State v. Alexander

755 S.E.2d 82

STATE of North Carolina

v.Darius Cordale ALEXANDER, Defendant.

No. COA13–461.

Court of Appeals of North Carolina.

March 18, 2014.

Appeal by defendant from judgment entered 17 August 2011 by Judge H. William Constangy in Catawba County Superior Court. Heard in the Court of Appeals 23 September 2013.

Attorney General Roy Cooper, by Special Deputy Attorney General Angel E. Gray, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Jon H. Hunt and Assistant Appellate Defender Benjamin Dowling–Sendor, for defendant-appellant.

GEER, Judge.

Defendant Darius Cordale Alexander appeals from an order denying, in part, his motion to suppress evidence seized during a warrantless search of a trailer parked in front of his mobile home. On appeal, defendant contends that the challenged search and seizure were not reasonable under the plain view doctrine because the criminal nature of the items was not immediately apparent and the officers did not have legal right of access to the items seized. We hold that the findings of fact support the trial court's conclusion that the criminal nature of the items was immediately apparent. However, we remand for further findings of fact and conclusions of law regarding whether the officers had a lawful right of access to the items seized.

Facts

The State's evidence tended to show the following facts. On the morning of 29 October 2010, Officer Stephanie Roberts of the Hickory Police Department responded to a reported theft of air conditioning copper coil at the Century Furniture Company. The maintenance supervisor, Bob Ledford, informed Officer Roberts that he had checked on the air conditioning units the previous day at around 4:30 p.m., but when he arrived that morning, he discovered that approximately 200 pounds of copper coil had been stolen.

After taking Mr. Ledford's statement, Officer Roberts called Mr. Caroll McKinney at McKinney Metals to determine if any coil had been sold to him in the previous 24 hours. Mr. McKinney called Officer Roberts back at around 3:30 p.m. and informed her that coil matching the description and weight of the stolen property had been sold to him that day by defendant. Mr. McKinney provided Officer Roberts with defendant's name and driver's license number, the license plate number of the vehicle defendant used to deliver the coil, and a physical description of defendant and his Infiniti SUV. Officer Roberts used defendant's driver's license number to locate defendant's address and determined that defendant lived in a mobile home in Hollar Mobile Home Park in Burke County.

Hollar Mobile Home Park has about 40 mobile homes on eight to 10 acres of land. There are two paved driveways that run through the park with mobile homes on either side, forming three rows of homes. The homes do not face towards the driveway, but instead are situated facing towards and parallel to the main road, which runs perpendicular to the paved driveways. In each row, there is a grassy area between each mobile home that constitutes the front yard of one home and the back yard of another. The homes are about 100 feet apart from one another, but there are no fences to separate one home from another.

When facing the park from the main road, defendant's mobile home is located in the outer left row of mobile homes. His front door faces the main road and is on the far right side of the mobile home, closest to the paved driveway. The door is accessible by walking up three steps to the front porch. The grassy area in front of his mobile home is bounded on the left by the wooded area bordering the mobile home park, the paved driveway to the right, and, at the front, another empty mobile home closer to the main road.

Officer Roberts drove to the mobile home park to question defendant, arriving at around 4:14 p.m. She drove down the main road and came upon the park on her left. As she approached the park and passed the entrance to the first paved driveway on her left, she observed an Infiniti SUV matching the description given to her by Mr. McKinney with a black male behind the steering wheel. She pulled into the second entrance, parked her car, and walked back towards defendant's mobile home on foot.

Defendant's SUV and a wooden tow-behind trailer were parked on the far left side of the grassy area in front of defendant's mobile home. The SUV was parked alongside the mobile home with its headlights facing towards the mobile home park driveway. The SUV's tailgate was at the edge of the wooded area, and the license plate was not visible from the driveway. Next to the SUV, towards the empty mobile home and the main road, the trailer had also been backed up to the woods so that its license plate was not visible. The SUV was approximately 10 to 15 feet in front of the mobile home, and the trailer was approximately five feet away from the SUV. The trailer had two wheels and was no longer attached to a vehicle, so the trailer hitch was resting on the ground. This caused the bed of the trailer, which was opened and uncovered, to tilt down in a forward angle towards the driveway.

Officer Roberts approached from the paved driveway on the right. When she reached the mobile home the vehicle was no longer occupied, so she believed that the individual she saw in the SUV had gone inside the mobile home. She walked up to the front porch and knocked on the door, but no one answered. When she turned around, she noticed the open tow-behind trailer parked in the front yard and saw that it contained pieces of air conditioning copper coil. She believed that the pieces of coil were scrap pieces of the coils that had been stolen and sold to Mr. McKinney.

After knocking on the door and getting no response, Officer Roberts walked down from the porch and over towards the wooded area to see behind the SUV and the tow-behind trailer to check the license plate numbers. The license plate on the SUV matched the license plate given to her by Mr. McKinney.

Officer Roberts radioed for assistance and also called Mr. Ledford. She asked Mr. Ledford to bring the ends of the copper coil that were left attached to the air conditioning units so that they could be compared to the pieces of coil in the trailer. While she was waiting for the other officers to arrive, she took photographs of the mobile home, SUV, and trailer.

When Deputy Nathan Smith of the Burke County Sheriff's Office arrived, Officer Roberts again knocked on the front door of the mobile home while Deputy Smith knocked on the back door. Again, they did not get a response. However, as Deputy Smith walked to the front of the mobile home, he saw a child peeping through a curtain. Claiming concern for the welfare of the child, Deputy Smith's partner went to the mobile home park office to speak with the park manager about obtaining a key to the mobile home. At the officers' request, a maintenance man who worked at the park used the landlord's key to allow the officers into defendant's mobile home. The defendant and the child were found hiding behind a door in one of the bedrooms.

After determining that the child was okay, the officers questioned defendant about the larceny of the air conditioning coils. They also found and seized marijuana and a backpack that contained gloves, screwdrivers, pliers, and other tools. Officer Roberts placed defendant under arrest for larceny and breaking and entering. After defendant was placed under arrest, Mr. Ledford arrived and was able to identify the coils. Officer Roberts collected all of the pieces of coil from the trailer as evidence.

Defendant was indicted for felony larceny and misdemeanor possession of stolen goods. On 11 August 2011, defendant filed a motion to suppress all the evidence seized on 29 October 2010, including the copper coil in the trailer, and any statements made by defendant during the search of his mobile home. On 17 August 2011, following a hearing, the trial court entered an order concluding that the search and seizure of the coils were justified by the plain view doctrine, but that the warrantless entry into the mobile home was not justified by any exigent circumstances, the caretaker exception, or consent of the landlord. The trial court granted defendant's motion to suppress the evidence seized within the mobile home, but denied defendant's motion to suppress the coils seized outside the mobile home.

Thereafter, defendant entered a plea of no contest to felony possession of stolen goods, and the State dismissed the charges of felony larceny and misdemeanor possession of stolen goods. The trial court sentenced defendant to a presumptive-range term of 5 to 6 months imprisonment. The court suspended the sentence and placed defendant on 30 months of supervised probation.

After the entry of judgment, defendant gave oral notice of appeal of the partial denial of his motion to suppress. On 18 December 2012, this Court dismissed defendant's appeal for lack of jurisdiction for failure to give adequate notice of appeal from the trial court's judgment. See State v. Alexander, ––– N.C.App. ––––, ––– S.E.2d ––––, 2012 WL 6590077, 2012 N.C.App. LEXIS 1390 (Dec. 18, 2012) (unpublished). On 27 December 2012, defendant filed a petition for writ of certiorari to review the 17 August 2011 judgment, which this Court granted 14 January 2013.

Discussion

The sole issue on appeal is whether the trial court erred in denying in part defendant's motion to suppress. “The scope of review of the denial of a motion to suppress is ‘strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.’ ” State v. Bone, 354 N.C. 1, 7, 550 S.E.2d 482, 486 (2001) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). Unchallenged findings of fact are binding on...