State v. Lucas

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-714

No. COA21-685

Filed 1 November 2022

Macon County, No. 18 CRS 000493

STATE OF NORTH CAROLINA

v.

DANIEL LUCAS, Defendant.

Appeal by defendant from judgments entered 2 February 2021 by Judge

William H. Coward in Macon County Superior Court. Heard in the Court of Appeals

10 August 2022.

Attorney General Joshua H. Stein, by Special Deputy Attorney General John R.
Green, Jr., for the State

Lindsay Law, PLLC, by Nicholas A. White, Mary Ann J. Hollocker, and
Stephen P. Lindsay, for Defendant-Appellant.

CARPENTER, Judge.

¶1 Daniel Lucas (“Defendant”) appeals from final judgments entered upon a plea

agreement to challenge the denial of his motion to suppress evidence obtained during

the warrantless search of his Franklin, North Carolina home (the “Home”). On

appeal, Defendant argues the search violated N.C. Gen. Stat. § 15A-1343(b)(13)

because the State failed to show that the officers reasonably believed Defendant’s

Home was probationer Samantha Green’s (“Ms. Green”) premises, and that the
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search was “directly related” to Ms. Green’s probation supervision. Defendant further

argues the trial court erred in concluding the search warrant was issued on a

sufficient showing of probable cause. For the reasons explained below, we affirm the

order (the “Order”) denying Defendant’s motion to suppress.

I. Factual & Procedural Background

¶2 This case concerns the warrantless search of Defendant’s Home conducted

pursuant to N.C. Gen. Stat. § 15A-1343(b)(13). The search was initiated following

positive drug screening and drug possession by probationer, Ms. Green, who was

reported on multiple occasions by her supervising probation officer as being

Defendant’s live-in girlfriend. On 25 February 2019, Defendant filed a “Verified

Motion to Suppress” seeking to suppress any and all evidence obtained during the

search of his Home and property on or about 15 August 2018. On 12 February 2020,

Defendant filed a “Supplemental Verified Motion to Suppress.”

¶3 Beginning on 18 February 2020, Defendant’s motions were heard in Macon

County Superior Court before the Honorable William H. Coward, judge presiding.

Testimony from the hearing revealed the following: In September of 2017, the Macon

County District Court placed Ms. Green on supervised probation with a North

Carolina Department of Public Safety (“DPS”) probation office following the entry of

a judgment against Ms. Green related to misdemeanor larceny and forgery offenses.

The back of the judgment form stated the regular and special conditions of Ms.
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Green’s probation, pursuant to N.C. Gen. Stat. § 15A-1343. The conditions included,

inter alia, Ms. Green:

1. [c]ommit no criminal offense in any jurisdiction.

....

10. [s]ubmit at reasonable times to warrantless searches by
a probation officer of [her] person and [her] vehicle and
premises while [she] is present, for purposes directly
related to the probation supervision, but [she] may not be
required to submit to any other search that would
otherwise be unlawful.

....

12. [n]ot use, possess, or control any illegal drug or
controlled substance unless it has been prescribed for [her]
by a licensed physician and is in the original container with
the prescription number affixed on it; not knowingly
associate with any known or previously convicted users,
possessors, or sellers of any such illegal drugs or controlled
substances; and not knowingly be present at or frequent
any place where such illegal drugs or controlled substances
are sold, kept, or used.

¶4 On or about 15 September 2017, Ms. Green’s supervising probation officer,

Officer Alise Sutton of DPS, conducted an initial intake appointment wherein Ms.

Green provided Defendant’s Home address as her “premises” address. On the same

date, Officer Sutton provided Ms. Green with form DCC-117 – Regular Conditions of

Probation – G.S. 15A-1343, which was consistent with the regular probation

conditions found on the back of the judgment form. Ms. Green initialed by each

condition and signed the form.
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¶5 Officer Sutton testified that, as a probation and parole officer, her duties

include making unannounced visits at probationers’ homes and performing

discretionary warrantless searches of probationers’ homes. A warrantless search by

a probation officer is usually a “plain view” search of the home unless something

suspicious is found, in which case, a “deeper search” may be performed by the officer.

Early on in a probation case, a probation officer determines the areas of the residence

in which the probationer does not have access or does not have a privacy interest. As

part of a probation case plan, a probation officer performs an initial visit to a

probationer’s residence, or “home contact,” “to determine if the defendant [is] home.”

Additionally, a probation officer conducts regular, at least once per month, “offender

management contacts” in the probation office, and the first question the probation

officer asks the probationer is whether their address has changed.

¶6 On 17 September 2017, Officer Sutton performed an initial home contact at the

Home. Officer Sutton knocked on the glass door and observed Defendant approach

the door, and Ms. Green head in another direction. As Ms. Green walked away, she

appeared to be hiding something in the sofa. When Officer Sutton told Ms. Green

she, Officer Sutton, was going to see what was hidden, Ms. Green admitted to

“smoking a pill” and hiding the remaining “burnt foil” in the sofa. Officer Sutton

warned Defendant, whom Officer Sutton noted in her report as being the “boyfriend

who owns the house,” and Ms. Green that she cannot behave in this manner during
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subsequent home contacts as the behavior creates a safety concern for the officer and

the probationer. Officer Sutton further advised Defendant of two conditions of Ms.

Green’s probation: (1) that she consent to warrantless searches of her home; and (2)

that she has no firearms in her home. Defendant responded he “had no problems”

meeting either requirement.

¶7 In December 2017, a criminal judgment was entered against Ms. Green in

Macon County Superior Court related to pending drug possession charges that

preexisted Ms. Green’s placement on regular probation. The new judgment included

a conditional discharge sentence under N.C. Gen. Stat. § 90-96 as well as a

probationary sentence with special conditions.

¶8 On 28 December 2017, Officer Sutton performed a warrantless search of

Defendant’s Home in the presence of Defendant and Ms. Green. During this visit,

Officer Sutton walked through the general areas of the Home as well as the hallway

and bedroom. Ms. Green showed Officer Sutton her daughter’s bedroom and the

master bedroom, which Ms. Green described as the bedroom she shared with

Defendant. Ms. Green informed Officer Sutton that her friend was sleeping in her

daughter’s bedroom. Officer Sutton recognized the name of Ms. Green’s friend and

advised Ms. Green that her friend is a “known drug user.” Officer Sutton further

explained that it was a violation of Ms. Green’s probation for a known drug user to

be in the home.
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¶9 To balance caseloads within the probation office, Officer Sutton transferred

Ms. Green’s file on 8 May 2018 to Officer Christie Kinsland, who became Ms. Green’s

primary supervising probation officer. On 4 June 2018, Ms. Green confirmed while

in Officer Kinsland’s office that the Home was her residence. During June 2018,

Officer Kinsland made multiple attempts to perform a “home contact” with Ms.

Green. No one was available at the Home at the times of these visits.

¶ 10 On 24 July 2018, Officer Kinsland visited the Home with another officer and

spoke to Defendant. Defendant was upset and advised Ms. Green was not home nor

had she been home for “several nights.” Officer Kinsland observed filled trash bags

on the front porch, and Defendant stated he had placed Ms. Green’s belongings in

those trash bags.

¶ 11 On 26 July 2018, Ms. Green reported to Officer Kinsland, as instructed. She

notified Officer Kinsland that she “had worked everything out” with “her boyfriend”

and would be returning to his Home that night. On 29 July 2018, Officer Kinsland

performed a home contact at the Home and found Ms. Green “standing in the front

yard.” Ms. Green reported she and Defendant “were doing a lot better and . . . were

working things out.” Officer Kinsland noted the trash bags of clothes were no longer

visible on the porch. On 6 August 2018, Ms. Green visited Officer Kinsland’s office

for an offender management contact where she confirmed her address as Defendant’s

Home.
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¶ 12 On 15 August 2018, Ms. Green reported to Officer Kinsland to submit to a drug

screen. The drug screen came back “positive for cocaine, THC, and opiates.” This

was Ms. Green’s first drug screen that Officer Kinsland had “seen . . . test positive

for cocaine.” Officer Kinsland performed a pat down search on Ms. Green’s person

because she was acting nervously, and her behavior was “off.” Officer Kinsland found

no drugs or contraband during this search.

¶ 13 Officer Kinsland decided to search Ms. Green’s vehicle based on her suspicious

behavior and drug screen results. Ms. Green admitted to having a pill in the glove

compartment when Officer Kinsland asked if she had any drugs or weapons in the

vehicle. After the pill was found, Ms. Green stated she had pills in her purse, located

in the back seat of the vehicle.

¶ 14 While Officer Kinsland and other officers performed the search of the vehicle,

Officer Sutton observed Ms. Green “put[ting] her hands down the front of her pants.”

Ms. Green then pulled a “baggie full of pills” from the front of her pants. Shortly

thereafter, Ms. Green claimed to the officers that she was working as an informant

for Detective Matthew Breedlove of the Macon County Sheriff’s Office. Officer Sutton

called Detective Breedlove to the scene of the Macon County Courthouse. Detective

Breedlove arrived and confirmed Ms. Green was not an informant.

¶ 15 Detective Breedlove observed the pills and “formed an opinion that [they were]

an oxycodone illegal substance.” Officer Kinsland and Detective Breedlove
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announced their plans to search Ms. Green’s premises. Officers Kinsland and Sutton,

Probation Officer John Coker, Detective Breedlove, and Ms. Green headed to Ms.

Green’s residence, the Home. When they arrived at the Home sometime between 5:00

p.m. and dusk, Defendant was on his porch, and two Hispanic males were standing

by a truck in the driveway. The two men claimed to be employees of Defendant. The

officers “could smell the obvious [odor] of marijuana . . . emitting from the truck.”

Detective Breedlove searched the vehicle and found “some green vegetable material

[he] believed to be marijuana and some drug paraphernalia . . . .”

¶ 16 Officer Kinsland advised Defendant the officers were there to conduct a

warrantless search of the Home as part of Ms. Green’s probation, and Defendant

stated he “understood.” Detective Breedlove remained outside on the deck of the

Home for security reasons. As the officers entered the residence, they “immediately

. . . detect[ed] . . . a strong odor of marijuana.” Officer Kinsland asked Ms. Green if

she had any illegal drugs, controlled substances, or drug paraphernalia. Ms. Green

directed Officer Kinsland to her bedroom and advised there was marijuana in the

“bedside table on her side of the bed.” Officer Sutton and Defendant remained in the

living room during the search. Detective Breedlove then entered the residence and

recovered from a nightstand in the bedroom “a small amount” of what he believed to

be marijuana, based on his training and experience.

¶ 17 Officer Kinsland and Officer Coker continued to clear the residence, looking in
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places where a person could hide, and made their way down an unlocked stairwell

leading to the basement. Defendant “saw [the officers] go down the steps.” From

halfway down the staircase, Officer Kinsland “saw three long guns in the corner[,] up

against the wall.” Officer Kinsland also found “a scale and some baggies” as she

searched the room. At that point, Defendant objected to the search, contending the

officers had no “right to search [the] area due to restricted access.” The officers

stopped the search and cleared the home while Detective Breedlove headed to his

office to prepare a search warrant. At no time prior to the search on 15 August 2018

did Defendant inform the probation officers of any area that “was off limits or [had]

limited access . . . .”

¶ 18 Officer Kinsland spoke with Ms. Green while Officer Kinsland waited for

Detective Breedlove to return with the search warrant. Ms. Green confided in Officer

Kinsland that “there [were] pounds of marijuana in the [basement gun] safe and there

was a lot of money . . . and some opiates and some Xanax . . . .”

¶ 19 Detective Breedlove submitted his search warrant application at 9:22 p.m., and

the search warrant was executed at 9:50 p.m. that night at Defendant’s Home.

Detective Breedlove spoke with Defendant, provided him a copy of the executed

search warrant, and read the warrant to him. The officers completed the search of

the Home and recovered, inter alia, forty-two sealed, plastic freezer bags of

marijuana; ammunition; a rifle; various pills; and a bag containing $42,594.00 in
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United States currency. Both Defendant and Ms. Green were arrested.

¶ 20 On 26 November 2018, Defendant was indicted by a Macon County grand jury

on the charges of trafficking in opium or heroin, pursuant to N.C. Gen. Stat. § 90-

95(h)(4); trafficking in marijuana, pursuant to N.C. Gen. Stat. § 90-95(h)(1); and

knowingly and intentionally maintaining a dwelling house used for keeping and/or

selling a controlled substance, pursuant to N.C. Gen. Stat. § 90-108(a)(7).

¶ 21 On 10 July 2020, the trial court entered its written suppression Order, denying

Defendant’s 25 February 2019 Verified Motion to Suppress and his 12 February 2020

Supplemental Verified Motion to Suppress. The trial court concluded, inter alia, (1)

“the search of [Ms.] Green’s premises was directly related to the purposes of her

[probation] supervision”; (2) “the probation officers who conducted the warrantless

search on August 15, 2018 reasonably believed that [Defendant’s Home] was [Ms.]

Green’s premises”; (3) “the probation officers’ viewing of [evidence, including digital

scales, marijuana, baggies, and a large gun safe in Defendant’s basement] was proper,

and was not a violation of Defendant’s statutory or constitutional rights”; and (4) the

application of the search warrant complied with the applicable statutory and

constitutional requirements and “was adequately supported by probable cause.”

¶ 22 On 2 February 2021, Defendant pled guilty to the charges of trafficking in

opium or heroin and trafficking in marijuana pursuant to a plea agreement, and the

State dismissed the remaining charge. On 8 February 2021, Defendant filed written
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notice of appeal. We note Defendant expressly reserved his right to appeal from the

Order in the plea agreement. See State v. Pimental, 153 N.C. App. 69, 74, 568 S.E.2d

867, 870 (2002) (explaining N.C. Gen. Stat. § 15A-979(b) requires a defendant to

notify the State and the trial court during plea negotiations of his or her intention to

appeal from an order denying a motion to suppress to avoid waiving the right to

appeal following a guilty plea), overruled on other grounds by, State v. Killete, 2022-

NCSC-80, ¶ 16.

II. Jurisdiction

¶ 23 Defendant contends “Judge Coward’s order denying [his] Verified Motion to

Dismiss and Supplemental Verified Motion to Dismiss is appealable to the Court of

Appeals pursuant to N.C. Gen. Stat. § 15A-979(b).” We acknowledge Defendant’s

reference to motions to dismiss in the Statement of Grounds for Appellate Review

section of his brief is a typographical error. Instead, Defendant’s appeal concerns his

Verified Motion to Suppress and Supplemental Verified Motion to Suppress. We

agree this Court has jurisdiction to address Defendant’s appeal from the Order

pursuant to N.C. Gen. Stat. § 15A-979(b) (2021).

III. Issues

¶ 24 The issues before this Court are whether the trial court erred in concluding:

(1) a probation officer’s belief as to the location of probationer Ms. Green’s premises

was reasonable, thereby supporting the officers’ authority to conduct a warrantless
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search of Defendant’s Home under N.C. Gen. Stat. § 15A-1343(b)(13); (2) the search

warrant was issued on a sufficient showing of probable cause where the officer did

not include information about Ms. Green’s credibility as an informant or the source

of her information; and (3) the warrantless search of Ms. Green’s premises was

directly related to the purposes of her supervision, as required by N.C. Gen. Stat. §

15A-1343(b)(13).

IV. Standard of Review

¶ 25 Our Court’s 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.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).

Unchallenged findings of fact “are deemed to be supported by competent evidence and

are binding on appeal.” State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011)

(citation omitted). “Conclusions of law are reviewed de novo and are subject to full

review.” Id. at 168, 712 S.E.2d at 878 (citation omitted and emphasis added).

¶ 26 At a hearing on a motion to suppress, “the burden is upon the [S]tate to

demonstrate the admissibility of the challenged evidence[.]” State v. Powell, 253 N.C.

App. 590, 595, 800 S.E.2d 745, 749 (2017) (quoting State v. Cheek, 307 N.C. 552, 557,

229 S.E.2d 633, 636 (1983)).
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V. Analysis

¶ 27 Defendant’s principal argument on appeal is the trial court erred in denying

his motion to suppress. The State contends Defendant gave implied consent to the

search of his home, the search warrant was based on probable cause, and the search

was directly related to the supervision of Ms. Green’s probation; therefore, we should

affirm the Order. After careful review, we agree with the State.

A. Reasonable Basis to Conduct Probationary Search of Defendant’s Home

¶ 28 Defendant challenges the portion of conclusion of law 9, which states, “the

probation officers had a reasonable belief that [Defendant’s Home] was [Ms.] Green’s

premises,” as not supported by findings of fact. He also challenges finding of fact 2,

which similarly states this conclusion. Because we conclude finding of fact 2 is a

conclusion of law, we review it as such, concurrently with conclusion of law 9. See

State v. Campola, 258 N.C. App. 292, 298, 812 S.E.2d 681, 687 (2018) (“If the trial

court labels as a finding of fact what is in substance a conclusion of law, we review

that ‘finding’ de novo.”).

¶ 29 The Fourth Amendment to the United States Constitution, made applicable to

the states through the Due Process Clause of the Fourteenth Amendment, protects

“[t]he right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures . . . .” U.S. Const. amend. IV; see State

v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997).
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¶ 30 “Consent . . . has long been recognized as a special situation excepted from the

warrant requirement, and a search is not unreasonable within the meaning of the

Fourth Amendment when lawful consent to the search is given.” Smith, 346 N.C. at

798, 488 S.E.2d at 213. “The question whether consent to a search was in fact

‘voluntary’ or was the product of duress or coercion, expressed or implied, is a

question of fact to be determined from the totality of all the circumstances.” State v.

Motley, 153 N.C. App. 701, 707, 571 S.E.2d 269, 273 (2002) (citation omitted). “The

standard for measuring the scope of a suspect’s consent under the Fourth

Amendment is that of ‘objective’ reasonableness—what would the typical reasonable

person have understood by the exchange between the officer and the suspect?” State

v. Stone, 362 N.C. 50, 53, 653 S.E.2d 414, 417 (2007) (quoting Florida v. Jimeno, 500

U.S. 248, 251, 111 S. Ct. 1801, 1803–04, 114 L. Ed. 2d 297, 302 (1991)).

¶ 31 A warrantless search pursuant to a probation condition has also been found to

satisfy the Fourth Amendment prohibition against unreasonable searches. United

States v. Knights, 534 U.S. 112, 121, 122 S. Ct. 587, 592, 151 L. Ed. 2d 497, 506 (2001).

“Just as other punishments for criminal convictions curtail an offender’s freedoms, a

court granting probation may impose reasonable conditions that deprive the offender

of some freedoms enjoyed by law-abiding citizens.” State v. Robinson, 148 N.C. App.

422, 428, 560 S.E.2d 154, 158 (2002) (quoting Knights, 534 U.S. at 119, 122 S. Ct. at

591, 151 L. Ed. 2d at 505).
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¶ 32 In North Carolina, a court may grant the condition of warrantless searches of

a probationer. NC. Gen. Stat. § 15A-1343(b)(13) (2021); see United States v. Midgette,

478 F.3d 616, 624 (4th Cir. 2007) (discussing how North Carolina has “narrowly

tailored” the authorization of warrantless searches under N.C. Gen. Stat. § 15A-1343

to meet the State’s needs of supervising probation “to promote [probationers’]

rehabilitation and protect the public’s safety”), writ denied, 551 U.S. 1157, 127 S. Ct.

3032, 168 L. Ed. 2d 749. Under the statute, a probationer must “[s]ubmit at

reasonable times to warrantless searches by a probation officer of the probationer’s

person and of the probationer’s vehicle and premises while the probationer is present,

for purposes directly related to the probation supervision,” as a regular condition of

probation. N.C. Gen. Stat. § 15A-1343(b)(13).

¶ 33 In his first argument, Defendant does not challenge the constitutionality of

N.C. Gen. Stat. § 15A-1343, nor does he contest that the warrantless search was made

at a reasonable time or that Ms. Green was present for the search. Rather, he argues

the probation officer’s belief that his Home was Ms. Green’s “premises” was

unreasonable. Defendant provides three reasons as support for this argument. We

consider in turn each of Defendant’s arguments as to this conclusion of law.

¶ 34 First, Defendant argues “the facts and circumstances available to [Officer]

Kinsland as of 15 August 2018 included notice that Ms. Green likely moved out of

[his Home] because [Officer] Kinsland had formed that opinion as of 24 July 2018.”
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We disagree.

¶ 35 While it is true the trial court found as fact that “[Officer] Kinsland concluded,

from her conversation with Defendant on July 24, 2018 and from seeing the bags on

the porch, that [Ms.] Green and Defendant had ‘parted ways,’” the trial court also

found as fact: (1) Officer Kinsland saw Ms. Green in Defendant’s front yard five days

later, on 29 July 2018, during a home contact; (2) Ms. Green told Officer Kinsland

during this 29 July 2018 visit that she and Defendant “were doing a lot better and

were trying to work things out”; and (3) Ms. Green again verified her address as the

Home on 6 August 2018. Based on the events subsequent to 24 July 2018, Officer

Kinsland could reasonably conclude Ms. Green and Defendant had reconciled since

24 July 2018, and the couple continued to cohabitate in late July 2018.

¶ 36 Second, Defendant argues Officer Kinsland failed to verify Ms. Green moved

back in with Defendant before 15 August 2018 by speaking with Defendant, observing

Ms. Green’s daughter in the house, verifying Ms. Green had a key to the house, or

entering the house. We disagree and conclude such actions were not necessary for

Officer Kinsland to form a reasonable belief that Defendant’s Home was Ms. Green’s

premises.

¶ 37 Officer Kinsland not only confirmed with Ms. Green that she was living in

Defendant’s Home at least three times between 24 July 2018 and 15 August 2018,

but Officer Kinsland performed a home contact on 29 July 2018 where Officer
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Kinsland found Ms. Green standing in the front yard of the Home. Additionally, Ms.

Green told Officer Kinsland on a least two occasions she made up with Defendant.

Therefore, it was reasonable for Officer Kinsland to conclude Defendant’s Home was

Ms. Green’s premises on 15 August 2018.

¶ 38 Third, Defendant argues it was unreasonable for Officer Kinsland to rely on

Ms. Green’s assertion of her home address because “Ms. Green had proven to be

untruthful and uncredible.” We disagree.

¶ 39 Here, unchallenged findings of fact 9, 11, 18(a)-(f), 18(h)-(j), 18(l)-(m), 18(r),

18(t), 18(v)-(x), 18(z), 19, 33, 35, 38, and 42 demonstrate that before 15 August 2018,

Ms. Green verified to her probation officer that her premises was Defendant’s Home

on at least nine occasions; Ms. Green had never provided an address to her probation

officer other than that of the Home from September 2017 to August 2018; Ms. Green

never denied living at the Home; and Ms. Green’s supervising probation officer made

at least one other warrantless search of the Home in the presence of Ms. Green and

Defendant to which Defendant did not object. Moreover, Defendant replied he

“understood” when Officer Kinsland advised him the officers were at his Home to

perform a warrantless search on the evening of 15 August 2018. A reasonable person

having such an exchange with another’s probation officer would have notified the

officer that the probationer no longer resided at the address—if that were true. See

Stone, 362 N.C. at 58, 653 S.E.2d at 417. Based on the totality of the circumstances,
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Defendant’s response to Officer Kinsland indicated his implied consent to the search

of his Home. See Motley, 153 N.C. App. at 707, 571 S.E.2d at 273. Lastly, the above

findings support the conclusion “the probation officers had a reasonable belief that

the [Home] was [Ms.] Green’s premises”; therefore, finding of fact 2 and this portion

of conclusion of law 9 are binding on appeal. See Cooke, 306 N.C. at 134, 291 S.E.2d

at 619.

B. Substantial Basis for Concluding Probable Cause Existed

¶ 40 Next, Defendant challenges conclusion of law 21, which provides “[t]he

affidavit prepared by Detective Breedlove was adequate to establish probable cause

for a search of the Defendant’s residence,” on the basis it is not sufficiently supported

by findings of fact. Likewise, Defendant argues finding of fact 61 is not supported by

competent evidence. The State contends the trial court properly concluded the search

warrant was based on probable cause by considering only the facts in the affidavit

that the trial court found to be “operative and competent,” and excluded the

remaining facts. After careful review, we agree with the State.

¶ 41 “The common-sense, practical question of whether probable cause exists must

be determined by applying a totality of the circumstances test.” State v. Benters, 367

N.C. 660, 664, 766 S.E.2d 593, 597 (2014) (citation omitted). Our Supreme Court

explained that under the totality of the circumstances test,

[t]he task of the issuing magistrate is simply to make a
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practical, common sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the “veracity” and “basis of knowledge” of
persons supplying hearsay information, there is 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 . . . conclud[ing]” that probable cause
existed.

State v. Arrington, 311 N.C. 633, 638, 319 S.E.2d 254, 257–58 (1984) (citation

omitted).

¶ 42 “The affidavit is sufficient if it supplies reasonable cause to believe that the

proposed search for evidence probably will reveal the presence upon the described

premises of the items sought and that those items will aid in the apprehension or

conviction of the offender.” Id. at 636, 319 S.E.2d at 256 (citation omitted).

“Reviewing courts should give great deference to the magistrate’s determination of

probable cause and should not conduct a de novo review of the evidence to determine

whether probable cause existed at time the warrant was issued.” State v. Greene, 324

N.C. 1, 9, 376 S.E.2d 430, 436 (1989) (emphasis added and citations omitted), vacated

on other grounds by, 494 U.S. 1022, 110 S. Ct. 1465, 108 L. Ed. 2d 603 (1990).

¶ 43 In State v. Stinson, our Court considered the issue of whether the inclusion of

an informant’s tip without a proper basis invalidated a search warrant affidavit

where the affiant also included substantial personal observations. 39 N.C. App. 313,

249 S.E.2d 891, disc. rev. denied, 296 N.C. 739, 254 S.E.2d 180 (1979). We reasoned
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it was not necessary to consider the reliability of the informant or understand where

the informant obtained the information when it was clear “the affiant did not rely

heavily on th[e] hearsay information, and the magistrate’s finding of probable cause

could not have been based primarily on the hearsay.” Id. at 318, 249 S.E.2d at 894.

“Where the affiant relies heavily on an informant’s tip[,] the two-prong test of Aguilar

v. Texas, 378 U.S. 108, [84 S. Ct. 1509], 12 L. Ed. 2d 723 (1964) and Spinelli v. United

States, 393 U.S. 410, [89 S. Ct. 584], 21 L. Ed. 2d 637 (1969), must be met.” Id. at

317, 249 S.E.2d at 893–94; see Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317,

2332, 76 L. Ed. 2d 527, 548 (replacing the two-prong test of Aguilar and Spinelli with

the totality of the circumstances test). We vacated and remanded the order

suppressing evidence, concluding the personal observations described in the search

warrant affidavit provided the magistrate with sufficient facts and circumstances to

establish probable cause. Stinson, 39 N.C. App. at 319, 249 S.E.2d at 894–95.

¶ 44 In the case sub judice, we conclude the affiant, Detective Breedlove, did not

“rely heavily” on Ms. Green’s statements, and the trial court properly considered

Detective Breedlove’s personal observations in concluding probable cause existed.

See id. at 318, 249 S.E.2d at 894.

¶ 45 Here, the affiant, Detective Breedlove, described his approximate fourteen

years in law enforcement, including his education, training, and experience.

Detective Breedlove swore to have experience in investigating the distribution of
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prescription medication, the manufacture of marijuana, and drug trafficking. He also

swore to have “considerable training and experience in relation to the possession, sale

and distribution of controlled substances in and around the Macon County and

Western North Carolina area.”

¶ 46 The affidavit described Detective Breedlove taking a call from Officer Sutton

who told him that Ms. Green made a voluntary statement to Officer Sutton that she

was in possession of a large amount of opioids and $1,000.00 in cash. Although the

information from Officer Sutton was hearsay, a magistrate could have reasonably

found Officer Sutton to be a credible source who obtained the knowledge regarding

Ms. Green from her direct observations. See Arrington, 311 N.C. at 638, 319 S.E.2d

at 257–58.

¶ 47 The affidavit indicated Detective Breedlove met with the probation officers and

Ms. Green where they recovered a bag of pills, identified as “oxycodone hydrochloride

30 mg tablets.” Detective Breedlove accompanied the probation officers to Ms.

Green’s residence where they conducted a warrantless search and found a plastic bag

“containing green vegetable like matter in a dresser.” In a downstairs room, the

officers found in plain view a gun safe, “scales with marijuana,” and firearms.

Thereafter, the officers confirmed Defendant was “a convicted felon out of Florida.”

¶ 48 Finally, the affidavit stated the probation officers “gained information from

[Ms.] Green that she has known of large amounts of marijuana in the [H]ome,” she
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“believes that . . . drugs are in the [H]ome currently,” and that Defendant is a

convicted felon. We note, however, the affidavit does not consider the reliability of

Ms. Green or the grounds upon which she formed her belief that drugs could be found

in the Home on 15 August 2018. See Arrington, 311 N.C. at 638, 319 S.E.2d at 257–

58; see also State v. Crawford, 104 N.C. App. 591, 596, 410 S.E.2d 499, 501 (1991) (“If

the affidavit is based on hearsay information, then it must contain the circumstances

underlying the informer’s reliability and the basis for the informer’s belief that a

search will uncover the objects sought by the police.”).

¶ 49 Notwithstanding the inclusion of informant information lacking a proper basis,

the affidavit demonstrates Detective Breedlove did not “rely heavily” on the hearsay

information provided by Ms. Green; thus, we need not consider the propriety of these

statements. See Stinson, 39 N.C. App. at 317, 249 S.E.2d at 893–94. Rather,

Detective Breedlove details the personal observations he made as well as the direct

observations of Officer Sutton, which prompted her call to Detective Breedlove. These

observations provided the magistrate with a substantial basis for finding the

existence of probable cause. See Stinson, 39 N.C. App. at 317, 249 S.E.2d at 893;

Arrington, 311 N.C. at 638, 319 S.E.2d at 257–58.

¶ 50 Further, the trial court, which was charged with the duty of evaluating the

facts and applying the appropriate legal standards, properly disregarded the

information gained from Ms. Green’s hearsay statements. See State v. McKinney, 361
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N.C. 53, 63, 637 S.E.2d 868, 875 (2006) (considering the trial court’s legal and factual

basis for denying the defendant’s motion to suppress where the search warrant

affidavit included tainted information). In its Order, the trial court made the

following pertinent findings of fact:

59. Although the application for the search warrant
contains a lot of other information, on its face, the operative
and competent facts are (paraphrased):

a. That in the course of a warrantless probation
search of the residence of [Ms.] Green, marijuana
had been found in an upstairs bedroom before there
([the Home]).

b. That in the course of the warrantless probation
search, probation officers had opened an interior
door that allowed access to the downstairs area of
the home, and downstairs they had seen “digital
scales with marijuana” on a bed in the basement.

c. That probation officers had seen a large gun safe
in the basement.

d. That the owner of the house is a convicted felon.

e. That individuals in the driveway of the residence
admitted to possession of marijuana in the truck
parked with them in the driveway.

60. The operative and competent facts stated above are
based in part on what was told to Detective Breedlove by
probation officers.

61. The operative and competent facts stated above do not
include, and are not based upon, statements by [Ms.] Green
as to what she believed to be in the house, because she did
not state how she came to know such information and her
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credibility is highly questionable.

¶ 51 The trial court then made the following pertinent conclusions of law:

21. The affidavit prepared by Defendant Breedlove was
adequate to establish probable cause for a search of
Defendant’s residence.

....

23. It was acceptable for Detective Breedlove to base his
affidavit on statements by fellow probation officers as to
what they personally saw in plain view.

24. The court concludes that the application for the search
warrant in this matter complied with the requirements of
[N.C. Gen. Stat. §] 15A-244, the Fourth Amendment of the
United States Constitution, Article I, Section 20 of the
North Carolina Constitution, and related case law, and
that the search warrant was adequately supported by
probable cause.

(Citations omitted).

¶ 52 These findings and conclusions tend to show the trial court considered the facts

and circumstances set forth in the affidavit, and properly determined the weight to

be given to Ms. Green’s statements. See Arrington, 311 N.C. at 638, 319 S.E.2d at

257–58. In finding of fact 61, the trial court identified Ms. Green’s statements as

hearsay, found Ms. Green’s credibility “highly questionable,” and found Ms. Green

did not provide the source of her information. The officers’ testimonies regarding Ms.

Green and the search warrant affidavit support finding of fact 61. See Cooke, 306

N.C. at 134, 291 S.E.2d at 619.
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¶ 53 Finding of fact 59 outlines the “operative and competent facts” considered by

the trial court, which provided probable cause to believe criminal activity was afoot

in the Home. See Arlington, 311 N.C. at 636, 319 S.E.2d at 256. Moreover, finding

of fact 59 is not challenged on appeal; thus, it is “deemed to be supported by competent

evidence and [is] binding on appeal.” See Biber, 365 N.C. at 168, 712 S.E.2d at 878.

Therefore, the trial court did not err in concluding Detective Breedlove’s personal

observations set out in the search warrant affidavit were sufficient to establish

probable cause for a search of the Home. See Arrington, 311 N.C. at 638, 319 S.E.2d

at 257–58; Stinson, 39 N.C. App. at 318, 249 S.E.2d at 894.

C. Warrantless Search Directly Related to Probation Supervision

¶ 54 Finally, Defendant argues the trial court erred in concluding the warrantless

search of his Home was “directly related” to the purposes of Ms. Green’s probation

supervision, as mandated by N.C. Gen. Stat. § 15A-1343(b)(13). Relying on State v.

Powell, 253 N.C. App. 590, 800 S.E.2d 745 (2017), Defendant further argues the

search was unlawful because the officers’ testimonies revealed their “warrantless

search included a purpose of investigating potential criminal conduct from which new

charges against Ms. Green could be derived.” (Emphasis added). The State argues

the warrantless search was directly related to Ms. Green’s probation supervision

because ascertaining whether and to what extent Ms. Green was not in compliance

with the terms and conditions of her probation were the duties of the supervising
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probation officer. We agree with the State.

¶ 55 Under N.C. Gen. Stat. § 15A-1343, a probation officer may search a

probationer’s premises as a regular condition of probation when the probationer is

present and “for purposes directly related to the probation supervision . . . .” N.C. Gen.

Stat. § 15A-1343(b)(13) (emphasis added). In Powell, this Court interpreted the

General Assembly’s 2009 amendment to N.C. Gen. Stat. § 15A-1343(b)(13), changing

the phrase “for purposes reasonably related to the probation supervision” to “for

purposes directly related to the probation supervision . . . .” Powell, 253 N.C. App. at

599–00, 800 S.E.2d at 751 (emphasis added) (“The word “directly” has been defined

as “in unmistakable terms.”). The Powell Court explained that this amendment

demonstrated the General Assembly’s intent “to impose a higher burden on the State

in attempting to justify a warrantless search of a probationer’s home than that

existing under the former language of this statutory provision.” Id. at 600, 800 S.E.2d

at 751 (emphasis removed).

¶ 56 In Powell, the defendant argued the trial court erred in denying his motion to

suppress evidence obtained in a warrantless search of his home. Id. at 593, 800

S.E.2d at 748. Specifically, he argued the warrantless search was not “directly

related” to the supervision of his probation, as required by N.C. Gen. Stat. § 15A-1343

(b)(13). Id. at 591, 800 S.E.2d at 746–47. This Court concluded the search was

unlawful because the State failed to meet its burden of showing the warrantless
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search complied with N.C. Gen. Stat. § 15A-1343(b)(13). Id. at 605, 800 S.E.2d at

754. To reach that conclusion, we carefully considered the testimonies of the officers

who searched the defendant’s home since this was the evidence upon which the State

relied to argue the search was valid. Id. at 595, 800 S.E.2d at 749. The testimony

revealed the search of the defendant’s home was initiated by a United States

Marshal’s Service task force as part of an ongoing operation “targeting violent

offenses involving firearms and drugs.” Id. at 604, 800 S.E.2d at 753 (emphasis

removed). The record did not show the “[d]efendant’s own probation officer was even

notified—much less consulted—regarding the search of [the d]efendant’s home.” Id.

at 604 n.3, 800 S.E.2d at 753 n.3. Additionally, the officers were not aware of the

defendant engaging in any illegal activity prior to or at the time of the search. Id. at

597, 800 S.E.2d at 750. Importantly, the testimony failed to show the search was

“directly related” to the supervision of the defendant’s probation. Id. at 605, 800

S.E.2d at 754. Thus, the warrantless search was investigatory in nature rather than

“supervisory” and was therefore unlawful. Id. at 604–05, 800 S.E.2d at 754.

¶ 57 In this case, the record evidence and testimony at the suppression hearing

show Ms. Green was placed on supervised probation for eighteen months in

September 2017, pursuant to a judgment entered by the Macon County District

Court. In December 2017, the Macon County Superior Court entered a judgment

against Ms. Green for the conditional discharge of felony drug possession charges,
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pursuant to N.C. Gen. Stat. § 90-96(a1). The conditional discharge included twelve

months of supervised probation under regular probation conditions as well as special

conditions, including Ms. Green enroll in a “drug education school.” On 15 August

2018, Ms. Green tested positive for cocaine, THC, and opiates—violating an express

regular condition of her probation: to “[n]ot use, possess, or control any illegal drug

or controlled substance . . . .” See N.C. Gen. Stat. § 15A-1343(b)(15) (2021). According

to Officer Kinsland, Ms. Green was acting nervously and tested positive for cocaine

for the first time while under Officer Kinsland’s probation supervision. During the

search of Ms. Green’s vehicle, a bag of oxycodone pills was found on her person, which

led Officer Kinsland to search Ms. Green’s premises.

¶ 58 The facts of the instant case are readily distinguishable from Powell because

here, Ms. Green’s probation officer prompted the search in direct response to Ms.

Green’s actions, which not only violated her probation conditions but were also

unlawful. Conversely, in Powell, a distinct law enforcement agency task force

initiated the search, using “a random selection of offenders,” to further its own goals.

Powell, 253 N.C. App. at 592, 597, 800 S.E.2d at 747, 750; see also State v. Jones, 267

N.C. App. 615, 625–26, 834 S.E.2d 160, 167–68 (2019) (distinguishing the facts of the

case from State v. Powell partly because the search in Powell was conducted by a

separate law enforcement agency serving its own purpose). Furthermore, Officer

Kinsland had reason to believe Ms. Green was engaging in illegal activity and
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violating the conditions of her probation following her positive drug screen and

vehicle search. These events caused Officer Kinsland to expand the scope of her

search to Ms. Green’s premises to determine the nature and extent of Ms. Green’s

probation violations.

¶ 59 In reviewing the testimony of the officers, Detective Breedlove testified he was

present at the search of the Home to both “investigate new criminal behavior” and

“to assist probation.” He did not actually take part in the search of the Home or enter

the residence until contraband was found. Although the search may have served two

purposes, (1) to further the supervisory goals of probation, and (2) to investigate other

potential criminal behavior, we conclude the dual purpose of the search did not make

the search unlawful under N.C. Gen. Stat. § 1343(b)(13).

¶ 60 When asked on cross examination if she had training as to the meaning of

“directly related to the probation supervision,” Officer Sutton testified:

Well, yes. And that would be, like you said, [Ms. Green]
was on probation for larcenies and for forgery. It is well
established early that she had drug addiction, which that
addiction could have been related to these larcenies, could
have been related to these forgeries.

So when [Ms. Green] presented a problem with the drug
addiction, she was referred to treatment, and we made
proper steps. Then on the day in question, the 15th of
August when she came in and she not only failed her drug
screen, but she possessed an illegal substance on her at
that time, to me that just opened the door on into the
residence.
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¶ 61 Officer Kinsland testified it is common for probation officers to request law

enforcement assistance when drugs are found or when there is evidence of a crime

because probation officers cannot bring charges—they can only enter probation

violations, which are later approved by the chief probation officer and served on the

probationer. Officer Kinsland, Ms. Green’s supervising probation officer, led the

search of the Home although other officers, including Detective Breedlove and Officer

Sutton, were present at the Home. Officer Kinsland testified on cross examination

that she and the other officers “just upped the search” to Ms. Green’s premises

following the positive drug screen and the search of Ms. Green’s vehicle, where “a

trafficking amount” of opiate pills was found.

¶ 62 Further, we note Detective Breedlove’s and the deputies’ presence at the scene

of the warrantless search of the premises did not invalidate the search under N.C.

Gen. Stat. § 1343(b)(13). See State v. Howell, 51 N.C. App. 507, 509, 277 S.E.2d 112,

114 (1981) (rejecting the defendant’s argument that the presence of police officers to

help with the warrantless search pursuant to N.C. Gen. Stat. § 1343(b) made the

search unreasonable).

¶ 63 Lastly, Defendant does not challenge finding of fact 33, which states Officer

Kinsland’s purpose in performing the warrantless search of Ms. Green’s premises was

to “determin[e] if [Ms.] Green was trafficking in controlled substances, with the goal

of minimizing recidivism and helping her successfully complete her probation . . . .”
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The trial court also made findings, not challenged on appeal, regarding the events

that led to the officers’ decision to search her premises, including the positive drug

screen and vehicle search incident, which are not challenged on appeal. Therefore,

these findings “are deemed to be supported by competent evidence and are binding

on appeal.” See Biber, 365 N.C. at 168, 712 S.E.2d at 878. The findings in turn

support the trial court’s conclusion “that the search of [Ms. Green’s] premises was

directly related to the purposes of her supervision.” Id. at 168, 712 S.E.2d at 878.

¶ 64 Therefore, the trial court did not err in concluding the warrantless search of

Ms. Green’s premises was “directly related” to her probation supervision under

Officer Kinsland. See N.C. Gen. Stat. § 1343(b)(13); see also Powell, 253 N.C. App. at

595, 800 S.E.2d at 749.

VI. Conclusion

¶ 65 We hold the trial court did not err in concluding the warrantless search of the

Home was authorized by N.C. Gen. Stat. § 1343(b)(13) because the State met its

burden of showing that the Home was Ms. Green’s premises and that the search was

directly related to Ms. Green’s probation supervision. In addition, we hold the trial

court did not err in concluding the affidavit prepared by Detective Breedlove was

adequate to establish probable cause for a search of Defendant’s Home. Accordingly,

we affirm the Order.

AFFIRMED.
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Judges MURPHY and JACKSON concur.