On 22 October 2003, at 4:00 a.m., defendant occupied the rear
seat in a van driven by Charles Majett (“Majett”). Another man,
Victor Bullock (“Bullock”), sat in the front passenger seat. Two
uniformed Durham Police Officers, Scott Bell and John McDonough,
observed the van entering the parking lot of a service station. The
officers recognized Majett, and were aware from previous encounters
with him that Majett did not have a driver's license. The officersconfirmed this with their computer system, and decided to follow
the van.
As the officers approached in marked Durham police cars,
Majett turned the van abruptly onto a side street and stopped in a
private driveway. Officer Bell approached the van on the driver's
side, while Officer McDonough approached the van on the passenger
side. Officer Bell engaged Majett with questioning, and ultimately
placed him under arrest. Officer McDonough meanwhile questioned
defendant and Bullock. In the course of the questioning, Officer
McDonough smelled the strong odor of marijuana emanating from
defendant. Officer McDonough asked defendant to step out of the
van, and proceeded to conduct a search of defendant's person.
Officer McDonough frisked defendant, pulling up his shirt.
Defendant was wearing his pants very low around his waist, around
the level of his genitals, leaving defendant's underwear exposed
above his pants. Officer McDonough observed bulges in the
defendant's underwear, which made the sounds of plastic when
disturbed. The officer then pulled back the waistband of
defendant's underwear and observed three plastic baggies of
marijuana. A fourth baggie of marijuana had fallen down defendant's
leg, and was visible on the ground. Defendant was then arrested,
and charged with possession of a schedule VI controlled substance
with an intent to manufacture, sell, or deliver.
At trial, defendant made a motion to suppress tangible
evidence. The trial court denied the motion to suppress, and
thereafter defendant pled guilty to the charges, but reserved hisright to appeal the denial of his motion to suppress. Defendant
offered no evidence on his behalf. Defendant now appeals the denial
of his motion to suppress.
Defendant contends on appeal that the trial court erred in
denying his motion to suppress evidence found at the scene of
defendant's arrest. Specifically, defendant argues that the trial
court erred in making certain findings of fact and conclusions of
law not supported by the evidence. We disagree.
In reviewing a trial court's denial of a motion to suppress
evidence, this court is “'strictly 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. Bone, 354 N.C. 1,
7, 550 S.E.2d 482, 486 (2001) (citation omitted),
cert. denied, 535
U.S. 940, 152 L. Ed. 2d 231 (2002).
The gravamen of defendant's argument on appeal is that certain
erroneous findings of fact support the conclusion of law that the
officer performed a lawful search of defendant pursuant to a
Terry
stop.
While the trial court did make findings and conclusions of law
relating to a search pursuant to a
Terry stop, such findings and
conclusions were superfluous and do not warrant disturbance of a
correct ruling on the motion to suppress.
Id. at 8, 550 S.E.2d at486. In addition to the findings of fact and conclusions of law
relating to a search pursuant to a
Terry stop, the trial court made
further findings of fact and conclusions of law relating to a
warrantless search pursuant to probable cause and exigent
circumstances.
The trial court concluded that the totality of the
circumstances permitted a warrantless search of defendant's person.
Specifically, the trial court determined that the “odor of
marijuana was sufficient to establish probable cause to search for
the contraband drug marijuana.” The court also recognized that
“[b]ecause marijuana is easily and quickly hidden or destroyed, an
immediate search was justified and necessary to preserve the
evidence.”
Though the trial court may have determined this to be
a
Terry pat-down, superfluous conclusions of law do not affect the
validity of the denial of a motion to suppress where the trial
court's ruling is correct.
Bone, 354 N.C. at 8, 550 S.E.2d at 486.
We now turn to a determination of whether the trial court's
findings of fact were supported by competent evidence and whether
those findings of fact in turn support the conclusion of law that
the search and seizure were proper as based on probable cause and
exigent circumstances.
“Unreasonable searches and seizures are prohibited by the
fourth amendment to the United States Constitution, and all
evidence seized in violation of the Constitution is inadmissible in
a State court as a matter of constitutional law.”
State v. Cherry,
298 N.C. 86, 92, 257 S.E.2d 551, 555 (1979) (citation omitted),
cert. denied, 446 U.S. 941, 64 L. Ed. 2d 796 (1980). “[S]eizure of
private property unaccompanied by prior judicial approval in the
form of a warrant is
per se unreasonable unless the search falls
within a well-delineated exception to the warrant requirement
involving exigent circumstances.”
State v. Cooke, 306 N.C. 132,
135, 291 S.E.2d 618, 620 (1982). “[W]arrantless searches are not
allowed absent probable cause and exigent circumstances, the
existence of which are factual determinations that must be made on
a case by case basis.”
State v. Harper, 158 N.C. App. 595, 602, 582
S.E.2d 62, 67,
disc. review denied, 357 N.C. 509, 588 S.E.2d 372
(2003). Probable cause has been defined as “'a reasonable ground of
suspicion, supported by circumstances sufficiently strong in
themselves to warrant a cautious man in believing the accused to be
guilty. . . .'”
State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364,
367 (1971) (citations omitted).
In
State v. Greenwood, our Supreme Court extended the “plain
view” doctrine and held that the smell of marijuana can give an
officer probable cause to search an automobile.
See State v.
Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441 (1981) (extending
the plain view doctrine to include contraband discovered through
any of the senses, especially odor). Following this expansion, this
Court
extended the “plain smell” doctrine and determined it to be
sufficient to establish probable cause to search the suspect's
person.
State v. Yates, 162 N.C. App. 118, 122, 589 S.E.2d 902,
904 (2004).
In such an instance where the police have established
probable cause on the basis of observing the odor of marijuana,exigent circumstances are present where there is imminent danger
the evidence will be lost or destroyed.
Id.
In determining whether the findings of fact are supported by
competent evidence in the instant case, we look to two material
findings made by the trial court. First, the trial court concluded
in Finding of Fact No. 7 that “Officer McDonough asked of Victor
Bullock and the person in the back of the Caravan, the defendant
herein Kevin Burch, what they were doing pulling into the driveway.
Upon the response of Kevin Burch, Officer McDonough smelled the
odor of marijuana.” This finding of fact is supported by the
testimony of Officer McDonough, and was not objected to by
defendant, or contested with any evidence. Further, where no error
was assigned and no exception noted to Finding of Fact No. 7, the
finding of fact is binding on this Court and is presumed to be
correct.
Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587,
591, 525 S.E.2d 481, 484 (2000).
Second, the court concluded in Finding of Fact No. 10 that
“Officer McDonough has been with the Durham Police Department on
uniformed patrol for a little more than five years and has made
multiple drug arrests, that he knows the smell of marijuana by
virtue of his knowledge, training, and experience with the Durham
Police Department.” Defendant alleges that such experience may be
insufficient to allow Officer McDonough to identify the smell of
marijuana, but offers no evidence to support this contention.
Officer McDonough offered testimony with regard to his ability to
identify the smell of marijuana, based on personal experience andhis police training. Officer McDonough testified that he was able
to recognize the odor of marijuana from his more than five years of
active duty police work, prior arrests, and police training. We
hold this to be competent evidence sufficient to support the
finding of fact by the trial court. As such, the trial court's
findings of fact are conclusively binding.
Defendant also argues on appeal that there are additional
findings of fact that were not supported by the evidence. However,
none of the findings of fact to which defendant now objects are
material to the case at hand. It is well settled that, while it is
the better practice to make findings of fact, a trial court is not
required to make any findings when there is no material conflict in
the evidence before them.
State v. Phillips, 300 N.C. 678, 685, 268
S.E.2d 452, 457 (1980) (stating that denial of a motion to suppress
can be sustained based on the State's undisputed evidence without
any finding of fact).
In the instant case,
defendant presented no evidence
whatsoever at the hearing on the motion to suppress. The only
evidence before the court was the testimony of the two police
officers. While defendant may object to the findings of fact which
state the exact location of the evidence seized, or what exactly on
defendant's person gave off the odor of marijuana, these are
immaterial conflicts.
See,
e.g., State v. Ladd, 308 N.C. 272, 279,
302 S.E.2d 164, 169 (1983) (finding the exact location of the
evidence seized to be an immaterial conflict). Therefore, we hold that the findings of fact made by the trial
court were indeed supported by substantial evidence. These findings
of fact were sufficient to support a decision by the court that
Officer McDonough had probable cause to search defendant. A search,
under such circumstances, was a reasonable search justified by
exigent circumstances, and thus was not violative of the Fourth
Amendment.
Yates, 162 N.C. App. at 123, 589 S.E.2d at 905. The
seizure of the evidence was lawful, and therefore the motion to
suppress was properly denied. Further, defendant contends that the
motion to suppress was improperly denied where the search and
seizure went beyond the permissible bounds of a
Terry stop.
However, where we have determined that sufficient probable cause
and exigent circumstances existed, certainly the standard of a
“reasonable, articulable suspicion” was met. This assignment of
error is overruled.
Accordingly, the trial court properly denied defendant's
motion to suppress where the findings of fact, which are supported
by competent evidence, support the conclusion of law that the
search and seizure were proper pursuant to probable cause and
exigent circumstances. Further, the record on appeal contains
additional assignments of error which are not properly addressed by
defendant in his brief to this Court. Pursuant to N.C.R. App. P.
28(b)(6), we deem them abandoned.
Affirmed.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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