State v. Duran-Rivas, COA23-743, ___ N.C. App. ___ (Jul. 2, 2024)

In this New Hanover County case, defendant appealed his convictions for statutory rape of a child by an adult, statutory sexual offense with a child by an adult, taking an indecent liberty with a child, first-degree sexual exploitation of a minor, and third-degree sexual exploitation of a minor, arguing error in denying his motion to suppress statements and cellphone evidence obtained by sheriff’s deputies during an interview. The Court of Appeals found no error.

Defendant was pulled over in May of 2018 for speeding, and the officer recognized defendant’s vehicle from a BOLO issued regarding allegations of child sexual abuse. Defendant spoke primarily Spanish, and the officers used a translation app to assist communication. After the traffic stop, a detective from the sheriff’s office asked defendant to participate in a voluntary interview; defendant agreed and drove himself to the New Hanover County Sheriff’s Office. Defendant initially answered questions from detectives, one of whom spoke and understood Spanish. Defendant admitted he had touched the victim in a sexual manner. The detectives then informed defendant of his Miranda rights, providing a written copy in Spanish and obtaining a Spanish translator to inform him of his rights, and he chose to continue with the interview without an attorney, answering questions and eventually writing a letter apologizing to the victim. The cellphone in defendant’s possession was seized, along with another cellphone that defendant’s ex-wife had provided to the sheriff’s office, and after the detective obtained a search warrant for the phones he discovered videos showing an adult male sexually penetrating a female child. Prior to trial, defendant filed a motion to suppress the results of the interview and search of his phones, and the motion was denied. Subsequently the jury found defendant guilty of all charges. 

Considering defendant’s arguments, the Court of Appeals first considered whether defendant’s statements were given voluntarily, noting that defendant was informed multiple times that the interview was voluntary, that he was free to leave, and that defendant was not kept in a locked room or handcuffed. The court held that “Defendant was not in custody when he first voluntarily admitted he had inappropriately touched the victim[, and his] subsequent oral and written statements providing further details regarding Defendant’s actions were made after the proper administration of Miranda warnings and without a request for counsel.” Slip Op. at 12. 

The court then moved to the cellphone seizure, explaining that the “consent searches” exception applied to the phone defendant’s ex-wife gave to deputies, as she had common control over the phone because defendant gave it to their son to use for watching videos. Id. at 13. The seizure of the phone in defendant’s possession was likewise justified by the “exigent circumstances” of preventing defendant from destroying evidence, as defendant had permitted a detective to look through his phone until he reached the deleted files section, when defendant tried to pull the phone away from the detective. Id. at 15. This suggested defendant was attempting to conceal and permanently delete relevant evidence, justifying the warrantless seizure of the second phone.