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State v. Fernandez

Court of Appeals of North Carolina

November 21, 2017


          Heard in the Court of Appeals 18 October 2017.

         Appeal by Defendant from judgment entered 16 November 2016 by Judge Gary M. Gavenus in Mitchell County Superior Court, No. 16 CRS 50024

          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.

         Victor 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.

         I. Factual and Procedural Background

         On 19 September 2016, Defendant was indicted for possession of a firearm by a felon under N.C. Gen. Stat. § 14-415.1 (2016).

         On 10 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.

         Defendant's 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.

         After 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 this defendant."

         The 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."

         Biddix 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.

         The two 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.

         During cross, Biddix stated he did not have a search warrant.

         The 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.

         The 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 ...

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