State v. Williams

552 S.E.2d 174, 145 N.C. App. 472, 2001 N.C. App. LEXIS 670
Court of Appeals of North Carolina·Decided August 7, 2001·No. No. COA00-658·Published·Cited by 1 cases

Opinion

WALKER, Judge.

Defendant was convicted of possession with intent to sell and deliver cocaine and being an habitual felon. The State’s evidence tended to show the following: On 9 February 1998, Office Todd Harrington (Harrington) with the Kannapolis Police Department (police department) responded to a domestic call from Wendy Shackleford (Shackleford) who reported that she had previously sworn out a warrant for defendant’s arrest for assaulting her. She further stated that defendant had just left the house where they lived together and that he had drugs and several thousand dollars in his possession. After Harrington arrived at Shackleford’s residence, he waited awhile and then drove around. He was waved down by Shackleford who informed him that defendant was in the cellar of the house which was referred to as a basement. The cellar was approximately ten feet by fifteen feet in size and rested on a cement slab. It appeared to be for storage and not for living purposes. It was acces[474]*474sible only from the outside by steps leading down a narrow stairway from the yard at the rear of the house.

Harrington called Officer Harrison (Harrison) from the police department for assistance. When Harrison arrived, both officers drew their weapons, approached the cellar and called for defendant to come out. Within a few seconds, defendant came up the cellar steps to the door with his hands up. The officers arrested him for assault on a female and placed him in the custody of another officer who had arrived.

Harrington and Harrison then searched the area of the cellar where they observed the following items: broken crack pipes; an unsmoked marijuana joint on top of a hot water heater; $3,641.76 in cash in a bank bag secured in a hole in the ceiling duct work; and a plastic bag partially covered by dirt containing 70 individually wrapped rocks of cocaine. Harrington and Harrison next exited the cellar and advised defendant that he was also being charged with possession of cocaine.

Defendant first assigns error to the trial court’s denial of his motion to suppress evidence of the cocaine seized from the cellar. He contends that because the cocaine was obtained during a search without a warrant or probable cause, its admission at trial violated his constitutional rights.

At the outset, we note “[o]ur review of a denial of a motion to suppress is limited to determining whether the trial court’s findings of facts [sic] are supported by competent evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law are legally correct.” State v. Trapp, 110 N.C. App. 584, 587, 430 S.E.2d 484, 486 (1993).

Our Supreme Court has held “ ‘[a] governmental search and seizure of property unaccompanied by prior judicial approval in the form of a warrant is per se unreasonable unless the search falls within a well-delineated exception to the warrant requirement.’ ” State v. Hardy, 339 N.C. 207, 226, 451 S.E.2d 600, 610 (1994), quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 620 (1982). One such exception is a search made incident to an arrest when limited “to the area from which the arrested person might have obtained a weapon or some item that could have been used as evidence against him.” State v. Cherry, 298 N.C. 86, 92, 257 S.E.2d 551, 556 (1979), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 796 (1980) (citations omitted). For [475]*475example, “[a] warrantless search of a dwelling following an arrest outside the dwelling will be upheld where the circumstances provide the arresting officers with reason to believe that a serious threat to their safety is presented.” State v. Taylor, 298 N.C. 405, 416, 259 S.E.2d 502, 509 (1979), citing McGeehan v. Wainwright, 526 F.2d 397 (5th Cir.), cert. denied, 425 U.S. 997, 48 L. Ed. 2d 823 (1976). Another exception exists when the law enforcement searches by the consent of third party with “ ‘. . . common authority over or other sufficient relationship to the premises or effects sought to be inspected.’ ” State v. Barnett, 307 N.C. 608, 615-16, 300 S.E.2d 340, 344 (1983), quoting United States v. Matlock, 415 U.S. 164, 171, 39 L. Ed. 2d 242, 250 (1974). Under any one of these exceptions, “whether a search and seizure is unreasonable must be determined upon the facts and circumstances surrounding each individual case.” Cherry at 92-93, 257 S.E.2d at 556 (citation omitted).

Defendant contends Harrington and Harrison’s search of the cellar was unlawful and unreasonable for the following reasons: (1) the cellar was a “small area” which did not require a “thorough search[;]” (2) “the only thing the officers were able to do upon entering the cellar would be to observe if anyone were hiding” there; and (3) defendant was handcuffed outside the cellar at the time the cellar was searched.

In its order denying defendant’s motion to suppress, the trial court made extensive findings and conclusions. It found that Harrington and Harrison made a protective sweep of the cellar to make certain that no one else was there. Based on the findings, the trial court concluded in part:

1. [Harrington and Harrison] acted prudently and properly in entering the cellar immediately after taking custody of the defendant pursuant to a lawful arrest. The officers were legally justified in making a protective sweep of the cellar from which the defendant had emerged to make certain that no one else was hiding there with a weapon, particularly since this occurred at 3:45 o’clock A.M. Therefore, exigent circumstances existed which justified, for the protection of the officers, a limited war-rantless search of the cellar area of the house. If someone else did live in the cellar, as contended by the defendant, then this fact would add further weight to the justifiable concern of the investigating officers for their own safety, and therefore give additional justification for immediately entering the cellar.

[476]*476The trial court also concluded that Harrington had obtained consent to enter the cellar from Shackleford, since she and defendant lived at this residence. The trial court further concluded that Shackleford “clearly wanted [Harrington] to enter the [cellar], and therefore he entered the limited area in question with the permission of an occupant of the house.”

The exceptions to the search warrant requirement were established in that the officers were in a place where they had a right to be with the consent of Shackleford to conduct a search incident to arrest. The trial court found that all of the items of evidence were located as a result of “a cursory examination of the cellar within five minutes or less.” The trial court’s findings and conclusions support its decision to deny defendant’s motion to suppress the evidence seized from the cellar.

Defendant next assigns error to the trial court’s refusal to dismiss the charges based on the failure of the State to provide him a speedy trial.

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State v. Williams, 552 S.E.2d 174, 145 N.C. App. 472, 2001 N.C. App. LEXIS 670 (N.C. Ct. App. 2001).

552 S.E.2d 174 (State v. Williams) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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