in the Court of Appeals 7 May 2019.
by defendant from judgment entered 14 June 2018 by Judge
Martin B. McGee in Cabarrus County Superior Court, Nos. 14
Attorney General Joshua H. Stein, by Assistant Attorney
General Kirk R. Chrzanowski, for the State.
Appellate Defender Glenn Gerding, by Assistant Appellate
Defender Michele A. Goldman, for defendant.
Patrick Ellis ("defendant") appeals the denial of
his motion to suppress, and from a judgment entered based
upon his guilty pleas to manufacturing marijuana, attempted
trafficking of marijuana, possession of drug paraphernalia,
possession with intent to sell and deliver marijuana, and
maintaining a dwelling house for keeping and selling a
controlled substance. Those pleas were entered pursuant to
North Carolina v. Alford, 400 U.S. 25, 27 L.Ed.2d
162 (1970) (hereinafter, "Alford plea"). For the
following reasons, we reverse.
September 2014, Cabarrus County Sheriff's Detectives
Helms ("Detective Helms") and Kevin Klinglesmith
("Detective Klinglesmith") responded to a home off
NC Highway 49 in reference to a felony larceny report
involving the theft of a Bobcat earth moving equipment. The
officers located the equipment at the home, and were informed
by a witness there that the person who had stolen the
equipment was at a house "across the street[.]" The
house belonged to defendant.
officers parked across the street from defendant's house
and walked along the wood line to the right of the driveway.
Detective Klinglesmith testified that the driveway was on the
right side of the home, and the front door of the residence
was "further to the right half" and was the door
closest to the road. Detective Helms went to the front door
and knocked, but no one responded. He noticed there was a
large spider web present in the door frame.
Klinglesmith went around to the right rear of the house
behind the residence. He testified that he went to the rear
of the house because the detectives were dealing with a
felony suspect, and he believed the backyard was an access
point, due to vehicles along the right side to the rear of
the residence. There were no visible gates or "No
Trespassing" signs surrounding the residence.
Helms failed to get a response at the front door after
knocking for several minutes, however, he saw a curtain in
the front window move. Detective Helms radioed Detective
Klinglesmith to tell him the curtain moved, and Detective
Klinglesmith began to knock at the rear door for several
minutes. He was also unsuccessful at getting anyone to answer
Detective Klinglesmith did not hear anything from the back of
the house, or see anyone inside the home, he walked to the
front yard near the left front corner of the residence. He
still did not see or hear anyone from that vantage point.
However, he was able to smell the odor of marijuana.
Detective Klinglesmith called Detective Helms over to the
front of the house and asked him if he noticed anything odd.
Detective Helms also smelled marijuana.
Klinglesmith heard a loud fan coming from a crawl space area
and noticed the odor of the marijuana from that area. He
noticed a light illuminating from a padlocked crawl space
area. He testified that he "put [his] eye up to it
without touching it . . . [he] could see between the
slats" and observed what he believed to be a marijuana
plant in a bucket inside the crawlspace. The detectives
contacted vice and narcotics officers. Detective D.J. Miller
of the Cabarrus County Sheriff's Office applied for and
received a warrant authorizing the search of defendant's
residence based solely upon the information obtained from
Detectives Klinglesmith and Helms. The search warrant was
issued at 11:25 a.m. and was executed within the hour.
Various drugs and drug paraphernalia were seized from the
September 2014, defendant was charged with manufacturing
marijuana, trafficking in marijuana, possessing drug
paraphernalia, possessing marijuana with intent to sell or
deliver, maintaining a dwelling used for keeping and selling
a controlled substance, and trafficking in opiates.
to trial, defendant filed a motion to suppress "all
evidence of any kind" including seized drugs, statements
of the defendant, or any other witnesses present at the time
of the search. A hearing was held on 10 May 2017 before the
Honorable Martin B. McGee in Cabarrus County Superior Court.
On 3 April 2018, the court issued a written order denying the
motion. The pertinent findings of fact are as follows:
4. Detective Helms knocked numerous times at the front door
but was unable to make contact with anyone inside ...