State v. Barnhill ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-678
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
STATE OF NORTH CAROLINA
v. Randolph County
No. 09 CRS 56732
MATTHEW ALLEN BARNHILL
Defendant.
Appeal by defendant from judgment entered 24 October 2011
by Judge Edgar B. Gregory in Randolph County Superior Court.
Heard in the Court of Appeals 20 November 2013.
Roy Cooper, Attorney General, by Marc X. Sneed, Assistant
Attorney General, for the State.
Unti & Lumsden LLP, by Sharon L. Smith, for defendant-
appellant.
DAVIS, Judge.
Defendant Matthew Allen Barnhill (“Defendant”) appeals from
his conviction for felony possession of marijuana. On appeal,
Defendant argues that the trial court erred in denying his
motion to suppress evidence obtained during a warrantless search
of his home. After careful review, we affirm the trial court’s
denial of the motion to suppress.
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Factual Background
On 23 November 2009, Detective Ed Carter (“Detective
Carter”) and Corporal Andrea Paige Jackson (“Corporal Jackson”)
of the Randolph County Sheriff’s Office visited Defendant’s
apartment to investigate an anonymous tip that prescription
drugs were being sold from the residence. The purpose of the
visit was to conduct a “knock and talk” in the hope of obtaining
consent to search the residence. Detective Carter knocked on
the door and a male child, who was approximately five years old,
opened the door. Detective Carter took one step into the home
at which point Jennifer Barnhill (“Mrs. Barnhill”), Defendant’s
wife, came to the door from the living room area. Detective
Carter identified himself as a detective with the Randolph
County Sheriff’s Office and informed Mrs. Barnhill that the
Sheriff’s Office had received a complaint that drugs were being
sold from the home.
Detective Carter asked about her husband’s whereabouts, and
Mrs. Barnhill stated that he was at the gas station. She also
told the officers that Defendant had recently experienced
problems with crack cocaine and prescription pills and that she
was afraid of him. Detective Carter asked if there were any
illegal substances in the home, and Mrs. Barnhill replied
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affirmatively. When Detective Carter asked her to bring the
illegal substances to him, Mrs. Barnhill inquired whether he had
a search warrant. Detective Carter responded that they did not
possess a warrant but that they could go apply for one.
Mrs. Barnhill then agreed to the search, completing and
signing a Voluntary Consent to Search form, which indicated her
consent to a search of the residence. During her search of a
bedroom in the home, Corporal Jackson located and seized two
plastic bags containing green vegetable matter, a set of digital
scales, plastic baggies, bottles containing pills, several
“burnt marijuana roaches,” and glass smoking devices.
Mrs. Barnhill and Defendant were both criminally charged,
and each of them filed motions to suppress the evidence obtained
during the search of the residence. The trial court heard the
motions to suppress simultaneously on 3 March 2011 and denied
both motions. Defendant pled guilty to felonious possession of
marijuana while expressly reserving his right to appeal the
denial of his motion to suppress.
In an unpublished opinion, this Court dismissed Defendant’s
appeal for failure to properly appeal from a final judgment as
required by N.C. Gen. Stat. § 15A-979(b). See State v.
Barnhill, No. COA12-264, ___ N.C. App. ___, ___ S.E.2d. ___
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(filed Oct. 16, 2012) (unpublished). Defendant subsequently
filed a petition for writ of certiorari with this Court on 23
October 2012, and on 14 November 2012, this Court granted his
petition.
Analysis
Defendant’s sole argument on appeal is that the trial court
erred in denying his motion to suppress because Mrs. Barnhill
did not give voluntary consent to the search of their home. 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).
“It is a basic principle of Fourth Amendment law that
searches and seizures inside a home without a warrant are
presumptively unreasonable.” State v. Smith, 346 N.C. 794, 798,
488 S.E.2d 210, 213 (1997) (citation and quotation marks
omitted). However, it is also well established that consent is
a recognized exception to the general warrant requirement
contained in the Fourth Amendment and Article I, § 20 of the
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North Carolina Constitution. State v. Jones, 96 N.C. App. 389,
397, 386 S.E.2d 217, 222 (1989), appeal dismissed and disc.
review denied, 326 N.C. 366, 389 S.E.2d 809 (1990). “For the
warrantless, consensual search to pass muster under the Fourth
Amendment, consent must be given and the consent must be
voluntary.” Smith, 346 N.C. at 798, 488 S.E.2d at 213. “The
only requirement for a valid consent search is the voluntary
consent given by a party who had reasonably apparent authority
to grant or withhold such consent.” State v. Houston, 169 N.C.
App. 367, 371, 610 S.E.2d 777, 780, appeal dismissed and disc.
review denied, 359 N.C. 639, 617 S.E.2d 281 (2005).
“Voluntariness is a question of fact to be determined from all
the circumstances, and while the subject’s knowledge of a right
to refuse is a factor to be taken into account, the prosecution
is not required to demonstrate such knowledge as a prerequisite
to establishing a voluntary consent.” Schneckloth v.
Bustamonte, 412 U.S. 218, 248-49, 36 L.Ed.2d 854, 875 (1973).
When determining whether consent was voluntarily given, the
trial court considers the totality of the circumstances. Smith,
346 N.C. at 798, 488 S.E.2d at 213.
In determining whether consent to a search was voluntary,
“the weight to be given the evidence is . . . a determination
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for the trial court, and its findings are conclusive when
supported by competent evidence.” State v. Hernandez, 170 N.C.
App. 299, 310, 612 S.E.2d 420, 427 (2005) (citation and
quotation marks omitted). Here, the trial court concluded, as a
matter of law, that Mrs. Barnhill’s consent to search the home
was freely and voluntarily given based on the trial court’s oral
findings of fact stating in pertinent part as follows:
Detective Ed Carter with the Randolph County
Sheriff’s Office – a detective with the
Randolph County Sheriff’s Office
vice/narcotics unit went to the home of
Jennifer and Matthew Barnhill . . . in
Thomasville on November 3rd, 2009, for the
purpose of conducting a knock-and-talk. That
the reason they went there was because of
a[n] anonymous report that prescription
drugs were being sold from this residence.
That Detective Carter was accompanied by
Corporal Andrea Paige [Jackson] . . . also
with the Randolph County Sheriff’s Office.
That Detective Carter approached the
residence first through the back door while
Officer Jackson sat in the car. A brick
apartment building; that the door contained
some glass in it and he could see one child
in the kitchen area that was approximately
five years old. He knocked on the door and
the child opened the door.
As he – as the door was opened, he could see
the mother coming from another inside room
from the house. He made one step into the
kitchen as the door was opened and informed
Mrs. Jennifer Barnhill that he was an
officer with the Sheriff’s Department of
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Randolph County and that they had a
complaint of drugs being sold from that
residence from an anonymous source.
Mrs. Barnhill took the two children to the
bedroom, and as she was coming back into
where Mr. Carter was standing, Officer
Jackson was approaching the door and
attempted to step in. . . .
Both officers testified that Mrs. Barnhill
appeared calm and rational. That Officer
Carter stated to Mrs. Barnhill that she
might remember him from the previous search
that was done of the Barnhills in 2007.
Mrs. Barnhill indicated that she was afraid
of her husband, that he’d been going on
binges for some days at a time; that he’d
left earlier that day, some hours before,
that . . . he had been arrested for
committing a threat -- communicating threats
and that she regretted getting him out of
jail just some days before. She also
admitted to the officers that she smoked
weed –- that she and her husband both smoked
weed and that she understood “weed” meant
marijuana. So did the officers. She also
said she didn’t want to get in trouble for
it.
The officers asked . . . she was asked if
she had drugs in the house, and she asked if
they had a search warrant and was told by
the officers that they could apply for one
or they could get one. There’s some dispute
about what was actually said, but there was
a conversation about getting a search
warrant. She informed the officers that . .
. there [were] drugs in the house or
paraphernalia or contraband, and she had
told the officers she would go get the drugs
and contraband.
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Both officers stated that there were no
threats made to her and she did not appear
afraid or upset. Mrs. Barnhill signed a
Voluntary Consent to Search which clearly
stated in bold letters at the top it was a
Voluntary Consent to Search, and which she
signed saying she was voluntarily consenting
that Ed Carter of the Randolph County
Sheriff’s Office may search [the home].
She went to the bedroom and moved the
children, and then she and Ms. Jackson went
to the bedroom where Ms. Jackson stated that
there was some paraphernalia laying in plain
sight in the room. And all the items shown
on the inventory that was introduced as
State’s Exhibit 2 [were] taken from the
residence, voluntarily turned over to the
officers by Jennifer Barnhill. . . .
The trial court then made the following oral conclusions of
law:
Based on the foregoing findings of fact, the
Court concludes as a matter of law that the
consent given by [Mrs. Barnhill] to search
the house was freely and voluntarily given.
Based on the foregoing findings of fact and
conclusions of law . . . . Motion to
Suppress in both cases is denied.
The trial court also entered a written order on 3 March
2011 stating that “[b]ased upon the findings of fact,
conclusions of law and orders more fully found in the record for
the hearing of this matter the Motions to Suppress made in each
of the two files (1) State Vs. Jennifer Barnhill . . . and (2)
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1
State Vs. Matthew Barnhill . . . are hereby denied.”
Defendant has not specifically challenged any of the trial
court’s oral findings of fact; thus, they are binding on appeal.
See State v. Moses, 205 N.C. App. 629, 633, 698 S.E.2d 688, 692
(2010) (“Defendant has not challenged any of the trial court’s
oral findings of fact. As a result, our review of the trial
court’s denial of defendant’s motion to suppress is limited to
whether the unchallenged findings of fact ultimately support the
trial court’s conclusions of law.”). Therefore, the only
remaining issue is whether these findings support the trial
court’s ultimate conclusion that Mrs. Barnhill gave voluntary
consent for Detective Carter and Corporal Jackson to search her
home.
As our Supreme Court has explained,
“[k]nock and talk” is a procedure utilized
by law enforcement officers to obtain a
consent to search when they lack the
1
The Order did not memorialize the trial court’s oral findings
of fact and conclusions of law in writing. However, we need not
address the lack of written findings of fact or conclusions of
law because Defendant offers no argument on this issue. See
N.C. R. App. P.28(a) (“The scope of review on appeal is limited
to issues so presented in the several briefs. Issues not
presented and discussed in a party’s brief are deemed
abandoned.”); State v. Watkins, ___ N.C. App. ___, ___, 725
S.E.2d 400, 403 (citing N.C. R. App. P.28(a) and declining to
address absence of a written order denying motion to suppress
where defendant did not raise issue on appeal), appeal
dismissed, 366 N.C. 241, 731 S.E.2d 416 (2012).
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probable cause necessary to obtain a search
warrant. That officers approach a residence
with the intent to obtain consent to conduct
a warrantless search and seize contraband
does not taint the consent or render the
procedure per se violative of the Fourth
Amendment.
Smith, 346 N.C. at 800, 488 S.E.2d at 214.
When Detective Carter knocked on the door to conduct the
“knock and talk,” the son of Mrs. Barnhill and Defendant opened
the door and let him in. As Detective Carter stepped into the
residence, Mrs. Barnhill came to the entryway from the living
room area, and the two began to talk. When Detective Carter
asked Mrs. Barnhill if there were illegal drugs in the home, she
responded that there were but she did not want to get in trouble
for it. She then asked if Detective Carter had a warrant, and
he replied that he did not. Detective Carter mentioned the
possibility of obtaining a search warrant and, at that point,
Mrs. Barnhill consented to the search and completed a Voluntary
Consent to Search form.
Although Mrs. Barnhill testified that she did not
understand that she could tell Detective Carter and Corporal
Jackson to leave her home, the trial court determined, based on
their testimony, that Mrs. Barnhill appeared calm and unafraid
when she told them she would get the drugs and when she signed
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the consent form. See Houston, 169 N.C. App. at 371, 610 S.E.2d
at 781 (“The evidence presented tended to show defendant did not
appear nervous or scared, was ‘cooperative,’ led the officers to
the bedroom, . . . was not threatened by the officers and was
present throughout the search and gave no indication he wished
to revoke his consent.”). While the trial court noted that
there was “some dispute” about whether Detective Carter told
Mrs. Barnhill that he could “apply” for a warrant or “get” a
warrant, the evidence and the trial court’s findings based on
the evidence indicate that (1) Detective Carter explained that
he did not presently have a search warrant; and (2) Mrs.
Barnhill was not threatened or coerced by Detective Carter or
Corporal Jackson when they asked for her consent to search the
home.
We are unpersuaded by Defendant’s assertion that Mrs.
Barnhill’s consent to the search of her home was not voluntarily
and freely given because of Detective Carter’s statement
insinuating that he could successfully obtain a search warrant.
Defendant argues that Detective Carter’s testimony at the
suppression hearing that he did not have sufficient information
to obtain a search warrant at the time he conducted the “knock
and talk” indicates that he purposefully misled Mrs. Barnhill
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when he implied that he could obtain such a warrant. While
Detective Carter acknowledged in his testimony that he did not
have probable cause at the time he knocked on the Barnhills’
door, he only indicated that he could “apply” or “get” a warrant
after Mrs. Barnhill admitted that there was contraband in the
home. Given Mrs. Barnhill’s admission to him that there were
illegal substances within the residence, it is likely that at
that point in time, Detective Carter did, in fact, have
sufficient information to obtain a warrant. Consequently, any
statement by him to Mrs. Barnhill expressing confidence in his
ability to obtain a warrant would not have been misleading.
Defendant’s reliance on State v. Barnes, 158 N.C. App. 606,
582 S.E.2d 313 (2003), is misplaced. In Barnes, law enforcement
officers followed the defendant into a house after he jumped up
from his chair on the porch in a frightened manner upon seeing
the officers approaching and retreated into the house. Id. at
608, 582 S.E.2d at 316. This Court held that the officers’
actions in following the defendant into the house constituted a
warrantless, nonconsensual search and required the suppression
of any evidence obtained as a result of the search. Id. at 611,
582 S.E.2d at 317. We concluded that the officers did not have
a lawful right to be present in the home and that the trial
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court had erred in ruling that “the mere entry into the house by
law enforcement officers was not a search within the meaning of
the Fourth Amendment.” Id. at 610, 582 S.E.2d at 317 (internal
quotation marks omitted).
Here, conversely, the trial court found — based on
competent evidence — that Detective Carter (1) visited
Defendant’s residence to conduct a “knock and talk;” (2) knocked
on the door; (3) took one step into the home after being let in
by Defendant’s minor child; (4) spoke to Mrs. Barnhill for
several minutes about the complaint the Sheriff’s Office had
received; (5) requested and was given Mrs. Barnhill’s consent to
search the home; and (6) obtained a consent form voluntarily
signed by Mrs. Barnhill consenting to the search. Accordingly,
we conclude that the trial court did not err in ruling that
under the totality of the circumstances, Mrs. Barnhill’s consent
was voluntarily given and that, therefore, the search of
Defendant’s home did not violate the Fourth Amendment.
Conclusion
For the reasons stated above, we affirm the trial court’s
order denying Defendant’s motion to suppress.
AFFIRMED.
Judges ELMORE and McCULLOUGH concur.
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Report per Rule 30(e).