State v. Smith

255 N.C.App. 138

804 S.E.2d 235

STATE of North Carolina

v.Marcus Marcel SMITH, Defendant.

No. COA16-1229

Court of Appeals of North Carolina.

Filed: August 15, 2017

Attorney General Joshua H. Stein, by Special Deputy Attorney General Adrian W. Dellinger, for the State.

Yoder Law PLLC, by Jason Christopher Yoder, for defendant-appellant.

ELMORE, Judge.

Three police officers entered defendant's apartment to execute arrest warrants issued for misdemeanor offenses. While two officers made the in-home arrest, the other officer conducted a protective sweep of defendant's apartment, leading to the discovery and seizure of a stolen shotgun. Defendant moved to suppress the shotgun as evidence obtained through an unlawful search and seizure, arguing that the officer lacked authority to conduct the protective sweep, and the seizure could not be justified under the "plain view" doctrine. The trial court denied defendant's motion to suppress. After the ruling, defendant pleaded guilty to possession of a firearm by a felon and, pursuant to defendant's plea arrangement, the court dismissed the charge of possession of a stolen firearm.

We allowed defendant's petition for writ of certiorari to review the trial court's order denying his motion to suppress. Upon review, we hold that (1) the officer was authorized to conduct the protective sweep, without reasonable suspicion, because the rooms in the apartment—including the bedroom where the shotgun was found—were areas "immediately adjoining the place of arrest from which an attack could be immediately launched," Maryland v. Buie , 494 U.S. 325, 334, 110 S.Ct. 1093, 1098, 108 L.Ed.2d 276, 286 (1990) ; and (2) because the officer lacked probable cause to believe that the shotgun was contraband "without conducting some further search of the object," " ‘its incriminating nature [was not] immediately apparent’ " and "the plain-view doctrine cannot justify its seizure," Minnesota v. Dickerson , 508 U.S. 366, 375, 113 S.Ct. 2130, 2137, 124 L.Ed.2d 334, 345 (1993) (quoting Horton v. California , 496 U.S. 128, 136, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112, 123 (1990) ) (citing Arizona v. Hicks , 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) ). Reversed.

I. Background

In January 2015, Officer Paier assumed a caseload of low-risk supervisees including defendant, who was on probation for impaired driving. During a routine absconder check, Officer Paier discovered outstanding arrest warrants against defendant for absconding probation and failing to appear at a scheduled court date. He verified defendant's current address and relayed the information to dispatch. Officer Joyce of the Kernersville Police Department assembled a squad, consisting of Officers Stokes, Ziglar, and Castle, to execute the arrest warrants.

On 1 April 2015, at approximately 11:00 p.m., the officers arrived at defendant's apartment complex. Officer Stokes staged with a K-9 in a back hallway of the multi-unit building, while the other officers approached the front door of defendant's unit. When Officer Joyce knocked, defendant opened the door cautiously, in his underwear, and confirmed his identity. Officers Ziglar and Castle entered the apartment and immediately placed defendant in custody as Officer Joyce, wearing a mounted body camera, conducted a protective sweep of the other rooms.

The front door of the apartment leads directly into the living room. The living room opens up on the back right corner, opposite the doorway, leading directly into the kitchen. A short hallway, spanning only a few feet, runs perpendicular in between the living room and the kitchen. The hallway is visible from the front door and more closely resembles the center of a four-way intersection, connecting every room inside the apartment: The living room and kitchen to the south, a bathroom to the east, an empty bedroom to the north, and defendant's bedroom to the west.

Officer Joyce stated that he conducted the sweep for the officers’ safety, only searching areas where individuals might be hiding. During the sweep, he saw a shotgun leaned up against a wall in the entryway of defendant's bedroom. The bedroom door was open and the shotgun was visible, in plain view, from the hallway. Officer Joyce walked past the shotgun to check defendant's bedroom, confirming there were no other occupants in the apartment. The entire sweep took less than two minutes.

After completing the sweep, Officer Joyce secured the shotgun "to have it in our control and also check to see if it was stolen." Once he confirmed the shotgun was unloaded, he carried it into the living room, where defendant stood near the front door, his hands cuffed behind his back, surrounded by Officers Ziglar and Castle. Officer Joyce placed the shotgun on a couch, used his flashlight to examine the receiver, and then turned over the shotgun to expose its serial number, which he immediately called into Communications. When Communications reported the shotgun stolen, the officers seized the weapon.

II. Discussion

Defendant argues that the trial court erred in denying his motion to suppress. Our review of a trial court's denial of a suppression motion 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. Cooke , 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). "The trial court's conclusions of law ... are fully reviewable on appeal." State v. Hughes , 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).

A. The Protective Sweep

Defendant first challenges the protective sweep of his apartment. "A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie , 494 U.S. 325, 327, 110 S.Ct. 1093, 1094, 108 L.Ed.2d 276, 281 (1990), cited in State v. Bullin , 150 N.C.App. 631, 640, 564 S.E.2d 576, 583 (2002). To be lawful, the sweep must be "narrowly confined to a cursory visual inspection of those places in which a person might be hiding." Buie , 494 U.S. at 327, 110 S.Ct. at 1094, 108 L.Ed.2d at 281. In Buie , the U.S. Supreme Court articulated two scenarios in which police officers may conduct a protective sweep. First, incident to an arrest, officers may, "as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Id. at 334, 110 S.Ct. at 1098, 108 L.Ed.2d at 286. Second, when an officer has "articulable facts which, taken together with rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger." Id.

The trial court concluded that the protective sweep of the apartment was valid under the first prong of Buie . Defendant argues, however, that Officer Joyce was not authorized to conduct a protective sweep of the bedroom, where the shotgun was found, because the bedroom was not "immediately adjoining the place of arrest from which an attack could be immediately launched."

Our appellate courts have not specifically addressed which areas might qualify as "immediately adjoining the place of arrest," but decisions from the federal courts are instructive. In United States v. Lauter , 57 F.3d 212 (2d Cir. 1995), the police executed an arrest warrant against the defendant in his small, basement apartment. Id. at 213. The apartment consisted of two small, adjacent rooms. Id. After arresting the defendant in the front room, the officers conducted a protective sweep of the back room, where they discovered a shotgun protruding from underneath a bed. Id. at 213–14. The defendant moved to suppress the shotgun, arguing that the protective sweep was impermissibly broad. Id. at 214, 216. Upholding the sweep under the first prong of Buie , the court reasoned that "the back room was ‘immediately adjoining’ the area in which [the defendant] was arrested," and the police action "was well within the scope of a permissible protective sweep, particularly in light of the small size of the apartment." Id. at 216–17 (citing United States v. Robinson , 775 F.Supp. 231, 235 (N.D. Ill. 1991) ).

Likewise, in United States v. Thomas , 429 F.3d 282 (D.C. Cir. 2005), the defendant challenged the scope of a protective sweep inside his one-bedroom apartment. Id. at 286. The front door of the apartment opened immediately into a hallway, where the defendant was arrested. Id. at 284, 287. To the left was a living room, and to the right were "doorways off the hallway leading to the kitchen, bathroom, and bedroom." Id. at 284. The court concluded that the bedroom, fifteen feet from the apartment's entrance, was "immediately adjoining the place of arrest" because "every room swept ‘could be immediately accessed from the hallway’ " and "the entrance to the bedroom was a straight shot down the hallway from the spot where [the defendant] was arrested." Id. at 284–85, 287. Although the defendant maintained that the living room and front hallway were the only "immediately adjoining spaces," the court declined to define the concept so narrowly:

The safety of the officers, not the percentage of the home searched, is the relevant criterion.... If an apartment is small enough that all of it "immediately adjoin[s] the place of arrest" and all of it constitutes a space or spaces "from which an attack could be immediately launched," ... then the entire apartment is subject to a limited sweep of spaces where a person may be found.

Id. at 287–88 (alteration in original) (citations omitted) (quoting Buie , 494 U.S. at 327, 334, 110 S.Ct. at 1094, 1098, 108 L.Ed.2d at 281, 286 ).

Guided by the foregoing decisions, we agree with the trial court's conclusion that Officer Joyce had authority to conduct...