2. Search and Seizure_plain view doctrine--scales seen in hotel room
Scales were lawfully observed and seized from a cocaine defendant under the plain view
doctrine in the totality of the circumstances. A detective had received information that the
occupants of a hotel room possessed drugs, the behavior of the occupants of the room indicated
drug activity, and the detective saw the scales in the room after he knocked on the door, talked
with defendant, and gained entry through a voluntary consent.
3. Search and Seizure_warrantless_scene frozen awaiting warrant_exigent
circumstances
Officers were justified in lifting a mattress and in opening a nightstand drawer in a hotel
room prior to obtaining a search warrant. Under the totality of the circumstances, the officers had
probable cause to believe that a drug crime was being committed and they were justified in
freezing the scene pending issuance of a search warrant. Their warrantless search of the area
toward which defendant repeatedly moved was justified under the exigent circumstances
exception.
Attorney General Roy Cooper, by Assistant Attorney General
Newton G. Pritchett, Jr., for the State.
William D. Spence for defendant appellant.
ELMORE, Judge.
Defendant, Brian Jackie Harper, was indicted on 9 April 2001
for the following related offenses: trafficking in cocaine by
possession (01 CRS 4678); possession with intent to sell and
deliver cocaine (01 CRS 4679); conspiracy to traffic in cocaine (01CRS 4680); possession with intent to sell and deliver heroin (01
CRS 4681); and maintaining a place for controlled substances and
possession of drug paraphernalia (01 CRS 4682) (collectively, the
“drug charges”). The drug charges arose out of events which
occurred on 3 March 2001 at a Wilmington, North Carolina hotel
while defendant was present and in control of a room therein.
Prior to his indictments on the drug charges, defendant was
indicted on 2 April 2001 for the unrelated offense of statutory
rape (01 CRS 2530).
On 9 August 2001, defendant filed a motion to suppress certain
evidence in his prosecution on the drug charges. This evidence
consisted of (1) physical evidence seized, pursuant to a
warrantless police search, on 3 March 2001 from a hotel room in
which defendant was present, and (2) statements made by defendant
during and after the search. On 6 December 2001, following a
hearing and presentation of evidence by the State, the trial court
denied defendant's motion to suppress. Immediately thereafter,
pursuant to a plea arrangement made with the State in the event the
motion to suppress was denied, defendant pled guilty to trafficking
in cocaine by possession and assault on a female. Under the
resulting plea agreement, the remaining drug charges and the
statutory rape charge were dismissed, and defendant reserved the
right to appeal the denial of his motion to suppress. The trial
court sentenced defendant to a minimum of thirty-five months and a
maximum of forty-two months imprisonment on the trafficking in
cocaine by possession offense, and to 150 days, with full credit
for time served, on the assault on a female offense. On 10 December 2001, defendant gave notice of appeal to this
Court from (1) the denial of his motion to suppress, and (2) the
entry of final judgment after his guilty plea to the trafficking in
cocaine by possession charge and the resulting prison sentence.
For the reasons stated herein, we conclude that defendant's motion
to suppress was properly denied, and we affirm the trial court's
order and the final judgment entered pursuant to the plea
agreement.
Evidence presented by the State at the suppression hearing
tended to show that at approximately 11:00 a.m. on 3 March 2001,
Detective Charles Wilson (Detective Wilson) of the New Hanover
County Sheriff's Department's Vice and Narcotics Unit was notified
by a dispatcher of an anonymous call stating that “there was a
large quantity of crack cocaine, heroin in Room 210 at the Homestay
Inn at 245 Eastwood Road” in Wilmington. After unsuccessfully
attempting to contact the tipster, Detective Wilson proceeded to
the hotel, spoke with the desk clerk, and examined the log book,
which contained an entry from the clerk who had been on duty the
previous night stating “I think Room 210 is on drugs.” Other
entries indicated that the occupant of Room 210 paid cash for the
room and “checked in as a single and then changed it to a double.”
According to the hotel registry, Room 210 was registered to “George
Davis.” Detective Wilson checked the vehicle registration
information corresponding to Room 210 and determined that the
license plate number matched a utility trailer registered to Nick
Lionudakis of Escalon, California. Detective Wilson checked the
parking lot and found no such trailer on the premises. DetectiveWilson also learned from another hotel employee that within the
past fifteen minutes, someone from Room 210 had “declined room
service and requested that the maid come in . . . about an hour
after they had left.”
Detective Wilson, who was dressed in plain clothes and driving
an unmarked car, called the Wilmington Police Department for backup
and positioned his car in the parking lot where he could observe
Room 210. He observed defendant, clad in a towel and brushing his
teeth, step outside of Room 210 for a few seconds before re-
entering the room. Soon thereafter, a blue car entered the lot and
parked near Room 210. Detective Wilson watched as a man, later
identified as Bryan Maurice Brailford (Brailford), got out of the
car, knocked on the door to Room 210, and entered. After “a short
period of time . . . maybe thirty to forty-five seconds,” Brailford
returned to the blue car and “leaned down and talked to the driver
and the occupants of the car from the passenger side.” Detective
Wilson testified that he observed “some hand motions back and forth
that led me to believe there was some kind of a transaction”
between Brailford and the blue car's occupants, and that, based on
his experience and training, this activity was consistent with a
possible drug sale. Brailford then re-entered Room 210 and shut
the door.
Within five minutes, Officer Bryan Robinson (Officer Robinson)
of the Wilmington Police Department arrived in uniform and
approached Detective Wilson's car. At the same time, Brailford
opened the door to Room 210 and looked around. Fearing that
Brailford had spotted the uniformed Officer Robinson and that “ifthere was evidence of a drug crime in the room, it may be disposed
of” as a result, Detective Wilson and Officer Robinson hurried
across the parking lot towards Room 210. The blue car, which had
remained in the parking lot, sped away.
Detective Wilson knocked on the door to Room 210. Defendant,
now dressed, “opened the door slightly, a crack.” Detective Wilson
identified himself and asked to speak to George Davis. Defendant
initially replied “George Davis doesn't stay here,” but when
Detective Wilson stated that the room was registered to George
Davis, defendant “started stuttering a little bit” and said Davis
had stepped out and he didn't know when Davis would be back.
During this conversation, defendant had opened the door “a little
bit more, probably about halfway open just for his body” and
Detective Wilson could see Brailford in the room. Detective Wilson
testified that “[defendant] was . . . blocking my access to the
room” and he “could tell that [defendant] didn't want me to come
into the room at that point . . . [b]y his body language.”
Detective Wilson then testified as follows:
A. I asked [defendant] if I could step inside the room
-- if I could step inside the room to see if George Davis
was in, and at that moment, he stepped back from me, from
the threshold of the door, opening up the door.
Q. How wide did he open the door?
A. He opened it almost to its full extension. It seemed
plainly evident to me, in light of the question I just
asked, “Can I step inside?” And immediately following,
he stepped back from the threshold with his right hand,
completely opens the door, virtually ushering myself and
Officer Robinson inside the room, that he wanted us to
come inside the room or he had given consent for us to
come inside the room.
Q. Did he say anything?
A. No, sir. He just stepped back and kind of hung his
head down.
Detective Wilson testified that as he was standing at the
threshold he observed a set of electronic scales on the night stand
between the room's two beds, and that he knew drug dealers often
used such scales to measure quantities of illegal narcotics.
Detective Wilson and Officer Robinson then entered the hotel room,
where they observed Brailford holding a cup and a lit cigarette.
Defendant was initially cooperative, but Brailford became hostile
when Detective Wilson asked him to put the cigarette and the cup
down, so Detective Wilson took the items from him. Detective
Wilson testified that he was concerned for his safety when
Brailford “started moving about the room” and became increasingly
“agitated,” so he handcuffed Brailford and told him to sit on one
of the beds. When Brailford refused to remain seated, Officer
Robinson patted him down and was stuck in the hand by a hypodermic
needle contained in Brailford's pocket.
Meanwhile, Detective Wilson continued to talk with defendant,
who initially gave false information when asked for his name and
date of birth. When asked by Detective Wilson, defendant refused
to give his consent for the officers to search the hotel room.
Detective Wilson then “froze” the room, meaning “nobody could leave
or enter the room pending our application for a search warrant,”
and called for backup officers to initiate the search warrant
application process. Because defendant defied the officers' order
to remain seated on the other bed, he too was handcuffed.
When defendant and Brailford still refused to remain seated,
Detective Wilson moved them into the kitchen and did a “quickfrisk” of the “lunge area” near where defendant had been seated on
the bed. This brief search consisted of lifting the mattresses of
both beds, which were about two and one-half feet apart, opening a
drawer in the night stand between the beds, and lifting the cushion
of a chair next to one of the beds. Detective Wilson testified
that he searched the “lunge area” near the beds and night stand
because he was concerned “that [defendant] was trying to get to
that area of the room to retrieve something . . . my feeling was he
was going to get a weapon, maybe from under a mattress, maybe from
inside the drawer.” Detective Wilson discovered seven hundred
dollars in cash under the mattress of the bed upon which Brailford
had been seated, an additional quantity of cash under the chair
cushion, and crack cocaine and an additional one hundred and fifty
dollars in cash in the night stand drawer. The officers did not
seize either the cash or drugs at that time, nor did they conduct
any additional search of the hotel room until a search warrant had
been issued. Shortly thereafter the officers received and executed
the search warrant and discovered heroin behind the television and
underneath a chest of drawers. At that point defendant and
Brailford were placed under arrest.
Detective Wilson testified that he did not recall advising
defendant of his Miranda rights and that he did not ask defendant
anything other than “general information” questions such as “name,
date of birth, Social Security number, where he lives.” The record
does not indicate that defendant made any incriminating statements
to Detective Wilson or Officer Robinson. Officer Robinsontestified at the hearing and substantially corroborated Detective
Wilson's testimony. Defendant offered no testimony on his behalf.
In denying defendant's motion to suppress, the trial court
orally made findings of fact regarding the officers' entry into the
hotel room as follows:
Wilson knocked on the door. Robinson was . . .
standing beside him. The Defendant opened the door
slightly, a crack. Wilson identified himself as a
detective, asked to speak with George Davis. The
Defendant said there was no Davis there. Again, Wilson
indicated that the room was registered in the room [sic]
of George Davis. The Defendant said Davis had stepped
out, didn't know if and when Davis was coming back.
Wilson confronted the Defendant about this discrepancy.
The door opened slightly more. Wilson could see in the
room a little better. The Defendant blocked the door,
still in a posture suggesting the Defendant did not want
Wilson to enter the room. . . . Wilson asked if he could
step into the room. It's unclear exactly what words were
used at that time. The Defendant stepped back from the
threshold of the door, the door opened to its full
extension. The Defendant said nothing at this time. His
hand was still on the doorknob, but his body had moved
and the door had opened to the full extent.
Wilson took this as a consent to enter and, at this
time, Wilson saw scales in the room in plain view.
Wilson stepped into the room. . . . The Defendant was
cooperative and cordial.
Regarding the pre-warrant search of the hotel room, the trial
court made the following findings of fact:
At some point, the Defendant was handcuffed. Wilson
asked the Defendant for consent to search the remainder
of the premises. The Defendant said he could not give
such consent because it was not his room.
At this point, Wilson froze the room, contacted
Detective Taft with [sic] a search warrant. The
Defendant and the other male had appeared interested in
a particular area of the room around the night stand
between the beds. At some point, the Defendant and the
male were removed to the kitchen and away from that area.
Wilson then checked or patted down, frisked the so-called
lunge area. And in that area, also, the scales were seen
in plain view, but also checked under the mattresses.
Under one mattress, found money; under the othermattress, found nothing. In the drawer . . . between the
two beds, found a Bible. Also found drugs and money.
At this point, the officers observed [sic] the
status quo, did not move anything and were in wait of
receipt of back-up help and also of a warrant. . . .
Finally, regarding the post-warrant search of the hotel room,
the trial court found as follows:
A warrant was subsequently attained, search was
made, heroin was found beside the TV in plain view,
although it had not been seen previously by the officers
while in the room. And heroin was also found under a
chest of drawers.
The trial court then made conclusions of law, in pertinent
part, as follows:
Law enforcement personnel gained consensual entry to
the room through the actions and inactions of the
Defendant.
While lawfully in the room, the officers observed
sufficient evidence that, coupled with the conduct of the
Defendant and [Brailford], and considering the two tips
that had been received by the dispatcher and relayed to
Wilson, [the] conduct of [Brailford] when he arrived in
the [blue car] and made a trip to the room and back to
the car and back up to the room, the three entries in the
motel's night log, the conduct of [Brailford] when he
observed the uniformed officer while looking out the
motel window, the registration and the fictitious name,
the reference in the registration to a 1981 California
trailer, the evasive and erroneous responses of the
Defendant when asked about his name, his age and the
person to whom the room was registered, presence of
scales in plain view in the room, and the totality of the
circumstances surrounding this incident, the officers did
have probable cause to believe that the commission of a
crime was taking place. The Court further concludes that
the officers lawfully froze the scene pending the
issuance of a search warrant, that a search warrant was
lawfully issued, the scene was lawfully searched and the
evidence derived therefrom was lawfully seized.
Therefore, the Court holds that the Defendant's motion to
suppress is denied.
On appeal, defendant brings forth five assignments of error,
asserting that the trial court erred in concluding (1) the officersgained consensual entry to the hotel room; (2) the officers, while
lawfully in the hotel room, made observations that, coupled with
the totality of the circumstances, gave them probable cause to
believe a crime was taking place; (3) the officers lawfully froze
the room pending issuance of a search warrant; (4) the scene was
lawfully searched, and evidence lawfully seized, pursuant to a
valid search warrant; and (5) defendant's motion to suppress should
be denied. After a thorough review of the record, we find each
assignment of error to be without merit.
At the outset, we note that “[i]n reviewing the trial court's
order following a motion to suppress, we are bound by the trial
court's findings of fact if such findings are supported by
competent evidence in the record; but the conclusions of law are
fully reviewable on appeal.” State v. Smith, 346 N.C. 794, 797,
488 S.E.2d 210, 212 (1997); see also State v. Mahatha, 157 N.C.
App. 183, 191, 578 S.E.2d 617, __ (2003).
It is axiomatic that unreasonable searches and seizures are
prohibited by both our federal and state constitutions. U.S.
Const. amend. IV; N.C. Const. art. I, § 20. Generally, warrantless
searches are not allowed absent probable cause and exigent
circumstances, the existence of which are factual determinations
that must be made on a case by case basis. State v. Harris, 145
N.C. App. 570, 580-81, 551 S.E.2d 499, 506 (2001), disc. review
denied, 355 N.C. 218, 560 S.E.2d 146 (2002). “Consent, however,
has 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 searchis given.” Smith, 346 N.C. at 798, 488 S.E.2d at 213 (1997)
(citing Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854
(1973)). Further, N.C. Gen. Stat. § 15A-221(a) (2001) authorizes
warrantless searches and seizures “if consent to the search is
given.” N.C. Gen. Stat. § 15A-221(b) (2001) defines “consent” as
“a statement to the officer, made voluntarily . . ., giving the
officer permission to make a search.”
In considering whether a defendant's nonverbal conduct alone,
absent any words evidencing consent, may constitute valid consent
to a search, this Court has held as follows:
In determining whether under the totality of the
circumstances defendant's nonverbal response in this case
constituted a statement within the meaning of consent
under N.C. Gen. Stat. § 15A-221(b), we are guided by
Black's Law Dictionary definition of the word “statement”
as “a verbal assertion or nonverbal conduct intended as
an assertion.” Black's Law Dictionary, 1416 (7th ed.
1999). Thus, a statement need not be in writing nor
orally made. Rather, the use of nonverbal conduct
intended to connote an assertion is sufficient to
constitute a statement.
State v. Graham, 149 N.C. App. 215, 219, 562 S.E.2d 286, 288
(2002), disc. review denied, 356 N.C. 685, __ S.E.2d __ (2003)
(emphasis added). In Graham, this Court upheld the trial court's
conclusion that the defendant voluntarily consented to a
warrantless search of his person where the defendant, after being
asked by a police officer if she could search his pants pocket, did
not reply verbally but rather “stood up and raised his hands away
from his body accompanied by a gesture which [the officer] took to
mean consent.” Id. This Court then affirmed the denial of
Graham's motion to suppress the evidence seized as a result of the
search.[1] In the case sub judice, we conclude that, as in Graham,
defendant's nonverbal response after Detective Wilson knocked on
the hotel room door, identified himself as a police officer,
engaged in conversation, and asked to come in constituted a valid
consent for Detective Wilson and Officer Robinson to enter. The
trial court found that defendant initially “opened the door
slightly, a crack” when Detective Wilson knocked. As they talked,
the door “opened slightly more,” but defendant remained “in a
posture suggesting [he] did not want Wilson to enter.” However,
after Detective Wilson “asked if he could step into the room,”
defendant “stepped back from the threshold . . . , the door opened
to its full extension. The Defendant said nothing . . .
[Defendant's] hand was still on the doorknob, but his body had
moved and the door had opened to its full extent.” After the
officers entered “[t]he Defendant was cooperative and cordial.”
There is ample evidence of record supporting the trial court's
findings of fact. Defendant does not now contend, nor does the
record reflect, that he lacked authority to consent to the
officers' entry or that his consent was obtained through duress or
coercion. Viewing this evidence under the totality of the
circumstances, we hold that the trial court properly determined
that defendant voluntarily consented to the officers' entry into
the hotel room.
[2] Defendant contends that the warrantless search conducted
by the officers after they entered the room was illegal, and that
the evidence resulting therefrom should be suppressed. We
disagree. In North Carolina, the plain view doctrine authorizesthe lawful seizure of evidence without a warrant “when the officer
was in a place he or she had a right to be at the time the evidence
was discovered, it is immediately obvious that the items observed
are evidence of a crime, and the discovery is inadvertent.” State
v. Bone, 354 N.C. 1, 8, 550 S.E.2d 482, 487 (2001), cert. denied,
535 U.S. 940, 152 L. Ed. 2d 231 (2002).
In the instant case, the trial court found that “Wilson saw
scales in the room in plain view.” Detective Wilson testified that
he “saw a set of scales sitting on the night stand . . . as I was
standing at the threshold of the door.” Whether he observed the
scales while standing at the threshold or after crossing it is
immaterial, given our holding that defendant consented to the
officers' entry. Either way, Detective Wilson was in a place where
he had a right to be when he observed the scales. Detective Wilson
testified that he knew scales such as these were often used by
dealers to measure quantities of illegal narcotics. While such
scales are not per se illegal, “scales and balances” are included
within the definition of “drug paraphernalia” found in the
Controlled Substances Act. N.C. Gen. Stat. § 90-113.21(a)(5)
(2001). Immediately prior to seeing the scales, Detective Wilson
had received information that the occupants of Room 210 possessed
drugs, and he had detected and observed behavior by the room's
occupants indicative of drug-related criminal activity. Here,
under the totality of the circumstances, we conclude that it was
immediately obvious to Detective Wilson that the scales were
evidence of a drug crime. Finally, since the officers had no
reason to know that they would observe scales when they asked ifthey could enter the room, we conclude that their discovery was
inadvertent. Bone, 354 N.C. at 9, 550 S.E.2d at 487. We hold that
the scales were lawfully observed and subsequently seized under the
plain view doctrine.
[3] Next, defendant contends that the officers engaged in a
constitutionally impermissible search by lifting the mattresses and
opening the night stand drawer prior to obtaining a search warrant.
It is well settled that “just because officers can justifiably
enter a dwelling, that does not give them free rein in their search
of the dwelling. The question becomes whether the scope of the
ensuing searches was permissible.” State v. Woods, 136 N.C. App.
386, 392, 524 S.E.2d 363, 367, disc. review denied, 351 N.C. 370,
543 S.E.2d 147 (2000). However, a warrantless search is not
unconstitutional when there is probable cause to search and
circumstances render impracticable a delay to obtain a warrant.
State v. Nance, 149 N.C. App. 734, 743, 562 S.E.2d 557, 564 (2002).
In the case sub judice, we agree with the trial court's
conclusion that after entering the room, the officers, under the
totality of the circumstances, did have probable cause to believe
that a drug crime was being committed therein, and were justified
in “freezing” the scene pending issuance of a search warrant.
State v. Sanchez, 147 N.C. App. 619, 622, 556 S.E.2d 602, 606
(2001), disc. review denied, 355 N.C. 220, 560 S.E.2d 358 (2002).
The record is replete with evidence supporting the findings which
in turn support this conclusion, as set forth in detail above.
The United States Supreme Court has cited immediate danger to
the lives of law enforcement officers as an exigent circumstancejustifying a warrantless search. Warden v. Hayden, 387 U.S. 294,
298-99, 18 L. Ed. 2d 782, 787 (1967). Here, the trial court's
findings establish that defendant and Brailford “appeared
interested in a particular area of the room around the night stand
between the beds,” and Detective Wilson testified they repeatedly
moved towards this area. Both Detective Wilson and Officer
Robinson testified that they were concerned that weapons might be
hidden in this area of the room, and they consequently feared that
waiting for a warrant before searching this area placed them in
danger. The search was limited to places within this part of the
room where the officers could have reasonably expected weapons to
be concealed _ under mattresses and seat cushions, and inside a
drawer. The drugs and money found as a result of this search were
left in place and not seized until a warrant was obtained. We
conclude that Detective Wilson's warrantless search of the “lunge
area” within the part of the room defendant and Brailford
repeatedly moved toward was justified under the exigent
circumstances exception to the warrant requirement, and that the
scope of the search was permissible.
Having determined that both the officers' warrantless entry
into the room and subsequent search of the “lunge area” were
lawful, we find no merit in defendant's contention that the
subsequently-issued search warrant was obtained using illegally
obtained information.
Affirmed.
Judges MARTIN and HUDSON concur.
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