IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-1229
Filed: 15 August 2017
Forsyth County, Nos. 15 CRS 390, 15 CRS 52988
STATE OF NORTH CAROLINA
v.
MARCUS MARCEL SMITH, Defendant.
On certiorari review of judgment entered 12 April 2016 by Judge John O. Craig
III in Forsyth County Superior Court. Heard in the Court of Appeals 7 June 2017.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Adrian
W. Dellinger, for the State.
Yoder Law PLLC, by Jason Christopher Yoder, for defendant-appellant.
ELMORE, Judge.
Three police officers entered defendant’s apartment to execute arrest warrants
issued for misdemeanor offenses. While two officers made the in-home arrest, the
other officer conducted a protective sweep of defendant’s apartment, leading to the
discovery and seizure of a stolen shotgun. Defendant moved to suppress the shotgun
as evidence obtained through an unlawful search and seizure, arguing that the officer
lacked authority to conduct the protective sweep, and the seizure could not be
justified under the “plain view” doctrine. The trial court denied defendant’s motion
to suppress. After the ruling, defendant pleaded guilty to possession of a firearm by
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Opinion of the Court
a felon and, pursuant to defendant’s plea arrangement, the court dismissed the
charge of possession of a stolen firearm.
We allowed defendant’s petition for writ of certiorari to review the trial court’s
order denying his motion to suppress. Upon review, we hold that (1) the officer was
authorized to conduct the protective sweep, without reasonable suspicion, because
the rooms in the apartment—including the bedroom where the shotgun was found—
were areas “immediately adjoining the place of arrest from which an attack could be
immediately launched,” Maryland v. Buie, 494 U.S. 325, 334, 110 S. Ct. 1093, 1098,
108 L. Ed. 2d 281, 286 (1990); and (2) because the officer lacked probable cause to
believe that the shotgun was contraband “without conducting some further search of
the object,” “ ‘its incriminating nature [was not] immediately apparent’ ” and “the
plain-view doctrine cannot justify its seizure,” Minnesota v. Dickerson, 508 U.S. 366,
375, 113 S. Ct. 2130, 2137, 124 L. Ed. 2d 334, 345 (1993) (quoting Horton v. California,
496 U.S. 128, 136, 110 S. Ct. 2301, 2308, 110 L. Ed. 112, 123 (1990)) (citing Arizona
v. Hicks, 480 U.S. 321, 107 S. Ct. 1149, 94 L. Ed. 2d 347 (1987)). Reversed.
I. Background
In January 2015, Officer Paier assumed a caseload of low-risk supervisees
including defendant, who was on probation for impaired driving. During a routine
absconder check, Officer Paier discovered outstanding arrest warrants against
defendant for absconding probation and failing to appear at a scheduled court date.
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Opinion of the Court
He verified defendant’s current address and relayed the information to dispatch.
Officer Joyce of the Kernersville Police Department assembled a squad, consisting of
Officers Stokes, Ziglar, and Castle, to execute the arrest warrants.
On 1 April 2015, at approximately 11:00 p.m., the officers arrived at
defendant’s apartment complex. Officer Stokes staged with a K-9 in a back hallway
of the multi-unit building, while the other officers approached the front door of
defendant’s unit. When Officer Joyce knocked, defendant opened the door cautiously,
in his underwear, and confirmed his identity. Officers Ziglar and Castle entered the
apartment and immediately placed defendant in custody as Officer Joyce, wearing a
mounted body camera, conducted a protective sweep of the other rooms.
The front door of the apartment leads directly into the living room. The living
room opens up on the back right corner, opposite the doorway, leading directly into
the kitchen. A short hallway, spanning only a few feet, runs perpendicular in between
the living room and the kitchen. The hallway is visible from the front door and more
closely resembles the center of a four-way intersection, connecting every room inside
the apartment: The living room and kitchen to the south, a bathroom to the east, an
empty bedroom to the north, and defendant’s bedroom to the west.
Officer Joyce stated that he conducted the sweep for the officers’ safety, only
searching areas where individuals might be hiding. During the sweep, he saw a
shotgun leaned up against a wall in the entryway of defendant’s bedroom. The
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Opinion of the Court
bedroom door was open and the shotgun was visible, in plain view, from the hallway.
Officer Joyce walked past the shotgun to check defendant’s bedroom, confirming there
were no other occupants in the apartment. The entire sweep took less than two
minutes.
After completing the sweep, Officer Joyce secured the shotgun “to have it in
our control and also check to see if it was stolen.” Once he confirmed the shotgun was
unloaded, he carried it into the living room, where defendant stood near the front
door, his hands cuffed behind his back, surrounded by Officers Ziglar and Castle.
Officer Joyce placed the shotgun on a couch, used his flashlight to examine the
receiver, and then turned over the shotgun to expose its serial number, which he
immediately called into Communications. When Communications reported the
shotgun stolen, the officers seized the weapon.
II. Discussion
Defendant argues that the trial court erred in denying his motion to suppress.
Our review of a trial court’s denial of a suppression motion 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). “The trial court’s
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Opinion of the Court
conclusions of law . . . are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200,
208, 539 S.E.2d 625, 631 (2000).
A. The Protective Sweep
Defendant first challenges the protective sweep of his apartment. “A
‘protective sweep’ is a quick and limited search of premises, incident to an arrest and
conducted to protect the safety of police officers or others.” Maryland v. Buie, 494
U.S. 325, 327, 110 S. Ct. 1093, 1094, 108 L. Ed. 2d 276, 281 (1990), cited in State v.
Bullin, 150 N.C. App. 631, 640, 564 S.E.2d 576, 583 (2002). To be lawful, the sweep
must be “narrowly confined to a cursory visual inspection of those places in which a
person might be hiding.” Buie, 494 U.S. at 327, 110 S. Ct. at 1094, 108 L. Ed. 2d at
281. In Buie, the U.S. Supreme Court articulated two scenarios in which police
officers may conduct a protective sweep. First, incident to an arrest, officers may, “as
a precautionary matter and without probable cause or reasonable suspicion, look in
closets and other spaces immediately adjoining the place of arrest from which an
attack could be immediately launched.” Id. at 334, 110 S. Ct. at 1098, 108 L. Ed. 2d
at 286. Second, when an officer has “articulable facts which, taken together with
rational inferences from those facts, would warrant a reasonably prudent officer in
believing that the area to be swept harbors an individual posing a danger.” Id.
The trial court concluded that the protective sweep of the apartment was valid
under the first prong of Buie. Defendant argues, however, that Officer Joyce was not
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Opinion of the Court
authorized to conduct a protective sweep of the bedroom, where the shotgun was
found, because the bedroom was not “immediately adjoining the place of arrest from
which an attack could be immediately launched.”
Our appellate courts have not specifically addressed which areas might qualify
as “immediately adjoining the place of arrest,” but decisions from the federal courts
are instructive. In United States v. Lauter, 57 F.3d 212 (2d Cir. 1995), the police
executed an arrest warrant against the defendant in his small, basement apartment.
Id. at 213. The apartment consisted of two small, adjacent rooms. Id. After arresting
the defendant in the front room, the officers conducted a protective sweep of the back
room, where they discovered a shotgun protruding from underneath a bed. Id. at
213–14. The defendant moved to suppress the shotgun, arguing that the protective
sweep was impermissibly broad. Id. at 214, 216. Upholding the sweep under the first
prong of Buie, the court reasoned that “the back room was ‘immediately adjoining’ the
area in which [the defendant] was arrested,” and the police action “was well within
the scope of a permissible protective sweep, particularly in light of the small size of
the apartment.” Id. at 216–17 (citing United States v. Robinson, 775 F. Supp. 231,
235 (N.D. Ill. 1991)).
Likewise, in United States v. Thomas, 429 F.3d 282 (D.C. Cir. 2005), the
defendant challenged the scope of a protective sweep inside his one-bedroom
apartment. Id. at 286. The front door of the apartment opened immediately into a
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Opinion of the Court
hallway, where the defendant was arrested. Id. at 284, 287. To the left was a living
room, and to the right were “doorways off the hallway leading to the kitchen,
bathroom, and bedroom.” Id. at 284. The court concluded that the bedroom, fifteen
feet from the apartment’s entrance, was “immediately adjoining the place of arrest”
because “every room swept ‘could be immediately accessed from the hallway’ ” and
“the entrance to the bedroom was a straight shot down the hallway from the spot
where [the defendant] was arrested.” Id. at 284–85, 287. Although the defendant
maintained that the living room and front hallway were the only “immediately
adjoining spaces,” the court declined to define the concept so narrowly:
The safety of the officers, not the percentage of the home
searched, is the relevant criterion. . . . If an apartment is
small enough that all of it “immediately adjoin[s] the place
of arrest” and all of it constitutes a space or spaces “from
which an attack could be immediately launched,” . . . then
the entire apartment is subject to a limited sweep of spaces
where a person may be found.
Id. at 287–88 (alteration in original) (citations omitted) (quoting Buie, 494 U.S. at
327, 334, 110 S. Ct. at 1094, 1098, 108 L. Ed. 2d at 281, 286).
Guided by the foregoing decisions, we agree with the trial court’s conclusion
that Officer Joyce had authority to conduct a protective sweep of the rooms in the
apartment. As the courts findings indicate, and as the video footage shows, defendant
was in the living room when Officers Ziglar and Castle entered and placed him in
handcuffs. Officer Joyce proceeded, “without any significant delay or hesitation,” to
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Opinion of the Court
conduct a sweep of the remaining rooms “for the sole purpose of determining whether
there were any other occupants in the apartment that could launch an attack on the
officers.” Every room in the apartment was connected by the short hallway, and the
apartment was “small enough that a person hiding in any area outside of the living
room could have rushed into the living room without any warning.” Based on the size
and layout of the apartment, the trial court properly concluded that “[a]ll of the
rooms”—including defendant’s bedroom where the shotgun was found—“were part of
the space immediately adjoining the place of arrest and from which an attack could
have been immediately launched.”
B. Seizure of the Shotgun
Next, defendant challenges the seizure of the shotgun. The trial court denied
defendant’s motion to suppress because Officer Joyce was permitted to conduct “a
quick protective sweep of the apartment and the shotgun was in plain view.”
Defendant argues that the seizure cannot be justified under the plain view doctrine
because the incriminating nature of the shotgun was not immediately apparent.
Relying on the U.S. Supreme Court’s decision in Arizona v. Hicks, 480 U.S. 321, 107
S. Ct. 1149, 94 L. Ed. 2d 347 (1987), defendant also contends that Officer Joyce
conducted an unlawful search, without probable cause, by manipulating the shotgun
to reveal its serial number.
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Opinion of the Court
Although warrantless searches are presumptively unreasonable, there are
circumstances in which “ ‘police may seize evidence in plain view without a warrant.’ ”
Horton v. California, 496 U.S. 128, 134, 110 S. Ct. 2301, 2306, 110 L. Ed. 2d 112, 121
(1990) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S. Ct. 2022, 2037,
29 L. Ed. 2d 564, 582 (1971)). The plain view doctrine allows an officer to seize
evidence without a warrant if:
(1) the officer views the evidence from a place where he has
[a] legal right to be, (2) it is immediately apparent that 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. Alexander, 233 N.C. App. 50, 55, 755 S.E.2d 82, 87 (2014) (citing State v.
Nance, 149 N.C. App. 734, 740, 562 S.E.2d 557, 561–62 (2002)); see also Horton, 496
U.S. at 136–37, 110 S. Ct. at 2308, 110 L. Ed. 2d at 123; State v. Mickey, 347 N.C.
508, 516, 495 S.E.2d 669, 674, cert. denied, 525 U.S. 853, 119 S. Ct. 131, 142 L. Ed.
2d 106 (1998). The burden rests with “the State to establish all three prongs of the
plain view doctrine.” State v. Graves, 135 N.C. App. 216, 219, 519 S.E.2d 770, 772
(1999).
The “immediately apparent” requirement is “ ‘satisfied if the police have
probable cause to believe that what they have come upon is evidence of criminal
conduct.’ ” State v. Wilson, 112 N.C. App. 777, 782, 437 S.E.2d 387, 389–90 (1993)
(quoting State v. White, 322 N.C. 770, 777, 370 S.E.2d 390, 395, cert. denied, 488 U.S.
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Opinion of the Court
958, 109 S. Ct. 399, 102 L. Ed. 2d 387 (1988)); see also State v. Carter, 200 N.C. App.
47, 54, 682 S.E.2d 416, 421 (2009). “Probable cause exists where the facts and
circumstances within [the officer’s] knowledge and of which [he] had reasonable
trustworthy information [are] sufficient in themselves to warrant a man of reasonable
caution in the belief that an offense has been or is being committed.” Brinegar v.
United States, 338 U.S. 160, 175–76, 69 S. Ct. 1302, 1310–11, 93 L. Ed. 1879, 1890
(1949) (citation omitted) (internal quotation marks omitted), quoted in State v.
Zuniga, 312 N.C. 251, 261, 322 S.E.2d 140, 146 (1984). A seizure is valid only “when
the objective facts known to the officer meet the standard required.” State v. Peck,
305 N.C. 734, 741, 291 S.E.2d 637, 641–42 (1982) (citations omitted); see also
Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 593, 160 L. Ed. 2d 537, 544
(2004) (“Whether probable cause exists depends upon the reasonable conclusion to be
drawn from the facts known to the [ ] officer at the time . . . .” (citation omitted)).
“If . . . the police lack probable cause to believe that an object in plain view is
contraband without conducting some further search of the object,” then “its
incriminating nature [is not] immediately apparent” and “the plain-view doctrine
cannot justify its seizure.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130,
2137, 124 L. Ed. 2d 334, 345 (1993) (alteration in original) (citations omitted)
(internal quotation marks omitted).
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Opinion of the Court
Observing the shotgun in plain view did not provide Officer Joyce with
authority to seize the weapon permanently. The State’s evidence at the suppression
hearing failed to establish that, based on the objective facts known to him at the time,
Officer Joyce had probable cause to believe the weapon was contraband or evidence
of a crime. The officers were executing arrest warrants issued for misdemeanor
offenses and were not aware that defendant was a convicted felon. Before the seizure,
Officer Joyce asked the other officers in the apartment if defendant was a convicted
felon, which they could not confirm. Officer Joyce testified that it was Officer Stokes
who informed him of defendant’s status, but Officer Stokes never entered the
apartment, and Officer Joyce could not recall when he learned defendant was a
convicted felon:
[PROSECUTOR:] So at what point during this encounter—
you know he’s on probation. You’ve got him in custody.
You see a shotgun in there which you’re going to seize for
protection reasons. But at what point did you also become
suspicious that the defendant might be a convicted felon
and not be allowed to possess that weapon because of his
status as a felon or a probation—being on probation?
[OFFICER JOYCE:] I believe Officer Stokes had that
information stating that he was a felon. And at that—
Officer Stokes, I believe, was the one that made me aware
of that.
[PROSECUTOR:] Okay. So at some point you made the
determination that he was a convicted felon?
[OFFICER JOYCE:] Correct.
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Opinion of the Court
[PROSECUTOR:] All right. Do you know at what point
that occurred in this, you know, scheme? You’ve got a lot
going on. But at what point that occurred for you.
[OFFICER JOYCE:] For me, I really—I really don’t know.
It may be before or it may be after. The only thing I
remember was the gun was stolen.
[PROSECUTOR:] How did you determine it was stolen?
[OFFICER JOYCE:] I read the serial number to
Communications, and they advised it was stolen out of
Guilford County.
Defense counsel elicited the same testimony from Officer Joyce on cross-examination:
[DEFENSE COUNSEL:] And I believe it was your
testimony that you said Officer Stokes had the information
about Mr. Smith having a felony conviction. Is that
correct?
[OFFICER JOYCE:] I believe—I believe it was Officer
Stokes.
....
[DEFENSE COUNSEL:] And would it surprise you that
[Officer Stokes] said, during further investigation of Mr.
Smith, it was then determined he was a previously
convicted felon?
[OFFICER JOYCE:] I knew at some point we found out he
was a felon.
[DEFENSE COUNSEL:] But it was your testimony you
couldn’t remember if it was before or after you seized the
gun?
[OFFICER JOYCE:] Correct. I just know the gun was
stolen.
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Opinion of the Court
The dissent argues that, even if the officers did not know defendant had been
convicted of a felony, they did know defendant was on probation for committing some
offense. Thus, the dissent reasons, it was “immediately apparent that the shotgun
was contraband” because a ban on possessing firearms is a “regular condition” of
probation. But the law does not require a sentencing judge to impose the regular
conditions of probation on every probationer. See N.C. Gen. Stat. § 15A-1343(b)
(2015). And there is no evidence to suggest the officers knew the specific terms of
defendant’s probation, including whether the terms of defendant’s probation
prohibited him from possessing firearms, at any time during the warrant service.1
The incriminating character of the shotgun became apparent only upon some further
action by the officers.
When “unrelated to the objectives of the authorized intrusion,” even the slight
movement of an object, “which expose[s] to view [its] concealed portions,” is
impermissible. Arizona v. Hicks, 480 U.S. 321, 325, 107 S. Ct. 1149, 1152, 94 L. Ed.
2d 347, 354 (1987). In Hicks, while searching for weapons in the defendant’s
apartment, one of the officers noticed two sets of expensive stereo equipment that
“seemed out of place.” Id. at 323, 107 S. Ct. at 1152, 94 L. Ed. 2d at 353. Suspecting
that the equipment was stolen, the officer maneuvered some of the stereo components
1 Defendant’s probation officer was not present during the warrant service.
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Opinion of the Court
to reveal their serial numbers, which he then read, recorded, and reported by phone
to police headquarters. Id. When headquarters confirmed that the equipment was
stolen, the officer seized it immediately. Id. The U.S. Supreme Court concluded that
moving the equipment “constitute[d] a ‘search’ separate and apart from the
search . . . that was the lawful objective of [the officer’s] entry into the apartment.”
Id. at 324–25, 107 S. Ct. at 1152, 94 L. Ed. 2d at 353–54. By taking action “unrelated
to the objectives of the authorized intrusion,” the officer “produce[d] a new invasion
of [the defendant’s] privacy unjustified by the exigent circumstances that validated
the entry.” Id. at 325, 107 S. Ct. at 1152, 94 L. Ed. 2d at 354. As to the reasonableness
of the search, the Court held that it could not be justified under the plain view
doctrine because the officer lacked probable cause: “A dwelling-place search, no less
than a dwelling-place seizure, requires probable cause, and there is no reason in
theory or practicality why application of the ‘plain view’ doctrine would supplant that
requirement.” Id. at 328, 107 S. Ct. at 1154, 94 L. Ed. 2d at 356.
As in Hicks, where the officer manipulated the stereo equipment to expose its
serial number, here Officer Joyce took similar steps to uncover the serial number on
the shotgun. After moving the weapon into the living room, he placed it on the couch,
shined his flashlight on the receiver momentarily, and then turned the shotgun over
to expose the serial number, which he immediately called into Communications. As
Hicks instructs, such action constitutes a search, separate and apart from the lawful
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Opinion of the Court
objective of the entry, even though it “uncovered nothing of any great personal value
to [defendant]—serial numbers rather than . . . letters or photographs.” Hicks, 480
U.S. at 325, 107 S. Ct. at 1152–53, 94 L. Ed. 2d at 354.
The search cannot be justified under the plain view doctrine because the
shotgun’s incriminating nature was not immediately apparent. There is no evidence
in the record to indicate that Officer Joyce had probable cause—or even reasonable
suspicion—to believe the shotgun was stolen. It was only after the unlawful search
that he had reason to believe the shotgun was evidence of a crime. See Graves, 135
N.C. App. at 220, 519 S.E.2d at 773 (concluding that the State failed to present any
evidence that the officer “recognized or even suspected that the brown paper wads
contained contraband before he picked them up and before he unraveled them”); cf.
State v. Price, 233 N.C. App. 386, 402, 757 S.E.2d 309, 319 (2014) (concluding that
the “immediately apparent” requirement was met where the “defendant, while
holding his rifle, admitted that he was a convicted felon”); United States v.
Malachesen, 597 F.2d 1232, 1234–35 (8th Cir. 1979) (concluding that a pistol, seized
temporarily for the officers’ safety, became contraband subject to seizure when an
officer learned from two other detectives searching the premises that the defendant
had a prior felony conviction).
III. Conclusion
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Opinion of the Court
Although Officer Joyce had authority to conduct a protective sweep of the
apartment, the seizure of the shotgun cannot be justified under the plain view
doctrine. Based on the evidence presented at the suppression hearing, the State
failed to show that the incriminating nature of the shotgun was immediately
apparent. Because the shotgun is evidence obtained through an unlawful search and
seizure, the trial court erred in denying defendant’s motion to suppress.
REVERSED.
Judge DIETZ concurs.
Judge ARROWOOD dissents by separate opinion.
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No. COA16-1229 – State v. Smith
ARROWOOD, Judge, dissenting.
I agree with the majority that the sweep of the defendant’s apartment was
lawful. However, I disagreee that the warrantless seizure of the shotgun in plain
view was unlawful. For that reason, I respectfully dissent.
As the majority points out,
[u]nder 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 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. Alexander, 233 N.C. App. 50, 55, 755 S.E.2d 82, 87 (2014). The majority
opinion establishes that the first and third prongs of the test are satisfied. Therefore,
the sole issue to be determined is whether the second prong of the test is satisfied.
The majority concludes that the incriminating nature of the shotgun was not
immediately apparent because (1) the State’s evidence failed to establish that Officer
Joyce knew defendant was a convicted felon at the time he seized the shotgun; and
(2) Officer Joyce did not know the shotgun was stolen until a further search of the
shotgun. While the majority’s analysis is not incorrect, I conclude that regardless of
whether Officer Joyce knew that defendant was a felon or knew that the shotgun was
stolen, it was immediately apparent that the shotgun was contraband.
Contraband includes “[g]oods that are unlawful to . . . possess.” Black’s Law
Dictionary 317 (7th ed. 1999). On 4 April 2012, defendant was placed on supervised
STATE V. SMITH
Arrowood, J., dissenting.
probation under the regular terms and conditions of probation. Pursuant to the
provisions of N.C. Gen. Stat. § 15A-1343(b)(5) (2015), “[a]s a regular condition[] of
probation, a defendant must . . . [p]ossess no firearm . . . .” Thus, under the regular
terms and conditions of probation, the shotgun was contraband.
Given that the officers were serving a warrant for a probation violation, it was
immediately apparent that the shotgun was contraband. Therefore, I would uphold
the warrantless seizure of the shotgun under the plain view doctrine and affirm the
trial court’s order.
2