State v Martin, (03-183) 05/18/2004

Appeal by defendant from judgment dated 25 September 2002 by Judge James M. Webb in Superior Court, Randolph County. Heard in the Court of Appeals 14 January 2004.

Attorney General Roy Cooper, by Assistant Attorney General Marvin R. Waters, for the State.

Office of the Appellate Defender, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant.

    McGEE, Judge.

    William Justin Martin (defendant) was indicted on 16 July 2001 for felonious simple possession of cocaine and for possession with intent to manufacture, sell, and deliver cocaine. Defendant filed a motion to suppress evidence seized as a result of a 30 November 2000 warrantless search of defendant. During the suppression hearing, the State presented evidence which tended to show that the Asheboro Police Department obtained a misdemeanor warrant for arrest against defendant for driving while license revoked on 30 November 2000. Sergeant Mark Hinshaw (Sergeant Hinshaw) informed officers Jay Hanson (Officer Hanson) and Eddie Howell (Officer Howell) of the misdemeanor warrant. Sergeant Hinshaw also told theofficers that he had received information from an informant that defendant was in possession of drugs. Several hours into their shift, Officers Hanson and Howell were notified that defendant had been seen riding as a passenger in a blue station wagon. The officers located and stopped a vehicle matching the description just minutes later. Defendant, who was in the front passenger's seat, was arrested on the outstanding warrant and was patted down for weapons.
    Defendant was taken to a processing room at the police station, where the public had no access, and was informed by Officer Hanson that he would be strip-searched. Officer Hanson further informed defendant that if a search was conducted in the jail and drugs were found, defendant would also be charged with an additional felony for possessing drugs in a detention center. Defendant admitted that he had drugs on him. He was asked to remove his outer garments, and eventually, his underwear, from which a bag of marijuana was found. The officers conducted a visual body cavity search and observed a bag of white substance in defendant's rectal cavity. After leaving the room to consult with his supervisor, Officer Hanson returned to find that the bag of white substance, later determined to be cocaine, was located on the floor beneath defendant.
    The trial court denied defendant's motion to suppress evidence. Defendant pled guilty to a misdemeanor charge of possession of less than one-half ounce of marijuana and a felony charge of possession with intent to sell and deliver cocaine on 25September 2002, reserving the right to appeal the denial of the motion to suppress. Defendant appeals.
    Defendant included three assignments of error in the record on appeal which are expressed in very vague and broad language. Defendant also blended these assignments of error into a single issue argued in his brief. This Court is concerned by the inconsistency between defendant's argument and his assignments of error.
    N.C.R. App. P. 10(c)(1) requires, among other things, that "[e]ach assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the basis upon which error is assigned." Further, our Supreme Court has clearly held that "[a]n assignment of error which 'attempts to present several different questions of law in one assignment [is] . . . broadside and ineffective.'" State v. McCoy, 303 N.C. 1, 19, 277 S.E.2d 515, 529 (1981) (quoting State v. Blackwell, 276 N.C. 714, 721, 174 S.E.2d 534, 539, cert. denied, 400 U.S. 946, 27 L. Ed. 2d 252 (1970)). The assignments of error in defendant's brief fail to state plainly and concisely the basis of the assigned error in violation of N.C.R. App. P. 10(c)(1); moreover, they present several different questions of law in each assignment. The broadness of defendant's assignments of error is typified by his second assignment of error, which reads
[t]he Trial Court's findings of fact, conclusions of law, and ruling denying defendant's motion to suppress; on the grounds the findings were not supported by evidence introduced at the hearing and were insufficient todemonstrate the legality of the arrest and search, and the conclusions and ruling were not supported by the supported findings of fact, were erroneous in law, and violated defendant's rights under statutory law and common law, and state and federal constitutional law. Defendant asserts constitutional error, structural error, prejudicial error, or in the alternative plain error.

It is unclear from this assignment what statutory, common law, state, or federal constitutional violations are being alleged as the basis for the error. The assignment of error further presents multiple questions of law for review. Defendant's first and third assignments of error are similarly vague and overly broad.
    In Nye v. Development Co., 10 N.C. App. 676, 678, 179 S.E.2d 795, 796, cert. denied, 278 N.C. 702, 181 S.E.2d 603 (1971), our Court began its opinion by observing that it had "probably spent more time . . . than is justified in trying to unravel and understand defendant's assignments of error." This has been our experience with defendant's assignments of error in the case before us. In Nye, we admonished that "[i]t is not the function of the appellate courts to search out possible errors which may be prejudicial to an appellant; it is an appellant's duty, acting within the rules of practice, to point out to the appellate court the precise error of which he complains." Id. Furthermore, in State v. Kirby, 276 N.C. 123, 130-31, 171 S.E.2d 416, 421-22 (1970), our Supreme Court reprimanded the defendant's use of "broadside and ineffective" assignments of error, stating that the appellate rules as to assignments of error are "mandatory and will be enforced." See also State v. Stevenson, 136 N.C. App. 235, 244, 523 S.E.2d 734, 739 (1999), disc. review denied, 351 N.C. 368, 543S.E.2d 144 (2000).
    In addition to defendant's failure to comply with N.C.R. App. P. 10(c), the argument set forth in his brief purports to blend all three assignments into a single issue, as follows: "Evidence seized pursuant to a strip search and body cavity search of Mr. Martin was improperly obtained [and] admitted in violation of Mr. Martin's constitutional rights under the Fourth Amendment of the United States Constitution [and] corresponding provisions of the North Carolina Constitution." This argument, however, fails to comport with defendant's assignments of error. From the assignments as gleaned from the record, we find that the argument set forth in defendant's brief only comports loosely with some language in defendant's third assignment of error, which states in part, that "the search was unlawfully initiated and exceeded lawful scope" and "violated defendant's rights" under "state and constitutional law." Although defendant's third assignment is almost as broad and ineffective as his first and second assignments, in our discretion we will review defendant's third assignment of error insofar as it comports with the argument set forth in defendant's brief.
    Defendant appears to assert that the evidence seized pursuant to the strip search was improperly obtained in violation of his Fourth Amendment rights in that "the search was unlawfully initiated and exceeded lawful scope." The record, however, reveals that the search was lawfully initiated due to the existence of probable cause and exigent circumstances. If probable cause tosearch exists and the exigencies of the situation make a warrantless search necessary, it is lawful to conduct a warrantless search. State v. Mills, 104 N.C. App. 724, 730, 411 S.E.2d 193, 196 (1991). "Probable cause exists where 'the facts and circumstances within their [the officers'] knowledge[,] and of which they had reasonabl[y] trustworthy information[,] [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." State v. Zuniga, 312 N.C. 251, 261, 322 S.E.2d 140, 146 (1984) (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 1890 (1949) (citation omitted)). In the case before us, defendant's own admission that he was in possession of drugs confirmed the information that the officers had previously received from an informant, thereby establishing probable cause for the search of defendant following his arrest. Moreover, as argued by the State, given the potential health risk posed by the drugs inserted in defendant's rectal cavity, along with the potential for imminent destruction of the evidence, exigent circumstances existed for a warrantless search.
    Defendant further appears to argue that the search was unlawfully initiated in that his admission of drug possession was elicited by the "threat" that defendant would be searched at a detention facility. The record reveals that Officer Hanson merely informed defendant of the possibility of an additional felony charge if drugs were found on defendant in a detention facility. Such information did not amount to a threat under these facts.   (See footnote 1)
    Regarding the reasonableness of a search, the Fourth Amendment of the U.S. Constitution "precludes only those intrusions into the privacy of the body which are unreasonable under the circumstances." State v. Cobb, 295 N.C. 1, 20, 243 S.E.2d 759, 770 (1978). In determining reasonableness, courts must consider "the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559, 60 L. Ed. 2d 447, 481 (1979).
    State v. Smith, 118 N.C. App. 106, 454 S.E.2d 680, rev'd, 342 N.C. 407, 464 S.E.2d 45 (1995), cert. denied, 517 U.S. 1189, 134 L. Ed. 2d 779 (1996), is instructive on the reasonableness of a search. In Smith, a police officer stopped the defendant based on a tip that the defendant would be transporting cocaine in his crotch. Smith, 118 N.C. App. at 108, 454 S.E.2d at 682. The defendant was stopped and searched by the officer in the turning lane of the road. Smith, 118 N.C. App. at 109, 454 S.E.2d at 682. The officer stood between the defendant and the car door to blockthe defendant from the view of others. Id. The officer held open the defendant's underwear and slid the underwear down and saw the corner of a paper towel. Id. The officer then pulled the underwear down farther and reached into the defendant's underwear to remove the paper towel which contained crack cocaine. Id. Our Court held "the search of defendant was intolerable in its intensity and scope and therefore unreasonable under the Fourth Amendment." Id. at 116, 454 S.E.2d at 686. However, Judge Walker dissented from this portion of the majority's holding and stated that "such a search was justified under the circumstances of the instant case." Id. at 117, 454 S.E.2d at 687. He stated in his dissent that he was "unwilling to second-guess the trial court's finding here that the officers' conduct during the search did not violate defendant's Fourth Amendment rights." Id. at 118, 454 S.E.2d at 687. The North Carolina Supreme Court agreed with the dissenting opinion and reversed our Court. Smith, 342 N.C. 407, 464 S.E.2d 45.
    The search in Smith was much more extreme than the search that occurred in the case before this Court. In the instant case, the record shows that the search was appropriate in manner and scope in that defendant personally removed his clothing and revealed his rectal cavity where the drugs he admitted to having in his possession were located. Furthermore, as the State points out, this search did not take place in public, but rather, in a processing room where the public had no access. Thus, this assignment of error is without merit.    No error.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).