              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA16-407

                                Filed: 20 December 2016

Guilford County, No. 13CRS065579-80

STATE OF NORTH CAROLINA

             v.

KEVIN JOHN KIRKMAN, Defendant.


      Appeal by defendant from order entered 4 September 2015 by Judge Eric C.

Morgan and appeal by defendant upon writ of certiorari from judgment entered 10

November 2015 by Judge Richard L. Doughton in Superior Court, Guilford County.

Heard in the Court of Appeals 6 October 2016.


      Attorney General Roy A. Cooper, III, by Assistant Attorney General Shawn R.
      Evans, for the State.

      David Weiss, for defendant-appellant.


      STROUD, Judge.


      Defendant appeals order denying his motion to suppress and judgment for

drug-related convictions.    The trial court properly denied defendant’s motion to

suppress and had jurisdiction to correct defendant’s sentence since defendant’s

defective notice of appeal did not divest the trial court of jurisdiction. But as the State

concedes, the trial court erred by not giving defendant an opportunity to withdraw

his plea upon resentencing him. As explained in more detail below, we therefore
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                                 Opinion of the Court



affirm the order denying the motion to suppress but reverse the judgment and

remand.


                                     I.    Background


      On or about 18 March 2013, defendant was indicted for maintaining a dwelling

for keeping or selling marijuana and two counts of trafficking in marijuana. In March

of 2014, defendant filed a motion to suppress “any and all evidence” seized from his

home, alleging that the officers did not establish probable cause for the search

warrant which authorized the search of his home. On 4 September 2015, the trial

court denied defendant’s motion to suppress and made the following findings of fact

which are not contested on appeal:


                   1.     On or about January 1, 2013, Officer C.S.
                          Bradshaw of the Greensboro Police
                          Department received information from a
                          confidential source, that defendant was
                          growing and selling marijuana.

                   2.     In the application for the search warrant
                          received in evidence as State’s Exhibit 1,
                          Officer    Bradshaw,     noting    that  the
                          confidential informant was reliable, set out
                          further specific information provided by the
                          confidential    informant,    including  the
                          following: (a) that defendant was growing
                          and selling marijuana from his residence . . .
                          (b) that there was a large grow operation in
                          the home, and (c) that there were generators
                          running the lights. Officer Bradshaw further
                          stated that the confidential informant was

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       familiar with the appearance of illegal
       narcotics and that all previous information
       from the confidential informant had proven to
       be truthful and accurate to the best of Officer
       Bradshaw’s knowledge.

....

11.    Officers Bradshaw, Trimnal and Armstrong
       then decided to perform a “knock and talk”
       procedure to make inquiry further at the
       residence.

12.    Officer Bradshaw testified that he had
       substantial experience in investigating
       narcotics matters, had made numerous
       arrests specifically related to marijuana, and
       had received specific training as to narcotics
       and the indications of marijuana growing
       activity such as mold and condensation,
       resulting from humidity, on the windows of
       marijuana “grow houses.”

....

14.    As Officer Bradshaw approached the house on
       the walkway to the front door, Officer
       Bradshaw noticed, in plain view to the right
       of the doorway, windows on the front right of
       the home that had substantial mold and
       condensation, as seen in State’s Exhibits 3
       and 4. In Officer Bradshaw’s training and
       experience, this was consistent with the heat
       and humidity associated with marijuana
       growing operations.

15.    When Officer Bradshaw reached the front
       porch, he also heard, from the front porch, a
       loud sound consistent with an electrical
       generator running inside the home, which


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                           was also consistent with the information
                           provided by the confidential informant.

                    ....

                    19.    When Officer Trimnal approached the left
                           side door and knocked, he smelled the odor of
                           marijuana, and Officer Bradshaw also came
                           over to the left side door, and he also smelled
                           the odor of marijuana plainly and from
                           outside the left side door of the home.

                    ....

                    21.    Officers Bradshaw and Armstrong then
                           sought the Warrant[.]

      On 3 November 2015, defendant filed a written notice of appeal from the order

denying his motion to suppress.       On 10 November 2015, defendant pled guilty

pursuant to an Alford plea to all of the charges against him, and the trial court

entered judgment sentencing defendant to 25 to 30 months imprisonment. After

receiving notification from the North Carolina Department of Public Safety that

defendant’s minimum and maximum terms of imprisonment as set forth in the

judgment were incorrect, on 12 February 2016, the trial court entered another

judgment sentencing defendant instead to 25 to 39 months imprisonment. In May of

2016, based upon his recognition of a defect in his notice of appeal, defendant filed a

petition for writ of certiorari before this Court.

                             II.    Petition for Writ of Certiorari

      According to defendant’s petition “he lost the right of appeal by failing to give


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proper notice of appeal, and on the further ground that in Issue III of his brief, he

seeks to challenge the procedures employed in his plea hearing, for which there is no

right of appeal.” The trial court rendered its decision to deny defendant’s motion to

suppress, and thereafter defendant entered into a plea agreement. On the same day

as defendant’s sentencing hearing and before judgment was entered, defendant’s

attorney filed a notice of appeal from the order denying defendant’s motion to

suppress. Thereafter, defendant did not file a timely appeal from the order denying

his motion to suppress, and in fact, even his oral notice to appeal given immediately

after judgment was rendered appears to give notice of appeal only of the denial of his

motion to suppress and not the actual judgment sentencing him.

      A few months later, the trial court resentenced defendant to correct a prior

error; this correction resulted in defendant’s maximum sentence increasing by nine

months although his minimum sentence remained the same. Defendant did not

appeal the resentencing judgment but has since filed this petition for certiorari. The

State “concede[s] that it was error for the trial court, at the new sentencing hearing[,]

. . . not to allow defendant an opportunity to withdraw his plea where the sentence

was greater than what he agreed to in his plea agreement[,]” and thus it would be

appropriate for this Court to consider defendant’s appeal.

      Pursuant to North Carolina Rule of Appellate Procedure 21, we allow

defendant’s petition for certiorari. See State v. Biddix, ___ N.C. App. ___, ___, 780



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S.E.2d 863, 866 (2015) (“N.C. Gen. Stat. § 15A–1444(e) states a defendant who enters

a guilty plea may seek appellate review by certiorari, Appellate Rule 21(a)(1) is

entitled Certiorari, and provides the procedural basis to grant petitions for writ of

certiorari under the following situations: (1) when the right to prosecute an appeal

has been lost by failure to take timely action[.]” (citation and quotation marks

omitted)). Furthermore, to the extent defendant’s appeal invokes challenges to his

guilty plea not normally appealable, we invoke Rule 2 of the Rules of Appellate

Procedure in order “to prevent manifest injustice” as this is a rare situation where

both parties concede the trial court erred in sentencing defendant. N.C.R. App. P. 2;

see Biddix, ___ N.C. App. at ___, 780 S.E.2d at 868 (“Under Appellate Rule 2, this

Court has discretion to suspend the appellate rules either upon application of a party

or upon its own initiative. Appellate Rule 2 relates to the residual power of our

appellate courts to consider, in exceptional circumstances, significant issues of

importance in the public interest, or to prevent injustice which appears manifest to

the Court and only in such instances. This Court’s discretionary exercise to invoke

Appellate Rule 2 is intended to be limited to occasions in which a fundamental

purpose of the appellate rules is at stake, which will necessarily be rare occasions.”

(citations and quotation marks omitted)).      We thus turn to defendant’s issues on

appeal.

                                 III.   Motion to Suppress



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      Defendant first challenges the denial of his motion to suppress on two separate

grounds: (1) the “knock and talk” was a mere “guise” which allowed officers to

surround his home and far exceeded the scope of a proper “knock and talk” and (2)

the search warrant was deficient because it was based on an unsubstantiated

anonymous tip.

                    The standard of review for a trial court’s order
             denying a motion to suppress is 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. If a defendant does
             not challenge a particular finding of fact, such findings are
             presumed to be supported by competent evidence and are
             binding on appeal. The trial court’s conclusions of law,
             however, are fully reviewable on appeal.

State v. Medina, 205 N.C. App. 683, 685, 697 S.E.2d 401, 403 (2010) (citations and

quotation marks omitted).

A.    Knock and Talk

      Defendant does not challenge any of the findings of fact regarding the knock

and talk but only the conclusions of law determining the knock and talk was lawful.

We first note that we will refer to the officers’ approach to defendant’s home as a

“knock and talk,” since that is the term used by defendant and in cases, although we

also note that there was no “talk” in this case since no one answered the door after

the officers knocked. The only evidence from the knock and talk was from the officers’

observations from the exterior of the home of the conditions of the windows and


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hearing the sound of the generator. This was really a knock, look, and listen.

      Yet defendant raises an interesting legal question not directly addressed by

either party, since most knock and talk cases deal with warrantless searches. See,

e.g., State v. Smith, 346 N.C. 794, 800, 488 S.E.2d 210, 214 (1997) (“Knock and talk

is a procedure utilized by law enforcement officers to obtain a consent to search when

they lack the probable cause necessary to obtain a search warrant. That officers

approach a residence with the intent to obtain consent to conduct a warrantless

search and seize contraband does not taint the consent or render the procedure per

se violative of the Fourth Amendment.” (citation and quotation marks omitted)); State

v. Marrero, ___ N.C. App. ___, ___, 789 S.E.2d 560, 564 (2016) (“A knock and talk is

a procedure by which police officers approach a residence and knock on the door to

question the occupant, often in an attempt to gain consent to search when no probable

cause exists to obtain a warrant.” (quotation marks omitted)); State v. Dulin, ___ N.C.

App. ___, ___, 786 S.E.2d 803, 810 (2016) (“In Grice, police officers who approached

the door of the defendant’s home for a knock and talk noticed some plants growing in

containers in an unfenced area about fifteen yards from the residence. The officers

recognized the plants as marijuana, seized them, and later arrested the defendant.

The defendant argued that evidence of the plants should have been suppressed

because the officers’ warrantless search and seizure of the plants violated the Fourth

Amendment, as the plants were within the curtilage of his home and thus were



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protected.” (citation and quotation marks omitted)). In this case, based upon all of

the information the officers already had, including the informant’s tip, the further

investigation which supported the tip, and the conditions which the officers observed

outside the home, the officers then obtained a search warrant before going inside the

home and ultimately seizing any of the property which defendant attempts to

suppress in his motion.

      Defendant’s brief makes much of the “coercive” nature of the officers’ approach

to the home, since three officers simultaneously approached his front and side door.

But again, this was a knock, look, and listen; there was no talking. Since defendant

was not home at the time and no one else was in the home, as far as the record shows,

we do not know who could have been coerced. Defendant further contends that “[n]o

North Carolina appellate decision has analyzed, let alone approved practice whereby

officers simultaneously go to multiple doors and surround the front of a home[.]” In

one case, this Court did discuss that it was problematic in that particular situation

for officers to go to the defendant’s back door but did not address any issue regarding

officers approaching front and side doors for a knock and talk. See generally State v.

Pasour, 223 N.C. App. 175, 741 S.E.2d 323 (2012) (stating as the general facts that

officers approached the front and side doors and only addressing the unlawful

approach to the back door). However, even assuming arguendo that any information

gained from the approach of the side door was unlawfully obtained and therefore



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should be suppressed, the fact remains that Officer Bradshaw lawfully approached

from the front of the home where he heard the generator and noticed condensation

and mold, all factors which in his experience and training were consistent with

conditions of a home set up to grow marijuana.

      When the officers approached defendant’s home, they were in the process of

seeking additional information to substantiate the claims of the confidential

informant. The investigation started with the tip from the informant; then Officer

Bradshaw did further investigation which fully supported the informant’s claims.

Only then did the officers approach defendant’s home to do the knock and talk, and

even approaching from the front door of the home, Officer Bradshaw was able to

observe conditions at the home which further substantiated the informant’s tip. It

is well established that an officer may approach the front door of a home, see, e.g.,

State v. Smith, ___ N.C. App. ___, ___, 783 S.E.2d 504, 509 (2016) (“[I]n North

Carolina, law enforcement officers may approach a front door to conduct ‘knock and

talk’ investigations that do not rise to the level of a Fourth Amendment search.” See

State v. Tripp, 52 N.C. App. 244, 249, 278 S.E.2d 592, 596 (1981) (‘Law enforcement

officers have the right to approach a person’s residence to inquire as to whether the

person is willing to answer questions.’) (internal citations omitted); see also State v.

Church, 110 N.C. App. 569, 573–74, 430 S.E.2d 462, 465 (1993) (‘[W]hen officers enter

private property for the purpose of a general inquiry or interview, their presence is



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proper and lawful. . . . [O]fficers are entitled to go to a door to inquire about a matter;

they are not trespassers under these circumstances.’”)), and if he is able to observe

conditions from that position which indicate illegal activity, it is completely proper

for him to act upon that information.

         Ultimately, the officers did get a search warrant for the search which led to the

seizure of defendant’s contraband. Thus, the real issue is not the knock and talk, but

whether there was probable cause to issue the search warrant. Defendant’s challenge

to the knock and talk is actually a challenge of the search warrant since information

from the knock and talk is part of the factual basis for the issuance of the warrant.

But the officers’ observations at the house were only a small part of the information

upon which the warrant was issued. Thus, we turn to defendant’s next challenge, the

confidential informant.

B.       Confidential Informant

         Defendant contends that the search warrant was improperly issued because

the confidential informant was not sufficiently reliable to form the basis of probable

cause.

                      In determining whether probable cause exists for
               the issuance of a search warrant, our Supreme Court has
               provided that the totality of the circumstances test is to be
               applied. Under the totality of the circumstances test,
                      the task of the issuing magistrate is simply to
                      make a practical, common sense decision
                      whether, given all the circumstances set forth
                      in the affidavit before him, including the


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                     veracity and basis of knowledge of persons
                     supplying hearsay information, there is a fair
                     probability that contraband or evidence of a
                     crime will be found in a particular place. And
                     the duty of a reviewing court is simply to
                     ensure that the magistrate had a substantial
                     basis for concluding that probable cause
                     existed.

State v. Benters, 231 N.C. App. 295, 300, 750 S.E.2d 584, 588 (2013) (citations,

quotation marks, ellipses, and brackets omitted), aff’d, 367 N.C. 660, 766 S.E.2d 593

(2014). In State v. McKoy, this Court explained that

                    [t]his court has already established the irreducible
             minimum circumstances that must be set forth in support
             of an informant’s reliability to sustain a warrant. In
             Altman, the affiant’s statement that the confidential
             informant has proven reliable and credible in the past was
             held to meet the minimum standards to sustain a warrant.
             In the present case, the affiant’s statement that the
             confidential informant had given this agent good and
             reliable information in the past that had been checked by
             the affiant and found to be true also meets this minimum
             standard.

16 N.C. App. 349, 351–52, 191 S.E.2d 897, 899 (1972) (citation, quotation marks, and

ellipses omitted).

      Here, the trial court found that the search warrant stated the

             confidential informant was reliable, [and] set out further
             specific information provided by the confidential
             informant, including the following: (a) that defendant was
             growing and selling marijuana from his residence . . . (b)
             that there was a large grow operation in the home, and (c)
             that there were generators running the lights. Officer
             Bradshaw further stated that the confidential informant


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             was familiar with the appearance of illegal narcotics and
             that all previous information from the confidential
             informant had proven to be truthful and accurate to the
             best of Officer Bradshaw’s knowledge.

In context, describing the informant as “reliable” is a succinct way of saying that the

officer was familiar with the informant and the informant had provided accurate

information in the past. In addition, the warrant affidavit stated, “All previous

information provided by [the confidential informant] has proven truthful and

accurate to the best of [Officer Bradshaw’s] knowledge.” We conclude that Officer

Bradshaw’s statement in the affidavit attached to the warrant regarding prior

truthful statements provided by the confidential informant meets “the irreducible

minimum circumstances that must be set forth in support of an informant’s reliability

to sustain a warrant.” Id. at 351–52, 191 S.E.2d at 899.

      While defendant argues the confidential informant here should be viewed as

anonymous, the record does not support this claim. Indeed, as we just noted, the

warrant application supports the exact opposite conclusion. Officer Bradshaw had to

know who the informant was to be aware of the informant’s prior reliability. This

was not an anonymous tip from an unknown person. Defendant’s brief dwells upon

various types of additional information that might have been provided to show the

reliability of the informant; we agree that additional information would not be

harmful or inappropriate, but it is also unnecessary. See generally id. at 351–52, 191

S.E.2d at 899. The search warrant stated that Officer Bradshaw had previously used


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information from the confidential informant and found it to be reliable. Officer

Bradshaw then did additional investigation, all of which supported the informant’s

claims and established probable cause for issuance of the search warrant. See id. As

a valid search warrant was issued, defendant’s motion to suppress was properly

denied. This argument is overruled.

                                 IV.    Resentencing

      Defendant’s next two challenges address the trial court’s resentencing after

notification of an error in the range of his sentence from the North Carolina

Department of Public Safety. Defendant first contends that the trial court was

divested of jurisdiction because he had already appealed from the judgment. But

defendant cannot have it both ways. Defendant has already conceded that his notice

of appeal was defective, and thus jurisdiction was not with this Court, but rather still

with the trial court. See generally State v. Miller, 205 N.C. App. 724, 696 S.E.2d 542

(2010) (determining that jurisdiction does not switch to this Court when a notice of

appeal is defective). As discussed above, we granted review by certiorari to defendant

for this very reason.

      Lastly, defendant contends that it was error for the trial court to resentence

him to a sentence greater than that provided for in his plea agreement without giving

him the opportunity to withdraw his plea; the State agrees with defendant. North

Carolina General Statute § 15A-1024 provides that



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             [i]f at the time of sentencing, the judge for any reason
             determines to impose a sentence other than provided for in
             a plea arrangement between the parties, the judge must
             inform the defendant of that fact and inform the defendant
             that he may withdraw his plea. Upon withdrawal, the
             defendant is entitled to a continuance until the next
             session of court.

N.C. Gen. Stat. § 15A-1024 (2013) (emphasis added).       Since the trial court should

have given defendant the opportunity to withdraw his plea in accordance with North

Carolina General Statute § 15A-1024, we reverse and remand. See State v. Oakley,

75 N.C. App. 99, 104, 330 S.E.2d 59, 63 (1985) (“On remand, the defendant may

withdraw his guilty plea at the resentencing hearing, if the judge decides to impose

a sentence other than the original plea arrangement, N.C. Gen. Stat. Sec. 15A-1024

(1983), or he may seek to negotiate new terms and conditions under his original plea

to the lesser included offense. Reversed in part and remanded for reinstatement of

guilty plea and resentencing.”).

                                   V.     Conclusion

      For the foregoing reasons, we affirm the trial court’s denial of defendant’s

motion to suppress, reverse defendant’s judgment, and remand so that the trial court

may afford defendant the opportunity to withdraw his plea before any new longer

sentence may be imposed.

      Affirmed in part; reversed in part; and remanded.

      Judges MCCULLOUGH and ZACHARY concur.



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