No. Coa07-1011 Twenty Second Judicial District

NO. COA07-1011 TWENTY SECOND JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

)

v. ) FROM DAVIDSONCOUNTY

) Nos. 05-CRS-50617

JOSEPH LAMONT PEOPLES )

)

______)

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DEFENDANT-APPELLANT’S BRIEF

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INDEX

PAGE

TABLE OF AUTHORITIES ...... ii

QUESTIONS PRESENTED ...... 1

STATEMENT OF THE CASE ...... 2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW ...... 3

STATEMENT OF THE FACTS ...... 3

ARGUMENTS ...... 4

I.THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO GRANT DEFENDANT’S MOTION TO SUPRESS AS THE SEARCH AND SEIZURE OF DEFENDANT’S PERSON WAS DONE IN VIOLATION OF MR. PEOPLES’ CONSTITUTIONAL RIGHTS(ASSIGNMENTS OF ERROR NO. 1-6;R.pp.37-40) ...... 4

CONCLUSION ...... 10

CERTIFICATE OF SERVICE ...... 11

CASES TABLE OF AUTHORITIES PAGE

Minnesota v. Dickerson, 124 L. Ed. 2d 334 (1993) . . . . 7,8,9

State v. Beveridge, 112 N.C. App. 688,436 S.E.2d 912(1994)8,9

State v. Corpening,109 N.C. App. 586,427 S.E.2d 892(1993) 5

State v. Earwood, 155 N.C. App. 698, 574 S.E.2d 707(2003) 5

State v. Garner, 331 N.C. 491, 417 S.E.2d 502 (1992) . . .5

Ybarra v. Illinois, 444 U.S. 85 (1979) ...... 5,6

STATUTES

N.C. Gen. Stat. 7A-27...... 2

CONSTITUTIONAL PROVISIONS

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

Article I, Section 20 N.C. Constitution ...... 5

NO. COA07-1011 TWENTY SECOND JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA )

)

v. ) FROM DAVIDSONCOUNTY

) Nos. 05-CRS-50617

JOSEPH LAMONT PEOPLES )

)

______)

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DEFENDANT-APPELLANT’S BRIEF

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QUESTIONS PRESENTED

I.DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN FAILING TO GRANT DEFENDANT’S MOTION TO SUPRESS AS THE SEARCH AND SEIZURE OF DEFENDANT’S PERSON WAS DONE IN VIOLATION OF MR. PEOPLES’ CONSTITUTIONAL RIGHTS?

STATEMENT OF THE CASE

The Defendant, Joseph Lamont Peoples, was indicted on one count of possession of controlled substance and one count of possession of drug paraphernalia on 7 March 2005. Defendant’s Motion to Suppress was heard by the trial court during the 26 February 2007 criminal session of the Superior Court for DavidsonCounty. On or around 8 March 2007, the trial court entered an order denying Defendant’s Motion to Suppress. Subsequently, Defendant entered an Alford Plea, preserving his right of appeal of the denial of his Motion to Suppress and the trial court entered the judgment on 8 May 2007, sentencing Defendant to an intermediate punishment. The Defendant gave timely notice of appeal from the denial of his motion to suppress and the judgment of the trial court on 8 May 2007. The transcript was ordered on 8 May 2007 and was mailed to the parties on 3 July 2007.

The final record on appeal was filed with the North Carolina Court of Appeals on 21 August 2007 and docketed on 21 August 2007. The printed Record on Appeal was mailed from the Office of the Clerk of the Court of Appeals on 29 August 2007.

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 Defendant on 5 May 2007.

STATEMENT OF THE FACTS

Officer Michael Burns was on patrol duty with the Davidson County Sheriff’s Department on January 19, 2005. He was assisting other officers serving a search warrant on the residence of Steven McIntosh at 302-B Railroad Street in Lexington. The search warrant called for the officers to seize any and all evidence located at that address or upon the person of Steven Orlando McIntosh, or upon any vehicle pertaining to that residence. (Tpp6-7; Rp.33)

On January 19th, Burns and three other officers came to the apartment located at 302-B Railroad Street in Lexington to serve the warrant on McIntosh. They knocked, and upon not getting an answer, knocked the door to the apartment in with a battering ram and proceeded in. (Tpp.7;15)

When Burns and the other officers entered the apartment, McIntosh was not present. The only person present was Mr. Peoples, who was seated on a chair in the living room. Burns ordered Mr. Peoples to the floor at gun point and put him in handcuffs for officer safety. (Tp.10)

The officers found no one else in the apartment. After Mr. Peoples was handcuffed in the living room floor, Burns then patted him down for weapons “for officer safety”. During this pat down, Burns felt what he testified “he knew immediately was crack cocaine” in Peoples pants pocket, and removed it from his pocket.

Mr. Peoples was wearing pants and a shirt at the time of the pat down search. The plastic bag found in Mr. Peoples pants tied in a knot was no bigger than a quarter. The crack cocaine found in the bag found in Mr. Peoples’ pants weighed .7 of a gram. There are 28.3 grams in one ounce.(Tpp.18;19;23)

ARGUMENTS

Mr. Peoples was not the target of the search warrant executed on the apartment in Lexington. The police broke the door down and he was sitting in a chair in the living room. He was ordered to the floor at gun point and then was placed in handcuffs, for officer safety. He was not under arrest but was still subjected to a pat down search after he was in handcuffs and was no conceivable threat to any officers’ safety. This was in violation of Mr. Peoples’ constitutional rights and any evidence seized should have been suppressed.

Standard of Review

The standard of review in evaluating a trial court's ruling on a motion to suppress is “strictly limited to determining whether the trial court’s findings of fact are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court’s conclusions of law.” State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993); see State v. Earwood, 155 N.C. App. 698, 574 S.E.2d 707(2003).

Argument

A.Search of Defendant Unreasonable

The Fourth Amendment to the Constitution of the United States, and Section 20 of Article I of the North Carolina Constitution, prohibit unreasonable searches and seizures. SeeState v. Garner, 331 N.C. 491, 417 S.E.2d 502 (1992). Although officers had probable cause to search the apartment they lacked probable cause to search Mr. Peoples at the time the warrant was issued. Since Mr. Peoples was searched almost immediately after officers arrived at the apartment, there were no additional facts known to the officers justifying their search of his person. A person’s legitimate expectation of privacy is not forfeited simply because he is on premises where officers have probable cause to search. Ybarra v. Illinois, 444 U.S. 85, 92 (1979).

In Ybarra, officers obtained a warrant to search a tavern based on an informant’s tip that the bartender possessed heroin. Ybarra, 444 U.S. at 87. The informant also said that he spoke with the bartender in the tavern about purchasing heroin. Id. The warrant authorized a search for evidence of controlled substances. Id. at 88. Officers raided the tavern and patted down each of the customers in the tavern including Ybarra. Id. During the pat down the officer felt a cigarette pack with objects inside. Id. The officer did not remove the pack immediately, but several minutes later he took the pack from Ybarra’s pocket and found heroin. Id. at 89.

The United States Supreme Court noted in Ybarra that authorities had no reason to suppose that any person present in the tavern other than the bartender would be violating the law. Id. at 90. Later, when the police began their search there were still no reasons to believe Ybarra was violating the law. Id.

Likewise, in the present case, the officers had no reason to expect that anyone besides Steven McIntosh, the indicated target of the search warrant, would be engaging in criminal activity. There was no presumption or authority based on the warrant for the officers to search anyone else on the premises besides McIntosh.

The Officer claimed that he also had authority to search Mr. Peoples for Officer safety. This is so, even though Mr. Peoples could have not possibly served as any threat to the officers as he laid down on the floor of the residence at gun point and had been handcuffed. At that point, he was incapable of being a threat to the officers, and that did not provide a basis to search Mr Peoples’ person.

The trial court’s finding of fact number 3, states that “the defendant was handcuffed and was patted down in a search for weapons”. In conclusion of law number 1, the trial court stated that the contraband was found in a pat down search that “is not an invasion of the defendant’s privacy beyond that already authorized in a search for weapons.” (Rpp.16-17). The pat down search of Mr. Peoples was a gross invasion of his privacy rights as the officer had no probable cause to search him, and as he lay handcuffed on the floor he could not be a threat to the officers and therefore a pat down search was not authorized or legal.

B.Plain Feel did not reveal Contraband

Officer Burns testified that when he patted down Mr. Peoples for weapons he felt a plastic bag tied in a knot and immediately identified it to be drugs, which entitled him to remove it from Mr. Peoples’ pants. The trial court in finding of fact number three stated that Burns “immediately knew that he had found cocaine on the person of the defendant.” As the record reveals that this plastic bag tied in a knot was about the size of a quarter, and the cocaine in the bag weighed .7 grams or 2/100 of an ounce, this testimony was simply unbelievable. (Rp.16; Tpp.19,23)

The plain view doctrine was announced by the United States Supreme Court in Minnesota v. Dickerson, 124 L. Ed. 2d 334 (1993). The Court held that the "[plain view] doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search." Id.at __, 124 L. Ed. 2d at 345.

If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain view context.Id. at ___, 124 L. Ed. 2d at 346.

In State v. Beveridge, 112 N.C. App. 688, 436 S.E.2d 912 (1994), this Court dealt with a similar pat down search of a defendant that revealed contraband. The Officer felt a baggie in Defendant’s pocket on doing the routine pat down search for weapons. The Officer testified that it was not immediately apparent that the baggie was contraband. This Court held: “While the pat-down revealed that the defendant had a plastic baggie in his pocket, the officer's testimony at voir dire indicated that it was not immediately apparent to him that the baggie held contraband. Without some other exigency to justify the continued warrantless search of the defendant, he was no longer authorized under Terry and its progeny to invade the defendant's privacy.” Id.

In the present case, Officer Burns did testify on voir dire that during the pat down search of Mr. Peoples he felt what “was readily apparent” to him was crack cocaine. He further testified that as soon as his hand contacted it, I knew exactly what it was and he then proceeded to remove it from his pocket. (Tpp.11-12) Though this testimony certainly seems to fit the testimony required to allow the officer to expand his pat downsearch and retrieve the item from Mr. Peoples’ pocket, the physical evidence as described in the record, makes this unbelievable.

The bag with a knot in it was approximately the size of a quarter. The cocaine, when weighed by the S.B.I. weighed .7 of a gram, or around 2/100 of an ounce. A weight, as argued by trial counsel, that is almost undetectable to the human hand. Officer Burns admitted that when he weighed the baggie and the cocaine together they weighed a grand total of .9 of a gram. (Tpp.19, 23, 24).

As set out in Beveridge and Dickerson this Court should determine the legality of the search by the totality of the circumstances. In this instance, the physical evidence set out in the record casts serious doubt as to whether it would be possible to even detect that the quarter sized baggie contained anything, much less cocaine. As such, Officer Burns was not justified in extending his pat down search of Mr. Peoples further and removing the baggie from his pocket. The .7 of a gram of cocaine and the baggie taken from Mr. Peoples person should have been suppressed as fruit of the poisonous tree.

CONCLUSION

The Defendant respectfully requests that this Court reverse the trial court as argued above, and remand to the trial court for the entry of an order granting Mr. Peoples’ Motion to Suppress, and granting him a dismissal of all charges against him or a new trial.

This the ____ day of October, 2007.

______

James N. Freeman, Jr.

Attorney for Defendant-Appellant

Joseph Lamont Peoples

Post Office Box 347

Elkin, North Carolina28621

Telephone: (336) 835-4407

State Bar No.:18188

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the Brief and Appeal Information Sheet by placing said copy in a postpaid envelope addressed to the person(s) hereinafter named, at the place(s), and addresses stated below, which is/are the last known address(es) and by depositing said envelope and its contents in the United States Mail at Elkin, North Carolina.

John R. Green, Jr.

Assistant Attorney General

State of North Carolina Department of Justice

Enviornmental Division

PO Box 629

Raleigh, North Carolina27602

This the ___ day of October, 2007.

______

James N. Freeman, Jr.

Post Office Box 347

Elkin, North Carolina28621

State Bar No. 18188

Telephone: (336) 835-4407