State v. KirkmanÂ

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-407
Filed: 20 December 2016
Guilford County, No. 13CRS065579-80
STATE OF NORTH CAROLINA
v.
KEVIN JOHN KIRKMAN, Defendant.
Appeal by defendant from order entered 4 September 2015 by Judge Eric C.
Morgan and appeal by defendant upon writ of certiorari from judgment entered 10
November 2015 by Judge Richard L. Doughton in Superior Court, Guilford County.
Heard in the Court of Appeals 6 October 2016.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Shawn R.
Evans, for the State.
David Weiss, for defendant-appellant.
STROUD, Judge.
Defendant appeals order denying his motion to suppress and judgment for
drug-related convictions. The trial court properly denied defendant’s motion to
suppress and had jurisdiction to correct defendant’s sentence since defendant’s
defective notice of appeal did not divest the trial court of jurisdiction. But as the State
concedes, the trial court erred by not giving defendant an opportunity to withdraw
his plea upon resentencing him. As explained in more detail below, we therefore
STATE V. KIRKMAN
Opinion of the Court
affirm the order denying the motion to suppress but reverse the judgment and
remand.
I. Background
On or about 18 March 2013, defendant was indicted for maintaining a dwelling
for keeping or selling marijuana and two counts of trafficking in marijuana. In March
of 2014, defendant filed a motion to suppress “any and all evidence” seized from his
home, alleging that the officers did not establish probable cause for the search
warrant which authorized the search of his home. On 4 September 2015, the trial
court denied defendant’s motion to suppress and made the following findings of fact
which are not contested on appeal:
1. On or about January 1, 2013, Officer C.S.
Bradshaw of the Greensboro Police
Department received information from a
confidential source, that defendant was
growing and selling marijuana.
2. In the application for the search warrant
received in evidence as State’s Exhibit 1,
Officer Bradshaw, noting that the
confidential informant was reliable, set out
further specific information provided by the
confidential informant, including the
following: (a) that defendant was growing
and selling marijuana from his residence . . .
(b) that there was a large grow operation in
the home, and (c) that there were generators
running the lights. Officer Bradshaw further
stated that the confidential informant was
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familiar with the appearance of illegal
narcotics and that all previous information
from the confidential informant had proven to
be truthful and accurate to the best of Officer
Bradshaw’s knowledge.
....
11. Officers Bradshaw, Trimnal and Armstrong
then decided to perform a “knock and talk”
procedure to make inquiry further at the
residence.
12. Officer Bradshaw testified that he had
substantial experience in investigating
narcotics matters, had made numerous
arrests specifically related to marijuana, and
had received specific training as to narcotics
and the indications of marijuana growing
activity such as mold and condensation,
resulting from humidity, on the windows of
marijuana “grow houses.”
....
14. As Officer Bradshaw approached the house on
the walkway to the front door, Officer
Bradshaw noticed, in plain view to the right
of the doorway, windows on the front right of
the home that had substantial mold and
condensation, as seen in State’s Exhibits 3
and 4. In Officer Bradshaw’s training and
experience, this was consistent with the heat
and humidity associated with marijuana
growing operations.
15. When Officer Bradshaw reached the front
porch, he also heard, from the front porch, a
loud sound consistent with an electrical
generator running inside the home, which
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Opinion of the Court
was also consistent with the information
provided by the confidential informant.
....
19. When Officer Trimnal approached the left
side door and knocked, he smelled the odor of
marijuana, and Officer Bradshaw also came
over to the left side door, and he also smelled
the odor of marijuana plainly and from
outside the left side door of the home.
....
21. Officers Bradshaw and Armstrong then
sought the Warrant[.]
On 3 November 2015, defendant filed a written notice of appeal from the order
denying his motion to suppress. On 10 November 2015, defendant pled guilty
pursuant to an Alford plea to all of the charges against him, and the trial court
entered judgment sentencing defendant to 25 to 30 months imprisonment. After
receiving notification from the North Carolina Department of Public Safety that
defendant’s minimum and maximum terms of imprisonment as set forth in the
judgment were incorrect, on 12 February 2016, the trial court entered another
judgment sentencing defendant instead to 25 to 39 months imprisonment. In May of
2016, based upon his recognition of a defect in his notice of appeal, defendant filed a
petition for writ of certiorari before this Court.
II. Petition for Writ of Certiorari
According to defendant’s petition “he lost the right of appeal by failing to give
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Opinion of the Court
proper notice of appeal, and on the further ground that in Issue III of his brief, he
seeks to challenge the procedures employed in his plea hearing, for which there is no
right of appeal.” The trial court rendered its decision to deny defendant’s motion to
suppress, and thereafter defendant entered into a plea agreement. On the same day
as defendant’s sentencing hearing and before judgment was entered, defendant’s
attorney filed a notice of appeal from the order denying defendant’s motion to
suppress. Thereafter, defendant did not file a timely appeal from the order denying
his motion to suppress, and in fact, even his oral notice to appeal given immediately
after judgment was rendered appears to give notice of appeal only of the denial of his
motion to suppress and not the actual judgment sentencing him.
A few months later, the trial court resentenced defendant to correct a prior
error; this correction resulted in defendant’s maximum sentence increasing by nine
months although his minimum sentence remained the same. Defendant did not
appeal the resentencing judgment but has since filed this petition for certiorari. The
State “concede[s] that it was error for the trial court, at the new sentencing hearing[,]
. . . not to allow defendant an opportunity to withdraw his plea where the sentence
was greater than what he agreed to in his plea agreement[,]” and thus it would be
appropriate for this Court to consider defendant’s appeal.
Pursuant to North Carolina Rule of Appellate Procedure 21, we allow
defendant’s petition for certiorari. See State v. Biddix, ___ N.C. App. ___, ___, 780
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S.E.2d 863, 866 (2015) (“N.C. Gen. Stat. § 15A–1444(e) states a defendant who enters
a guilty plea may seek appellate review by certiorari, Appellate Rule 21(a)(1) is
entitled Certiorari, and provides the procedural basis to grant petitions for writ of
certiorari under the following situations: (1) when the right to prosecute an appeal
has been lost by failure to take timely action[.]” (citation and quotation marks
omitted)). Furthermore, to the extent defendant’s appeal invokes challenges to his
guilty plea not normally appealable, we invoke Rule 2 of the Rules of Appellate
Procedure in order “to prevent manifest injustice” as this is a rare situation where
both parties concede the trial court erred in sentencing defendant. N.C.R. App. P. 2;
see Biddix, ___ N.C. App. at ___, 780 S.E.2d at 868 (“Under Appellate Rule 2, this
Court has discretion to suspend the appellate rules either upon application of a party
or upon its own initiative. Appellate Rule 2 relates to the residual power of our
appellate courts to consider, in exceptional circumstances, significant issues of
importance in the public interest, or to prevent injustice which appears manifest to
the Court and only in such instances. This Court’s discretionary exercise to invoke
Appellate Rule 2 is intended to be limited to occasions in which a fundamental
purpose of the appellate rules is at stake, which will necessarily be rare occasions.”
(citations and quotation marks omitted)). We thus turn to defendant’s issues on
appeal.
III. Motion to Suppress
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Defendant first challenges the denial of his motion to suppress on two separate
grounds: (1) the “knock and talk” was a mere “guise” which allowed officers to
surround his home and far exceeded the scope of a proper “knock and talk” and (2)
the search warrant was deficient because it was based on an unsubstantiated
anonymous tip.
The standard of review for a trial court’s order
denying a motion to suppress is 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. If a defendant does
not challenge a particular finding of fact, such findings are
presumed to be supported by competent evidence and are
binding on appeal. The trial court’s conclusions of law,
however, are fully reviewable on appeal.
State v. Medina, 205 N.C. App. 683, 685, 697 S.E.2d 401, 403 (2010) (citations and
quotation marks omitted).
A. Knock and Talk
Defendant does not challenge any of the findings of fact regarding the knock
and talk but only the conclusions of law determining the knock and talk was lawful.
We first note that we will refer to the officers’ approach to defendant’s home as a
“knock and talk,” since that is the term used by defendant and in cases, although we
also note that there was no “talk” in this case since no one answered the door after
the officers knocked. The only evidence from the knock and talk was from the officers’
observations from the exterior of the home of the conditions of the windows and
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hearing the sound of the generator. This was really a knock, look, and listen.
Yet defendant raises an interesting legal question not directly addressed by
either party, since most knock and talk cases deal with warrantless searches. See,
e.g., State v. Smith, 346 N.C. 794, 800, 488 S.E.2d 210, 214 (1997) (“Knock and talk
is a procedure utilized by law enforcement officers to obtain a consent to search when
they lack the 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.” (citation and quotation marks omitted)); State
v. Marrero, ___ N.C. App. ___, ___, 789 S.E.2d 560, 564 (2016) (“A knock and talk is
a procedure by which police officers approach a residence and knock on the door to
question the occupant, often in an attempt to gain consent to search when no probable
cause exists to obtain a warrant.” (quotation marks omitted)); State v. Dulin, ___ N.C.
App. ___, ___, 786 S.E.2d 803, 810 (2016) (“In Grice, police officers who approached
the door of the defendant’s home for a knock and talk noticed some plants growing in
containers in an unfenced area about fifteen yards from the residence. The officers
recognized the plants as marijuana, seized them, and later arrested the defendant.
The defendant argued that evidence of the plants should have been suppressed
because the officers’ warrantless search and seizure of the plants violated the Fourth
Amendment, as the plants were within the curtilage of his home and thus were
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protected.” (citation and quotation marks omitted)). In this case, based upon all of
the information the officers already had, including the informant’s tip, the further
investigation which supported the tip, and the conditions which the officers observed
outside the home, the officers then obtained a search warrant before going inside the
home and ultimately seizing any of the property which defendant attempts to
suppress in his motion.
Defendant’s brief makes much of the “coercive” nature of the officers’ approach
to the home, since three officers simultaneously approached his front and side door.
But again, this was a knock, look, and listen; there was no talking. Since defendant
was not home at the time and no one else was in the home, as far as the record shows,
we do not know who could have been coerced. Defendant further contends that “[n]o
North Carolina appellate decision has analyzed, let alone approved practice whereby
officers simultaneously go to multiple doors and surround the front of a home[.]” In
one case, this Court did discuss that it was problematic in that particular situation
for officers to go to the defendant’s back door but did not address any issue regarding
officers approaching front and side doors for a knock and talk. See generally State v.
Pasour, 223 N.C. App. 175, 741 S.E.2d 323 (2012) (stating as the general facts that
officers approached the front and side doors and only addressing the unlawful
approach to the back door). However, even assuming arguendo that any information
gained from the approach of the side door was unlawfully obtained and therefore
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should be suppressed, the fact remains that Officer Bradshaw lawfully approached
from the front of the home where he heard the generator and noticed condensation
and mold, all factors which in his experience and training were consistent with
conditions of a home set up to grow marijuana.
When the officers approached defendant’s home, they were in the process of
seeking additional information to substantiate the claims of the confidential
informant. The investigation started with the tip from the informant; then Officer
Bradshaw did further investigation which fully supported the informant’s claims.
Only then did the officers approach defendant’s home to do the knock and talk, and
even approaching from the front door of the home, Officer Bradshaw was able to
observe conditions at the home which further substantiated the informant’s tip. It
is well established that an officer may approach the front door of a home, see, e.g.,
State v. Smith, ___ N.C. App. ___, ___, 783 S.E.2d 504, 509 (2016) (“[I]n North
Carolina, law enforcement officers may approach a front door to conduct ‘knock and
talk’ investigations that do not rise to the level of a Fourth Amendment search.” See
State v. Tripp, 52 N.C. App. 244, 249, 278 S.E.2d 592, 596 (1981) (‘Law enforcement
officers have the right to approach a person’s residence to inquire as to whether the
person is willing to answer questions.’) (internal citations omitted); see also State v.
Church, 110 N.C. App. 569, 573–74, 430 S.E.2d 462, 465 (1993) (‘[W]hen officers enter
private property for the purpose of a general inquiry or interview, their presence is
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proper and lawful. . . . [O]fficers are entitled to go to a door to inquire about a matter;
they are not trespassers under these circumstances.’”)), and if he is able to observe
conditions from that position which indicate illegal activity, it is completely proper
for him to act upon that information.
Ultimately, the officers did get a search warrant for the search which led to the
seizure of defendant’s contraband. Thus, the real issue is not the knock and talk, but
whether there was probable cause to issue the search warrant. Defendant’s challenge
to the knock and talk is actually a challenge of the search warrant since information
from the knock and talk is part of the factual basis for the issuance of the warrant.
But the officers’ observations at the house were only a small part of the information
upon which the warrant was issued. Thus, we turn to defendant’s next challenge, the
confidential informant.
B. Confidential Informant
Defendant contends that the search warrant was improperly issued because
the confidential informant was not sufficiently reliable to form the basis of probable
cause.
In determining whether probable cause exists for
the issuance of a search warrant, our Supreme Court has
provided that the totality of the circumstances test is to be
applied. Under the totality of the circumstances test,
the task of the issuing magistrate is simply to
make a practical, common sense decision
whether, given all the circumstances set forth
in the affidavit before him, including the
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veracity and basis of knowledge of persons
supplying hearsay information, there is a fair
probability that contraband or evidence of a
crime will be found in a particular place. And
the duty of a reviewing court is simply to
ensure that the magistrate had a substantial
basis for concluding that probable cause
existed.
State v. Benters, 231 N.C. App. 295, 300, 750 S.E.2d 584, 588 (2013) (citations,
quotation marks, ellipses, and brackets omitted), aff’d, 367 N.C. 660, 766 S.E.2d 593(2014). In State v. McKoy, this Court explained that
[t]his court has already established the irreducible
minimum circumstances that must be set forth in support
of an informant’s reliability to sustain a warrant. In
Altman, the affiant’s statement that the confidential
informant has proven reliable and credible in the past was
held to meet the minimum standards to sustain a warrant.
In the present case, the affiant’s statement that the
confidential informant had given this agent good and
reliable information in the past that had been checked by
the affiant and found to be true also meets this minimum
standard.
16 N.C. App. 349, 351–52, 191 S.E.2d 897, 899 (1972) (citation, quotation marks, and
ellipses omitted).
Here, the trial court found that the search warrant stated the
confidential informant was reliable, [and] set out further
specific information provided by the confidential
informant, including the following: (a) that defendant was
growing and selling marijuana from his residence . . . (b)
that there was a large grow operation in the home, and (c)
that there were generators running the lights. Officer
Bradshaw further stated that the confidential informant
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was familiar with the appearance of illegal narcotics and
that all previous information from the confidential
informant had proven to be truthful and accurate to the
best of Officer Bradshaw’s knowledge.
In context, describing the informant as “reliable” is a succinct way of saying that the
officer was familiar with the informant and the informant had provided accurate
information in the past. In addition, the warrant affidavit stated, “All previous
information provided by [the confidential informant] has proven truthful and
accurate to the best of [Officer Bradshaw’s] knowledge.” We conclude that Officer
Bradshaw’s statement in the affidavit attached to the warrant regarding prior
truthful statements provided by the confidential informant meets “the irreducible
minimum circumstances that must be set forth in support of an informant’s reliability
to sustain a warrant.” Id. at 351–52, 191 S.E.2d at 899.
While defendant argues the confidential informant here should be viewed as
anonymous, the record does not support this claim. Indeed, as we just noted, the
warrant application supports the exact opposite conclusion. Officer Bradshaw had to
know who the informant was to be aware of the informant’s prior reliability. This
was not an anonymous tip from an unknown person. Defendant’s brief dwells upon
various types of additional information that might have been provided to show the
reliability of the informant; we agree that additional information would not be
harmful or inappropriate, but it is also unnecessary. See generally id. at 351–52, 191
S.E.2d at 899. The search warrant stated that Officer Bradshaw had previously used
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information from the confidential informant and found it to be reliable. Officer
Bradshaw then did additional investigation, all of which supported the informant’s
claims and established probable cause for issuance of the search warrant. See id. As
a valid search warrant was issued, defendant’s motion to suppress was properly
denied. This argument is overruled.
IV. Resentencing
Defendant’s next two challenges address the trial court’s resentencing after
notification of an error in the range of his sentence from the North Carolina
Department of Public Safety. Defendant first contends that the trial court was
divested of jurisdiction because he had already appealed from the judgment. But
defendant cannot have it both ways. Defendant has already conceded that his notice
of appeal was defective, and thus jurisdiction was not with this Court, but rather still
with the trial court. See generally State v. Miller, 205 N.C. App. 724, 696 S.E.2d 542(2010) (determining that jurisdiction does not switch to this Court when a notice of
appeal is defective). As discussed above, we granted review by certiorari to defendant
for this very reason.
Lastly, defendant contends that it was error for the trial court to resentence
him to a sentence greater than that provided for in his plea agreement without giving
him the opportunity to withdraw his plea; the State agrees with defendant. North
Carolina General Statute § 15A-1024 provides that
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[i]f at the time of sentencing, the judge for any reason
determines to impose a sentence other than provided for in
a plea arrangement between the parties, the judge must
inform the defendant of that fact and inform the defendant
that he may withdraw his plea. Upon withdrawal, the
defendant is entitled to a continuance until the next
session of court.
N.C. Gen. Stat. § 15A-1024 (2013) (emphasis added). Since the trial court should
have given defendant the opportunity to withdraw his plea in accordance with North
Carolina General Statute § 15A-1024, we reverse and remand. See State v. Oakley,
75 N.C. App. 99, 104, 330 S.E.2d 59, 63 (1985) (“On remand, the defendant may
withdraw his guilty plea at the resentencing hearing, if the judge decides to impose
a sentence other than the original plea arrangement, N.C. Gen. Stat. Sec. 15A-1024
(1983), or he may seek to negotiate new terms and conditions under his original plea
to the lesser included offense. Reversed in part and remanded for reinstatement of
guilty plea and resentencing.”).
V. Conclusion
For the foregoing reasons, we affirm the trial court’s denial of defendant’s
motion to suppress, reverse defendant’s judgment, and remand so that the trial court
may afford defendant the opportunity to withdraw his plea before any new longer
sentence may be imposed.
Affirmed in part; reversed in part; and remanded.
Judges MCCULLOUGH and ZACHARY concur.
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