NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
RANDOLPH COUNTY97CRS 4048-52
97 CRS 4065
STATE OF NORTH CAROLINA,
Plaintiff,
BRIEF IN SUPPORT OF
vs.MOTION TO SUPPRESS
HOWARD LEE CLARK, JR.
SCOTT WALKER CLARK
Defendants
NOW COME the defendants, by and through their attorney, Richard G. Roose in support of their motion to suppress and show the Court as follows:
I. FACTS
The defendant Howard Clark is charged with possession of marijuana, possession with intent to sell and deliver marijuana, maintaining a dwelling house to keep marijuana, and possession of drug paraphernalia. The defendant Scott Clark is charged with possession of less than 1/2 ounce of marijuana. The offenses allegedly occurred on March 24, 1997.
On that date, defendant Howard Clark was at his home located at 6724 Kerr Drive, Randleman, Randolph County, North Carolina. Defendant Scott Clark was not present. Two officers from the Randolph Sheriffs Department knocked on defendant's door. When the defendant Howard Clark answered the door, the officers stated that they had "observed some traffic" and they just wanted to talk to defendant. Officer Garner asked defendant if she could "come in and walk around". The defendant told her that she could do that. Officer Garner entered the house and immediately walked to Scott Clark's bedroom, opened a dresser drawer and began inspecting items contained in the drawer. Defendant Howard Clark asked Officer Garner what she was doing and she replied, "You said we could come into the house." Defendant Howard Clark asked, "Don't you think I need a lawyer before you do this?" Officer Garner did not reply but continued to search drawers, cabinets, and containers. The defendant Howard Clark never consented to a search of closed containers, drawers, and cabinets.
II. ARGUMENT
The state contends that the evidence is admissible because the search was conducted pursuant to a valid consent by the defendant. In order to establish that a voluntary consent was given, the state has the burden of proving that the consent was "freely and intelligently" given, Schneckloth v Bustamonte, 412 U.S. 218, 93 S.CT. 2041, 36 l.Ed.2d 854 (1973), and was "unequivocal and specific" State v. Little, 270 N.C. 234, 154 S.E.2d 61 (1967). There is no bright line test for determining consent; each case is a question of fact to determined from the totality of circumstances. Schneckloth, at 226-27.
In this case, there is simply no way that defendant's allowing the Officer to "come in and walk around" can be found to be an "unequivocal and specific" consent to search drawers, cabinets, and containers in his home.
When the state relies upon consent as a basis for a warrantless search, the police have no more authority than that they have been given by the consent.
State v. Jolley, 68 N.C. App. 33, 314 S.E.2d 134 (1984).
In this case, the authority of the police was to "come in and walk around". There was no authority given to search dresser drawers, or any closed containers. The assumption by Officer Garner that defendant's invitation into the house constituted authority to search ["You said we could come into the house."] is simply not in conformity with the law.
Defendant's acquiescence after observing the officers searching drawers and containers cannot be construed as free and voluntary consent to search. In Bumper v. North Carolina, 391 US 543, 20 L.ED.2d 797, 88 S.CT. 1788 (1968), the United States Supreme Court stated:
When a prosecutor seeks to rely upon consent justify the lawfulness of a search, it is the burden of proving that the consent was in fact, freely and voluntary given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.
Bumper, at 549. (Emphasis added)
Defendant Howard Clark, not schooled in the law of search and seizure, but clearly surprised at the officers' exceeding the scope of his consent, asked, "Don't you think I need a lawyer before you do this?" The officers gave no answer but continued searching. Faced with the authoritative presence of two law enforcement officers, he had no choice but to acquiesce.
III. CONCLUSION
In this case, the defendant did not give an "unequivocal and specific" consent to fully search his home. the defendant's "consent" was clearly limited to authorizing the officer to enter and walk around. There was no consent to search drawers or closed containers. The defendant's acquiesence to the search after it had begun and after he had expressed the need to consult a lawyer cannot be construed to be a free and voluntary consent, and any evidence resulting from the subsequent search must be suppressed.
This ______day of ______, 1998.
Richard G. Roose
Attorney for Defendant
OF COUNSEL:
MOSER, SCHMIDLY, MASON & ROOSE
115 S. Fayetteville St., Suite 400
Asheboro, N.C. 27203
TELEPHONE: (336) 626-8000
FAX: (336) 626-8007