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State v. Clyburn

Court of Appeals of North Carolina

April 7, 2015

STATE OF NORTH CAROLINA,
v.
KENNETH E. CLYBURN, Defendant

Heard in the Court of Appeals August 14, 2014

Page 690

Mecklenburg County, Nos. 12 CRS 214351-53, 12 CRS 35787.

Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew DeSimone, for defendant-appellee.

GEER, Judge. Judges STEELMAN and McCULLOUGH concur.

OPINION

Page 691

Appeal by the State from order entered 11 July 2013 by Judge W. Robert Bell in Mecklenburg County Superior Court.

GEER, Judge.

The State appeals from an order granting in part defendant Kenneth E. Clyburn's motion to suppress evidence obtained as a result of a search of the digital contents of a GPS device found on defendant's person which, as a result of the search, was determined to have been stolen. On appeal, the State argues that the trial court erred in granting the motion because defendant did not have a reasonable expectation of privacy in the GPS and, therefore, cannot show that his Fourth Amendment rights were violated. Alternatively, the State argues that even assuming that the defendant did have a privacy interest in the GPS, the search was valid because (1) defendant consented to the search and (2) the search was justified as a search incident to arrest.

Because the State did not raise the consent argument below, we decline to address it. We hold that the United States Supreme Court's recent decision in Riley v. California, __ U.S. __, 189 L.Ed.2d 430, 134 S.Ct. 2473 (2014), applies to the search of the digital data stored on a GPS device, and affirm the trial court's conclusion that the search incident to arrest exception does not apply in this case. With respect to defendant's privacy interest in the stolen GPS, we hold 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. At the suppression hearing, defendant presented evidence that, if believed, would allow the trial court to conclude that defendant had a legitimate possessory interest in the GPS. Because the trial court failed to make a factual determination regarding whether defendant innocently purchased the GPS, we reverse and remand for further findings of fact.

Facts

On 2 April 2012, police officers Aaron Skipper and Todd Watson of the Charlotte-Mecklenburg Police Department (" CMPD" ) were on motorcycle patrol in the residential neighborhood of Villa Heights in Charlotte, North Carolina. The officers were on the lookout for evidence of residential and auto break-ins and sales of controlled substances.

Just before 8:00 a.m., the officers saw defendant walking down the sidewalk of Umstead Street. Defendant was dirty, had numerous tears in his clothing, " unusually bulging pants pockets . . . [and] could have passed for one of the homeless common to the area." Officer Watson initially suspected that defendant " may have recently been under an abandoned house removing copper pipes for resale" due to his dirty condition.

The officers pulled up about five feet behind defendant as he was walking down the street. Defendant stopped and turned towards the officers, at which point Officer Skipper dismounted, told defendant the officers' names and why they were in the area, and asked for defendant's name and date of birth. Defendant did not have identification on him, but told the officers his name and date of birth and explained that he was walking to his mother's house around the corner. The conversation was polite, and defendant was cooperative.

The officers did not make any show of force or attempt to block defendant's path. Defendant turned and began walking away from the direction of his mother's address, at which point Officer Skipper reengaged defendant and asked him what he had in his rear pocket. Defendant stopped and removed a cell phone. Officer Skipper asked what else he had in that pocket, and defendant removed a pair of binoculars.

Officer Skipper then approached defendant and asked for consent to search his person. Defendant said " go ahead," turned his back to the officer, and raised his arms. Officer Skipper found a crack pipe in defendant's waistband and arrested defendant for possession

Page 692

of drug paraphernalia. Officer Skipper then searched defendant incident to the arrest, finding a box cutter, several small shards of auto glass, and a Garmin GPS with an attached car charger in defendant's pants pockets. Defendant, unprompted, claimed that the GPS was his own and that the binoculars belonged to his brother.

The officers had no knowledge of whether defendant had a car, but they thought it unusual that he was walking with a GPS and attached charger cord in his pocket. Officer Watson took the GPS and pressed the " Home" button. He did not ask for, or receive, permission from defendant to search the GPS. The GPS displayed an address in Blowing Rock, North Carolina -- approximately 90 miles from Charlotte, North Carolina. Officer Watson then scrolled through the address history of the GPS and found the closest address to their current location was several blocks away on Pecan Avenue, in the opposite direction from where defendant's mother lived.

CMPD sent a patrol car to the Pecan Avenue address and located a car in the driveway of a home with the window broken out. On the seat of the car was an owner's manual for a GPS of the same make and model as that taken from defendant. CMPD then contacted the homeowner, who was not aware of ...


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