in the Court of Appeals 18 October 2017.
by Defendant from judgment entered 16 November 2016 by Judge
Gary M. Gavenus in Mitchell County Superior Court, No. 16 CRS
Attorney General Joshua H. Stein, by Assistant Attorney
General Rajeev K. Premakumar, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Paul M. Green, for Defendant-Appellant.
HUNTER, JR., ROBERT N., JUDGE.
Manuel Fernandez ("Defendant") appeals his
conviction of possession of a firearm by a felon. Defendant
contends N.C. Gen. Stat. § 14-415.1, which generally
prohibits felons from possessing firearms, was
unconstitutional as applied to him. We disagree and find no
error in the trial court's judgment.
Factual and Procedural Background
September 2016, Defendant was indicted for possession of a
firearm by a felon under N.C. Gen. Stat. § 14-415.1
October 2016, Defendant filed a motion to dismiss the
indictment contending N.C. Gen. Stat. § 14-415.1 is
unconstitutional as applied to him. In the alternative,
Defendant contended the trial court should suppress the
results of an illegal search. The State did not file a
written response to this motion. Counsel for Defendant
subsequently moved to withdraw for health reasons. On 13
October 2016, the trial court allowed defense counsel's
motion to withdraw and appointed another attorney.
case was called for trial on 14 November 2016. On that same
day, Defendant filed a motion to suppress the State's
evidence on the grounds the evidence "was obtained in
violation of federal and state constitutional rights to be
free from unreasonable searches and seizures under the Fourth
and Fourteenth Amendments to the United States Constitution
and Article I, Sec. 20 of the North Carolina
Constitution." Defendant also alleged the State obtained
its evidence in violation of N.C. Gen. Stat. § 15A-974.
jury selection, the trial court excused the jurors to address
these pre-trial matters with counsel. Defendant first asked
the court to dismiss the case based on the State's
failure to respond to Defendant's motion to dismiss. The
trial court responded Defendant's prior counsel failed to
sign Defendant's motion to dismiss. The trial court
stated, "[n]ot only is it not signed . . . I am going to
deny it. I will find that the statute itself is
constitutional, and it is constitutional as it applies to
trial court next addressed Defendant's motion to suppress
based on the Fourth Amendment. The State called Deputy Josh
Biddix ("Biddix") with the Mitchell County
Sheriff's Office. Defendant called the Sheriff's
Office to report someone had broken into his home. While
personnel from the Sheriff's Office spoke with Defendant,
Biddix recognized Defendant's name and thought he had
"a status as a convicted felon." Biddix checked his
computer "before we went any further." Defendant
reported "a couple of rifles" were stolen, along
with other valuables and cash. After confirming
Defendant's status as a convicted felon, Biddix explained
to Defendant "we could not return the guns to him even
if we were able to find the stolen weapons."
and Deputy Hobson ("Hobson") went to
Defendant's residence to investigate the break-in:
[Defendant] came to the door, asked us to come in, told us
what had happened, showed us where the back door to his
residence had been pushed open, kicked in, and then started
to show us where different things had been taken from in the
house, uh, some of his valuables, showed us where they'd
been stored before they had been stolen.
officers and Defendant made their way to Defendant's
bedroom. Once in the bedroom, Hobson "pointed out an
object to [Biddix] on the floor . . . which [Biddix] was
almost, about ready to step on at that point." Biddix
stated "[i]t was partially covered by clothes but enough
of it was sticking out to see . . . a shotgun." Biddix
first finished his report to give to a Detective, and then
"placed [Defendant] in handcuffs and fingerprinted
him." Biddix next took Defendant to a magistrate.
cross, Biddix stated he did not have a search warrant.
State rested, and Defendant offered no evidence. The State
then argued for the dismissal of Defendant's motion to
suppress. The State contended "this is not a search as
contemplated by the Fourth Amendment. This was law
enforcement investigating a crime that [Defendant] had
reported. Counsel for Defendant responded:
[A] search is invalid if there's no search warrant.
That's where the courts start, at an invalid search. And
Your Honor, this is absent exigent circumstances which
State's failed to prove. They could've gotten a
warrant, easily gone out and got a search warrant, chose not
to do so. My client shouldn't have to suffer for that.
If they move something to determine its nature, even though
it's, even though the deputy said that she seen [sic] the
butt sticking out, still had to move his clothing, that
creates a search within the meaning of the Fourth Amendment.
This was a search, invalid without a search warrant, and
we'd ask the Court to dismiss.
trial court denied Defendant's motion to suppress on the
ground "[o]nce the officer observed it, she certainly
had the right to pick up what she ...