STATE OF NORTH CAROLINA
v
.
Caldwell County
No. 02 CRS 52123
DONALD WILLIAM PERRY
Attorney General Roy Cooper, by Special Deputy Attorney
General Douglas A. Johnston, for the State.
Bryan Gates for defendant-appellant.
WYNN, Judge.
Defendant Donald William Perry appeals from judgment of the
trial court entered upon his plea of guilty to the charge of
possession of cocaine reserving for this Court the issue of whether
the trial court properly denied his motion to suppress the evidence
of cocaine seized from his person. Defendant argues that the
search violated his right to be free from unreasonable searches and
seizures under the United States and North Carolina Constitutions.
For the reasons stated herein, we reverse the judgment of the trial
court.
At the hearing on the motion to suppress the facts tended to
show that on 10 August 2002, several officers of the Lenoir Police
Department executed a search warrant for the search of FriendlyBilliards, a pool hall located in Caldwell County, North Carolina.
The search warrant allowed for the search of “[v]ehicles and
persons present at the time of the execution of this search
warrant.” The object of the search warrant was controlled
substances, including cocaine and weapons. The officers obtained
the search warrant after electronic and personal surveillance of
the pool hall. Between June 2002 and the execution of the search
warrant, officers viewed numerous drug sales and employees smoking
marijuana and crack cocaine at Friendly Billiards. On 7 and 8
August 2002, a cooperating witness purchased drugs from employees
at the pool hall. The officers also had information that weapons
were kept in the pool hall and might be carried by patrons.
The police officers executed the search warrant at 2:07 a.m.
The hours of operation of the pool hall were 10:00 a.m. to 2:00
a.m. The doors were unlocked when the officers entered, and
approximately twenty-five people were in the pool hall. The
officers instructed patrons to place their hands on the pool
tables. Thereafter the officers searched the office area along
with the pool hall operator and another individual in the office.
The officers did not find any drugs in the office; however, they
did find several weapons. The officers then told patrons to empty
the contents of their pockets onto the pool tables. The officers
continued simultaneously to search the remainder of the pool hall
and the patrons, including Defendant. After conducting a full
search of Defendant, the officers found a small plastic bagcontaining crack cocaine in Defendant's pocket and a small plastic
bag of marijuana in his sock.
In denying Defendant's motion to suppress, the trial court
orally made the following findings of fact:
[Friendly Billiards] had closed for business
operations at 2:00 o'clock a.m. Consequently
execution of the search warrant occurred on
the premises at a time that Friendly Billiards
was not open to the general public for
business.
***
The search of the defendant's person was
conducted after a search of the business
offices of the pool room. So apparently, it
was done before a complete search of the
entire premises was completed.
Based on these findings of fact the trial court concluded that:
[T]he search warrant, as executed, was not
overly broad so as to be in violation of the
fourth amendment of the Constitution of the
United States.
***
That the manner and method of search conducted
by these officers did not amount to a
substantial violation of G.S. 15A-256.
The trial court denied Defendant's motion to suppress. Defendant
conditionally pled guilty to possession of cocaine. The trial
court sentenced Defendant to six to eight months in prison, but
suspended the sentence and placed Defendant on supervised probation
for eighteen months. Defendant appeals.
__________________________________________
The sole issue on appeal is whether the trial court erred in
denying Defendant's motion to suppress the cocaine found on hisperson. Defendant argues that the search of his person violates
section 15A-256 of the North Carolina General Statutes. We agree
and now reverse.
“The standard of review in evaluating a trial court's ruling
on a motion to suppress is that the trial court's findings of fact
'are conclusive on appeal if supported by competent evidence, even
if the evidence is conflicting.'” State v. Smith, 160 N.C. App.
107, 114, 584 S.E.2d 830, 835 (2003) (citation omitted). If the
trial court's conclusions of law are supported by its factual
findings, we will not disturb those conclusions on appeal. State v.
Logner, 148 N.C. App. 135, 138, 557 S.E.2d 191, 193-94 (2001).
The Fourth Amendment of the United States Constitution and
Article I of the North Carolina Constitution protect individuals
from unreasonable searches and seizures. U.S. Const. Amend. IV;
N.C. Const. Art. I, § 20. A search and seizure of an individual
must be supported by probable cause particularized with respect to
that individual. Ybarra v. Illinois, 444 U.S. 85, 91, 62 L. Ed. 2d
238, 245 (1979). Here, the State argues that section 15A-256 of
the North Carolina General Statutes permits the search of
Defendant's person. The statute reads:
An officer executing a warrant directing a
search of premises not generally open to the
public or of a vehicle other than a common
carrier may detain any person present for such
time as is reasonably necessary to execute the
warrant. If the search of such premises or
vehicle and of any persons designated as
objects of the search in the warrant fails to
produce the items named in the warrant, the
officer may then search any person present at
the time of the officer's entry to the extent
reasonably necessary to find propertyparticularly described in the warrant which
may be concealed upon the person, but no
property of a different type from that
particularly described in the warrant may be
seized or may be the basis for prosecution of
any person so searched. For the purpose of
this section, all controlled substances are
the same type of property.
N.C. Gen. Stat. § 15A-256 (2003). This Court has held that a
search conducted pursuant to section 15A-256 of the North Carolina
General Statutes complies with the requirements of probable cause.
State v. Cutshall, 136 N.C. App. 756, 758, 526 S.E.2d 187, 189
(2000). However, a search of an individual who is not in control
of the designated premises but is found there when a search warrant
is executed is permitted only in limited circumstances: (1) if the
premises is not generally open to the public, and (2) after a
search of the premises fails to reveal the items sought in the
search warrant. Id. at 759, 526 S.E.2d at 189.
The trial court made a finding of fact that the pool hall was
closed at the time of the warrant's execution and not open to the
public. The police officers executed the warrant seven minutes
after the pool hall regularly closed. We hold that even though the
doors remained unlocked, there is ample evidence to support the
trial court's finding that the pool hall was closed at the time of
the warrant's execution.
The trial court also made a finding of fact that the search of
the pool hall was not complete before the officers performed a full
search, as opposed to a limited frisk, of Defendant. In Cutshall
this Court stated: Probable cause does not arise from defendant's
mere presence on the premises. The State's
reading of the statute would eliminate the
requirement that 'the search pursuant to the
warrant fails to uncover evidence of such
activity.' [G.S. § 15A-256]. Without this
statutory requirement, G.S. § 15A-256 would
entitle officers to search individuals merely
because they were found on the premises. The
U.S. Supreme Court has already held that
proposition unconstitutional.
Cutshall, 136 N.C. App. at 760, 526 S.E.2d at 190; see Ybarra, 444
U.S. at 92, 62 L. Ed. 2d at 246. The trial court held that
significant concerns of officer safety justified a frisk of
Defendant, therefore the manner of search did not amount to a
“substantial violation” of the statute. However, this Court has
previously strictly construed this statute. Cutshall, 136 N.C.
App. at 759, 526 S.E.2d at 189. Section 15A-256 of the North
Carolina General Statutes provides that officers cannot
simultaneously search individuals on the premises and the premises
itself. N.C. Gen. Stat. § 15A-256. Individuals found on the
premises can be searched only after the search of the entire
premises has been completed and the objects of the search warrant
not discovered. Cutshall, 136 N.C. App. at 759, 526 S.E.2d at 189;
N.C. Gen. Stat. § 15A-256. Here, the officers performed a full
search, rather than a frisk, of Defendant before completing a
search of the premises. The full search of Defendant prior to the
completion of the search of the premises violated section 15A-256
of the North Carolina General Statutes. Therefore, the trial
court's conclusion of law was in error and we now reverse.
Reversed. Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***