{ "id": 3821549, "name": "STATE OF NORTH CAROLINA v. ANTONIO DONNELL NEAL, Defendant", "name_abbreviation": "State v. Neal", "decision_date": "2011-04-05", "docket_number": "No. COA10-210", "first_page": "645", "last_page": "657", "citations": [ { "type": "official", "cite": "210 N.C. App. 645" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "652 S.E.2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639795 ], "year": 2007, "pin_cites": [ { "page": "746" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0744-01" ] }, { "cite": "601 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631712, 12631710, 12631711 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0530-02", "/se2d/601/0530-03", "/se2d/601/0530-01" ] }, { "cite": "358 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631712, 12631714, 12631705, 12631709, 12631711 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0530-02", "/se2d/601/0531-01", "/se2d/601/0527-01", "/se2d/601/0529-01", "/se2d/601/0530-01" ] }, { "cite": "673 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642934 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "395" } ], "opinion_index": 0, "case_paths": [ "/se2d/673/0394-01" ] }, { "cite": "702 S.E.2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "832-33", "parenthetical": "remanding for findings where court failed to make findings resolving material conflict in evidence as to whether reasonable person in defendant's position would not have felt free to leave" } ], "opinion_index": 0 }, { "cite": "208 N.C. App. 376", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4180643 ], "year": 2010, "pin_cites": [ { "page": "387", "parenthetical": "remanding for findings where court failed to make findings resolving material conflict in evidence as to whether reasonable person in defendant's position would not have felt free to leave" } ], "opinion_index": 0, "case_paths": [ "/nc-app/208/0376-01" ] }, { "cite": "293 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "84" }, { "page": "84" } ], "opinion_index": 0 }, { "cite": "306 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568322 ], "year": 1982, "pin_cites": [ { "page": "312-13" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0302-01" ] }, { "cite": "695 S.E.2d 97", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "opinion_index": 0 }, { "cite": "364 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4152490 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc/364/0229-01" ] }, { "cite": "187 N.C. App. 235", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8373423 ], "year": 2007, "pin_cites": [ { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0235-01" ] }, { "cite": "596 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "163 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8919769 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/163/0577-01" ] }, { "cite": "253 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "23-24" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 371", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550577 ], "year": 1979, "pin_cites": [ { "page": "375-76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0371-01" ] }, { "cite": "333 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "713", "parenthetical": "internal quotation marks omitted" }, { "page": "715", "parenthetical": "holding that once trial court resolved conflicts in voir dire testimony against defendant, its findings supported conclusion that officer did not make promise that was sufficient to render consent involuntary" } ], "opinion_index": 0 }, { "cite": "314 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695126 ], "year": 1985, "pin_cites": [ { "page": "343", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0337-01" ] }, { "cite": "152 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1967, "pin_cites": [ { "page": "72" } ], "opinion_index": 0 }, { "cite": "269 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562634 ], "year": 1967, "pin_cites": [ { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0223-01" ] }, { "cite": "297 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "774", "parenthetical": "holding motion to suppress properly denied when, inter alia, there was no evidence that defendant was \"coerced by threats, promises or show of force\"" } ], "opinion_index": 0 }, { "cite": "59 N.C. App. 708", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527266 ], "year": 1982, "pin_cites": [ { "page": "711", "parenthetical": "holding motion to suppress properly denied when, inter alia, there was no evidence that defendant was \"coerced by threats, promises or show of force\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/59/0708-01" ] }, { "cite": "108 S. Ct. 267", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1987, "opinion_index": 0 }, { "cite": "98 L. Ed. 2d 224", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 916", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600294, 599751, 602122, 600429, 600879, 602321, 600978, 601233, 601012, 600727, 599257, 602043, 601182, 601279 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0916-06", "/us/484/0916-10", "/us/484/0916-07", "/us/484/0916-12", "/us/484/0916-01", "/us/484/0916-11", "/us/484/0916-05", "/us/484/0916-02", "/us/484/0916-14", "/us/484/0916-09", "/us/484/0916-13", "/us/484/0916-04", "/us/484/0916-03", "/us/484/0916-08" ] }, { "cite": "357 S.E.2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "650" } ], "opinion_index": 0 }, { "cite": "320 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725713 ], "year": 1987, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0276-01" ] }, { "cite": "180 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "767" } ], "opinion_index": 0 }, { "cite": "278 N.C. 561", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561152 ], "year": 1971, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0561-01" ] }, { "cite": "445 U.S. 573", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1777746 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "586" }, { "page": "651" }, { "page": "1380" } ], "opinion_index": 0, "case_paths": [ "/us/445/0573-01" ] }, { "cite": "488 S.E.2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "213" } ], "opinion_index": 0 }, { "cite": "346 N.C. 794", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139625 ], "year": 1997, "pin_cites": [ { "page": "798" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0794-01" ] }, { "cite": "520 S.E.2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "312", "parenthetical": "holding evidence as to whether defendant consented to search was conflicting when two detectives testified that defendant consented to search of room, while defendant testified that detectives neither requested nor received his permission to search room" }, { "page": "312" }, { "page": "312", "parenthetical": "remanding for findings where court failed to make findings resolving material conflict in evidence as to whether defendant voluntarily consented to search of his room" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 377", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240943 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "380", "parenthetical": "holding evidence as to whether defendant consented to search was conflicting when two detectives testified that defendant consented to search of room, while defendant testified that detectives neither requested nor received his permission to search room" }, { "page": "380" }, { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0377-01" ] }, { "cite": "223 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "377" }, { "page": "377" } ], "opinion_index": 0 }, { "cite": "289 N.C. 522", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570976 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "531" }, { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0522-01" ] }, { "cite": "195 N.C. App. 554", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165417 ], "year": 2009, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0554-01" ] }, { "cite": "121 S. Ct. 1379", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2001, "pin_cites": [ { "page": "1380" } ], "opinion_index": 0 }, { "cite": "149 L. Ed. 2d 305", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "532 U.S. 931", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9315009, 9314948, 9314725, 9314661, 9314695, 9314631, 9314793, 9314822, 9315113, 9314863, 9315060, 9314585, 9314909 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/532/0931-11", "/us/532/0931-10", "/us/532/0931-05", "/us/532/0931-03", "/us/532/0931-04", "/us/532/0931-02", "/us/532/0931-06", "/us/532/0931-07", "/us/532/0931-13", "/us/532/0931-08", "/us/532/0931-12", "/us/532/0931-01", "/us/532/0931-09" ] }, { "cite": "533 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "198", "parenthetical": "holding pretrial motion to suppress is not sufficient to preserve for appeal question of admissibility of evidence where defendant does not also object at time evidence is offered at trial" } ], "opinion_index": 0 }, { "cite": "352 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684963 ], "year": 2000, "pin_cites": [ { "page": "405", "parenthetical": "holding pretrial motion to suppress is not sufficient to preserve for appeal question of admissibility of evidence where defendant does not also object at time evidence is offered at trial" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0364-01" ] } ], "analysis": { "cardinality": 1016, "char_count": 28799, "ocr_confidence": 0.743, "pagerank": { "raw": 7.8815648187738e-08, "percentile": 0.46010848508928515 }, "sha256": "1083a97e98d6777d6f577c64c6a6c841c76bf79a313a76d23f2a736af640fc53", "simhash": "1:aaabb96a666a8f02", "word_count": 4710 }, "last_updated": "2023-07-14T21:51:45.819483+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ANTONIO DONNELL NEAL, Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant Antonio Donnell Neal appeals from his conviction of (1) felony trafficking in more than 28 grams but less than 200 grams of cocaine by possession and (2) misdemeanor possession of drug paraphernalia. The trial court orally denied defendant\u2019s motion to suppress evidence seized from his apartment. In doing so, the trial court failed to comply with N.C. Gen. Stat. \u00a7 15A-977(f) (2009) and its requirement that a trial court enter a written order with findings of fact resolving a material conflict in the evidence as to whether any promise was made to induce defendant\u2019s consent to the search. We, therefore, remand to the trial court for the limited purpose of making the necessary findings of fact and reconsidering its conclusions of law in light of those findings.\nFacts\nOn 27 March 2006, defendant was indicted for (1) trafficking in more than 28 grams but less than 200 grams of cocaine by possession and (2) possession of drug paraphernalia. Prior to trial, defendant filed a motion to suppress any evidence seized by law enforcement officials after a search of his apartment on 17 March 2006 on the grounds that the search violated the Fourth and Fourteenth Amendments to the United States Constitution.\nDuring the course of the hearing before the trial court on the motion to suppress, the State presented the testimony of Officers Brian Scharf and James Gilliland of the Charlotte-Mecklenburg Police Department. According to the officers, on 16 March 2006, they began surveillance of a unit in the Beacon Ridge apartment complex. They were looking for Antonio Boone who had an outstanding arrest warrant for assault with a deadly weapon. Officer Scharf, the lead investigator in Mr. Boone\u2019s case, had received a Crimestoppers tip that Mr. Boone was staying at the apartment, which was defendant\u2019s residence. At the time, the officers were not looking for defendant for any reason other than to locate Mr. Boone.\nDuring the surveillance, defendant left his apartment and drove to a Charlotte Housing Authority (\u201cCHA\u201d) property. The officers followed defendant and saw him enter a CHA apartment and leave after 10 to 15 minutes. The officers then checked a CHA ban list and learned that defendant had been banned from CHA property. Based on this information, the officers obtained a warrant for defendant\u2019s arrest for second degree trespassing.\nOfficers Scharf and Gilliland returned to Beacon Ridge with the warrant on 17 March 2006 and resumed their surveillance of defendant\u2019s apartment. After arriving, they saw defendant leave the apartment and start to drive away in his vehicle. The officers stopped the vehicle in the parking lot around the comer of the apartment building.\nUpon making the stop, the officers directed defendant to get out of his car, placed him in handcuffs, and informed him that there was a warrant for his arrest. Officer Scharf told defendant that they were looking for Mr. Boone and asked whether Mr. Boone was inside the apartment. Defendant nodded his head \u201cyes.\u201d The officer also asked if there were any weapons in the apartment, and defendant said there might be a gun. At that point, Officer Scharf asked defendant for consent to search the apartment for Mr. Boone and any weapons that might be inside, and defendant orally gave consent. Both officers testified that they did not draw a firearm or make any threats or promises to gain defendant\u2019s consent to the search of his apartment.\nThe officers called for backup, including a SWAT team. While they waited for backup to arrive, Officer Gilliland watched the front of the apartment, and Officer Scharf waited with defendant. After backup arrived, the officers put defendant in another officer\u2019s patrol car. Officer Scharf then took a position at the front of the apartment, and Officer Gilliland took a position at the back. After a few minutes, and before the SWAT team arrived, Mr. Boone exited the front door of the apartment. Officer Scharf placed Mr. Boone under arrest and canceled the SWAT team call. Afterwards, Officer Scharf again asked defendant if he could search his apartment for weapons, and defendant again gave oral consent for the search.\nOnce the officers entered the apartment, Officer Gilliland discovered, in the bedroom, a plastic molding gun box, marijuana, and a marijuana bong. In the bedroom closet, he also found a locked safe that was big enough to hold a gun. The officers opened the safe using the safe key on defendant\u2019s key chain. The safe contained $1,080.00 in cash, digital scales, and a purple Crown Royal bag that contained a \u201clarge quantity\u201d of what the officers believed to be crack cocaine. The officers then arrested defendant based on what they had found in the safe.\nThe officers subsequently transported defendant to the Law Enforcement Center. Officer Scharf read defendant his Miranda rights, and defendant signed a written waiver of those rights. Officer Scharf then interviewed defendant, and, at the close of the interview, defendant signed a written statement that Officer Scharf had prepared. The statement indicated that defendant had given Officer Scharf consent to search his apartment.\nDefendant\u2019s testimony at the hearing on the motion to suppress conflicted with that of the officers, particularly concerning whether the officers made any promises to him. He testified that after he was stopped, Officer Scharf \u201csaid if I just, you know, let him know where Antonio Boone was, that he\u2019d strike the trespass warrant he had for me.\u201d According to defendant, after Mr. Boone was arrested, Officer Scharf \u201cagain . . . said if I let them search the house he\u2019d strike the trespass warrants on me. So I let him search the house at that point.\u201d Defendant emphasized that his consent \u201cwas based on\u201d Officer Scharf\u2019s representation that he would strike the trespass warrant.\nAt the close of the evidence, the trial court denied defendant\u2019s motion to suppress. The court did not enter a written order, but orally made the following findings of fact from the bench:\nThat on or about March 16th, 2006, Officer Brian Scharf and James Gilliland conducted a surveillance of 1524 Beacon Ridge Road because they had previously received a report through Crimestoppers that Mr. Boone, Antonio Boone, was living in that apartment complex. They were searching for Mr. Boone because there was an outstanding warrant for his arrest for a serious assault charge.\nAt that time the officers had no information about the defendant, Antonio Neal, or were they searching for him, and did not have any outstanding warrant for his arrest.\nPart of the tip received through Crimestoppers was that Antonio Boone had a friend by the name of Antonio Neal, where he, Mr. Boone, might be staying.\nTo investigate the matter Officers Scharf and Gilliland set up surveillance at 1524 Apartment 810 Beacon Ridge Road to investigate the validity of the information that they had received through Crimestoppers.\nThat through investigation Officer Scharf determined that Antonio Neal lived at 810, in Apartment 810 of the Beacon Ridge Road Apartments. That the officers were not looking for Mr. Neal for any reason other than to locate Antonio Boone.\nThat on or about the 16th day of March 2006, while conducting surveillance at the apartment complex, Officer Scharf observed Mr. Neal leave his apartment and enter a vehicle, and followed him to Boulevard Homes, known to the officers to be a Charlotte Housing Authority property.\nThat thereafter Sergeant Scharf then checked the ban list for Charlotte Housing Authority properties and found that an individual bearing the name of Antonio Donnell Neal, black male, date of birth October 19, 1978, had been banned from Charlotte Housing Authority property.\nHaving observed Mr. Neal on what the officers believed to be Charlotte Housing Authority property, they obtained a warrant for his arrest. On the following day, on the 17th of March 2006, went [sic] back to Mr. Neal\u2019s address, arrested him for trespass and asked him about Mr. Boone.\nOfficer Scharf also wanted to search the residence for Mr. Boone. He conceded he was not sure that Mr. Boone was indeed in the residence.\nOn that date, March 17th, Officer Scharf, accompanied by Officer Gilliland, observed the defendant exit his apartment and enter a vehicle parked nearby.\nWhen the defendant pulled around the corner of the building, Officer Scharf and Officer Gilliland stopped the vehicle and arrested the defendant on the outstanding trespassing warrant.\nOfficer Scharf spoke with the defendant about Antonio Boone, and asked if there was anyone else in the apartment; that Antonio Boone was wanted. The officers did not explain what the charge was, and asked Mr. Neal, the defendant, if Antonio Boone was inside the apartment.\nThe defendant did not respond audibly, but shook his head, quote yes, closed quote. Officer Scharf asked the defendant if he could search the apartment for Antonio Boone and for a weapon.\nOfficer Scharf did not question the defendant about drugs at that point because he was specifically looking for firearms due to the nature of the charge against Mr. Boone.\nAfter the defendant was placed under arrest for the trespassing warrants, the officers sought to call backup, including the SWAT team. And before the SWAT team arrived, another officer, uniformed officer arrived and took custody of the defendant.\nThen Officer Scharf and Officer Gilliland then set up surveillance on the apartment. Before the SWAT team could arrive, Officer Scharf observed Mr. Boone coming out of the apartment and immediately arrested him.\nThat thereafter they obtained the defendant\u2019s consent to search the apartment for guns, Officer Scharf and Officer\u2014 correction. Having obtained the defendant\u2019s consent to search the apartment for guns, Officer Gilliland conducted a search of the interior of the one bedroom apartment.\nDuring the search Officer Gilliland noticed a plastic molded gun box in the bedroom, but the gun was not inside. Upon further search of the closet area, Officer Gilliland located a safe approximately two feet by two feet in dimension. He continued his search, but did not find anything else of interest.\nOfficer Gilliland advised Officer Scharf that there was a locked safe in the bedroom. Officer Scharf had possession of the defendant\u2019s keys, and noticed that there was a safe key on the chain.\nOfficer Scharf then used the key to open the safe, and discovered inside a purple Crown Royal \u2014 inside a purple Crown Royal bag, a quantity of what he believed to be cocaine, and cash and scales.\nThereafter the defendant was transported to the Law Enforcement Center where he was taken to an interview room approximately six feet by six feet in dimension. The room was equipped with shackles.\nThe officers had weapons, but did not draw them. They did not threaten the defendant, nor make any promises to him to get him to waive his Miranda rights. The defendant was advised of his rights and waived them in writing.\nAfter obtaining a waiver \u2014 strike that. While in the interview room the defendant was not promised anything to induce him to make a statement. He was not threatened in any way, nor was any evidence of either intimidation directed toward him either to obtain the waiver of his Miranda rights or to make his written statement.\nDuring the course of the interview the defendant signed a written statement that was prepared for him by Officer Scharf. That statement was signed by the defendant on March 17th, 2006.\nIn his statement, which has been marked as State\u2019s Exhibit Number 2, the defendant adopts what has been written by Officer Scharf indicating that he gave Officer Scharf permission to search his residence located at 1524, number 810, Beacon Ridge Road, and that he gave Officer Scharf permission to write the statement for him.\nDuring the course of the interview at the Law Enforcement Center, the defendant and Officer Scharf and Officer Gilliland, who had heard only a portion of the interview or was actually present in the interview room, [sic] that the search that was conducted of the defendant\u2019s apartment was confined to where a weapon reasonably might be kept.\nThat the officer testified, and the officer agrees and the defendant agrees, that the defendant was cooperative at all times during the defendant\u2019s interaction with the officers.\nThe Court further finds that the defendant was not the objective of the original investigation. That investigation having been focused on Antonio Boone.\nDuring his direct testimony, the defendant acknowledges that he gave the officer consent to search his apartment, but did so because he was under arrest at the time and Officer Scharf indicated he would strike the trespassing warrant if he gave such consent to search.\nBased upon the foregoing findings of fact the Court concludes that in the totality of the circumstances the consent to search the defendant\u2019s apartment was knowingly, voluntarily and freely given.\nAnd that the statement that the defendant subsequently gave to the officers was given freely, voluntarily and understandingly without coercion or promise of award or under any duress.\nThe court then stated: \u201cBased upon those findings and conclusions the Court denies the defendant\u2019s motion to suppress the evidence and the statement given in the case.\u201d After making its ruling, the court then noted some concerns it had, including concern about the CHA ban list, a concern that the court said had \u201cbeen satisfied.\u201d The trial court, however, further noted that it \u201cwas also concerned about the dismissal of the underlying second degree trespass charge as the defendant testified the officers \u2014 or Officer Scharf promised him that that would be dismissed or it would otherwise be disposed of. But there is insufficient evidence provided to the Court to make an independent determination for the basis of the dismissal.\u201d\nDefendant\u2019s case proceeded to trial. The State presented the testimony of Officers Scharf and Gilliland as part of its case in chief. The officers explained to the jury the circumstances leading to their search of defendant\u2019s apartment, which had yielded the digital scales and cocaine.\nDuring Officer Scharf\u2019s testimony the State admitted, over defendant\u2019s objection, a Charlotte-Mecklenburg Police Department property report listing some of the evidence seized from defendant\u2019s apartment, including the digital scales, the Crown Royal bag, the gun box, and the marijuana bong. The State also admitted, without objection from defendant, the items seized from defendant\u2019s apartment, including the scales and the cocaine. In addition, when Officer Scharf was discussing the property bag of evidence, a small packet of untested material, which the officer believed to be cocaine, was discovered in the bag. Through its questioning of the officer, the State suggested that the packet had been inside the marijuana bong, which had broken into pieces in the property bag. Defendant did not object to the testimony about this packet. In addition, forensic chemist Ann Charlesworth testified that the substance seized from defendant\u2019s apartment was 33.45 grams of cocaine.\nDefendant offered no evidence on his own behalf, and the jury found defendant guilty of both (1) felony trafficking in more than 28 grams but less than 200 grams of cocaine by possession and (2) misdemeanor possession of drug paraphernalia. The trial court consolidated the convictions for sentencing and imposed a term of 35 to 42 months imprisonment and ordered defendant to pay a $50,000.00 fine. Defendant timely appealed to this Court.\nDiscussion\nDefendant argues that the trial court erred in denying his motion to suppress the evidence of the scales and cocaine seized at his apartment, as well- as in later admitting this evidence during trial. Because defendant did not object at trial to the admission of the evidence and testimony regarding the evidence, he failed to preserve this issue for appeal. See State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000) (holding pretrial motion to suppress is not sufficient to preserve for appeal question of admissibility of evidence where defendant does not also object at time evidence is offered at trial), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305, 121 S. Ct. 1379, 1380 (2001). Defendant, therefore, asks that this Court review the issue for plain error.\nDefendant first contends that the trial court violated N.C. Gen. Stat. \u00a7 15A-977(f) by failing to enter a written order on the motion to suppress that included findings of fact resolving all material conflicts in the evidence. N.C. Gen. Stat. \u00a7 15A-977(f) provides that in ruling on a motion to suppress, \u201c[t]he judge must set forth in the record his findings of facts and conclusions of law.\u201d \u201cThis statute has been interpreted as mandating a written order unless (1) the trial court provides its rationale from the bench, and (2) there are no material conflicts in the evidence at the suppression hearing.\u201d State v. Williams, 195 N.C. App. 554, 555, 673 S.E.2d 394, 395 (2009). If both of these criteria are met, the necessary findings of fact are implied from the denial of the motion to suppress. Id.\nHere, the trial court announced its rationale for the denial of the motion to suppress from the bench. Defendant contends, however, that a written order was nonetheless required because there was a material conflict in the evidence regarding whether Officer Scharf promised defendant that he would drop the trespass warrant in exchange for defendant\u2019s consent to the officers\u2019 searching his apartment.\nDefendant, on the one hand, testified that Officer Scharf \u201csaid if [defendant] let them search the house he\u2019d strike the trespass warrants . . . .\u201d Officer Scharf, on the other hand, explicitly stated that at no time during his contact with defendant did he make any promises to him. The trial court recognized this conflict, but stated that it believed \u201cthere is insufficient evidence\u201d for the court to resolve the conflict.\nDefendant\u2019s testimony was, however, sufficient standing alone to require the trial court to resolve the conflict (assuming the conflict was material to the motion to suppress). See State v. Biggs, 289 N.C. 522, 531, 223 S.E.2d 371, 377 (1976) (\u201cIn the present case the police officers testified that defendant waived his right to presence of counsel. Defendant testified that he did not. Under these circumstances it was incumbent upon the judge to make an express finding in this regard, and his failure to do so rendered the admission of defendant\u2019s inculpatory statements to [the officers] erroneous.\u201d); State v. Smith, 135 N.C. App. 377, 380, 520 S.E.2d 310, 312 (1999) (holding evidence as to whether defendant consented to search was conflicting when two detectives testified that defendant consented to search of room, while defendant testified that detectives neither requested nor received his permission to search room). Defendant was not required to present any evidence apart from his own testimony. It was then up to the trial court to decide whom to believe: defendant or the officers.\nThe key question remains, however, whether this conflict was material. The Fourth Amendment prohibits unreasonable searches and seizures. In State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997), the Supreme Court explained:\n\u201cIt is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.\u201d Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d 639, 651 [, 100 S. Ct. 1371,1380] (1980). Consent, however, 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. . . . For the warrantless, consensual search to pass muster under the Fourth Amendment, consent must be given and the consent must be voluntary. . . . Whether the consent is voluntary is to be determined from the totality of the circumstances.\nSee also N.C. Gen. Stat. \u00a7 15A-221 (2009) (authorizing warrantless search where voluntary consent is given). The burden is upon the State to prove the validity of consent, \u201cthe presumption being against the waiver of fundamental constitutional rights.\u201d State v. Vestal, 278 N.C. 561, 579, 180 S.E.2d 755, 767 (1971).\nHere, there is no dispute that defendant consented to the search. The issue is whether, considering the totality of the circumstances, that consent was voluntary. Our Supreme Court has expressly held that a trial court deciding the voluntariness of a defendant\u2019s consent must consider whether the defendant \u201cwas threatened or offered any promises or inducements in exchange for his consent to search.\u201d State v. Austin, 320 N.C. 276, 291, 357 S.E.2d 641, 650, cert. denied, 484 U.S. 916, 98 L. Ed. 2d 224, 108 S. Ct. 267 (1987). See also State v. Weavil, 59 N.C. App. 708, 711, 297 S.E.2d 772, 774 (1982) (holding motion to suppress properly denied when, inter alia, there was no evidence that defendant was \u201ccoerced by threats, promises or show of force\u201d).\nIn State v. Fuqua, 269 N.C. 223, 228, 152 S.E.2d 68, 72 (1967), the defendant was told by a police officer that the officer would testify as to the defendant\u2019s cooperation if the defendant would give a statement. The Supreme Court held that such a statement by a person in authority gave the defendant a clear hope for lighter punishment if he confessed, which rendered his confession involuntary and inadmissible. Id. In State v. Williams, 314 N.C. 337, 343, 333 S.E.2d 708, 713 (1985) (internal quotation marks omitted), this Court held that the principles set out in Fuqua were applicable in deciding whether a defendant\u2019s consent to a search of his automobile was \u201cgiven freely, voluntarily, and understanding^\u201d or whether it was \u201cinstead the product of promises and inducements of hope.\u201d Although the Court ultimately distinguished the facts in Williams from those in Fuqua, the Court\u2019s analysis and decision indicate that the issue whether there was a promise or inducement is material to whether a defendant\u2019s consent to a search was voluntary. Id. at 346-47, 333 S.E.2d at 715 (holding that once trial court resolved conflicts in voir dire testimony against defendant, its findings supported conclusion that officer did not make promise that was sufficient to render consent involuntary).\nIn light of these cases, we conclude that the conflict in the evidence as to whether the officers obtained defendant\u2019s consent by promising to drop the trespass charge was a material conflict. Consequently, the trial court violated N.C. Gen. Stat. \u00a7 15A-977(f) by failing to enter a written order setting out findings of fact resolving the material conflict in the evidence. \u201cFor this reason, we cannot determine as a matter of law whether or not the evidence seized violated defendant\u2019s Fourth Amendment rights.\u201d Smith, 135 N.C. App. at 380, 520 S.E.2d at 312.\nIn State v. Grogan, 40 N.C. App. 371, 375-76, 253 S.E.2d 20, 23-24 (1979), when the trial court failed to make the necessary findings regarding the defendant\u2019s motion to suppress, and, on appeal, this Court was \u201cunable to say that the introduction of the evidence sought to be suppressed . . . was harmless,\u201d the Court remanded for findings of fact. Here, the State would have had no evidence to support the charges in the absence of the evidence obtained in the search\u2014 specifically the cocaine and the scales. Since we cannot say that admission of the evidence in this case would not have had a probable effect on the verdict, we must, as in Smith, remand for the trial court to enter a written order with findings of fact and conclusions of law.\nThe State makes a curious argument that defendant waived any right to have written findings of fact. The State cites Elliott v. Estate of Elliott, 163 N.C. App. 577, 596 S.E.2d 819, cert. denied, 358 N.C. 731, 601 S.E.2d 530 (2004), and argues that \u201cwhen a record does not reveal a request for the trial judge to make findings of fact and conclusion [sic] of law an assignment of error asserting that the trial court failed to make those findings and conclusions is properly overruled.\u201d As Elliott was applying Rule 52(a)(2) of the Rules of Civil Procedure, and this case is, of course, a criminal case, we fail to see how Elliott has any relevance. N.C. Gen. Stat. \u00a7 15A-977(f) and the precedent under that statute are controlling.\nThe State also relies upon State v. Marsh, 187 N.C. App. 235, 239, 652 S.E.2d 744, 746 (2007), overruled in part on other grounds by State v. Tanner, 364 N.C. 229, 695 S.E.2d 97 (2010), in which the defendant challenged the sufficiency of the trial court\u2019s findings of fact under N.C. Gen. Stat. \u00a7 15A-977(f). In Marsh, however, the Court was not addressing the complete absence of a written order, but rather was reviewing an order with \u201ccursory\u201d findings. This Court concluded that those findings were, \u201cunder the circumstances of [that] case, adequate\u201d to support the trial court\u2019s order denying the defendant\u2019s motion to suppress. Id. Here, by contrast, \u201cthe circumstances\u201d involved a material conflict in the evidence that, Williams holds, necessitated a written order with findings of fact resolving the conflict.\nAlthough defendant claims that he is entitled to a new trial as a result of the trial court\u2019s omission, we disagree. Defendant relies on Biggs, 289 N.C. at 531, 223 S.E.2d at 377, in which the Supreme Court ordered a new trial after concluding that the trial court erred in admitting the defendant\u2019s statements to officers without first resolving a conflict in the evidence regarding whether the defendant had waived his right to counsel. Subsequent to Biggs, however, the Supreme Court held in State v. Booker, 306 N.C. 302, 312-13, 293 S.E.2d 78, 84 (1982), that a trial court\u2019s \u201cfailure to find facts resolving the conflicting voir dire testimony was prejudicial error requiring remand to the superior court for proper findings and a determination upon such findings of whether the inculpatory statement made to police officers by defendant during his custodial interrogation was voluntarily and understandingly made.\u201d In explaining its mandate, the Court observed: \u201cWhere there is prejudicial error in the trial court involving an issue or matter not fully determined by that court, the reviewing court may remand the cause to the trial court for appropriate proceedings to determine the issue or matter without ordering a new trial.\u201d Id. at 313, 293 S.E.2d at 84. Because, in Booker, the Court found no other prejudicial error apart from the inadequate findings as to voluntariness, the Court deemed it unnecessary to order a new trial. Id.\nBased on Booker, we hold that the trial court\u2019s failure to make written findings does not require remand for a new trial, but remand for further findings of fact. See also State v. Baker, 208 N.C. App. 376, 387, 702 S.E.2d 825, 832-33 (2010) (remanding for findings where court failed to make findings resolving material conflict in evidence as to whether reasonable person in defendant\u2019s position would not have felt free to leave); Smith, 135 N.C. App. at 380, 520 S.E.2d at 312 (remanding for findings where court failed to make findings resolving material conflict in evidence as to whether defendant voluntarily consented to search of his room).\nAccordingly, we remand for further findings of fact that resolve the material conflict in the evidence regarding whether a promise was made to defendant in order to obtain his consent to search his apartment. After the trial court makes the necessary findings, it must make appropriate conclusions of law based on those findings. If the trial court determines that the motion to suppress was properly denied, then defendant would not be entitled to a new trial because there would have been no error in the admission of the evidence, and his convictions would stand. If, however, the court determines that the motion to suppress should have been granted, defendant would be entitled to a new trial.\nRemanded.\nJudges McGEE and CALABRIA concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Lars R Nance, for the State.", "Guy J. Loranger for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ANTONIO DONNELL NEAL, Defendant\nNo. COA10-210\n(Filed 5 April 2011)\nSearch and Seizure\u2014 consent \u2014 material conflict in evidence\u2014 written findings required\nA conviction on cocaine charges was remanded where the trial court did not make written findings about whether a promise was made to defendant to obtain his consent for a search of his apartment.\nAppeal by defendant from judgment entered 16 September 2009 by Judge Calvin E. Murphy in Mecklenburg County Superior Court. Heard in the Court of Appeals 15 September 2010.\nAttorney General Roy Cooper, by Special Deputy Attorney General Lars R Nance, for the State.\nGuy J. Loranger for defendant-appellant." }, "file_name": "0645-01", "first_page_order": 653, "last_page_order": 665 }