State v. Price , 233 N.C. App. 386 ( 2014 )

NO. COA13-904
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
STATE OF NORTH CAROLINA
v. Alexander County
No. 10 CRS 52031
DAVID KEITH PRICE
Appeal by the State from orders entered 28 May 2012 by
Judge Theodore S. Royster, Jr. in Alexander County Superior
Court. Heard in the Court of Appeals 10 December 2013.
Attorney General Roy Cooper, by Assistant Attorney General
Joseph L. Hyde, for the State.
Appellate Defender Staples Hughes, by Assistant Appellant
Defendant David W. Andrews, for defendant-appellee.
ELMORE, Judge.
On 14 January 2013, David Keith Price (defendant) was
indicted by superseding indictment for possession of a firearm
by a felon under N.C. Gen. Stat. § 14-415.1. Defendant filed
three pre-trial motions. First, he filed a motion to dismiss in
which he argued, inter alia, that the North Carolina Felony
Firearms Act was unconstitutional on its face and as applied to
him. Subsequently, he filed two motions to suppress–one to
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suppress illegally obtained statements and one to suppress
illegally obtained evidence. Following a motions hearing on 11
February 2013 in Alexander County Superior Court, Judge Theodore
S. Royster, Jr. granted each of defendant’s motions. The State
now appeals. After careful consideration, we reverse.
I. Background
At the motions hearing, Officer Chad Starbuck (Officer
Starbuck), an enforcement officer for the North Carolina
Wildlife Resources Commission, testified that on 2 December 2010
he was patrolling a portion of Alexander County, investigating
reports of trespassing and hunting violations, when he
encountered defendant near a deer stand in a pine forest.
Defendant was in full camouflage and was carrying a hunting
rifle. Officer Starbuck was in uniform, and, upon seeing
defendant, he “got out of the vehicle and walked towards
[defendant’s] direction.”
Officer Starbuck identified himself and asked defendant to
produce his hunting license. Pursuant to N.C. Gen. Stat. § 113-
136, wildlife enforcement officers are “authorized to stop
temporarily any persons they reasonably believe to be engaging
in activity regulated by their respective agencies to determine
whether such activity is being conducted within the requirements
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of the law, including license requirements.” N.C. Gen. Stat. §
113-136(f) (2013) (emphasis added). Officer Starbuck also asked
defendant, “how he had got to that location?” Defendant replied
that his wife dropped him off on the property.
Officer Starbuck asked defendant if he was a convicted
felon? Defendant answered, “yes.” After further investigation,
Officer Starbuck determined that defendant was in fact a felon,
and he called in Officer Michael Bruce (Officer Bruce) of the
Alexander County Sheriff’s Department as “backup.” Officer
Bruce took custody of the firearm. Defendant was neither told
that he was under arrest nor placed in handcuffs at any point,
and he was released from the scene to his wife. He was later
arrested on 16 December 2010 on a charge of being a convicted
felon in possession of a firearm.
At the motions hearing, Judge Royster granted defendant’s
motion to dismiss:
I’m dismissing it based upon violation of
this 4th Amendment rights of the seizure at
the time past the point where he said yes, I
have a hunting license, here it is, past
that point I think the seizure is, or the
appellate cases in the US Supreme Court have
ruled when you stop someone longer than is
necessary to initially investigate what
you’re initially stopping for, and in this
case it could only be a violation, possible
violation of the wildlife laws, that’s what
he was there for, and once he determined
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there was no violation of those laws any
further detainment would be a seizure under
the 4th Amendment. And that’s the reason
I’m dismissing it based upon the violation
of that.
Judge Royster subsequently instructed defense counsel “to
draw me an order to that effect[.]” However, the written
dismissal order filed 28 May 2013 does not reference any Fourth
Amendment violation; it dismisses the charge on the basis of an
unconstitutional application of the Felony Firearms Act to
defendant. Specifically, Judge Royster, Jr. concluded in the
written order: (1) that the trial court had jurisdiction to hear
and determine defendant’s motion to dismiss as a violation of
his constitutional rights; (2) that the Federal Firearms Act as
applied was unconstitutional because defendant did not present a
danger to the community; and (3) the “2004 versions of North
Carolina General Statute § 14-415.1 is an unconstitutional
violation of Article I, Section 30 of the North Carolina
Constitution as it is an unreasonable regulation, not fairly
related to the preservation of public peace and safety.”1
1
We note that conclusion 3 is an incorrect statement of law.
Our analysis focuses on whether § 14-415.1 is unconstitutional
as applied to defendant. We decline to address whether the
statute is unconstitutional on its face, as its constitutionally
has been previously upheld. See State v. Whitaker, 201 N.C.
App. 190, 203, 689 S.E.2d 395, 403 (2009).
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II. Standard of Review
When reviewing the trial court’s grant of a criminal
defendant’s motion to dismiss, we are “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. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294
(2008) (quotation and citation omitted). We review the trial
court’s conclusions of law de novo. State v. Biber, 365 N.C.
162, 168, 712 S.E.2d 874, 878 (2011).
“The standard of review for questions concerning
constitutional rights is de novo. Furthermore, when considering
the constitutionality of a statute or act there is a presumption
in favor of constitutionality, and all doubts must be resolved
in favor of the act.” Row v. Row, 185 N.C. App. 450, 454–55,
650 S.E.2d 1, 4 (2007) (citations, quotations, and ellipses
omitted). Under N.C. Gen. Stat. § 15A-954(a)(1) (2013), “[t]he
court on motion of the defendant must dismiss the charges stated
in a criminal pleading if it determines that: [t]he statute
alleged to have been violated is unconstitutional on its face or
as applied to the defendant.” Id.
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III. Constitutional Violation
The State makes three arguments to support its position
that the trial court erred in dismissing the charge against
defendant. First, the State challenges the trial court’s
subject matter jurisdiction. Second, the State avers that the
trial court’s findings of fact do not support its conclusions of
law. Third, the State argues that the trial court’s conclusions
are erroneous as a matter of law. We will address each of these
arguments in turn.
A. Subject Matter Jurisdiction
The State specifically avers that the trial court lacked
subject matter jurisdiction, while the case was on appeal, to
enter a written order that did not accurately reflect its oral
ruling at the motions hearing. The thrust of the State’s
argument is that because the trial court orally dismissed the
charge against defendant based on a violation of his Fourth
Amendment rights, the trial court lacked jurisdiction to enter a
written order dismissing the charge due to an unconstitutional
application of the Federal Firearms Act. We disagree.
“Whether a trial court has subject-matter jurisdiction is a
question of law, reviewed de novo on appeal.” McKoy v. McKoy,
202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). N.C. Gen.
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Stat. § 15A-1448(a) sets forth the guidelines for time for entry
of an appeal and jurisdiction over a case. Under N.C. Gen.
Stat. § 15A–1448(a)(3), “[t]he jurisdiction of the trial court
with regard to the case is divested . . . when notice of appeal
has been given and the period described in [N.C.G.S. § 15A–
1448(a)(1)-(2)] . . . has expired.” Subsection (1) of N.C. Gen.
Stat. § 15A–1448(a) provides that “[a] case remains open for the
taking of an appeal to the appellate division for the period
provided in the rules of appellate procedure for giving notice
of appeal.” Id. § 15A–1448(a)(1).
Rule 4 of the North Carolina Rules of Appellate Procedure
allows two modes of appeal in a criminal case. First, a party
may give oral notice of appeal, provided it is spoken at the
time of trial. State v. Oates, 366 N.C. 264, 268, 732 S.E.2d
571, 574 (2012). Second, notice of appeal may be in writing and
“filed with the clerk of court . . . at any time between the
date of the rendition of the judgment or order and the
fourteenth day after entry of the judgment or order.” Id.In making its argument, the State relies on State v. Davis,
where this Court stated that the “general rule is that the
jurisdiction of the trial court is divested when notice of
appeal is given[.]” 123 N.C. App. 240, 242, 472 S.E.2d 392, 393
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(1996) (citation omitted) (holding that the trial court was
without jurisdiction to amend the judgment in the course of
settling the record on appeal to reflect the intentions of the
trial court when the original judgment clearly did not reflect
the trial court’s intentions).
Here, defendant filed three pre-trial motions which were
heard at the 11 February 2013 hearing. Two of these motions,
defendant’s “Motion to Suppress Illegally Obtained Evidence,”
and defendant’s “Motion to Suppress Defendant’s Statements,”
were each less than a page in length. The third motion,
defendant’s “Motion to Dismiss as a Violation of Defendant’s
Constitutional Rights,” was twenty-one pages. This motion was
entirely devoted to defendant’s arguments that the Felony
Firearms Act violated the Second and Fourteenth Amendments, and
that the Act was unconstitutional on its face and as applied to
defendant. Id.The trial court heard defendant’s suppression arguments
first. Defendant argued that Officer Starbuck illegally seized
defendant’s firearm pursuant to the “plain view” doctrine
because Officer Starbuck lacked probable cause to believe the
firearm was “contraband, or an instrumentality or evidence of a
crime.” The trial court moved on to the Fourth Amendment
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analysis at the hearing. Following defendant’s suppression
arguments, the trial court ruled that it was going to grant both
suppression motions because of its determination that
defendant’s Fourth Amendment rights had been violated by an
illegally prolonged seizure of defendant. The trial court then
allowed defendant to proceed and make his arguments based upon
the alleged unconstitutionality of the Felony Firearms Act.
Following the argument on defendant’s third motion, the
trial court stated in open court that it was going to dismiss
the charge of possession of a firearm by a felon based solely on
its ruling that defendant’s Fourth Amendment rights had been
violated because defendant had been detained after the purpose
of the seizure – determining whether defendant possessed a
valid hunting license – had ended. However, the trial court
then continued on to address whether the Felony Firearms Act was
unconstitutionally applied to defendant in this instance:
[I]n deference to you [defendant’s
attorney], since this is a very important
question, I will find as applied to this
defendant, his constitutional rights
concerning the 2nd Amendment were violated.
If you want to [appeal] we’ll see what’s
going to happen, but I’m actually
dismissing it not based on that grounds.
She asked me to rule on the
constitutionality concerning, as applied to
him and I’m doing that, but I’m dismissing
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it because I think his 4th Amendment right
was violated[.]
The trial court then entered two orders on 28 May 2013, one
granting defendant’s motions to suppress and dismissing the
charge based upon the Fourth Amendment violation found by the
trial court, and the other granting defendant’s motion to
dismiss based upon the Second Amendment violations found by the
trial court.
The State argues that this case is analogous to Davis, in
which this Court determined the trial court had acted without
jurisdiction when it materially amended its judgment after
notice of appeal had been taken from that judgment. Id. In
Davis, the defendant was convicted of felonious breaking or
entering, felonious larceny, and felonious possession of stolen
property pursuant to a breaking or entering. The defendant then
admitted to having attained habitual felon status. Id. at 241,
472 S.E.2d at 393. Because the General Assembly did not intend
to punish the defendant for larceny of property and possession
of the same property that he stole, judgment needed to be
arrested for either the felonious larceny or felonious
possession of stolen property charge. See State v. Perry, 305
N.C. 225, 235, 287 S.E.2d 810, 816 (1982), overruled in part on
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different grounds by State v. Mumford, 364 N.C. 394, 699 S.E.2d
911 (2010) (holding that a defendant may not be convicted and
punished for both larceny of property and the possession of that
same property). However, neither party moved for arrest of
either judgment at trial, and the trial court did not do so ex
mero motu. Davis, 123 N.C. App. at 243, 472 S.E.2d at 394. The
trial court subsequently entered its written judgment, which
mistakenly arrested judgment on all three underlying
convictions, and sentenced the defendant solely based upon his
having attained habitual felon status. Id. at 241, 472 S.E.2d
at 393. This error having been brought to its attention, the
trial court, subsequent to the defendant’s having entered notice
of appeal, conducted a hearing in which the State moved for
arrest of judgment solely on the conviction for possession of
stolen goods. Id. at 241-42, 472 S.E.2d at 393. The trial
court then entered an amended judgment which stated in relevant
part:
The Jury returns into open court with its
verdict and finds the defendant Guilty of
Felonious Breaking and Entering, Larceny,
and Possession of Stolen Goods.
Motion is made by the State to Arrest
Judgment as to Possession of Stolen Goods.
Motion is allowed.
IT IS THEREFORE ORDERED by the Court to
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Arrest Judgment as to Possession of Stolen
Goods.
Id. at 242, 472 S.E.2d at 393.
This Court in Davis vacated the “amended” judgment,
reasoning:
Our review of the trial transcript in this
case reveals no motion [made at trial] by
the State to arrest judgment as to the
charge of possession of stolen property, and
no indication that the court did so ex mero
motu. Indeed, the judgment of the court, as
rendered in open court, indicates that the
court did not arrest judgment as to any of
the three felonies for which defendant was
convicted by the jury. After the court
accepted the jury’s verdicts, defendant
admitted the existence of prior convictions
necessary to establish his status as an
habitual felon.
. . . .
Thus, we must conclude that the amended
judgments do not accurately reflect the
actual proceedings and, therefore, were not
a proper exercise of the court’s inherent
power to make its records correspond to the
actual facts and “speak the truth.” To the
contrary, it appears that the amended
judgments impermissibly corrected a judicial
error.
Id. at 243, 472 S.E.2d at 394.
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In contrast, defendant in this case argued vigorously at
the hearing that “as applied to [defendant] [the Felony Firearms
Act] should not be applied, that it’s unconstitutional. And
Your Honor, even on a broader fashion we would argue that the
statute is too broadly applied and does not meet the test of
strict scrutiny.” The trial court, after considering the
arguments of defendant and the State, stated that defendant
“asked me to rule on the constitutionality concerning, as
applied to him and I’m doing that[.]” The trial court then
ruled in part: “I will find as applied to this defendant, his
constitutional rights concerning the 2nd Amendment were
violated.” The State then entered oral notices of appeal from
the rulings granting each of defendant’s three motions. One of
those notices of appeal was for the trial court’s granting of
defendant’s motion to dismiss based upon its determination that
the Felony Firearms Act was unconstitutional on its face and as
applied to defendant.
Unlike the factual situation in Davis, in this matter
defendant argued the constitutionality of the Act to the trial
court, and submitted a written motion, the trial court
acknowledged the argument, stated that it would rule on the
motion, and did so orally. The State, clearly aware that the
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motion to dismiss had been decided in defendant’s favor, gave
notice of appeal from that motion. The trial court then reduced
its ruling to writing and entered it.
We do not believe Davis stands for the proposition that the
trial court is restricted to only including in its written
judgments or orders that which it had already stated in open
court. Davis stands for the principle that the trial court
lacks jurisdiction to correct judicial errors, or address issues
never litigated, by written order or judgment following valid
entry of notice of appeal.
The case before us does not involve the correction of
judicial error, and we hold that the events at trial, and
resulting orally rendered judgment, sufficiently signaled the
contents of the written order now contested by the State. We
hold that the trial court had jurisdiction to enter all three of
its written orders.
B. Findings of Fact Unsupported by Competent Evidence
Assuming the trial court had subject matter jurisdiction,
which it did, the State assigns error to the trial court’s
findings of facts 1, 14, 20, 22, 23, 26, and 34.
Unchallenged findings of “fact[] are presumed to be correct
and are binding on appeal.” State v. Eliason, 100 N.C. App.
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313, 315, 395 S.E.2d 702, 703 (1990) (citation omitted). As
such, we limit our review to whether the unchallenged facts
support the trial court’s conclusions of law. Id. “Immaterial
findings of fact are to be disregarded.” In re Custody of
Stancil, 10 N.C. App. 545, 549, 179 S.E.2d 844, 847 (1971).
The challenged findings are as follows:
1. Defendant is a resident of Alexander
County, North Carolina, and has resided in
the state of North Carolina since his youth.
14. Officer Starbuck . . . searched
[defendant] for weapons.
20. Defendant was held at the scene
approximately 20-30 minutes before being
allowed to leave.
22. Officer Starbuck testified that E-315 of
the Wildlife Resources Policy Manual applies
in this case.
23. The State has presented no evidence that
the search of [d]efendant’s person or the
seizure of his weapon were consensual.
26. The crime with which Defendant was
charged and convicted of [sic] did not
involve any act or threat of violence and
did not involve a firearm.
34. Since completing his sentences for the
offense in which he was convicted the
Defendant has become a reputable member of
the community. Defendant’s voting rights
were restored in 2010 and he is able and
registered to vote in Stony Point, Alexander
County, North Carolina. Defendant
participates in a Wildlife Commission.
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Findings #14, #20, #22, and #23 are supported by the
record, specifically by Officer Starbuck’s testimony. Officer
Starbuck testified that once he “secured the firearm [I] made
sure that [defendant] had no other firearms.” When asked how
long defendant was held at the scene, Officer Starbuck replied:
“It could have been 30 minutes. You know, it could have been
20.” In addition, Officer Starbuck testified that he followed
the procedure set forth in section E-315 of the Wildlife
Resources Policy Manual. Finding #23 is supported by the
record: Officer Starbuck searched defendant for weapons, and a
statement in the chain of custody provides that the “[g]un was
seized by [Officer] Starbuck [] when [defendant] came out of the
woods.” Finding #26 is in reference to defendant’s conviction
for selling and delivering marijuana and is supported by
competent evidence. In support of Finding #34, Officer Starbuck
testified that defendant “tended to be a prominent person in the
community.” However there is no evidence regarding defendant’s
voting rights. Finding #1 is irrelevant; however, it is
supported in that defendant’s hunting license states that he is
a resident of Alexander County. The challenged facts are
supported by competent evidence. To the extent that any of the
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challenged findings are unsupported, they are immaterial to the
outcome and are disregarded.
C. Erroneous Conclusions of Law
Lastly, the State argues that the conclusions of law set
out in the dismissal order are incorrect as a matter of law. We
agree.
The Felony Firearms Act (the Act), codified in N.C. Gen.
Stat. § 14–415.1, was enacted by the General Assembly in 1971.
The Act made it unlawful for any person previously convicted of
a crime punishable by imprisonment of more than two years to
possess a firearm, with certain exemptions for felons whose
civil rights had been restored. Johnston v. State, ___ N.C.
App. ___, ___, 735 S.E.2d 859, 864-65 (2012) writ allowed,
review on additional issues denied, 366 N.C. 562, 738 S.E.2d 360(2013) appeal dismissed, 366 N.C. 562, 738 S.E.2d 361 (2013)
aff'd, 749 S.E.2d 278 (2013); 1971 N.C. Sess. Laws ch. 954, § 2.
Initially, the Act only prohibited felons from the possessing of
“any handgun or other firearm with a barrel length of less than
18 inches or an overall length of less than 26 inches[.]” Britt
v. State, 363 N.C. 546, 547, 681 S.E.2d 320, 321 (2009)(citation
omitted). In 2004 the General Assembly amended the statute “to
extend the prohibition on possession to all firearms by any
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person convicted of any felony, even within the convicted felons
own home and place of business.” Id. at 548, 681 S.E.2d at 321(emphasis added); Act of July 15, 2004, ch. 186, sec. 14.1, 2004
N.C. Sess. Laws 716, 737.1.
At the time defendant was charged and presently, N.C. Gen.
Stat. § 14-415.1 (2013) provides:
(a) It shall be unlawful for any person who
has been convicted of a felony to purchase,
own, possess, or have in his custody, care,
or control any firearm or any weapon of mass
death and destruction as defined in G.S. 14-
288.8(c). For the purposes of this section,
a firearm is (i) any weapon, including a
starter gun, which will or is designed to or
may readily be converted to expel a
projectile by the action of an explosive, or
its frame or receiver, or (ii) any firearm
muffler or firearm silencer. This section
does not apply to an antique firearm, as
defined in G.S. 14-409.11.
Our courts have held that a felon may challenge the statute
as it applies to him or her on grounds that it violates Article
I, Section 30 of the North Carolina Constitution. In
considering these “as-applied” challenges, we must contemplate
the following five factors: “(1) the type of felony convictions,
particularly whether they involved violence or the threat of
violence[;] (2) the remoteness in time of the felony
convictions; (3) the felon’s history of law-abiding conduct
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since the crime[;] (4) the felon’s history of responsible,
lawful firearm possession during a time period when possession
of firearms was not prohibited[;] and (5) the felon’s assiduous
and proactive compliance with the 2004 amendment.” Whitaker, at
205, 689 S.E.2d at 404 (quotations omitted) (citing Britt, 363
N.C. at 550, 681 S.E.2d at 323 (2009), aff'd on other grounds,
364 N.C. 404, 700 S.E.2d 215 (2010)).
In Britt, the plaintiff, Mr. Britt, pled guilty to the
nonviolent offense of felony possession with intent to sell and
deliver the controlled substance (methaqualone) in 1979. 363
N.C. at 547, 681 S.E.2d at 321. Mr. Britt completed his
probation in 1982 and his civil rights were fully restored in
1987. Id. When the 2004 amendment to the Act took effect, Mr.
Britt “had a discussion with the Sheriff of Wake County, who
concluded that possession of a firearm by plaintiff would
violate the statute as amended in 2004. [Mr. Britt] thereafter
divested himself of all firearms, including his sporting rifles
and shotguns that he used for game hunting on his own land.”
Id. at 548, 681 S.E.2d at 322. Mr. Britt then initiated “a
civil action against the State of North Carolina, alleging that
N.C.G.S. § 14-415.1 as amended violat[ed] multiple rights he
[held] under the United States and North Carolina
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Constitutions.” Id. at 548-49, 681 S.E.2d at 322. Our Supreme
Court found the 2004 version of N.C. Gen. Stat. § 14-415.1 to be
unconstitutional as applied to Mr. Britt because of “his long
post-conviction history of respect for the law, the absence of
any evidence of violence by plaintiff, and the lack of any
exception or possible relief from the statute’s operation[.]”
Id. at 550, 681 S.E.2d at 323. Specifically, our Supreme Court
concluded: “[I]t is unreasonable to assert that a nonviolent
citizen who has responsibly, safely, and legally owned and used
firearms for seventeen years is in reality so dangerous that any
possession at all of a firearm would pose a significant threat
to public safety.” Id. at 550, 681 S.E.2d at 323.
Alternatively, in Whitaker, after applying the five factors
relied upon in Britt, this Court found N.C. Gen. Stat. § 14–
415.1 to be constitutional as applied to Mr. Whitaker who was
convicted of three prior non-violent felonies, the most recent
conviction on a drug charge only a few years prior, and who had
notice of the 2004 amendment and demonstrated a disregard for
the law despite never misusing a firearm. 201 N.C. App. at 206–
07, 689 S.E.2d 404–05.
Defendant argues on appeal that the circumstances in his
case are analogous to those in Britt, not Whitaker. Applying
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the five-factor test enumerated in Britt, we are not persuaded.
Defendant has two felony convictions for selling a controlled
substance (marijuana) and one conviction for felony attempted
assault with a deadly weapon. While defendant was convicted of
the drug offenses in 1989, he was more recently convicted of the
felony of attempted assault with a deadly weapon in 2003.
Although there is no evidence to suggest that defendant has
misused firearms, there is also no evidence that defendant has
attempted to comply with the 2004 amendment to the statute. We
think it noteworthy that defendant completed his sentence for
the conviction of attempted assault with a deadly weapon in
2005, after the 2004 amendment was enacted. Therefore, he
should have been on notice of the changes in legislation. When
Mr. Britt learned of the 2004 amendment, he relinquished his
hunting rifle on his own accord. Defendant took no such action.
We conclude that facts of this case more closely align with
those in Whitaker, not Britt. Given the circumstances, it is
not unreasonable to prohibit defendant from possessing firearms
in order to preserve public peace and safety. The trial court
erred in dismissing the charge against defendant on the basis
that the Act was unconstitutional as applied to him.
IV. Motions to Suppress
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The State next argues that the trial court erred in
granting defendant’s motion to suppress his statements and the
motion to suppress evidence. We agree. The crux of this issue
is whether Officer Starbuck exceeded the scope of a valid stop
when he asked defendant if he was a convicted felon.
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 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 reviewed de novo on appeal. State v.
Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000).
Here, the trial court made twenty-three findings of fact in
its order granting defendant’s motions to suppress. The State
challenges four of these findings as being unsupported by
competent evidence. The remaining nineteen findings are binding
on appeal. See Eliason, supra. The challenged findings are as
follows:
13. Officer Starbuck . . . searched
[defendant] for weapons.
19. Defendant was held at the scene
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approximately 20-30 minutes before being
allowed to leave.
21. Officer Starbuck testified that E-315 of
the Wildlife Resources Policy manual applies
in this case.
22. The State has presented no evidence that
the search of [d]efendant’s person or the
seizure of the weapon were consensual.
These challenged findings mirror the challenged findings
entered in the trial court’s dismissal order. As discussed
above, these findings were supported by substantial evidence
and, therefore, are binding upon this Court. Based on the
findings, the trial court concluded: (1) defendant was illegally
questioned about his prior criminal record as he was not advised
of his Miranda rights; (2) defendant was held beyond the time
required for the investigation; (3) defendant’s gun was
illegally seized without a warrant, probable cause, or
defendant’s consent; (4) the seizure of defendant’s gun was not
within the written policies and procedures of the North Carolina
Wildlife Resources Commission; and (5) the State failed to
justify a warrantless search and seizure of defendant’s
property. These conclusions of law are fully reviewable on
appeal. Id. As such, we turn to applicable principles of law
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in reviewing the trial court’s conclusions. State v. Farmer,
333 N.C. 172, 186, 424 S.E.2d 120, 128 (1993).
The Fourth Amendment to the United States Constitution and
Article I, § 20 of the North Carolina Constitution prohibit
unreasonable searches and seizures. State v. McBennett, 191
N.C. App. 734, 737, 664 S.E.2d 51, 54 (2008) (citations
omitted). This constitutional protection is designed to
“prevent arbitrary and oppressive interference by [law]
enforcement officials with the privacy and personal security of
individuals.” United States v. Martinez-Fuerte, 428 U.S. 543,
554, 49 L. Ed. 2d 1116, 1126 (1976) (citations omitted).
It is well established that
[l]aw enforcement officers do not violate
the Fourth Amendment by merely approaching
an individual on the street or in another
public place, by asking him if he is willing
to answer some questions, by putting
questions to him if the person is willing to
listen, or by offering in evidence in a
criminal prosecution his voluntary answers
to such questions. Nor would the fact that
the officer identifies himself as a police
officer, without more, convert the encounter
into a seizure requiring some level of
objective justification. The person
approached, however, need not answer any
question put to him; indeed he may decline
to listen to the questions at all and may go
on his way. He may not be detained even
momentarily without reasonable, objective
grounds for doing so; and his refusal to
listen or answer does not, without more,
-25-
furnish those grounds. If there is no
detention—no seizure within the meaning of
the Fourth Amendment—then no constitutional
rights have been infringed.
Farmer, 333 N.C. 186-87, 424 S.E.2d 120, 128-29 (citation and
quotation omitted). “Seizure occurs when the officer, by means
of physical force or show of authority, has in some way
restrained the liberty of a citizen.” State v. Foreman, 133
N.C. App. 292, 296, 515 S.E.2d 488, 492 (1999) aff'd as
modified, 351 N.C. 627, 527 S.E.2d 921 (2000) (citation and
quotation omitted). A person “subject to detention beyond the
scope of the initial seizure is still seized under the Fourth
Amendment.” State v. Jackson, 199 N.C. App. 236, 241, 681
S.E.2d 492, 496 (2009).
Like seizure, deciding whether a person is in “custody”
requires an objective review of the circumstances surrounding
the interrogation and a determination of the effect those
circumstances would have on a reasonable person. State v.
Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004). “A
person is in custody for purposes of Miranda when it is apparent
from the totality of the circumstances that there is a formal
arrest or restraint on freedom of movement of the degree
-26-
associated with a formal arrest.” Id. at 396, 597 S.E.2d at 736(quotations and citations omitted).
Defendant concedes that Officer Starbuck was allowed to
stop him pursuant to N.C. Gen. Stat. § 113-136(f), which, again,
authorizes an enforcement officer to make a temporary stop of a
person that he reasonably believes is engaging in activity
regulated by the Wildlife Resources Commission to determine
whether such activity is being conducted within the requirements
of the law, including license requirements. N.C. Gen. Stat. §
113-136(f) (2013). Defendant also acknowledges that per N.C.
Gen. Stat. § 113-136(k), he was required to show a valid hunting
license. However, because he was required by law to stop,
defendant maintains that the stop constituted a “seizure,” and
was not consensual. Moreover, because the scope of the stop was
limited to confirming or dispelling Officer Starbuck’s suspicion
that he was hunting within the requirements of the law,
defendant argues that Officer Starbuck exceeded the scope of the
stop when he asked defendant if he was a felon after defendant
produced a valid hunting license. The State argues that
defendant was neither seized nor in custody when Officer
Starbuck asked defendant whether he was a felon.
-27-
The record indicates that Officer Starbuck found defendant
hunting in the woods, approached him, identified himself, and
asked defendant to show his hunting license. Defendant was
holding a hunting rifle. Once Officer Starbuck was satisfied
that defendant held a valid license, he asked, without
demanding, if defendant was a convicted felon. Defendant
answered, “yes.”
Here, defendant admits that he knew that the stop was valid
and he knew its purpose. As such, nothing in the record
indicates that defendant had an objective reason to believe that
he was not free to end the conversation once he produced his
hunting license. Again, law enforcement officers do not
violate the Fourth Amendment simply by putting questions to a
person who is willing to listen. We conclude defendant was not
“seized” in the constitutional sense when Officer Starbuck asked
him about his criminal history. See Farmer, 333 N.C. at 188-89,
424 S.E.2d at 129-30 (holding that the defendant was not
“seized,” briefly or otherwise, when officers approached him on
a public street, identified themselves as law enforcement,
displayed no weapons, and simply asked him for information
concerning his identity, place of residence, and why he was
covered with what appeared to be blood).
-28-
Likewise, the record does not support a conclusion that
defendant was in custody at the time he was questioned—he was
neither arrested nor restrained. As such, the trial court’s
conclusions of law #1 and #2 are erroneous. Defendant’s
statement that he was a felon was voluntary, and he was seized
no sooner than when Officer Starbuck learned that he was a
felon. Accordingly, the trial court erred in granting
defendant’s motion to suppress his statements.
In addition, Officer Starbuck had authority to seize
defendant’s rifle without a warrant. “Under the plain view
doctrine, police may seize contraband or evidence without a
warrant if (1) the officer was in a place where he had a right
to be when the evidence was discovered; (2) the evidence was
discovered inadvertently; and (3) it was immediately apparent to
the police that the items observed were evidence of a crime or
contraband.” State v. Grice, ___ N.C. App. ___, ___, 735 S.E.2d
354, 357 (2012), review allowed, writ allowed, 743 S.E.2d 179(2013) (quotations and citations omitted). “The term
‘immediately apparent’ in a plain view analysis is satisfied
only if the police have probable cause to believe that what they
have come upon is evidence of criminal conduct.” State v.
Graves, 135 N.C. App. 216, 219, 519 S.E.2d 770, 772 (1999)
-29-
(quotations and citations omitted). “Probable cause for an
arrest has been defined to be a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to
warrant a cautious man in believing the accused to be guilty[.]”
State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984)
(quotations and citations omitted).
Here, the first prong of the plain view test is clearly met
as Officer Starbuck was rightfully patrolling hunting grounds in
accordance with his job duties. The second prong of the test is
also satisfied because Officer Starbuck discovered that the
rifle was contraband inadvertently when defendant admitted that
he was a convicted felon. Lastly, a reasoned analysis of the
record evidence suggests that Officer Starbuck had probable
cause to believe that defendant committed the crime of
possession of a firearm by a convicted felon. In fact, the
commission of the crime could not have been more apparent—
defendant, while holding his rifle, admitted that he was a
convicted felon. Thus, prong three is satisfied because it
certainly became immediately apparent to Officer Starbuck that
the rifle was contraband once defendant confessed to being a
felon. The trial court’s conclusions of law #3, #4, and #5 are
-30-
erroneous. Accordingly, the trial court erred in concluding
that defendant was entitled to the suppression of the gun.
V. Conclusion
The trial court erred in granting defendant’s motion to
dismiss the charge on the basis that N.C. Gen. Stat. § 14-415.1was unconstitutional as applied to defendant. Further,
defendant’s Fourth Amendment rights were not violated during the
stop and seizure. Accordingly, the trial court also erred in
concluding that defendant was entitled to the suppression of his
statements and the suppression of the firearm. We reverse.
Reversed.
Judges McGEE and HUNTER, Robert, C., concur.