State v. Price

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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 Court. S. Royster, Jr. in Alexander County Superior 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. three pre-trial motions. which he argued, Defendant filed First, he filed a motion to dismiss in 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 -2suppress illegally obtained statements illegally obtained evidence. and one to suppress Following a motions hearing on 11 February 2013 in Alexander County Superior Court, Judge Theodore S. Royster, Jr. granted each of defendant s motions. now appeals. The State After careful consideration, we reverse. I. Background At the Starbuck), motions an hearing, enforcement Officer officer Chad for Starbuck the North (Officer Carolina Wildlife Resources Commission, testified that on 2 December 2010 he was patrolling a portion of Alexander County, investigating reports of encountered trespassing defendant and near hunting a deer stand Defendant was in full camouflage and rifle. Officer defendant, he Starbuck got out was of in the violations, in he pine forest. was carrying a hunting uniform, vehicle a when and, and upon walked seeing towards [defendant s] direction. Officer Starbuck identified himself and asked defendant to produce his hunting license. 136, wildlife enforcement Pursuant to N.C. Gen. Stat. § 113officers 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 -3of the law, including license requirements. 113-136(f) (2013) (emphasis added). N.C. Gen. Stat. § Officer Starbuck also asked defendant, how he had got to that location? Defendant replied that his wife dropped him off on the property. Officer felon? Starbuck asked defendant Defendant answered, yes. if he was a convicted 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 Bruce took custody of the firearm. as backup. Officer 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 -4there was no violation further detainment would the 4th Amendment. And I m dismissing it based of that. of those laws any be a seizure under that s the reason upon the violation 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 defendant. application of the Felony Firearms Act to 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 violation General of Statute Article I, § 14-415.1 Section 30 is an of the unconstitutional 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). -5II. Standard of Review When reviewing defendant s motion determining whether the to trial court s grant we strictly dismiss, the trial are judge s of underlying a criminal limited to 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). court s conclusions of law de novo. We review the trial State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011). The standard of review constitutional rights is de novo. for questions concerning 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. 650 S.E.2d omitted). 1, 4 Row v. Row, 185 N.C. App. 450, 454 55, (2007) (citations, quotations, and ellipses 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. -6III. 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 subject matter jurisdiction. challenges the trial court s 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. -7Stat. § 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 fourteenth day after entry of the judgment or order. and the Id. In making its argument, the State relies on State v. Davis, where this jurisdiction Court of stated the appeal is given[.] that trial the court general is rule divested is when that the notice of 123 N.C. App. 240, 242, 472 S.E.2d 392, 393 -8(1996) (citation omitted) (holding that the without jurisdiction to amend the judgment trial court was 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 were defendant s each Motion than less to page a Suppress in Defendant s length. The Statements, third motion, defendant s Motion to Dismiss as a Violation of Defendant s Constitutional Rights, was twenty-one pages. entirely devoted to defendant s arguments This motion was 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. The first. Id. trial court heard defendant s suppression arguments 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 -9analysis at the hearing. Following defendant s suppression arguments, the trial court ruled that it was going to grant both suppression defendant s motions Fourth because Amendment of rights its had illegally prolonged seizure of defendant. determination been violated that by an 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 -10it 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 notice of appeal had been taken from that judgment. Davis, the defendant was convicted of felonious after Id. breaking In 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. 472 S.E.2d at 393. Id. at 241, Because the General Assembly did not intend to punish the defendant for larceny of property and possession of the arrested same for property that he stole, either the felonious possession of stolen property charge. judgment needed larceny or to be felonious See State v. Perry, 305 N.C. 225, 235, 287 S.E.2d 810, 816 (1982), overruled in part on -11different 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. trial Davis, 123 N.C. App. at 243, 472 S.E.2d at 394. court mistakenly subsequently arrested entered judgment its written on all judgment, three The which underlying convictions, and sentenced the defendant solely based upon his having attained habitual felon status. at 393. Id. at 241, 472 S.E.2d 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 -12Arrest Judgment as to Possession of Stolen Goods. Id. at 242, 472 S.E.2d at 393. This Court in Davis vacated the amended 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. judgment, -13In 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. arguments asked of me The defendant to rule on trial and court, the the State, after considering stated constitutionality applied to him and I m doing that[.] that the defendant concerning, as The trial court then ruled in part: I will find as applied to this defendant, his constitutional rights violated. concerning the 2nd Amendment were 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 -14motion 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 judicial case before error, and us we does hold not that involve the the events correction at trial, of 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. -15313, 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. findings of fact are to be disregarded. Id. Immaterial 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 [defendant] for weapons. . . . searched 20. Defendant was held at the scene approximately 20-30 minutes before allowed to leave. being 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. -16Findings #14, #20, #22, and #23 are supported by record, specifically by Officer Starbuck s testimony. the 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. 20. the You know, it could have been In addition, Officer Starbuck testified that he followed procedure Resources record: set Policy forth in Manual. section Finding E-315 #23 is of the Wildlife supported by the 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. for Finding #26 is in reference to defendant s conviction selling and competent evidence. delivering marijuana and is supported by In support of Finding #34, Officer Starbuck testified that defendant tended to be a prominent person in the community. voting However there is no evidence regarding defendant s rights. Finding #1 is irrelevant; however, it is supported in that defendant s hunting license states that he is a resident of Alexander County. supported by competent evidence. The challenged facts are To the extent that any of the -17challenged 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. 864-65 ___, ___, 735 S.E.2d 859, (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 -18person 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. 14288.8(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 convictions; (3) the remoteness felon s in history time of of the felony law-abiding conduct -19since 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. 205, 689 S.E.2d at 404 Whitaker, at (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. his at 547, 681 S.E.2d at 321. Mr. Britt completed 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 violate the statute as amended in 2004. by plaintiff would [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 -20Constitutions. 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. concluded: Specifically, our Supreme Court [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 -21the 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, should have been on notice of the changes in legislation. he 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 -22The 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. 132, 134, 291 S.E.2d 618, 619 State v. Cooke, 306 N.C. (1982). The trial conclusions of law are reviewed de novo on appeal. court s 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. challenges four of competent evidence. on appeal. these findings as being unsupported by The remaining nineteen findings are binding See Eliason, supra. The challenged findings are as follows: 13. Officer Starbuck [defendant] for weapons. 19. The State Defendant was . held . at . searched the scene -23approximately 20-30 allowed to leave. minutes before being 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 entered in the above, and, findings mirror the trial court s these findings therefore, are were dismissal order. supported binding challenged upon by this findings As discussed substantial Court. evidence 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 illegally the seized investigation; without a (3) warrant, defendant s probable gun cause, was 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 justify a property. appeal. Commission; warrantless These Id. search and and conclusions of law (5) the seizure State of failed to defendant s are fully reviewable on As such, we turn to applicable principles of law -24in 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. N.C. App. 734, 737, omitted). This prevent arbitrary 664 S.E.2d constitutional and State v. McBennett, 191 51, 54 (2008) protection oppressive is (citations designed interference by to [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, -25furnish 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). of physical force Seizure occurs when the officer, by means or show of authority, has in some way restrained the liberty of a citizen. State v. Foreman, 133 N.C. 492 App. 292, 296, 515 S.E.2d 488, (1999) modified, 351 N.C. 627, 527 S.E.2d 921 (2000) quotation omitted). aff'd as (citation and 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 circumstances and would a have determination on a of reasonable the effect person. those State Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004). v. 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 -26associated 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 regulated he by reasonably the Wildlife believes is Resources engaging Commission in to activity determine whether such activity is being conducted within the requirements of the law, including license requirements. 113-136(f) (2013). N.C. Gen. Stat. § 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 defendant a valid was hunting neither license. seized nor The in State custody Starbuck asked defendant whether he was a felon. argues when that Officer -27The record indicates that Officer Starbuck found defendant hunting in the woods, approached him, identified himself, and asked defendant to show his hunting license. holding a hunting rifle. that defendant demanding, if held Once Officer Starbuck was satisfied a defendant Defendant was valid license, was convicted a he asked, felon. without 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. 424 S.E.2d at 129-30 See Farmer, 333 N.C. at 188-89, (holding that the defendant was not seized, briefly or otherwise, when officers approached him on a public displayed street, no identified weapons, and themselves simply asked as him law for enforcement, information concerning his identity, place of residence, and why he was covered with what appeared to be blood). -28Likewise, the record does not support a conclusion that defendant was in custody at the time he was questioned he was neither arrested nor restrained. conclusions of law #1 and As such, the trial court s #2 are erroneous. Defendant s statement that he was a felon was voluntary, and he was seized no sooner felon. than when Officer Accordingly, the Starbuck trial learned court that erred he in was a 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, or police may seize contraband 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 Graves, upon 135 is N.C. evidence App. 216, of criminal 219, 519 conduct. S.E.2d 770, State 772 v. (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. also satisfied because The second prong of the test is Officer Starbuck discovered that the rifle was contraband inadvertently when defendant admitted that he was a convicted felon. record evidence cause to suggests believe that Lastly, a reasoned analysis of the that Officer defendant Starbuck committed possession of a firearm by a convicted felon. commission of the defendant, while convicted felon. crime holding Thus, could his not rifle, have had the probable crime of In fact, the been more apparent admitted that he was a 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 -30erroneous. 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. § 14-415.1 was 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.

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