State v Sartori, 155 NC App 776 (02-476) 01/07/2003

On writ of certiorari to review order entered by Judge J. Marlene Hyatt during the 14 October 1996 Criminal Session of Haywood County Superior Court. Heard in the Court of Appeals 23 December 2002.

Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.

Haakon Thorsen for defendant appellant.

McCULLOUGH, Judge.

    On 15 July 1996, the Haywood County grand jury indicted defendant Robert Allen Sartori on charges of larceny from the person and possession of stolen goods. On 9 September 1996, defendant filed a motion to suppress evidence obtained as a result of a warrantless search. At the conclusion of the suppression hearing on 14 October 1996, the trial court made the following findings of fact:
            That on the date of the incident in question, June 4, 1996, the State's witness, Sarah Boise, was employed at the Blue Butterfly; that she always kept her purse under a chair in an area that was closed to the public; that she kept her purse closed under the chair; that prior to the incident inquestion she had inspected the purse, carried the purse, and had in fact used the makeup kit that was present in the purse after having lunch; that after having lunch, she put the purse back under the chair; that her billfold and makeup kit were in the purse and that she closed it;

            Thereafter, when the defendant was present in the gift shop she observed the defendant in an area close to her purse and in the area that was closed to the public;

            That the officer when he came into the gift shop noticed the defendant at the end of the counter and noticed a pocketbook near the defendant's foot; that after the defendant made contact with the officer he stood up and continued shopping;

            That thereafter the clerk, Ms. Boise, went over to her purse; her purse had been removed from the area underneath the chair and the purse was open; after examining the purse she found that her billfold and makeup kit were missing; that it is her observation that the defendant was the only one besides herself in the area closely adjacent to the purse.

    The trial court concluded the facts established “probable cause to arrest the defendant and that the search in this case is justified as incident to arrest[.]” The trial court also found facts in support of the existence of an exigent circumstance:
        [T]hat the defendant might leave the area if not apprehended and detained; that he had the ability to remove the stolen property from his person; [and] that the evidence seized when seized was in no way necessary to establish the probable cause to arrest.

The trial court found the detention and search to be justified and denied defendant's motion to suppress. Defendant subsequently entered a plea of guilty pursuant to a plea arrangement to seven counts of obtaining property by false pretenses and two counts ofmisdemeanor larceny. The trial court consolidated the offenses for judgment and sentenced defendant to eleven to fourteen months' imprisonment. Defendant appealed.
    In an unpublished decision, this Court dismissed defendant's appeal. State v. Sartori, 129 N.C. App. 845, 504 S.E.2d 820, cert. denied, 349 N.C. 238, 516 S.E.2d 606 (1998). On 17 October 2001, defendant filed a petition for writ of certiorari. By order entered 5 November 2001, this Court allowed defendant's petition and permitted him “to come forward with a full appeal of the order denying defendant's motion to suppress[.]” The Court further ordered the Haywood County Superior Court to hold a hearing to determine whether defendant was entitled “(1) to the appointment of counsel; (2) to proceed as an indigent; and (3) to a copy of the transcript at the expense of the State.”
    On this appeal defendant contends the trial court erred in concluding that probable cause existed to arrest him. He argues his behavior was not suspicious and that there were no findings as to how long after lunch he was seen near the purse. Defendant's argument is not persuasive.
    We first note that the scope of review of the denial of a motion to suppress is “strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Because defendant does notchallenge the trial court's findings of fact, we need only determine whether those findings of fact support the trial court's ultimate conclusions of law. State v. Harris, 145 N.C. App. 570, 580, 551 S.E.2d 499, 505 (2001), appeal dismissed and disc. review denied, 355 N.C. 218, 560 S.E.2d 146 (2002).
    An officer may make a warrantless arrest of “any person who the officer has probable cause to believe has committed a criminal offense in the officer's presence.” N.C. Gen. Stat. § 15A-401(b)(1) (2001). “Probable cause for an arrest is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.” State v. Tappe, 139 N.C. App. 33, 36, 533 S.E.2d 262, 264 (2000).
    In the course of a search incident to arrest, “the officer may lawfully take from the person arrested any property which such person has about him and which is connected with the crime charged or which may be required as evidence thereof.” State v. Roberts, 276 N.C. 98, 102, 171 S.E.2d 440, 443 (1970). “Further, a search may be made before an actual arrest and still be justified as a search incident to arrest, if, as here, the arrest is made contemporaneously with the search.” State v. Brooks, 337 N.C. 132, 145, 446 S.E.2d 579, 587 (1994). In the case sub judice, the trial court's findings of fact as to defendant's conduct and proximity to the purse support its conclusions that probable cause existed to arrest defendant and that the search was justified as incident to his arrest. Accordingly, this argument is overruled. As a resultof the preceding analysis, defendant's remaining argument (that the items were discovered as the result of an illegal search) is without merit.
    Upon careful review of the record and the arguments presented by the parties, we conclude the trial court correctly denied defendant's motion to suppress. The trial court's order is hereby
    Affirmed.
    Chief Judge EAGLES and Judge HUDSON concur.
    Report per Rule 30(e).

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