An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-597


Filed: 1 April 2003


v .                         Forsyth County
                            No. 01 CRS 29391 and 54910

    Appeal by defendant from order entered 25 February 2002 by Judge Catherine C. Eagles in Superior Court, Forsyth County. Heard in the Court of Appeals 19 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Amy L. Yonowitz, for the State.

    Richard E. Jester for the defendant-appellant.

    WYNN, Judge.

    By this appeal, defendant raises the following issues: (I) Did the trial court erroneously require him to provide incriminating testimony at his suppression hearing in violation of his Fifth Amendment Rights against self-incrimination; and, (II) Did the trial court erroneously fail to suppress evidence allegedly obtained in violation of his Fourth Amendment rights? We answer both questions, no; accordingly, we affirm the trial court's order.
    The underlying facts tend to show that on 25 May 2001, Winston-Salem Police Department Officers Ronald Beasley and Timothy Convery approached defendant's apartment, without a warrant, based upon a tip that defendant was storing large amounts of money andcocaine at that address. Upon their arrival, the officers proceeded to defendant's apartment and knocked on the door. According to the officers, defendant answered and opened the door. Thereafter, Officer Beasely told defendant that he had received information from the FBI that there was a large quantity of narcotics in the apartment. Defendant stated that there were no drugs in the apartment prompting Officer Beasley to ask defendant if he could come in and take a quick look around just to make sure there were no drugs in the house. Defendant responded the apartment belonged to his sister and that she was not home at that time; however, the officer explained to defendant that even if defendant was not listed on the lease, if he was living in the apartment, he could consent to the search. Defendant then gave consent; and, the officers entered the apartment and found drugs. Thereafter, defendant fled in his car.
    In contrast to the officer's testimony, defendant and his girlfriend, Jena Perry, stated that Ms. Perry opened the door and told the police that defendant was not at home. About a minute later, defendant entered through the back door of the apartment. Defendant testified he did not give consent, but the officers entered anyway.
    After finding drugs in the apartment, the officers questioned Ms. Perry who signed a consent waiver allowing the officers to search the entire apartment. Defendant was subsequently arrested for trafficking in at least 28 grams but less than 200 grams of cocaine, and maintaining a dwelling for keeping and sellingcontrolled substances.
    At trial, during the suppression hearing, the State asked defendant on cross-examination if he knew the cocaine was in the apartment. Defense counsel objected; stating it was a possible violation of the Fifth Amendment. After overruling the objection, the defendant responded he knew the drugs were in the apartment.
    After the trial court's denial of the motion to suppress, defendant pled guilty, reserving his right to appeal the trial court's denial, and was sentenced to a minimum of 95 months and a maximum of 123 months in prison.
                Fifth Amendment Violation
    On appeal, defendant contends his rights against compulsory self-incrimination protected by the Fifth Amendment of the United States Constitution and North Carolina Constitution, Article I, Section 23 were violated when the trial court required him to answer the State's question regarding whether he knew the drugs were under the bed in his apartment. Defendant specifically contends the Fifth Amendment violation led to a coerced guilty plea. We find defendant's argument to be without merit.
    “A defendant cannot be required to surrender one constitutional right in order to assert another.” Simmons v. United States, 390 U.S. 377, 394, 19 L.Ed.2d 1247, 1259 (1968). In this case, defendant alleges his right against compulsory self- incrimination was implicated when he was asked an incriminating question during a hearing to suppress evidence allegedly obtainedin violation of defendant's Fourth Amendment rights. We disagree.
    Our Supreme Court addressed a similar situation in State of North Carolina v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981). In Bracey, the defendant testified during a suppression hearing that he was under the influence of PCP or 'bam' at the time he confessed to the crimes. See Bracey, 303 N.C. at 120, 277 S.E.2d at 395. At trial, the district attorney asked defendant whether he used 'bam.' Id. Defendant answered over objection that he had used it once, the night before he was arrested. Id. In discussing the constitutional issue in Bracey, our Supreme Court stated:
        The Court of Appeals correctly rejected defendant's argument that Simmons v. United States prohibited the use of this evidence by the State. Simmons holds that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. At issue in Simmons was the balance between the exercise of Fourth and Fifth amendment rights. . . . [Defendant's] testimony from the unsuccessful suppression hearing was not introduced in the State's case in chief. Instead, defendant was questioned on cross-examination about his bad or illegal acts including the use of the illegal drug, PCP. This impeachment use, as opposed to using it to establish guilt, is permissible under the holding in Simmons.

303 N.C. at 120, 277 S.E. 2d at 395-96. Likewise in this case, the State's question on cross-examination did not constitute a violation of defendant's right against compulsory self- incrimination. A violation would only occur if the State used defendant's incriminating response to establish guilt as part of its case-in-chief. Since this did not occur, we do not find aviolation of defendant's right against compulsory self- incrimination under the Fifth Amendment of the United States Constitution and North Carolina Constitution, Article I, Section 23; and, accordingly, defendant's guilty plea was not coerced.
                    Motion to Suppress    
    Defendant next contends that the trial court erroneously failed to suppress the evidence of cocaine. “Our review of a denial of a motion to suppress by the trial court is 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. Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125 (2002). “Where the evidence presented supports the trial judge's findings of fact, these findings are binding on appeal.” State of North Carolina v. Hughes, 353 N.C. 200, 207, 539 S.E.2d 625, 631 (2000). “This deference is afforded the trial judge because he is in the best position to weigh the evidence, given that he has heard all of the testimony and observed the demeanor of the witnesses. . . . Where the evidence is conflicting, the judge must resolve the conflict. He sees the witnesses, observes their demeanor as they testify and by reason of his more favorable position, he is given the responsibility of discovering the truth. The appellate court is much less favored because it sees only a cold, written record. The trial court's conclusions of law, however, are fully reviewable onappeal.” Hughes, 353 N.C. at 207-08, 539 S.E.2d at 631.
    After reviewing the trial court's order denying defendant's motion to suppress, we note conflicting testimony was presented on the following two findings of fact:
        3. Officer Beasley knocked on the door and the defendant answered it. . . .

        5. Officer Beasley then asked the defendant for consent to search the residence. The defendant then gave verbal consent to allow the officers to search the residence.

Our review of the suppression hearing transcript indicates these findings of fact were supported by the officers' testimony.
    The trial court then concluded the consent search of the residence was lawful. “It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” State of North Carolina v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). “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 search is given.” Id.   (See footnote 1)  “For the warrantless, consensual search to pass muster under the Fourth Amendment, consent must be given and the consent must be voluntary.” Id. “Whether the consent is voluntary is to be determined from the totality of the circumstances.” Id.
    In the case sub judice, the trial court's order concluded “thedefendant freely, knowingly and without duress or coercion consented to let the officers search the apartment. The defendant's consent was lawful and valid.” However, the order does not contain findings of fact supporting this conclusion.
    “When a trial court conducts a hearing on a motion to suppress, the court should make findings of fact that will support its conclusions as to whether the evidence is admissible. If there is no conflict in the evidence on a fact, failure to find that fact is not error. Its finding is implied from the ruling of the court.” State v. Smith, 346 N.C. 794, 800, 488 S.E.2d 210, 214 (1997). Our review of the transcript indicates no evidence was presented tending to establish duress or coercion. Indeed, defendant's girlfriend testified defendant did not appear to be afraid of the officers and seemed to understand the officers' questions. Thus, the trial court's conclusion that defendant's consent was freely, knowingly and without duress or coercion is supported by the evidence presented during the suppression hearing. Accordingly, the order of the trial court denying defendant's motion to suppress the incriminating evidence in this case is,
    Judges TIMMONS-GOODSON and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1
    Similarly, N.C. Gen. Stat. § 15A-221(a)(2001) provides for warrantless searches and seizures “if consent to the search is given.” Under N.G. Gen. Stat. § 15A-221(b) consent means a statement to the officer, made voluntarily ..., giving the officer permission to make a search.

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