NO. COA13-904

NORTH CAROLINA COURT OF APPEALS

Filed: 1 April 2014

STATE OF NORTH CAROLINA

 

v. Alexander County

No. 10 CRS 52031

DAVID KEITH PRICE

Appeal by the State from orders entered 28 May 2012 by 

Judge Theodore S. Royster, Jr. in Alexander County Superior 

Court. Heard in the Court of Appeals 10 December 2013.

Attorney General Roy Cooper, by Assistant Attorney General 

Joseph L. Hyde, for the State.

Appellate Defender Staples Hughes, by Assistant Appellant 

Defendant David W. Andrews, for defendant-appellee.

ELMORE, Judge.

On 14 January 2013, David Keith Price (defendant) was 

indicted by superseding indictment for possession of a firearm 

by a felon under N.C. Gen. Stat. § 14-415.1. Defendant filed 

three pre-trial motions. First, he filed a motion to dismiss in 

which he argued, inter alia, that the North Carolina Felony 

Firearms Act was unconstitutional on its face and as applied to 

him. Subsequently, he filed two motions to suppress–one to 
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suppress illegally obtained statements and one to suppress 

illegally obtained evidence. Following a motions hearing on 11 

February 2013 in Alexander County Superior Court, Judge Theodore 

S. Royster, Jr. granted each of defendant’s motions. The State 

now appeals. After careful consideration, we reverse.

I. Background

At the motions hearing, Officer Chad Starbuck (Officer 

Starbuck), an enforcement officer for the North Carolina 

Wildlife Resources Commission, testified that on 2 December 2010

he was patrolling a portion of Alexander County, investigating 

reports of trespassing and hunting violations, when he 

encountered defendant near a deer stand in a pine forest. 

Defendant was in full camouflage and was carrying a hunting 

rifle. Officer Starbuck was in uniform, and, upon seeing 

defendant, he “got out of the vehicle and walked towards 

[defendant’s] direction.”

Officer Starbuck identified himself and asked defendant to 

produce his hunting license. Pursuant to N.C. Gen. Stat. § 113-

136, wildlife enforcement officers are “authorized to stop 

temporarily any persons they reasonably believe to be engaging 

in activity regulated by their respective agencies to determine 

whether such activity is being conducted within the requirements 
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of the law, including license requirements.” N.C. Gen. Stat. § 

113-136(f) (2013) (emphasis added). Officer Starbuck also asked 

defendant, “how he had got to that location?” Defendant replied 

that his wife dropped him off on the property. 

Officer Starbuck asked defendant if he was a convicted 

felon? Defendant answered, “yes.” After further investigation, 

Officer Starbuck determined that defendant was in fact a felon, 

and he called in Officer Michael Bruce (Officer Bruce) of the 

Alexander County Sheriff’s Department as “backup.” Officer 

Bruce took custody of the firearm. Defendant was neither told 

that he was under arrest nor placed in handcuffs at any point, 

and he was released from the scene to his wife. He was later 

arrested on 16 December 2010 on a charge of being a convicted 

felon in possession of a firearm. 

At the motions hearing, Judge Royster granted defendant’s 

motion to dismiss:

I’m dismissing it based upon violation of 

this 4th Amendment rights of the seizure at 

the time past the point where he said yes, I 

have a hunting license, here it is, past 

that point I think the seizure is, or the 

appellate cases in the US Supreme Court have 

ruled when you stop someone longer than is 

necessary to initially investigate what 

you’re initially stopping for, and in this 

case it could only be a violation, possible 

violation of the wildlife laws, that’s what 

he was there for, and once he determined 
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there was no violation of those laws any 

further detainment would be a seizure under 

the 4th Amendment. And that’s the reason 

I’m dismissing it based upon the violation 

of that.

Judge Royster subsequently instructed defense counsel “to 

draw me an order to that effect[.]” However, the written 

dismissal order filed 28 May 2013 does not reference any Fourth 

Amendment violation; it dismisses the charge on the basis of an 

unconstitutional application of the Felony Firearms Act to

defendant. Specifically, Judge Royster, Jr. concluded in the 

written order: (1) that the trial court had jurisdiction to hear 

and determine defendant’s motion to dismiss as a violation of 

his constitutional rights; (2) that the Federal Firearms Act as 

applied was unconstitutional because defendant did not present a 

danger to the community; and (3) the “2004 versions of North 

Carolina General Statute § 14-415.1 is an unconstitutional 

violation of Article I, Section 30 of the North Carolina 

Constitution as it is an unreasonable regulation, not fairly 

related to the preservation of public peace and safety.”1

 

1 We note that conclusion 3 is an incorrect statement of law. 

Our analysis focuses on whether § 14-415.1 is unconstitutional 

as applied to defendant. We decline to address whether the 

statute is unconstitutional on its face, as its constitutionally 

has been previously upheld. See State v. Whitaker, 201 N.C.

App. 190, 203, 689 S.E.2d 395, 403 (2009).
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II. Standard of Review

When reviewing the trial court’s grant of a criminal 

defendant’s motion to dismiss, we are “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. Williams, 362 N.C. 628, 632, 669 S.E.2d 290, 294 

(2008) (quotation and citation omitted). We review the trial 

court’s conclusions of law de novo. State v. Biber, 365 N.C. 

162, 168, 712 S.E.2d 874, 878 (2011). 

“The standard of review for questions concerning 

constitutional rights is de novo. Furthermore, when considering 

the constitutionality of a statute or act there is a presumption 

in favor of constitutionality, and all doubts must be resolved 

in favor of the act.” Row v. Row, 185 N.C. App. 450, 454–55, 

650 S.E.2d 1, 4 (2007) (citations, quotations, and ellipses 

omitted). Under N.C. Gen. Stat. § 15A-954(a)(1) (2013), “[t]he 

court on motion of the defendant must dismiss the charges stated 

in a criminal pleading if it determines that: [t]he statute 

alleged to have been violated is unconstitutional on its face or 

as applied to the defendant.” Id. 
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III. Constitutional Violation

The State makes three arguments to support its position 

that the trial court erred in dismissing the charge against 

defendant. First, the State challenges the trial court’s 

subject matter jurisdiction. Second, the State avers that the 

trial court’s findings of fact do not support its conclusions of 

law. Third, the State argues that the trial court’s conclusions 

are erroneous as a matter of law. We will address each of these 

arguments in turn.

A. Subject Matter Jurisdiction

The State specifically avers that the trial court lacked 

subject matter jurisdiction, while the case was on appeal, to 

enter a written order that did not accurately reflect its oral 

ruling at the motions hearing. The thrust of the State’s 

argument is that because the trial court orally dismissed the 

charge against defendant based on a violation of his Fourth 

Amendment rights, the trial court lacked jurisdiction to enter a 

written order dismissing the charge due to an unconstitutional 

application of the Federal Firearms Act. We disagree. 

“Whether a trial court has subject-matter jurisdiction is a 

question of law, reviewed de novo on appeal.” McKoy v. McKoy, 

202 N.C. App. 509, 511, 689 S.E.2d 590, 592 (2010). N.C. Gen. 
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Stat. § 15A-1448(a) sets forth the guidelines for time for entry 

of an appeal and jurisdiction over a case. Under N.C. Gen.

Stat. § 15A–1448(a)(3), “[t]he jurisdiction of the trial court 

with regard to the case is divested . . . when notice of appeal 

has been given and the period described in [N.C.G.S. § 15A–

1448(a)(1)-(2)] . . . has expired.” Subsection (1) of N.C. Gen.

Stat. § 15A–1448(a) provides that “[a] case remains open for the 

taking of an appeal to the appellate division for the period 

provided in the rules of appellate procedure for giving notice 

of appeal.” Id. § 15A–1448(a)(1).

Rule 4 of the North Carolina Rules of Appellate Procedure 

allows two modes of appeal in a criminal case. First, a party 

may give oral notice of appeal, provided it is spoken at the 

time of trial. State v. Oates, 366 N.C. 264, 268, 732 S.E.2d 

571, 574 (2012). Second, notice of appeal may be in writing and

“filed with the clerk of court . . . at any time between the 

date of the rendition of the judgment or order and the 

fourteenth day after entry of the judgment or order.” Id. 

In making its argument, the State relies on State v. Davis, 

where this Court stated that the “general rule is that the 

jurisdiction of the trial court is divested when notice of 

appeal is given[.]” 123 N.C. App. 240, 242, 472 S.E.2d 392, 393 
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(1996) (citation omitted) (holding that the trial court was 

without jurisdiction to amend the judgment in the course of 

settling the record on appeal to reflect the intentions of the 

trial court when the original judgment clearly did not reflect 

the trial court’s intentions). 

Here, defendant filed three pre-trial motions which were 

heard at the 11 February 2013 hearing. Two of these motions, 

defendant’s “Motion to Suppress Illegally Obtained Evidence,” 

and defendant’s “Motion to Suppress Defendant’s Statements,” 

were each less than a page in length. The third motion, 

defendant’s “Motion to Dismiss as a Violation of Defendant’s 

Constitutional Rights,” was twenty-one pages. This motion was 

entirely devoted to defendant’s arguments that the Felony 

Firearms Act violated the Second and Fourteenth Amendments, and 

that the Act was unconstitutional on its face and as applied to 

defendant. Id. 

The trial court heard defendant’s suppression arguments 

first. Defendant argued that Officer Starbuck illegally seized 

defendant’s firearm pursuant to the “plain view” doctrine 

because Officer Starbuck lacked probable cause to believe the 

firearm was “contraband, or an instrumentality or evidence of a 

crime.” The trial court moved on to the Fourth Amendment 
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analysis at the hearing. Following defendant’s suppression 

arguments, the trial court ruled that it was going to grant both 

suppression motions because of its determination that 

defendant’s Fourth Amendment rights had been violated by an 

illegally prolonged seizure of defendant. The trial court then 

allowed defendant to proceed and make his arguments based upon 

the alleged unconstitutionality of the Felony Firearms Act.

Following the argument on defendant’s third motion, the 

trial court stated in open court that it was going to dismiss 

the charge of possession of a firearm by a felon based solely on 

its ruling that defendant’s Fourth Amendment rights had been 

violated because defendant had been detained after the purpose 

of the seizure – determining whether defendant possessed a 

valid hunting license – had ended. However, the trial court 

then continued on to address whether the Felony Firearms Act was

unconstitutionally applied to defendant in this instance:

[I]n deference to you [defendant’s 

attorney], since this is a very important 

question, I will find as applied to this 

defendant, his constitutional rights 

concerning the 2nd Amendment were violated.

If you want to [appeal] we’ll see what’s 

going to happen, but I’m actually 

dismissing it not based on that grounds. 

She asked me to rule on the 

constitutionality concerning, as applied to 

him and I’m doing that, but I’m dismissing 
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it because I think his 4th Amendment right 

was violated[.]

The trial court then entered two orders on 28 May 2013, one 

granting defendant’s motions to suppress and dismissing the 

charge based upon the Fourth Amendment violation found by the 

trial court, and the other granting defendant’s motion to 

dismiss based upon the Second Amendment violations found by the 

trial court.

The State argues that this case is analogous to Davis, in 

which this Court determined the trial court had acted without 

jurisdiction when it materially amended its judgment after 

notice of appeal had been taken from that judgment. Id. In 

Davis, the defendant was convicted of felonious breaking or 

entering, felonious larceny, and felonious possession of stolen 

property pursuant to a breaking or entering. The defendant then 

admitted to having attained habitual felon status. Id. at 241, 

472 S.E.2d at 393. Because the General Assembly did not intend 

to punish the defendant for larceny of property and possession 

of the same property that he stole, judgment needed to be 

arrested for either the felonious larceny or felonious 

possession of stolen property charge. See State v. Perry, 305 

N.C. 225, 235, 287 S.E.2d 810, 816 (1982), overruled in part on 
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different grounds by State v. Mumford, 364 N.C. 394, 699 S.E.2d 

911 (2010) (holding that a defendant may not be convicted and 

punished for both larceny of property and the possession of that 

same property). However, neither party moved for arrest of 

either judgment at trial, and the trial court did not do so ex 

mero motu. Davis, 123 N.C. App. at 243, 472 S.E.2d at 394. The 

trial court subsequently entered its written judgment, which 

mistakenly arrested judgment on all three underlying 

convictions, and sentenced the defendant solely based upon his 

having attained habitual felon status. Id. at 241, 472 S.E.2d 

at 393. This error having been brought to its attention, the 

trial court, subsequent to the defendant’s having entered notice 

of appeal, conducted a hearing in which the State moved for 

arrest of judgment solely on the conviction for possession of 

stolen goods. Id. at 241-42, 472 S.E.2d at 393. The trial 

court then entered an amended judgment which stated in relevant 

part:

The Jury returns into open court with its 

verdict and finds the defendant Guilty of 

Felonious Breaking and Entering, Larceny, 

and Possession of Stolen Goods.

Motion is made by the State to Arrest 

Judgment as to Possession of Stolen Goods. 

Motion is allowed.

IT IS THEREFORE ORDERED by the Court to 
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Arrest Judgment as to Possession of Stolen 

Goods.

Id. at 242, 472 S.E.2d at 393.

This Court in Davis vacated the “amended” judgment, 

reasoning: 

Our review of the trial transcript in this 

case reveals no motion [made at trial] by 

the State to arrest judgment as to the 

charge of possession of stolen property, and 

no indication that the court did so ex mero 

motu. Indeed, the judgment of the court, as 

rendered in open court, indicates that the 

court did not arrest judgment as to any of 

the three felonies for which defendant was 

convicted by the jury. After the court 

accepted the jury’s verdicts, defendant 

admitted the existence of prior convictions 

necessary to establish his status as an 

habitual felon. 

. . . . 

Thus, we must conclude that the amended 

judgments do not accurately reflect the 

actual proceedings and, therefore, were not

a proper exercise of the court’s inherent 

power to make its records correspond to the 

actual facts and “speak the truth.” To the 

contrary, it appears that the amended 

judgments impermissibly corrected a judicial 

error.

Id. at 243, 472 S.E.2d at 394. 
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In contrast, defendant in this case argued vigorously at 

the hearing that “as applied to [defendant] [the Felony Firearms 

Act] should not be applied, that it’s unconstitutional. And 

Your Honor, even on a broader fashion we would argue that the 

statute is too broadly applied and does not meet the test of 

strict scrutiny.” The trial court, after considering the 

arguments of defendant and the State, stated that defendant 

“asked me to rule on the constitutionality concerning, as 

applied to him and I’m doing that[.]” The trial court then 

ruled in part: “I will find as applied to this defendant, his 

constitutional rights concerning the 2nd Amendment were 

violated.” The State then entered oral notices of appeal from 

the rulings granting each of defendant’s three motions. One of 

those notices of appeal was for the trial court’s granting of 

defendant’s motion to dismiss based upon its determination that 

the Felony Firearms Act was unconstitutional on its face and as 

applied to defendant.

Unlike the factual situation in Davis, in this matter 

defendant argued the constitutionality of the Act to the trial 

court, and submitted a written motion, the trial court 

acknowledged the argument, stated that it would rule on the 

motion, and did so orally. The State, clearly aware that the 
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motion to dismiss had been decided in defendant’s favor, gave 

notice of appeal from that motion. The trial court then reduced 

its ruling to writing and entered it. 

We do not believe Davis stands for the proposition that the 

trial court is restricted to only including in its written 

judgments or orders that which it had already stated in open 

court. Davis stands for the principle that the trial court 

lacks jurisdiction to correct judicial errors, or address issues 

never litigated, by written order or judgment following valid 

entry of notice of appeal. 

The case before us does not involve the correction of 

judicial error, and we hold that the events at trial, and 

resulting orally rendered judgment, sufficiently signaled the 

contents of the written order now contested by the State. We 

hold that the trial court had jurisdiction to enter all three of 

its written orders.

B. Findings of Fact Unsupported by Competent Evidence

Assuming the trial court had subject matter jurisdiction, 

which it did, the State assigns error to the trial court’s 

findings of facts 1, 14, 20, 22, 23, 26, and 34. 

Unchallenged findings of “fact[] are presumed to be correct 

and are binding on appeal.” State v. Eliason, 100 N.C. App. 
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313, 315, 395 S.E.2d 702, 703 (1990) (citation omitted). As 

such, we limit our review to whether the unchallenged facts 

support the trial court’s conclusions of law. Id. “Immaterial 

findings of fact are to be disregarded.” In re Custody of 

Stancil, 10 N.C. App. 545, 549, 179 S.E.2d 844, 847 (1971).

The challenged findings are as follows:

1. Defendant is a resident of Alexander 

County, North Carolina, and has resided in 

the state of North Carolina since his youth. 

14. Officer Starbuck . . . searched 

[defendant] for weapons. 

20. Defendant was held at the scene

approximately 20-30 minutes before being 

allowed to leave. 

22. Officer Starbuck testified that E-315 of

the Wildlife Resources Policy Manual applies 

in this case. 

23. The State has presented no evidence that

the search of [d]efendant’s person or the 

seizure of his weapon were consensual. 

26. The crime with which Defendant was 

charged and convicted of [sic] did not 

involve any act or threat of violence and 

did not involve a firearm. 

34. Since completing his sentences for the 

offense in which he was convicted the 

Defendant has become a reputable member of 

the community. Defendant’s voting rights 

were restored in 2010 and he is able and 

registered to vote in Stony Point, Alexander 

County, North Carolina. Defendant 

participates in a Wildlife Commission.
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Findings #14, #20, #22, and #23 are supported by the 

record, specifically by Officer Starbuck’s testimony. Officer 

Starbuck testified that once he “secured the firearm [I] made 

sure that [defendant] had no other firearms.” When asked how 

long defendant was held at the scene, Officer Starbuck replied: 

“It could have been 30 minutes. You know, it could have been 

20.” In addition, Officer Starbuck testified that he followed 

the procedure set forth in section E-315 of the Wildlife 

Resources Policy Manual. Finding #23 is supported by the 

record: Officer Starbuck searched defendant for weapons, and a 

statement in the chain of custody provides that the “[g]un was 

seized by [Officer] Starbuck [] when [defendant] came out of the 

woods.” Finding #26 is in reference to defendant’s conviction 

for selling and delivering marijuana and is supported by 

competent evidence. In support of Finding #34, Officer Starbuck 

testified that defendant “tended to be a prominent person in the 

community.” However there is no evidence regarding defendant’s 

voting rights. Finding #1 is irrelevant; however, it is 

supported in that defendant’s hunting license states that he is 

a resident of Alexander County. The challenged facts are 

supported by competent evidence. To the extent that any of the 
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challenged findings are unsupported, they are immaterial to the 

outcome and are disregarded.

C. Erroneous Conclusions of Law

Lastly, the State argues that the conclusions of law set 

out in the dismissal order are incorrect as a matter of law. We 

agree. 

The Felony Firearms Act (the Act), codified in N.C. Gen.

Stat. § 14–415.1, was enacted by the General Assembly in 1971. 

The Act made it unlawful for any person previously convicted of 

a crime punishable by imprisonment of more than two years to 

possess a firearm, with certain exemptions for felons whose 

civil rights had been restored. Johnston v. State, ___ N.C. 

App. ___, ___, 735 S.E.2d 859, 864-65 (2012) writ allowed, 

review on additional issues denied, 366 N.C. 562, 738 S.E.2d 360 

(2013) appeal dismissed, 366 N.C. 562, 738 S.E.2d 361 (2013)

aff'd, 749 S.E.2d 278 (2013); 1971 N.C. Sess. Laws ch. 954, § 2. 

Initially, the Act only prohibited felons from the possessing of

“any handgun or other firearm with a barrel length of less than 

18 inches or an overall length of less than 26 inches[.]” Britt 

v. State, 363 N.C. 546, 547, 681 S.E.2d 320, 321 (2009)(citation 

omitted). In 2004 the General Assembly amended the statute “to 

extend the prohibition on possession to all firearms by any 
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person convicted of any felony, even within the convicted felons 

own home and place of business.” Id. at 548, 681 S.E.2d at 321 

(emphasis added); Act of July 15, 2004, ch. 186, sec. 14.1, 2004 

N.C. Sess. Laws 716, 737.1.

At the time defendant was charged and presently, N.C. Gen. 

Stat. § 14-415.1 (2013) provides:

(a) It shall be unlawful for any person who 

has been convicted of a felony to purchase, 

own, possess, or have in his custody, care, 

or control any firearm or any weapon of mass 

death and destruction as defined in G.S. 14-

288.8(c). For the purposes of this section, 

a firearm is (i) any weapon, including a 

starter gun, which will or is designed to or 

may readily be converted to expel a 

projectile by the action of an explosive, or 

its frame or receiver, or (ii) any firearm 

muffler or firearm silencer. This section 

does not apply to an antique firearm, as 

defined in G.S. 14-409.11.

Our courts have held that a felon may challenge the statute 

as it applies to him or her on grounds that it violates Article 

I, Section 30 of the North Carolina Constitution. In

considering these “as-applied” challenges, we must contemplate 

the following five factors: “(1) the type of felony convictions, 

particularly whether they involved violence or the threat of 

violence[;] (2) the remoteness in time of the felony 

convictions; (3) the felon’s history of law-abiding conduct 
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since the crime[;] (4) the felon’s history of responsible, 

lawful firearm possession during a time period when possession 

of firearms was not prohibited[;] and (5) the felon’s assiduous 

and proactive compliance with the 2004 amendment.” Whitaker, at 

205, 689 S.E.2d at 404 (quotations omitted) (citing Britt, 363 

N.C. at 550, 681 S.E.2d at 323 (2009), aff'd on other grounds, 

364 N.C. 404, 700 S.E.2d 215 (2010)).

In Britt, the plaintiff, Mr. Britt, pled guilty to the 

nonviolent offense of felony possession with intent to sell and 

deliver the controlled substance (methaqualone) in 1979. 363 

N.C. at 547, 681 S.E.2d at 321. Mr. Britt completed his 

probation in 1982 and his civil rights were fully restored in 

1987. Id. When the 2004 amendment to the Act took effect, Mr. 

Britt “had a discussion with the Sheriff of Wake County, who 

concluded that possession of a firearm by plaintiff would 

violate the statute as amended in 2004. [Mr. Britt] thereafter 

divested himself of all firearms, including his sporting rifles 

and shotguns that he used for game hunting on his own land.” 

Id. at 548, 681 S.E.2d at 322. Mr. Britt then initiated “a 

civil action against the State of North Carolina, alleging that 

N.C.G.S. § 14-415.1 as amended violat[ed] multiple rights he 

[held] under the United States and North Carolina 
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Constitutions.” Id. at 548-49, 681 S.E.2d at 322. Our Supreme 

Court found the 2004 version of N.C. Gen. Stat. § 14-415.1 to be 

unconstitutional as applied to Mr. Britt because of “his long 

post-conviction history of respect for the law, the absence of 

any evidence of violence by plaintiff, and the lack of any 

exception or possible relief from the statute’s operation[.]” 

Id. at 550, 681 S.E.2d at 323. Specifically, our Supreme Court 

concluded: “[I]t is unreasonable to assert that a nonviolent 

citizen who has responsibly, safely, and legally owned and used 

firearms for seventeen years is in reality so dangerous that any 

possession at all of a firearm would pose a significant threat 

to public safety.” Id. at 550, 681 S.E.2d at 323. 

Alternatively, in Whitaker, after applying the five factors 

relied upon in Britt, this Court found N.C. Gen. Stat. § 14–

415.1 to be constitutional as applied to Mr. Whitaker who was 

convicted of three prior non-violent felonies, the most recent 

conviction on a drug charge only a few years prior, and who had 

notice of the 2004 amendment and demonstrated a disregard for 

the law despite never misusing a firearm. 201 N.C. App. at 206–

07, 689 S.E.2d 404–05.

Defendant argues on appeal that the circumstances in his 

case are analogous to those in Britt, not Whitaker. Applying 
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the five-factor test enumerated in Britt, we are not persuaded. 

Defendant has two felony convictions for selling a controlled 

substance (marijuana) and one conviction for felony attempted 

assault with a deadly weapon. While defendant was convicted of 

the drug offenses in 1989, he was more recently convicted of the 

felony of attempted assault with a deadly weapon in 2003. 

Although there is no evidence to suggest that defendant has 

misused firearms, there is also no evidence that defendant has

attempted to comply with the 2004 amendment to the statute. We 

think it noteworthy that defendant completed his sentence for 

the conviction of attempted assault with a deadly weapon in 

2005, after the 2004 amendment was enacted. Therefore, he 

should have been on notice of the changes in legislation. When 

Mr. Britt learned of the 2004 amendment, he relinquished his 

hunting rifle on his own accord. Defendant took no such action. 

We conclude that facts of this case more closely align with 

those in Whitaker, not Britt. Given the circumstances, it is 

not unreasonable to prohibit defendant from possessing firearms 

in order to preserve public peace and safety. The trial court 

erred in dismissing the charge against defendant on the basis 

that the Act was unconstitutional as applied to him. 

IV. Motions to Suppress
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The State next argues that the trial court erred in 

granting defendant’s motion to suppress his statements and the 

motion to suppress evidence. We agree. The crux of this issue 

is whether Officer Starbuck exceeded the scope of a valid stop 

when he asked defendant if he was a convicted felon.

Our review of a trial court’s denial of a motion to 

suppress is “strictly limited to determining whether the trial 

judge’s underlying findings of fact are supported by competent 

evidence, in which event they 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 

conclusions of law are reviewed de novo on appeal. State v. 

Hughes, 353 N.C. 200, 208, 539 S.E.2d 625, 631 (2000). 

Here, the trial court made twenty-three findings of fact in 

its order granting defendant’s motions to suppress. The State 

challenges four of these findings as being unsupported by 

competent evidence. The remaining nineteen findings are binding 

on appeal. See Eliason, supra. The challenged findings are as 

follows:

13. Officer Starbuck . . . searched 

[defendant] for weapons. 

19. Defendant was held at the scene 
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approximately 20-30 minutes before being 

allowed to leave. 

21. Officer Starbuck testified that E-315 of 

the Wildlife Resources Policy manual applies 

in this case. 

22. The State has presented no evidence that 

the search of [d]efendant’s person or the 

seizure of the weapon were consensual.

These challenged findings mirror the challenged findings 

entered in the trial court’s dismissal order. As discussed 

above, these findings were supported by substantial evidence 

and, therefore, are binding upon this Court. Based on the 

findings, the trial court concluded: (1) defendant was illegally 

questioned about his prior criminal record as he was not advised 

of his Miranda rights; (2) defendant was held beyond the time 

required for the investigation; (3) defendant’s gun was 

illegally seized without a warrant, probable cause, or 

defendant’s consent; (4) the seizure of defendant’s gun was not 

within the written policies and procedures of the North Carolina 

Wildlife Resources Commission; and (5) the State failed to 

justify a warrantless search and seizure of defendant’s 

property. These conclusions of law are fully reviewable on 

appeal. Id. As such, we turn to applicable principles of law 
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in reviewing the trial court’s conclusions. State v. Farmer, 

333 N.C. 172, 186, 424 S.E.2d 120, 128 (1993).

The Fourth Amendment to the United States Constitution and 

Article I, § 20 of the North Carolina Constitution prohibit 

unreasonable searches and seizures. State v. McBennett, 191 

N.C. App. 734, 737, 664 S.E.2d 51, 54 (2008) (citations 

omitted). This constitutional protection is designed to 

“prevent arbitrary and oppressive interference by [law]

enforcement officials with the privacy and personal security of 

individuals.” United States v. Martinez-Fuerte, 428 U.S. 543, 

554, 49 L. Ed. 2d 1116, 1126 (1976) (citations omitted). 

It is well established that

[l]aw enforcement officers do not violate 

the Fourth Amendment by merely approaching 

an individual on the street or in another 

public place, by asking him if he is willing 

to answer some questions, by putting 

questions to him if the person is willing to 

listen, or by offering in evidence in a 

criminal prosecution his voluntary answers 

to such questions. Nor would the fact that 

the officer identifies himself as a police 

officer, without more, convert the encounter 

into a seizure requiring some level of 

objective justification. The person 

approached, however, need not answer any 

question put to him; indeed he may decline 

to listen to the questions at all and may go 

on his way. He may not be detained even 

momentarily without reasonable, objective 

grounds for doing so; and his refusal to 

listen or answer does not, without more, 
-25-

furnish those grounds. If there is no 

detention—no seizure within the meaning of 

the Fourth Amendment—then no constitutional 

rights have been infringed.

Farmer, 333 N.C. 186-87, 424 S.E.2d 120, 128-29 (citation and 

quotation omitted). “Seizure occurs when the officer, by means 

of physical force or show of authority, has in some way 

restrained the liberty of a citizen.” State v. Foreman, 133 

N.C. App. 292, 296, 515 S.E.2d 488, 492 (1999) aff'd as 

modified, 351 N.C. 627, 527 S.E.2d 921 (2000) (citation and 

quotation omitted). A person “subject to detention beyond the 

scope of the initial seizure is still seized under the Fourth 

Amendment.” State v. Jackson, 199 N.C. App. 236, 241, 681 

S.E.2d 492, 496 (2009).

Like seizure, deciding whether a person is in “custody” 

requires an objective review of the circumstances surrounding 

the interrogation and a determination of the effect those 

circumstances would have on a reasonable person. State v. 

Garcia, 358 N.C. 382, 391, 597 S.E.2d 724, 733 (2004). “A 

person is in custody for purposes of Miranda when it is apparent 

from the totality of the circumstances that there is a formal 

arrest or restraint on freedom of movement of the degree 
-26-

associated with a formal arrest.” Id. at 396, 597 S.E.2d at 736 

(quotations and citations omitted). 

Defendant concedes that Officer Starbuck was allowed to 

stop him pursuant to N.C. Gen. Stat. § 113-136(f), which, again,

authorizes an enforcement officer to make a temporary stop of a 

person that he reasonably believes is engaging in activity 

regulated by the Wildlife Resources Commission to determine 

whether such activity is being conducted within the requirements 

of the law, including license requirements. N.C. Gen. Stat. § 

113-136(f) (2013). Defendant also acknowledges that per N.C. 

Gen. Stat. § 113-136(k), he was required to show a valid hunting 

license. However, because he was required by law to stop, 

defendant maintains that the stop constituted a “seizure,” and 

was not consensual. Moreover, because the scope of the stop was 

limited to confirming or dispelling Officer Starbuck’s suspicion 

that he was hunting within the requirements of the law,

defendant argues that Officer Starbuck exceeded the scope of the 

stop when he asked defendant if he was a felon after defendant 

produced a valid hunting license. The State argues that 

defendant was neither seized nor in custody when Officer 

Starbuck asked defendant whether he was a felon.
-27-

The record indicates that Officer Starbuck found defendant 

hunting in the woods, approached him, identified himself, and 

asked defendant to show his hunting license. Defendant was 

holding a hunting rifle. Once Officer Starbuck was satisfied 

that defendant held a valid license, he asked, without 

demanding, if defendant was a convicted felon. Defendant 

answered, “yes.”

Here, defendant admits that he knew that the stop was valid 

and he knew its purpose. As such, nothing in the record 

indicates that defendant had an objective reason to believe that 

he was not free to end the conversation once he produced his 

hunting license. Again, law enforcement officers do not 

violate the Fourth Amendment simply by putting questions to a 

person who is willing to listen. We conclude defendant was not 

“seized” in the constitutional sense when Officer Starbuck asked 

him about his criminal history. See Farmer, 333 N.C. at 188-89, 

424 S.E.2d at 129-30 (holding that the defendant was not 

“seized,” briefly or otherwise, when officers approached him on 

a public street, identified themselves as law enforcement, 

displayed no weapons, and simply asked him for information 

concerning his identity, place of residence, and why he was 

covered with what appeared to be blood). 
-28-

Likewise, the record does not support a conclusion that 

defendant was in custody at the time he was questioned—he was 

neither arrested nor restrained. As such, the trial court’s 

conclusions of law #1 and #2 are erroneous. Defendant’s 

statement that he was a felon was voluntary, and he was seized 

no sooner than when Officer Starbuck learned that he was a 

felon. Accordingly, the trial court erred in granting 

defendant’s motion to suppress his statements.

In addition, Officer Starbuck had authority to seize 

defendant’s rifle without a warrant. “Under the plain view 

doctrine, police may seize contraband or evidence without a 

warrant if (1) the officer was in a place where he had a right 

to be when the evidence was discovered; (2) the evidence was 

discovered inadvertently; and (3) it was immediately apparent to 

the police that the items observed were evidence of a crime or 

contraband.” State v. Grice, ___ N.C. App. ___, ___, 735 S.E.2d 

354, 357 (2012), review allowed, writ allowed, 743 S.E.2d 179 

(2013) (quotations and citations omitted). “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)
-29-

(quotations and citations omitted). “Probable cause for an 

arrest has been defined to be a reasonable ground of suspicion 

supported by circumstances sufficiently strong in themselves to 

warrant a cautious man in believing the accused to be guilty[.]” 

State v. Zuniga, 312 N.C. 251, 259, 322 S.E.2d 140, 145 (1984) 

(quotations and citations omitted).

Here, the first prong of the plain view test is clearly met

as Officer Starbuck was rightfully patrolling hunting grounds in 

accordance with his job duties. The second prong of the test is 

also satisfied because Officer Starbuck discovered that the 

rifle was contraband inadvertently when defendant admitted that 

he was a convicted felon. Lastly, a reasoned analysis of the 

record evidence suggests that Officer Starbuck had probable 

cause to believe that defendant committed the crime of 

possession of a firearm by a convicted felon. In fact, the 

commission of the crime could not have been more apparent—

defendant, while holding his rifle, admitted that he was a 

convicted felon. Thus, prong three is satisfied because it

certainly became immediately apparent to Officer Starbuck that 

the rifle was contraband once defendant confessed to being a 

felon. The trial court’s conclusions of law #3, #4, and #5 are
-30-

erroneous. Accordingly, the trial court erred in concluding 

that defendant was entitled to the suppression of the gun.

V. Conclusion

The trial court erred in granting defendant’s motion to 

dismiss the charge on the basis that N.C. Gen. Stat. § 14-415.1 

was unconstitutional as applied to defendant. Further, 

defendant’s Fourth Amendment rights were not violated during the 

stop and seizure. Accordingly, the trial court also erred in 

concluding that defendant was entitled to the suppression of his 

statements and the suppression of the firearm. We reverse.

Reversed.

Judges McGEE and HUNTER, Robert, C., concur.