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State v. Leak

Court of Appeals of North Carolina

June 2, 2015

STATE OF NORTH CAROLINA, Plaintiff,
v.
KEITH A. LEAK, Defendant

 Heard in the Court of Appeals October 8, 2014

Editorial Note:

This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]

Anson County, No. 12 CRS 50891.

Attorney General Roy Cooper by Assistant Attorney General Ebony J. Pittman for the State.

Patterson Harkavy LLP, by Narendra K. Ghosh, for defendant-appellant.

STEELMAN, Judge. Judge CALABRIA concurs. Judge McCULLOUGH dissents in a separate opinion.

OPINION

Appeal by defendant from judgment entered 14 November 2013 by Judge Mark E. Klass in Anson County Superior Court, that reserved defendant's right to appeal the order entered 7 August 2013 by Judge Tanya Wallace denying his motion to suppress. Heard in the Court of Appeals 8 October 2014.

Page 341

STEELMAN, Judge.

When a law enforcement officer took defendant's driver's license to the officer's patrol vehicle to conduct computer research into the status of defendant's driver's license, this amounted to a seizure under the Fourth Amendment to the U.S. Constitution. In Rodriguez v. United States, __ U.S. __, 191 L.Ed.2d 492, 135 S.Ct. 1609 (2015), the United States Supreme Court rejected the argument that an otherwise unconstitutional seizure may be justified simply by characterizing it as a brief or " de minimis " violation of a defendant's rights under the Fourth Amendment.

I. Factual and Procedural History

At 11:30 p.m. on 30 April 2012, Lilesville Police Chief Bobby Gallimore was on patrol. He noticed a parked car in a gravel area near Highway 74, and stopped to see if the driver needed assistance. Before approaching the car, Chief Gallimore ran the vehicle's license plate through his computer and was advised that the car was owned by Keith Leak (defendant). Chief Gallimore spoke with defendant, who told him that he did not need assistance, and had pulled off the road to return a text message. Chief Gallimore then asked to see defendant's driver's license, and determined that the name on the license -- Keith Leak -- matched the information he had obtained concerning the car's license plate.

After examining defendant's driver's license, Chief Gallimore took it to his patrol vehicle to investigate the status of defendant's driver's license. It was undisputed that Chief Gallimore had no suspicion that defendant was involved in criminal activity. Defendant remained in his car while Chief Gallimore ran a check on his license and confirmed that his license was valid. However, the computer search revealed that there was an outstanding 2007 warrant for defendant's arrest. Chief Gallimore asked defendant to step out of his car, at which point, defendant informed Chief Gallimore that he " had a .22 pistol in his pocket." Defendant was arrested for possession of a firearm by a convicted felon; the record does not indicate whether defendant was ever prosecuted for the offense alleged in the 2007 arrest warrant.

On 4 June 2012 defendant was indicted for possession of a firearm by a felon and for the related misdemeanor of carrying a concealed weapon. On 5 August 2013 defendant filed a motion to suppress evidence obtained at the time of his arrest, on the grounds that the evidence had been " seized in or as a result of" a seizure in " violation of his rights under the Fourth Amendment of the U.S. Constitution and similar provisions in the North Carolina Constitution[.]" The motion to suppress was heard by Judge Tanya Wallace on 5 August 2013. Chief Gallimore testified for the State at the suppression hearing. Defendant did not present evidence. On 7 August 2013 Judge Wallace entered an order denying defendant's motion. On 14 November 2013 defendant entered a plea of guilty to possession of a firearm by a felon pursuant to a plea agreement, reserving his right to appeal the denial of his suppression motion. The trial court determined defendant's prior record level to be II, imposed a suspended sentence of nine to twenty months imprisonment, and placed defendant on supervised probation for twelve months.

Defendant appeals.

II. Denial of Suppression Motion

The sole issue raised on appeal is whether Judge Wallace erred by denying defendant's motion to suppress evidence. Defendant argues that he was effectively seized when Chief Gallimore took his driver's license to the patrol vehicle in order to conduct a computer search and that, because Chief Gallimore had no suspicion that defendant was engaged in criminal activity, the seizure violated his rights under the Fourth Amendment to the United States Constitution. We are compelled to agree.

A. Standard of Review

" The standard of review in evaluating the denial of a motion to suppress is whether competent evidence supports the trial court's findings of fact and whether the findings of fact support the conclusions of law. However, when, as here, the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal. Conclusions of law are reviewed de novo and are

Page 342

subject to full review." State v. Biber, 365 N.C. 162, 167-68, 712 S.E.2d 874, 878 (2011) (citing State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994), and State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984) (other citations omitted)). " 'Under a de novo review, the court considers the matter anew and freely substitutes its own judgment' for that of the lower tribunal." State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

The issue in this case is whether there was a violation of defendant's rights under the Fourth ...


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