State v. Adams , 250 N.C. App. 664 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1384
Filed: 6 December 2016
Gaston County, Nos. 11 CRS 64276, 64278
STATE OF NORTH CAROLINA
v.
CALVIN LAMAR ADAMS
Appeal by defendant from judgments entered 19 August 2015 by Judge Robert
T. Sumner in Gaston County Superior Court. Heard in the Court of Appeals
26 May 2016.
Attorney General Roy Cooper, by Associate Attorney General Paige Phillips, for
the State.
Jeffrey William Gillette for defendant-appellant.
McCULLOUGH, Judge.
Calvin Lamar Adams (“defendant”) appeals the denial of his motion to
suppress following the entry of judgments on his convictions for driving while
impaired (“DWI”) and resisting a public officer. For the following reasons, we find no
error.
I. Background
On 7 October 2011, defendant was arrested and citations were issued for
driving while license revoked (“DWLR”), DWI, resisting a public officer, and
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possession of less than one-half ounce of marijuana. Officers then sought and
obtained a search warrant for defendant’s house, vehicle, and person. Defendant’s
vehicle was seized during the execution of the search warrant on 8 October 2011. On
10 October 2011, defendant successfully petitioned for the pretrial release of his
vehicle pursuant to N.C. Gen. Stat. § 20-28(e2) on the ground that any period of
license revocation had expired prior to the date of the alleged offense. In an order
striking the storage fees for defendant’s vehicle, the district court noted that
defendant’s vehicle was seized in error because, although the DMV system showed
defendant’s license was revoked from 27 July 2011, defendant’s license was in fact
active from 29 August 2011 when defendant paid the civil revocation fee, even though
it was not sent to the DMV.
After several motions to continue the matter, defendant’s case came on for trial
in Gaston County District Court before the Honorable Richard B. Abernathy. On
9 December 2014, the DWLR charge was dismissed, defendant was found not guilty
of possession of marijuana, and defendant was found guilty of impaired driving and
resisting a public officer. Defendant gave notice of appeal.
Prior to his case coming on for trial in superior court, on 6 March 2015,
defendant filed a motion to suppress all evidence obtained during and subsequent to
his seizure on the bases that his seizure was unlawful, entry into his home was
unlawful, and his arrest was unlawful – all in violation of defendant’s constitutional
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rights. Defendant elaborated as follows: “[s]pecifically, law enforcement officers
unlawfully seized [defendant] without the requisite reasonable suspicion and
unlawfully entered his residence without a warrant or probable cause to arrest him.
Moreover, those officers arrested him without probable cause.”
Defendant’s motion to suppress came on for hearing in Gaston County Superior
Court before the Honorable Todd Pomeroy on 22 April 2015. The evidence presented
at the suppression hearing tended to show as follows: Gastonia Police Officer C.
Singer was on routine patrol with Officer R. Ghant on 7 October 2011 when, at
approximately 11:00 p.m., Officer Singer observed defendant driving a vehicle
eastbound on Meade Avenue in the opposite direction the officers were traveling.
Officer Singer was familiar with defendant and defendant’s vehicle because he had
stopped defendant and charged defendant with DWI on 27 July 2011, approximately
three months prior. Officer Singer knew defendant’s license had been suspended as
a result of the July DWI and turned around to follow defendant in time to observe
defendant pull into his driveway from Meade Avenue. Officer Singer then had Officer
Ghant run defendant’s tag and license information through DCI, which confirmed
that defendant’s license was revoked.
Upon the belief that defendant was driving while his license was suspended,
Officer Singer pulled into defendant’s driveway directly behind defendant’s vehicle
and initiated a traffic stop by activating his blue lights. By the time Officer Singer
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Opinion of the Court
activated his lights, defendant had exited from the driver’s seat of his vehicle and was
approximately 15-20 feet away from the front door of his residence, walking toward
the front door. At that time, Officer Ghant instructed defendant to stop and to get
back inside his car. Despite having a boot on one of his feet as the result of an injury,
defendant picked up his pace toward the front door and Officer Singer advised him to
stop running. Officer Ghant pursued defendant while Officer Singer grabbed the in-
car camera mic. Defendant entered the front door and then attempted to close the
front door on Officer Ghant. Officer Ghant was able to keep the front door from
shutting and held the door open until Officer Singer arrived. The officers were then
able to force the front door open and made physical contact with defendant just inside
the front door. Officer Singer then patted defendant down for a safety check and
found what he believed was a bag of marijuana in defendant’s pocket. Defendant was
arrested and charged with DWLR, possession of marijuana, and resisting a public
officer. Further observation of defendant after his arrest led Officer Singer to believe
defendant was impaired. Consequently, another officer was called to perform field
sobriety tests. Defendant was then additionally charged with DWI.
Following the evidence, defendant focused his argument for suppression on the
officer’s alleged illegal entry into defendant’s residence. The State argued the officers
were in hot pursuit. Upon consideration of the facts and arguments, the trial judge
denied defendant’s motion to suppress, concluding there was reasonable suspicion to
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Opinion of the Court
stop defendant’s vehicle for DWLR and probable cause to arrest for resisting a public
officer once defendant ignored the blue lights and verbal commands to stop and
entered his residence.
Defendant’s DWI and resisting a public officer charges came on for trial in
Gaston County Superior Court before the Honorable Robert T. Sumner on
17 August 2015. Prior to jury selection, the trial court addressed additional pretrial
matters. Upon consideration of those matters, the trial court overruled defendant’s
objection to the introduction of a chemical analyst’s affidavit into evidence, granted
defendant’s motion to exclude mention of prior DWI and DWLR charges against
defendant, and denied defendant’s motion to exclude marijuana evidence. The
defense then alerted the trial judge that defendant’s motion to suppress had been
denied and, consequently, the defense may object when certain evidence or testimony
was introduced. The trial then proceeded.
On 19 August 2015, the jury returned verdicts finding defendant guilty of DWI
and resisting a public officer. The convictions were consolidated and an impaired
driving judgment was entered. Defendant received a 60-day sentence that was
suspended on condition that defendant serve 24 months of unsupervised probation.
Defendant gave notice of appeal in open court.
II. Discussion
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On appeal, defendant argues the trial court erred in denying his motion to
suppress because the officers’ entry into his residence to arrest him was unlawful.
Thus, defendant contends all evidence of his impairment obtained as a result of the
alleged unlawful entry was tainted and must be suppressed.
Yet, as an initial matter, we address the State’s contention that defendant
waived the argument now asserted on appeal. It has long been the rule that “[i]n
order to preserve a question for appellate review, a party must have presented the
trial court with a timely request, objection or motion, stating the specific grounds for
the ruling sought if the specific grounds are not apparent.” State v. Eason, 328 N.C.
409, 420, 402 S.E.2d 809, 814 (1991); see also N.C. R. App. P. 10(a)(1) (2015). In this
case, the State contends defendant waived his argument on appeal by failing to
include the precise argument on appeal in his pretrial motion to suppress and by
failing to object when evidence of his impairment was introduced at trial. We
disagree that defendant failed to adequately include the argument on appeal in his
pretrial motion, but agree that defendant failed to object to evidence offered at trial.
N.C. Gen. Stat. § 15A-977 governs motions to suppress evidence in superior
court and provides, in pertinent part, that “[a] motion to suppress evidence in
[S]uperior [C]ourt made before trial must be in writing and . . . must state the grounds
upon which it is made.” N.C. Gen. Stat. § 15A-977(a) (2015). The State asserts that
the only grounds for suppression identified by defendant in the pretrial motion were
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that there was no reasonable suspicion for the initial stop of defendant and there was
no probable cause to believe defendant was involved in criminal activity. The State
then contends that defendant abandoned those two grounds during the suppression
hearing and argued only that there were no exigent circumstances warranting hot
pursuit. The State contends the lack of exigent circumstances is the argument now
asserted on appeal and that it was not contained in defendant’s pretrial motion to
suppress. We are not convinced. It is clear from defendant’s motion that defendant
asserts there was an unlawful entry into his residence to arrest him “without a
warrant and without exigent circumstances.” While the motion does not mention “hot
pursuit,” the motion was sufficient to preserve the issue now on appeal.
Concerning preservation of the issues at trial, “[t]he law in this State is now
well settled that ‘a trial court's evidentiary ruling on a pretrial motion [to suppress]
is not sufficient to preserve the issue of admissibility for appeal unless a defendant
renews the objection during trial.’ ” State v. Hargett, __ N.C. App. __, __, 772 S.E.2d
116, 119 (2015) (quoting State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821
(2007) (citations omitted; emphasis in original)). In defendant’s motion, defendant
sought to suppress all evidence obtained subsequent to the officers’ entry into
defendant’s residence to arrest defendant. As indicated above, all evidence of
impairment necessary to prove the DWI charge was obtained after defendant was
arrested. It is evident defense counsel was aware of the need to renew objections to
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Opinion of the Court
the evidence at trial as defense counsel informed the judge prior to jury selection that
defendant’s motion to suppress had been denied and, consequently, the defense may
object when certain evidence or testimony was introduced. Defense counsel, however,
failed to do so when evidence of impairment was admitted at trial. Specifically,
Officer Singer testified that after defendant was detained, he noticed defendant had
slurred speech and bloodshot eyes. Officer Singer also testified that he found an
empty bottle of hydrocodone and a bag of what he believed to be marijuana in
defendant’s pocket. Officer Ewers, who was called to perform field sobriety tests on
defendant, testified that defendant appeared lethargic, defendant’s eyelids were
droopy, and defendant’s eyes were bloodshot. Officer Ewers then explained that
defendant had trouble following directions during a horizontal gaze nystagmus test,
leading him to believe defendant was impaired. Linda Farren, a forensic scientist
supervisor with the State Crime Laboratory who was admitted as an expert in
forensic toxicology, testified that defendant’s blood samples tested positive for
benzodiazepines, specifically alprazolam or Xanax, and cannabinoids. The chemical
analyst’s report was then admitted into evidence without objection. Defendant does
not dispute that the above evidence of impairment was admitted without objection,
but instead points out that defense counsel objected when the State sought to admit
the bag of marijuana found on defendant as State’s Exhibit 1. Defendant contends it
is clear from the “object[ion] on the Fourteenth Amendment” that defense counsel
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intended to preserve the suppression motion and “it would be wrong to assume
[defendant] intended to waive his objection[.]” We disagree. Defendant’s objection to
the marijuana evidence does not preserve for appellate review the admissibility of all
evidence of impairment obtained following defendant’s arrest. In fact, despite
defendant’s objection to the admission of the bag of marijuana, other evidence of
defendant’s possession of the marijuana was introduced into evidence without
objection. See State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995) (“Where
evidence is admitted over objection and the same evidence has been previously
admitted or is later admitted without objection, the benefit of the objection is lost.”).
By failing to object to the other evidence obtained subsequent to his arrest, defendant
waived review.
Defendant, however, seeks to have this Court invoke Rule 2 of the North
Carolina Rules of Appellate Procedure to review the merits of his case if his
arguments are not otherwise preserved. That rule allows this Court to “suspend or
vary the requirements or provisions of any of [the appellate rules] in a case pending
before it upon application of a party or upon its own initiative[]” in order to prevent
manifest injustice to a party. N.C. R. App. P. 2 (2016). In our discretion, we invoke
Rule 2 and reach the merits of this case.
Generally, our review of a trial court’s denial of a motion to suppress is “strictly
limited to determining whether the trial judge’s underlying findings of fact are
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Opinion of the Court
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).
“When findings of fact are not challenged on appeal, ‘such findings are presumed to
be supported by competent evidence and are binding on appeal.’ ” State v.
Washington, 193 N.C. App. 670, 672, 668 S.E.2d 622, 624 (2008) (quoting State v.
Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984) (internal quotation marks
omitted)), disc. review denied, 363 N.C. 138, 674 S.E.2d 420 (2009). “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). “ ‘[T]he trial court's conclusions of law must be
legally correct, reflecting a correct application of applicable legal principles to the
facts found.’ ” State v. Golphin, 352 N.C. 364, 409, 533 S.E.2d 168, 201 (2000) (quoting
State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)), cert. denied, 532 U.S.
931, 149 L. Ed. 2d 305 (2001).
However, because there was no objection to the evidence below, defendant
asserts the proper standard of review in the present case upon invoking Rule 2 is
plain error.
For error to constitute plain error, a defendant must
demonstrate that a fundamental error occurred at trial. To
show that an error was fundamental, a defendant must
establish prejudice—that, after examination of the entire
record, the error had a probable impact on the jury's
finding that the defendant was guilty.
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State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal quotation
marks and citations omitted).
While we agree plain error review is proper, it makes no difference in this case
because if the trial court erred in denying defendant’s motion to suppress, it is certain
that the error was fundamental because there would be no evidence of impairment to
support the DWI charge if defendant’s motion to suppress had been allowed. Thus,
in the present case, where there is no dispute as to the relevant facts, we address only
the application of search and seizure law.
“Both the United States and North Carolina Constitutions protect against
unreasonable searches and seizures.” State v. Otto, 366 N.C. 134, 136, 726 S.E.2d
824, 827 (2012) (citing U.S. Const. amend. IV; N.C. Const. art. I, § 20). The Supreme
Court has emphasized that “the ‘physical entry of the home is the chief evil against
which the wording of the Fourth Amendment is directed.’ ” Welsh v. Wisconsin, 466
U.S. 740, 748, 80 L. Ed. 2d 732, 742 (1984) (quoting United States v. United States
District Court, 407 U.S. 297, 313, 32 L. Ed. 2d 752 (1972)). Therefore, “the Court has
recognized, as ‘a “basic principle of Fourth Amendment law[,]” that searches and
seizures inside a home without a warrant are presumptively unreasonable.’ ” Id. at
749, 80 L. Ed. 2d at 742 (quoting Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d
639 (1980)). Yet, there are exceptions to the warrant requirement, which the Court
has noted are “few in number and carefully delineated.” Id. at 749, 80 L. Ed. 2d at
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743 (citation omitted). A warrantless arrest in the home may be reasonable where
there is probable cause and exigent circumstances. Id. (citing Payton, 445 U.S. at
583-90, 63 L. Ed. 2d 639).
With respect to exigent circumstances, this Court has
explained: Exigent circumstances exist when there is [a]
situation that demands unusual or immediate action and
that may allow people to circumvent usual procedures. . . .
The United States Supreme Court has approved the
following exigent circumstances justifying warrantless
searches and seizures: (1) where law enforcement officers
are in “hot pursuit” of a suspect; (2) where there is
immediate and present danger to the public or to law
enforcement officers; (3) where destruction of evidence is
imminent; and (4) where the gravity of the offense for
which the suspect is arrested is high.
State v. Jordan, __ N.C. App. __, __, 776 S.E.2d 515, 519 (internal quotation marks
and citations omitted), disc. review denied, 368 N.C. 358, 778 S.E.2d 85 (2015). “A
determination of whether exigent circumstances are present must be based on the
‘totality of the circumstances.’ ” State v. Nowell, 144 N.C. App. 636, 643, 550 S.E.2d
807, 812 (2001), aff’d per curiam, 355 N.C. 273, 559 S.E.2d 787 (2002).
Defendant now contends there were no exigent circumstances warranting
entry into defendant’s home to arrest defendant. We disagree.
It is undisputed that the officers had reasonable suspicion to initiate an
investigatory stop of defendant for DWLR when they pulled into defendant’s
driveway behind him and activated the blue patrol car lights as defendant was exiting
his vehicle and making his way toward his front door. Defendant did not stop for the
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blue lights and then continued hurriedly toward the front door after the officers told
defendant to stop. At that point, the officers had probable cause to arrest defendant
for resisting a public officer and began a “hot pursuit” of defendant, one of the exigent
circumstances delineated by the courts. The officers arrived at the front door of
defendant’s residence just as defendant made his way across the threshold and were
able to prevent defendant from closing the door. Officers then forced the front door
open and detained and arrested defendant just inside the front door. We hold such
warrantless entry and arrest was proper under United States v. Santana, 427 U.S.
38, 49 L. Ed. 2d 300 (1976).
In Santana, the Supreme Court addressed whether hot pursuit justified the
warrantless entry into the home of a defendant to arrest that defendant when the
defendant retreated from the threshold of the house into the vestibule upon the
arrival of the police. Relying on United States v. Watson, 423 U.S. 411, 46 L. Ed. 2d
598 (1976) (a warrantless arrest of an individual in a public place upon probable cause
did not violate the Fourth Amendment), the Court first held that the defendant was
in a public place for purposes of Fourth Amendment jurisprudence while standing in
the doorway to the house because she was not in an area where she had any
expectation of privacy. Santana, 427 U.S. at 42, 49 L. Ed. 2d at 305. Relying on
Warden v. Hayden, 387 U.S. 294, 18 L. Ed. 2d 782 (1967) (police, who had probable
cause to believe that an armed robber had entered a house a few minutes before, had
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the right to make a warrantless entry to arrest the robber and to search for weapons),
the Court then held that “a suspect may not defeat an arrest which has been set in
motion in a public place, and is therefore proper under Watson, by the expedient of
escaping to a private place.” Santana, 427 U.S. at 43, 49 L. Ed. 2d at 306.
In the present case, defendant does not argue the officers were not in hot
pursuit, but instead contends the officers’ entry into defendant’s residence was
unreasonable because there was no threat of violence, no evidence subject to
destruction, and no likelihood of defendant fleeing his own home to elude detection.
Defendant’s assertions, however, fail to recognize that defendant was considered
fleeing when he failed to stop upon the activation of the blue lights and the officers’
commands to stop. As the Court recognized in Santana, “[t]he fact that the pursuit
here ended almost as soon as it began did not render it any the less a ‘hot pursuit’
sufficient to justify the warrantless entry into [defendant’s] house.” Id. at 43, 49 L.
Ed. 2d at 305. Moreover, defendant conflates the exigent circumstances recognized
by this Court in Jordan. While the Court in Santana did note that “[o]nce [the
defendant] saw the police, there was likewise a realistic expectation that any delay
would result in destruction of evidence[,]” id., that observation was separate and
apart from the hot pursuit justification for the warrantless entry and arrest. Hot
pursuit has been recognized as an exigent circumstance sufficient to justify a
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warrantless entry and arrest when there is probable cause without consideration of
immediate danger or destruction of evidence.
Defendant also argues the officers’ decision to engage in hot pursuit was
unreasonable. Defendant cites State v. Johnson, 64 N.C. App. 256, 307 S.E.2d 188(1983), for the proposition that the reasonableness of hot pursuit is based on the
presence of exigent circumstances before the chase begins. Upon review, it is clear
Johnson is not instructive here.
In Johnson, officers obtained arrest warrants for two individuals believed to
be located at the defendant’s residence, went to the defendant’s residence to serve the
arrest warrants, and, upon arrival, chased an individual falsely believed to be
identified in one of the arrest warrants into the defendant’s residence, whereupon the
officers discovered controlled substances. Johnson, 64 N.C. App. at 258-59, 307
S.E.2d at 189-90. Upon review of the trial court’s denial of the defendant’s motion to
suppress, this Court reversed, holding that “no exigent circumstances existed that
would justify the warrantless entry into [the] defendant's house and the later seizure
of the evidence which [the] defendant seeks to suppress.” Id. at 264, 307 S.E.2d at
193. In so holding, this Court acknowledged that the State relied on hot pursuit to
justify the warrantless entry, but explained that “[i]n so doing, the State seeks to
focus [the Court’s] attention on events that occurred after the point in time when a
judgment as to whether a search warrant was required should already have been
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made.” Id. at 262, 307 S.E.2d 191. This Court pointed out that over three and a half
hours elapsed between when officers received the arrest warrants and when they
attempted to execute the warrants, noting there was ample time to get a search
warrant. Id. at 263, 307 S.E.2d at 192. This Court then specifically noted that it
“need not consider whether [the officer] was in ‘hot pursuit’ and whether that alone
was sufficient to justify his entry into [the] defendant's home. The need for a search
warrant should have been anticipated in this case.” Id. Upon further appeal to our
Supreme Court, the Court took issue with this Court’s conclusions because the
evidence and findings of fact were insufficient to support this Court’s conclusions that
“it would appear that the arrest raid was in fact a planned raid[,]” “there was ample
time to secure a search warrant and ample reason to anticipate the need for one[,]”
and “the need for a search warrant should have been anticipated in this case.” State
v. Johnson, 310 N.C. 581, 587-88, 313 S.E.2d 580, 584 (1984) (internal citations and
alterations in original omitted). Thus, the Court remanded the case for new voir dire
proceedings. Id. at 589, 313 S.E.2d at 584-85. The Court did, however, reemphasize
the issue of hot pursuit was not determinative in the case, explaining that
while in this case, it is evident that, at the time of entry
into defendant's home, [the officer] was engaged in the “hot
pursuit” of a person he suspected to be a fugitive, the issue
remains as to whether there was an unjustified delay or
failure to obtain a search warrant after the existence of
probable cause as to the whereabouts of the suspects.
Id. at 586, 313 S.E.2d at 583.
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Similarly, other cases relied on by defendant, such as Welsh, 466 U.S. 740, 80
L. Ed. 2d 732 (warrantless entry into the defendant’s home to arrest him for a
noncriminal traffic offense was unconstitutional), which defendant cites for the
holding “that an important factor to be considered when determining whether any
exigency exists is the gravity of the underlying offense for which the arrest is being
made[,]” id. at 753, 80 L. Ed. 2d at 745, are not instructive because they do not involve
hot pursuit. See id. (noting “the claim of hot pursuit is unconvincing because there
was no immediate or continuous pursuit of the petitioner”).
As described above, in this case, the officers initiated an investigatory stop for
DWLR in front of defendant’s residence and then pursued defendant into his
residence to arrest him for resisting a public officer when he did not obey their orders
to stop. By definition, this was hot pursuit.
III. Conclusion
For the reasons discussed, we invoke Rule 2 to reach the merits of defendant’s
argument and hold there was no error below.
NO ERROR.
Judges STEPHENS and ZACHARY concur.
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