No. Coa06-1081 Thirtieth Judicial District

NO. COA06-1081 THIRTIETH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

)

v. ) FROM HAYWOOD COUNTY

) No. 05-CRS-52616-618

JACKIE BOIKE WALLACE )

)

______)

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DEFENDANT-APPELLANT’S BRIEF

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INDEX

PAGE

TABLE OF AUTHORITIES ...... iii

QUESTIONS PRESENTED ...... 1

STATEMENT OF THE CASE ...... 2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ...... 2

STATEMENT OF THE FACTS ...... 3

ARGUMENTS ...... 5

I. THE TRIAL COURT ERRED IN NOT ALLOWING DEFENDANT’S MOTION TO SUPPRESS THE EVIDENCE DISCOVERED AS A RESULT OF THE UNREASONABLE SEARCH AND SEIZURE OF DEFENDANT(ASSIGNMENTS OF ERROR NOS.1-4;7-15, Rpp.49-51; 52-58)...... 5

II. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO SUPPRESS THE EVIDENCE AND TESTIMONY UNCOVERED AS A RESULT OF THE ILLEGAL AND UNCONSTITUTIONAL CUSTODIAL INTERROGATION OF DEFENDANT(ASSIGNMENTS OF ERROR NOS. 1-3;5-7;9,11,13-15, Rpp.49-58) ...... 11

CONCLUSION ...... 15

CERTIFICATE OF SERVICE ...... 16

CASES TABLE OF AUTHORITIES PAGE

Arizona v. Hicks, 480 U.S. 321,107 S.Ct.1149(1987) . . . 8,9

Florida v. Jimeno, 500 U.S. 248,111 S.Ct.1801(1991) . . .7,8

Mapp v. Ohio, 367 U.S. 643, 6 L.Ed 2d 1081 (1961) . . . .6,11

Miranda v. Arizona, 384 U.S. 436,86 S.Ct. 1602(1966). . .12,13

NC Dept. of Envt. & Natural Resources v. Carroll,

358 NC 649 (2004) ...... 5,

State v. Arrington, 311 N.C. 633,319 S.E.2d 254(1984) . .6

State v. Arroyo-Sotelo, 131 Ore. App. 290

884 P.2d 901(1994) ...... 8

State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823(2001) . . 13,14

State v. Burrus, 344 N.C. 79,472 S.E.2d 867(1996). . . . 12

State v. Carter, 322 N.C. 709, 370 S.E.2d 553(1998) . . .6

State v. Dampier, 314 N.C. 292,333 S.E.2d 230(1985) . . .12

State v. Eason, 336 N.C. 730,445 S.E.2d 917(1994) . . . .6

State v. Gaines, 345 N.C. 647,483 S.E.2d 396 (1997) . . 13,14

State v. Pittman, 111 N.C. App. 808,433 S.E.2d 822(1993).9

State v. Torres,330 N.C. 517, 412 S.E.2d 20(1992). . . .13

United States v. Ibarra, 965 F.2d 1354(5th Cir 1992) . . 8

STATUTES

N.C. Gen. Stat. 7A-27(b) ...... 2

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment IV ...... 5,6

United States Constitution, Amendment XIV ...... 5,6

NC Constitution, Article 1, Section 20...... 6

NO. COA06-1081 THIRTIETH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

)

v. ) FROM HAYWOOD COUNTY

) No. 05-CRS-52616-618

JACKIE BOIKE WALLACE )

)

______)

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DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

I. DID THE TRIAL COURT ERR IN NOT ALLOWING DEFENDANT’S MOTION TO SUPPRESS THE EVIDENCE DISCOVERED AS A RESULT OF THE UNREASONABLE SEARCH AND SEIZURE OF DEFENDANT?

II. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION TO SUPPRESS THE EVIDENCE AND TESTIMONY UNCOVERED AS A RESULT OF THE ILLEGAL AND UNCONSTITUTIONAL CUSTODIAL INTERROGATION OF DEFENDANT?

STATEMENT OF THE CASE

Ms. Wallace was indicted on one charge of trafficking in methamphetamine, one charge of possession of cocaine, and one charge of possession of drug paraphernalia on 30 January 2006. The Defendant’s case was called for hearing at the 10 April 2006 session of Criminal Superior Court for Haywood County before the Honorable Zoro Guice, Jr. Defendant’s Motion to Suppress was heard and denied by the presiding judge on 10 April 2006. The charges were then tried before a jury, with the jury returning a verdict finding the Defendant guilty of all charges on 12 April 2006. The trial court entered the judgment on 12 April 2006, sentencing Defendant to a minimum of seventy months, and a maximum of eighty-four months with the North Carolina Department of Corrections. The Defendant gave timely notice of appeal from the judgment of the trial court in open court on 12 April 2006. The transcript was ordered on 21 April 2006 and was mailed to the parties on 25 April 2006.

The final record on appeal was filed with the North Carolina Court of Appeals on 11 August 2006 and docketed on 16 August 2006. The printed Record on Appeal was mailed from the Office of the Clerk of the Court of Appeals on 21 August 2006.

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

The ground for appellate review is a final judgment of superior court under N.C. Gen. Stat. 7A-27(b). A timely notice on appeal was given by the Defendant in open court on 12 April 2006.

STATEMENT OF THE FACTS

The Motion to Suppress was heard prior to trial. Officer Doug Carver of the Maggie Valley Police Department was called by Defendant’s counsel. He testified that on July 23, 2005 he was called to the Home and Hearth Inn in Maggie Valley by the manager on duty who had been noticing a lot of traffic coming in and out of a room there and suspected drug activity. Carver knocked on the door of Room 209 and Richard Dean Fisher came to the door. Carver testified that he told Fisher that he was there following up on a drug tip, and Fisher invited him in the room. (Mot. Hear. Tp.3-5)

Fisher told Carver there was no contraband in the room. Carver noticed metal shavings in an ashtray in the room and told Fisher and the other occupants of the room that this gave him probable cause to search the room. At that point, Carver stepped to the door to radio for backup. As he did, Carver said he heard a bed spring and saw Fisher sit on the bed. Carver then handcuffed Fisher because he sat on the bed, and then he searched the room because of “exigent circumstances”. When asked to explain what the exigent circumstances were, he testified that there were four people in the room, and he did not know what was going on in the room and “there was always the opportunity for them to ditch something else”. (Mot. Hear. Tpp.7-12)

Carver admitted that Fisher did not have a shirt on, and was wearing pants with cowboy boots. Further, Carver admitted that at the point he radioed for backup, he had decided to detain all occupants of the room, including Defendant. When Carver decided to handcuff Fisher he was on the bed closest to the window of the room, while Ms. Wallace was sitting on a chair next to the door and her son and a female friend were sitting on the other bed. At that time he knew of no outstanding warrants on any of the occupants of the room. (Tpp.10-12)

After Carver handcuffed Fisher he put him out of the room with a backup officer. Carver then came back in and searched the lunge area, and under the bed Fisher had been sitting on he found two syringes and a small rock of cocaine. Officer Carver testified at that point he was detaining everyone, and they were not free to leave. Officer Carver did not give Ms. Wallace or any of the other occupants of the room their Miranda Rights. (Tpp.18-19)

Carver asked Ms. Wallace if the bag in the floor was hers, and she said it was. Carver asked if he could search the book bag, prior to getting a search warrant for safety reasons, and Ms. Wallace consented. Carver testified that he searched the bag and found no weapons, just some scales, jewelry, and some small pocket knives. Though Carver found no weapons or contraband on his first search, he then immediately researched the bag again. On the second search, he found some rocklike crystals in a RC can. (Tpp.15;19-21).

After Carver put Ms. Wallace under arrest, he told the occupants of the room that he was going to get a search warrant. After he asked her if the bag was hers, she told him that all the contents were hers and no one else in the room. (Tpp.22-23).

ARGUMENTS

THE TRIAL COURT ERRED IN NOT ALLOWING DEFENDANT’S MOTION TO SUPPRESS THE EVIDENCE DISCOVERED AS A RESULT OF THE UNREASONABLE SEARCH AND SEIZURE OF DEFENDANT(ASSIGNMENTS OF ERROR NOS.1-4;7-15, Rpp.49-51; 52-58)

Ms. Wallace’s counsel moved to suppress the testimony and evidence seized by Officer Carver during his search of Ms. Wallace’s bag without probable cause or a warrant. The trial court erred in not suppressing the testimony and evidence discovered by Officer Carver as it was obtained in a warrantless search devoid of exigent circumstances, in violation of Ms. Wallace’s Constitutional Rights.

Standard of Review

The decision on whether to allow a motion to suppress testimony and evidence is a legal conclusion of the trial court. As such, the reviewing court may review the decision de novo, considering the matter anew and freely substituting its own judgment for that of the lower court. NC Dept. of Envt. & Natural Resources v. Carroll, 358 NC 649 (2004).

Argument

The Fourth and Fourteenth Amendments to the U.S. Constitution require “the exclusion of evidence obtained by unreasonable search and seizure,” as do the corresponding provisions in Article 1, Section 20, of the North Carolina Constitution. Mapp v. Ohio, 367 U.S. 643, 6 L.Ed 2d 1081 (1961); State v. Carter, 322 N.C. 709, 712, 370 S.E.2d 553, 555 (1998); State v. Arrington, 311 N.C. 633, 643, 319 S.E.2d 254, 260 (1984).

In evaluating a trial court’s ruling on a motion to suppress, the trial court’s findings of fact “are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting.” State v. Eason, 336 N.C. 730, 745, 445 S.E.2d 917, 926 (1994), cert. denied, 513 U.S. 1096, 130 L.Ed. 2d 661, 115 S.Ct. 764 (1995), cert. denied, ___ U.S. ___, 1221 S.Ct. 1126, 148 L.Ed. 2d 992 (2001).

In the present case, while detained in a motel room against her will, Officer Carver testified that Ms. Wallace gave him permission to search a blue bag that was in the motel room floor between the chair she was sitting in and the bed Fisher had been on. At this point, Fisher had been handcuffed by Carver and placed outside the room. Carver had not obtained a search warrant at that point, and told the court that he wanted to search the bag because of the “exigent circumstances” present and for officer safety. (Mot. Tpp.12-14, 15,19)

Officer Carver testified that on his initial search of the bag, he found nothing but a bunch of junk, jewelry, some scales, an RC can, cell phones, a few small pocket knives, but no weapons or anything that concerned him in plain view. After he had completed his search of the bag and replacing all the items that he had taken out, Carver proceeded to search the bag again, even though he said nothing in his first search put him on notice of any contraband in plain view or any weapons or anything that could be of any danger to him or any other officer. (Mot. Tpp.19-20). On the second go around, Officer Carver shook and opened up the RC Can to find crystals in it. This second search was in excess of the scope of consent provided by Ms. Wallace and in violation of her Constitutional rights. (Mot. Tpp. 20-21)

The standard for determining the scope of a suspect's consent is one of objective reasonableness, which is "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct.1801, 1803-04 (1991). In Jimeno, the Supreme Court held that a general consent to search the car for narcotics included consent to search a paper bag lying on its floor. Id.

The Supreme Court further indicated that a different result would have followed if the officers had dismantled the vehicle or searched a locked container rather than simply looking in an open container on the floor of the vehicle. Id. (”It is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag.”). The question of whether an officer has exceeded the scope of a consent search is a matter of law to be determined based upon a reasonable person standard. Id.See also, United States v. Ibarra, 965 F.2d 1354, 1357, 1361 (5th Cir 1992); State v. Arroyo-Sotelo, 131 Ore. App. 290, 884 P.2d 901 (1994).

In the present case, Officer Carver had completed his initial search for weapons, finding nothing during his search of the bag. There was no discussion as to the scope of the search. The crystal substance was not found in plain view, rather it was found in a closed RC can that had to be opened up by Officer Carver during the second time he searched the bag. The crystals were concealed in the RC can and were not found in “plain view.” A reasonable person in Ms. Wallace’s position would not have intended that her consent to search the bag would have extended to two consecutive dumping out of the contents of her bag and on the second attempt the shaking and then forced opening of a sealed container in the bag, therefore, the search in the present case exceeded to scope of the defendant’s consent and was unlawful as a matter of law.

If there was valid consent to search the bag then the reasonable scope of that search would have included the areas within plain view of the bag and any open containers within the bag. Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct.1801, 1803-04 (1991). When the officer encountered the sealed RC Can which he said felt funny and solid on his second search, this did not rise to the level of probable cause of criminal contraband and did not justify opening the can to review its contents. See Arizona v. Hicks, 480 U.S. 321, 328, 107 S.Ct.1149, 1154 (1987) ("the 'plain view' doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.”).

In Arizona v. Hicks, the Supreme Court held that when an officer encountered an item in plain view that he suspected was stolen he could not touch that item because touching was a seizure within the meaning of the Fourth Amendment and probable cause was required to justify a seizure of items beyond plain view. Id. North Carolina Courts have reiterated this principle that probable cause is necessary for officers to extend warrantless searches beyond the scope of plain view, consent, or inventory searches. See State v. Pittman, 111 N.C. App. 808, 812, 433 S.E.2d 822, 824(1993)(“So long as a stop is investigative, the police only need to have a reasonable suspicion. However, if the police conduct a full search of an individual without a warrant or consent, they must have probable cause, and there must be exigent circumstances.”);

In the present case the trial court found as a fact “That inasmuch as Cagle or Fisher had made a sudden movement and Officer Carver was concerned about his safety since he was the only officer at the scene, asked the defendant Wallace if he could search the blue bag, that Officer Carver wanted to search the blue bag to determine whether or not there were any weapons present in the bag and to insure his, Carver’s safety pending the arrival of other officers to the scene.” (Rp.44). However, the court failed to find, as set out above and in the Statement of Facts, that Carver’s initial search of the bag revealed no weapons (his stated reason for searching the bag without a warrant) and no contraband either. He just decided, without reason, and more importantly without probable cause, to search the bag a second time and then still finding nothing in plain view, decided to open the sealed RC Can because it “felt solid”.

Likewise, the conclusions of law are not supported by the competent evidence or the findings of fact: “that following the first cursory search of the blue bag and having discovered items of drug paraphernalia that Officer Carver was justified in continuing a further search of the blue bag having already discovered items used for the violation of the North Carolina Controlled Substances Laws. That Officer Carver was justified in continuing with his search of the blue bag, and that the search of the blue bag which resulted in the discovery of the cocaine and methamphetamine was one continuous sequence of events.” (Rp.47) This conclusion is not supported by the competent evidence presented at the hearing, and likewise the conclusion that finds Ms. Wallace’s Constitutional rights were not violated is not supported by the competent evidence presented.(Rp.47)

Because the second search of the bag and the seizure, shaking and opening the sealed container clearly exceeded any consent given by Ms. Wallace for a cursory search for the Officer’s safety, this amounted to a warrantless dismantling of a sealed container in Ms. Wallace’s possession. This search violated Ms. Wallace’s rights - whether or not there was initial consent to search- and the trail court erred in not suppressing the results of the search. As Officer Carver provided the above described testimony to the jury and illegally obtained items from Ms. Wallace’s book bag were introduced into evidence, a new trial is in order.

Officer Carver testified at the Suppression hearing that before he asked Ms. Wallace any questions, all the occupants of the motel room were detained, his having handcuffed Fisher and taken him out of the room and discovered a syringe and cocaine rocks under the bed where Fisher had been. Still, Officer Carver did not read Ms. Wallace her Miranda rights, but proceeded to question her regarding the ownership of the blue bag and whether or not he could search it. This was a violation of her Constitutional rights, and all testimony and evidence resulting therefrom should have been excluded.

Standard of Review

Argument

The State is prohibited from using at trial any statements resulting from a defendant’s “custodial interrogation” unless it demonstrates, by a preponderance of the evidence, that the defendant received Miranda warnings regarding the constitutional rights to counsel and to remain silent. State v. Burrus, 344 N.C. 79, 92, 472 S.E.2d 867, 876 (1996); State v. Dampier, 314 N.C. 292, 298, 333 S.E.2d 230, 234 (1985). In Miranda, the U.S. Supreme Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706 (1966) (emphasis added).