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State v. Jones

Court of Appeals of North Carolina

October 1, 2019


          Heard in the Court of Appeals 19 September 2018.

          Appeal 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 defendant-appellant.

          STROUD, JUDGE.

         Defendant 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.

         I. Background

         Defendant 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."

         In May 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 case.

         At 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.

         At 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.

         Defendant 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.

         II. Findings of Fact and Conclusions of Law

         Defendant's 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 evidence:[1]

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 assistance.
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 ...

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