1. Search and Seizure--cocaine defendant found in cellar--
search of cellar
The trial court did not err by denying a defendant's motion
to suppress cocaine seized from a cellar where an officer
responded to a domestic call from a woman who reported that she
had previously sworn out a warrant for defendant's arrest for
assaulting her and that defendant was in the cellar of the house
they shared; officers approached the cellar and called for
defendant to come out; he came up the steps with his hands up
within a few seconds; officers arrested him for assault on a
female, placed him in the custody of another officer, and
searched the cellar; and they found broken crack pipes,
marijuana, $3,641 in a bank bag in a hole in the duct work, and a
plastic bag containing rocks of cocaine that was partially
covered by dirt. The officers had the consent of the woman
living in the house with defendant and were in a place they had a
right to be to conduct a search incident to arrest.
2. Criminal Law--speedy trial--no prejudice
The trial court did not err by refusing to dismiss cocaine
charges based upon failure to provide a speedy trial where the
trial court properly determined that defendant suffered no
prejudice.
3. Drugs--destruction of evidence after initial plea agreement-
-no prejudice
A cocaine defendant did not establish prejudice from the
destruction of the drug evidence after a plea agreement which
was later set aside. The record indicates that defendant was
only seeking to confirm by independent analysis the weight and
composition of the substance found in plastic bags in the cellar
where he was found and the State introduced a lab report without
objection.
Attorney General Michael F. Easley, by Special Deputy Attorney
General George W. Boylan, for the State.
Hartsell, Hartsell & White, P.A., by H. Jay White, fordefendant-appellant.
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 accessible 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 anotherofficer 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.
[1]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 arr
est
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 example, “[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, 615-616, 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 uponentering the cellar would be to observe if anyone were hiding
8;
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 warrantless 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.
The 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 searchincident 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.
[2]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. He contends his constitutional rights have
been violated pursuant to our Supreme Court's decision in State v.
Jones, 310 N.C. 716, 314 S.E.2d 529 (1984), and the following facts
in this case: (1) defendant filed a motion for a prompt trial on 4
May 1999; however, his trial did not begin until one hundred and
twenty days later; and (2) the trial date of 30 August 1999 was
eight months after a new trial had been ordered.
In Jones, our Supreme Court utilized the following four-
pronged test for deciding whether a defendant has been deprived of
his constitutional right to a speedy trial: (1) the length of the
delay; (2) the reason for the delay; (3) the defendant's assertion
of the right to a speedy trial; and (4) the prejudice to defendant
resulting from the delay. Jones at 721, 314 S.E.2d at 532-533,
quoting State v. Smith, 289 N.C. 143, 148, 221 S.E.2d 247, 250
(1976). See also Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101
(1972). Defendant thus asserts that in addition to the significant
length of his delay, this Court should consider the actions he took
to shorten the delay by filing motions for a speedy trial, the
prejudice the delay caused him by disrupting his employment,finances, status in society and freedom. Further, defendant
asserts his inability to defend himself by reason of the delay
since drug evidence in the initial trial was destroyed by court
order.
The burden is on the defendant to show the reason for the
delay of trial was the neglect or willfulness of the prosecution.
State v. Marlow, 310 N.C. 507, 521, 313 S.E.2d 532, 541 (1984).
Here, the trial court found defendant had initially entered a plea
to charges; however, his plea agreement was set aside. He was
later tried on unrelated charges in May 1999 and had been in
custody since then. We also note the length of time a defendant's
trial was delayed, standing alone, is not sufficient in this State
to constitute unreasonable delay. See State v. Kivett, 321 N.C.
404, 364 S.E.2d 404 (1988)(holding that delay of four hundred and
twenty-seven days, standing alone, is insufficient to constitute
unreasonable delay). Here, the trial court properly determined
that defendant suffered no prejudice, as he “offered no evidence as
to any possible detriment” by reason of the trial not being set
until 30 August 1999.
[3]Defendant next assigns as error the destruction of the
drug evidence ordered by the trial court following his initial plea
agreement to the charges. Defendant contends this action deprived
him of the right to have the evidence tested by an impartial
testing agency and “confirm the conclusions reached by the State
Bureau of Investigation's officer who testified for the State.”
Defendant points to the United States Supreme Court's ruling
in California v. Trombetta, 467 U.S. 479, 81 L. Ed. 2d 413 (1984),in which it held the State must preserve “evidence that might
be
expected to play a significant role in the suspect's defense.” Id.
at 488, 81 L. Ed. 2d at 422. That case further held the evidence
must: (1) “possess an exculpatory value that was apparent before
the evidence was destroyed” and (2) “be of such a nature that the
defendant would be unable to obtain comparable evidence by other
reasonably available means.” Id. at 489, 81 L. Ed. 2d at 422.
The record indicates defendant was only seeking to confirm by
independent analysis the weight and composition of the substance
found to be cocaine in the plastic bags seized from the cellar. At
trial, the State introduced the lab report without objection which
established the weight of the contents and identified it as
cocaine. Defendant has failed to establish how he has been
prejudiced by the trial court's denial of his motion. See State v.
Anderson, 57 N.C. App. 602, 609, 292 S.E.2d 163, disc. review
denied, 306 N.C. 559, 294 S.E.2d 372 (1982). This assignment of
error is therefore overruled.
We have carefully considered defendant's remaining assignment
of error and find it to be without merit.
In sum, defendant received a fair trial free of prejudicial
error.
No error.
Judges HUNTER and TYSON concur.
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