                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-1384

                                 Filed: 6 December 2016

Gaston County, Nos. 11 CRS 64276, 64278

STATE OF NORTH CAROLINA

               v.

CALVIN LAMAR ADAMS


         Appeal by defendant from judgments entered 19 August 2015 by Judge Robert

T. Sumner in Gaston County Superior Court.            Heard in the Court of Appeals

26 May 2016.


         Attorney General Roy Cooper, by Associate Attorney General Paige Phillips, for
         the State.

         Jeffrey William Gillette for defendant-appellant.


         McCULLOUGH, Judge.


         Calvin Lamar Adams (“defendant”) appeals the denial of his motion to

suppress following the entry of judgments on his convictions for driving while

impaired (“DWI”) and resisting a public officer. For the following reasons, we find no

error.

                                   I.     Background

         On 7 October 2011, defendant was arrested and citations were issued for

driving while license revoked (“DWLR”), DWI, resisting a public officer, and
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possession of less than one-half ounce of marijuana.       Officers then sought and

obtained a search warrant for defendant’s house, vehicle, and person. Defendant’s

vehicle was seized during the execution of the search warrant on 8 October 2011. On

10 October 2011, defendant successfully petitioned for the pretrial release of his

vehicle pursuant to N.C. Gen. Stat. § 20-28(e2) on the ground that any period of

license revocation had expired prior to the date of the alleged offense. In an order

striking the storage fees for defendant’s vehicle, the district court noted that

defendant’s vehicle was seized in error because, although the DMV system showed

defendant’s license was revoked from 27 July 2011, defendant’s license was in fact

active from 29 August 2011 when defendant paid the civil revocation fee, even though

it was not sent to the DMV.

      After several motions to continue the matter, defendant’s case came on for trial

in Gaston County District Court before the Honorable Richard B. Abernathy. On

9 December 2014, the DWLR charge was dismissed, defendant was found not guilty

of possession of marijuana, and defendant was found guilty of impaired driving and

resisting a public officer. Defendant gave notice of appeal.

      Prior to his case coming on for trial in superior court, on 6 March 2015,

defendant filed a motion to suppress all evidence obtained during and subsequent to

his seizure on the bases that his seizure was unlawful, entry into his home was

unlawful, and his arrest was unlawful – all in violation of defendant’s constitutional



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rights. Defendant elaborated as follows: “[s]pecifically, law enforcement officers

unlawfully seized [defendant] without the requisite reasonable suspicion and

unlawfully entered his residence without a warrant or probable cause to arrest him.

Moreover, those officers arrested him without probable cause.”

      Defendant’s motion to suppress came on for hearing in Gaston County Superior

Court before the Honorable Todd Pomeroy on 22 April 2015. The evidence presented

at the suppression hearing tended to show as follows: Gastonia Police Officer C.

Singer was on routine patrol with Officer R. Ghant on 7 October 2011 when, at

approximately 11:00 p.m., Officer Singer observed defendant driving a vehicle

eastbound on Meade Avenue in the opposite direction the officers were traveling.

Officer Singer was familiar with defendant and defendant’s vehicle because he had

stopped defendant and charged defendant with DWI on 27 July 2011, approximately

three months prior. Officer Singer knew defendant’s license had been suspended as

a result of the July DWI and turned around to follow defendant in time to observe

defendant pull into his driveway from Meade Avenue. Officer Singer then had Officer

Ghant run defendant’s tag and license information through DCI, which confirmed

that defendant’s license was revoked.

      Upon the belief that defendant was driving while his license was suspended,

Officer Singer pulled into defendant’s driveway directly behind defendant’s vehicle

and initiated a traffic stop by activating his blue lights. By the time Officer Singer



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activated his lights, defendant had exited from the driver’s seat of his vehicle and was

approximately 15-20 feet away from the front door of his residence, walking toward

the front door. At that time, Officer Ghant instructed defendant to stop and to get

back inside his car. Despite having a boot on one of his feet as the result of an injury,

defendant picked up his pace toward the front door and Officer Singer advised him to

stop running. Officer Ghant pursued defendant while Officer Singer grabbed the in-

car camera mic. Defendant entered the front door and then attempted to close the

front door on Officer Ghant. Officer Ghant was able to keep the front door from

shutting and held the door open until Officer Singer arrived. The officers were then

able to force the front door open and made physical contact with defendant just inside

the front door. Officer Singer then patted defendant down for a safety check and

found what he believed was a bag of marijuana in defendant’s pocket. Defendant was

arrested and charged with DWLR, possession of marijuana, and resisting a public

officer. Further observation of defendant after his arrest led Officer Singer to believe

defendant was impaired. Consequently, another officer was called to perform field

sobriety tests. Defendant was then additionally charged with DWI.

      Following the evidence, defendant focused his argument for suppression on the

officer’s alleged illegal entry into defendant’s residence. The State argued the officers

were in hot pursuit. Upon consideration of the facts and arguments, the trial judge

denied defendant’s motion to suppress, concluding there was reasonable suspicion to



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stop defendant’s vehicle for DWLR and probable cause to arrest for resisting a public

officer once defendant ignored the blue lights and verbal commands to stop and

entered his residence.

      Defendant’s DWI and resisting a public officer charges came on for trial in

Gaston County Superior Court before the Honorable Robert T. Sumner on

17 August 2015. Prior to jury selection, the trial court addressed additional pretrial

matters. Upon consideration of those matters, the trial court overruled defendant’s

objection to the introduction of a chemical analyst’s affidavit into evidence, granted

defendant’s motion to exclude mention of prior DWI and DWLR charges against

defendant, and denied defendant’s motion to exclude marijuana evidence.           The

defense then alerted the trial judge that defendant’s motion to suppress had been

denied and, consequently, the defense may object when certain evidence or testimony

was introduced. The trial then proceeded.

      On 19 August 2015, the jury returned verdicts finding defendant guilty of DWI

and resisting a public officer. The convictions were consolidated and an impaired

driving judgment was entered.      Defendant received a 60-day sentence that was

suspended on condition that defendant serve 24 months of unsupervised probation.

Defendant gave notice of appeal in open court.

                                  II.    Discussion




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      On appeal, defendant argues the trial court erred in denying his motion to

suppress because the officers’ entry into his residence to arrest him was unlawful.

Thus, defendant contends all evidence of his impairment obtained as a result of the

alleged unlawful entry was tainted and must be suppressed.

      Yet, as an initial matter, we address the State’s contention that defendant

waived the argument now asserted on appeal. It has long been the rule that “[i]n

order to preserve a question for appellate review, a party must have presented the

trial court with a timely request, objection or motion, stating the specific grounds for

the ruling sought if the specific grounds are not apparent.” State v. Eason, 328 N.C.

409, 420, 402 S.E.2d 809, 814 (1991); see also N.C. R. App. P. 10(a)(1) (2015). In this

case, the State contends defendant waived his argument on appeal by failing to

include the precise argument on appeal in his pretrial motion to suppress and by

failing to object when evidence of his impairment was introduced at trial.           We

disagree that defendant failed to adequately include the argument on appeal in his

pretrial motion, but agree that defendant failed to object to evidence offered at trial.

      N.C. Gen. Stat. § 15A-977 governs motions to suppress evidence in superior

court and provides, in pertinent part, that “[a] motion to suppress evidence in

[S]uperior [C]ourt made before trial must be in writing and . . . must state the grounds

upon which it is made.” N.C. Gen. Stat. § 15A-977(a) (2015). The State asserts that

the only grounds for suppression identified by defendant in the pretrial motion were



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that there was no reasonable suspicion for the initial stop of defendant and there was

no probable cause to believe defendant was involved in criminal activity. The State

then contends that defendant abandoned those two grounds during the suppression

hearing and argued only that there were no exigent circumstances warranting hot

pursuit. The State contends the lack of exigent circumstances is the argument now

asserted on appeal and that it was not contained in defendant’s pretrial motion to

suppress. We are not convinced. It is clear from defendant’s motion that defendant

asserts there was an unlawful entry into his residence to arrest him “without a

warrant and without exigent circumstances.” While the motion does not mention “hot

pursuit,” the motion was sufficient to preserve the issue now on appeal.

      Concerning preservation of the issues at trial, “[t]he law in this State is now

well settled that ‘a trial court's evidentiary ruling on a pretrial motion [to suppress]

is not sufficient to preserve the issue of admissibility for appeal unless a defendant

renews the objection during trial.’ ” State v. Hargett, __ N.C. App. __, __, 772 S.E.2d

116, 119 (2015) (quoting State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821

(2007) (citations omitted; emphasis in original)). In defendant’s motion, defendant

sought to suppress all evidence obtained subsequent to the officers’ entry into

defendant’s residence to arrest defendant.        As indicated above, all evidence of

impairment necessary to prove the DWI charge was obtained after defendant was

arrested. It is evident defense counsel was aware of the need to renew objections to



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the evidence at trial as defense counsel informed the judge prior to jury selection that

defendant’s motion to suppress had been denied and, consequently, the defense may

object when certain evidence or testimony was introduced. Defense counsel, however,

failed to do so when evidence of impairment was admitted at trial. Specifically,

Officer Singer testified that after defendant was detained, he noticed defendant had

slurred speech and bloodshot eyes. Officer Singer also testified that he found an

empty bottle of hydrocodone and a bag of what he believed to be marijuana in

defendant’s pocket. Officer Ewers, who was called to perform field sobriety tests on

defendant, testified that defendant appeared lethargic, defendant’s eyelids were

droopy, and defendant’s eyes were bloodshot. Officer Ewers then explained that

defendant had trouble following directions during a horizontal gaze nystagmus test,

leading him to believe defendant was impaired. Linda Farren, a forensic scientist

supervisor with the State Crime Laboratory who was admitted as an expert in

forensic toxicology, testified that defendant’s blood samples tested positive for

benzodiazepines, specifically alprazolam or Xanax, and cannabinoids. The chemical

analyst’s report was then admitted into evidence without objection. Defendant does

not dispute that the above evidence of impairment was admitted without objection,

but instead points out that defense counsel objected when the State sought to admit

the bag of marijuana found on defendant as State’s Exhibit 1. Defendant contends it

is clear from the “object[ion] on the Fourteenth Amendment” that defense counsel



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intended to preserve the suppression motion and “it would be wrong to assume

[defendant] intended to waive his objection[.]” We disagree. Defendant’s objection to

the marijuana evidence does not preserve for appellate review the admissibility of all

evidence of impairment obtained following defendant’s arrest.           In fact, despite

defendant’s objection to the admission of the bag of marijuana, other evidence of

defendant’s possession of the marijuana was introduced into evidence without

objection. See State v. Alford, 339 N.C. 562, 570, 453 S.E.2d 512, 516 (1995) (“Where

evidence is admitted over objection and the same evidence has been previously

admitted or is later admitted without objection, the benefit of the objection is lost.”).

By failing to object to the other evidence obtained subsequent to his arrest, defendant

waived review.

      Defendant, however, seeks to have this Court invoke Rule 2 of the North

Carolina Rules of Appellate Procedure to review the merits of his case if his

arguments are not otherwise preserved. That rule allows this Court to “suspend or

vary the requirements or provisions of any of [the appellate rules] in a case pending

before it upon application of a party or upon its own initiative[]” in order to prevent

manifest injustice to a party. N.C. R. App. P. 2 (2016). In our discretion, we invoke

Rule 2 and reach the merits of this case.

      Generally, 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



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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).

“When findings of fact are not challenged on appeal, ‘such findings are presumed to

be supported by competent evidence and are binding on appeal.’ ”               State v.

Washington, 193 N.C. App. 670, 672, 668 S.E.2d 622, 624 (2008) (quoting State v.

Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984) (internal quotation marks

omitted)), disc. review denied, 363 N.C. 138, 674 S.E.2d 420 (2009). “The trial court’s

conclusions of law . . . are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200,

208, 539 S.E.2d 625, 631 (2000). “ ‘[T]he trial court's conclusions of law must be

legally correct, reflecting a correct application of applicable legal principles to the

facts found.’ ” State v. Golphin, 352 N.C. 364, 409, 533 S.E.2d 168, 201 (2000) (quoting

State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997)), cert. denied, 532 U.S.

931, 149 L. Ed. 2d 305 (2001).

      However, because there was no objection to the evidence below, defendant

asserts the proper standard of review in the present case upon invoking Rule 2 is

plain error.

               For error to constitute plain error, a defendant must
               demonstrate that a fundamental error occurred at trial. To
               show that an error was fundamental, a defendant must
               establish prejudice—that, after examination of the entire
               record, the error had a probable impact on the jury's
               finding that the defendant was guilty.


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State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal quotation

marks and citations omitted).

      While we agree plain error review is proper, it makes no difference in this case

because if the trial court erred in denying defendant’s motion to suppress, it is certain

that the error was fundamental because there would be no evidence of impairment to

support the DWI charge if defendant’s motion to suppress had been allowed. Thus,

in the present case, where there is no dispute as to the relevant facts, we address only

the application of search and seizure law.

      “Both the United States and North Carolina Constitutions protect against

unreasonable searches and seizures.” State v. Otto, 366 N.C. 134, 136, 726 S.E.2d

824, 827 (2012) (citing U.S. Const. amend. IV; N.C. Const. art. I, § 20). The Supreme

Court has emphasized that “the ‘physical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed.’ ” Welsh v. Wisconsin, 466

U.S. 740, 748, 80 L. Ed. 2d 732, 742 (1984) (quoting United States v. United States

District Court, 407 U.S. 297, 313, 32 L. Ed. 2d 752 (1972)). Therefore, “the Court has

recognized, as ‘a “basic principle of Fourth Amendment law[,]” that searches and

seizures inside a home without a warrant are presumptively unreasonable.’ ” Id. at

749, 80 L. Ed. 2d at 742 (quoting Payton v. New York, 445 U.S. 573, 586, 63 L. Ed. 2d

639 (1980)). Yet, there are exceptions to the warrant requirement, which the Court

has noted are “few in number and carefully delineated.” Id. at 749, 80 L. Ed. 2d at



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743 (citation omitted). A warrantless arrest in the home may be reasonable where

there is probable cause and exigent circumstances. Id. (citing Payton, 445 U.S. at

583-90, 63 L. Ed. 2d 639).

             With respect to exigent circumstances, this Court has
             explained: Exigent circumstances exist when there is [a]
             situation that demands unusual or immediate action and
             that may allow people to circumvent usual procedures. . . .
             The United States Supreme Court has approved the
             following exigent circumstances justifying warrantless
             searches and seizures: (1) where law enforcement officers
             are in “hot pursuit” of a suspect; (2) where there is
             immediate and present danger to the public or to law
             enforcement officers; (3) where destruction of evidence is
             imminent; and (4) where the gravity of the offense for
             which the suspect is arrested is high.

State v. Jordan, __ N.C. App. __, __, 776 S.E.2d 515, 519 (internal quotation marks

and citations omitted), disc. review denied, 368 N.C. 358, 778 S.E.2d 85 (2015). “A

determination of whether exigent circumstances are present must be based on the

‘totality of the circumstances.’ ” State v. Nowell, 144 N.C. App. 636, 643, 550 S.E.2d

807, 812 (2001), aff’d per curiam, 355 N.C. 273, 559 S.E.2d 787 (2002).

      Defendant now contends there were no exigent circumstances warranting

entry into defendant’s home to arrest defendant. We disagree.

      It is undisputed that the officers had reasonable suspicion to initiate an

investigatory stop of defendant for DWLR when they pulled into defendant’s

driveway behind him and activated the blue patrol car lights as defendant was exiting

his vehicle and making his way toward his front door. Defendant did not stop for the


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blue lights and then continued hurriedly toward the front door after the officers told

defendant to stop. At that point, the officers had probable cause to arrest defendant

for resisting a public officer and began a “hot pursuit” of defendant, one of the exigent

circumstances delineated by the courts. The officers arrived at the front door of

defendant’s residence just as defendant made his way across the threshold and were

able to prevent defendant from closing the door. Officers then forced the front door

open and detained and arrested defendant just inside the front door. We hold such

warrantless entry and arrest was proper under United States v. Santana, 427 U.S.

38, 49 L. Ed. 2d 300 (1976).

      In Santana, the Supreme Court addressed whether hot pursuit justified the

warrantless entry into the home of a defendant to arrest that defendant when the

defendant retreated from the threshold of the house into the vestibule upon the

arrival of the police. Relying on United States v. Watson, 423 U.S. 411, 46 L. Ed. 2d

598 (1976) (a warrantless arrest of an individual in a public place upon probable cause

did not violate the Fourth Amendment), the Court first held that the defendant was

in a public place for purposes of Fourth Amendment jurisprudence while standing in

the doorway to the house because she was not in an area where she had any

expectation of privacy. Santana, 427 U.S. at 42, 49 L. Ed. 2d at 305. Relying on

Warden v. Hayden, 387 U.S. 294, 18 L. Ed. 2d 782 (1967) (police, who had probable

cause to believe that an armed robber had entered a house a few minutes before, had



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the right to make a warrantless entry to arrest the robber and to search for weapons),

the Court then held that “a suspect may not defeat an arrest which has been set in

motion in a public place, and is therefore proper under Watson, by the expedient of

escaping to a private place.” Santana, 427 U.S. at 43, 49 L. Ed. 2d at 306.

      In the present case, defendant does not argue the officers were not in hot

pursuit, but instead contends the officers’ entry into defendant’s residence was

unreasonable because there was no threat of violence, no evidence subject to

destruction, and no likelihood of defendant fleeing his own home to elude detection.

Defendant’s assertions, however, fail to recognize that defendant was considered

fleeing when he failed to stop upon the activation of the blue lights and the officers’

commands to stop. As the Court recognized in Santana, “[t]he fact that the pursuit

here ended almost as soon as it began did not render it any the less a ‘hot pursuit’

sufficient to justify the warrantless entry into [defendant’s] house.” Id. at 43, 49 L.

Ed. 2d at 305. Moreover, defendant conflates the exigent circumstances recognized

by this Court in Jordan. While the Court in Santana did note that “[o]nce [the

defendant] saw the police, there was likewise a realistic expectation that any delay

would result in destruction of evidence[,]” id., that observation was separate and

apart from the hot pursuit justification for the warrantless entry and arrest. Hot

pursuit has been recognized as an exigent circumstance sufficient to justify a




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warrantless entry and arrest when there is probable cause without consideration of

immediate danger or destruction of evidence.

      Defendant also argues the officers’ decision to engage in hot pursuit was

unreasonable. Defendant cites State v. Johnson, 64 N.C. App. 256, 307 S.E.2d 188

(1983), for the proposition that the reasonableness of hot pursuit is based on the

presence of exigent circumstances before the chase begins. Upon review, it is clear

Johnson is not instructive here.

      In Johnson, officers obtained arrest warrants for two individuals believed to

be located at the defendant’s residence, went to the defendant’s residence to serve the

arrest warrants, and, upon arrival, chased an individual falsely believed to be

identified in one of the arrest warrants into the defendant’s residence, whereupon the

officers discovered controlled substances. Johnson, 64 N.C. App. at 258-59, 307

S.E.2d at 189-90. Upon review of the trial court’s denial of the defendant’s motion to

suppress, this Court reversed, holding that “no exigent circumstances existed that

would justify the warrantless entry into [the] defendant's house and the later seizure

of the evidence which [the] defendant seeks to suppress.” Id. at 264, 307 S.E.2d at

193. In so holding, this Court acknowledged that the State relied on hot pursuit to

justify the warrantless entry, but explained that “[i]n so doing, the State seeks to

focus [the Court’s] attention on events that occurred after the point in time when a

judgment as to whether a search warrant was required should already have been



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made.” Id. at 262, 307 S.E.2d 191. This Court pointed out that over three and a half

hours elapsed between when officers received the arrest warrants and when they

attempted to execute the warrants, noting there was ample time to get a search

warrant. Id. at 263, 307 S.E.2d at 192. This Court then specifically noted that it

“need not consider whether [the officer] was in ‘hot pursuit’ and whether that alone

was sufficient to justify his entry into [the] defendant's home. The need for a search

warrant should have been anticipated in this case.” Id. Upon further appeal to our

Supreme Court, the Court took issue with this Court’s conclusions because the

evidence and findings of fact were insufficient to support this Court’s conclusions that

“it would appear that the arrest raid was in fact a planned raid[,]” “there was ample

time to secure a search warrant and ample reason to anticipate the need for one[,]”

and “the need for a search warrant should have been anticipated in this case.” State

v. Johnson, 310 N.C. 581, 587-88, 313 S.E.2d 580, 584 (1984) (internal citations and

alterations in original omitted). Thus, the Court remanded the case for new voir dire

proceedings. Id. at 589, 313 S.E.2d at 584-85. The Court did, however, reemphasize

the issue of hot pursuit was not determinative in the case, explaining that

             while in this case, it is evident that, at the time of entry
             into defendant's home, [the officer] was engaged in the “hot
             pursuit” of a person he suspected to be a fugitive, the issue
             remains as to whether there was an unjustified delay or
             failure to obtain a search warrant after the existence of
             probable cause as to the whereabouts of the suspects.

Id. at 586, 313 S.E.2d at 583.


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      Similarly, other cases relied on by defendant, such as Welsh, 466 U.S. 740, 80

L. Ed. 2d 732 (warrantless entry into the defendant’s home to arrest him for a

noncriminal traffic offense was unconstitutional), which defendant cites for the

holding “that an important factor to be considered when determining whether any

exigency exists is the gravity of the underlying offense for which the arrest is being

made[,]” id. at 753, 80 L. Ed. 2d at 745, are not instructive because they do not involve

hot pursuit. See id. (noting “the claim of hot pursuit is unconvincing because there

was no immediate or continuous pursuit of the petitioner”).

      As described above, in this case, the officers initiated an investigatory stop for

DWLR in front of defendant’s residence and then pursued defendant into his

residence to arrest him for resisting a public officer when he did not obey their orders

to stop. By definition, this was hot pursuit.

                                   III.   Conclusion

      For the reasons discussed, we invoke Rule 2 to reach the merits of defendant’s

argument and hold there was no error below.

      NO ERROR.

      Judges STEPHENS and ZACHARY concur.




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