec. 31, 1969)

The Court of Appeals improperly found that attempted assault is not a recognized criminal offense in North Carolina. The court rejected the notion that attempted assault is an “attempt of an attempt.” Thus, a prior conviction for attempted assault with a deadly weapon inflicting serious injury can support a later charge of possession of a firearm by a felon and serve as a prior conviction for purposes of habitual felon status.

Criminal Offenses > Assaults > Assault on a Female

(Dec. 31, 1969)

Assault on a female is not a lesser-included of first-degree sexual offense.

Criminal Offenses > Assaults > Assault by Pointing a Gun

(Dec. 31, 1969)

In a case with multiple victims, the court rejected the defendant’s argument that the State’s evidence was too vague for the jury to infer that he pointed the gun at any particular individual. One witness testified that upon defendant’s orders, “everybody ran in the room with us … and he was waiving [sic] the gun at us[.]” Another testified that “[w]hen [defendant] came down the hall, when he told everyone to get into one room, all of them came in there … [e]ven the two little ones ….” She further testified, “I was nervous for the kids was down there hollering and carrying on, and he hollered – he point [sic] the gun toward everybody in one room. One room. And told them come on in here with me.” A third testified that once everybody was in the same bedroom, defendant pointed the shotgun outward from his shoulder.

(Dec. 31, 1969)

The evidence was insufficient to support an adjudication of delinquency based on assault by pointing a gun where the weapon was an airsoft gun from which plastic pellets were fired using a “pump action” mechanism. For purposes of the assault by pointing a gun statute, the term “gun” “encompasses devices ordinarily understood to be ‘firearms’ and not other devices that fall outside that category.” Slip op. at 12. Thus, imitation firearms are not covered. The court noted that its conclusion had no bearing on whether the juvenile might be found delinquent for assault with a deadly weapon inflicting serious injury, assault with a deadly weapon, assault inflicting serious injury, or assault on a child under twelve.

Criminal Offenses > Assaults > Assault by Strangulation

(Dec. 31, 1969)

The evidence was sufficient to establish assault by strangulation. The victim testified that the defendant strangled her twice; the State’s medical expert testified that the victim’s injuries were consistent with strangulation; and photographic evidence showed bruising, abrasions, and a bite mark on and around the victim’s neck. The court rejected the defendant’s arguments that the statute required “proof of physical injury beyond what is inherently caused by every act of strangulation” or extensive physical injury.

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss a charge of assault by strangulation on the same victim. The defendant argued that because his obstruction of the victim’s airway was caused by the defendant’s hand over the victim’s nose and mouth, rather than “external pressure” applied to the neck, it was “smothering” not “strangling”. Rejecting this argument, the court concluded:

We do not believe that the statute requires a particular method of restricting the airways in the throat. Here, defendant constricted [the victim’s] airways by grabbing him under the chin, pulling his head back, covering his nose and mouth, and hyperextending his neck. Although there was no evidence that defendant restricted [the victim’s] breathing by direct application of force to the trachea, he managed to accomplish the same effect by hyperextending [the victim’s] neck and throat. The fact that defendant restricted [the victim’s] airway through the application of force to the top of his neck and to his head rather than the trachea itself is immaterial.

(Dec. 31, 1969)

(1) The evidence was sufficient to establish assault by strangulation; the victim told an officer that she felt that the defendant was trying to crush her throat, that he pushed down on her neck with his foot, that she thought he was trying to “chok[e] her out” or make her go unconscious, and that she thought she was going to die. (2) Even if the offenses are not the same under the Blockburger test, the statutory language, “[u]nless the conduct is covered under some other provision of law providing greater punishment,” prohibits sentencing a defendant for this offense and a more serious offense based on the same conduct.

Criminal Offenses > Assaults > Culpable Negligence

(Dec. 31, 1969) aff’d in part, rev’d in part, 364 N.C. 297 (Aug 27 2010)

Committing a violation of G.S. 20-138.1 (impaired driving) constitutes culpable negligence as a matter of law sufficient to establish the requisite intent for assault with a deadly weapon inflicting serious injury.

Criminal Offenses > Assaults > Deadly Weapon

(Dec. 31, 1969)

Given the manner of its use, there was sufficient evidence that a kitchen table chair was a deadly weapon.

(Dec. 31, 1969)

There was sufficient evidence that a lawn chair was a deadly weapon for purposes of assault. The victim was knocked unconscious and suffered multiple facial fractures and injuries which required surgery; after surgery his jaw was wired shut for weeks and he missed 2-3 weeks of work; and at trial the victim testified that he still suffered from vision problems. Because the State presented evidence that the defendant assaulted the victim with the lawn chair and not his fists alone, it was not required to present evidence as to the parties’ size or condition.

(Dec. 31, 1969)

Based on the manner of its use, a car was a deadly weapon as a matter of law. The court based its conclusion on the vehicle’s high rate of speed and the fact that the officer had to engage in affirmative action to avoid harm.

(Dec. 31, 1969)

The trial court did not err by instructing the jury that a pickaxe was a deadly weapon. The pickaxe handle was about 3 feet long, and the pickaxe weighed 9-10 pounds. The defendant swung the pickaxe approximately 8 times, causing cuts to the victim’s head that required 53 staples. She also slashed his middle finger, leaving it hanging only by a piece of skin.

(Dec. 31, 1969)

The trial judge committed prejudicial error with respect to its instruction on the intent element for the charges of assault with a deadly weapon, in a case in which a vehicle was the deadly weapon. In order for a jury to convict of assault with a deadly weapon, it must find that it was the defendant's actual intent to strike the victim with his vehicle, or that the defendant acted with culpable negligence from which intent may be implied. Because the trial court’s instruction erroneously could have allowed the jury to convict without a finding of either actual intent or culpable negligence, reversible error occurred.

(Dec. 31, 1969)

The evidence was sufficient to establish that the knife used in the assault was a deadly weapon where a witness testified that the knife was three inches long and the victim sustained significant injuries.

(Dec. 31, 1969)

The vehicle at issue was not a deadly weapon as a matter of law where there was no evidence that the vehicle was moving at a high speed and given the victim’s lack of significant injury and the lack of damage to the other vehicle involved, a jury could conclude that the vehicle was not aimed directly at the victim and that the impact was more of a glancing contact.

(Dec. 31, 1969)

There was sufficient evidence that the defendant’s hands were a deadly weapon as to one victim when the evidence showed that the defendant was a big, stocky man, probably larger than the victim, who was a female and a likely user of crack cocaine, and the victim sustained serious injuries. There was sufficient evidence that the defendant’s hands were a deadly weapon as to another victim when the evidence showed that the victim was a small-framed, pregnant woman with a cocaine addiction and the defendant used his hands to throw her onto the concrete floor, cracking her head open, and put his hands around her neck.

(Dec. 31, 1969)

The defendant and an accomplice, both female, assaulted a male with fists and tree limbs. The two females individually, but not collectively, weighed less than the male victim, and both were shorter than him. They both were convicted of assault with a deadly weapon inflicting serious injury. The court ruled that the evidence was sufficient to prove that the fists and the tree limbs were deadly weapons.

(Dec. 31, 1969)

The defendant and his accomplice discussed intentionally forcing drivers off the road in order to rob them and one of them then deliberately threw a very large rock or concrete chunk through the driver’s side windshield of the victim’s automobile as it was approaching at approximately 55 or 60 miles per hour. The size of the rock and the manner in which it was used establishes that it was a deadly weapon.

Criminal Offenses > Assaults > Intent to Kill

(Dec. 31, 1969)

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of assault with a deadly weapon with intent to kill inflicting serious injury on victim Stokes. The court rejected the defendant’s argument that the State was required to prove that the defendant specifically intended to kill Stokes when he fired into a trailer when Stokes and others were present. The court reasoned that “It is not determinative to this issue of whether or not Defendant knew Stokes was in the trailer.” It concluded: “there was sufficient evidence for the jury to infer Defendant intended to kill whoever was inside the trailer.” The court noted that, among other things, the defendant fired numerous shots into the trailer knowing it was occupied.

(2) The court rejected the defendant’s argument that the assault conviction should be reversed because the trial court did not instruct the jury on the doctrine of transferred intent, noting that the State did not argue transferred intent and neither party requested a transferred intent instruction. Rather, the State’s evidence showed that the defendant knew a trailer was occupied by at least two people when he fired into it numerous times. Based on the nature of the assault, the evidence was sufficient for the jury to find that the defendant intended to kill whoever was in the trailer.

(Dec. 31, 1969)

The evidence was sufficient to show an assault with intent to kill an officer when, after having fatally shot eight people, the defendant ignored the officer’s instructions to drop his shotgun and continued to reload it. The defendant then turned toward the officer, lowered the shotgun, and fired one shot at the officer at the same time that the officer fired at the defendant.

(Dec. 31, 1969)

There was sufficient evidence of an intent to kill when during a robbery the defendant fired a gun beside the store clerk’s head and the clerk testified that he thought the defendant was going to kill him.

(Dec. 31, 1969) aff’d per curiam, 367 N.C. 116 (Oct 4 2013)

The trial court did not err by denying the defendant’s motion to dismiss a charge of assault with deadly weapon with intent to kill, over the defendant’s argument that there was insufficient evidence of an intent to kill. This charge was based on the defendant’s use of a bat to assault his wife. The court determined that the nature and manner of the attack supported a reasonable inference that the defendant intended to kill, including that he hit her even after she fell to her knees, he repeatedly struck her head with the bat until she lost consciousness, she never fought back, and the wounds could have been fatal. Also, the circumstances of the attack, including the parties’ conduct, provided additional evidence of intent to kill, including that the two had a volatile relationship and the victim had recently filed for divorce.

(Dec. 31, 1969)

The trial court did not err by failing to instruct the jury on the lesser-included offense of assault with a deadly weapon inflicting serious injury to the charge of assault with a deadly weapon with intent to kill inflicting serious injury. The defendant broke into a trailer in the middle of the night and used an iron pipe to repeatedly beat in the head an unarmed, naked victim, who had just woken up.

(Dec. 31, 1969)

There was sufficient evidence of an intent to kill and the weapon used was deadly as a matter of law. The defendant was convicted of assault with a deadly weapon with intent to kill inflicting serious injury and other offenses. There was sufficient evidence of an intent to kill where the defendant and his accomplice discussed intentionally forcing drivers off the road in order to rob them and one of them then deliberately threw a very large rock or concrete chunk through the driver’s side windshield of the victim’s automobile as it was approaching at approximately 55 or 60 miles per hour. The court concluded that it is easily foreseeable that such deliberate action could result in death, either from the impact of the rock on or a resulting automobile accident.

Criminal Offenses > Assaults > Serious Injury

(Dec. 31, 1969)

In an assault with a deadly weapon inflicting serious injury case, the trial court did not err by instructing the jury that three gunshot wounds to the leg constituted serious injury. The victim was shot three times, was hospitalized for two days, had surgery to remove a bone fragment from his leg, and experienced pain from the injuries up through the time of trial. From this evidence, the court concluded, it is unlikely that reasonable minds could differ as to whether the victim’s injuries were serious.

(Dec. 31, 1969)

(1) There was sufficient evidence that the victim suffered serious injury. The defendant shot the victim with a shotgun, causing injuries to the victim’s calf and 18-20 pellets to lodge in his leg, which did not fully work themselves out for six months. One witness testified that the victim had holes in his leg from the ankle up and another observed blood on his leg and noted that the wounds looked like little holes from birdshot from a shotgun. (2) When the trial judge used N.C.P.J.I.—Crim. 208.15 to instruct the jury on the offense of assault with a deadly weapon with intent to kill inflicting serious injury, it did not err by failing to also give instruction 120.12, defining serious injury.

(Dec. 31, 1969)

The trial court did not commit plain error by peremptorily instructing the jury that multiple gunshot wounds to the upper body would constitute serious injury. The victim required emergency surgery, was left with scars on his chest, shoulder, back and neck, and a bullet remained in his neck, causing him continuing pain.

(Dec. 31, 1969)

The trial court did not err by failing to instruct on the lesser-included offense of assault with a deadly weapon to the charge on assault with a deadly weapon inflicting serious injury. After a beating by the defendant, the victim received hospital treatment, had contusions and bruises on her knee, could not walk for about a week and a half, and her knee still hurt at the time of trial.

(Dec. 31, 1969)

The evidence was sufficient to establish serious injury where the defendant had a three-inch knife during the assault; the victim bled “a lot” from his wounds, dripping blood throughout the bedroom, bathroom, and kitchen; the victim was on the floor in pain and spitting up blood when the officer arrived; the victim was stabbed or cut 8 or 9 times and had wounds on his lip, back, and arm; the victim was removed by stretcher to the emergency room, where he remained for 12 hours, receiving a chest tube to drain blood, stitches in his back and arm, and was placed on a ventilator because of a lung puncture; the victim received pain medication for approximately one week; and at trial the victim still had visible scars on his lip, arm, and back.

Criminal Offenses > Assaults > Serious Bodily Injury

(Dec. 31, 1969) , ___ N.C. App. ___, 808 S.E.2d 583 2017-12-05

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of assault on a law enforcement officer inflicting serious bodily injury. The defendant asserted that he only used the amount of force reasonably necessary to resist an unlawful arrest. In the case, the officer responded to a 911 call reporting a suspicious person who refused to leave a public housing complex. The person was described as a male in his 30s wearing all black and near or around an older model, a black truck. The police department had an agency agreement with the complex giving officers the authority to remove trespassers from the property. Upon arrival the officer saw the male defendant wearing all black clothing and standing in front of an older model, black truck with a beer can in his hand. When the two spoke, the officer could smell a strong odor of alcohol emitting from the defendant. After further interaction, the officer explained to the defendant that he was trespassing. In part because of his impairment, the officer asked the defendant how he was going to get home. The defendant gave no clear answer. The officer informed the defendant that he was being “trespassed” and although not under arrest he would be taken for a “detox.” The officer attempted to handcuff the defendant in accordance with department policy to handcuff people transported by the police. When the officer reached for his handcuff pouch, the defendant became aggressive and used foul language, tensed up and tried to pull away from the officer. Trying to get control of the defendant, the officer pushed the defendant towards his vehicle. The officer informed the defendant that he was under arrest for resisting delaying and obstructing an officer. The defendant tried to turn around, raising his fist as if to “throw a punch.” The officer pointed his Taser at the defendant giving commands and advising him that he was under arrest. The defendant fled and the officer pursued. When the defendant fell to the ground on his back, the officer commanded him to roll over and put his hands behind his back. The defendant refused to comply and raised his feet and hands towards the officer “taking a combat stance.” The officer fired his Taser. However, the defendant was able to remove one of the Taser leads and took flight again. After the officer tackled the defendant, a struggle ensued. Backup arrived and assisted in securing the defendant. The officer sustained injuries from the struggle. There was sufficient evidence of the first element of the offense, an assault on the officer. Specifically, the officer testified that the defendant hit and bit him. There also was sufficient evidence with respect to serious bodily injury. Specifically, the officer testified that the bites caused extreme pain, skin removal, permanent scarring, and hospitalization. Photographs of the injuries were shown to the jury, as were the officer’s scars. The evidence also was sufficient to establish the third element, that the victim was a law enforcement officer performing his official duties at the time of the assault. The evidence showed that the officer was attempting to discharge his official duties as a routine patrol officer by responding to a report about a trespasser, conducting investigative work and acting on the results of his investigation. Finally, the evidence was sufficient to establish that the defendant knew or had reasonable grounds to know that the victim was a law enforcement officer. Here, the officer arrived in a marked patrol vehicle, was in uniform and told the defendant that he was a law enforcement officer.

(2) The trial court did not err by failing to instruct the jury on the right to resist an unlawful arrest. Here, an arrest occurred when under G.S. 122C-303, the officer attempted, against the defendant’s will, to take the publicly intoxicated defendant to jail to assist him. However, probable cause to arrest the defendant for second-degree trespass existed at this time. It does not matter that the officer did not arrest the defendant for that offense. The arrest was lawful because there was probable cause that the defendant had committed the trespass offense in the officer’s presence. Throughout the officer’s investigation, the defendant remained at the complex without authorization, even after he had been notified not to enter or remain there by the officer, a person authorized to so notify him. The court rejected the defendant’s argument that second-degree trespass does not create probable cause to arrest because that offense is a misdemeanor.

(3) The trial court did not err by failing to instruct the jury on the right to defend oneself from excessive force by a law enforcement officer where the evidence did not show that the officer’s use of force was excessive.

(Dec. 31, 1969)

The trial court erred by denying the defendant’s motion to dismiss charges of assault inflicting serious bodily injury where there was insufficient evidence that the officer sustained serious bodily injury from the defendant’s bites. There was insufficient evidence of a permanent or protracted condition that causes extreme pain. Although there was evidence that the bite caused swelling and bruising that resolved in about one month, there was no evidence that the injury continued to cause the officer significant pain subsequent to his initial hospital treatment. Furthermore there was insufficient evidence of serious, permanent disfigurement, notwithstanding discoloration at the site of the bite.

(Dec. 31, 1969)

(1) The evidence was sufficient to establish that the defendant inflicted serious bodily injury on the victim. The beating left the victim with broken bones in her face, a broken hand, a cracked knee, and an eye so beat up and swollen that she could not see properly out of it at the time of trial. The victim testified that her hand and eye “hurt all of the time.” (2) The defendant could not be convicted and sentenced for both assault inflicting serious bodily injury and assault on a female when the convictions were based on the same conduct. The court concluded that language in the assault on a female statute (“[u]nless the conduct is covered under some other provision of law providing greater punishment . . . .”) reflects a legislative intent to limit a trial court’s authority to impose punishment for assault on a female when punishment is also imposed for higher class offenses that apply to the same conduct (here, assault inflicting serious bodily injury).

(Dec. 31, 1969)

(1) There was sufficient evidence of serious bodily injury with respect to one victim where the victim suffered a cracked pelvic bone, a broken rib, torn ligaments in her back, a deep cut over her left eye, and was unable to have sex for seven months; the eye injury developed an infection that lasted months and was never completely cured; the incident left a scar above the victim’s eye, amounting to permanent disfigurement; there was sufficient evidence of serious bodily injury as to another victim where the victim sustained a puncture wound to the back of her scalp and a parietal scalp hematoma and she went into premature labor as a result of the attack. (2) There was insufficient evidence of serious bodily injury as to another victim where the evidence showed that the victim received a vicious beating but did not show that her injuries placed her at substantial risk of death; although her ribs were “sore” five months later, there was no evidence that she experienced “extreme pain” in addition to the “protracted condition.” (4) Based on the language in G.S. 14-32.4(b) providing that “[u]nless the conduct is covered under some other provision of law providing greater punishment,” the court held that a defendant may not be sentenced to assault by strangulation and a more serious offense based on the same conduct. Because the statutory language in G.S. 14-32.4(a) proscribing assault inflicting serious bodily injury contains the same language, the same analysis likely would apply to that offense.

(Dec. 31, 1969)

There was sufficient evidence that a 70-year-old victim suffered from a protracted condition causing extreme pain supporting a charge of assault inflicting serious bodily injury when the facts showed: the victim had dried blood on her lips and in her nostrils and abdominal pain; she had a bruise and swelling over her left collarbone limiting movement of her shoulder, and a broken collarbone, requiring a sling; she had cuts in her hand requiring stitches; she received morphine immediately and was prescribed additional pain medicine; she had to return to the emergency room 2 days later due to an infection in the sutured hand, requiring re-stitching and antibiotics; a nurse was unable to use a speculum while gathering a rape kit because the victim was in too much pain.

Criminal Offenses > Assaults > Discharging a Barreled Weapon or Firearm into Occupied Property

(Dec. 31, 1969)

(1) The trial court did not err by denying the defendant’s motion to dismiss a charge of discharging a firearm into occupied property. The trial court improperly instructed the jury that it had to find that the defendant knew or had reasonable grounds to believe that the dwelling was occupied; this instruction raised the evidentiary bar for the State, as this offense only requires proof that the defendant had reasonable grounds to believe that the building might be occupied. The court rejected the defendant’s argument that the State was bound by the higher standard stated in the jury instruction. Evidence that the shooting occurred in a residential neighborhood in the evening and resident’s car was parked outside of her home sufficiently established that the defendant knew or had reasonable grounds to believe that the dwelling might be occupied. (2) The court rejected the defendant’s argument that the trial court’s jury instruction on discharging a firearm into occupied property was an improper disjunctive instruction. The defendant was indicted for firing into the home of Ms. Knox. At trial, all the evidence pertains to Knox’s home. The trial court’s jury instruction referred to discharging a firearm “into a dwelling,” without specifying Knox’s home. The jury instruction was not phrased in the disjunctive nor did it have “the practical effect of disjunctive instruction,” as argued by the defendant.

(Dec. 31, 1969)

In a discharging a barreled weapon into occupied property case, the trial court did not err by instructing the jury that because the crime was a general intent crime, the State need not prove that the defendant intentionally discharged the fireadisrm into occupied property, and that it needed only prove that he intentionally discharged the firearm.

(Dec. 31, 1969)

The evidence was sufficient to support a conviction for discharging a firearm into occupied property (a vehicle), an offense used to support a felony-murder conviction. The defendant argued that the evidence was conflicting as to whether he fired the shots from inside or outside the vehicle. Citing prior case law, the court noted that an individual discharges a firearm “into” an occupied vehicle even if the firearm is inside the vehicle, as long as the individual is outside the vehicle when discharging the weapon. The court continued, noting that mere contradictions in the evidence do not warrant dismissal and that here the evidence was sufficient to go to the jury.

(Dec. 31, 1969)

With regard to a felony-murder charge, the evidence was sufficient to show the underlying felony of discharging a firearm into occupied property (here, a vehicle). The court rejected the defendant’s argument that the evidence failed to establish that he was outside of the vehicle when he shot the victim.

(Dec. 31, 1969)

No violation of double jeopardy occurred when the trial court sentenced the defendant for three counts of discharging a firearm into occupied property. Although the three gunshots were fired in quick succession, the bullet holes were in different locations around the house’s front door area. The evidence also showed that at least one shot was fired from a revolver, which, in single action mode, must be manually cocked between firings and, in double action mode, can still only fire a single bullet at a time. The other gun that may have been used was semiautomatic but it did not always function properly and many times, when the trigger was pulled, would not fire. Neither gun was a fully automatic weapon such as a machine gun. There was sufficient evidence to show that each shot was "distinct in time, and each bullet hit the [house] in a different place.” In reaching this holding, the court declined to apply assault cases that require a distinct interruption in the original assault for the evidence to support a second conviction.

(Dec. 31, 1969)

In a discharging a firearm into occupied property case, a residence was occupied when the family was on the front porch when the weapon was discharged.

(Dec. 31, 1969)

(1) This crime is a general intent crime; it does not require the State to prove any specific intent to shoot into the vehicle but only that the defendant intentionally fire a weapon under such circumstances where he or she had reason to believe the conveyance that ended up being shot was occupied. (2) N.C.P.J.I.—Crim. 208.90D, which was used in this case, properly charged the jury as to the required mental state.

(Dec. 31, 1969)

Only a barreled weapon must meet the velocity requirements of G.S. 14-34.1(a) (capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second); a firearm does not.

Criminal Offenses > Assaults > Assault on Government Officer

(Dec. 31, 1969)

Criminal Offenses > Assaults > Serious Bodily Injury

(Dec. 31, 1969)

The evidence was sufficient to support a conviction for assault on a government officer under G.S. 14-33(c)(4). While attempting to separate the defendant from other individuals, the defendant spit at people walking behind the officer, hitting the officer with his spit. The defendant argued that because he intended to assault individuals standing behind the officer, the State failed to establish that he intended to assault the officer. The court rejected this argument, holding that the offense was a general intent crime. Here, the defendant conceded that he knew the victim was a law enforcement officer and that he intended to commit an assault. The court concluded: “we are satisfied that when Defendant spat at members of the crowd and [the] Officer . . . was struck by Defendant’s spit, the requirements of [the statute] were satisfied.” It continued: “the knowledge element of assault on a government officer in violation of [G.S. 14-33(c)(4)] is satisfied whenever a defendant while in the course of assaulting another individual instead assaults an individual he knows, or reasonably should know, is a government officer.”

(Dec. 31, 1969)

The court rejected the defendant’s argument that the trial court erred by denying his motion to dismiss the charge of assault causing physical injury on a law enforcement officer, which occurred at the local jail. After arresting the defendant, Captain Sumner transported the defendant to jail, escorted him to a holding cell, removed his handcuffs, and closed the door to the holding cell, believing it would lock behind him automatically. However, the door remained unlocked. When Sumner noticed the defendant standing in the holding cell doorway with the door open, he told the defendant to get back inside the cell. Instead, the defendant tackled Sumner. The defendant argued that there was insufficient evidence that the officer was discharging a duty of his office at the time. The court rejected this argument, concluding that “[b]y remaining at the jail to ensure the safety of other officers,” Sumner was discharging the duties of his office. In the course of its holding, the court noted that “unlike the offense of resisting, delaying, or obstructing an officer, . . . criminal liability for the offense of assaulting an officer is not limited to situations where an officer is engaging in lawful conduct in the performance or attempted performance of his or her official duties.”

Criminal Offenses > Assaults > Malicious Conduct By Prisoner

(Dec. 31, 1969)

The defendant was properly convicted of two counts of malicious conduct by a prisoner when he twice spit on an officer while officers were attempting to secure him. The defendant had argued that only conviction was proper because his conduct occurred in a continuous transaction. The court found that each act was distinct in time and location: first the defendant spit on the officer’s forehead while the defendant was still in the house; five minutes later he spit on the officer’s arm after being taken out of the house.

(Dec. 31, 1969)

The evidence was sufficient to establish that the defendant emitted bodily fluids where it showed that he spit on an officer. The evidence was sufficient to show that the defendant acted knowingly and willfully where the defendant was uncooperative with the officers, was belligerent towards them, and immediately before the spitting, said to an approaching officer: “F--k you, n----r. I ain’t got nothing. You ain’t got nothing on me.” The evidence was sufficient to show that the defendant was in custody when he was handcuffed and seated on a curb, numerous officers were present, and the defendant was told that he was not free to leave.

Criminal Offenses > Assaults > On Handicapped Person

(Dec. 31, 1969)

There was a sufficient factual basis to support a plea to assault on a handicapped person where the prosecutor’s summary of the facts indicated that the victim was 80 years old, crippled in her knees with arthritis, and required a crutch to walk; the defendant told the victim that he would kill her and cut her heart out, grabbed her, twice slung her across the room, and hit her with her crutch.

Criminal Offenses > Assaults > Habitual Misdemeanor Assault

(Dec. 31, 1969)

In a habitual misdemeanor assault case, the trial court erred by failing to instruct the jury that the defendant’s assault under G.S. 14-33 must have inflicted physical injury. However, given the uncontroverted evidence regarding the victim’s injuries, the error did not rise to the level of plain error.

Criminal Offenses > Assaults > Malicious Castration

(Dec. 31, 1969)

The trial court did not err by denying the defendant’s motion to dismiss a charge of attempted malicious castration of a privy member. The victim was the son of the woman with whom the defendant lived; a doctor found 33 injuries on the victim’s body, including a 2.5 inch laceration on his penis. The defendant argued that there was insufficient evidence that he committed an assault with malice aforethought and specific intent to maim the victim’s privy member. Although the victim gave conflicting evidence as to how the defendant cut his penis, the defendant’s malice and specific intent to maim could be reasonably inferred from the numerous acts of humiliation and violence experienced by the victim prior to the defendant’s assault on his penis.

Criminal Offenses > Assaults > Multiple Convictions/Greater- and Lesser-Included Offenses

(Dec. 31, 1969)

The court per curiam affirmed the decision below, State v. Wilkes, 225 N.C. App. 233 (Jan. 15, 2013), in which the court of appeals had held, over a dissent, that the State presented substantial evidence supporting two separate assaults. The defendant attacked his wife with his hands. When his child intervened with a baseball bat to protect his mother, the defendant turned to the child, grabbed the bat and then began beating his wife with the bat. The court concluded that the assaults were the result of separate thought processes, were distinct in time, and the victim sustained injuries on different parts of her body as a result of each assault.

(Dec. 31, 1969)

The trial court did not err by sentencing the defendant for both of assault on a female and assault by strangulation. Prefatory language in G.S. 14-33(c) provides that “Unless the conduct is covered under some other provision of law providing greater punishment,” assault on a female is punished as a Class A1 misdemeanor. Here, the defendant was also punished for the higher class offense of assault by strangulation. The prefatory clause of G.S. 14-33(c) only applies when both assaults are based on the same conduct. Here, the assaults were based on different conduct. The defendant’s act of pinning down the victim and choking her to stop her from screaming supported the assault by strangulation conviction. His acts of grabbing her hair, tossing her down a rocky embankment, and punching her face and head multiple times supported the assault on a female conviction. The two assaults were sufficiently separate and distinct. First, they required different thought processes. The defendant’s decision to grab the victim’s hair, throw her down the embankment and repeatedly punch her required a separate thought process from his decision to pin her down and strangle her to quiet her screaming. Second the assaults were distinct in time. After the defendant’s initial physical assault and then the strangulation, he briefly ceased his assault when she stopped screaming and resisting. But when she resumed screaming and he again hit her in the head multiple times. Third, the victim sustained injuries to different parts of her body.

Criminal Offenses > Sexual Assaults & Related Offenses > Rape > By Aiding & Abetting

(Dec. 31, 1969) , 370 N.C. 305 2017-12-08

Criminal Procedure > Verdict > Unanimous Verdict Issues

Criminal Offenses > Sexual Assaults & Related Offenses > Sexual Offense > Penetration

(Dec. 31, 1969) , 376 N.C. 148 2020-12-18

Criminal Offenses > Sexual Assaults & Related Offenses > Incest

(Dec. 31, 1969) , 2022-NCCOA-38, ___ N.C. App. ___ 2022-12-06

Criminal Offenses > Robbery > Generally

(Dec. 31, 1969) , ___ N.C. App. ___, 833 S.E.2d 27 2019-08-20

Criminal Offenses > Robbery > Attempt

(Dec. 31, 1969) , COA22-586, ___ N.C. App. ___ 2023-07-05

Criminal Offenses > Sexual Exploitation of a Minor & Obscenity

(Dec. 31, 1969) , COA23-319, ___ N.C. App. ___ 2024-04-02

Criminal Procedure > Jury Argument > Incorrect Statement of Law

Criminal Offenses > Obstruction of Justice and Related Offenses > Resist, Delay & Obstruct Officer

(Dec. 31, 1969) , ___ N.C. App. ___, ___ S.E.2d ___ 2020-01-07

Criminal Offenses > Motor Vehicle Offenses > Impaired Driving

Criminal Offenses > Motor Vehicle Offenses > Open Container

Criminal Procedure > Discovery, Subpoenas & Related Issues > Brady Material/Violations

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

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

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

Criminal Offenses > Obstruction of Justice and Related Offenses > Obstruction of Justice

(Dec. 31, 1969) , 373 N.C. 116 2019-11-01

(Dec. 31, 1969) , ___ N.C. App. ___, ___ S.E.2d ___ 2020-07-07