STATE OF NORTH CAROLINA
v. Yadkin County
No. 05 CRS 51047
LEWIS DEAN LOWE
Attorney General Roy Cooper, by Assistant Attorney General
Marc Bernstein, for the State.
Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Jay Vannoy
and Daniel S. Johnson for the defendant appellant.
McCULLOUGH, Judge.
On 23 January 2006, defendant, Lewis Dean Lowe, was indicted
for resisting a public officer; possession of a controlled
substance (marijuana); possession of a controlled substance with
the intent to manufacture, sell or deliver (methamphetamine);
trafficking by possession of between 200 and 400 grams of
methamphetamine; misdemeanor possession of drug paraphernalia; and
maintaining a dwelling for keeping and selling a controlled
substance (methamphetamine and marijuana).
On 19 January 2006, defendant moved to suppress certain
physical evidence and statements made by defendant. Following a
hearing on 27 March 2006, the trial court denied the motion as toall physical evidence and deferred the motion as to the statements
made by defendant based on the State's representation that it did
not intend to offer the statements at trial. Upon the denial of
the motion to suppress, defendant pled guilty to one count of
trafficking of methamphetamine. Pursuant to a plea agreement, the
remaining charges were dismissed and defendant preserved his right
to appeal the denial of his motion to suppress. The trial court
sentenced defendant to a minimum of seventy months and a maximum of
eighty-four months in prison. Defendant now appeals the trial
court's denial of his motion to suppress.
Before turning to the merits of defendant's appeal, we must
first address the State's contention that the appeal is subject to
dismissal by this Court due to defendant's failure to include in
his brief the standard of review for the assignments of error he
raises. Rule 28(b)(6) of the North Carolina Rules of Appellate
Procedure provides that “[t]he argument shall contain a concise
statement of the applicable standard(s) of review for each question
presented, which shall appear either at the beginning of the
discussion of each question presented or under a separate heading
placed before the beginning of the discussion of all the questions
presented.” N.C. R. App. P. 28(b)(6) (2006). Rule 28(b)(6) further
requires that “the statement of applicable standard(s) of review
shall contain citations of the authorities upon which the appellant
relies.” Id. Here, defendant has failed to include any reference
to the standard of review applicable to the trial court's ruling on
the motion to suppress. This Court has the authority to dismiss an appeal for failure
to comply with the Rules of Appellate Procedure. N.C. R. App. P.
25(b) (2006); see also Viar v. N.C. Dep't of Transp., 359 N.C. 400,
401, 610 S.E.2d 360, 360 (per curiam) (holding that the rules of
appellate procedure are mandatory), reh'g denied, 359 N.C. 643, 617
S.E.2d 662 (2005). Nevertheless, this Court has reserved dismissal
as a penalty for more substantial violations. See Stann v. Levine,
__ N.C. App. __, __, 636 S.E.2d 214, 217 (2006) (“When viewed in
toto, the nature and number of rules violations, combined with the
absence of any compelling justification for suspending the rules
pursuant to Rule 2, justifies dismissal of plaintiff's appeal.”).
Because defendant's sole error is not substantial, we decline to
impose dismissal as a sanction.
The dispositive issue on appeal is whether the trial court
erroneously found that the police had lawful consent to enter
defendant's hotel room. In an appeal from a ruling on a motion to
suppress, this Court is required to treat the trial court's
findings of fact as conclusive if supported by competent evidence,
even if the evidence is conflicting. State v. Mahatha, 157 N.C.
App. 183, 191, 578 S.E.2d 617, 622 (2003), disc. review denied, 357
N.C. 466, 586 S.E.2d 773. However, the trial court's conclusions
of law are subject to a full review by this Court. Id.
Evidence presented by the State at the suppression hearing
tended to show that at approximately 3:30 a.m. on 7 August 2004,
Deputies Jason Vestal and James Robison of the Yadkin County
Sheriff's Department went to the Country Inn in Jonesville, NorthCarolina to investigate a report of possible prostitution at the
hotel. Approximately five minutes after their arrival, the
deputies observed a woman exit one of the hotel rooms, exclaim,
“Oh, shit,” and then retreat back into the room slamming the door.
Based on this observation, the deputies proceeded to the room
to determine whether there was a domestic disturbance occurring in
the room. After the deputies knocked on the door, Amy Dawn
Caldwell opened the door and stood in the doorway. After
identifying themselves, the deputies asked Ms. Caldwell if
everything was okay. Ms. Caldwell indicated that everything was
fine. Through the open door, the deputies were able to observe
another female and a male lying on a bed in the room. Deputy
Vestal then asked Ms. Caldwell if he could talk to her. She
responded, “Yes,” and then turned and walked into the room. The
deputies, concluding that this was an invitation to follow her,
entered the room behind her. Shortly thereafter, defendant emerged
from the bathroom at the same time that Deputy Vestal noticed drug
paraphernalia on the bathroom sink. Based on this observation, the
deputies proceeded to question the occupants of the hotel room.
The investigation that followed resulted in the discovery of
controlled substances in the hotel room and on defendant's person
and in the subsequent arrest of defendant.
Based upon this evidence, the trial court found that the
officers had been given consent to enter the hotel room. We agree.
Warrantless searches generally are not allowed absent probable
cause and exigent circumstances. State v. Harris, 145 N.C. App.570, 580-81, 551 S.E.2d 499, 506 (2001), disc. review denied, 355
N.C. 218, 560 S.E.2d 146 (2002). However, lawful consent to the
search is an exception to the warrant requirement. State v. Smith,
346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997). Further, N.C. Gen.
Stat. § 15A-221(a) expressly authorizes warrantless searches and
seizures “if consent to the search is given.” N.C. Gen. Stat.
§ 15A-221(a) (2005). This statute defines “consent” as “a
statement to the officer, made voluntarily . . . , giving the
officer permission to make a search.” N.C. Gen. Stat.
§ 15A-221(b). This Court has further held that “the use of
nonverbal conduct intended to connote an assertion is sufficient to
constitute a statement” within the meaning of consent under N.C.
Gen. Stat. § 15A-221(b). State v. Graham, 149 N.C. App. 215, 219,
562 S.E.2d 286, 288 (2002), appeal dismissed, disc. review denied,
356 N.C. 685, 578 S.E.2d 315 (2003).
Defendant asserts that the deputies were not given consent to
enter the room. Specifically, he contends that none of the hotel
room occupants said anything to invite the deputies in and that Ms.
Caldwell's movement back into the hotel room was insufficient to
imply consent. In support of his argument, defendant cites U.S. v.
Miller in which a federal district court found lack of consent
where the defendant had stepped back inside his apartment with the
door open. U.S. v. Miller, 933 F. Supp. 501 (M.D.N.C. 1996). We
disagree that Miller is dispositive of this case.
In Miller, the defendant specifically informed the police
officers that he had not invited them into his apartment, verballyobjected to officers' presence, expressed his desire to be left
alone, and became disruptive during the search. Id. at 506. These
additional circumstances support the district court's finding in
that case that the defendant's movement back into his dwelling did
not constitute an implied consent for the officers to enter.
In the case sub judice, the movement of Ms. Caldwell back into
the hotel room followed her express agreement to speak further with
the officers. In addition, there is no evidence that any of the
occupants of the hotel room objected to the deputies entry into the
room. We conclude that this evidence is competent to support the
trial court's finding that the deputies had consent to enter the
hotel room. See State v. Harper, 158 N.C. App. 595, 582 S.E.2d 62,
appeal dismissed, disc. review denied, 357 N.C. 509, 588 S.E.2d 372
(2003) (holding that evidence supported consent where defendant,
upon being asked by officer if officer could step into room,
stepped back from threshold of door, opened door to its full
extension, said nothing, and cooperated with officers).
Accordingly, defendant's assignment of error is overruled.
Because we have affirmed the trial court's finding of consent
for the search, we need not address defendant's additional
assignment of error.
No error.
Judges STEELMAN and LEVINSON concur.
Report per Rule 30(e).
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