Appeal by defendant from judgments entered 6 June 2006 by
Judge James U. Downs in Henderson County Superior Court. Heard in
the Court of Appeals 30 November 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Derrick C. Mertz, for the State.
Nancy R. Gaines, for defendant-appellant.
Henry Alonzo Hutchinson (defendant) appeals from judgments
entered after a jury found him to be guilty of possession of a
schedule II controlled substance pursuant to N.C. Gen. Stat. § 90-
95(A)(3) and being an habitual felon pursuant to N.C. Gen. Stat. §
14-7.1. We dismiss defendant's appeal.
The State's evidence tended to show Hendersonville Police
Officer Richard Arell (Officer Arell) was on foot patrol in the
area of Seventh Avenue and Robinson Terrace on 1 August 2003.
Officer Arell was approached by a woman who complained her son,
Scott Arias, was using her other son's pickup truck without
permission. The woman gave Officer Arell a description of thevehicle, a red 1997 Chevrolet pickup truck. In turn, Officer Arell
made a formal report to dispatch for other officers to be on the
lookout for the truck.
Hendersonville Police Officer Christopher Gordon (Officer
Gordon) was on patrol in the Green Meadows Community when he heard
the report on the truck. A short time later, Officer Gordon
noticed a truck matching the vehicle's description. Officer Gordon
called Officer Arell and stated he had possibly located the pickup
truck. Officer Gordon parked nearby, waited for backup assistance
to arrive, and watched the vehicle.
While he was waiting, he observed a black male enter the
passenger side of the truck, which started heading in his
direction. Officer Gordon followed the truck and initiated a stop.
Officer Gordon turned on his takedown lights and his spotlight so
he could see inside the vehicle. As soon as the truck stopped, he
noticed the passenger lean forward for an unknown reason and the
passenger door opened. Officer Gordon was concerned the passenger
was attempting to flee. Officer Gordon quickly stopped his car,
jumped out, and ran to the passenger side of the truck. Officer
Gordon drew his taser and ordered the passenger, who was later
identified as defendant, not to move. Defendant was holding a
piece of cloth or paper towel and was rolling it in his hand.
Officer Gordon observed something drop from defendant's hands.
Once backup arrived, Officer Gordon took the defendant into
custody. With defendant in custody, Officer Gordon retrieved the
articles defendant had dropped onto the ground. Officer Gordon
picked up what appeared to be four rocks of crack cocaine and a
small bag of marijuana. Defendant was subsequently searched and
officers retrieved what appeared to be another rock of crack
cocaine from defendant's right front pants pocket. The evidence
recovered was confirmed to be .7 grams of cocaine.
On 31 October 2005, defendant was indicted for possession of
a schedule II controlled substance. On 30 January 2006, defendant
was indicted for being an habitual felon. At the close of the
State's evidence, defendant moved to dismiss all the charges
against him. Defendant did not testify or offer any evidence on
his behalf. Defendant's motion to dismiss was denied. On 6 June
2006, a jury found defendant to be guilty of possession of a
schedule II controlled substance and attaining the status of an
habitual felon. The trial court sentenced defendant to an active
term of 107 to 138 months imprisonment. Defendant appeals.
Defendant argues the trial court erred by admitting evidence
seized during the search in violation of his rights under the
Fourth Amendment to the United States Constitution.
III. Evidence Seized During Traffic Stop
Defendant's sole argument on appeal asserts the trial court
erred by failing sua sponte
to exclude evidence seized in violation
of his constitutional rights. Defendant contends the officers did
not have probable cause to arrest him, and that any incriminatingevidence was obtained through the search incident to his illegal
arrest, tainted and inadmissible.
We decline to review defendant's argument because he failed to
move to suppress this evidence at trial. A motion to suppress
made before or during trial is required to properly preserve for
appeal an objection to the admissibility of evidence. State v.
, 153 N.C. App. 801, 802, 571 S.E.2d 245, 246 (2002), cert.
, 357 N.C. 167, 581 S.E.2d 64 (2003). N.C. Gen. Stat. § 15A-
974 (2005) provides for suppression of evidence if its exclusion
is required by the Constitution of the United States or the
Constitution of the State of North Carolina.
The exclusive method
of challenging the admissibility of
evidence upon the grounds specified in G.S. 15A-974 is a motion to
suppress evidence which complies with the procedural requirements
of G.S. 15A-971 et seq
. State v. Conard
, 54 N.C. App. 243, 244-
45, 282 S.E.2d 501, 503 (1981) (emphasis supplied) (internal
citations omitted). The burden is on the defendant to demonstrate
that he has made his motion to suppress in compliance with the
procedural requirements of G.S. 15A-971 et seq
.; failure to carry
that burden waives the right to challenge evidence on
constitutional grounds. Id
. at 245, 282 S.E.2d at 503 (citing
State v. Drakeford
, 37 N.C. App. 340, 246 S.E.2d 55 (1978)).
Defendant failed to move to suppress the evidence in question and
waived his argument that the trial court should have excluded the
evidence ex mero moto
Defendant failed to move to suppress the evidence obtained
from his arrest at trial and his argument challenging the evidence
being improperly admitted due to the search being unconstitutional
is waived. Defendant's appeal is dismissed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).
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