State v. Alexander

NO. COA13-461

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Catawba County
No. 10 CRS 57159
DARIUS CORDALE ALEXANDER,
Defendant.

Appeal by defendant from judgment entered 17 August 2011 by

Judge H. William Constangy in Catawba County Superior Court.

Heard in the Court of Appeals 23 September 2013.

Attorney General Roy Cooper, by Special Deputy Attorney
General Angel E. Gray, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Jon H. Hunt and Assistant Appellate Defender
Benjamin Dowling-Sendor, for defendant-appellant.

GEER, Judge.

Defendant Darius Cordale Alexander appeals from an order

denying, in part, his motion to suppress evidence seized during

a warrantless search of a trailer parked in front of his mobile

home. On appeal, defendant contends that the challenged search

and seizure were not reasonable under the plain view doctrine

because the criminal nature of the items was not immediately

apparent and the officers did not have legal right of access to
 -2-
the items seized. We hold that the findings of fact support the

trial court's conclusion that the criminal nature of the items

was immediately apparent. However, we remand for further

findings of fact and conclusions of law regarding whether the

officers had a lawful right of access to the items seized.

Facts

The State's evidence tended to show the following facts.

On the morning of 29 October 2010, Officer Stephanie Roberts of

the Hickory Police Department responded to a reported theft of

air conditioning copper coil at the Century Furniture Company.

The maintenance supervisor, Bob Ledford, informed Officer

Roberts that he had checked on the air conditioning units the

previous day at around 4:30 p.m., but when he arrived that

morning, he discovered that approximately 200 pounds of copper

coil had been stolen.

After taking Mr. Ledford's statement, Officer Roberts

called Mr. Caroll McKinney at McKinney Metals to determine if

any coil had been sold to him in the previous 24 hours. Mr.

McKinney called Officer Roberts back at around 3:30 p.m. and

informed her that coil matching the description and weight of

the stolen property had been sold to him that day by defendant.

Mr. McKinney provided Officer Roberts with defendant's name and

driver's license number, the license plate number of the vehicle
 -3-
defendant used to deliver the coil, and a physical description

of defendant and his Infiniti SUV. Officer Roberts used

defendant's driver's license number to locate defendant's

address and determined that defendant lived in a mobile home in

Hollar Mobile Home Park in Burke County.

Hollar Mobile Home Park has about 40 mobile homes on eight

to 10 acres of land. There are two paved driveways that run

through the park with mobile homes on either side, forming three

rows of homes. The homes do not face towards the driveway, but

instead are situated facing towards and parallel to the main

road, which runs perpendicular to the paved driveways. In each

row, there is a grassy area between each mobile home that

constitutes the front yard of one home and the back yard of

another. The homes are about 100 feet apart from one another,

but there are no fences to separate one home from another.

When facing the park from the main road, defendant's mobile

home is located in the outer left row of mobile homes. His

front door faces the main road and is on the far right side of

the mobile home, closest to the paved driveway. The door is

accessible by walking up three steps to the front porch. The

grassy area in front of his mobile home is bounded on the left

by the wooded area bordering the mobile home park, the paved
 -4-
driveway to the right, and, at the front, another empty mobile

home closer to the main road.

Officer Roberts drove to the mobile home park to question

defendant, arriving at around 4:14 p.m. She drove down the main

road and came upon the park on her left. As she approached the

park and passed the entrance to the first paved driveway on her

left, she observed an Infiniti SUV matching the description

given to her by Mr. McKinney with a black male behind the

steering wheel. She pulled into the second entrance, parked her

car, and walked back towards defendant's mobile home on foot.

Defendant's SUV and a wooden tow-behind trailer were parked

on the far left side of the grassy area in front of defendant's

mobile home. The SUV was parked alongside the mobile home with

its headlights facing towards the mobile home park driveway.

The SUV's tailgate was at the edge of the wooded area, and the

license plate was not visible from the driveway. Next to the

SUV, towards the empty mobile home and the main road, the

trailer had also been backed up to the woods so that its license

plate was not visible. The SUV was approximately 10 to 15 feet

in front of the mobile home, and the trailer was approximately

five feet away from the SUV. The trailer had two wheels and was

no longer attached to a vehicle, so the trailer hitch was

resting on the ground. This caused the bed of the trailer,
 -5-
which was opened and uncovered, to tilt down in a forward angle

towards the driveway.

Officer Roberts approached from the paved driveway on the

right. When she reached the mobile home the vehicle was no

longer occupied, so she believed that the individual she saw in

the SUV had gone inside the mobile home. She walked up to the

front porch and knocked on the door, but no one answered. When

she turned around, she noticed the open tow-behind trailer

parked in the front yard and saw that it contained pieces of air

conditioning copper coil. She believed that the pieces of coil

were scrap pieces of the coils that had been stolen and sold to

Mr. McKinney.

After knocking on the door and getting no response, Officer

Roberts walked down from the porch and over towards the wooded

area to see behind the SUV and the tow-behind trailer to check

the license plate numbers. The license plate on the SUV matched

the license plate given to her by Mr. McKinney.

Officer Roberts radioed for assistance and also called Mr.

Ledford. She asked Mr. Ledford to bring the ends of the copper

coil that were left attached to the air conditioning units so

that they could be compared to the pieces of coil in the

trailer. While she was waiting for the other officers to
 -6-
arrive, she took photographs of the mobile home, SUV, and

trailer.

When Deputy Nathan Smith of the Burke County Sheriff's

Office arrived, Officer Roberts again knocked on the front door

of the mobile home while Deputy Smith knocked on the back door.

Again, they did not get a response. However, as Deputy Smith

walked to the front of the mobile home, he saw a child peeping

through a curtain. Claiming concern for the welfare of the

child, Deputy Smith's partner went to the mobile home park

office to speak with the park manager about obtaining a key to

the mobile home. At the officers' request, a maintenance man

who worked at the park used the landlord's key to allow the

officers into defendant's mobile home. The defendant and the

child were found hiding behind a door in one of the bedrooms.

After determining that the child was okay, the officers

questioned defendant about the larceny of the air conditioning

coils. They also found and seized marijuana and a backpack that

contained gloves, screwdrivers, pliers, and other tools.

Officer Roberts placed defendant under arrest for larceny and

breaking and entering. After defendant was placed under arrest,

Mr. Ledford arrived and was able to identify the coils. Officer

Roberts collected all of the pieces of coil from the trailer as

evidence.
 -7-
Defendant was indicted for felony larceny and misdemeanor

possession of stolen goods. On 11 August 2011, defendant filed

a motion to suppress all the evidence seized on 29 October 2010,

including the copper coil in the trailer, and any statements

made by defendant during the search of his mobile home. On 17

August 2011, following a hearing, the trial court entered an

order concluding that the search and seizure of the coils were

justified by the plain view doctrine, but that the warrantless

entry into the mobile home was not justified by any exigent

circumstances, the caretaker exception, or consent of the

landlord. The trial court granted defendant's motion to

suppress the evidence seized within the mobile home, but denied

defendant's motion to suppress the coils seized outside the

mobile home.

Thereafter, defendant entered a plea of no contest to

felony possession of stolen goods, and the State dismissed the

charges of felony larceny and misdemeanor possession of stolen

goods. The trial court sentenced defendant to a presumptive-

range term of 5 to 6 months imprisonment. The court suspended

the sentence and placed defendant on 30 months of supervised

probation.

After the entry of judgment, defendant gave oral notice of

appeal of the partial denial of his motion to suppress. On 18
 -8-
December 2012, this Court dismissed defendant's appeal for lack

of jurisdiction for failure to give adequate notice of appeal

from the trial court's judgment. See State v. Alexander, ___

N.C. App. ___, ___ S.E.2d ___, 2012 WL 6590077, 2012 N.C. App.

LEXIS 1390 (Dec. 18, 2012) (unpublished). On 27 December 2012,

defendant filed a petition for writ of certiorari to review the

17 August 2011 judgment, which this Court granted 14 January

2013.

Discussion

The sole issue on appeal is whether the trial court erred

in denying in part defendant's motion to suppress. "The scope

of review of the 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. Bone, 354 N.C. 1, 7, 550 S.E.2d

482, 486 (2001) (quoting State v. Cooke, 306 N.C. 132, 134, 291

S.E.2d 618, 619 (1982)). Unchallenged findings of fact are

binding on appeal. State v. Lupek, 214 N.C. App. 146, 150, 712

S.E.2d 915, 918 (2011). The trial court's conclusions of law

are, however, reviewed de novo and "must be legally correct,
 -9-
reflecting a correct application of applicable legal principles

to the facts found." State v. Fernandez, 346 N.C. 1, 11, 484

S.E.2d 350, 357 (1997).

We first note that defendant, the State, and the trial

court have all focused both on (1) whether Officer Roberts

conducted a search justified by the plain view doctrine, and (2)

whether the seizure of the copper coils was permissible under

that doctrine. The trial court concluded: "Officer Roberts's

warrantless examination of the contents of the trailer located

adjacent to defendant's mobile home at [sic] WAS a reasonable

search, justified by the plain view exception to the warrant

requirement. Officer Roberts was lawfully present on the front

porch when she inadvertently saw what she believed to be

evidence of a crime." The trial court then upheld the seizure:

"The examination by Officer Roberts of the tow-behind trailer

located in the front yard and the seizure of the suspected

stolen property DID NOT violate the defendant's rights under the

Constitution of the United States of America or the Constitution

of the State of North Carolina."

However, as the Fourth Circuit Court of Appeals has

explained, "[t]he 'plain-view' doctrine provides an exception to

the warrant requirement for the seizure of property, but it does

not provide an exception for a search. Viewing an article that
 -10-
is already in plain view does not involve an invasion of privacy

and, consequently, does not constitute a search implicating the

Fourth Amendment." United States v. Jackson, 131 F.3d 1105,

1108 (4th Cir. 1997). See also Horton v. California, 496 U.S.

128, 134 n.5, 110 L. Ed. 2d 112, 121 n.5, 110 S. Ct. 2301, 2306

n.5 (1990) ("'It is important to distinguish "plain view," . . .

to justify seizure of an object, from an officer's mere

observation of an item left in plain view. Whereas the latter

generally involves no Fourth Amendment search, . . . the former

generally does implicate the Amendment's limitations upon

seizures of personal property.'" (quoting Texas v. Brown, 460

U.S. 730, 738 n.4, 75 L. Ed. 2d 502, 511 n.4, 103 S. Ct. 1535,

1541 n.4 (1983) (opinion of Rehnquist, J.))).

We therefore hold, as an initial matter, that the trial

court erred in applying the plain view doctrine to the question

whether Officer Roberts performed a lawful search when she

observed the contents of the trailer from the front porch of the

mobile home. The plain view doctrine applied only to the

question whether Officer Roberts' warrantless seizure of the

copper coils was permissible under the plain view doctrine.

Under the plain view doctrine, a warrantless seizure is

lawful if (1) the officer views the evidence from a place where

he has legal right to be, (2) it is immediately apparent that
 -11-
the items observed constitute evidence of a crime, are

contraband, or are subject to seizure based upon probable cause,

and (3) the officer has a lawful right of access to the evidence

itself. State v. Nance, 149 N.C. App. 734, 740, 562 S.E.2d 557,

561-62 (2002).

With respect to the first element of the plain view

doctrine, defendant challenges the trial court's finding that

Officer Roberts could see the coils from the porch -- a location

where, defendant concedes, Officer Roberts had a legal right to

be. See State v. Prevette, 43 N.C. App. 450, 455, 259 S.E.2d

595, 600–01 (1979) (holding officers legally entitled to be on

front porch of defendant's house for purpose of conducting

general inquiry or interview). The trial court's finding of

fact was supported by Officer Roberts' testimony during cross-

examination:

Q. . . . You mentioned at some point that
you knocked on a door eventually, correct?

A. Yes, sir. . . . When I arrived and I
seen the Infinity, I walked up on the porch.
And when I did I could see over into that
trailer -- into that hitch trailer. But I
walked up and knocked on the door.

Q. Okay.

A. And that's when I could see inside that
hitch trailer.

Q. Okay. And after you did that did you
proceed to go over and go behind the
 -12-
automobile to see what tag --

A. To check the plate, yes, sir.

Q. Okay. Did you go behind the -- You
also went behind the hitch trailer to see if
it had a tag on it.

A. Yes, sir --

While defendant argues that this testimony does not

establish that Officer Roberts could in fact see the coils in

the trailer, the trial court's finding was a reasonable

inference drawn from this testimony when considered together

with Officer Roberts' direct examination. Although defendant's

interpretation of Officer Roberts' testimony may also be

reasonable, it is the trial court who "passes upon the

credibility of the witnesses and the weight to be given their

testimony and the reasonable inferences to be drawn therefrom.

If different inferences may be drawn from the evidence, he

determines which inferences shall be drawn and which shall be

rejected." Knutton v. Cofield, 273 N.C. 355, 359, 160 S.E.2d

29, 33 (1968). Because the evidence and reasonable inferences

drawn from that evidence support the trial court's finding that

Officer Roberts could see the copper coils from the porch, it is

binding on appeal.

Defendant also challenges the sufficiency of the evidence

to support the trial court's finding that Officer Roberts
 -13-
"inadvertently" looked into the trailer from the front porch.

This Court, however, has held that "inadvertence is not a

necessary condition of a lawful search pursuant to the 'plain

view' doctrine." State v. Church, 110 N.C. App. 569, 575, 430

S.E.2d 462, 465 (1993) (following Horton).1 Because this finding

of fact is, therefore, immaterial to the question whether the

seizure was permissible under the Fourth Amendment, we need not

address it.

Regarding the second element of the plain view doctrine,

defendant argues that the trial court's findings of fact are

insufficient to support a conclusion that it was "immediately

apparent" to Officer Roberts that the coils were stolen. "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 upon is evidence of criminal conduct.'"

State v. Graves, 135 N.C. App. 216, 219, 519 S.E.2d 770, 772

(1999) (quoting State v. Wilson, 112 N.C. App. 777, 782, 437

S.E.2d 387, 389-90 (1993)). When, as here, the item in plain

view is considered contraband based solely upon its status as a
1
Nevertheless, many cases subsequent to Church have
continued to articulate the three factor test for the plain view
doctrine which includes inadvertency. Inadvertence is required
pursuant to N.C. Gen. Stat. § 15A-253 (2013), which applies to
items found in plain view during the execution of a valid search
warrant. Because Officer Roberts did not discover the coil
while executing a search warrant, N.C. Gen. Stat. § 15A-253 is
inapplicable to this case.
 -14-
"stolen good," whether its criminal nature is immediately

apparent to an officer depends upon the interplay between

extrinsic circumstances known to the officer prior to discovery

of the item and the officer's observations of the item's

characteristics. See State v. Connard, 81 N.C. App. 327, 330,

344 S.E.2d 568, 571 (1986) ("Stolen goods . . . do not qualify

automatically as contraband, but generally are innocuous except

for the extrinsic circumstance that they have been stolen.").

This Court has held that it was immediately apparent that

an item in plain view was evidence of a crime when the officer

viewed an item that matched the description of an item he knew

to be stolen. See, e.g., State v. Haymond, 203 N.C. App. 151,

161, 691 S.E.2d 108, 118 (2010) (immediately apparent microwave,

refrigerator, and dishwasher stolen when officer immediately

recognized the appliances as those from break-in he was

investigating based on officer's recollection of what stolen

items looked like); State v. Weakley, 176 N.C. App. 642, 649,

627 S.E.2d 315, 320 (2006) (immediately apparent shower curtain

contraband when curtain matched pictures of stolen curtain

officer had seen).

We find that the circumstances of this case are analogous

to those in State v. Bembery, 33 N.C. App. 31, 234 S.E.2d 33

(1977). In Bembery, a car dealer discovered that someone had
 -15-
stolen tires from a truck on his lot and provided a description

of the stolen tires, including the type and size, to the county

sheriff, who relayed the information to the sheriff in a

neighboring county. Id. at 32, 234 S.E.2d at 34. Four days

later, the sheriff in the neighboring county received a call

from a reliable informant that two of the stolen tires were in

the possession of the defendant and that the defendant was at a

friend's house. Id. The sheriff drove to the house about 40

minutes later, where he found the defendant getting ready to put

tires on his car. Id. The tires were in plain view and matched

the description given by the car dealer. Id. The Court held

that "[i]n these circumstances, the seizure of the tires for the

purpose of taking them to [the car dealer] for identification

was reasonable." Id. at 36, 234 S.E.2d at 37.

Here, the trial court's findings of fact establish that

Officer Roberts was investigating a recent theft of air

conditioning copper coil and was given the description and

weight of the stolen coil. Officer Roberts, like the officer in

Bembery, received reliable information that the defendant was

recently in possession of the stolen goods -- a local metal

recycler informed Officer Roberts that coil matching the

description and weight of the stolen coil had been sold to the

recycler by defendant earlier that day. The metal recycler
 -16-
provided Officer Roberts with defendant's name and driver's

license number, the license plate number of the vehicle used to

deliver the coil, and a physical description of defendant and

his vehicle.

Officer Roberts used the information from the metal

recycler to locate defendant's residence, where she saw a parked

vehicle matching the description given to her by the metal

recycler with a black male behind the steering wheel. From the

front porch of defendant's mobile home, Officer Roberts noticed

air conditioning copper coil in the open-tow trailer parked next

to defendant's SUV. As in Haymond, Weakley, and Bembery, the

items viewed by Officer Roberts matched the description of goods

she knew to be stolen.2 Furthermore, the additional information

Officer Roberts had gathered from her investigation after

speaking to the metal recycler bolstered her belief that the

items in the trailer were stolen. These findings sufficiently

support the conclusion that it was immediately apparent to

Officer Roberts that the coils were evidence of a crime.

2
Although the trial court's finding that Officer Roberts
believed the coils to be evidence of a crime is found in
conclusion of law #1, we treat it as a finding of fact. See
Gainey v. N.C. Dep't of Justice, 121 N.C. App. 253, 257 n.1, 465
S.E.2d 36, 40 n.1 (1996) ("Although denominated as a conclusion
of law, we treat this conclusion as a finding of fact because
its determination does not involve the application of legal
principles.")
 -17-
Nevertheless, defendant argues that Officer Roberts merely

suspected that the coils were stolen, but did not have the level

of certainty required to rise to the level of probable cause.

Defendant points to the trial court's finding that Officer

Roberts called the factory manager, Mr. Ledford, to ask him to

come and identify the pieces of scrap metal, and analogizes

these facts to cases in which the criminal nature of an item

seized by an officer was not apparent until the officer further

manipulated the item. See State v. Sapatch, 108 N.C. App. 321,

325, 423 S.E.2d 510, 513 (1992) (criminal nature of closed film

canisters not apparent until officer opened canisters and

discovered rocks of cocaine); Graves, 135 N.C. App. at 220, 519

S.E.2d at 773 (officer did not have probable cause to believe

brown paper wads were evidence of crime when he did not know

items were contraband until after he unfolded them); State v.

Carter, 200 N.C. App. 47, 55, 682 S.E.2d 416, 422 (2009)

(criminal nature of scraps of paper seized by officer not

apparent until pieced back together and read).

In contrast to this case, in Sapatch, Graves, and Carter,

the criminal nature of the item was not immediately apparent

because the contraband was, literally, out of sight. All that

could be seen at first were innocuous items -- a film canister,

wads of brown paper, and a torn-up piece of paper. The plain
 -18-
view doctrine did not apply because the contraband -- the

cocaine inside the canister, the crack pipe inside the wads of

brown paper, and the incriminating words on the torn up sheets

of paper -- were, simply, not in plain view. Here, however, the

items that Officer Roberts saw -- the coils -- constituted the

contraband itself and was plainly and completely visible at

first glance without any physical manipulation. Officer Roberts

possessed sufficient information at the time she saw the coils

in the trailer to have probable cause to believe that the coils

were stolen. Mr. Ledford merely confirmed that the coils were,

in fact, the stolen coils. Accordingly, we conclude that the

trial court's findings of fact are sufficient to support the

conclusion that the criminal nature of the coils was immediately

apparent to Officer Roberts.

Turning to the final element -- whether Officer Roberts had

a lawful right of access to the trailer in which the coils were

found -- defendant argues that the trial court did not make the

findings necessary to establish this element. We agree.

This Court has previously emphasized that a determination

that contraband was in plain view is not sufficient to support a

warrantless seizure of the contraband:

What a person knowingly exposes to the
public, even in his own home or office, is
not a subject of Fourth Amendment
protection. Thus, when officers are in a
 -19-
public place or some other area, such as an
open field, that is not protected by the
Fourth Amendment, knowledge that they gain
from their plain-view observations does not
constitute a search under the Fourth
Amendment. Whether such plain-view
observations can justify a warrantless
seizure, however, is a separate question.
If the boundaries of the Fourth Amendment
were defined exclusively by rights of
privacy, "plain view" seizures would not
implicate that constitutional provision at
all. Yet, far from being automatically
upheld, "plain view" seizures have been
scrupulously subjected to Fourth Amendment
inquiry. That is because, the absence of a
privacy interest notwithstanding, [a]
seizure . . . obviously invade[s] the
owner's possessory interest.

Nance, 149 N.C. App. at 739, 562 S.E.2d at 561 (internal

citations and quotation marks omitted).

It is well settled that officers have a lawful right of

access to items located in a public place. See Payton v. New

York, 445 U.S. 573, 587, 63 L. Ed. 2d 639, 651, 100 S. Ct. 1371,

1380 (1980) ("objects such as weapons or contraband found in a

public place may be seized by the police without a warrant").

The first question to address in establishing whether an officer

had a lawful right of access to an object, therefore, is whether

the object was located in a public place or on private property.

In Nance, this Court held that an open field leased by the

defendant which was outside of the curtilage of his home was not

a public place, noting that "[t]he fact that defendant's
 -20-
property included open fields does not transform private

property into public land." 149 N.C. App. at 742, 562 S.E.2d at

563.

If the seized item is not located in a public place, the

officers may nevertheless have a lawful right of access to the

item to justify its seizure if they entered the private property

by consent, pursuant to a warrant, or under exigent

circumstances. Id. at 741, 744, 562 S.E.2d at 562, 564

(concluding officers did not have a lawful right of access to

seize malnourished horses on private property where the officers

"had neither consent nor a warrant authorizing their entry onto

defendant's property" and where "exigent circumstances did not

exist").

Nance also rejected the argument that officers have lawful

access to seize items on private property whenever they "are

conducting [a] 'legitimate law enforcement function[].'" Id. at

742, 562 S.E.2d at 563. Nance acknowledged that it is not a

trespass for an officer to enter private property "'for the

purpose of a general inquiry or interview.'" Id. (quoting

Prevette, 43 N.C. App. at 455, 259 S.E.2d at 599-600). However,

Nance clarified that this rule does not "stand[] for the

proposition that law enforcement officers may enter private
 -21-
property without a warrant and seize evidence of a crime." Id.

(emphasis added). Nance explained:

If the position advanced by the State were
correct, law enforcement officers could
enter onto private property and seize
evidence of criminal activity without a
warrant whenever they had probable cause to
suspect that such activity was taking place.
Such a position directly contradicts
repeated admonitions by the United States
Supreme Court that although

"[t]he seizure of property in
plain view involves no invasion of
privacy and is presumptively
reasonable, assuming that there is
probable cause to associate the
property with criminal activity[,]
[a] different situation is
presented . . . when the property
in open view is situated on
private premises to which access
is not otherwise available for the
seizing officer."

Id. at 742-43, 562 S.E.2d at 563 (quoting Texas, 460 U.S. at

738, 75 L. Ed. 2d at 511, 103 S. Ct. at 1541). This Court,

relying on Nance, has subsequently confirmed that, absent

exigent circumstances, initiating a valid "knock and talk" does

not give officers a lawful right of access to walk across the

curtilage of a defendant's home to seize contraband in plain

view. State v. Grice, ___ N.C. App. ___, ___, 735 S.E.2d 354,

358 (2012), disc. review allowed, ___ N.C. ___, 743 S.E.2d 179

(2013).
 -22-
Here, the trial court failed to make any findings regarding

whether the officers had legal right of access to the coils in

the trailer. The trial court did not address whether the

trailer was located on private property leased by defendant,

private property owned by the mobile home park, or public

property. It also did not make any findings regarding whether,

assuming that the trailer was located on private property, the

officers had legal right of access either by consent or due to

exigent circumstances. We, therefore, remand for further

findings of fact and conclusions of law regarding that issue.

We leave it to the court's discretion whether to consider

additional evidence.3

Reversed and remanded.

Chief Judge MARTIN and Judge STROUD concur.

3
We find no merit to the State's argument that the seizure
of the coils could alternatively be justified pursuant to a
search incident to lawful arrest. Under the search incident to
arrest warrant requirement exception, "'if the search is
incident to a lawful arrest, an officer may conduct a
warrantless search of the arrestee's person and the area within
the arrestee's immediate control.'" Carter, 200 N.C. App. at
51, 682 S.E.2d at 419 (quoting State v. Logner, 148 N.C. App.
135, 139, 557 S.E.2d 191, 194 (2001)). The trial court made no
findings of fact that would support the State's contention, and
the record contains no evidence that would support the necessary
findings.