in the Court of Appeals 7 June 2017.
certiorari review of judgment entered 12 April 2016 by Judge
John O. Craig III in Forsyth County Nos. 15 CRS 390, 15 CRS
52988 Superior Court.
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Adrian W. Dellinger, for the State.
Law PLLC, by Jason Christopher Yoder, for
police officers entered defendant's apartment to execute
arrest warrants issued for misdemeanor offenses. While two
officers made the in-home arrest, the other officer conducted
a protective sweep of defendant's apartment, leading to
the discovery and seizure of a stolen shotgun. Defendant
moved to suppress the shotgun as evidence obtained through an
unlawful search and seizure, arguing that the officer lacked
authority to conduct the protective sweep, and the seizure
could not be justified under the "plain view"
doctrine. The trial court denied defendant's motion to
suppress. After the ruling, defendant pleaded guilty to
possession of a firearm by a felon and, pursuant to
defendant's plea arrangement, the court dismissed the
charge of possession of a stolen firearm.
allowed defendant's petition for writ of certiorari to
review the trial court's order denying his motion to
suppress. Upon review, we hold that (1) the officer was
authorized to conduct the 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, "
Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093,
1098, 108 L.Ed.2d 281, 286 (1990); and (2) because the
officer lacked probable cause to believe that the shotgun was
contraband "without conducting some further search of
the object, " " 'its incriminating nature [was
not] immediately apparent' " and "the
plain-view doctrine cannot justify its seizure, "
Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct.
2130, 2137, 124 L.Ed.2d 334, 345 (1993) (quoting Horton
v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 2308,
110 L.Ed. 112, 123 (1990)) (citing Arizona v. Hicks,
480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987)).
January 2015, Officer Paier assumed a caseload of low-risk
supervisees including defendant, who was on probation for
impaired driving. During a routine absconder check, Officer
Paier discovered outstanding arrest warrants against
defendant for absconding probation and failing to appear at a
scheduled court date. He verified defendant's current
address and relayed the information to dispatch. Officer
Joyce of the Kernersville Police Department assembled a
squad, consisting of Officers Stokes, Ziglar, and Castle, to
execute the arrest warrants.
April 2015, at approximately 11:00 p.m., the officers arrived
at defendant's apartment complex. Officer Stokes staged
with a K-9 in a back hallway of the multi-unit building,
while the other officers approached the front door of
defendant's unit. When Officer Joyce knocked, defendant
opened the door cautiously, in his underwear, and confirmed
his identity. Officers Ziglar and Castle entered the
apartment and immediately placed defendant in custody as
Officer Joyce, wearing a mounted body camera, conducted a
protective sweep of the other rooms.
front door of the apartment leads directly into the living
room. The living room opens up on the back right corner,
opposite the doorway, leading directly into the kitchen. A
short hallway, spanning only a few feet, runs perpendicular
in between the living room and the kitchen. The hallway is
visible from the front door and more closely resembles the
center of a four-way intersection, connecting every room
inside the apartment: The living room and kitchen to the
south, a bathroom to the east, an empty bedroom to the north,
and defendant's bedroom to the west.
Joyce stated that he conducted the sweep for the
officers' safety, only searching areas where individuals
might be hiding. During the sweep, he saw a shotgun leaned up
against a wall in the entryway of defendant's bedroom.
The bedroom door was open and the shotgun was visible, in
plain view, from the hallway. Officer Joyce walked past the
shotgun to check defendant's bedroom, confirming there
were no other occupants in the apartment. The entire sweep
took less than two minutes.
completing the sweep, Officer Joyce secured the shotgun
"to have it in our control and also check to see if it
was stolen." Once he confirmed the shotgun was unloaded,
he carried it into the living room, where defendant stood
near the front door, his hands cuffed behind his back,
surrounded by Officers Ziglar and Castle. Officer Joyce
placed the shotgun on a couch, used his flashlight to examine
the receiver, and then turned over the shotgun to expose its
serial number, which he immediately called into
Communications. When Communications reported the shotgun
stolen, the officers seized the weapon.
argues that the trial court erred in denying his motion to
suppress. Our review of a trial court's denial of a
suppression motion is "strictly limited to determining
whether the trial judge's underlying findings of fact are
supported by competent evidence, in which event they are
conclusively binding on appeal, and whether those factual
findings in turn support the judge's ultimate conclusions
of law." State v. Cooke, 306 N.C. 132, 134, 291
S.E.2d 618, 619 (1982). "The trial court's
conclusions of law . . . are fully reviewable on
appeal." State v. Hughes, 353 N.C. 200, 208,
539 S.E.2d 625, 631 (2000).
first challenges the protective sweep of his apartment.
"A 'protective sweep' is a quick and limited
search of premises, incident to an arrest and conducted to
protect the safety of police officers or others."
Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093,
1094, 108 L.Ed.2d 276, 281 (1990), cited in State v.
Bullin, 150 N.C.App. 631, 640, 564 S.E.2d 576, 583
(2002). To be lawful, the sweep must be "narrowly
confined to a cursory visual inspection of those places in
which a person might be hiding." Buie, 494 U.S.
at 327, 110 S.Ct. at 1094, 108 L.Ed.2d at 281. In
Buie, the U.S. Supreme Court articulated two
scenarios in which police officers may conduct a protective
sweep. First, incident to an arrest, officers may, "as a
precautionary matter and without probable cause or reasonable
suspicion, look in closets and other spaces immediately
adjoining the place of arrest from which an attack could be
immediately launched." Id. at 334, 110 S.Ct. at
1098, 108 L.Ed.2d at 286. Second, when an officer has
"articulable facts which, taken together with rational
inferences from those facts, would warrant a reasonably
prudent officer in believing that the area to be swept
harbors an individual posing a danger." Id.
trial court concluded that the protective sweep of the
apartment was valid under the first prong of Buie.
Defendant argues, however, that Officer Joyce was not
authorized to conduct a protective sweep of the bedroom,
where the shotgun was found, because the bedroom was not
"immediately adjoining the place of arrest from which an
attack could be immediately launched."
appellate courts have not specifically addressed which areas
might qualify as "immediately adjoining the place of
arrest, " but decisions from the federal courts are
instructive. In United States v. Lauter, 57 F.3d 212
(2d Cir. 1995), the police executed an arrest warrant against
the defendant in his small, basement apartment. Id.
at 213. The apartment consisted of two small, adjacent rooms.
Id. After arresting the defendant in the front room,
the officers conducted a protective sweep of the back room,
where they discovered a shotgun protruding from underneath a
bed. Id. at 213-14. The defendant moved to suppress
the shotgun, arguing that the protective sweep was
impermissibly broad. Id. at 214, 216. Upholding the
sweep under the first prong of Buie, the court
reasoned that "the back room was 'immediately
adjoining' the area in which [the defendant] was
arrested, " and the police action ...