An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-678
                       NORTH CAROLINA COURT OF APPEALS

                               Filed:    4 March 2014


STATE OF NORTH CAROLINA

      v.                                      Randolph County
                                              No. 09 CRS 56732
MATTHEW ALLEN BARNHILL
     Defendant.


      Appeal by defendant from judgment entered 24 October 2011

by Judge Edgar B. Gregory in Randolph County Superior Court.

Heard in the Court of Appeals 20 November 2013.


      Roy Cooper, Attorney General, by Marc X. Sneed, Assistant
      Attorney General, for the State.

      Unti & Lumsden LLP, by            Sharon L. Smith, for defendant-
      appellant.


      DAVIS, Judge.


      Defendant Matthew Allen Barnhill (“Defendant”) appeals from

his conviction for felony possession of marijuana.                     On appeal,

Defendant     argues    that   the   trial    court    erred    in   denying    his

motion to suppress evidence obtained during a warrantless search

of his home.       After careful review, we affirm the trial court’s

denial of the motion to suppress.
                                                -2-
                                   Factual Background

       On    23     November       2009,    Detective        Ed      Carter    (“Detective

Carter”) and Corporal Andrea Paige Jackson (“Corporal Jackson”)

of   the    Randolph     County       Sheriff’s        Office       visited    Defendant’s

apartment      to    investigate       an       anonymous      tip    that    prescription

drugs were being sold from the residence.                            The purpose of the

visit was to conduct a “knock and talk” in the hope of obtaining

consent to search the residence.                       Detective Carter knocked on

the door and a male child, who was approximately five years old,

opened the door.          Detective Carter took one step into the home

at which point Jennifer Barnhill (“Mrs. Barnhill”), Defendant’s

wife, came to the door from the living room area.                                   Detective

Carter      identified       himself       as    a    detective       with    the    Randolph

County      Sheriff’s    Office       and       informed     Mrs.     Barnhill      that   the

Sheriff’s Office had received a complaint that drugs were being

sold from the home.

       Detective Carter asked about her husband’s whereabouts, and

Mrs. Barnhill stated that he was at the gas station.                                She also

told     the      officers     that    Defendant         had      recently     experienced

problems with crack cocaine and prescription pills and that she

was afraid of him.             Detective Carter asked if there were any

illegal      substances       in    the     home,      and     Mrs.    Barnhill       replied
                                        -3-
affirmatively.        When Detective Carter asked her to bring the

illegal substances to him, Mrs. Barnhill inquired whether he had

a search warrant.        Detective Carter responded that they did not

possess a warrant but that they could go apply for one.

    Mrs. Barnhill then agreed to the search, completing and

signing a Voluntary Consent to Search form, which indicated her

consent to a search of the residence.              During her search of a

bedroom in the home, Corporal Jackson located and seized two

plastic bags containing green vegetable matter, a set of digital

scales,     plastic     baggies,   bottles     containing     pills,    several

“burnt marijuana roaches,” and glass smoking devices.

    Mrs. Barnhill and Defendant were both criminally charged,

and each of them filed motions to suppress the evidence obtained

during the search of the residence.             The trial court heard the

motions to suppress simultaneously on 3 March 2011 and denied

both motions.     Defendant pled guilty to felonious possession of

marijuana    while    expressly    reserving    his   right   to     appeal    the

denial of his motion to suppress.

    In an unpublished opinion, this Court dismissed Defendant’s

appeal for failure to properly appeal from a final judgment as

required    by   N.C.    Gen.   Stat.    §    15A-979(b).      See     State    v.

Barnhill, No. COA12-264,           ___ N.C. App. ___, ___ S.E.2d. ___
                                             -4-
(filed    Oct.      16,    2012)    (unpublished).           Defendant       subsequently

filed a petition for writ of certiorari with this Court on 23

October 2012, and on 14 November 2012, this Court granted his

petition.

                                           Analysis

       Defendant’s sole argument on appeal is that the trial court

erred in denying his motion to suppress because Mrs. Barnhill

did not give voluntary consent to the search of their home.                                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).

       “It   is     a    basic     principle       of   Fourth     Amendment       law    that

searches      and       seizures    inside     a    home    without      a   warrant       are

presumptively unreasonable.”                State v. Smith, 346 N.C. 794, 798,

488    S.E.2d       210,    213     (1997)     (citation         and   quotation         marks

omitted).       However, it is also well established that consent is

a     recognized        exception     to     the    general       warrant    requirement

contained in the Fourth Amendment and Article I, § 20 of the
                                        -5-
North Carolina Constitution.            State v. Jones, 96 N.C. App. 389,

397, 386 S.E.2d 217, 222 (1989),                appeal dismissed and disc.

review denied, 326 N.C. 366, 389 S.E.2d 809 (1990).                     “For the

warrantless, consensual search to pass muster under the Fourth

Amendment,    consent       must   be   given    and    the   consent   must    be

voluntary.”    Smith, 346 N.C. at 798, 488 S.E.2d at 213.                      “The

only requirement for a valid consent search is the voluntary

consent given by a party who had reasonably apparent authority

to grant or withhold such consent.”              State v. Houston, 169 N.C.

App. 367, 371, 610 S.E.2d 777, 780, appeal dismissed and disc.

review     denied,    359      N.C.     639,     617     S.E.2d   281    (2005).

“Voluntariness is a question of fact to be determined from all

the circumstances, and while the subject’s knowledge of a right

to refuse is a factor to be taken into account, the prosecution

is not required to demonstrate such knowledge as a prerequisite

to     establishing     a     voluntary       consent.”        Schneckloth       v.

Bustamonte, 412 U.S. 218, 248-49, 36 L.Ed.2d 854, 875 (1973).

When    determining   whether      consent      was    voluntarily   given,    the

trial court considers the totality of the circumstances.                  Smith,

346 N.C. at 798, 488 S.E.2d at 213.

       In determining whether consent to a search was voluntary,

“the weight to be given the evidence is . . . a determination
                                        -6-
for    the   trial    court,    and   its     findings    are     conclusive   when

supported by competent evidence.”              State v. Hernandez, 170 N.C.

App.    299,   310,    612     S.E.2d   420,     427     (2005)    (citation    and

quotation marks omitted).         Here, the trial court concluded, as a

matter of law, that Mrs. Barnhill’s consent to search the home

was freely and voluntarily given based on the trial court’s oral

findings of fact stating in pertinent part as follows:

             Detective Ed Carter with the Randolph County
             Sheriff’s Office – a detective with the
             Randolph     County      Sheriff’s     Office
             vice/narcotics unit went to the home of
             Jennifer and Matthew Barnhill . . . in
             Thomasville on November 3rd, 2009, for the
             purpose of conducting a knock-and-talk. That
             the reason they went there was because of
             a[n] anonymous report that prescription
             drugs were being sold from this residence.

             That Detective Carter was accompanied by
             Corporal Andrea Paige [Jackson] . . . also
             with the Randolph County Sheriff’s Office.

             That   Detective   Carter   approached  the
             residence first through the back door while
             Officer Jackson sat in the car. A brick
             apartment building; that the door contained
             some glass in it and he could see one child
             in the kitchen area that was approximately
             five years old. He knocked on the door and
             the child opened the door.

             As he – as the door was opened, he could see
             the mother coming from another inside room
             from the house. He made one step into the
             kitchen as the door was opened and informed
             Mrs. Jennifer Barnhill that he was an
             officer with the Sheriff’s Department of
                    -7-
Randolph   County  and   that   they had a
complaint of drugs being sold from that
residence from an anonymous source.

Mrs. Barnhill took the two children to the
bedroom, and as she was coming back into
where Mr. Carter was standing, Officer
Jackson   was   approaching the  door  and
attempted to step in. . . .

Both officers testified that Mrs. Barnhill
appeared calm and rational. That Officer
Carter stated to Mrs. Barnhill that she
might remember him from the previous search
that was done of the Barnhills in 2007.

Mrs. Barnhill indicated that she was afraid
of her husband, that he’d been going on
binges for some days at a time; that he’d
left earlier that day, some hours before,
that . . . he had been arrested for
committing a threat -- communicating threats
and that she regretted getting him out of
jail just some days before. She also
admitted to the officers that she smoked
weed –- that she and her husband both smoked
weed and that she understood “weed” meant
marijuana.  So did the officers.    She also
said she didn’t want to get in trouble for
it.

The officers asked . . . she was asked if
she had drugs in the house, and she asked if
they had a search warrant and was told by
the officers that they could apply for one
or they could get one. There’s some dispute
about what was actually said, but there was
a   conversation  about  getting   a  search
warrant. She informed the officers that . .
. there [were] drugs in the house or
paraphernalia or contraband, and she had
told the officers she would go get the drugs
and contraband.
                                    -8-
           Both officers stated that there were no
           threats made to her and she did not appear
           afraid or upset. Mrs. Barnhill signed a
           Voluntary Consent to Search which clearly
           stated in bold letters at the top it was a
           Voluntary Consent to Search, and which she
           signed saying she was voluntarily consenting
           that Ed Carter of the Randolph County
           Sheriff’s Office may search [the home].

           She went to the bedroom and moved the
           children, and then she and Ms. Jackson went
           to the bedroom where Ms. Jackson stated that
           there was some paraphernalia laying in plain
           sight in the room. And all the items shown
           on the inventory that was introduced as
           State’s Exhibit 2 [were] taken from the
           residence, voluntarily turned over to the
           officers by Jennifer Barnhill. . . .

       The trial court then made the following oral conclusions of

law:

           Based on the foregoing findings of fact, the
           Court concludes as a matter of law that the
           consent given by [Mrs. Barnhill] to search
           the house was freely and voluntarily given.

           Based on the foregoing findings of fact and
           conclusions of law . . . . Motion to
           Suppress in both cases is denied.

       The trial court also entered a written order on 3 March

2011    stating   that   “[b]ased    upon   the   findings   of   fact,

conclusions of law and orders more fully found in the record for

the hearing of this matter the Motions to Suppress made in each

of the two files (1) State Vs. Jennifer Barnhill . . . and (2)
                                         -9-
                                                                1
State Vs. Matthew Barnhill . . . are hereby denied.”

    Defendant has not specifically challenged any of the trial

court’s oral findings of fact; thus, they are binding on appeal.

See State v. Moses, 205 N.C. App. 629, 633, 698 S.E.2d 688, 692

(2010) (“Defendant has not challenged any of the trial court’s

oral findings of fact.        As a result, our review of the trial

court’s denial of defendant’s motion to suppress is limited to

whether the unchallenged findings of fact ultimately support the

trial   court’s     conclusions     of    law.”).     Therefore,    the    only

remaining   issue    is   whether   these      findings   support   the   trial

court’s ultimate conclusion that Mrs. Barnhill gave voluntary

consent for Detective Carter and Corporal Jackson to search her

home.

    As our Supreme Court has explained,

            “[k]nock and talk” is a procedure utilized
            by law enforcement officers to obtain a
            consent to search when they lack       the

1
  The Order did not memorialize the trial court’s oral findings
of fact and conclusions of law in writing. However, we need not
address the lack of written findings of fact or conclusions of
law because Defendant offers no argument on this issue.     See
N.C. R. App. P.28(a) (“The scope of review on appeal is limited
to issues so presented in the several briefs.       Issues not
presented and discussed in a party’s brief are deemed
abandoned.”); State v. Watkins, ___ N.C. App. ___, ___, 725
S.E.2d 400, 403 (citing N.C. R. App. P.28(a) and declining to
address absence of a written order denying motion to suppress
where defendant did not raise issue on appeal), appeal
dismissed, 366 N.C. 241, 731 S.E.2d 416 (2012).
                                 -10-
          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.

Smith, 346 N.C. at 800, 488 S.E.2d at 214.

    When Detective Carter knocked on the door to conduct the

“knock and talk,” the son of Mrs. Barnhill and Defendant opened

the door and let him in.   As Detective Carter stepped into the

residence, Mrs. Barnhill came to the entryway from the living

room area, and the two began to talk.          When Detective Carter

asked Mrs. Barnhill if there were illegal drugs in the home, she

responded that there were but she did not want to get in trouble

for it.   She then asked if Detective Carter had a warrant, and

he replied that he did not.        Detective Carter mentioned the

possibility of obtaining a search warrant and, at that point,

Mrs. Barnhill consented to the search and completed a Voluntary

Consent to Search form.

    Although   Mrs.   Barnhill     testified    that   she   did   not

understand that she could tell Detective Carter and Corporal

Jackson to leave her home, the trial court determined, based on

their testimony, that Mrs. Barnhill appeared calm and unafraid

when she told them she would get the drugs and when she signed
                                        -11-
the consent form.         See Houston, 169 N.C. App. at 371, 610 S.E.2d

at 781 (“The evidence presented tended to show defendant did not

appear nervous or scared, was ‘cooperative,’ led the officers to

the bedroom, . . . was not threatened by the officers and was

present throughout the search and gave no indication he wished

to revoke his consent.”).               While the trial court noted that

there was “some dispute” about whether Detective Carter told

Mrs. Barnhill that he could “apply” for a warrant or “get” a

warrant, the evidence and the trial court’s findings based on

the evidence indicate that (1) Detective Carter explained that

he    did   not   presently      have   a    search   warrant;   and    (2)   Mrs.

Barnhill was not threatened or coerced by Detective Carter or

Corporal Jackson when they asked for her consent to search the

home.

       We   are   unpersuaded      by   Defendant’s       assertion    that   Mrs.

Barnhill’s consent to the search of her home was not voluntarily

and     freely    given    because      of    Detective    Carter’s     statement

insinuating that he could successfully obtain a search warrant.

Defendant     argues      that   Detective      Carter’s    testimony    at    the

suppression hearing that he did not have sufficient information

to obtain a search warrant at the time he conducted the “knock

and talk” indicates that he purposefully misled Mrs. Barnhill
                                   -12-
when he implied that he could obtain such a warrant.                   While

Detective Carter acknowledged in his testimony that he did not

have probable cause at the time he knocked on the Barnhills’

door, he only indicated that he could “apply” or “get” a warrant

after Mrs. Barnhill admitted that there was contraband in the

home.    Given Mrs. Barnhill’s admission to him that there were

illegal substances within the residence, it is likely that at

that    point   in   time,   Detective    Carter   did,   in   fact,   have

sufficient information to obtain a warrant.           Consequently, any

statement by him to Mrs. Barnhill expressing confidence in his

ability to obtain a warrant would not have been misleading.

       Defendant’s reliance on State v. Barnes, 158 N.C. App. 606,

582 S.E.2d 313 (2003), is misplaced.         In Barnes, law enforcement

officers followed the defendant into a house after he jumped up

from his chair on the porch in a frightened manner upon seeing

the officers approaching and retreated into the house.             Id. at

608, 582 S.E.2d at 316.         This Court held that the officers’

actions in following the defendant into the house constituted a

warrantless, nonconsensual search and required the suppression

of any evidence obtained as a result of the search.            Id. at 611,

582 S.E.2d at 317.      We concluded that the officers did not have

a lawful right to be present in the home and that the trial
                                          -13-
court had erred in ruling that “the mere entry into the house by

law enforcement officers was not a search within the meaning of

the Fourth Amendment.”            Id. at 610, 582 S.E.2d at 317 (internal

quotation marks omitted).

       Here,   conversely,         the    trial     court      found   —     based    on

competent      evidence      —     that    Detective        Carter     (1)     visited

Defendant’s residence to conduct a “knock and talk;” (2) knocked

on the door; (3) took one step into the home after being let in

by    Defendant’s    minor       child;   (4)     spoke   to    Mrs.   Barnhill      for

several minutes about the complaint the Sheriff’s Office had

received; (5) requested and was given Mrs. Barnhill’s consent to

search the home; and (6) obtained a consent form voluntarily

signed by Mrs. Barnhill consenting to the search.                        Accordingly,

we conclude that the trial court did not err in ruling that

under the totality of the circumstances, Mrs. Barnhill’s consent

was    voluntarily    given        and    that,    therefore,      the     search     of

Defendant’s home did not violate the Fourth Amendment.

                                     Conclusion

       For the reasons stated above, we affirm the trial court’s

order denying Defendant’s motion to suppress.

       AFFIRMED.

       Judges ELMORE and McCULLOUGH concur.
                         -14-
Report per Rule 30(e).
