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State v. Powell

Court of Appeals of North Carolina

May 16, 2017

STATE OF NORTH CAROLINA
v.
DANNY WAYNE POWELL, JR.

          Heard in the Court of Appeals 4 April 2017.

         Appeal by defendant from judgment entered 14 December 2015 by Judge Richard D. Boner in Catawba County No. 15 CRS 3027 Superior Court.

          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.

          DAVIS, Judge.

         This 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.

         Factual and Procedural Background

         On 23 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.

         In 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.

         At 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.

         Officer 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 firearm.

         While 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 the closet.

         Investigator 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.

         A jury 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 Defendant's motion.

         At 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.

         On 14 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.

         Analysis

         Defendant's 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 search.

         As an 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 standard.

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 judicial proceedings.

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citations, quotation marks, and brackets omitted).

         In 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 (2016).

         The 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 be unlawful.

N.C. Gen. Stat. § 15A-1343(b) (2015) (emphasis added).

         Normally, "[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 of law.

          N.C. 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 omitted).[1]

         At a 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 [Defendant]'s ...

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