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State v. Ellis

Court of Appeals of North Carolina

June 18, 2019

STATE OF NORTH CAROLINA
v.
SHAWN PATRICK ELLIS, Defendant.

          Heard in the Court of Appeals 7 May 2019.

          Appeal by defendant from judgment entered 14 June 2018 by Judge Martin B. McGee in Cabarrus County Superior Court, Nos. 14 CRS 54222-23

          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.

          ARROWOOD, JUDGE.

         Shawn 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.

         I. Background

         On 9 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.

         The 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.

         Detective 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.

         Detective 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 the door.

         When 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.

         Detective 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 premises.

         On 29 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.

         Prior 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 ...

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