An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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: 3 October 2006
STATE OF NORTH CAROLINA
v. Guilford County
No. 05 CRS 75767
KEVIN L. DUNHAM
Appeal by defendant from judgment entered 26 September 2005 by
Judge Howard R. Greeson, Jr., in Guilford County Superior Court.
Heard in the Court of Appeals 29 September 2006.
Attorney General Roy Cooper, by Assistant Attorney General
David N. Kirkman, for the State.
Charlotte Gail Blake, for defendant-appellant.
Kevin L. Dunham (defendant) appeals from judgment entered
after he pled no contest to possession of a firearm by a felon. We
The State's evidence tended to show on the evening of 20 April
2005 Greensboro Police Officers W.D. Coble (Officer Coble) and
J.L. LeGrand (Officer LeGrand) were working at the Police
Neighborhood Resource Center in a public housing complex in
Greensboro. Officer Coble testified he and several other police
officers were members of a special police unit assigned to the five
major public housing complexes managed by the Greensboro Housing
Authority. The officers had received complaints about drug activities
occurring in an apartment rented by Patricia Williams (Williams),
a unit subject to the rules and regulations of the Greensboro
Housing Authority. Officer Coble testified he was familiar with
the rules, regulations, and conditions of the lease which does not
allow tenants to provide accommodations to boarders and lodgers.
The officers were further aware that the rules do allow visitors of
tenants to stay in their apartment for one week without prior
approval by the Greensboro Housing Authority.
On the evening of 20 April 2005, Officers Coble and LeGrand
and several other police officers approached Williams's apartment
to conduct a knock and talk. Officers Coble and LeGrand knew
that the only persons legally permitted to reside in the apartment
were Williams and her son. As the officers approached Williams's
apartment, they observed a man, later identified as defendant,
leave the front porch of Williams's apartment and go inside. The
officers had not observed defendant prior to that time.
When the officers arrived at the apartment, they viewed the
interior through the screen door and observed defendant inside.
The officers knocked on the door and introduced themselves to
Williams. The officers asked if they could enter and she allowed
them to enter her apartment. The officers informed Williams that
they had received complaints about drug activities in her
apartment. She denied any drug activities had occurred.
Officer Coble asked Williams to identify defendant. She
introduced defendant as her nephew. Defendant then introducedhimself and gave the officers his true identity, Kevin Dunham. The
officers asked defendant if he possessed an identification card.
Defendant informed the officers that his card was in an upstairs
bedroom. The officers asked defendant if they could go upstairs
with him to search for his identification card and he consented.
Defendant informed the officers that he did not know exactly where
his identification card was located in the bedroom. While
attempting to locate defendant's identification card, the police
officers searched the front bedroom where defendant had indicated
his identification card was located. The officers noticed a box of
ammunition located on the dresser in the bedroom. They asked
defendant if the ammunition belonged to him and if he was a
convicted felon. Defendant admitted he was a convicted felon, but
denied the ammunition belonged to him. Officer Coble picked up a
jacket on the bed to look for defendant's identification card. A
gun that is the subject of defendant's motion to suppress was found
under the jacket. Defendant denied the gun was his and denied he
occupied the bedroom.
While in the front bedroom, the officers also noticed pictures
of defendant on the walls, as well as men's clothing hanging in the
closet. Defendant's identification card was found in the pocket of
a pair of jeans in the bedroom's closet. After the officers and
defendant returned downstairs, Williams denied that defendant was
her nephew. She informed the officers that defendant had been
living on the street and that she had taken him in. Williams
further informed the officers that defendant lived in the frontupstairs bedroom from time to time.
On 13 June 2005, defendant was indicted for possession of a
firearm by a felon. On 6 September 2005, defendant moved to
suppress evidence of the firearm. The motion was denied and
defendant conditionally pled no contest, preserving his right to
appeal the denial of his motion to suppress. The trial court
entered judgment for possession of a firearm by a felon. Defendant
Defendant contends the trial court erred by denying his motion
III. Motion to Suppress
Defendant argues Williams did not consent for the police
officers to search the upstairs front bedroom of her apartment and
defendant did not have the authority to consent to the search.
Defendant further argues the officers knew that he was not entitled
by law to live in the apartment and defendant did not have the
authority to consent to the search.
Defendant argues the search of the upstairs bedroom was
unreasonable and the seizure of the evidence found invokes the
protections afforded him under the Fourth Amendment to the United
States Constitution, which states, the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated. U.S.
Const. amend. XIV, § 1. The Fourth Amendment is applicable to the
states through the Due Process Clause of the Fourteenth Amendment.State v. Barnes, 158 N.C. App. 606, 609, 582 S.E.2d 313, 317 (2003)
Defendant asserts only Williams possessed the sole authority
to consent to the search of the upstairs front bedroom in her
apartment. Because Williams did not consent, defendant argues the
officers' search of the front bedroom was unreasonable and the
seizure of the gun should have been suppressed.
The State counters that two problems exist with defendant's
assertions. First, the State argues that if Williams's
constitutional right to be free from unreasonable searches and
seizures was violated by the officers because she did not consent
to their search of the upstairs bedroom, defendant lacks standing
to assert these violations on her behalf. Second, the State argues
that defendant had an expectation of privacy in the bedroom because
he was staying there and he consented to the officers' search for
his identification card in the bedroom. We agree and hold the
trial court properly denied defendant's motion to suppress.
A. Personal Rights
A defendant's rights to be free against unreasonable searches
and seizures under the Fourth Amendment are personal and, unlike
some constitutional rights, may not be asserted by another. State
, 291 N.C. 37, 50, 229 S.E.2d 163, 172 (1976) (citing Brown
v. United States
, 411 U.S. 223, 36 L. Ed. 2d 208 (1973)).
Before defendant can assert the protection
afforded by the Fourth Amendment, however, he
must demonstrate that any rights alleged to
have been violated were his rights, not
someone else's. A person's right to be free
from unreasonable searches and seizures is apersonal right, and only those persons whose
rights have been infringed may assert the
protection of the Fourth Amendment.
State v. Ysut Mlo
, 335 N.C. 353, 377, 440 S.E.2d 98, 110, cert.
, 512 U.S. 1224, 129 L. Ed. 2d 841 (1994). Under N.C. Gen.
Stat. § 15A-972 (2005), only a defendant who is aggrieved may move
to suppress evidence[.]
Our Supreme Court interprets this statute as follows:
[A] defendant is aggrieved and may move to
suppress evidence under G.S. 15A-972 only when
it appears that his personal
rights, not those
of some third party, may have been violated,
and such defendant has the burden of
establishing that he is an aggrieved party
before his motion to suppress will be
State v. Taylor
, 298 N.C. 405, 415-16, 259 S.E.2d 502, 508 (1979)
(internal quotations omitted).
Defendant failed to demonstrate any search and seizure alleged
to have been violated were his rights to assert. Rather, he argues
that the officers should have obtained Williams's consent to search
the upstairs bedroom. Presuming, without deciding,
should have obtained Williams's consent to search
bedroom of her apartment and their failure to obtain her consent
was a violation of her Fourth Amendment rights, defendant cannot
vicariously assert the violation of her Fourth Amendment rights.
See State v. Melvin
, 53 N.C. App. 421, 424, 281 S.E.2d 97, 100
(1981) (an individual's Fourth Amendment rights are personal
rights which may not be vicariously asserted by another), cert.
, 305 N.C. 762, 292 S.E.2d 578 (1982). Defendant has failed
to show his
Fourth Amendment rights were violated and that he wasan aggrieved party. Taylor
, 298 N.C. at 415-16, 259 S.E.2d at 508.
This assignment of error is overruled.
B. Expectation of Privacy
Although a defendant's entitlement to Fourth
Amendment protections is frequently referred
to as his 'standing' to object to a search,
the United States Supreme Court explained in
Minnesota v. Carter, 525 U.S. 83, 84, 142 L.
Ed. 2d 373, 376 (1998), that 'the rubric of
standing doctrine [has been] expressly
rejected . . . to claim Fourth Amendment
protection, a defendant must demonstrate that
he personally has an expectation of privacy in
the place searched, and that his expectation
is reasonable.' Under some circumstances a
defendant who is not the legal owner or lessee
of a house may nonetheless have a reasonable
expectation of privacy while on the premises.
Barnes, 158 N.C. App. at 613, 582 S.E.2d at 318-19 (quoting
Minnesota v. Carter, 525 U.S. 83, 84, 142 L. Ed. 2d 373, 376
Here, defendant failed to show or argue he had a reasonable
expectation of privacy in the upstairs bedroom of Williams's
apartment. Defendant failed to meet his burden of establishing an
infringement of his personal rights by the officers' search of the
The trial court concluded defendant had a possessory interest
in the upstairs front bedroom. We hold this conclusion is
supported by the trial court's findings of fact and the evidence
presented at the suppression hearing. Given that defendant had a
possessory interest in the upstairs bedroom, defendant had a
reasonable expectation of privacy in the upstairs bedroom. Defendant concedes in his brief he consented to the officers'
search of the upstairs bedroom. A search is not unreasonable
within the meaning of the Fourth Amendment when lawful consent to
a search is given. State v. Barden, 356 N.C. 316, 340, 572 S.E.2d
108, 125 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074
We hold the trial court did not err in denying defendant's
motion to suppress. Id
. at 340-41, 572 S.E.2d at 125. The trial
court's judgment is affirmed.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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