NC: Seizure of shotgun during protective sweep for misdemeanor probation arrest was unreasonable

Defendant was arrested without incident in his living room for a violation of misdemeanor probation, and there was a protective sweep of other rooms looking for others, and a shotgun was seen. The protective sweep was valid, but the seizure of the shotgun was not because there was no reason at that time to believe it was evidence of anything. “Observing the shotgun in plain view did not provide Officer Joyce with authority to seize the weapon permanently. The State’s evidence at the suppression hearing failed to establish that, based on the objective facts known to him at the time, Officer Joyce had probable cause to believe the weapon was contraband or evidence of a crime.” It turned out, however, defendant was a convicted felon–they just didn’t know it yet. State v. Smith, 2017 N.C. App. LEXIS 665 (Aug. 15, 2017).

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