An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 18 July 2006
STATE OF NORTH CAROLINA
No. 04 CRS 51181
JEFFREY JEROME CARMICHAEL
Appeal by defendant from judgment entered 10 February 2005 by
Judge W. Russell Duke, Jr., in Wilson County Superior Court. Heard
in the Court of Appeals 8 June 2006.
Attorney General Roy Cooper, by Assistant Attorney General
Scott A. Conklin, for the State.
Geoffrey W. Hosford for defendant appellant.
Jeffrey Jerome Carmichael (defendant) appeals from
conviction and judgment for trafficking in cocaine by possession.
We hold that defendant received a fair trial, free from prejudicial
Defendant's Petition for Review
Defendant failed to file a notice of appeal from his
conviction and judgment for trafficking in cocaine by possession
within fourteen days of the entry of judgment as required by Rule
4(a) of the North Carolina Rules of Appellate Procedure. Defendant
was convicted on 10 February 2005, and on 17 May 2005 the trial
court prepared an appellate entries form stating defendant had
given notice of appeal that day. However, defendant has filed with this Court a petition for a
writ of certiorari in which he seeks review of the arguments set
forth in his appellate brief. Pursuant to our authority under Rule
21 of the North Carolina Rules of Appellate Procedure, we grant
defendant's petition for a writ of certiorari and review the
judgment and conviction for trafficking in cocaine by possession.
The State presented evidence that tended to show that on 28
February 2004 Police Sergeant Reggie Branch of the Wilson Police
Department, accompanied by Officer Rob Weatherford, went to an
apartment at 718 Tarboro Street with outstanding warrants for
defendant's arrest. Sergeant Branch testified that he knocked on
the door of the apartment and asked to be allowed inside, and that
Mrs. Ruby Melton, the woman who answered the door, agreed and let
him in. Sergeant Branch observed defendant inside the apartment. He
advised that he had a warrant for defendant's arrest. Defendant
thereafter took off quickly, like running, towards the bedroom.
Sergeant Branch went to pursue him. Mrs. Melton and another woman,
Ms. Farmer, attempted to block Sergeant Branch's path, but he was
able to get around them and into the bedroom.
Sergeant Branch testified that as he entered the bedroom he
saw the defendant coming from around the back of the bed, back
towards the door. Sergeant Branch placed defendant under arrest,
and removed him to the living room. Officer Weatherford watched the
defendant while Sergeant Branch returned to check that area right
inside the bedroom where he had went incident to arrest because[he] didn't know whether [defendant] ran in there and was
destroying evidence or had a weapon or anything. On the floor on
the far side of the bed, between the bed and the wall, Sergeant
Branch observed in plain view [ ] one bag of _ one plastic bag
containing a white powder substance and also a handgun that [he]
could see[.] Sergeant Branch questioned Mrs. Melton about the
drugs and firearm. Mrs. Melton responded that the gun belonged to
her husband but that she had no idea where the drugs came from.
Sergeant Branch returned to the bedroom and discovered a baggie of
crack cocaine in plain view a few feet away, further back towards
the end of the bed, or the top part of the bed. Sergeant Branch
again questioned Mrs. Melton and defendant about the drugs.
Sergeant Branch testified that Mrs. Melton denied any knowledge of
the drugs, while defendant advised that the white powder cocaine
was his but he didn't know anything about the crack cocaine that
Sergeant Branch took defendant back to the police station, and
advised him of his rights. During an interview with defendant,
defendant made a statement wherein he acknowledged ownership of the
drugs, and signed and initialed the statement in several places.
Defendant produced witnesses, Mrs. Melton and Ms. Farmer, who
testified that defendant had never gone into the bedroom. The
defense witnesses testified that defendant had been arrested in the
living room, and that thereafter Sergeant Branch went into the
bedroom and came out with the drugs. Defendant also testified to
this effect on his own behalf. Defendant made a motion to suppress the admission of evidence
on the ground that the search conducted by Sergeant Branch exceeded
the lawful scope of a search incident to arrest. The trial court
denied this motion. Defendant also moved to have the charges
dismissed for insufficiency of evidence. This motion was also
Defendant was convicted of trafficking in cocaine by
possession, and was sentenced to 35 to 42 months of imprisonment.
Defendant now appeals.
Defendant alleges in his first argument on appeal that the
trial court erred when it denied his motion to suppress evidence
found at the scene of defendant's arrest. Defendant claims that
Sergeant Branch's search exceeded the lawful scope of a search
incident to arrest, and as such the drugs found at the scene should
not have been admissible. We disagree.
This Court's 'review of a denial of a motion to suppress is
limited to determining whether the trial court's findings of facts
are supported by competent evidence, whether the findings of fact
support the conclusions of law, and whether the conclusions of law
are legally correct.' State v. McLean, 120 N.C. App. 838, 840, 463
S.E.2d 826, 828 (1995) (quoting State v. Trapp, 110 N.C. App. 584,
587, 430 S.E.2d 484, 486 (1993)). The trial court's findings of
fact 'are conclusive on appeal if supported by competent evidence,
even if the evidence is conflicting.' State v. Brewington, 352N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (citation omitted), cert.
denied, 531 U.S. 1165, 148 L. Ed. 2d 992 (2001).
Unreasonable searches and seizures are prohibited by the
[F]ourth [A]mendment 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), 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).
A search without a search warrant may be made incident to a
lawful arrest. State v. Goode, 350 N.C. 247, 255, 512 S.E.2d 414,
419 (1999). Such a search can include the area from which an
arrestee might have obtained a weapon or some item that could have
been used as evidence against him. State v. Williams, 145 N.C. App.
472, 474, 552 S.E.2d 174, 175 (2001). Whether or not a search
incident to arrest is reasonable must be determined upon the facts
and circumstances surrounding each individual case. Id. at 475, 552
S.E.2d at 176.
In the instant case, the trial court made the following
findings of fact concerning the search:
(1) [Sergeant Branch] had a right to
enter the premises to arrest the defendant;
(2) When the defendant ran upon seeing
[Sergeant Branch], [Sergeant Branch] had a
right to enter the premises to make the
(3) When [Sergeant Branch] thereafter
observed the defendant between the bed and the
wall, he had a right to look to determine if
any contraband was present; and
(4) The items seized were in plain view
and were properly seized pursuant to the
motion of the defendant.
These findings of fact were supported by competent record evidence.
Specifically, the evidence tended to show that Sergeant Branch
lawfully arrested defendant pursuant to a valid warrant. When
defendant ran into the bedroom, Sergeant Branch pursued him there
and testified that, when he entered the bedroom, defendant was
coming back from around the backside of the bed, coming back
towards the door. Defendant was arrested in the bedroom to where
he had fled, which made it reasonable for Sergeant Branch to effect
a search incident to arrest behind the bed where he had observed
defendant. Sergeant Branch limited his search to the area that had
been under defendant's control when the arrest was made, and
testified that his limited search of that area turned up a bag of
cocaine in plain view. The findings made by the trial court,
supported by competent evidence, support the trial court's ruling
to deny the motion to suppress the evidence seized.
Defendant argues that, because Sergeant Branch had no reason
to suspect that defendant was armed, and no reason to believe that
defendant was in possession of drugs, Sergeant Branch was not
entitled to conduct a search incident to arrest. However, searches incident to arrest need not be prefaced on suspicion that a suspect
is armed or will destroy evidence, and are permissible 'whether or
not there is probable cause to believe that the person arrested may
have a weapon or is about to destroy evidence.' Cherry, 298 N.C.
at 94, 257 S.E.2d at 557 (quoting United States v. Chadwick, 433
U.S. 1, 53 L. Ed. 2d 538 (1977). [T]he defendant in custody need
not be physically able to move about in order to justify a search
within a limited area once an arrest has been made. Id. at 95, 257
S.E.2d at 558. Further, Sergeant Branch testified that the drugs he
located were in plain view. 'It is well settled that evidence of
crime falling in the plain view of an officer who has a right to be
in a position to have that view is subject to seizure and may be
introduced into evidence.' State v. Hardy, 339 N.C. 207, 226, 451
S.E.2d 600, 610 (1994) (quoting State v. Mitchell, 300 N.C. 305,
309, 266 S.E.2d 605, 608 (1980)), cert. denied, 449 U.S. 1085, 66
L. Ed. 2d 810 (1981). Since Sergeant Branch had a right to conduct
a search of the area in which defendant was arrested, he was able
to observe the drugs in plain view, and to seize them. This
assignment of error is overruled.
Defendant's final argument on appeal is that the trial court
erred by failing to dismiss the charges of trafficking in cocaine
by possession. Defendant argues that the State failed to present
evidence that defendant constructively possessed the cocaine
recovered at the scene of his arrest by Sergeant Branch. This
argument is without merit. In deciding a motion to dismiss for insufficient evidence, a
trial court must determine whether there is substantial evidence of
each required element of the offense charged, and that the
defendant is the perpetrator of such offense. State v. Roddey
N.C. App. 810, 812, 431 S.E.2d 245, 247 (1993). 'Substantial
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.' State v. Frogge
N.C. 576, 584, 528 S.E.2d 893, 899 (2000) (quoting State v. Smith
300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)), cert. denied
U.S. 994, 148 L. Ed. 2d 459 (2000). When ruling on a motion to
dismiss for insufficient evidence, a trial court must take the
evidence in the light most favorable to the State and afford every
reasonable inference from the evidence to the State. State v. Call
349 N.C. 382, 417, 508 S.E.2d 496, 518 (1998).
An accused's possession of narcotics may be actual or
constructive. State v. Harvey
, 281 N.C. 1, 12, 187 S.E.2d 706, 714
(1972). [T]he State must present evidence that the defendant had
exclusive use of the premises, maintained the premises as a
residence, or had some apparent proprietary interest in the
premises or the controlled substance. State v. Hamilton
, 145 N.C.
App. 152, 156, 549 S.E.2d 233, 236 (2001).
In the instant case, while defendant did not have exclusive
use or proprietary interest in the property, testimony of both
Sergeant Branch and Officer Weatherford indicated that defendant
admitted in their presence to owning the powder cocaine. Defendant
also signed and initialed a statement admitting ownership of thepowder cocaine at the police station. When taken in a light most
favorable to the State, this evidence is sufficient to allow a
reasonable inference that defendant had a proprietary interest in
the powder cocaine. As such, this assignment of error is overruled.
For the forgoing reasons, we find
Judges HUDSON and TYSON concur.
Report per Rule 30(e).
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