Criminal Practice – Search & Seizure – Consent to Search – Alleged Promises – Motion to Suppress – Denial – Written Findings Required

State v. Neal. (Lawyers Weekly No. 11-07-0345, 20 pp.) (Martha A. Geer, J.) Appealed from Mecklenburg County Superior Court. (Calvin E. Murphy, J.) N.C. App. Click here for the full text of the opinion.

Holding: At the hearing on his motion to suppress the evidence seized during a search of his home, defendant testified that he consented to the search because police officers promised that, if he consented, they would make the trespass charges against him go away. The police officers testified that no promises were made to defendant. When the trial court denied defendant’s motion to suppress, G.S. § 15A-977(f) required the court to make written findings resolving this material issue of fact, but the trial court failed to do so.

We remand to allow the trial court to make the required findings. If, upon further review, the court reaches the same conclusion as to the motion to suppress, defendant’s conviction will stand. If the trial court determines that the motion should have been granted, defendant will be entitled to a new trial.

When deciding the voluntariness of a defendant’s consent to search, a trial court must consider whether the defendant was threatened or offered any promises or inducements in exchange for his consent to search. State v. Austin, 320 N.C. 276, 357 S.E.2d 641, cert. denied, 484 U.S. 916 (1987).

In the absence of the evidence obtained in the search, the state would have had no evidence to support the charges against defendant. Since we cannot say that admission of the evidence would not have had a probable effect on the verdict, we must remand for the trial court to enter a written order with findings of fact and conclusions of law.

We remand for further findings of fact that resolve the material conflict in the evidence regarding whether a promise was made to defendant in order to obtain his consent to search his apartment.

After the trial court makes the necessary findings, it must make appropriate conclusions of law based on those findings. If the trial court determines that the motion to suppress was properly denied, then defendant would not be entitled to a new trial because there would have been no error in the admission of the evidence, and his convictions would stand. If, however, the court determines that the motion to suppress should have been granted, defendant would be entitled to a new trial.

Remanded.