An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-489


Filed: 6 May 2003


v .                         Catawba County
                            No. 01 CRS 2060-61

    Appeal by defendant from judgment entered 28 November 2001 by Judge James W. Morgan in Catawba County Superior Court. Heard in the Court of Appeals 12 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Steven Armstrong, for the State.

    Joseph E. Zeszotarski, Jr. for defendant.

    LEVINSON, Judge.

    On 17 September 2000, Officer John Love of the Hickory Police Department received anonymous information that controlled substances were being sold at defendant's residence. Officer Love began conducting surveillance at 4:45 a.m. near the front of the residence. The residence had no front steps and a raised front door, which made entrance through the front of the residence impractical. It also had an incomplete fence bordering portions of the residence.
    During his surveillance, Officer Love observed multiple vehicles drive to the back of the house and discharge passengers. The passengers returned within minutes and the vehicles then drove away. Officer Love suspected drug activity, but because of hisposition and the lack of light, he could not see the rear of the residence. He began walking towards the residence when he encountered a man, later identified as Corpening, standing near the street corner in the front yard of the residence. Officer Love asked Corpening what was he doing and Corpening stated he was nervous. Corpening then voluntarily produced a “crack pipe” from his pants leg.
    While Officer Love was handcuffing Corpening, defendant walked around from the corner of the house towards the officer. Officer Love directed defendant to raise his hands and walk back to a wall. Defendant refused and responded to the officer's direction by stating, “[n]o, you'll have to shoot me.” Defendant then threw a cigarette package over his head and assumed a “fighting stance”. At some point during this exchange, Officer Love drew his pistol. When other officers arrived, Officer Love recovered defendant's cigarette package, which had landed near defendant. He found that it contained a substance he suspected was crack cocaine. Officer Love then placed defendant under arrest for possession of a controlled substance. An analysis by the State Bureau of Investigation confirmed the substance was cocaine.
    From the record, it is unclear whether defendant was in the fenced portion of the property when Officer Love encountered him. Additionally, the record does not show where defendant was standing when he threw the cigarette package or where the cigarette package landed.    On 28 November 2001, defendant was convicted of possession of cocaine, a controlled substance, and he pled guilty to the status of habitual felon. Defendant had a Record Level V and was sentenced to a minimum of 101 and a maximum of 131 months. Defendant gave notice of appeal in open court. For the reasons discussed below, we affirm the trial court.
    First, defendant contends the trial court erred in denying his motion to suppress the admission of the cigarette package and cocaine recovered by Officer Love. For a variety of reasons, defendant argues the search and seizure was illegal and that the evidence gained therefrom was inadmissible. U.S. Const. amend. IV; see Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441 (1963). Defendant's argument is essentially based on two theories: (1) that the cigarette package was within the curtilage and therefore the subject of an unreasonable search and seizure and (2) that defendant himself was the subject of an unreasonable search and seizure and there was no attendant constitutional basis to search and seize the cigarette package.

The trial court found in pertinent part the following:
        Officer [Love] formed an opinion that controlled substance sales were taking place; approached the house, saw a subject named Corpening, asked Corpening what he was doing. . . Corpening pulled a crack pipe from his pants leg. . . . Officer Love put Corpening to the ground, was placing handcuffs on him. Defendant came from around the house. Officer told defendant to back up to a wall and put up his hands. Defendant replied that Officer Love would have to shoot him. Defendant got into a fighting stance; that backup officers were approaching. Defendant threw a cigarette pack over his head. Officer Love put defendant incustody. Officer Love took the cigarette pack into custody. Was found to contain or, in his opinion, contained cocaine.

The trial court concluded that Officer Love's “approaching the defendant and taking defendant in custody . . . did not violate defendant's constitutional rights” and, over the objection of defendant during trial, admitted the cigarette package and cocaine.
    Defendant challenges neither the trial court's findings of fact concerning the search and seizure of the cigarette package nor those related to the custody of defendant. Accordingly, the trial court's findings are presumed to be based upon competent evidence and are binding on this Court. State v. Johnson, 98 N.C. App. 290, 390 S.E.2d 707 (1990). Defendant does except to the trial court's conclusions of law, which we review de novo to determine whether the trial court's findings support its conclusions and, specifically, whether defendant's Fourth Amendment rights were violated. See U.S. Const. amend. IV.
    Although there is some evidence to suggest defendant was standing in the front yard of the residence when he threw the cigarette package, there is no clear record evidence of where the cigarette package landed or was seized. Therefore, although defendant correctly asserts that the common law concept of curtilage generally includes the yard or other fenced boundary of a dwelling, there is nothing of record that would allow this Court to determine the cigarette package was seized by Officer Love within the curtilage of the dwelling. See State v. Courtright, 60 N.C. App. 247, 298 S.E.2d 740, disc. review denied, 308 N.C. 192, 302 S.E.2d245 (1983). Indeed, defendant cites nothing specific in the record that directly supports his contention the cigarette package and/or the defendant were within the curtilage. Although a blackboard drawing was utilized at trial to illustrate the positions of defendant, the cigarette package, and Officer Love, this evidence was not preserved and does not appear in any form in the record. In the transcript, there are merely references to “here” and “there” and “standing there.” The drawing is not a part of the record and we cannot now consider it. State v. Reaves, 132 N.C. App. 615, 513 S.E.2d 562, disc. review denied, 350 N.C. 846, 539 S.E.2d 4 (1999); N.C.R. App. P. 9(a). It is the defendant's burden to show he has an “expectation of privacy in [an] area searched.” State v. Mettrick, 54 N.C. App. 1, 11, 283 S.E.2d 139, 145 (1981), aff'd, 305 N.C. 383, 289 S.E.2d 354 (1982).   (See footnote 1)  Here, defendant has failed to do so.
    Defendant's argument that the cigarette package and its contents were improperly admitted by the trial court depends, in large measure, on his contention that the cigarette package was searched and seized as a direct consequence _ or was dependant upon - an alleged unreasonable search and seizure of the defendant himself.   (See footnote 2)  Defendant's application of Fourth Amendment principles tothese facts is erroneous. The defendant, at the behest of no one, voluntarily threw the cigarette package to a location unknown to this Court before he submitted to a “show of authority.” See State v. Fleming, 106 N.C. App. 165, 169, 415 S.E.2d 782, 784 (1992). The more proper inquiry is not whether warrantless search and seizure exceptions associated with the arrest of defendant (or Corpening) are applicable but, rather, whether defendant had a reasonable expectation of privacy in the cigarette package and its contents, and whether the officer's search and seizure of the same was constitutionally permissible. State v. Hauser, 342 N.C. 382, 464 S.E.2d 443 (1995). Again, there is nothing in the record to support an expectation of privacy on the part of defendant.
    Because defendant discusses at length the reasons he was impermissibly seized and subsequently placed into custody _ and how this impacts the analysis concerning the admissibility of the cigarette package and its contents _ we note the following utilizing the trial court's unchallenged findings of fact. First, the officers were discharging a proper duty, arresting Corpening, when defendant voluntarily approached the officers. Defendant ignored the commands of Officer Love and “took a fighting stance,” therefore failing to “submit to a show of authority” and negating any contention he was seized during this brief period of time. See Fleming, 106 N.C. App. at 169, 415 S.E.2d at 784. In light of defendant's actions and the totality of circumstances, the officershad cause not merely to detain defendant but to arrest him for a violation of the Criminal Code. See N.C.G.S. § 14-223 (2001). Even assuming, as defendant suggests, that the officers could not have seized the cigarette package but for a permissible basis to detain defendant, the record demonstrates the officers acted within constitutional parameters at all times. Nevertheless, as discussed herein, the admissibility of the cigarette package and its contents does not turn on whether the officers impermissibly limited defendant's freedom of movement.
    In summary, defendant has not challenged the findings of fact of the trial court and they are, therefore, binding on this Court. See Johnson, 98 N.C. App. at 294, 390 S.E.2d at 709. In its findings, the trial court makes no finding that the cigarette package or the defendant were within the curtilage of the residence, a finding that would have been central to defendant's contention the cigarette package and its contents were improperly admitted by the trial court. Defendant's detention and arrest, in and of themselves, are not determinative of whether the cigarette package and its contents are admissible. The trial court's denial of defendant's motion to suppress the cigarette package and its contents was not error. Therefore, this assignment of error is overruled.
Defendant next assigns as error the imposition of a sentence of 101-131 months imprisonment because of his status as a habitual felon and conviction of possession of cocaine. Specifically, defendant asserts that the statute governing his conviction as ahabitual felon subjects him to cruel and unusual punishment and unequal protection. The North Carolina Supreme Court has addressed constitutional challenges to this State's habitual felon statute and concluded that it conforms with constitutional requirements dealing with double jeopardy, cruel and unusual punishment, and equal protection. State v. Todd, 313 N.C. 110, 326 S.E.2d 249 (1985); see also State v. Williams, 149 N.C. App. 795, 561 S.E.2d 925, disc. review denied, 355 N.C. 757, 566 S.E.2d 481, writ of cert. denied, __ U.S. __, 154 L. Ed. 2d 455 (2002). It is beyond our authority to overrule decisions of the Supreme Court of North Carolina. Cannon v. Miller, 313 N.C. 324, 327 S.E.2d 888 (1985). This assignment of error is overruled.
    After reviewing defendant's remaining assignments of error, we find them to be without merit, and they are, therefore, overruled.
    No error.
    Judges WYNN and TIMMONS-GOODSON concur.
    Report per Rule 30(e).

Footnote: 1
     Defendant does not argue that the cigarette package was outside the curtilage and/or that he would have an expectation of privacy wherever it landed.
Footnote: 2
     In his brief, defendant contends, inter alia, that the cigarette package was not properly seized pursuant to a search incident to defendant's arrest and that “(a)bsent the (defendant's illegal) seizure, Defendant would not have thrown the box, and Officer Love would not have _ illegally _ enteredDefendant's curtilage to search for and seize the box.” This argument is speculative and not supported by the trial court's findings of fact.

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