STATE OF NORTH CAROLINA
v
.
JOHN EVERETTE MOTLEY, III
Attorney General Roy Cooper, by Special Deputy Attorney
General George W. Boylan, for the State.
R. Marshall Bickett, Jr., for defendant appellant.
McCULLOUGH, Judge.
Defendant John Everette Motley, III, was tried before a jury
at the 15 May 2001 Criminal Session of Rowan County Superior Court
after being charged with one count of assault with a deadly weapon
with intent to kill inflicting serious injury and one count of
discharging a weapon into occupied property. The State's evidence
at trial showed that in July 1998, Esequil Martinez was living with
his brothers, their wives, one child and two friends in Salisbury,
North Carolina. Around 1:30 a.m. on 29 July 1998, Martinez was
sleeping in the living room, located at the front of the house,
when he was awakened by a knock at the door. When Martinez
answered the door, a man, later identified as defendant, stated,
“I'm here to sell you a gun.” After Martinez refused to buy a gun,
defendant became angry and stated, “I'm not going to play around. I'm going to come back with a bigger one.” According to Martinez,
“[Defendant] looked bad. He looked like he was on drugs or had
been drinking.” Defendant left, and Martinez went back to sleep.
Approximately one hour later, Martinez woke to the sound of
gunshots. Martinez testified he covered his ears, shut his eyes,
and hid near the sofa until the shooting subsided. After five to
ten minutes, Martinez called the Salisbury police. Several
officers responded to the call within five minutes. They noted
that the front of the house was full of gunshot holes, while the
interior of the house had sustained great damage. Additionally,
the officers discovered that Martinez's brother Victor suffered a
gunshot wound to his left foot and called an ambulance for him.
Detective Tom Lowe of the Salisbury Police Department
testified that he began investigating the shooting at Martinez's
home on 30 July 1998. During the course of his investigation,
Detective Lowe assembled photographic lineups of suspects, took
them to Mr. Martinez, and asked whether any of the photographs
depicted the man who tried to sell him a gun on 29 July. The first
lineup did not contain a photograph of defendant, and Mr. Martinez
stated that he did not recognize anyone in that set of photographs.
After further investigation, Detective Lowe assembled a second
photographic lineup containing defendant's photograph and showed it
to Mr. Martinez in late August 1998. Mr. Martinez immediately
identified defendant as the man who attempted to sell him a gun on
29 July.
Detective Lowe examined defendant's criminal history and notedthat he had been arrested on 9 August 1998 in Yadkin County for
carrying a concealed weapon, a knife, and for being intoxicated and
disruptive. During that arrest, Deputy Richard Nixon of the Yadkin
County Sheriff's Office obtained defendant's consent to search
defendant's Ford truck. Deputy Nixon took several weapons into
custody, including a Colt AR 15 semiautomatic rifle in plain view
in the back of the truck. Deputy Nixon also confiscated 575 rounds
of ammunition, which were lying next to the rifles inside
defendant's truck.
Detective Lowe contacted the District Attorney's Office and
was instructed to obtain the Colt rifle and the ammunition from the
Yadkin County Sheriff's Office. He also went to Mr. Martinez's
house and recovered two bullet fragments from the bedroom on 30
September 1998. Detective Lowe filled out custody slips on all the
items, then sent them to the State Bureau of Investigation (S.B.I.)
for analysis on 15 October 1998. On 22 April 1999, the SBI report
was returned to Detective Lowe; it confirmed that the 39 shell
casings collected from the crime scene early in the investigation
were fired from defendant's Colt rifle.
Defendant testified on his own behalf and stated he had never
been to Mr. Martinez's house in Salisbury and that he had never
seen Mr. Martinez or any member of his family. When asked whether
he shot at the testifying witnesses or into their residence,
defendant stated, “No, I did not.” Defendant admitted the Colt AR
15 rifle was in his truck when he was arrested by Yadkin County
deputies on 9 August 1998, but stated he had the gun because he wasa member of a shooting range. After elaborating on the events
surrounding his arrest and other matters, defendant rested.
After deliberating, the jury found defendant guilty on both
counts. The trial court sentenced defendant to consecutive terms
of 116-141 months' imprisonment for his conviction of assault with
a deadly weapon with intent to kill inflicting serious injury and
34-50 months' imprisonment for his conviction of discharging a
weapon into occupied property. Defendant gave notice of appeal in
open court.
By his sole assignment of error, defendant contends the trial
court erred by determining that the release of the Colt rifle by
one law enforcement agency to another did not constitute an illegal
search or seizure and allowing the S.B.I. report to be admitted
into evidence. After careful examination of the record and the
arguments presented by the parties, we disagree and conclude
defendant received a trial free from the errors assigned.
“A 'search' proscribed by the Fourth Amendment contemplates an
unreasonable governmental intrusion into an area in which a person
has a justifiable expectation of privacy. The fundamental inquiry
in considering Fourth Amendment issues is whether a search or
seizure is reasonable under all the circumstances.” State v.
Francum, 39 N.C. App. 429, 431-32, 250 S.E.2d 705, 706-07 (1979)
(citations omitted). “[A] critical premise of the Fourth Amendment
is that a governmental search of private property or effects
without prior judicial approval is per se unreasonable unless the
search fits into a well-delineated exception to the warrantrequirement and is conducted under circumstances that are, in fact,
exigent.” State v. Hall, 52 N.C. App. 492, 498, 279 S.E.2d 111,
115, appeal dismissed, disc. review denied, 304 N.C. 198, 285
S.E.2d 104 (1981). With these concepts in mind, we turn to the
case at hand.
While defendant admits the search and seizure by Deputy Nixon
on 9 August 1998 was lawful, he argues the Yadkin County Sheriff's
Department lacked authority to later turn the Colt rifle over to
Detective Lowe and the Salisbury Police Department because the
transfer of the rifle from one law enforcement agency to another
exceeded the scope of the original search. Defendant maintains
that, once the investigation surrounding his Yadkin County arrest
was completed, the Yadkin County law enforcement officers lost the
right to retain or further examine defendant's property, since the
Yadkin County arrest had nothing to do with the 29 July 1998
incident in Salisbury. Defendant also notes there was nothing
illegal, per se, about his possession of the Colt rifle on the day
he was arrested. Defendant was arrested for carrying a concealed
weapon; however, that weapon was a knife, not the Colt rifle.
Thus, according to defendant, there was no reason for the Yadkin
County officials to hold his rifle after the 9 August 1998 incident
was resolved.
Under defendant's reasoning, the Yadkin County officials also
lost the authority to turn the rifle over to Detective Lowe once
their investigation was over, because at that point, they were
merely holding the rifle for safekeeping. Defendant contends thetransfer and testing of the rifle constituted a second search and
seizure which exceeded the permissible scope of the original search
and seizure and violated the Fourth Amendment because the transfer
was not necessary for the safeguarding of defendant's property and
the S.B.I.'s ballistics examination was not reasonable under the
circumstances. See Francum, 39 N.C. App. 429, 250 S.E.2d 705.
According to defendant, the only way Detective Lowe could have
lawfully obtained custody of the rifle was pursuant to a search
warrant. Defendant maintains Detective Lowe's failure to procure
a search warrant violated the Fourth Amendment and should have
resulted in suppression of the S.B.I. report at his trial.
Upon review of the record, we agree with the State that the
release of the rifle by one law enforcement agency to another did
not constitute an illegal search or seizure. Immediately after Mr.
Martinez testified about the shooting at his home on 29 July 1998,
the State called Deputy Nixon to provide voir dire testimony
regarding defendant's arrest on 9 August 1998 in Yadkin County.
Deputy Nixon stated that he responded to a call concerning a man
(later identified as defendant) who was threatening another man
with an assault rifle in a church parking lot. Once at the scene,
Deputy Nixon and another officer saw defendant standing near a Ford
truck. As they approached, they handcuffed defendant for their
safety while they assessed the situation. The other man, Mr. Roger
Sizemore, stated that defendant pointed an assault rifle at him and
threatened to kill him. After speaking to Mr. Sizemore and another
witness, Deputy Nixon arrested defendant for being intoxicated anddisruptive. While performing a pat-down search of defendant's
person, Deputy Nixon discovered a sharp dagger in defendant's belt
and also arrested defendant for carrying a concealed weapon.
Because defendant was standing within a few feet of the Ford truck,
Deputy Nixon asked defendant's permission to search it. Deputy
Nixon testified as follows:
Q. [Prosecutor] And, how was it you
came to search the Ford truck that the
defendant was near?
A. [Deputy Nixon] The defendant gave
us consent to search his vehicle.
Q. You specifically asked him for
consent?
A. Yes, ma'am.
Q. And, what, if anything unusual, did
you find in the Ford truck?
A. When we approached the defendant and
put him into---to take him into custody, the
bed of the truck had a camper shell on it, the
tailgate was down and the camper shell lid was
open and immediately when we approached, we
noticed where the rifle was laying in the bed
of the truck near the tailgate area.
Q. The tailgate was up or down?
A. It was down.
Q. All right, and were these weapons to
the best of your recollection touching the
tailgate area, or were they up into the bed of
the truck?
A. No, ma'am. They were right at the
tailgate.
Q. Okay, towards the edge of the bed?
A. Yes, ma'am.
Q. And, what kind of weapons did you
see at that point?
A. One was an AR 15[.]
After considering Deputy Nixon's voir dire testimony, the
trial court concluded the warrantless search of defendant's truck
was proper under State v. Isleib, 319 N.C. 634, 356 S.E.2d 573
(1987). The trial court further concluded the rifle was properly
seized after defendant consented to the search of his truck.
Defendant then argued that a separate search and seizure occurred
when Detective Lowe obtained the rifle, and that those actions
violated the Fourth Amendment because they were done without a
warrant and in connection with the investigation of an entirely
separate crime. After listening to defendant's argument, the trial
court stated:
THE COURT: Well, wouldn't it be a bit
more reasonable to say that once [the rifle
is] out of the possession of the defendant
having been seized pursuant to a lawful
arrest, incident to arrest, and in plain view
by one law enforcement agency, that that's the
only search and seizure that takes place?
Wouldn't that be reasonable? I mean, you're
saying that anytime another law enforcement
agency gets control over the instrumentality
of the latest crime, that a separate search is
occurring. Therefore, a search warrant ought
to be issued on each such occasion. Is that
what your point is?
According to the trial court, even though the Yadkin County charges
were dismissed on 25 November 1998 and there was no ongoing
investigation of that incident as of the date Detective Lowe
obtained custody of the rifle, Detective Lowe's seizure was
reasonable. We agree with the trial court that (1) the actions by the
Yadkin County officials on 9 August 1998 resulted in a lawful
search and seizure, and (2) the subsequent transfer of the rifle to
Detective Lowe was proper and did not constitute a separate search
and seizure. Defendant was arrested after Deputy Nixon and his
fellow officer spoke to two witnesses and determined that defendant
had acted unlawfully. Defendant's rifle was seized only after
Deputy Nixon procured defendant's consent.
Consent searches have long been
recognized as a “special situation excepted
from the warrant requirement, and a search is
not unreasonable within the meaning of the
Fourth Amendment when lawful consent to the
search is given.” State v. Smith, 346 N.C.[]
794, 799, 488 S.E.2d 210, 214 (1997).
“Consent to search, freely and intelligently
given, renders competent the evidence thus
obtained.” State v. Frank, 284 N.C. 137, 143,
200 S.E.2d 169, 174 (1973) (citations
omitted). “[T]he question whether consent to
a search was in fact 'voluntary' or was the
product of duress or coercion, expressed or
implied, is a question of fact to be
determined from the totality of all the
circumstances.” Schneckloth v. Bustamonte,
412 U.S. 218, 227, 36 L. Ed. 2d 854, 862-63
(1973).
State v. Graham, 149 N.C. App. 215, 218-19, 562 S.E.2d 286, 288
(2002). Defendant's consent was voluntary and obviated the need
for a warrant. The evidence also indicates that the rifle was in
plain view of the officers, providing yet another proper basis for
the search and seizure by Deputy Nixon.
The trial court concluded, and we agree, that extension of
defendant's logic would not make sense. According to defendant,
anytime a second law enforcement agency takes custody of aninstrumentality of crime from the seizing agency, a separate search
occurs, thus requiring that a search warrant be issued on each such
occasion. The United States Supreme Court has said “it is
difficult to perceive what is unreasonable about the police
examining and holding as evidence those personal effects of the
accused that they already have in their lawful custody as the
result of a lawful arrest.” United States v. Edwards, 415 U.S.
800, 806, 39 L. Ed. 2d 771, 777 (1974). Here, defendant conceded
that the search and seizure by Yadkin County officials on 9 August
1998 was lawful.
Moreover, the transfer of defendant's rifle from one law
enforcement agency to another did not constitute a search or
seizure subject to constitutional scrutiny because defendant no
longer possessed a reasonable expectation of privacy in the rifle
once it was lawfully obtained by law enforcement officials in
Yadkin County. See State v. Steen, 352 N.C. 227, 241, 536 S.E.2d
1, 9-10 (2000), cert. denied, 531 U.S. 1167, 148 L. Ed. 2d 997
(2001). Defendant never made a request or motion for the Colt
rifle to be returned to him, after the previous charges were
dismissed.
Our Court has previously held that once evidence is validly
obtained, the owner no longer has a possessory or ownership
interest in it, and any legal expectation of privacy has
disappeared. State v. Barkley, 144 N.C. App. 514, 551 S.E.2d 131,
appeal dismissed, 354 N.C. 221, 554 S.E.2d 646 (2001). In Barkley,
the defendant's blood had been drawn as part of a murderinvestigation which was wholly separate from his trial for first-
degree rape and first-degree kidnapping. Id. at 516-17, 551 S.E.2d
at 133-34. When defendant learned the blood evidence would be
introduced at trial, he moved to suppress it. Id. The Barkley
Court rejected defendant's argument that a blood sample obtained in
relation to one uncharged crime could not be used as evidence
against him in another unrelated crime without violating his Fourth
Amendment rights. Id. at 518, 551 S.E.2d at 134. The Barkley
Court concluded the blood sample could be used to investigate both
the crimes for which defendant was being tried and the unrelated
murder without violating the Fourth Amendment, because in those
circumstances, “a reasonable person would have understood by the
exchange [between himself and law enforcement officers] that his
blood analysis could be used generally for investigative purposes,
not exclusively for the murder investigation.” Id. at 521, 551
S.E.2d at 136. In reaching its conclusion, the Barkley Court
quoted People v. King, 663 N.Y.S.2d 610, 232 A.D.2d 111, which
stated:
“It is also clear that once a person's
blood sample has been obtained lawfully, he
can no longer assert either privacy claims or
unreasonable search and seizure arguments with
respect to the use of that sample. Privacy
concerns are no longer relevant once the
sample has already lawfully been removed from
the body, and the scientific analysis of a
sample does not involve any further search and
seizure of a defendant's person. In this
regard we note that the defendant could not
plausibly assert any expectation of privacy
with respect to the scientific analysis of a
lawfully seized item of tangible property,
such as a gun or a controlled substance. Although human blood, with its unique genetic
properties, may initially be quantitatively
different from such evidence, once
constitutional concerns have been satisfied, a
blood sample is not unlike other tangible
property which can be subject to a battery of
scientific tests.”
Barkley, 144 N.C. App. at 519, 551 S.E.2d at 134-35 (quoting People
v. King, 663 N.Y.S.2d at 614-15, 232 A.D.2d at 117-18).
Though Barkley dealt with a blood sample obtained from the
defendant, we believe the logic of Barkley reasonably extends to
encompass other types of evidence, including data obtained from
ballistics testing of defendant's rifle. Upon review of the
present case, we believe the trial court properly admitted the
S.B.I. test results at defendant's trial after concluding that the
release of the Colt rifle by one law enforcement agency to another
did not constitute an illegal search and seizure. We hold that the
transfer of properly seized tangible items from one law enforcement
agency to another for scientific testing or further analysis does
not constitute an impermissible seizure, as defendant lacks a
reasonable expectation of privacy in the object. Consequently, a
defendant cannot object when the item lawfully seized is
subsequently introduced at trial. After thoughtful consideration
of the record and the arguments of the parties, we conclude
defendant received a fair trial free from error.
No error.
Judges TYSON and BRYANT concur.
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