Appeal by defendant from judgment entered 12 January 2005 by
Judge J. Richard Parker in Dare County Superior Court. Heard in
the Court of Appeals 9 February 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Angel E. Gray, for the State.
M. Jason Williams for defendant-appellant.
Defendant Benjamin Richard Carignan appeals from his
convictions for possession of less than one and one-half ounces of
marijuana and for possession of drug paraphernalia. Defendant
contends that the trial court erred by denying his motion to
dismiss the charges as violating his constitutional rights to
freedom of religion and speech and by denying his motion to
suppress evidence seized from his bedroom following a warrantless
search. We hold that the imposition of North Carolina's controlled
substances laws upon defendant does not violate his constitutional
rights and that the trial court did not err when it found that
defendant's girlfriend, with whom he shared a home, voluntarily
consented to the search of their bedroom.
At trial, the State's evidence tended to show the following
facts. On the evening of 31 January 2004, Officer Adam Boyd of the
Kill Devil Hills Police Department noticed an illegally parked car
in front of defendant's residence. When Officer Boyd checked the
car's license plate number, he discovered that there was an arrest
warrant out for the car's owner, Chris Atkinson. When a woman,
Ruth Schaffer, emerged from the residence, Officer Boyd asked her
whether Mr. Atkinson was inside. She said that he was, and Officer
Boyd arrested Mr. Atkinson without incident outside of the home.
As a result of a conversation with Mr. Atkinson, Officer Boyd
knocked on the door of the house, and, when defendant answered,
asked defendant if he had a water bong in his bedroom. Although
defendant initially denied it, he eventually went inside and
returned to the door with a water bong. Corporal Holland, another
Kill Devil Hills police officer who had arrived, seized the bong
and arrested defendant for possession of drug paraphernalia.
Defendant was then placed in the back of Officer Boyd's patrol car.
When Officer Boyd again knocked on the door, no one responded,
even though Officer Boyd could see Ms. Schaffer, defendant's
girlfriend, through the window. He knocked on the window and
"pointed for her to come to the door." After Ms. Schaffer, who
also lived in the house, then opened the door, the officers told
her that defendant had been arrested and "advised her [that] if
there was [sic] any other illegal narcotics in the residence or
paraphernalia to go in the bedroom and get it and bring it out . .. ." Ms. Schaffer returned with a box of paraphernalia, including
scales, a "vaporiz[ing] machine," pipes, and rolling papers. She
placed these items in front of the officers, who entered the
residence and seized them. The officers told her to bring out
"anything else," and Ms. Schaffer asked if she had to comply.
Officer Boyd responded: "No, ma'am, you don't but we'll apply for
a search warrant and come back."
Ms. Schaffer retreated to the bedroom and returned with more
paraphernalia. The officers again advised her that if there was
anything else, she should bring it out. Ms. Schaffer again asked
if she had to comply, and the officers responded that if she did
not they would "apply for a search warrant and come back and seize
the items." In response, Ms. Schaffer escorted the officers to the
bedroom and began pulling marijuana plants out of the closet. The
officers seized the plants, along with various items used to grow
them. Officer Boyd then "had [Ms. Schaffer] write out a statement"
in which she stated that "[t]he police officers were given
permission to search my room."
After his arrest, defendant provided the police with a lengthy
hand-written statement in which he claimed that he smoked marijuana
for religious reasons. Defendant's statement explained that
marijuana "was used by Jesus Christ in his holy anointing oil" and
that defendant was growing marijuana because he wished to "supply
[him]self with an organic, pesticide free, and powerfulsacrament."
(See footnote 1)
Defendant stated that he had grown "tired of all of
the dirty mexican brick weed that [he] had to choke down over the
years so [he] decided to grow [his] own . . . ." The statement
went on to detail defendant's growing operation.
Defendant was indicted for possession with intent to sell and
deliver marijuana, maintenance of a dwelling house to keep and sell
marijuana, manufacture of marijuana, and possession of drug
paraphernalia. At the close of the State's evidence, the trial
court granted defendant's motion to dismiss the counts of
maintaining a dwelling and possession with intent to sell and
deliver marijuana. A jury subsequently found him guilty of
possession of marijuana and drug paraphernalia, but not guilty of
manufacturing marijuana. The trial court sentenced defendant to 45
days in the Dare County jail, but suspended the sentence and placed
defendant on 12 months supervised probation. Defendant timely
appealed to this Court.
Defendant first argues that the trial court erred by denying
his motion to dismiss because his prosecution violated his
constitutional rights to freedom of religion and speech. In
Employment Div., Dep't of Human Res. of Oregon v. Smith
, 494 U.S.
872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990), the United States
Supreme Court held that "the right of free exercise does notrelieve an individual of the obligation to comply with a 'valid and
neutral law of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or
at 879, 108 L. Ed. 2d at 886, 110 S. Ct. at
1600 (quoting United States v. Lee
, 455 U.S. 252, 263 n.3, 71 L.
Ed. 2d 127, 136 n.3, 102 S. Ct. 1051, 1059 n.3 (1982) (Stevens, J.,
concurring)). Nevertheless, the Court held, the First Amendment
may still bar the application of a neutral and generally applicable
law to religiously motivated action when the action involves not
only the Free Exercise Clause, but the Free Exercise Clause in
conjunction with some other constitutional protection. Id.
82, 108 L. Ed. 2d at 887, 110 S. Ct. at 1601.
(See footnote 2)
Defendant does not dispute that North Carolina's controlled
substances laws are neutral and generally applicable laws. Rather,
defendant contends that, because he is an ordained minister in the
Universal Life Church and smokes marijuana for religious reasons aspart of his adherence to the Hawaiian Cannabis Ministry, his
prosecution impinges both his freedom of religion (by prosecuting
him for using marijuana) and his freedom of speech (by prohibiting
him from going "about the business of spreading the word about his
religion, sharing and leading prayers with other similarly situated
believers."). Defendant has not, however, made any showing as to
how this prosecution abridges his freedom of speech. Defendant was
prosecuted for the possession and manufacture of marijuana, and the
possession of drug paraphernalia _ charges that are unrelated to
and do not preclude defendant's speech in support of the Universal
Life Church or the Hawaiian Cannabis Ministry.
Accordingly, the only constitutional right implicated by
defendant's argument is his right to freely exercise his religion
and, therefore, under Smith
, defendant's prosecution does not
violate his First Amendment rights. With respect to defendant's
rights under federal law, this assignment of error is,
Regarding defendant's rights under state law, the North
Carolina Constitution, art. I, § 13, provides: "All persons have a
natural and inalienable right to worship Almighty God according to
the dictates of their own consciences, and no human authority
shall, in any case whatever, control or interfere with the rights
of conscience." Our courts have held that the religious freedoms
protected by this provision are co-extensive with those protected
by federal law. See, e.g.
, In re Williams
, 269 N.C. 68, 78, 152
S.E.2d 317, 325 ("[T]he freedom protected by this provision of theState Constitution is no more extensive than the freedom to
exercise one's religion, which is protected by the First Amendment
to the Constitution of the United States."), cert. denied
, 388 U.S.
918, 18 L. Ed. 2d 1362, 87 S. Ct. 2137 (1967).
was, however, decided before Smith
and sets forth an
arguably more protective view of individual religious freedoms than
that recognized in Smith
: "The liberty secured by the First
Amendment to the United States Constitution and by Article I, §
, of the Constitution of North Carolina are . . . so basic and
fundamental that one may not be compelled by governmental action to
do that which is contrary to his religious belief in the absence of
a 'compelling state interest in the regulation of a subject within
the State's Constitutional power to regulate
at 80, 152
S.E.2d at 326 (quoting Sherbert v. Verner
, 374 U.S. 398, 403, 10 L.
Ed. 2d 965, 970, 83 S. Ct. 1790, 1793 (1963)) (emphasis added).
Our courts have not yet addressed whether the analysis in Smith
should apply with respect to the North Carolina Constitution.
Our Supreme Court specifically noted in Williams
that "[t]he use of drugs may be prohibited notwithstanding the
user's asserted belief that such use is required by Divine Law."
at 79, 152 S.E.2d at 326. This holding is binding on this
Court and is sufficient to establish that defendant's prosecution
does not violate North Carolina's Constitution. Moreover, we note
that other jurisdictions have overwhelmingly held that a state can
regulate the use of marijuana, irrespective of a defendant's
claimed religious motivations. See, e.g.
, State v. Adler
, 108 Haw.169, 176-78, 118 P.3d 652, 659-61 (2005) (finding marijuana
prohibition legal under Hawaii Constitution); Rupert v. Portland
605 A.2d 63, 68 (Me. 1992) (concluding Maine's prohibition on
marijuana use did not violate defendant's religious freedom rights
under either federal or state constitutions); Commonwealth v.
, 404 Mass. 575, 581-82, 536 N.E.2d 592, 595-96 (1989)
(rejecting defendant's freedom of religion claim that he was
entitled to smoke marijuana); State v. Olsen
, 315 N.W.2d 1, 7-9
(Iowa 1982) (rejecting defendant's freedom of religion claim
regarding his "right" to smoke marijuana, finding a compelling
state interest in regulating marijuana, and compiling case law from
other jurisdictions). This assignment of error is, therefore,
Defendant next argues that the trial court erred by concluding
that Ms. Schaffer voluntarily consented to the officers' search of
defendant's bedroom and denying his motion to suppress the evidence
obtained as a result of the search. "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) (quoting State v. Cooke
N.C. 132, 134, 291 S.E.2d 618, 619 (1982)), cert. denied
, 538 U.S.
1040, 155 L. Ed. 2d 1074, 123 S. Ct. 2087 (2003). Although searches and seizures inside a home without a warrant
are presumptively unreasonable, consent has long been recognized as
a special situation excepted from the warrant requirement. See
State v. Smith
, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). The
government bears the burden of proving that consent was freely and
voluntarily given. See United States v. Matlock
, 415 U.S. 164,
177, 39 L. Ed. 2d 242, 253, 94 S. Ct. 988, 996 (1974)
; State v.
, 155 N.C. App. 89, 97, 574 S.E.2d 93, 99 (2002), appeal
dismissed and disc. review denied
, 356 N.C. 693, 579 S.E.2d 98,
, 540 U.S. 843, 157 L. Ed. 2d 78, 124 S. Ct. 113
(2003). "'[W]hether a consent to a search was in fact "voluntary"
or was the product of duress or coercion, express or implied, is a
question of fact to be determined from the totality of all the
circumstances.'" State v. Fincher
, 309 N.C. 1, 5, 305 S.E.2d 685,
689 (1983) (quoting Schneckloth v. Bustamonte
, 412 U.S. 218, 227,
36 L. Ed. 2d 854, 862-63, 93 S. Ct. 2041, 2047-48 (1973)).
The trial court based its determination that Ms. Schaffer
voluntarily consented to the search on its findings that when
Officer Boyd returned to the house after arresting defendant, Ms.
Schaffer, who was staying with defendant in the bedroom, "gave the
officer verbal consent to search the premises"; that Ms. Schaffer
"led [the officers] to the bedroom closet where growing marijuana
plants were located, along with other drug paraphernalia"; and that
Ms. Schaffer also gave the officers "written consent to search the
house." These findings are supported by competent evidence that
was presented at the voir dire hearing and, consequently, ourstandard of review precludes us from revisiting the issue. Barden
356 N.C. at 340, 572 S.E.2d at 125.
Defendant argues that the totality of the circumstances
indicate Ms. Schaffer's consent was in fact coerced. This
argument, however, attempts to persuade us to draw inferences in
defendant's favor that the trial court did not draw. Officer Boyd
testified at the voir dire hearing that he requested that Ms.
Schaffer bring out any drugs or paraphernalia that were on the
premises and informed her that, if she did not, he would seek a
search warrant. According to Officer Boyd, Ms. Schaffer was not
crying or upset while talking with the officers, and he denied
telling her that she was required to sign the consent form. This
testimony provides ample competent evidence to support the trial
court's finding that, under the totality of the circumstances, Ms.
Schaffer voluntarily consented to the search.
In turn, these findings all support the trial court's legal
conclusions that "Officer Boyd had valid consent" and that the
search, therefore, "did not violate any of the defendant's
constitutional rights." See, e.g.
, 309 N.C. at 6-9, 305
S.E.2d at 689-91 (concluding defendant provided valid consent when
officers read and discussed consent form with defendant and his co-
tenant grandmother and explained to defendant that if he did not
consent they would get a search warrant); State v. Houston
N.C. App. 367, 371, 610 S.E.2d 777, 781 (concluding defendant
validly consented to search of his room and safe when he verbally
consented, did not appear nervous or scared, was cooperative, ledofficers to the room, provided combination to the safe, was not
threatened, was present during the search, and gave no indication
he wished to revoke consent), appeal dismissed and disc. review
, 359 N.C. 639, 617 S.E.2d 281 (2005). This assignment of
error is, accordingly, overruled.
Judges HUDSON and TYSON concur.
Report per Rule 30(e).