Search and Seizure_video tapes seized during drug raid_identity of people controlling
premises
Defendant's motion to suppress videotapes seized during a narcotics search of his home
was properly suppressed. The tapes portrayed defendant having sex in the bedroom where
marijuana and drug paraphernalia were found and the warrant under which the mobile home was
searched included articles of personal property tending to establish the identity of those in control
of the premises. N.C.G.S. § 15A-242(4).
Attorney General Roy A. Cooper, III, by Assistant Attorney
General John F. Oates, Jr., for the State.
Ramos and Lewis, L.L.P., by Michael R. Ramos; Stiller and
Disbrow, by Bonner Stiller, for defendant-appellant.
HUNTER, Judge.
Jerry Martin Adams (“defendant”) appeals from the trial
court's denial of his motion to suppress videotapes seized from his
bedroom closet during a search of his residence. We affirm the
trial court's denial of defendant's motion for the reasons stated
herein.
Evidence presented at the hearing on defendant's motion to
suppress is briefly summarized as follows. On 8 March 2002, Steve
Lanier (“Agent Lanier”), a narcotics agent with the Brunswick
County Sheriff's Department, obtained and executed a search warrant
for defendant's residence. Information from a confidential sourceabout defendant selling narcotics from his residence and controlled
buys from that residence led to the issuance of the warrant. The
following language was included in the search warrant with respect
to the items to be seized: “[A]rticles of personal property
tending to establish and document sales of marijuana . . . plus
articles of personal property tending to establish the identity of
persons in control of the premises . . . .”
When the law enforcement officers arrived at defendant's
residence, there were at least twenty people gathered around a
bonfire outside. Four other persons besides defendant lived in
defendant's mobile home. During the execution of the search
warrant, the officers seized marijuana, drug paraphernalia, a box
of videotapes, and a stolen firearm.
Matthew Strangman (“Agent Strangman”) and Shelton Caison
(“Agent Caison”) searched defendant's bedroom, in which they found
a small amount of marijuana, drug paraphernalia, a concealed video
camera located on a table at the foot of the bed positioned at an
angle to videotape the bed area, and a box of homemade videotapes
which were located in the closet. There were no markings or labels
on the videotapes denoting the images they contained. Agent
Strangman briefly viewed two of the videotapes while in defendant's
bedroom and observed what appeared to be sexual activity between a
male and a female.
Agent Lanier, who was responsible for seizing evidence during
the execution of the search warrant, later entered defendant's
bedroom. He was told by other officers that a box of videotapes
had been found in the room but he was not informed that AgentStrangman had viewed the videotapes nor was he advised of the
images observed on the videotapes. While in defendant's bedroom,
Agent Lanier discovered the video camera that was facing the view
of the bed. After advising defendant of his Miranda rights, Agent
Lanier asked defendant what was on the videotapes. Defendant
responded, “that it was a video of him having sex with other
women.” Agent Lanier testified that he seized the videotapes “[i]n
order to establish who was in control of the property . . . .”
Further, Lieutenant John Ingram, the officer in charge of the
narcotics unit, indicated that it was common practice to seize
videotapes to establish the identity of the person controlling the
premises. Agent Lanier later viewed the videotapes in his office.
After observing that the videotapes showed defendant engaged in
sexual acts with women, he turned the tapes over to Detective Dawn
Francisco because he suspected that one of the women shown having
sex with defendant was underage.
Defendant was charged with seven counts of participating in
the prostitution of a minor, three counts of first degree sexual
exploitation of a minor, seven counts of statutory rape, one count
of maintaining a dwelling for the purpose of keeping and selling
controlled substances, and one count of possession with intent to
sell or deliver marijuana. On 10 May 2002, defendant filed a
motion to suppress the videotapes seized from his bedroom closet
during the search of his residence. Following a hearing, the trial
court denied defendant's motion in an order dated 24 June 2002,
nunc pro tunc to 14 June 2002. Defendant then entered a plea of no
contest to three counts of first degree sexual exploitation of aminor and one count of participating in the prostitution of a
minor, while reserving his right to appeal the court's denial of
his motion to suppress. The trial court sentenced defendant to 166
months to 229 months imprisonment. Pursuant to the plea agreement,
the remaining charges were dismissed.
The sole issue on appeal is whether the trial court erred in
denying defendant's motion to suppress the videotapes seized during
the search of defendant's residence. We conclude the trial court
did not err and therefore affirm the court's denial of defendant's
motion to suppress.
At the outset, defendant has only one broad assignment of
error, which states:
The trial court committed reversible
error by denying defendant's motion to
suppress certain video tapes searched and
seized by law enforcement during a search of
the defendant's home pursuant to a search
warrant in that the video tapes were not
within the scope of those items authorized to
be searched for and seized by the warrant.
Thus, defendant has failed to assign error to any of the trial
court's findings of fact. When no assignment of error is made to
particular findings, “they are presumed to be supported by
competent evidence and are binding on appeal.” Anderson
Chevrolet/Olds v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159,
161 (1982). Accordingly, this Court is bound by the trial court's
findings and our review is limited to determining whether these
findings support the trial court's conclusions. State v. Phillips,
151 N.C. App. 185, 565 S.E.2d 697 (2002). The trial court's
conclusions of law will be upheld if supported by its findings of
fact. State v. Cooke, 306 N.C. 132, 291 S.E.2d 618 (1982). The trial court made the following conclusions of law:
1. The issuance of the search warrant was
based on probable cause and adequately
stated the premises to be searched and
the items to be seized.
2. North Carolina General Statute 15A-242(4)
states that an item is subject to a
seizure under a search warrant if there
is probable cause to believe that it
constitutes of [sic] the identity of a
person participating in an offense.
Where the defendant knowingly states to
an officer that he is on the videotape,
and that videotape depicts the defendant
within the room where narcotics and
paraphernalia were found, the seizure of
the videotape is within the scope of said
statute.
3. The viewing of the tape is allowed by the
“plain view” exception to the 4th
Amendment in that the defendant
identified himself as the individual on
the video tape thereby providing the
agent with first hand information to
establish the probable cause to seize an
item to show identity as required by
General Statute 15A-242(4).
4. The seizure was reasonable and the Court
determines that it violates no provision
of the general statutes nor any right
granted by the United States or North
Carolina Constitution, and the
Defendant's Motion to Suppress is denied.
It is undisputed that the search warrant issued in this case
was based on probable cause. Defendant argues, however, that the
trial court erred in concluding the videotapes were among those
items subject to seizure pursuant to N.C. Gen. Stat. § 15A-242
(2001). This Section states: “An item is subject to seizure
pursuant to a search warrant if there is probable cause to believe
that it: . . . (4) Constitutes evidence of an offense or the
identity of a person participating in an offense.” N.C. Gen. Stat.§ 15A-242. Moreover, the search warrant in this case included in
its description of property to be seized, “articles of personal
property tending to establish the identity of persons in control of
the premises . . . .”
Defendant asserts that the videotapes were initially seized
and searched by Agents Strangman and Caison. Defendant
additionally points out that the tapes contained no labels
disclosing their contents. Thus, defendant reasons that there was
nothing from which the officers could have concluded that the
videotapes were subject to search and seizure under the warrant or
any provision of N.C. Gen. Stat. § 15A-242. However, the trial
court's findings of fact, to which we are bound, established that
the narcotics agents discovered “a small amount of marijuana and
drug paraphernalia in [defendant's] room, as well as a concealed
video camera and a box of homemade videotapes.” The court
acknowledged in its findings that Officer Strangman viewed two of
the videotapes while in defendant's bedroom. However, the court
found that Officer Strangman did not tell Agent Lanier that he had
viewed the tapes prior to Agent Lanier seizing them. When Agent
Lanier asked defendant what was on the tapes, defendant replied,
“'me having sex with women.'” The court additionally found that:
Due to the proximity of the camera to the
tapes and their location in the locked room,
agent Lanier then seized the tapes along with
other items to establish the defendant's
control of the room, and the contraband found
in the room, to the exclusion of the other
four residents.
Further, the court found that three other occupants of the premises
were charged with weapons and narcotics offenses and thirteencitations were issued to non-residents on the premises for drug
offenses. Finally, the court found that “[t]he images on [the]
videotapes did establish the defendant's control of that particular
room and his intent to possess with the intent to sell and/or
deliver marijuana from the residence.”
We conclude that these findings support the court's conclusion
that the videotapes were properly seized pursuant to N.C. Gen.
Stat. § 15A-242(4). The findings show that there was probable
cause to believe that the tapes constituted evidence of the
identity of the person participating in the offense of possessing
marijuana with the intent to sell and/or deliver marijuana from the
residence. When defendant was asked by Agent Lanier what was on
the tapes, defendant replied, “'me having sex with women.'” In
addition, there was a concealed video camera facing defendant's
bed. Based on these facts, the officers had probable cause to
believe that the videotapes would provide evidence of the person in
control of the bedroom where marijuana and drug paraphernalia were
discovered. In addition, the videotapes were among the items
listed in the search warrant to be seized under the language,
“articles of personal property tending to establish the identity of
persons in control of the premises . . . .” Therefore, the trial
court properly denied defendant's motion to suppress the videotapes
found during the search of defendant's residence. Accordingly, we
affirm.
Affirmed.
Judges MARTIN and GEER concur.
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