in the Court of Appeals 19 September 2018.
by defendant from order entered 9 November 2017 by Judge W.
Robert Bell and judgment entered on or about 29 November 2017
by Judge Joseph N. Crosswhite in Superior Court, Cabarrus
County No. 17CRS052368-69.
Attorney General Joshua H. Stein, by Assistant Attorney
General Alexander G. Walton, for the State.
Everson Law Firm, PLLC, by Cynthia Everson, for
appeals an order denying his motion to suppress and his
judgment for drug-related offenses. Defendant moved to
suppress evidence found during a search of his residence
conducted by a probation officer and other law enforcement
officers, alleging that the search was not "directly
related" to his probation supervision under North
Carolina General Statute § 15A-1343(b)(13). Because the
trial court's findings of fact support its conclusion
that the search was "directly related" to his
supervision, we affirm the order and conclude there was no
error in the judgment.
was placed on probation after he was convicted of possession
of a firearm by a felon on 19 January 2017. Cabarrus County
Probation and Parole Officer Michelle Welch began supervising
defendant's probation on 1 February 2017. Defendant met
with Officer Welch and discussed the regular conditions of
his probation, which included warrantless searches of his
residence by a probation officer for purposes directly
related to his probation supervision. Officer Welch also
conducted a risk level assessment of defendant, using his
criminal history along with an "Offender Traits
Inventory instrument" ("OTI") used by
probation officers. Officer Welch determined defendant was at
"Level 1" for supervision purposes, which meant
that he was at "extreme high risk for supervision which
indicates he needs close supervision in the community."
2017, the Kannapolis Police Department, Concord Police
Department, and U.S. Marshals undertook an initiative to
perform warrantless searches of certain probationers in
Cabarrus County. Personnel from the Cabarrus County probation
office participated in the initiative. Officer Waylan Graham,
a Cabarrus County Probation and Parole Officer, was involved
in the search of defendant's residence. The purpose of
the initiative was for "high-risk and gang
offenders[.]" Officer Graham testified that defendant
was identified as one of the high risk probationers because
"the type of felony that he had, which is a possession
of a gun charge, high risk, positive drug screen." Prior
to conducting the search, Officer Graham read defendant's
probation file so he would be familiar with defendant's
about 7:46 a.m. on 18 May 2017, officers began the search of
defendant's residence, where he lived with his cousin and
his cousin's girlfriend. Officer Welch was aware that
defendant's residence was to be searched but she did not
participate in it. For the searches done by the joint
initiative, including the search of defendant's
residence, the probation department was the lead agency for
the search, so probation officers were the first officers in
the residence, and they performed the first sweep of the
residence. Only after the probation officers had entered the
residence and secured the probationer would officers from
other law enforcement agencies assist in the search.
defendant's residence, Officer Graham knocked on the door
and defendant answered. Officer Graham told defendant he was
there "to conduct a warrantless search[, ]" and
defendant was handcuffed. Officer Graham and three other
probation officers then did the initial sweep of the
residence and found marijuana in several places, including in
a cup and a mason jar on the kitchen counter, and marijuana
plants growing in the backyard and "hanging from a
clothesline in the laundry room." The officers searched
the common areas and defendant's bedroom initially, and
then obtained consent to search defendant's cousin's
and his cousin's girlfriend's bedroom. The officers
also searched the garage and found an EBT card with
defendant's name along with ecstasy, heroin, burnt
marijuana, a mason jar with marijuana residue, and digital
scales. The girlfriend told one of the officers that
defendant used the garage as a recording studio.
was charged with several drug-related felonies as a result of
the drugs and paraphernalia found during the search. On 16
June 2017, Defendant filed a "MOTION TO SUPPRESS ILLEGAL
SEARCH AND SEIZURE[, ]" requesting suppression of the
drugs and paraphernalia, and the trial court heard the motion
on 26 October 2017. On 9 November 2017, the trial court
entered an order denying defendant's motion to suppress.
On or about 29 November 2017, defendant entered an
Alford plea to all charges and reserved his right to
appeal the denial of the motion to suppress. Defendant
appeals both the order of the denial of his motion to
suppress and the judgment of his drug convictions.
Findings of Fact and Conclusions of Law
only issue on appeal is whether the trial court erred in
denying his motion to dismiss because the search of his
residence and garage were reasonable, arguing specifically
that the search was not "directly related" to his
probation supervision. Defendant challenges 6 of the trial
court's 19 findings of fact as unsupported by competent
6. Based upon an offender traits inventory evaluation
conducted at the time he was placed on probation, his
criminal history and performance on previous probations the
Defendant was assessed as an "extreme high risk"
probationer requiring close supervision in the community.
7. Between February 1, 2017 and May 17, 2017 the Defendant
moved twice and tested positive for drug use. Defendant's
use of illegal drugs violated the conditions of his probation
that he not use or possess any controlled or illegal drugs
and that he commit no criminal offense. His probation officer
used her discretionary delegated authority to place an
electronic monitor on the Defendant for a period of 30 days
as a sanction.
10. The purpose of the searches was to provide closer
supervision and oversight to the selected probationers
because of their high risk status.
11. A number of teams were assigned to the task. A team
consisted of probation officers and law enforcement officers.
The teams were led by the probation officers and the law
enforcement officers were there to provide security and
12. The probationers to be searched were selected by the
probation officers because of the high risk status and need
for closer supervision. They were not selected at random or
by the law enforcement officers nor for the purpose of
conducting any police investigation.
13. Graham and several other probation officers went to the
Defendant's residence. They were accompanied by
Kannapolis Police Department (KPD) Officers and U.S.
Marshals. Graham selected the Defendant based upon his risk
assessment, suspected gang affiliation, and positive drug
screen. The purpose of the search was to give the added
scrutiny and closer supervision required of "high
risk" probationers such as the Defendant.
14. Prior to going to the Defendant's house he notified
the Defendant's assigned probation officer and read
Defendant's case file.
15. At the residence, . . . PO Graham initiated the search by
knocking on the residence door. The KPD and Marshals remained
in the yard. Graham explained to the Defendant why they were
there and what they ...