- 1 -
No. 347A07 TWENTY-EIGHTH JUDICIAL DISTRICT
SUPREME COURT OF NORTH CAROLINA
*******************************************
STATE OF NORTH CAROLINA)
)
V.)From BuncombeCounty
) No. COA06-209
KENNETH BARNARD)
****************************************************
DEFENDANT APPELLEE’S NEW BRIEF
****************************************************
- 1 -
INDEX
TABLE OF AUTHORITIES ...... vi
QUESTIONS PRESENTED ...... 1
STATEMENT OF THE CASE ...... 2
STATEMENT OF THE GROUNDS OF APPELLATE REVIEW ...... 4
STATEMENT OF THE FACTS ...... 5
ARGUMENT
I. THE MAJORITY OPINION OF THE COURT
OF APPEALS MUST BE REVERSED AND THE
TRIAL COURT’S DENIAL OF THE MOTION TO SUPPRESS EVIDENCE AND TESTIMONY RELATED
TO THE STOP, SEIZURE AND SEARCH OF MR. BARNARD MUST BE OVERTURNED BECAUSE
OFFICER MALTBY DID NOT HAVE PROBABLE
CAUSE OR REASONABLE SUSPICION TO
BELIEVE THAT A TRAFFIC VIOLATION HAD OCCURRED AND THE STOP WAS NOT
REASONABLE UNDER THE CIRCUMSTANCES IN VIOLATION OF MR. BARNARD’S STATE AND FEDERAL RIGHTS ...... 20
- STATEMENT OF STANDARD OF
REVIEW ...... 20
B.UNREASONABLE SEARCHES AND
SEIZURES ARE PROHIBITED ...... 21
C.A READILY OBSERVABLE TRAFFIC VIOLATION CAN PROVIDE PROBABLE
CAUSE FOR A TRAFFIC STOP ...... 24
D.MR. BARNARD’S PROLONGED
EXISTENCE AT A GREEN TRAFFIC SIGNAL DID NOT GIVE OFFICER MALTBY A REASONABLE ARTICULABLE SUSPICION TO JUSTIFY A STOP ...... 29
E.THE MAJORITY OF THE COURT OF APPEALS MISAPPLIED AND IGNORED
THE AVAILABLE LAW ...... 36
F.THERE WAS NO EVIDENCE IN THE RECORD THAT OFFICER MALTBY WAS
TRAINED IN OBSERVING DRUNK DRIVING “CUES” OR “CLUES” DEVELOPED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION ...... 42
G.A PROPER STOP AT A RED LIGHT FOLLOWED BY A LEGAL LEFT-HAND TURN
IN A GENERAL HIGH CRIME AREA DOES
NOT GIVE RISE TO A REASONABLE ARTICULABLE SUSPICION TO JUSTIFY A STOP ...... 47
H.CONCLUSION ...... 51
II. THE MAJORITY OPINION OF THE COURT
OF APPEALS MUST BE REVERSED AND THE
TRIAL COURT’S DENIAL OF THE MOTION TO SUPPRESS MR. BARNARD’S STATEMENTS MUST
BE OVERTURNED BECAUSE THE STATEMENTS
WERE INVOLUNTARILY GIVEN AS A RESULT
OF CUSTODIAL INTERROGATION IN
VIOLATION OF MR. BARNARD’S STATE AND FEDERAL RIGHTS ...... 52
A.STATEMENT OF STANDARD OF
REVIEW ...... 53
B.THE TRIAL COURT’S FINDINGS OF
FACT ARE INSUFFICIENT TO SUPPORT
THE CONCLUSIONS OF LAW ...... 53
C.THE RIGHT AGAINST COMPULSORY
SELF-INCRIMINATION ...... 55
D.MR. BARNARD WAS IN CUSTODY. . . 56
E.MR. BARNARD’S STATEMENTS WERE
AS THE RESULT OF CUSTODIAL INTERROGATION AND WERE NOT
VOLUNTARY ...... 57
F.CONCLUSION ...... 68
III. THIS CASE SHOULD BE REMANDED TO
THE TRIAL COURT TO DETERMINE WHETHER
THE EVIDENCE DERIVED FROM THE SEARCH
OF MR. BARNARD AFTER THE CONTROLLED BUY RESULTED FORM A CONSENSUAL AND
VOLUNTARY SEARCH ...... 70
A.STATEMENT OF STANDARD OF
REVIEW ...... 70
B.THE TRIAL COURT FAILED TO
MAKE SUFFICIENT FINDINGS OF FACT
TO RESOLVE THE ISSUE AS TO MR. BARNARD’S CONSENT TO THE SEARCH
AFTER THE CONTROLLED BUY . . . . . 70
C.THIS COURT HAS THE AUTHORITY
TO REVIEW THIS QUESTION OF LAW . . .77
D.CONCLUSION ...... 80
CONCLUSION ...... 81
CERTIFICATE OF SERVICE ...... 82
APPENDIX:
Suppression Hearing Voir
Dire Testimony of Officer
Brett Maltby App. 1
Suppression Hearing Voir
Dire Testimony of Officer
Dwight Arrowood App. 35
Suppression Arguments and
Findings and Conclusions by
Trial Court App. 44
Direct Examination of
Dwight Arrowood App. 48
Direct Examination of
Officer Maltby App. 49
Cross Examination of
Officer Maltby App. 66
Direct Examination of
Maria Hricinak App. 74
Direct Examination of
Jay Thomas Pintacuda App. 75
625 Ill. Comp. Stat.
§ 5/6-303 App. 76
625 Ill. Comp. Stat.
§ 5/11-305 App. 80
625 Ill. Comp. Stat.
§ 5/11-306 App. 81
Mercer v. Howard, 174
N.C. App. 839, 622 S.E.2d
522, 2005 N.C. App. LEXIS
2571(2005) (unpublished) App. 80
Defendant-Appellant’s
Brief
State v. Bonds,
No. COA99-769 App. 88
State-Appellee’s Brief
State v. Bonds,
No. COA99-769 App. 92
State v. Hiatt, 2007
N.C. App. LEXIS 1292
(No. COA06-1324)
(filed 19 June 2007)
(unpublished) App. 96
TABLE OF AUTHORITIES
CASES
Alford v. Shaw, 327 N.C. 526, 398 S.E.2d 445 (1990) 44 fn. 3
Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317 (1984) 56-57
Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357 (1979) 22
Cardwell v. Ware, 36 N.C. App. 366, 243 S.E.2d 915 (1978) 31
Cunningham v. Cunningham, 171 N.C. App. 550, 615 S.E.2d 675 (2005) 43
Dowdy v. Southern Ry. Co., 237 N.C. 519, 75 S.E.2d 639 (1953) 33
Ervin v. Mills Co., 233 N.C. 415, 64 S.E.2d 431 (1951) 31
Grant v. Emmco Ins. Co., 295 N.C. 39, 243 S.E.2d 894 (1978) 33-34
Holloway v. Wachovia Bank & Trust Co., 339 N.C. 338, 452 S.E.2d 233 (1994) 32
In the Matter of J.L.B.M., 176 N.C. App. 613, 627 S.E.2d 239 (2006) 20-21, 53
Lowe's v. Worlds, 4 N.C. App. 293, 166 S.E.2d 517 (1969) 34
Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081 (1961) 21, 23, 72
McClure v. McClure, 64 N.C. App. 318, 307 S.E.2d 212 (1983) 34
Mercer v. Howard, 174 N.C. App. 839, 622 S.E.2d 522, 2005 N.C. App. LEXIS 2571 (2005) (unpublished opinion) 39-40
Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966) passim
N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004) 70
Nardone v. United States, 308 U.S. 338, 84 L. Ed. 307 (1939) 76
People v. Dionesotes, 235 Ill. App. 3d 967, 603 N.E.2d 118 (1992) 41
People v. Harper, 237 Ill. App. 3d 202, 603 N.E.2d 115 (1992) 41
People v. Isaac, 335 Ill. App. 3d 129, 780 N.E.2d 777 (2002) 41
People v. Kelly, 344 Ill. App. 3d 1058, 802 N.E.2d 850 (2003) passim
People v. Mitchell, 355 Ill. App. 3d 1030, 824 N.E.2d 642 (2005) 41
People v. Walters, 256 Ill. App. 3d 231, 627 N.E.2d 1280 (1994) 41
Rhode Island v. Innis, 446 U.S. 291, 64 L. Ed. 2d 297 (1980) 58-59
State v. Aldridge, 254 N.C. 297, 118 S.E.2d 766 (1961) 67
State v. Artis, 123 N.C. App. 114, 472 S.E.2d 169 (1996) 23, 72
State v. Aubin, 100 N.C. App. 628, 397 S.E.2d 653 (1990) 45-46
State v. Barnard, ___ N.C. App. ___, 645 S.E.2d 780, 2007 N.C. App. LEXIS 1307 (2007) passim
State v. Barnhill, 166 N.C. App. 228, 601 S.E.2d 215 (2004) 26-28
State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970) 67
State v. Baublitz, 172 N.C. App. 801, 616 S.E.2d 615 (2005) 21, 27-28
State v. Bonds, 139 N.C. App. 627, 533 S.E.2d 855 (2000) 43-46
State v. Braxton, 344 N.C. 702, 477 S.E.2d 172 (1996) 77
State v. Brewington, 170 N.C. App. 264, 612 S.E.2d 648 (2005) 28
State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001) 56
State v. Butler, 331 N.C. 227, 415 S.E.2d 719 (1992) 49-50
State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005) 70
State v. Choate, 228 N.C. 491, 46 S.E.2d 476 (1948) 67
State v. Coffey, 345 N.C. 389, 480 S.E.2d 664 (1997) 58
State v. DeCastro, 342 N.C. 667, 467 S.E.2d 653 (1996) 58-59
State v. Fleming, 106 N.C. App. 165, 415 S.E.2d 782 (1992) 49
State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961) 67
State v. Frizzelle, 254 N.C. 457, 119 S.E.2d 176 (1961) 67
State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000) 58-59
State v. Greene, 332 N.C. 565, 422 S.E.2d 730 (1992) 57
State v. Hamilton, 125 N.C. App. 396, 481 S.E.2d 98 (1997) 29, 32
State v. Hernandez, 170 N.C. App. 299, 612 S.E.2d 420 (2005) 27
State v. Hiatt, ___ N.C. App. ___, ___ S.E.2d ___, 2007 N.C. App. LEXIS 1292 (No. COA06-1324) (filed 19 June 2007) (unpublished opinion) 44-46
State v. Hyde, 352 N.C. 37, 530 S.E.2d 281 (2000) 42
State v. Johnson, 310 N.C. 581, 313 S.E.2d 580 (1984) 77
State v. Jones, 96 N.C. App. 389, 386 S.E.2d 217 (1989) 46
State v. Kincaid, 147 N.C. App. 94, 555 S.E.2d 294 (2001) 21
State v. Lane, 301 N.C. 382, 271 S.E.2d 273 (1980) 52, 68-69
State v. Lane, 163 N.C. App. 495, 594 S.E.2d 107 (2004) 32
State v. Leak, 90 N.C. App. 351, 368 S.E.2d 430 (1988) 62, 64
State v. Little, 133 N.C. App. 601, 515 S.E.2d 752 (1999) 62-64
State v. Moore, 335 N.C. 567, 440 S.E.2d 797 (1994) 80
State v. Oakes, 249 N.C. 282, 106 S.E.2d 206 (1958) 68
State v. Parker, ___ N.C. App. ___, ___, 644 S.E.2d 235, 2007 N.C. App. LEXIS 835 (No. COA06-679) (filed 1 May 2007) 27
State v. Pearson, 348 N.C. 272, 498 S.E.2d 599 (1998) 32
State v. Phelps, 156 N.C. App. 119, 575 S.E.2d 818 (2003) 59-60
State v. Pulliam, 139 N.C. App. 437, 533 S.E.2d 280 (2000) 20, 53
State v. Reynolds, 161 N.C. App. 144, 587 S.E.2d 456 (2003) 28
State v. Roberson, 163 N.C. App. 129, 592 S.E.2d 733 (2004) passim
State v. Smith, 346 N.C. 794, 488 S.E.2d 210 (1997) 77
State v. Soyars, 332 N.C. 47, 418 S.E.2d 480 (1992) 32
State v. Stokes, 150 N.C. App. 211, 565 S.E.2d 196 (2002) 60
State v. Styles, ___ N.C. App. ___, ___ S.E.2d ___, 2007 N.C. App. LEXIS 1696 (No. COA06-684) (filed 7 August
2007)...... 34-35
State v. Summey, 150 N.C. App. 662, 564 S.E.2d 624 (2002) 50
State v. Thompson, 349 N.C. 483, 508 S.E.2d 277 (1998) 33
State v. Thompson, 296 N.C. 703, 252 S.E.2d 776 (1979) 50
State v. Ward, 338 N.C. 64, 449 S.E.2d 709 (1994) 44 fn. 3
State v. Watkins, 337 N.C. 437, 446 S.E.2d 67 (1994) 22, 24
State v. Watson, 119 N.C. App. 395, 458 S.E.2d 519 (1995) 50-51
State v. Williams, 280 N.C. 132, 184 S.E.2d 875 (1971) 42-43
State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968) 79
State v. Wilson, 155 N.C. App. 89, 574 S.E.2d 93 (2002) 27-29
State v. Young, 148 N.C. App. 462, 559 S.E.2d 814 (2002) 27
Steingress v. Steingress, 350 N.C. 64, 511 S.E.2d 298 (1999) 80
Swain v. Creasman, 260 N.C. 163, 132 S.E.2d 304 (1963) 44 fn. 3
Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968) 21-22, 25
United States v. Cortez, 449 U.S. 411, 66 L. Ed. 2d 621 (1981) 22
Viar v. N.C. Dep't of Transp., 359 N.C. 400, 610 S.E.2d 360 80
Weil v. Herring, 207 N.C. 6, 175 S.E. 836 (1934) 65-66
Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89 (1996) 26
Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441 (1963) 54, 72, 76
CONSTITUTIONAL PROVISIONS
N.C. Const. art. I, § 19 ...... 55, 68
N.C. Const. art. I, § 20...... 21
N.C. Const. art. I, § 23...... 55, 68
N.C. Const. art. IV, § 12, cl. 1...... 79
U.S. Const. amend. IV...... 21, 51
U.S. Const. amend. V...... 55, 68
U.S. Const. amend. XIV...... 21, 55, 68
STATUTES & ADMINISTRATIVE CODES
N.C. Gen. Stat. § 7A-30(2)...... 4
N.C. Gen. Stat. § 15A-974...... 23, 72
N.C. Gen. Stat. § 15A-1443(b)....51-52, 69
N.C. Gen. Stat. § 20-135.2A(a)...... 28-29
N.C. Gen. Stat. § 20-141(a)...... 28
N.C. Gen. Stat. § 20-145(a)...... 30-31
N.C. Gen. Stat. § 20-146(a)...... 28
N.C. Gen. Stat. § 20-152(a)...... 29
N.C. Gen. Stat. § 20-154(a)...... 34-35
N.C. Gen. Stat. § 8C-1,
Rule 103(a)(2)...... 24, 54
N.C.R. App. P. 2...... 80
N.C.R. App. P. 9...... 43
N.C.R. App. P. 14(d)(1)...... 78
N.C.R. App. P. 16...... 79
N.C.R. App. P. 16(b)...... 77-78
N.C.R. App. P. 28...... 78
N.C.R. App. P. 28(e)...... 78
N.C.R. App. P. 30(e)(3)...... 39
625 Ill. Comp. Stat.
§ 5/6-303(a)...... 37-38 fn. 2
625 Ill. Comp. Stat. § 5/11-305(a)...... 37
625 Ill. Comp. Stat. § 5/11-306...... 37
- 1 -
No. 347A07 TWENTY-EIGHTH JUDICIAL DISTRICT
SUPREME COURT OF NORTH CAROLINA
*******************************************
STATE OF NORTH CAROLINA)
)
V.)From BuncombeCounty
) No. COA06-209
KENNETH BARNARD)
****************************************************
DEFENDANT APPELLEE’S NEW BRIEF
****************************************************
QUESTIONS PRESENTED
- WHETHER THE MAJORITY OPINION OF THE COURT OF APPEALS MUST BE REVERSED AND THE TRIAL COURT’S DENIAL OF THE MOTION TO SUPPRESS EVIDENCE AND TESTIMONY RELATED TO THE STOP, SEIZURE AND SEARCH OF MR. BARNARD MUST BE OVERTURNED BECAUSE OFFICER MALTBY DID NOT HAVE PROBABLE CAUSE OR REASONABLE SUSPICION TO BELIEVE THAT A TRAFFIC VIOLATION HAD OCCURRED AND THE STOP WAS NOT REASONABLE UNDER THE CIRCUMSTANCES IN VIOLATION OF MR. BARNARD’S STATE AND FEDERAL RIGHTS?
- WHETHER THE MAJORITY OPINION OF THE COURT OF APPEALS MUST BE REVERSED AND THE TRIAL COURT DENIAL OF THE MOTION TO SUPPRESS MR. BARNARD’S STATEMENTS MUST BE OVERTURNED BECAUSE THE STATEMENTS WERE INVOLUNTARILY GIVEN AS A RESULT OF CUSTODIAL INTERROGATION IN VIOLATION OF MR. BARNARD’S STATE AND FEDERAL RIGHTS?
- WHETHER THIS CASE SHOULD BE REMANDED TO THE TRIAL COURT TO DETERMINE WHETHER THE EVIDENCE DERIVED FROM THE SEARCH OF MR. BARNARD AFTER THE CONTROLLED BUY RESULTED FROM A CONSENSUAL AND VOLUNTARY SEARCH?
STATEMENT OF THE CASE
On 7 February 2005, the Buncombe County Grand Jury issued four separate indictments charging Defendant-Appellant Kenneth Barnard with two counts of possession for Schedule II controlled substance and two counts of achieving the status of an habitual felon. (R pp. 13-16) This case came before the Honorable James U. Downs, Superior Court Judge presiding, during the 30 March 2005 Criminal Session of the SuperiorCourtofBuncombeCounty, on Mr. Barnard’s to compel discovery. (R pp. 17, 33-112, 115-19) The transcript of that hearing is referenced as MT. (R p. 8) This case came for trial before the Judge Downs during the 4 April 2005 Criminal Session of the Superior Court of Buncombe County. (R p. 1) The trial transcript is referenced as TT. (R p. 9) Following jury selection and presentation of evidence, the jury on 6 April 2005 returned a verdict finding Mr. Barnard guilty of two counts of possession of a Schedule II controlled substance. (R pp. 164-65) On that same date, Mr. Barnard entered a plea of guilty to one count of achieving the status of an habitual felon. (R pp. 166-69) Judge Downs entered judgment on that same day. Mr. Barnard’s convictions for possession of a controlled substance were consolidated and he was sentenced as an habitual felon to a term of 168 to 211 months imprisonment. (R pp. 170-73) On 8 April 2005, the remaining habitual felon charge was dismissed without leave. (R p. 174) Mr. Barnard timely entered written notice of appeal on 15 April 2005. (R p. 175) On 18 April 2005, an amended notice of appeal was entered. (R p. 176) The record on appeal was filed in the Court of Appeals on 10 February 2006, docketed on 1 March 2006, and mailed to the parties on 8 March 2006. Defendant’s Brief was filed 15 May 2006. The State’s Brief was filed 14 July 2006.
On 19 June 2007, in an opinion by Chief Judge Martin in which Judge Tyson joined, the Court of Appeals issued a decision finding no error in the stop of Mr. Barnard, no error in the admission of the evidence seized as a result of the stop, and no error in the admission of Mr. Barnard’s custodial statements. Judge Calabria dissented, finding error in the stop of Mr. Barnard, error in the admission of the evidence seized as a result of the stop, error in the admission of Mr. Barnard’s custodial statements, and that the case should be remanded to determine whether the evidence derived from the search of Mr. Barnard after the controlled buy resulted from a consensual and voluntary search. State v. Barnard, ___ N.C. App. ___, 645 S.E.2d 780, 2007 N.C. App. LEXIS 1307 (2007). Mr. Barnard entered notice of appeal in this Court on 21 July 2007 based on Judge Calabria’s dissent.
STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW
Mr. Barnard appeals as of right pursuant to N.C. Gen. Stat. § 7A-30(2) from a dissent in the Court of Appeals.
STATEMENT OF THE FACTS
The evidence presented at the suppression hearing and trial by the State and the Defendant tended to show that Asheville Police Department (APD) Officer Brett Maltby was traveling northbound and observed the vehicle Defendant Kenneth Barnard was driving stopped at a red light at the intersection of Coxe and Hilliard Avenues at or about 12:15 AM on 2 December 2004. (TT pp. 8-9, 11, 13, 229-231) In the opinion of Officer Maltby, that area of town is a high crime area with high instances of prostitution, breaking or entering, possession of drug paraphernalia, and possession and sales of illegal narcotics. (TT pp. 10, 230) APD Officer Dwight Arrowood described the area as not highly occupied; most of the businesses are closed; a lot of foot traffic; and a nighttime activity area. (TT p. 197)
Officer Maltby was behind the vehicle in a marked patrol car. (TT pp. 11, 231) There was medium to low traffic. (TT p. 26) Officer Maltby did not see any other vehicles while Mr. Barnard was waiting at the light. (TT p. 26) Officer Maltby began to run a license check, which subsequently came back all right. (TT pp. 11, 27-28, 231) After the traffic light turned green for northbound traffic, the vehicle remained stopped at the light for approximately 30 seconds before making a legal left-hand turn into Hilliard Avenue traveling westbound. (TT pp. 11-13, 26-29, 231-32) Officer Maltby could not recall any vehicles other than his own behind Mr. Barnard at the stoplight. (TT pp. 26, 280-81) Mr. Maltby did not blow his horn at Mr. Barnard to move. (TT pp. 27, 29, 281) In the opinion of Officer Maltby, the delayed reaction is an indicator of impairment. (TT pp. 12, 232) Officer Maltby activated his blue light and stopped the vehicle for impeding traffic. (TT pp. 13, 28, 232, 280-81)
Officer Maltby approached Mr. Barnard and asked him for his license and registration. (TT pp. 13, 232) Officer Maltby described Mr. Barnard as nervous: breath was rapid and deep; shaking; stuttering; and voice was quivering. (TT pp. 14-15, 234) Mr. Barnard fumbled about the vehicle, frantically looking for his registration. (TT pp. 14, 233-34) Mr. Barnard gave a name and date of birth, and said he did not have his license and registration on him. (TT p. 14, 233-34) Officer Maltby smelled a slight odor of alcohol on him. (TT pp. 14-15, 234, 284) Officer Maltby ran the name and date of birth he was given through the system and found the name with a date of birth that did not match. (TT pp. 14-15, 29, 234-35, 282)
Officer Arrowood arrived as backup. (TT pp. 41-42, 197, 235) Officer Maltby was seated in his patrol car. (TT p. 198) Officer Maltby got out of the patrol car and met Officer Arrowood at the rear of Mr. Barnard’s vehicle. (TT p. 199) Officer Maltby told him he smelled the odor of alcohol about the vehicle. (TT pp. 16, 42, 199)
Officer Maltby again approached Mr. Barnard and asked him to step out of the vehicle. (TT pp. 15, 29, 235, 282) “I instructed him to place his hands on the roof of his vehicle and placed him in investigative detention.” (TT p. 16) Officer Maltby handcuffed Mr. Barnard, patted him down and seated him in the back seat of his patrol car. (TT pp. 16, 29, 43, 199-200, 235-36, 282-83) Officer Maltby told Officer Arrowood that there was an open container of alcohol in a brown bag on the passenger seat and that the driver was lying about his name. (TT pp. 16, 43, 199, 235-36)
Officer Maltby felt Mr. Barnard’s house arrest bracelet when he patted him down. (TT pp. 30, 283) Before Mr. Barnard was placed in the patrol car, Officer Maltby asked about the bracelet. (TT pp. 30-31) Mr. Barnard explained he was on house arrest. (TT p. 30)
Officer Arrowood searched the vehicle. (TT p. 200) Officer Arrowood saw the open container in the brown bag on the passenger seat. (TT p. 43) Officer Arrowood found a crack pipe and scouring pad to the right of the driver’s seat in the area of the transmission hump. (TT pp. 18, 43-44, 200-02) Officer Maltby testified that Officer Arrowood placed the pipe and pad on the roof of the vehicle for Officer Maltby to see. (TT pp. 18, 31, 244, 284) Officer Arrowood testified that he gave the pipe and pad to Officer Maltby by either handing it to him or by placing it on the windshield or hood of Officer Maltby’s car. (TT pp. 44, 202, 205, 236-37) Officer Maltby said the vehicle would need to be towed, and Officer Arrowood inventoried the vehicle and began preparing a tow sheet. (TT p. 203) Officer Arrowood then left to respond to another call. (TT pp. 44, 203) Permission was not asked to search the vehicle. (TT p. 32) The vehicle was towed. (TT pp. 19, 32)
While Officer Arrowood was searching and inventorying the car, Officer Maltby began to write citations for possession of an open container of alcohol, possession of drug paraphernalia and driving while license revoked. (TT pp. 17-18, 236, 244) Officer Maltby did not advise Mr. Barnard of his Miranda rights. (TT pp. 32, 285) Officer Maltby confronted Mr. Barnard about theses charges. (TT pp. 31, 284-85) Officer Maltby may have told Mr. Barnard he would be charged with driving while intoxicated, but was quickly able to determine that he was not impaired. (TT pp. 33, 286) Officer Maltby then asked Mr. Barnard if he had a drug habit. (TT pp. 18, 32, 245, 285) Mr. Barnard said yes, and “began to ask if there was anything he could do to help himself out in this situation.” (TT pp. 17-18, 245, 247, 284-85) Mr. Barnard said he could not have these charges right now. (TT pp. 31-32, 245)
Mr. Barnard mentioned he had purchased crack cocaine earlier that day from 70 Howard Street from a Willy “One-Arm Willy” Haywood Brewer, with whom Officer Maltby was familiar. (TT pp. 19, 21, 246-48, 286) Officer Maltby asked Mr. Barnard if he could return and purchase more crack cocaine at the same address. (TT p. 19) Officer Maltby transported Mr. Barnard back to the CentralDistrictResourceCenter, interviewed him and decided to use him as a confidential informant. (TT pp. 19-20, 248, 287) If Mr. Barnard made two controlled buys out of 70 Howard Street, Officer Maltby would not arrest him and would dispose of the citations for possession of an open container of alcohol, possession of drug paraphernalia and driving while license revoked. (TT pp. 20, 248-49, 286) Officer Maltby voided each of the citations. (TT pp. 286-87)
Officer Maltby removed the handcuffs and told Mr. Barnard he was not under arrest. (TT pp. 20, 32, 287-88) Mr. Barnard said he had purchased numerous times from One-Arm Willy, including that day and had smoked that day. (TT pp. 20-21, 246) Mr. Barnard said: “One-Arm Willy was the largest crack dealer in West Asheville, and he had no problem purchasing again from One-Arm Willy.” (TT pp. 20-21, 288)
Officer Maltby told Mr. Barnard he would be searched prior to and after the controlled buy. (TT pp. 33, 250-51) Around 2:00 AM, Officer Maltby’s superior, Sergeant Wally Welch, told APD Officer Eric Lauffer to change into civilian clothes to assist in the controlled buy. (TT pp. 35, 206-08, 249-50) Just Mr. Barnard and Officer Lauffer went to Howard Street. (TT pp. 21, 209) Officer Maltby searched Mr. Barnard before they left. (TT pp. 209, 213) Officer Lauffer pulled up in front of the house in an unmarked vehicle, and gave Mr. Barnard $20 to purchase crack cocaine. (TT pp. 208-10, 213-14, 289) Officer Maltby and Sergeant Welch were nearby in case backup was needed. (TT pp. 152, 290) Mr. Barnard was not given permission to buy any crack cocaine for his own personal use. (TT pp. 209, 300-01) Mr. Barnard got out of the vehicle and walked to the front door of the house, knocked and went inside. (TT pp. 210, 213-14) Approximately one minute later, Mr. Barnard came out, returned to the vehicle and got in and handed one rock of crack cocaine to Officer Lauffer. (TT pp. 209-10, 214-15) Officer Lauffer drove Mr. Barnard back to the CentralDistrictResourceCenter and turned him and the crack rock over to Officer Maltby. (TT pp. 21-22, 210, 216-17, 253) Officer Lauffer changed back into his uniform and went back to work. (TT pp. 210-11, 217, 225-26, 252)
Officer Maltby spoke briefly with Mr. Barnard about what had happened and what he has seen inside the house. (TT pp. 22, 252-53, 290, 292) Mr. Barnard did not tell Officer Maltby that he had obtained another crack rock. (TT p. 22) Officer Maltby searched Mr. Barnard and found another, smaller rock of crack cocaine in his right lower jeans pocket. (TT pp. 22, 257, 260, 290, 292) Officer Maltby was surprised and shocked. (TT pp. 22-23, 260-61) Mr. Barnard said he had received the other rock of crack cocaine as a front that he would pay for at a later date. (TT pp. 23, 261) Mr. Barnard said he did not believe Officer Maltby would search him again. (TT pp. 260-61, 290) At that time, Officer Maltby did not place Mr. Barnard in handcuffs, did not read him his Miranda rights, did not call his parole officer, did not take him to jail, and did not charge him with possession of cocaine. (TT pp. 23, 290-91)