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NO. COA10-331 NORTH CAROLINA COURT OF APPEALS Filed: 21 December 2010 STATE OF NORTH CAROLINA v. RICHARD EUGENE FOY Appeal by State from order entered 14 December 2009 by Judge Jack Hooks in New Hanover County Superior Court. Court of Appeals 13 October 2010. Attorney General Roy Cooper, by Assistant Attorney General Derrick C. Mertz, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant. STEELMAN, Judge. Where defendant consented to an officer entering his truck, and a concealed weapon was thereby discovered, it was not Heard in the New Hanover County Nos. 09 CRS 53879-53881

unreasonable for the officers to search the truck for additional offense-related contraband under the second exception to Arizona v. Gant, 556 U.S. ___, 173 L. Ed. 2d 485 (2009). I. Factual and Procedural Background At approximately 3:15 a.m. on 3 April 2009, Sergeant Rob Miller ("Miller"), of the Wrightsville Beach Police Department, observed a pickup truck operated by Richard Foy ("defendant") travel across the fog line and swerve inside its lane. Miller

stopped the truck under suspicion that the operator was driving while intoxicated. Miller asked defendant to step down from his

-2truck and, as he was doing so, Miller observed a leather sheath in the cab of the truck. a knife. Defendant stated that the sheath contained

Miller noticed that defendant's speech was slurred, and

defendant admitted that he had consumed alcohol that night. Due to a shortage of manpower that night, Miller decided to allow

defendant to have someone pick him up rather than charging him with driving while impaired. Defendant asked to call his wife, and

consented to an officer retrieving his cell phone from the truck. In retrieving defendant's cell phone, the officer observed beneath the fold-down center console the barrel of a .357 revolver in a holster. Miller. This firearm had not been previously visible to

Upon discovery of the pistol, defendant was placed under Following the arrest,

arrest for carrying a concealed weapon. officers searched defendant's truck.

The search revealed an open

bottle of wine, an open beer can, an AR 15 rifle, over 200 rounds of ammunition for the rifle, a .45 caliber pistol and rounds for the pistol, marijuana, and magazines for the rifle and pistol. After defendant's arrest, it was discovered that he had been previously convicted of the felony of forgery and uttering in 1986. Defendant was charged with possession of a firearm by a felon, possession of marijuana up to one-half of an ounce, possession of drug paraphernalia, carrying a concealed gun, operating a motor vehicle with an open container of an alcoholic beverage after consuming alcohol, and a designated lane violation. On 12 October 2009, defendant served a motion to suppress upon the State, seeking to suppress the contraband found during the

-3search of his truck. Defendant asserted that the search "was not

supported by a reasonable suspicion, valid search warrant, or consent." On 14 December 2009, the trial court granted in part and The trial court

denied in part defendant's motion to suppress.

concluded that the initial entry into the truck to find defendant's cell phone was with the consent of defendant and that the .357 revolver was in plain view of the officer. The court then held

that the remainder of the evidence found during the search of the truck should be suppressed because the arrest of defendant negated any immediate danger to the officers and that the search should have been done pursuant to a search warrant. The State appeals the portion of the order granting

defendant's motion to suppress pursuant to N.C. Gen. Stat.

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