State v. Byrd

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-905

No. COA22-527

Filed 29 December 2022

Johnston County, Nos. 18CRS056157-58; 18CRS001857

STATE OF NORTH CAROLINA

v.

BOBBY LESHAWN BYRD

Appeal by Defendant from order entered 29 July 2021 by Judge James

Ammons in Johnston County Superior Court. Heard in the Court of Appeals 16

November 2022.

Attorney General Joshua H. Stein, by Special Deputy Attorney General John F.
Oates, Jr., for the State-Appellee.

Drew Nelson for Defendant-Appellant.

COLLINS, Judge.

¶1 Defendant Bobby Leshawn Byrd appeals the trial court’s order denying his

motion to suppress evidence obtained during the search of his cellphone. Defendant

argues that probable cause did not support issuing a warrant to search the cellphone.

We affirm the trial court’s order.

I. Background

¶2 Defendant was arrested on 7 October 2018 and subsequently indicted for first
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degree burglary, first degree kidnapping, robbery with a dangerous weapon,

conspiracy to commit those offenses, and having attained violent habitual felon

status. Prior to trial, Defendant moved to suppress all evidence obtained from the

search of his cellphone. The motion to suppress came on for hearing on 26 July 2021.

The trial court heard arguments and considered the search warrant application,

which included the affidavit of Detective R. L. Ackley.

¶3 The facts as alleged in Ackley’s affidavit tended to show that, on the night of

13 September 2018, deputies from the Johnston County Sheriff’s Department

responded to a call regarding a suspicious vehicle and shooting investigation. Upon

arriving in the area, a deputy was flagged down by Zachary McNeill, who stated that

he was the victim of a home invasion. McNeill said that two unknown black men

kicked in the door to his mobile home, fired multiple shots into his home, bound

McNeill’s hands, covered his face, and hit him in the head with a pistol. After

approximately one hour had passed, and once McNeill no longer heard the men’s

voices, McNeill fled out the front door of his home. McNeill reported that the men

stole an Xbox, cash, clothing, and a distinct red and black Tourister suitcase that had

been gifted to McNeill by his employer.

¶4 One of McNeill’s neighbors heard gunshots coming from McNeill’s home and

drove to investigate the disturbance. The neighbor noticed an older-model, dark

colored Lexus with chrome rims parked near McNeill’s home, and he provided
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deputies with a description of the car and the driver. That same night, in a separate

incident, Defendant was shot in the leg while at a Comfort Inn and then transported

to the hospital in an older-model dark Lexus with chrome rims. Ackley was made

aware of the similarity between the car observed near McNeill’s home and the car

that transported Defendant to the hospital, and he obtained a photo of the car that

transported Defendant to the hospital. McNeill’s neighbor reviewed the photo, and

immediately identified the car as the same one he saw parked near McNeill’s home.

Ackley seized the car and contacted its registered owner, Latasha Surles. Surles

consented to a search of her car, a 1998 black Lexus 400 with chrome rims. Law

enforcement searched the Lexus, and they found a white LG cellphone and a red and

black Tourister suitcase. Surles was later interviewed by law enforcement, wherein

she stated that Defendant, who is her cousin, owns a white LG cellphone that was

missing. She explained that she loaned her Lexus to a man named Elias Sanders on

the night of the home invasion, but that she did not know what Sanders “used her

vehicle for or who was with him.”

¶5 Following the parties’ arguments, the trial court entered a written order

denying Defendant’s motion to suppress. The case came on for trial on 6 October

2021, and Defendant again moved to reconsider the denial of the motion to suppress.

The trial court denied Defendant’s motion. The jury found Defendant guilty of first

degree burglary, first degree kidnapping, robbery with a firearm, and of being a
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violent habitual felon. The trial court sentenced Defendant to the mandatory term of

life in prison without parole. Defendant gave proper oral notice of appeal in open

court.

II. Discussion

¶6 Defendant argues that the trial court improperly denied his motion to suppress

the evidence collected from the cellphone because the search warrant was not

supported by probable cause. Specifically, Defendant argues that the affidavit in

support of the warrant failed to allege sufficient facts to show a nexus between

Defendant’s cellphone and the home invasion. We disagree.

¶7 This Court reviews a trial court’s denial of a motion to suppress to determine

“whether the trial court’s findings of fact are supported by the evidence and whether

the findings of fact support the conclusions of law.” State v. Wiles, 270 N.C. App. 592,

595, 841 S.E.2d 321, 325 (2020) (citation omitted). Unchallenged findings of fact are

binding on appeal. State v. Fizovic, 240 N.C. App. 448, 451, 770 S.E.2d 717, 720

(2015). A trial court is only required to make a finding of fact “when there is a

material conflict in the evidence,” State v. Bartlett, 368 N.C. 309, 312, 776 S.E.2d 672,

674 (2015), and this Court may consider such undisputed evidence when determining

whether the trial court’s conclusions of law are supported. State v. Wiggins, 210 N.C.

App. 128, 138, 707 S.E.2d 664, 672 (2011). We review the trial court’s conclusions of

law de novo. Wiles, 270 N.C. App. at 595, 841 S.E.2d at 325.
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¶8 The Fourth Amendment provides: “The right of the people to be secure in

their . . . effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.” U.S. Const. amend. IV. However, “what the Constitution forbids

is not all searches and seizures, but unreasonable searches and seizures.” State v.

Ladd, 246 N.C. App. 295, 301, 782 S.E.2d 397, 401 (2016) (quotation marks and

citations omitted). “[A] search occurs when the government invades reasonable

expectations of privacy to obtain information.” State v. Perry, 243 N.C. App. 156, 167,

776 S.E.2d 528, 536 (2015) (citation omitted). In order to determine whether an

individual possesses a reasonable expectation of privacy, this Court must consider

whether (1) “the individual manifested a subjective expectation of privacy” and (2)

“society is willing to recognize that expectation as reasonable.” Id. (quotation marks

and citation omitted).

¶9 The Supreme Court of the United States has acknowledged that substantial

privacy concerns are implicated in the search of a cellphone, holding that law

enforcement must first obtain a warrant in order to search the contents of a

cellphone—even when a cellphone is seized in a search incident to a lawful arrest.

Riley v. California, 573 U.S. 373 (2014); see Ladd, 246 N.C. App. at 302, 782 S.E.2d

at 402 (holding that officers “must generally secure a warrant before searching a cell
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phone seized incident to arrest” as “serious privacy concerns arise in the context of

searching digital data”). A valid search warrant must be based on probable cause,

and our courts examine the totality of the circumstances to determine whether such

probable cause exists. State v. Worley, 254 N.C. App. 572, 576, 803 S.E.2d 412, 416

(2017). Probable cause means that our courts “must make a practical, common-sense

decision based on the totality of the circumstances, whether there is a fair probability

that evidence will be found in the place to be searched.” Worley, 254 N.C. App. at

576, 803 S.E.2d at 416 (quotation marks, brackets, and citations omitted). This Court

has held that affidavits “must establish a nexus between the objects sought and the

place to be searched.” State v. McCoy, 100 N.C. App. 574, 576, 397 S.E.2d 355, 357

(1990) (citations omitted).

¶ 10 Here, the trial court made the following relevant, unchallenged findings of fact

to support the denial of Defendant’s motion to suppress:

8. On 13 September 2019, officers responded to a
suspicious vehicle complaint on Pine Level Road in
Smithfield, North Carolina.
9. During the investigation into the suspicious vehicle,
Zachary McNeil[l] advised officers of a home invasion.
10. Mr. McNeil[l] advised that two unknown black males
entered his house, tied him up, ransacked his house, and
stole items from his home.
11. The stolen items included one thousand dollars, men’s
clothing, and a red and black Tourister suitcase.
12. An independent witness advised officers that he saw
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an older modeled, dark in color Lexus with chrome rims
leaving the scene of the home invasion.
13. Later that morning, a black male was brought to the
emergency room of Johnston Memorial Hospital with a
gunshot wound. The black male was brought to the
hospital in a dark in color Lexus with chrome rims.
14. The officers’ investigation led them to a 1998 black
Lexus 400 with the license plate number EJT-1456.
15. A picture of the Lexus was taken and shown to the
witness who saw the car, who identified the car as the car
he saw leaving the scene of the home invasion.
16. Detective Ackley then seized the car and interviewed
the owner.
17. The owner of the Lexus provided Detective Ackley
consent to search the car.
18. While searching the car, Detective Ackley found a
white in color LG phone and a red and black Tourister
suitcase.
....
20. The search warrant affidavit provides considerable
information regarding the Affiant’s knowledge of how
evidence can be stored and hidden on cell phones.
21. The Affiant listed the item to be searched as the LG
white in color cell phone found in the 1998 black Lexus.

¶ 11 These unchallenged findings of fact support the trial court’s conclusion of law

that the search warrant was based on probable cause because these findings show

that: McNeill reported that he was the victim of a home invasion and that, among

other things, a distinct red and black Tourister suitcase was stolen from his home; a

neighbor provided eyewitness testimony that he saw an older-model, dark Lexus with
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chrome rims near McNeill’s home at the time of the invasion; that same neighbor

later positively identified the 1998 black Lexus 400 with chrome rims as the same

vehicle that left the scene of the home invasion; Defendant was taken to the hospital

in a dark in color Lexus with chrome rims; and the white LG cellphone was discovered

in the Lexus, along with the specific red and black Tourister suitcase that was taken

from McNeill’s home. These findings show the requisite nexus between Defendant’s

white LG cellphone and the home invasion. See McCoy, 100 N.C. App. at 576, 397

S.E.2d at 357.

¶ 12 Moreover, the trial court’s conclusion of law is further supported by the

undisputed facts established by Surles’ interview with law enforcement. Wiggins,

210 N.C. App. at 138, 707 S.E.2d at 672. Surles explained that: she was the owner of

the Lexus; she loaned the car to Elias Sanders during the morning hours of 13

September 2018; and Defendant was her cousin and the owner of a white LG

cellphone that was missing as of the time of the interview. After Surles provided

consent to search the car, law enforcement found both the white LG cellphone and

the distinct red and black Tourister suitcase in the car. Under the totality of the

circumstances, these facts show a nexus between Defendant’s white LG cellphone and

the home invasion. Worley, 254 N.C. App. at 576, 803 S.E.2d at 416; McCoy, 100 N.C.

App. at 576, 397 S.E.2d at 357.
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III. Conclusion

¶ 13 As the evidence here supports the findings of fact, and the findings of fact

support the trial court’s conclusion of law that “[t]he search warrant of the seized cell

phone was based on sufficient probable cause,” we affirm the trial court’s denial of

Defendant’s motion to suppress. Wiles, 270 N.C. App. at 595, 841 S.E.2d at 325.

AFFIRMED.

Judges DIETZ and MURPHY concur.