Opinion
No. COA11–1069.
2012-05-15
STATE of North Carolina v. Charles Ryan LITTLE, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster, III, for the State. Cheshire, Parker, Schneider, & Bryan, PLLC, by Maitri “Mike” Klinkosum for defendant-appellant.
Appeal by defendant from judgment entered 16 February 2011 by Judge Christopher W. Bragg in Stanly County Superior Court. Heard in the Court of Appeals 1 May 2012. Attorney General Roy Cooper, by Assistant Attorney General J. Aldean Webster, III, for the State. Cheshire, Parker, Schneider, & Bryan, PLLC, by Maitri “Mike” Klinkosum for defendant-appellant.
STEELMAN, Judge.
The trial court properly concluded that defendant's motion to suppress should be denied based upon the doctrine of inevitable discovery.
I. Factual and Procedural Background
On 22 August 2008, Officer Phillip Burge of the Badin Police Department obtained a warrant to search a residence at 54 Willow Street in Badin, North Carolina. Upon request of the Badin police chief, Officer Burge contacted Detective Captain Swink of the Albemarle Police Department and orally requested the assistance of the Albemarle Police Department in executing the search warrant. At 6:00 p.m. on 22 August 2008, Officer Burge, Police Chief Brian Lambert, and two other officers of the Badin Police Department, along with Detectives Pope and Ridenhour of the Albemarle Police Department, executed the warrant. Officer Burge read the search warrant to defendant on the porch of the residence. Detective Pope of the Albemarle Police Department remained on the porch with defendant while the other officers entered the residence and performed the search. Each time an officer found an item of evidence, the officer called Officer Burge to examine the evidence. Officer Burge collected all of the evidence from the officers.
On 9 February 2009, defendant was indicted for trafficking in cocaine by possession (28 to 200 grams), possession with intent to sell and deliver cocaine, possession of drug paraphernalia, felony maintaining a dwelling for keeping and selling controlled substances, and possession of less than one half ounce of marijuana.
On 8 February 2011, defendant filed a motion seeking to exclude the testimony of the two Albemarle detectives and suppress any evidence seized by those officers. At the hearing on this motion, the State stipulated that no request in writing for assistance by the Albemarle Police Department was made in accordance with N.C. Gen.Stat. § 160A–288 or in accordance with a mutual aid agreement between the Badin and Albemarle Police Departments. By written order entered on 9 February 2011, the trial court denied defendant's motions, concluding that although the two Albemarle police officers were outside their territorial jurisdiction when they assisted with the search, thereby making the entry and search by one of those officers illegal in violation of N.C. Gen.Stat. § 15A–247, the search was constitutionally valid and the evidence seized as a result of Detective Ridenhour's search of the residence did not need to be excluded. The trial court also concluded that the evidence found by Detective Ridenhour would have inevitably been discovered by the Badin police officers who were participating in the search.
On 16 February 2011, the jury found defendant guilty of possession with intent to sell and deliver cocaine and not guilty of felony maintaining a dwelling and possession of marijuana. The trial court declared a mistrial as to the charges of trafficking by possession and possession of drug paraphernalia. Defendant was sentenced to an active term of 10–12 months on the possession with intent to sell and deliver cocaine charge.
Defendant appeals.
II. Denial of Motion to Suppress
In his only argument on appeal, defendant contends that the trial court erred in denying his motion to suppress. We disagree.
A. Standard of Review
We review a trial court's order denying a motion to suppress to determine whether the findings of fact are supported by competent evidence, and whether the trial court's conclusions of law are supported by the findings of fact. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). We review the court's conclusions of law de novo, allowing us to review the matter anew and substitute our own judgment for that of the trial tribunal. State v. Williams, 362 N.C. 628, 632–33, 669 S.E.2d 290, 294 (2008).
B. Analysis
Defendant does not challenge the court's findings of fact, and they thus are conclusive and not reviewable on appeal. State v. Washington, 193 N.C.App. 670, 672, 668 S.E.2d 622, 624 (2008. Defendant only challenges the court's conclusion of law that the evidence seized by Detective Ridenhour of the Albemarle Police Department would have inevitably been discovered by the officers of the Badin Police Department. He argues that if the officers of the Albemarle Police Department had not participated, then the search of the residence would never have occurred and the evidence would not have been inevitably discovered by the Badin police officers.
Evidence must be suppressed upon timely motion if (1) its exclusion is required by the Constitutions of the United States or North Carolina or (2) if it is “obtained as a result of a substantial violation of the provisions of [Chapter 15A].” N.C. Gen.Stat. § 15A–974(a) (2011). Defendant does not contest the court's conclusion of law that the search was constitutionally valid. We must thus decide whether the evidence should have been excluded because it was obtained as a result of a substantial violation of the provisions of Chapter 15A.
“In determining whether [N.C. Gen.Stat. § 15A–974] requires suppression, the reviewing court must consider the importance of the interest violated, the extent of the deviation from lawful conduct and whether the violation was willful, as well as the extent to which suppression will deter future violations.” State v. Simpson, 320 N.C. 313, 322, 357 S.E.2d 332, 337 (1987). In considering these factors, we note that this Court has stated “[i]t is not fundamentally unfair nor prejudicial to a defendant that evidence is obtained by police officers outside of their territorial jurisdiction while conducting” a criminal investigation. State v.. Afflerback, 46 N.C.App. 344, 347, 264 S.E.2d 784, 785 (1980). This Court has also held that administration of an Intoxilyzer test by a municipal police officer outside the officer's territorial jurisdiction was a “technical violation” of statutory procedure and was not so serious as to amount to a substantial violation of the defendant's rights mandating suppression of the evidence. State v. Pearson, 131 N.C.App. 315, 318, 507 S.E.2d 301, 302 (1998).
Moreover, if not for the failure of Officer Burge to request in writing the assistance of the Albemarle Police Department officers in strict compliance with the mutual aid agreement, the search would have been proper. SeeN.C. Gen.Stat. § 160A–288(a) (permitting one law enforcement agency to provide temporary assistance to another agency in enforcing the laws of North Carolina “if so requested in writing by the head of the requesting agency”). Although he did not make the request in writing, Officer Burgin did request the assistance of the Albemarle Police Department pursuant to the written mutual aid agreement between the two police departments which had been in existence since 2004. Finally, several of the items seized by Detective Ridenhour were in plain view and would have inevitably been seen by the officers of the Badin Police Department who were simultaneously searching the residence.
We conclude that the search by the Albemarle Police Department officer outside of his territorial jurisdiction did not constitute a substantial violation of Chapter 15A. We hold that the court properly denied the motion to suppress.
AFFIRMED. Chief Judge MARTIN and Judge THIGPEN concur.
Report per Rule 30(e).