State v. Alexander , 233 N.C. App. 50 ( 2014 )

NO. COA13-461
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
STATE OF NORTH CAROLINA
v. Catawba County
No. 10 CRS 57159
DARIUS CORDALE ALEXANDER,
Defendant.
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
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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
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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
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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,
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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
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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.
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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
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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 appeal. State v. Lupek, 214 N.C. App. 146, 150, 712
S.E.2d 915, 918 (2011). The trial court's conclusions of law
are, however, reviewed de novo and "must be legally correct,
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reflecting a correct application of applicable legal principles
to the facts found." State v. Fernandez, 346 N.C. 1, 11, 484
S.E.2d 350, 357 (1997).
We first note that defendant, the State, and the trial
court have all focused both on (1) whether Officer Roberts
conducted a search justified by the plain view doctrine, and (2)
whether the seizure of the copper coils was permissible under
that doctrine. The trial court concluded: "Officer Roberts's
warrantless examination of the contents of the trailer located
adjacent to defendant's mobile home at [sic] WAS a reasonable
search, justified by the plain view exception to the warrant
requirement. Officer Roberts was lawfully present on the front
porch when she inadvertently saw what she believed to be
evidence of a crime." The trial court then upheld the seizure:
"The examination by Officer Roberts of the tow-behind trailer
located in the front yard and the seizure of the suspected
stolen property DID NOT violate the defendant's rights under the
Constitution of the United States of America or the Constitution
of the State of North Carolina."
However, as the Fourth Circuit Court of Appeals has
explained, "[t]he 'plain-view' doctrine provides an exception to
the warrant requirement for the seizure of property, but it does
not provide an exception for a search. Viewing an article that
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is already in plain view does not involve an invasion of privacy
and, consequently, does not constitute a search implicating the
Fourth Amendment." United States v. Jackson, 131 F.3d 1105,
1108 (4th Cir. 1997). See also Horton v. California, 496 U.S.
128, 134 n.5, 110 L. Ed. 2d 112, 121 n.5, 110 S. Ct. 2301, 2306
n.5 (1990) ("'It is important to distinguish "plain view," . . .
to justify seizure of an object, from an officer's mere
observation of an item left in plain view. Whereas the latter
generally involves no Fourth Amendment search, . . . the former
generally does implicate the Amendment's limitations upon
seizures of personal property.'" (quoting Texas v. Brown, 460
U.S. 730, 738 n.4, 75 L. Ed. 2d 502, 511 n.4, 103 S. Ct. 1535,
1541 n.4 (1983) (opinion of Rehnquist, J.))).
We therefore hold, as an initial matter, that the trial
court erred in applying the plain view doctrine to the question
whether Officer Roberts performed a lawful search when she
observed the contents of the trailer from the front porch of the
mobile home. The plain view doctrine applied only to the
question whether Officer Roberts' warrantless seizure of the
copper coils was permissible under the plain view doctrine.
Under the plain view doctrine, a warrantless seizure is
lawful if (1) the officer views the evidence from a place where
he has legal right to be, (2) it is immediately apparent that
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the items observed constitute evidence of a crime, are
contraband, or are subject to seizure based upon probable cause,
and (3) the officer has a lawful right of access to the evidence
itself. State v. Nance, 149 N.C. App. 734, 740, 562 S.E.2d 557,
561-62 (2002).
With respect to the first element of the plain view
doctrine, defendant challenges the trial court's finding that
Officer Roberts could see the coils from the porch -- a location
where, defendant concedes, Officer Roberts had a legal right to
be. See State v. Prevette, 43 N.C. App. 450, 455, 259 S.E.2d
595, 600–01 (1979) (holding officers legally entitled to be on
front porch of defendant's house for purpose of conducting
general inquiry or interview). The trial court's finding of
fact was supported by Officer Roberts' testimony during cross-
examination:
Q. . . . You mentioned at some point that
you knocked on a door eventually, correct?
A. Yes, sir. . . . When I arrived and I
seen the Infinity, I walked up on the porch.
And when I did I could see over into that
trailer -- into that hitch trailer. But I
walked up and knocked on the door.
Q. Okay.
A. And that's when I could see inside that
hitch trailer.
Q. Okay. And after you did that did you
proceed to go over and go behind the
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automobile to see what tag --
A. To check the plate, yes, sir.
Q. Okay. Did you go behind the -- You
also went behind the hitch trailer to see if
it had a tag on it.
A. Yes, sir --
While defendant argues that this testimony does not
establish that Officer Roberts could in fact see the coils in
the trailer, the trial court's finding was a reasonable
inference drawn from this testimony when considered together
with Officer Roberts' direct examination. Although defendant's
interpretation of Officer Roberts' testimony may also be
reasonable, it is the trial court who "passes upon the
credibility of the witnesses and the weight to be given their
testimony and the reasonable inferences to be drawn therefrom.
If different inferences may be drawn from the evidence, he
determines which inferences shall be drawn and which shall be
rejected." Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d
29, 33 (1968). Because the evidence and reasonable inferences
drawn from that evidence support the trial court's finding that
Officer Roberts could see the copper coils from the porch, it is
binding on appeal.
Defendant also challenges the sufficiency of the evidence
to support the trial court's finding that Officer Roberts
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"inadvertently" looked into the trailer from the front porch.
This Court, however, has held that "inadvertence is not a
necessary condition of a lawful search pursuant to the 'plain
view' doctrine." State v. Church, 110 N.C. App. 569, 575, 430
S.E.2d 462, 465 (1993) (following Horton).1 Because this finding
of fact is, therefore, immaterial to the question whether the
seizure was permissible under the Fourth Amendment, we need not
address it.
Regarding the second element of the plain view doctrine,
defendant argues that the trial court's findings of fact are
insufficient to support a conclusion that it was "immediately
apparent" to Officer Roberts that the coils were stolen. "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) (quoting State v. Wilson, 112 N.C. App. 777, 782, 437
S.E.2d 387, 389-90 (1993)). When, as here, the item in plain
view is considered contraband based solely upon its status as a
1
Nevertheless, many cases subsequent to Church have
continued to articulate the three factor test for the plain view
doctrine which includes inadvertency. Inadvertence is required
pursuant to N.C. Gen. Stat. § 15A-253 (2013), which applies to
items found in plain view during the execution of a valid search
warrant. Because Officer Roberts did not discover the coil
while executing a search warrant, N.C. Gen. Stat. § 15A-253 is
inapplicable to this case.
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"stolen good," whether its criminal nature is immediately
apparent to an officer depends upon the interplay between
extrinsic circumstances known to the officer prior to discovery
of the item and the officer's observations of the item's
characteristics. See State v. Connard, 81 N.C. App. 327, 330,
344 S.E.2d 568, 571 (1986) ("Stolen goods . . . do not qualify
automatically as contraband, but generally are innocuous except
for the extrinsic circumstance that they have been stolen.").
This Court has held that it was immediately apparent that
an item in plain view was evidence of a crime when the officer
viewed an item that matched the description of an item he knew
to be stolen. See, e.g., State v. Haymond, 203 N.C. App. 151,
161, 691 S.E.2d 108, 118 (2010) (immediately apparent microwave,
refrigerator, and dishwasher stolen when officer immediately
recognized the appliances as those from break-in he was
investigating based on officer's recollection of what stolen
items looked like); State v. Weakley, 176 N.C. App. 642, 649,
627 S.E.2d 315, 320 (2006) (immediately apparent shower curtain
contraband when curtain matched pictures of stolen curtain
officer had seen).
We find that the circumstances of this case are analogous
to those in State v. Bembery, 33 N.C. App. 31, 234 S.E.2d 33
(1977). In Bembery, a car dealer discovered that someone had
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stolen tires from a truck on his lot and provided a description
of the stolen tires, including the type and size, to the county
sheriff, who relayed the information to the sheriff in a
neighboring county. Id. at 32, 234 S.E.2d at 34. Four days
later, the sheriff in the neighboring county received a call
from a reliable informant that two of the stolen tires were in
the possession of the defendant and that the defendant was at a
friend's house. Id. The sheriff drove to the house about 40
minutes later, where he found the defendant getting ready to put
tires on his car. Id. The tires were in plain view and matched
the description given by the car dealer. Id. The Court held
that "[i]n these circumstances, the seizure of the tires for the
purpose of taking them to [the car dealer] for identification
was reasonable." Id. at 36, 234 S.E.2d at 37.
Here, the trial court's findings of fact establish that
Officer Roberts was investigating a recent theft of air
conditioning copper coil and was given the description and
weight of the stolen coil. Officer Roberts, like the officer in
Bembery, received reliable information that the defendant was
recently in possession of the stolen goods -- a local metal
recycler informed Officer Roberts that coil matching the
description and weight of the stolen coil had been sold to the
recycler by defendant earlier that day. The metal recycler
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provided Officer Roberts with defendant's name and driver's
license number, the license plate number of the vehicle used to
deliver the coil, and a physical description of defendant and
his vehicle.
Officer Roberts used the information from the metal
recycler to locate defendant's residence, where she saw a parked
vehicle matching the description given to her by the metal
recycler with a black male behind the steering wheel. From the
front porch of defendant's mobile home, Officer Roberts noticed
air conditioning copper coil in the open-tow trailer parked next
to defendant's SUV. As in Haymond, Weakley, and Bembery, the
items viewed by Officer Roberts matched the description of goods
she knew to be stolen.2 Furthermore, the additional information
Officer Roberts had gathered from her investigation after
speaking to the metal recycler bolstered her belief that the
items in the trailer were stolen. These findings sufficiently
support the conclusion that it was immediately apparent to
Officer Roberts that the coils were evidence of a crime.
2
Although the trial court's finding that Officer Roberts
believed the coils to be evidence of a crime is found in
conclusion of law #1, we treat it as a finding of fact. See
Gainey v. N.C. Dep't of Justice, 121 N.C. App. 253, 257 n.1, 465
S.E.2d 36, 40 n.1 (1996) ("Although denominated as a conclusion
of law, we treat this conclusion as a finding of fact because
its determination does not involve the application of legal
principles.")
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Nevertheless, defendant argues that Officer Roberts merely
suspected that the coils were stolen, but did not have the level
of certainty required to rise to the level of probable cause.
Defendant points to the trial court's finding that Officer
Roberts called the factory manager, Mr. Ledford, to ask him to
come and identify the pieces of scrap metal, and analogizes
these facts to cases in which the criminal nature of an item
seized by an officer was not apparent until the officer further
manipulated the item. See State v. Sapatch, 108 N.C. App. 321,
325, 423 S.E.2d 510, 513 (1992) (criminal nature of closed film
canisters not apparent until officer opened canisters and
discovered rocks of cocaine); Graves, 135 N.C. App. at 220, 519
S.E.2d at 773 (officer did not have probable cause to believe
brown paper wads were evidence of crime when he did not know
items were contraband until after he unfolded them); State v.
Carter, 200 N.C. App. 47, 55, 682 S.E.2d 416, 422 (2009)
(criminal nature of scraps of paper seized by officer not
apparent until pieced back together and read).
In contrast to this case, in Sapatch, Graves, and Carter,
the criminal nature of the item was not immediately apparent
because the contraband was, literally, out of sight. All that
could be seen at first were innocuous items -- a film canister,
wads of brown paper, and a torn-up piece of paper. The plain
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view doctrine did not apply because the contraband -- the
cocaine inside the canister, the crack pipe inside the wads of
brown paper, and the incriminating words on the torn up sheets
of paper -- were, simply, not in plain view. Here, however, the
items that Officer Roberts saw -- the coils -- constituted the
contraband itself and was plainly and completely visible at
first glance without any physical manipulation. Officer Roberts
possessed sufficient information at the time she saw the coils
in the trailer to have probable cause to believe that the coils
were stolen. Mr. Ledford merely confirmed that the coils were,
in fact, the stolen coils. Accordingly, we conclude that the
trial court's findings of fact are sufficient to support the
conclusion that the criminal nature of the coils was immediately
apparent to Officer Roberts.
Turning to the final element -- whether Officer Roberts had
a lawful right of access to the trailer in which the coils were
found -- defendant argues that the trial court did not make the
findings necessary to establish this element. We agree.
This Court has previously emphasized that a determination
that contraband was in plain view is not sufficient to support a
warrantless seizure of the contraband:
What a person knowingly exposes to the
public, even in his own home or office, is
not a subject of Fourth Amendment
protection. Thus, when officers are in a
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public place or some other area, such as an
open field, that is not protected by the
Fourth Amendment, knowledge that they gain
from their plain-view observations does not
constitute a search under the Fourth
Amendment. Whether such plain-view
observations can justify a warrantless
seizure, however, is a separate question.
If the boundaries of the Fourth Amendment
were defined exclusively by rights of
privacy, "plain view" seizures would not
implicate that constitutional provision at
all. Yet, far from being automatically
upheld, "plain view" seizures have been
scrupulously subjected to Fourth Amendment
inquiry. That is because, the absence of a
privacy interest notwithstanding, [a]
seizure . . . obviously invade[s] the
owner's possessory interest.
Nance, 149 N.C. App. at 739, 562 S.E.2d at 561 (internal
citations and quotation marks omitted).
It is well settled that officers have a lawful right of
access to items located in a public place. See Payton v. New
York, 445 U.S. 573, 587, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371,
1380 (1980) ("objects such as weapons or contraband found in a
public place may be seized by the police without a warrant").
The first question to address in establishing whether an officer
had a lawful right of access to an object, therefore, is whether
the object was located in a public place or on private property.
In Nance, this Court held that an open field leased by the
defendant which was outside of the curtilage of his home was not
a public place, noting that "[t]he fact that defendant's
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property included open fields does not transform private
property into public land." 149 N.C. App. at 742, 562 S.E.2d at
563.
If the seized item is not located in a public place, the
officers may nevertheless have a lawful right of access to the
item to justify its seizure if they entered the private property
by consent, pursuant to a warrant, or under exigent
circumstances. Id. at 741, 744, 562 S.E.2d at 562, 564
(concluding officers did not have a lawful right of access to
seize malnourished horses on private property where the officers
"had neither consent nor a warrant authorizing their entry onto
defendant's property" and where "exigent circumstances did not
exist").
Nance also rejected the argument that officers have lawful
access to seize items on private property whenever they "are
conducting [a] 'legitimate law enforcement function[].'" Id. at
742, 562 S.E.2d at 563. Nance acknowledged that it is not a
trespass for an officer to enter private property "'for the
purpose of a general inquiry or interview.'" Id. (quoting
Prevette, 43 N.C. App. at 455, 259 S.E.2d at 599-600). However,
Nance clarified that this rule does not "stand[] for the
proposition that law enforcement officers may enter private
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property without a warrant and seize evidence of a crime." Id.
(emphasis added). Nance explained:
If the position advanced by the State were
correct, law enforcement officers could
enter onto private property and seize
evidence of criminal activity without a
warrant whenever they had probable cause to
suspect that such activity was taking place.
Such a position directly contradicts
repeated admonitions by the United States
Supreme Court that although
"[t]he seizure of property in
plain view involves no invasion of
privacy and is presumptively
reasonable, assuming that there is
probable cause to associate the
property with criminal activity[,]
[a] different situation is
presented . . . when the property
in open view is situated on
private premises to which access
is not otherwise available for the
seizing officer."
Id. at 742-43, 562 S.E.2d at 563 (quoting Texas, 460 U.S. at
738, 75 L. Ed. 2d at 511, 103 S. Ct. at 1541). This Court,
relying on Nance, has subsequently confirmed that, absent
exigent circumstances, initiating a valid "knock and talk" does
not give officers a lawful right of access to walk across the
curtilage of a defendant's home to seize contraband in plain
view. State v. Grice, ___ N.C. App. ___, ___, 735 S.E.2d 354,
358 (2012), disc. review allowed, ___ N.C. ___, 743 S.E.2d 179
(2013).
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Here, the trial court failed to make any findings regarding
whether the officers had legal right of access to the coils in
the trailer. The trial court did not address whether the
trailer was located on private property leased by defendant,
private property owned by the mobile home park, or public
property. It also did not make any findings regarding whether,
assuming that the trailer was located on private property, the
officers had legal right of access either by consent or due to
exigent circumstances. We, therefore, remand for further
findings of fact and conclusions of law regarding that issue.
We leave it to the court's discretion whether to consider
additional evidence.3
Reversed and remanded.
Chief Judge MARTIN and Judge STROUD concur.
3
We find no merit to the State's argument that the seizure
of the coils could alternatively be justified pursuant to a
search incident to lawful arrest. Under the search incident to
arrest warrant requirement exception, "'if the search is
incident to a lawful arrest, an officer may conduct a
warrantless search of the arrestee's person and the area within
the arrestee's immediate control.'" Carter, 200 N.C. App. at
51, 682 S.E.2d at 419 (quoting State v. Logner, 148 N.C. App.
135, 139, 557 S.E.2d 191, 194 (2001)). The trial court made no
findings of fact that would support the State's contention, and
the record contains no evidence that would support the necessary
findings.