State v Johnson
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-325 NORTH CAROLINA COURT OF APPEALS Filed: 1 November 2011 STATE OF NORTH CAROLINA v. Buncombe County Nos. 09 CRS 542-44, 52759, and 55628-31 LEMAR DARIUS JOHNSON Appeal by defendant from judgments entered 15 July 2010 by Judge Bradley B. Letts in Buncombe County Superior Court. Heard in the Court of Appeals 28 September 2011. Attorney General Roy Cooper, by Special General Marc Bernstein, for the State. Deputy Attorney from judgments William B. Gibson, for defendant-appellant. ERVIN, Judge. Defendant Lemar Darius Johnson appeals sentencing him to an active term of imprisonment based upon his convictions for possession of a firearm by a convicted felon and to a consecutive suspended sentence based on his consolidated convictions for possession of marijuana with the intent to sell or deliver, possession of drug paraphernalia, and maintaining a dwelling for substances. the On purpose appeal, of keeping Defendant or selling contends that controlled the trial -2court s judgments rested upon the erroneous denial of his motions to suppress statements that he made after being taken into custody and various items of physical evidence seized from a room in an apartment occupied by his mother. After careful consideration trial of Defendant s challenges to the court s judgments in light of the record and the applicable law, we conclude that the trial court s judgments should remain undisturbed. I. Factual Background A. Substantive Facts On the morning of 29 April 2009, officers of the Asheville Police Department s Gang Task Force were investigating an anonymous threat that had allegedly been made against a judicial official by an individual known as Twitty. Since Defendant was known to be one of Twitty s associates, the officers went to 21 River Glen Drive, an address which Defendant had given as his residence at the time of a traffic stop several months earlier. At the time that the investigating officers arrived at 21 Glen River Drive, they knew that drug activity had been reported to have been occurring at that location. After the investigating officers arrived at 21 River Glen Drive, Defendant s mother, Phyllis Harris, answered the door. Although Ms. Harris denied that Defendant was present, she -3consented to a search of the residence for Defendant or Twitty. Upon entering the apartment, detected an odor of marijuana. investigating officers The odor became stronger as the officers entered the first bedroom on the left. At that time, the officers observed a backpack on the floor from which an odor of marijuana emanated and from which small bags, described as apple seed bags, protruded. The investigating officers recognized these apple seed bags as items frequently used for the purpose of packaging controlled substances. articles of adult male clothing, adult male In addition, shoes, and correspondence addressed to Defendant at 21 River Glen Drive were observed in plain view in the bedroom. After making these observations, Officer Brett Maltby opened the backpack, looked inside, and observed two mason jars containing a leafy, green substance officers believed to be marijuana. which the investigating The officers did not remove, open, or analyze the mason jars, their contents, or anything else in the backpack at that time. Instead, while Officers Maltby and Leo McCabe left to obtain a search warrant, Detective Michael Lamb and Officers Louis Tomasetti and Brandon Morgan remained at 21 River Glen Drive for the purpose of securing the residence. -4When Officer Tomasetti left the residence to get lunch for the officers, apartment he observed complex. Defendant Officer jogging through the asked Defendant to Tomasetti accompany him to 21 River Glen Drive, handcuffed Defendant, and escorted him to the residence. After waiving his Miranda rights, Defendant made several statements to the investigating officers, including admissions that he smokes marijuana but does not sell it and that he owned a small amount of marijuana and the backpack containing the mason jars. After the issuance of a search warrant authorizing a search of the residence at 21 River Glen Drive, investigating officers seized a number of items of evidence, including the contents of the backpack and a firearm. B. Procedural History On 26 February 2009, a Magistrate s Order was issued charging Defendant with possessing marijuana on that date with the intent to sell, deliver, or manufacture. Magistrate s Orders were issued charging On 29 April 2009, Defendant committing the following offenses on that date: 1) possession of marijuana with the intent to manufacture, sell, or deliver; 2) knowingly and intentionally keeping or maintaining a dwelling house resorted to by persons using controlled substances; with -53) possessing a firearm after having been convicted of a felony; and 4) knowingly using or possessing drug paraphernalia. On 14 September 2009, the Buncombe County grand jury returned bills of indictment charging Defendant with possession of marijuana with the intent to sell or deliver and possession of drug paraphernalia on 26 February 2009, possession of marijuana with the intent to sell or deliver, maintaining a dwelling house for the purpose of keeping or selling marijuana, possession of a firearm by a convicted felon, felony possession of marijuana, and possession of drug paraphernalia on 29 April 2009. On 30 October 2009, Defendant moved to suppress certain statements made by him and evidence seized from his person at the time that he was taken into custody on 29 April 2009 on the grounds that they had been obtained as the result of an unlawful arrest. Defendant s suppression motion came on for hearing at the 25 January 2010 criminal session of the Superior Court of Buncombe County conclusion initial of before the suppression Judge hearing motion, Alan held Judge Z. with Thornburg. respect Thornburg to At the Defendant s entered an order finding that the officers had probable cause to arrest Defendant and that his suppression motion should be denied. On 9 July 2010, Defendant filed a second suppression motion, in which he sought the suppression of various items of -6physical evidence seized from the residence at 21 River Glen Drive on 29 April 2010. Defendant s second suppression motion came on for hearing before the trial court on 12 July 2010. At the conclusion of the hearing held with respect to Defendant s second suppression motion, the trial court, after suppressing certain evidence seized from Defendant s computer, denied the remainder of Defendant s motion. Following Defendant the entered denial a of his negotiated second plea of suppression guilty to motion, possessing marijuana with the intent to sell or deliver and possessing drug paraphernalia on 26 February 2009 and to possessing marijuana with the intent to sell or deliver, possessing a firearm despite having a prior felony conviction, possessing drug paraphernalia, and maintaining a dwelling where drugs are kept or used on 29 April 2009.1 At the time that Defendant entered his pleas of guilty, he reserved the right to seek appellate review of the trial court s rulings concerning his suppression motions. July 2010, Defendant to the 16 trial court to months 20 entered judgments imprisonment based On 15 sentencing upon his conviction for possession of a firearm by a felon, consolidating the remaining convictions for judgment, and sentencing Defendant 1 In return for Defendant s guilty pleas, the State agreed to dismiss two counts of felony possession of marijuana and to make certain sentencing concessions. -7to a consecutive term of 6 to 8 months imprisonment based upon those convictions. The trial court suspended the second of these two sentences on the condition that Defendant successfully complete 30 months of supervised probation. Defendant noted an appeal to this Court from the trial court s judgments. II. Legal Analysis A. Standard of Review On appeal, Defendant challenges the decisions by Judge Thornburg and the trial court to deny his suppression motions. According to N.C. Gen. Stat. ยง 15A-977(f), trial judges are required to make findings of fact and conclusions of law in the course of ruling on a suppression motion. a denial of a motion to suppress is Appellate review of limited to determining whether the trial court s findings of fact are supported by competent evidence, whether the findings of fact support the conclusions of law, legally correct. and whether the conclusions of law are State v. Trapp, 110 N.C. App. 584, 587, 430 S.E.2d 484, 486 (1993) (citing State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)). In challenging the lawfulness of the orders denying his second suppression motion, Defendant contends that Findings of Fact Nos. 51, 86, 88, and 90 are, in actuality, conclusions of -8law and that, to the extent that they are properly classified as factual findings, they lack the necessary evidentiary support. The classification of a determination as either a finding of fact or a conclusion of law is admittedly difficult. As a general rule, however, any determination requiring the exercise of judgment, see Plott v. Plott, 313 N.C. 63, 74, 326 S.E.2d 863, 870 (1985), or the application of legal principles, see Quick v. Quick, 305 N.C. 446, 452, 290 S.E.2d 653, 657-58 (1982), is more properly classified a conclusion of law. Any determination reached through logical reasoning from the evidentiary facts is more properly classified a finding of fact. Quick, 305 N.C. at 451, 290 S.E.2d at 657-58 (quoting Woodard v. Mordecai, 234 N.C. 463, 472, 67 S.E.2d 639, 645 (1951)). In re Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675 (1997). As a result of the fact that the findings in question result from a process involving logical reasoning rather than constituting simple statements of fact, we agree with Defendant that Findings of Fact Nos. 51, 86, 88, and 90 are conclusions of law and will treat them as such throughout the remainder of this opinion. B. Probable Cause for Search Warrant In second challenging suppression the trial motion, court s Defendant decision to contends deny that his the investigating officers initial intrusion into the backpack was unlawful because it was not authorized by a properly issued search warrant and because the investigating officers lacked the -9probable cause needed to support the issuance of a warrant authorizing a search of the 21 River Glen Drive apartment until they discovered the mason jars apparently containing marijuana at the time that they opened the backpack. As a result, Defendant contends that the trial court erred by denying his second suppression motion. We disagree. The Fourth Amendment to the United States Constitution and Article I, Section 20 of the North Carolina Constitution guarantee the right to be free from unreasonable searches and seizures. According to the United States Supreme Court, the constitutional seizures private protections include property the be against requirement performed unreasonable that pursuant searches normally to a searches search issued in compliance with the Warrant Clause. and of warrant Arkansas v. Sanders, 442 U.S. 753, 758, 99 S. Ct. 2586, 2590, 61 L. Ed.2d 235, 241 (1979). A valid search warrant must be based on probable cause, defined as a reasonable ground for belief of guilt. Carroll v. United States, 267 U.S. 132, 161, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 (1925) (quoting McCarthy v. De Armit, 99 Pa. 63, 69 (1881)). Although there are exceptions to the warrant requirement, the few situations in which a search may be conducted in the absence of a warrant have been carefully delineated. Arkansas v. Sanders, 442 U.S. at 760, 99 S. Ct. at -102591, 61 L. inevitable Ed.2d at discovery 242. Among rule, which these exceptions applies when is the the police would have obtained that evidence if no misconduct had taken place. Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 2509, 81 L. Ed.2d 377, 387 (1984). As a result, evidence which would inevitably have been discovered despite the occurrence of otherwise unlawful police conduct is not subject to suppression. Id. at 448, 104 S. Ct. at 2511, 81 L. Ed.2d at 390. In the present case, the investigating officers came to the residence at 21 River Glen Drive during the course of their search for Twitty. After receiving permission to search the residence for Defendant or Twitty, the officers detected an odor of clothing, marijuana and and observed correspondence view in a bedroom. drug addressed paraphernalia, to Defendant male in plain As the trial court determined, the available evidence, exclusive of the mason jars containing a substance believed to be marijuana, provided ample justification for the issuance Greenwood, of the 301 requested N.C. 705, search 708, 273 warrant. S.E.2d See 438, State 441 v. (1981) (holding that an officer s detection of the odor of marijuana in a vehicle is sufficient to establish probable cause to search that vehicle requested for search marijuana). warrant, After investigating the issuance officers of would the have -11inevitably discovered the two mason jars of marijuana located within the closed portion of the backpack and the other evidence that Defendant sought to have suppressed, including the firearm. We reach this conclusion for a number of reasons, including the fact that the search warrant that the investigating officers ultimately obtained specifically authorized them to search for and seize weapons to include but not [be] limited to: hand guns, shot guns, long rifle, auto weapons (both hand held and shoulder fired); paraphernalia result, the suppression controlled located trial motion anywhere court on substance[s;] within the correctly denied basis the the of and drug residence. As Defendant s inevitable a second discovery rule. C. Statements by Defendant Incident to Arrest Secondly, Defendant contends that Judge Thornburg erred by denying his motion to suppress the statements that he made to investigating Defendant officers contends after that, in he the was detained. absence of In the essence, information obtained as a result of the discovery of mason jars apparently containing marijuana in the backpack, the investigating officers lacked probable cause to place him under arrest. We disagree. An arrest is constitutionally valid whenever there exists probable cause to make it. State v. Wooten, 34 N.C. App. 85, -1288, 237 S.E.2d 301, 304 (1977). A showing of probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. State v. Riggs, 328 N.C. 213, 219, 400 S.E.2d 429, 433 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct. 2317, 2335 n.13, 76 L. Ed. 2d 527, 552 n.13 (1983)). Probable cause exists when there is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant cautious man in believing the accused to be guilty. a State v. Streeter, 283 N.C. 203, 207, 195 S.E.2d 502, 505 (1973). At the time that Defendant was apprehended, investigating officers had detected or observed an odor of marijuana, drug paraphernalia, male clothing and shoes, and correspondence addressed to Defendant in plain view in a room located in a residence at which which Defendant earlier. Defendant s mother answered the door and had listed as his residence only two months In addition, investigating officers had received an anonymous tip regarding drug activity involving a black male with dreadlocks who resided in the apartments in question. Finally, Defendant had previous drug-related convictions. In light of these facts and circumstances, we conclude that there was ample justification for Defendant s arrest for possession of drug paraphernalia and maintaining a dwelling at which -13controlled substances consideration marijuana. of the were mason used jars or that sold without apparently any contained As a result, Judge Thornburg did not err by denying Defendant s first suppression motion. III. Conclusion Thus, for the reasons set forth above, we conclude that Judge Thornburg and the trial Defendant s motions to suppress. court not err in denying As a result, the trial court s judgments should remain undisturbed. AFFIRMED. Judges STEPHENS and BEASLEY concur. Report per Rule 30(e). did
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