in the Court of Appeals 4 April 2017.
by defendant from judgment entered 14 December 2015 by Judge
Richard D. Boner in Catawba County No. 15 CRS 3027 Superior
Attorney General Joshua H. Stein, by Assistant Attorney
General James D. Concepcion and Assistant Attorney General
Sherri Horner Lawrence, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Jillian C. Katz, for defendant-appellant.
case requires us to determine whether a warrantless search of
a probationer's home was "directly related" to
the supervision of his probation as required by N.C. Gen.
Stat. § 15A-1343(b)(13). Danny Wayne Powell, Jr.
("Defendant") appeals from his conviction for
possession of a firearm by a felon and argues that the trial
court erred in denying his motion to suppress evidence found
during a search of his residence. Because the State failed to
meet its burden of demonstrating that the warrantless search
was authorized by N.C. Gen. Stat. § 15A-1343(b)(13), we
reverse the trial court's order denying Defendant's
motion to suppress and vacate his conviction.
and Procedural Background
September 2013, Defendant was convicted of felony breaking or
entering and sentenced to 6 to 17 months imprisonment. This
sentence was suspended, and he was placed on supervised
probation for 30 months. At all times relevant to this
appeal, he was living in Catawba County.
March of 2015, Officers Sarah Lackey and Travis Osborne were
Probation and Parole officers in Catawba County employed by
the North Carolina Department of Public Safety. On 4 March
2015, Officers Lackey and Osborne "were conducting an
operation with the U.S. Marshal's task force
service." They were working with Investigator Gary
Blackwood of the Street Crime Interdiction and Gang Unit of
the Hickory Police Department, Officer Jamie Carey of the
North Carolina Department of Public Safety, and "two or
three . . . U.S. Marshals." These officers were
"part of [an] operation" conducting searches of
"seven or eight" residences of individuals who were
on probation, parole, or post-release supervision in a
particular geographic area of Catawba County. The members of
the task force utilized a list of probationers provided by
the supervisor of Officers Lackey and Osborne. Although
Officer Lackey testified at trial that "[t]he list . . .
was targeting violent offenses involving firearms [and]
drugs[, ]" she acknowledged during the suppression
hearing that "not all offenders that were selected had
that criteria." Defendant's name, address, and
status as a probationer was contained on the list provided to
the task force. Neither Officer Lackey nor Officer Osborne
was the probation officer assigned to Defendant.
approximately 9:30 p.m. that night, the officers arrived at
Defendant's residence. Officer Osborne knocked on the
front door while Investigator Blackwood and another officer
went to the back corner of the house to ensure that no one
exited the residence. When Defendant answered the door,
Officer Osborne asked him if he was Danny Powell, and
Defendant responded affirmatively. Officer Osborne then
placed Defendant in handcuffs and directed him to sit down at
the kitchen table. Defendant's wife - who was eight
months pregnant at the time - also remained in the kitchen
along with Defendant's father.
Osborne asked if there were any firearms in the house, and
Defendant's wife responded that there was a firearm in
the bedroom closet. Officer Osborne remained with Defendant
in the kitchen while the other officers went to retrieve the
searching the bedroom closet upstairs, Investigator Blackwood
found a Mossberg twelve-gauge shotgun and a Mossberg .22
caliber rifle contained in "gun cases or gun
sleeves" and determined that the guns were not loaded.
He testified that it "was a walk-in type closet . . .
[and] the guns were on the right-hand side against the wall.
There was [sic] some clothing items kind of up against
them." He stated that the clothes in front of the guns
were "[m]en's clothing" but there were also
"female clothing, shoes, . . . [and] male shoes" in
Blackwood seized the weapons, and Defendant was placed under
arrest. On 18 May 2015, he was indicted by a grand jury for
possession of a firearm by a felon.
trial was held on 23 September 2015 before the Honorable
Patrice Hinnant in Catawba County Superior Court. On the
morning of trial, Defendant filed a motion to suppress
evidence of the firearms seized from his residence, arguing
that the officers' search of his home violated his rights
under the Fourth Amendment to the United States Constitution
as well as N.C. Gen. Stat. § 15A-1343(b)(13). At the
hearing on the motion to suppress, Officer Lackey, Officer
Osborne, and Investigator Blackwood testified about their
search of Defendant's home. The trial court orally denied
trial, the State presented testimony from Officer Lackey,
Officer Osborne, and Investigator Blackwood. Defendant and
his wife testified for the defense. The jury found Defendant
guilty of possession of a firearm by a felony.
December 2015, the trial court sentenced Defendant to 12 to
14 months imprisonment. The court also revoked
Defendant's probation and activated his sentence from his
prior conviction of felony breaking or entering. Defendant
gave oral notice of appeal.
primary argument on appeal is that the trial court erred by
denying his motion to suppress. Specifically, he contends the
State failed to demonstrate that the evidence offered against
him at trial was obtained by means of a lawful warrantless
initial matter, we must determine whether this issue was
properly preserved for appeal. Defendant acknowledges that
although he filed a motion to suppress evidence of the
firearms seized from his home, he failed to renew his
objection when the State sought to admit the evidence at
trial. Our Supreme Court has explained that
[t]o preserve an issue for appeal, the defendant must make an
objection at the point during the trial when the State
attempts to introduce the evidence. A defendant cannot rely
on his pretrial motion to suppress to preserve an issue for
appeal. His objection must be renewed at trial.
[Defendant's] failure to object at trial waived his right
to have this issue reviewed on appeal.
State v. Golphin, 352 N.C. 364, 463, 533 S.E.2d 168,
232 (2000) (internal citations omitted), cert.
denied, 532 U.S. 931, 149 L.Ed.2d 305 (2001).
Accordingly, Defendant failed to properly preserve this issue
for appellate review.
However, our Supreme Court has held that "to the extent
[a] defendant fail[s] to preserve issues relating to [his]
motion to suppress, we review for plain error" if the
defendant "specifically and distinctly assign[s] plain
error" on appeal. State v. Waring, 364
N.C. 443, 468, 508, 701 S.E.2d 615, 632, 656 (2010),
cert. denied, 565 U.S. 832, 181 L.Ed.2d. 53 (2011).
Because Defendant has expressly made a plain error argument
in his appellate brief, we review his argument under this
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice - that, after examination of the entire
record, the error had a probable impact on the jury's
finding that the defendant was guilty. Moreover, because
plain error is to be applied cautiously and only in the
exceptional case, the error will often be one that seriously
affects the fairness, integrity or public reputation of
State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d
326, 334 (2012) (internal citations, quotation marks, and
conducting our review for plain error, we must first
determine whether the trial court did, in fact, err in
denying Defendant's motion to suppress. See State v.
Oxendine, __ N.C.App. __, __, 783 S.E.2d 286, 292
("The first step under plain error review is . . . to
determine whether any error occurred at all."),
disc. review denied, __ N.C. __, 787 S.E.2d 24
State contends that the warrantless search of Defendant's
home was authorized by N.C. Gen. Stat. §
15A-1343(b)(13), which states as follows:
(b) Regular Conditions. -- As regular conditions of
probation, a defendant must:
. . . .
(13) 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, but the probationer may not be
required to submit to any other search that would otherwise
N.C. Gen. Stat. § 15A-1343(b) (2015) (emphasis added).
"[t]he 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." State v.
Jackson, 368 N.C. 75, 78, 772 S.E.2d 847, 849 (2015)
(citation and quotation marks omitted). Here, however, the
trial court summarily denied Defendant's motion to
suppress without making any findings of fact or conclusions
Gen. Stat. § 15A-977 states that when ruling on a motion
to suppress, "[t]he judge must set forth in the record
his findings of facts and conclusions of law." N.C. Gen.
Stat. § 15A-977 (2015). However, despite this statutory
directive, our Supreme Court has held that "only a
material conflict in the evidence-one that potentially
affects the outcome of the suppression motion-must be
resolved by explicit factual findings that show the basis for
the trial court's ruling. When there is no conflict in
the evidence, the trial court's findings can be inferred
from its decision." State v. Bartlett, 368 N.C.
309, 312, 776 S.E.2d 672, 674 (2015) (internal citations
suppression hearing, "the burden is upon the state to
demonstrate the admissibility of the challenged
evidence[.]" State v. Cheek, 307 N.C. 552,
556-57, 299 S.E.2d 633, 636 (1983) (citation omitted). Here,
as noted above, the testimony relied upon by the State at the
suppression hearing came from three of the officers who
participated in the search of Defendant's home.
Therefore, the State's contention that the search was
lawful under N.C. Gen. Stat. § 15A-1343(b)(13) hinges on
the adequacy of the officers' testimony regarding the
purpose of the 4 March 2015 search. For this reason, it is
necessary to carefully review their testimony on this issue.
Officer Lackey testified, in pertinent part, as follows:
[PROSECUTOR:] And for what purpose on March 4th
did you go to the defendant's residence?
[OFFICER LACKEY:] We were conducting a warrantless search of
his residence with the U.S. Marshal's task force.
[PROSECUTOR:] And other than Officer Osborne and Officer
Blackwood who else was with you?
[OFFICER LACKEY:] Task force officer Jamie Carey, who is also
employed with the North Carolina Department of Public Safety,
as well as to my knowledge, two or three other U.S. Marshals.
. . . .
[DEFENSE COUNSEL:] Officer Lackey, are you or were you