State v. Dial

744 S.E.2d 144, 228 N.C. App. 83, 2013 WL 2990950, 2013 N.C. App. LEXIS 674
CourtCourt of Appeals of North Carolina
DecidedJune 18, 2013
DocketNo. COA12-1334
StatusPublished
Cited by3 cases

This text of 744 S.E.2d 144 (State v. Dial) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dial, 744 S.E.2d 144, 228 N.C. App. 83, 2013 WL 2990950, 2013 N.C. App. LEXIS 674 (N.C. Ct. App. 2013).

Opinion

STEELMAN, Judge.

Where defendant took an unusually long time to answer the door at his residence, weapons were known to be inside the residence, and defendant’s own actions led him to be arrested in the open doorway, deputies had a reasonable belief that the residence may have harbored an individual posing a danger to the deputies. The trial court properly denied defendant’s motion to suppress evidence recovered as a result of the deputies’ protective sweep.

I. Factual and Procedural Background

On 20 May 2011, Chris Burger1 (Burger), a deputy with the Chatham County Sheriff’s Office, went to the residence of Paul Dial (defendant) to serve defendant with an order for arrest. Burger had previously served orders for arrest upon defendant at the residence. During the previous encounters, defendant had answered the door promptly when Burger knocked and announced his presence. On 20 May 2011, Burger arrived at defendant’s residence and observed a van in the driveway. The van’s windows were open and there was a buzzing noise coming from the vehicle consistent with the key being in the ignition in the “on” position. Burger knocked on the front door and immediately heard shuffling on the other side of the door that could have been caused by one or more persons. No one answered the door. For five to ten minutes, Burger continued to knock and announce who he was, called defendant by name, and asked defendant to come outside. No one came to the door. Burger called for backup from his patrol car, indicating that defendant had barricaded himself in the residence and that Burger needed assistance. Burger then used his patrol vehicle PA system to try to get someone to come out of the residence for approximately five minutes. Burger was concerned for his safety because he knew firearms were normally inside the residence and defendant usually responded promptly when Burger knocked and announced his presence.

Deputies Tipton (Tipton) and Miller (Miller) responded to Burger’s request for assistance, arrived at the residence, and were briefed on the situation. Burger informed them he believed weapons to be inside the residence and showed them the order for defendant’s arrest. The three deputies developed a plan to try to observe who was in the residence. [85]*85Tipton and Miller planned to knock on the front and side doors while Burger attempted to look inside the residence through windows. As the deputies approached the residence, the “front door flew open and defendant stepped out.” Tipton drew his weapon and gave verbal commands to defendant. Defendant walked down the front steps with his hands raised. Defendant was not resisting arrest, but was not complying with the deputies’ instructions. As Burger buckled defendant’s knees and cuffed him, Tipton and Miller entered the open front door to perform a protective sweep of the residence. Tipton and Miller considered the open door to be a “fatal funnel” that would provide an assailant inside the residence with a clear shot at the deputies. Acting out of concern for Burger’s safety, deputies attempted to clear the residence by making sure there was no one else inside either posing a threat to the deputies or who was injured. The protective sweep lasted approximately thirty seconds. Deputies only inspected areas where a person could have been hiding. While inside the residence, deputies observed ammunition magazines on the kitchen table and firearms inside a room. There was no one else inside the residence. Several horns after the arrest, deputies returned with a search warrant and searched defendant’s residence and vehicle.

On 10 October 2011, defendant was indicted for possession of a firearm by a felon. Defendant filed a motion to suppress the evidence that was discovered as a result of the protective sweep of his residence. On 15 March 2012, Judge Allen Baddour denied defendant’s motion to suppress. Defendant subsequently pled guilty before Judge Stone to possession of a firearm by a felon, reserving the right to appeal the denial of his motion to suppress. The trial court sentenced defendant to twelve to fifteen months imprisonment. This sentence was suspended and defendant was placed on supervised probation for thirty months.

Defendant appeals.

II. Motion to Suppress

In his only argument on appeal, defendant contends that the trial court erred in denying his motion to suppress the evidence of the firearms that was discovered as a result of a protective sweep of his residence. We disagree.

A. Standard of Review

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 [86]*86are 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).

B. Challenged Findings of Fact

Defendant challenges three of the trial court’s findings of fact from its order denying the motion to suppress.

Defendant first challenges the finding of fact that states Burger “had dealt with defendant on other occasions as well, including making felony drug arrests at the residence.” At the suppression hearing, Burger testified that he previously served defendant at least six times with child support papers and that he had “dealings with other individuals” at the residence as well. He further testified that on one of these occasions he arrested an individual for felony possession of cocaine at the residence and characterized the residence as a known “drug house.” At the suppression hearing, defendant acknowledged being arrested in 2004 on marijuana charges. This testimony supports the trial court’s finding of fact that Burger had previously made felony drug arrests at the residence.

Even assuming arguendo that this evidence only supports a finding of fact that Burger made one felony drug arrest at the residence, there is no prejudicial error. Any discrepancy in the number of felony drug arrests, whether it was one or several, is inconsequential to the analysis of whether Tipton and Miller had a reasonable belief that defendant’s residence harbored an individual posing a danger to the deputies.

Defendant next challenges the trial court’s finding of fact that states “Burger briefed [Tipton and Miller] on the situation, letting them know that he believed there to be weapons inside [defendant’s residence] . ” At the suppression hearing, Tipton and Miller were questioned about their conversation with Burger that occurred shortly after their arrival, what Burger told them, and what they knew about the situation. Tipton and Miller never mentioned in their testimony whether or not Burger informed them that there were weapons inside the residence. Burger testified that he “knew there [were] firearms inside that house” from his previous encounters at the residence, and that he “briefed [Tipton and Miller] on what happened with my prior occasions at the house as far as my dealings with [defendant]. I - for their safety, I informed them there was [sic] weapons to my knowledge inside the house.” Defendant contends that Tipton or Miller did not testify that Burger communicated this information to them.

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Cite This Page — Counsel Stack

Bluebook (online)
744 S.E.2d 144, 228 N.C. App. 83, 2013 WL 2990950, 2013 N.C. App. LEXIS 674, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dial-ncctapp-2013.