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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
IN THE MATTER OF: S.W.
Filed: 5 July 2005
1. Search and Seizure_-warrantless search of student at school-_school resource
officer--motion to suppress drugs
The trial court did not err in a delinquency hearing arising out of possession with intent
to sell or deliver a schedule VI substance by denying defendant juvenile's motion to suppress
evidence of drugs obtained during a search by a deputy, because: (1) the deputy was exclusively
a school resource officer who was present in the school hallways during school hours and was
furthering the school's educational related goals when he stopped the juvenile; (2) the deputy
was not conducting the investigation at the behest of an outside officer who was investigating a
non-school related crime; (3) the deputy's employment mandated that he help maintain a drug-
free environment at the school, and the deputy smelled a strong odor of marijuana when
defendant walked past him in the hall which gave the deputy a reasonable grounds to suspect that
a search would turn up evidence the juvenile violated or was violating the law and/or school
rules; (4) the search was reasonably related to the objective and was not excessively intrusive in
light of the age and gender of the juvenile and the nature of the suspicion; and (5) the juvenile
consented to the search even though the search could have been performed without his consent.
2. Trials--incomplete transcript--presumption of regularity
Defendant juvenile is not entitled to a new delinquency hearing based on an incomplete
transcript of his adjudication where portions of the transcript contain the word inaudible
omitting sections of missing testimony, because the juvenile failed to demonstrate, and a review
of the record failed to disclose, any specific affirmative showing that error was committed in the
inaudible portions of the transcript to overcome the presumption of regularity at trial.
Appeal by juvenile from orders entered 25 March 2004 by Judge
Marcia H. Morey in Durham County District Court. Heard in the
Court of Appeals 9 May 2005.
Attorney General Roy Cooper, by Assistant Attorney General
Judith Tillman, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for juvenile-appellant.
S.W. (juvenile) appeals from adjudication and dispositional
orders finding him delinquent for possession with intent to sell or
deliver a schedule VI substance. We affirm.
On 2 December 2003, the juvenile walked by Durham County
Deputy Sheriff and School Resource Officer Eric Wade Carpenter
(Deputy Carpenter) at Riverside High School. Deputy Carpenter
noticed a strong odor of marijuana emanating from the juvenile, and
requested the juvenile to accompany him in the hallway. Deputy
Carpenter located two school administrators, Assistant Principal
Travis Taylor (Assistant Principal Taylor) and Assistant
Principal Dan Davis (Assistant Principal Davis). Deputy
Carpenter asked Assistant Principals Taylor and Davis and two
unidentified students to accompany him and the juvenile into the
school's weight room. There, Deputy Carpenter asked the juvenile
if he had anything on him. The juvenile responded, no. Deputy
Carpenter asked the juvenile, do you mind if I search? Again,
the juvenile responded, no. Deputy Carpenter conducted a search
and requested the juvenile to empty his pockets. While emptying
his pockets, the juvenile produced a plastic bag that containing
ten small plastic bags of marijuana.
On 17 December 2003, a juvenile petition was filed alleging
the juvenile possessed with intent to sell or deliver a schedule VI
substance in violation of N.C. Gen. Stat. § 90-95(a)(1). During
the hearing, Deputy Carpenter testified for the State and the
juvenile testified on his own behalf. The trial court found thejuvenile to be delinquent and placed him on level I supervised
probation for six months. The juvenile appeals.
The juvenile argues the trial court erred by: (1) denying his
motion to suppress evidence obtained during an alleged unlawful
search; and (2) failing to provide him with a reliable and accurate
transcript of his hearing in violation of his United States and
North Carolina Constitutional rights.
III. Motion to Suppress
 The juvenile argues the trial court should have granted
his motion to suppress evidence obtained during an alleged unlawful
search. We disagree.
We note initially the juvenile properly preserved his
assignment of error by objecting when the trial court denied his
motion to suppress in conformity with the amended North Carolina
Rules of Evidence 103. N.C. Gen. Stat. § 8C-1, Rule 103 (2003);
2003 N.C. Sess. Laws ch. 101, §§ 1-2 (effective 1 October 2003);
see also State v. Rose, 170 N.C. App. 284, 288, 612 S.E.2d 336, ___
(2005) (holding once the trial court denied the defendant's motion
to suppress, he was not required to object again to preserve
argument for appeal).
Our review is limited to whether the trial court's findings of
fact are supported by competent evidence. State v. Tappe, 139 N.C.
App. 33, 38, 533 S.E.2d 262, 264-65 (2000). If competent evidence
exists in the record, the trial court's findings of fact are
binding upon appeal. Id. Our review is focused upon whether thosefindings of fact support the trial court's conclusions of law. Id.
Nevertheless, the conclusions of law drawn from the facts found
are not binding on the appellate court. State v. Pruitt, 286 N.C.
442, 454, 212 S.E.2d 92, 100 (1975) (citations omitted).
IV. Warrantless Searches
The United States Supreme Court discussed warrantless searches
of students at school in New Jersey v. T.L.O., 469 U.S. 325, 83 L.
Ed. 2d 720 (1985) (holding the juvenile's consent is not needed to
conduct a search of his person while at school).
Under ordinary circumstances, a search of a
student by a teacher or other school official
will be justified at its inception when
there are reasonable grounds for suspecting
that the search will turn up evidence that the
student has violated or is violating either
the law or the rules of the school. Such a
search will be permissible in its scope when
the measures adopted are reasonably related to
the objectives of the search and not
excessively intrusive in light of the age and
sex of the student and the nature of the
Id. at 341-42, 83 L. Ed. 2d at 734-35.
Applying the T.L.O. standard, this Court found it permissible
to conduct a search of a student based upon a school's
investigation or at the direction of a school official, in the
furtherance of well established educational and safety goals. In
re D.D., 146 N.C. App. 309, 318, 554 S.E.2d 346, 352 (citations
omitted), appeal dismissed and disc. rev. denied, 354 N.C. 572, 558
S.E.2d 867 (2001). More recently, we held
[w]hile the holding in T.L.O. was limited to
searches by school administrators and
officials, our Court has recently adopted an
extension of this reasonableness standard tosearches conducted by law enforcement
officials. We have since held that the T.L.O.
standard governs searches conducted by
resource officers working 'in conjunction
with' school officials, where these officers
are primarily responsible to the school
district rather than the local police
In re J.F.M., 168 N.C. App. 143, 147, 607 S.E.2d 304, 307 (citing
In re D.D., 146 N.C. App. at 320, 554 S.E.2d at 353-54 (citations
omitted)), disc. rev. denied, 359 N.C. 411, 612 S.E.2d 321 (2005).
Courts draw a clear distinction between the
aforementioned categories of cases and those
cases in which outside law enforcement
officers search students as part of an
independent investigation or in which school
official[s] search students at the request or
behest of the outside law enforcement officers
and law enforcement agencies. Courts do not
apply T.L.O. to these cases but instead
require the traditional probable cause
requirement to justify the search.
In re D.D., 146 N.C. App. at 318, 554 S.E.2d at 352 (internal
Deputy Carpenter was an employee of the Durham County
Sheriff's Department. He was assigned to permanent full-time duty
as the Riverside High School resource officer. See In re J.F.M.,
168 N.C. App. at 147, 607 S.E.2d at 307 (holding the T.L.O.
standard applies to law enforcement officers which are resource
officers acting in conjunction with school officials). Deputy
Carpenter assisted school officials with school discipline matters
and taught law enforcement related subjects. Id. Deputy Carpenter
was exclusively a school resource officer, who was present in the
school hallways during school hours and was furthering the school's
educational related goals when he stopped the juvenile. Id. Deputy Carpenter was not an outside officer conducting an
investigation. See id.; see also T.L.O., 469 U.S. at 341-42, 83 L.
Ed. 2d at 734-35. Deputy Carpenter did not conduct the
investigation at the behest of an outside officer who was
investigating a non-school related crime. In maintaining a proper
educational environment, Deputy Carpenter's employment as a
resource officer mandates that he help maintain a drug free
environment at the school. When the juvenile walked by Deputy
Carpenter in the hall, Deputy Carpenter smelled a strong odor of
marijuana. Deputy Carpenter had a reasonable suspicion the
juvenile possessed marijuana in violation of State law and the
school's rules. T.L.O., 469 U.S. at 341-42, 83 L. Ed. 2d at 734.
Deputy Carpenter was working in conjunction with school officials
and did not need to obtain the juvenile's consent to search him.
In re J.F.M., 168 N.C. App. at 148-49, 607 S.E.2d at 307. The
search of the juvenile was limited to a pat down and the juvenile
emptying his pockets, which produced a plastic bag containing ten
small plastic bags of marijuana.
After having smelled marijuana on the juvenile, Deputy
Carpenter had reasonable grounds to suspect a search would turn up
evidence the juvenile violated or was violating the law and or
school rules. The search was reasonably related to the objective
and was not excessively intrusive in light of the age and gender of
the juvenile and the nature of the suspicion. T.L.O., 469 U.S. at
341-42, 83 L. Ed. 2d at 734-35. Evidence tended to show the
juvenile consented to the search and neither his United States norNorth Carolina Constitutional rights were violated. The search
could have been performed without his consent. The trial court's
denial of the juvenile's motion to suppress was supported by
competent evidence. In re J.F.M., 168 N.C. App. at 148-49, 607
S.E.2d at 307; see also Tappe, 139 N.C. App. at 38, 533 S.E.2d at
264-65. This assignment of error is overruled.
V. Accurate Transcript
 The juvenile contends he should be granted a new hearing
due to the incomplete transcript of his adjudication. We disagree.
There is a presumption of regularity in a trial. State v.
Sanders, 280 N.C. 67, 72, 185 S.E.2d 137, 140 (1971). In order to
overcome this presumption, it is necessary for the defendant to
include or call our attention to matters which constitute material
and reversible error in the record on appeal. Id.
Before a new trial should be ordered,
certainly enough ought to be alleged to show
that error was probably committed. If defense
counsel even suspect error in the charge, they
should set out in the record what the error
is. If the solicitor does not object, theirs
becomes the case on appeal. If he does
object, the court could then settle the
dispute. The appellate court would then have
something tangible upon which to predicate a
judgment. The material parts of a record
proper do not include either the testimony of
the witnesses or the charge of the court.
In re Howell, 161 N.C. App. 650, 654, 589 S.E.2d 157, 159 (2003).
This Court has considered cases in which a complete
stenographic trial transcript was lacking. State v. Neely, 26 N.C.
App. 707, 708, 217 S.E.2d 94, 96, cert. denied, 288 N.C. 512, 219
S.E.2d 347 (1975). In Neely, a partial transcript was prepared. Id. The direct examination of at least two witnesses, in addition
to defendant's testimony, were not transcribed. Id. The defendant
appealed and alleged errors which may have been committed in
portions of the lost testimony. Id.
This Court emphasized the presumption of regularity in a trial
and indicated specific error should be set forth by the defendant
in the record. Id. We concluded that mere allegations that an
error occurred is not sufficient to warrant a reversal. Id. at
709, 217 S.E.2d at 97. We stated, absent some specific,
affirmative showing by the defendant that error was committed, we
will uphold the conviction because of the presumption of regularity
in a trial. Id.
Here, portions of the transcript read inaudible. These
facts are unlike Neely where the transcript of entire testimonies
were missing. Id. The juvenile argues these portions of the
transcript that read inaudible are prejudicial and a new hearing
should be granted. The juvenile fails to demonstrate and our
review does not disclose any specific, affirmative showing that
error was committed in the inaudible portions of the transcript to
overcome the presumption of regularity at trial. Id. This
assignment of error is overruled.
The juvenile's argument that his consent for the search was
not freely given is moot. The search could have been lawfully
performed without his consent. Deputy Carpenter had a valid reason
to search the juvenile and the search was in furtherance of theschool's objective to maintain a proper and drug free educational
The transcript contains the word inaudible omitting sections
of missing testimony. This case highlights the serious need for
reliable and accurate transcription equipment in our district
courtrooms. A rising number of direct appeals from the district
court contain transcripts where portions of the trial transcript
are missing, inaudible, or of such poor quality that an accurate
transcript cannot be prepared. We note our concern as the number
of appeals and the need will only increase. However, the missing
or inaudible sections of the transcript do not: (1) rise to the
level of prejudicial error; (2) preclude the juvenile from
preparing an adequate defense; or (3) prevent this Court's review
for errors in the juvenile's hearing. The trial court's
adjudication and dispositional orders finding the juvenile
delinquent for possession with intent to sell or deliver a schedule
VI substance are affirmed.
Chief Judge MARTIN and Judge LEVINSON concur.
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