Constitutional Law--procedural due process--motion to suppress--opportunity to be heard
The trial court's failure to allow defendant to be heard on a motion to suppress cocaine
seized without a warrant violated defendant's right to due process and his right under N.C.G.S. §
15A-975 to make a motion to suppress evidence, and defendant is entitled to a new trial on a
charge of trafficking in cocaine by transportation where: (1) the record does not reveal that the
State gave defendant notice it intended to offer the cocaine into evidence at trial; (2) the record
does not indicate whether defendant had a reasonable opportunity to make a motion to suppress
prior to trial, and this supports the conclusion that defendant was entitled to make his motion to
suppress during trial; and (3) defendant attempted to be heard on his motion to suppress
numerous times during trial, but the trial court denied defendant the opportunity to state his
grounds or present evidence in support of his motion.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Thomas D. Zweigart, for the State.
Etheridge, Sykes & Britt, L.L.P., by Raymond M. Sykes, Jr.,
for defendant-appellant.
HUNTER, Judge.
Troy Aljiernon Battle (“defendant”) appeals from his
conviction for trafficking in cocaine by transportation. We grant
defendant a new trial on the basis that the trial court should have
heard and ruled on defendant's motion to suppress.
The State's evidence at trial indicated that on 29 August
1997, Rocky Mount Police Officers Anthony Styles and James Carlton
were on patrol and observed a blue minivan whose left brake light
was not functioning properly. Officers Styles and Carlton
activated their blue light and pulled the vehicle over. After thevehicle stopped, Officer Styles approached the driver's side of the
vehicle and Officer Carlton approached the passenger side. Officer
Styles testified that he asked defendant, who was driving the
vehicle, to produce his driver's license and vehicle registration.
Defendant replied that he did not have a driver's license. At that
point, Officer Styles asked defendant to exit the vehicle and
defendant complied. Officer Styles proceeded to search defendant
for weapons, and testified that he did so because he intended to
place defendant under arrest for driving without a license. While
being searched, defendant then fled from the scene and Officer
Styles pursued him.
At that point, Officer Carlton testified that he ordered
Percival Gallimore (“Gallimore”), who was seated in the front
passenger seat, out of the van and placed him in handcuffs. He
then asked David Lewis (“Lewis”), who was seated in the rear, to
exit the vehicle. Officer Carlton testified that Lewis attempted
to dash out of the van on the driver's side. Officer Carlton
grabbed Lewis' right arm and Lewis pushed him away. Officer
Carlton then jumped across the passenger seat of the van and
grabbed Lewis. They scuffled onto the floor of the driver's side
of the van and out onto the ground. While on the ground, Officer
Carlton was able to get Lewis under control and then place him in
handcuffs. Officer Carlton then conducted a search of the van,
whereupon he found a package of cocaine on the driver's side just
in front of the driver's seat. Defendant was subsequently apprehended and he, along with
Gallimore and Lewis, was indicted on 13 July 1998 for trafficking
in cocaine by possession and trafficking in cocaine by
transportation. Defendant's case was tried at the 25 August 1998
criminal session of Edgecombe County Superior Court. Defendant
made a motion for continuance on the day his trial began on the
grounds that he had just found out that his co-defendants would not
testify on his behalf, and he needed time to call additional
witnesses listed on his witness list. The trial court denied his
motion. Defendant was subsequently convicted of trafficking in
cocaine by transportation and sentenced to a minimum of 70 months
and a maximum of 84 months imprisonment and ordered to pay a fine
of $100,000.00.
Defendant appeals on the basis that he was denied his right to
due process afforded him by the United States Constitution by the
trial court's refusal to hear his motion for suppression of
evidence. We agree.
It is uncontroverted that a search warrant was not obtained
prior to the search and seizure which produced the State's physical
evidence in the present case. The Fourth Amendment of the United
States Constitution guarantees the right to be secure against
unreasonable searches and seizures of “persons, houses, papers, and
effects.” U.S. Const. amend. IV. “The United States Supreme Court
has stated that searches and seizures conducted outside the
judicial process are per se unreasonable, subject to only a few
specific, well delineated exceptions.” State v. Sanders, 112 N.C.App. 477, 480, 435 S.E.2d 842, 844 (1993). Our Supreme Court
has
held that under the exclusionary rule, “[w]hen evidence is obtained
as the result of illegal police conduct, not only should that
evidence be suppressed, but all evidence that is the 'fruit' of
that unlawful conduct should be suppressed.” State v. Pope, 333
N.C. 106, 113-14, 423 S.E.2d 740, 744 (1992).
Our statutory rule regarding a motion to suppress before and
during trial provides, in pertinent part:
(a) In superior court, the defendant may
move to suppress evidence only prior to trial
unless the defendant did not have reasonable
opportunity to make the motion before trial or
unless a motion to suppress is allowed during
trial under subsection (b) or (c).
(b) A motion to suppress may be made for
the first time during trial when the State has
failed to notify the defendant's counsel or,
if he has none, the defendant, sooner than 20
working days before trial, of its intention to
use the evidence, and the evidence is:
. . .
(2) Evidence obtaine
d by virtue of
a search without a search
warrant[.]
N.C. Gen. Stat. § 15A-975 (1999). The record does not reveal any
evidence that the State gave defendant notice it intended to offer
into evidence at trial the cocaine which was obtained without a
search warrant. Also, the record does not indicate whether or not
defendant had a reasonable opportunity to make a motion to suppress
prior to trial. Thus, the record supports the conclusion that
defendant was entitled to make his motion to suppress during trial.
The trial transcript in the present case shows that thedefendant attempted to be heard on his motion to suppress at
numerous times, first during the State's questioning of Officer
Styles:
Q. Okay. And you stated that the
defendant, Troy Battle, complied with cutting
the engine off?
A. Correct, he did.
Mr. Sykes: Objection.
The Court: Overruled.
Q. Okay. What happened then?
Mr. Sykes: Your Honor, I object and
would like to be heard. And I have a motion
to make at this time.
The Court: Objection overruled.
. . .
A. At that particular time, I asked him
to step outside the vehicle.
Mr. Sykes: Your Honor, I'd like to
object again at this time, and I'd like to be
heard. I have a motion --
The Court: The objection is
overruled and your request is denied.
Mr. Sykes: May I preserve it and
have the opportunity to be heard?
The Court: You can have a seat and
let the State examine this witness. I
overruled your objection.
. . .
Q. Okay. Did Officer Carlton show you
anything when you got back to the scene?
A. Yes, sir, he did.
Q. Okay. What is it that he showed
you?
Mr. Sykes: Objection and I move to
suppress.
The Court: Overruled.
Mr. Sykes: I'd like to be heard,
your Honor.
The Court: Your motion is denied.
Defendant next attempted to be heard on his motion to suppress
during Officer Carlton's testimony for the State:
Q. Okay. And did you find anything in
the van?
A. Yes, I did.
Mr. Sykes: Objection.
The Court: Overruled.
Mr. Sykes: I'd like to make a
motion to suppress, your Honor. I'd like to
be heard under 18-975 --
The Court: Motion is denied.
Defendant next attempted to be heard during testimony of SBI
Agent Jim Daniel:
The State: That would be the
State's evidence.
The Court: Are you going to
introduce your exhibits?
The State: Yes, sir.
Mr. Sykes: I object, your Honor.
The Court: Objection is overruled.
If he wants to offer it, the court will
receive it.
Mr. Sykes: I'd like to move to
suppress it and I'd like to be heard.
The Court: The motion is denied.
Thus, it is evident that although defendant attempted several
times to make his motion to suppress, the trial court denied it
without giving defendant the opportunity to even fully state his
grounds or the basis for the motion.
The requirement of “'procedural due process applies only to
the deprivation of interests encompassed within the Fourteenth
Amendment's protection of liberty and property. . . .'” Howell v.
Town of Carolina Beach, 106 N.C. App. 410, 417, 417 S.E.2d 277, 281
(1992) (quoting Board of Regents of State Colleges v. Roth, 408
U.S. 564, 33 L. Ed. 2d 548 (1972)). “Due process of law requires
that no one shall be condemned in his person or property without
notice and an opportunity to be heard in his defense.” State v.
Moore, 100 N.C. App. 217, 223, 395 S.E.2d 434, 437 (1990), disc.
review denied as to additional issues, 328 N.C. 335, 402 S.E.2d
825, rev'd on other grounds, 329 N.C. 245, 404 S.E.2d 845 (1991).
The fundamental requirement of due process is the opportunity to be
heard “'at a meaningful time and in a meaningful manner.'” State
v. Thompson, 349 N.C. 483, 498, 508 S.E.2d 277, 286 (1998) (quoting
Armstrong v. Manzo, 380 U.S. 545, 552, 14 L. Ed. 2d 62, 66 (1965)).
“'It is elementary and fundamental that every person is entitled to
his day in court to assert his own rights or to defend against
their infringement.'” Goodwin v. Walls, 118 N.C. App. 341, 345,
455 S.E.2d 473, 477, review allowed, 342 N.C. 419, 461 S.E.2d 757
(1995) (quoting Coach Co. v. Burrell, 241 N.C. 432, 436, 85 S.E.2d
688, 692 (1955)). “It is basic to due process that a defendant in
a criminal action be allowed to offer testimony.” State v. Pike,273 N.C. 102, 107, 159 S.E.2d 334, 338 (1968). The trial court
must give defendant an opportunity to offer evidence and present
his version of the search and seizure or to contradict, amplify, or
explain the testimony offered by the State on voir dire. Id.
Based on the foregoing, we hold that due process requires that
defendant should have been given a reasonable opportunity to be
heard on his motion to suppress “'at a meaningful time and in a
meaningful manner.'” State v. Thompson, 349 N.C. at 498, 508
S.E.2d at 286. The trial court here barely allowed defendant to
state his motion and denied defendant any opportunity to state his
grounds or present evidence in support of his motion. Defendant
was not only denied his constitutional rights, but also his
statutory right to make a motion to suppress under N.C. Gen. Stat.
§ 15A-975. Accordingly, we reverse and remand for a new trial.
Due to our holding, we need not reach defendant's additional
assignments of error.
New trial.
Judges JOHN and McGEE concur.
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