                                     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
                                               -2-
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
                                   -3-
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
                                            -4-
            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).
                                         -5-
                                 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.
                                      -6-
                          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.
                                          -7-
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
                                           -8-
(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
                                          -9-
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
                                          -10-
              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
                                      -11-
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
                                  -12-
           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.
                                              -13-
    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
                                             -14-
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.
                              -15-
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.
                                            -16-


       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
                                     -17-
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
                                    -18-
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
                                              -19-
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
                                      -20-
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
                                        -21-
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
                                            -22-
       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
                                          -23-
            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
                                         -24-
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.
