State v. McCants

Decision Date31 December 2020
Docket NumberNo. COA19-115,COA19-115
Citation854 S.E.2d 415
Parties STATE of North Carolina v. Desmin Taron MCCANTS, Defendant.
CourtNorth Carolina Court of Appeals

Attorney General Joshua H. Stein, by Assistant Attorney General Andrew L. Hayes, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katherine Jane Allen, for Defendant-Appellant.

McGEE, Chief Judge.

Desmin Taron McCants ("Defendant") appeals from a judgment entered upon his guilty plea following denial of his motion to suppress. Defendant argues that the trial court erred by denying his motion to suppress evidence discovered during a warrantless search of his premises conducted pursuant to a non-statutory condition added to his mandatory post-release supervision. We agree and reverse the 2 August 2018 order denying Defendant's motion to suppress, vacate the 2 August 2018 judgment entered on Defendant's Alford plea, and remand for entry of an order granting Defendant's motion to suppress and any additional proceedings not inconsistent with this opinion.

I. Factual and Procedural History

Defendant was convicted of assault with a deadly weapon with intent to kill ("AWDWIK") on 14 August 2014 for an incident involving discharging a firearm into occupied property that occurred on 13 October 2013, when Defendant was nineteen years old. Several additional convictions for crimes Defendant had committed over a four-month period in 2013 were consolidated for judgment with Defendant's AWDWIK conviction. AWDWIK is a Class E felony and, having no prior convictions, Defendant was a prior record level I—thereby subjecting Defendant to either active or intermediate punishment. Defendant was given intermediate punishment, meaning that Defendant's active sentence was suspended and he was placed on supervised probation. The trial court included as part of Defendant's intermediate punishment special probation, or a "split-sentence," meaning that Defendant would serve a period of incarceration not to exceed one-quarter of his maximum imposed sentence period, with the remaining time being a probationary period consisting of regular supervised probation. N.C.G.S. § 15A-1351(a) (2017).

Just over seven months into Defendant's period of supervised probation, he was charged for possession of marijuana with intent to sell. Defendant was convicted on this charge on 1 August 2016, his probation for the 14 August 2014 convictions was revoked, and his sentences were activated. Defendant was initially transferred from jail and admitted into the prison system on 31 August 2016. Defendant was released from prison on 31 March 2017, and placed on one year mandatory post-release supervision ("PRS"), to run from 1 April 2017 to 1 April 2018. Conditions of PRS are governed by N.C.G.S. § 15A-1368.4 (2017), and a special commission (the "Commission") that is a part of the Department of Public Safety ("DPS") has been delegated authority by the General Assembly to decide which conditions authorized by N.C.G.S. § 15A-1368.4 to impose for every prisoner subject to PRS. N.C.G.S. § 143B-720(a) (2017) ("There is hereby created a Post-Release Supervision and Parole Commission of the Division of Adult Correction and Juvenile Justice [(‘DAC’)] of [DPS.]"); N.C.G.S. § 15A-1368(b) (2017) ("The Post-Release Supervision and Parole Commission, as authorized in Chapter 143[B] of the General Statutes, shall administer post-release supervision as provided in this Article.").1 DPS sets out its main rules and procedures for supervising PRS supervisees, parolees, and probationers in two policy manuals: "North Carolina Department of Public Safety, Division of Adult Correction and Juvenile Justice, Community Corrections, Policy & Procedures" (April 1, 2019) ("DPS Corrections") ( ); and "State of North Carolina Department of Public Safety, Prisons, Policy & Procedures," (June 6, 2019) ("DPS Prisons"—along with DPS Corrections, "DPS Policy" or "the Policy") (

Upon release, Defendant moved into his mother's home (the "Home"), inhabited by Defendant's mother, Defendant's uncle and, at least at times, Defendant's girlfriend. Two witnesses testified at Defendant's suppression hearing challenging the warrantless search of the Home where he was residing. This testimony provides most of the alleged facts relevant to this appeal. The State's first witness was Defendant's supervising PRS officer, Nicole Patterson ("Officer Patterson"), and the State's second witness was Kevin Gibson ("Chief Gibson"), who testified that he was one of the "chief probation/parole officer[s] in the Guilford County Greensboro office." Chief Gibson testified that he supervised "a unit of eight officers," and that he "work[ed] in the [Greensboro] office with Officer Patterson[,]" but Chief Gibson did not specify if Officer Patterson was one of the eight officers he supervised.

Officer Patterson testified that three days after Defendant's release, on 4 April 2017, she went to the Home to conduct a "home visit" pursuant to a condition of Defendant's PRS. See N.C.G.S. § 15A-1368.4(e)(6) (stating imposition of this controlling condition "[p]ermit[s] a [PRS] officer to visit at reasonable times at the supervisee's home or elsewhere"). Although not specifically authorized by the plain language of N.C.G.S. § 15A-1368.4(e)(6), on this "home visit," Officer Patterson, pursuant to the Policy, conducted what she testified to as a "warrantless search" of Defendant's bedroom, as well as the main common areas of the Home. Officer Patterson testified that she limited her warrantless search of the Home to "plain-view," meaning she looked through the personal possessions of the home's residents that were visible without her having to move or open anything. Officer Patterson testified that she did not observe anything suspicious during her 4 April 2017 warrantless search. Pursuant to the Policy, Officer Patterson did note the layout of the Home and drew a general diagram of the Home to assist in future warrantless searches. DPS Corrections, Ch. C, § .0202.

Based upon factors that will be discussed later, the Policy appears to have either permitted or required warrantless searches of Defendant's residence, including thorough searches of closed areas and containers. According to testimony, Defendant was labeled a "high-risk offender" based upon DPS guidelines, and he was also "verified" as a member of the "Folk Nation" gang in 2016, while he was in prison. Both of these determinations, made pursuant to the Policy, subjected Defendant to warrantless searches of his residence. The State's testimony also indicated that, pursuant to the Policy, all PRS supervisees were subject to at least one warrantless search of their residences within ninety days of release and, further, that the Post-Release Supervision and Parole Commission ("the Commission") imposed as a condition of his PRS that Defendant submit to warrantless searches of his premises. The record does not indicate whether the Commission specifically based its imposition of the residential warrantless search condition on Defendant's "high-risk offender" status, or his status as a "validated" gang "member."

The trial court found that on 11 May 2017, Officer Patterson requested the Home be included in a large "joint search operation" or "operational search"—Operation Arrow – that had already been planned and scheduled to occur on 11 May 2017, for the purpose of conducting warrantless searches of the residences of multiple Guilford County PRS supervisees, parolees, and probationers. Chief Gibson had been active in organizing Operation Arrow with other DPS personnel, as well as federal and local law enforcement. Chief Gibson testified that on 11 May 2017, his "duties ... [were as] part of a joint search operation held ... in Guilford County ... [and that] the target was searching high-risk offenders and offenders that were validated gang members[,]" "and also to insure that they were compliant with the terms of their supervision which, in this particular case, was not to possess a firearm, ... not to possess any type of illegal drugs, contraband or stolen goods." "We were proceeding to various residences in Guilford County to conduct searches on various individuals."

As a part of Operation Arrow, an unannounced warrantless and suspicionless search of the Home was conducted on 11 May 2017, and a handgun was located in the cabinet portion of the bedside table in Defendant's bedroom. As a result, Defendant was arrested and charged with possession of a firearm by a felon, along with violating conditions of his PRS. Defendant moved to suppress the handgun as the fruit of an illegal warrantless search. The suppression hearing was conducted on 31 July – 1 August 2018, and the trial court denied Defendant's motion to suppress by order entered 2 August 2018. Defendant agreed to enter an Alford plea for the charge of possession of a firearm by a felon, and judgment was entered on 2 August 2018, in which Defendant expressly preserved his right to appeal the denial of his motion to suppress. Defendant appeals.

II. Analysis

In this case, Defendant argues that "the trial court erred in denying [Defendant's] motion to suppress because the warrantless search of [his] home violated North Carolina law and the Fourth Amendment." We agree.

A. Standard of Review
When a defendant in a criminal prosecution makes a motion to suppress evidence obtained by means of a warrantless search, the State has the burden of showing, at the suppression hearing, "how the [warrantless search] was exempted from the general constitutional demand for a warrant."

State v. Phillips , 151 N.C. App. 185, 188, 565 S.E.2d 697, 700 (2002) (citations omitted). "In reviewing the trial court's order following a motion to suppress, we are bound by the trial court's findings of fact if such findings are supported by competent evidence...

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2 cases
  • State v. Robinson
    • United States
    • North Carolina Court of Appeals
    • December 31, 2020
  • United States v. Watkins
    • United States
    • U.S. District Court — Western District of North Carolina
    • November 23, 2021
    ...the Department of Public Safety “is without the authority to impose conditions of PRS, all conditions must be imposed by the Commission.” Id. at 437. Furthermore, the Court held that “the catch-all provision in N.C. G.S. § 15A-1368.4(c) cannot be used to expand the Commission's authority be......

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