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