In the North Carolina Court of Appeals

No.: COA09-1253 14TH JUDICIAL DISTRICT

IN THE NORTH CAROLINA COURT OF APPEALS

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)

IN THE MATTER OF )

) From DurhamCounty

D.L.D., ) No. 09 JB 19

Juvenile.)

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DEFENDANT-APPELLANT’SBRIEF

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INDEX

TABLE OF CASES AND AUTHORITIES...... iii

QUESTIONS PRESENTED...... 1

STATEMENT OF THE CASE...... 2

STATEMENT OF THE FACTS...... 4

STATEMENT OF GROUNDS FOR APPELLATE REVIEW...... 6

ARGUMENT...... 6

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE SEARCH OF D.L.D. 6

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE STATEMENT OF D.L.D. GIVEN OUTSIDE OF THE PRESENCE OF HIS PARENT AND WITHOUT NOTIFICATION OF HIS CONSTITUTIONAL RIGHTS 13

THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING THE EXPERT WITNESS TO TESTIFY OUTSIDE THE AREA OF THE WITNESS’S STATED EXPERTISE 16

THE TRIAL COURT ERRED IN ENTERING JUDGMENT AND DENYING THE MOTION TO DISMISS WHERE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE ENTRY OF THE ORDER 21

CONCLUSION ...... 24

CERTIFICATE OF SERVICE ...... 25

TABLE OF CASES AND AUTHORITIES

Hajmm v. House of Raeford Farms, Inc., 328 N.C. 578, 403 S.E.2d 483 (1991) 19

Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 597 S.E.2d 674 (2004) 17

In re B.D.N., 186 N.C. App. 108, 649 S.E.2d 913 (2007) 22

In the Matter of D.D., 146 N.C. App. 309, 554 S.E.2d 346 (2001) 7

In the Matter of I.R.T., 184 N.C. App. 579, 647 S.E.2d 129 (2007) 9, 12, 22

In re S.M., 190 N.C. App. 579, 660 S.E.2d 653 (2008)21

New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985) 6

Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980) 14

Sanford Unified School Dist. #1, et. al. v. Redding, ___ U.S. ___, 129 S. Ct. 2633, 174 L. Ed. 2d 354 (2009) 12

State v. Anderson,322 N.C. 22, 366 S.E.2d 459 (1988) 17

State v. Anderson, 175 N.C. App. 444, 624 S.E.2d 393 (2006) 18

State v. Barnhill, 166 N.C. App. 228, 601 S.E.2d 215 (2004) 6, 13

State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974)23

State v. Butler, 331 N.C. 227, 415 S.E.2d 179 (1992)10

State v. Chisholm, 90 N.C. App. 526, 369 S.E.2d 375 (1988) 19

State v. Davis, 305 U.S. 400, 290 S.E.2d 574 (1982)14

State v. Davis, 106 N.C. App. 596, 418 S.E.2d 263 (1992) 16

State v. Fletcher, 92 N.C. App. 50, 373 S.E.2d 681 (1988) 19

State v. Hales, 344 N.C. 419, 474 S.E.2d 328 (1996)18

State v. Holland, 150 N.C. App. 457, 566 S.E.2d 90 (2002) 18

State v. Locklear, 363 N.C. 438, 681 S.E.2d 293 (2009) 16

State v. McDougald, 18 N.C. App. 407, 197 S.E.2d 11 (1973) 23

State v. Morgan, 359 N.C. 131, 604 S.E.2d 886 (2004)18

State v. Morton, ___ N.C. App. ___, 679 S.E.2d 437 (2009) 10

State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980) 6

State v. Rose,323 N.C. 455, 373 S.E.2d 426 (1988)18

State v. Silvers,323 N.C. 646, 374 S.E.2d 858 (1989) 18

State v. Turner, 168 N.C. App. 152, 607 S.E.2d 19 (2005) 20

State v. Weeks,322 N.C. 152, 367 S.E.2d 895 (1988)18

State v. Williams, 71 N.C. App. 136, 321 S.E.2d 561 (1984) 23

State v. Williams, 355 N.C. 501, 565 S.E.2d 609 (2002) 19

N.C. Gen. Stat. § 7B-2101 (2009)...... 14

N.C. Gen. Stat. § 7B-2602 (2009)...... 6

N.C. Gen. Stat. § 8C-1, Rule 702(a) (2009)...... 16

N.C. Gen. Stat. § 90-95(a)(1) (2009)...... 22

QUESTIONS PRESENTED

WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE SEARCH OF D.L.D?

WHETHER THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE STATEMENT OF D.L.D. GIVEN OUTSIDE OF THE PRESENCE OF HIS PARENT AND WITHOUT NOTIFICATION OF HIS CONSTITUTIONAL RIGHTS?

WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING THE EXPERT WITNESS TO TESTIFY OUTSIDE THE AREA OF THE WITNESS’S STATED EXPERTISE?

WHETHER THE TRIAL COURT ERRED IN ENTERING JUDGMENT AND DENYING THE MOTION TO DISMISS WHERE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE ENTRY OF THE ORDER?

STATEMENT OF THE CASE

The juvenile D.L.D. was charged with the felony of possession with intent to sell or deliver marijuana in a Juvenile Petition filed on January 21, 2009. (R.p.2-3) A Notice of Hearing was issued on January 21, 2009and served on January 23, 2009. (R.p.4-5) The Juvenile First Appearance was entered on January 30, 2009. (R.p.6) A Request and Motion for Discovery and Exculpatory Material was filed on February 2, 2009.(R.p.7-9) A witness list was filed on February 3, 2009. (R.p.10)

A Probable Cause hearing was held on February 11, 2009, and on that day the court entered a Juvenile Order Probable Cause Hearing finding probable cause to believe that D.L.D. committed the offense of possession with intent to sell and deliver marijuana and setting the hearing date for March 24, 2009. (R.p.11)

Defense counsel filed a Motion to Suppress Statements and Physical Evidence and to Request Hearing on March 19, 2009. (R.p.13-16) Defense counsel filed a Motion and Order to Produce a Copy of Juvenile’s Probable Cause Hearing for Use by Juvenile’s Counsel on March 19, 2009. (R.p.17-19)

A Juvenile Family Data Sheet, Risk and Needs Assessments and Attendance Summary were filed on March 24, 2009. (R.p.20-40) An adjudication hearing was held on March 24, 2009 where the State of North Carolina admitted trial exhibits into evidence. (R.p.41-42) The court entered a Juvenile Adjudication Order in open court and filed on March 24, 2009. (R.p.43-44) On March 24, 2009, the court entered a Juvenile Level 1 and 2 Disposition Order. (R.p.45-49)

Notice of Appeal was filed on April 2, 2009. (R.p.50-51) An Appellate Entries form was filed April 2, 2009. (R.p.52-53) Appellate counsel was assigned on May 28, 2009. (R.p.54) The transcript was mailed to appellate counsel on June 30, 2009. The Proposed Record on Appeal was timely served on August 10, 2009. (R.p.58) The Record on Appeal was served on September 25, 2009, filed on September 25,2009 and docketed on October 6, 2009. (R.p. 1)

STATEMENT OF THE FACTS

On January 6, 2009, Corporal Raheem Aleem of the Durham County Sheriff’s Office was assigned to HillsideHigh School. (T.p. 4) Corporal Aleem and Assistant Principal Bob Barbour were conducting a separate investigation, unrelated to D.L.D., by watching the monitors for the school’s security cameras. (T.p. 4) On the video monitor, Corporal Aleem noticed a student, though not D.L.D., standing outside of a restroom. (T.p. 5, 7) Mr. Barbour and Corporal Aleem then went to the restroom to investigate. (T.p. 5)

D.L.D. was first seen leaving the restroom with two other students. (T.p. 6) D.L.D. turned and went back into the bathroom. (T.p. 6, 34) Corporal Aleem followed D.L.D. and saw him putting “something” in his pants. (T.p. 6) Corporal Aleem did not know what the object was. (T.p. 8) Corporal Aleem frisked D.L.D. and found in his pocketa smallcylindrical container, approximately three inches in length. (R.p. 41, T.p. 6, 30). The container was originally used for storing BB pellets. (R.p. 41, T.p. 6, 30) D.L.D. did not consent to the search. (T.p. 9) Inside the container were three small bags of green leafed material. (R.p. 41, T.p. 6, 15) Corporal Aleem, an expert in “marijuana identification,” identified the green leafed material as marijuana. (T.p. 6, 14)

The record is unclear as to what became of the other boys or the conclusion of the other investigation. D.L.D. was handcuffed and escorted to a conference room by Corporal Aleem, accompanied by Mr. Barbour. (T.p. 9, 15-16, 34) While Corporal Aleem and Mr. Barbour were speaking to D.L.D., D.L.D. was not informed of his right to remain silent, his right to have a parent present, or his right to an attorney. (T.p. 17, 20) Corporal Aleem conducted another, more thorough search of D.L.D. in the conference room while Mr. Barbour “just stood there and watched.” (T.p. 15, 35) The sum of fifty-nine dollars ($59.00) was found in D.L.D.’s pocket. (T.p. 15, 23) Aleem and Barbour did not ask any questions regarding the money. (T.p. 20) D.L.D. stated that the money was his mother’s rent money and not from selling drugs. (T.p. 15)

D.L.D. was arrested for possession of marijuana with the intent to sell or deliver. After presentation of the evidence to the judge, D.L.D. was adjudicated delinquent, and the trial entered a level two disposition. From that adjudication and disposition, D.L.D. appeals.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

This appeal is taken from a final Judgment of the DistrictCourtofDurhamCounty, pursuant to N.C. Gen. Stat. § 7B-2602(2009).

ARGUMENT

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE SEARCH OF D.L.D.

(Assignment of Error No. 1, R.p. 13-16; T.p.7-11)

The standard of review regarding a trial court’s ruling upon a motion to suppress is de novo as it requires this Court to review a legal conclusion. SeeState v. Barnhill, 166 N.C. App. 228, 601 S.E.2d 215 (2004). The trial court’s findings of fact are binding on appeal if supported by competent evidence. Id.

Here, the trial court made no written findings of fact or written order related to the motion to suppress, so we must analyze the court’s findings within the transcript of the hearing. SeeState v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980).

The United States Supreme Court, in New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985), established the standard for searches of students by school officials. That standard has since been adopted by every jurisdiction and requires the search be “reasonable under all the circumstances.” See In the Matter of D.D., 146 N.C. App. 309, 315, 554 S.E.2d 346, 350 (2001). Although T.L.O. specifically dealt with searches by school officials, several jurisdictions have addressed the issue of law enforcement involvement during school searches. See Id. at 317, 352. This Court stated that the T.L.O. standard of “reasonableness” applies a) when school officials initiate a search with minimal law enforcement involvement or b) when a school resource officer, employed by and responsible to the school district rather than a law enforcement agency, conducts a search to further the goals of the school. D.D., 146 N.C. App.at 318, 554 S.E.2d at 352. However, this Courtrecognized a “clear distinction between the aforementioned cases and those cases in which outside law enforcement officers search students as part of an independent investigation.” Id. The difference between searches by school personal or resource officers and those by outside law enforcement is that the purpose of the latter is to obtain evidence of a crime and not to maintain discipline or student safety. Id.at 318, 352-353.

Here, Corporal Aleem was not a school official or employed by the school board. Rather, he was working for the Durham County Sheriff’s Office on January 6, 2009. (T.p. 4) Corporal Aleem was assigned to HillsideHigh Schoolthat day. (emphasis added) (T.p.4) Corporal Aleem and the assistant principal were not viewing the monitors for general school safety reasons, but were conducting an “investigation,” unrelated to D.L.D., in the closet containing the monitors for the school’s surveillance cameras. (T.p.5) Given the officer’s employment, stated purpose for being at the school, and the fact that Corporal Aleem investigated D.L.D. in his capacity as law enforcement and not at the direction of the school official, Corporal Aleem was conductingan evidence gathering investigation requiring the traditional definitions and applications of “reasonable suspicion” and “probable cause” and not the T.L.O. standard of “reasonableness.”

Regardless of how the search and seizure is classified, neither reasonable suspicion, nor probable cause existed in this case. Corporal Aleem and Mr. Barbour decided to personally investigate the bathroom due to “numerous arrests” for marijuana and because a student that should have been in class was standing outside the bathroom. (T.p. 7) Nothing in the record indicates when those past arrests occurred. Juvenile D.L.D. was not seen on the surveillance camera standing outside the bathroom, nor was he one of the two individuals standing outside the bathroom when the officer arrived. (T.p. 7) D.L.D. was first seen leaving the restroom with two other students. (T.p. 7) There is no evidence that D.L.D.’spresence there was not allowed by school rules. Nothing in the record indicates any association between D.L.D. and the other students found by the restroom when Aleem and Barbour arrived. D.L.D. returned to the bathroom and placed an unidentified object in his pants upon Aleem’s arrival. (T.p. 8, 34) Corporal Aleem did not believe the item to be anything in particular. (T.p. 8) Corporal Aleem stated, “I didn’t know if it could have been a weapon. I didn’t know exactly what it was.” (T.p. 8) The officer also stated that, “[p]ursuant to our observation, the fact that he took flight, I conducted a frisk of his person.” (T.p. 6)

To seize the juvenile initially, the officer must have had reasonable suspicion that criminal activity was afoot. See In the Matter of: I.R.T., 184 N.C. App. 579, 585, 647 S.E.2d 129, 134 (2007). In I.R.T. the juvenile was outside of an apartment building where drug arrests had previously been made. Id. at 581, 132. The juvenile in I.R.T. looked at the officer, turned his head, and was not moving his mouth. Id. The officer then testified that based on his experience, those mannerisms often mean an individual is hiding crack cocaine in his or her mouth. Id. The Court held that the juvenile’s behavior, the high crime location, and the officer’s training and experience were sufficient to establish reasonable suspicion. Id.at 585, 135.

Here, D.L.D. was inside a school bathroom, not loitering outside a public, notorious high crime area. Corporal Aleem did not compare D.L.D.’s behavior with his past experience in arresting suspects. Corporal Aleem stopped D.L.D. because he returned to the restroom and put something in his pants. The officer had no idea what the item could have been, and the juvenile’s return to the restroom was not “flight” as that notion is typically defined. SeeState v. Butler, 331 N.C. 227, 415 S.E.2d 719 (1992) (defining “flight” as walking away from officers on the street). Here, D.L.D. returned to a restroom, a confined area not akin to a public street, from which he could not leave without walking past Aleem. These factors are not sufficient to create“reasonable suspicion” to seize D.L.D. It was prejudicial error for the trial court not to suppress the fruits of that unlawful seizure from being admitted into evidence.

To conduct a frisk, Corporal Aleem must demonstrate reasonable suspicion that D.L.D. was engaged in criminal activity and that D.L.D. was armed with a weapon. SeeState v. Morton, ___ N.C. App. ___, 679 S.E.2d 437, 442 (2009). As argued above, Corporal Aleem could not form reasonable suspicion of criminal activity based upon his observation of D.L.D. The remaining issue is whether a reasonable man in Corporal Aleem’s position would have been justified in believing that his safety, or the safety of others, was in danger. See Id., ___ N.C. App. at ___, 679 S.E.2d at 442. In Morton, whenhe saw the police officers, the defendant started jogging and was stopped in front of his grandmother’s house based on an uncorroborated tip that he had been involved in a shooting and several tips concerning his involvement in drug activity. Id. at 439. There was no evidence that the defendant had ever carried a weapon or that he posed a current danger to the officer’s safety. Id.at 444. The Court held that the pat-down of the defendant for weapons was unreasonable. Id.

Here, as in Morton, there was no evidence that D.L.D. had ever carried a weapon, was currently carrying a weapon, or otherwise posed a danger to anyone. Corporal Aleem had, at best, a generalized suspicion. He did not know what the item in D.L.D.’s hand could have been. (T.p. 8) Corporal Aleem did not articulate any reasons that would have justified the belief that D.L.D. was presently armed and dangerous. For those reasons the “frisk” of the D.L.D. should have been suppressed.

The more thoroughsearch of D.L.D.’s clothing at the bathroom and the search in the conference room required probable cause. See I.R.T., 184 N.C. App. at 586, 647 S.E.2d at 135 (citing State v. Pittman, 111 N.C. App. 808, 812, 433 S.E.2d 822, 824 (1993)). As argued above, based upon his observation of D.L.D., Aleem could not have formed a reasonable suspicion of criminal activity or a present danger to himself or others, much less the higher standard of probable cause.

Even if the Court decides that the T.L.O. standard of “reasonableness” is applicable, for the reasons stated above, that standard was also not met. In order for a search to meet the T.L.O. standard, the search must be both justified at its inception and reasonably related in scope to the reason for the initial interference. See D.D., 146 N.C. App. at 321, 554 S.E.2d at 354. Searches under T.L.O. must be supported only by reasonable suspicion and not the probable cause generally required for searches outside a school setting. See Safford Unified School District #1, et al. v. Redding, 129 S. Ct. 2633, 2639, 174 L. Ed. 2d 354, 361 (2009). The search of D.L.D. in the instant case was not reasonable under the T.L.O. standard for the same reasons Corporal Aleem lacked reasonable suspicion in the traditional sense. Aleem, based on his observation of D.L.D., did not have the reasonable suspicion of criminal activity or a violation of school rules that were required to justify a search of D.L.D.

The trial court erred in not denying D.L.D.’s motion to suppress the evidence obtained during his search and seizure. Denying the motion to suppress was highly prejudicial since it would have precluded the State from introducing any further evidence. As a result, D.L.D.’s adjudication of delinquency and entry of disposition should be vacated and reversed, or alternatively, D.L.D. should be granted a new trial.

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS THE STATEMENT OF D.L.D. GIVEN OUTSIDE THE PRESENCE OF HIS PARENT AND WITHOUT NOTIFICATION OF HIS CONSTITUTIONAL RIGHTS.

(Assignment of Error No. 2, R.p. 13-16, T.p. 15-21)

N.C. Gen. Stat. §7B-2101 states, in pertinent part, that prior to custodial interrogation a juvenile must be advised that he or she has the right to remain silent, statements made can be used against him or her in court, the juvenile has the right to have a parent present during questioning and the juvenile has the right to consult with an attorney. N.C. Gen. Stat. §7B-2101 (2009).

For a suspect to be “in custody” a reasonable person in the suspect’s position must believe he or she is not free to leave and terminate the interaction with law enforcement. SeeState v. Davis, 305 N.C. 400, 290 S.E.2d 574 (1982). Here, D.L.D. was certainly in police custody. He was handcuffed, escorted to the conference room by a law enforcement officer and an assistant principal, and not free to leave. (T.p. 16)

“Interrogation,” as defined by the United States Supreme Court, is not limited to questioning, but also applies to “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 308 (1980).

D.L.D. said that the $59.00 in cash found on his person was for his mother’s rent and not from selling drugs. (T.p. 20, 36) He made that statement while handcuffed and alone in a conference room with two authority figures, specifically an assistant principal and a law enforcement officer. (T.p. 20-22) Also, D.L.D. was being searched by Corporal Aleem after being stopped and accused of possessing contraband. Id. A reasonable juvenile in the same position would not instinctively know he had the right to remain silent. He or she also would not know that they had the option of consulting with a parent or attorney before being subjected to the functional equivalent of questioning. A reasonable juvenile in the same position would feel as if the authority figures were seeking an explanation for what had transpired thus far. Corporal Aleem and Assistant Principal Barbour placed D.L.D. in a situation designed, and reasonably likely, to illicit an incriminating response. D.L.D.’s statement about the money was an incriminating response because it lead the trial court to believe D.L.D. was trying to explain the presence of both the marijuana and the money. The statement by D.L.D. made it look to the trial court like he knew he was being accused of selling drugs. That statement should have been suppressed. The trial court’s failure to do so resulted in prejudicial error affecting D.L.D.’s constitutional rights. As a result, D.L.D.’s adjudication of delinquency and entry of disposition should be vacated and reversed, or alternatively, D.L.D. should be granted a new trial.

THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING THE EXPERT WITNESS TO TESTIFY OUTSIDE THE AREA OF WITNESS’S STATED EXPERTISE.

(Assignment of Error No. 3, T.p. 32)