Opinion
No. COA11–1378.
2012-05-1
STATE of North Carolina v. Jeffery Gwyn TRIVETTE.
Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Mary March Exum, for defendant-appellant.
Appeal by defendant from judgment entered 14 March 2011 by Judge A. Moses Massey in Ashe County Superior Court. Heard in the Court of Appeals 24 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Joseph L. Hyde, for the State. Mary March Exum, for defendant-appellant.
CALABRIA, Judge.
Jeffrey Gwyn Trivette (“defendant”) appeals the trial court's denial of his motion to suppress. We affirm.
I. Background
On 6 February 2006, defendant was convicted of possession with intent to manufacture, sell, and deliver methamphetamine. The trial court sentenced defendant to a minimum of 10 months to a maximum of 12 months in the North Carolina Department of Correction (“the DOC”). That sentence was suspended and defendant was placed on 36 months of supervised probation. The terms and conditions of probation included a provision requiring him to submit at reasonable times to warrantless searches by a probation officer of his person, vehicle and premises.
On 7 July 2008, defendant's probation officer, Barry Cox (“Officer Cox”), and law enforcement officers from the Ashe County Sheriff's Department and the State Bureau of Investigation searched defendant's residence without a warrant. During the search, the officers discovered items used in the manufacture of methamphetamine in a crawlspace under defendant's residence and inside an outbuilding on defendant's property.
Defendant was arrested and indicted for manufacturing methamphetamine, possession of precursor chemicals, maintaining a dwelling place to keep controlled substances, felonious trafficking in drugs, and felony conspiracy. Defendant subsequently filed a motion to suppress the evidence uncovered during the 7 July 2008 search of his residence contending the evidence was illegally seized because (1) it was obtained without a search warrant and was unreasonable; and (2) the search was conducted by law enforcement officers in substantial violation of the provisions of N.C. Gen.Stat. §§ 15A1343 (b1)(7) and 15A–241 et seq.
On 15 July 2009, the trial court conducted a hearing on defendant's motion. On 1 September 2009, the trial court entered an order denying the motion to suppress. On 14 March 2011, pursuant to a plea arrangement with the State, defendant pled guilty to one count of manufacturing methamphetamine, one count of possession of precursor chemicals, and one count of maintaining a dwelling place to keep controlled substances. The remaining charges against defendant were dismissed. As part of the plea arrangement, defendant reserved the right to appeal the denial of his motion to suppress pursuant to N.C. Gen.Stat. § 15A–979(b). The trial court consolidated defendant's offenses and sentenced him to a minimum of 108 months to a maximum of 139 months in the NCDOC. Defendant appeals.
II. Motion to Suppress
Defendant's sole argument on appeal is that the trial court erred by denying his motion to suppress. Specifically, defendant contends that the search of his residence was not a probationary search under N.C. Gen.Stat. § 15A–1343 because it was not conducted under the direction of defendant's probation officer and there was no probable cause to otherwise justify the search. We disagree.
Our review of a trial court's order denying a motion to suppress is limited to a determination of whether the findings are supported by competent evidence, and whether those findings support the trial court's conclusions of law. 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, meaning we are able 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). A. Probationary Search
Defendant argues that the search of his residence was invalid because it was not conducted under the direction of his probation officer. When defendant was originally placed on probation in 2006, N.C. Gen.Stat. § 15A–1343(b1)(7) provided that as a special condition of probation a probationer could be required to
[s]ubmit at reasonable times to warrantless searches by a probation officer of his or her person and ... premises while the probationer is present, for purposes specified by the court and reasonably related to his or her probation supervision, but the probationer may not be required to submit to any other search that would otherwise be unlawful.
N.C. Gen.Stat. § 15A–1343 (b1)(7) (2005). A warrantless search under this statutory provision “cannot be conducted by law enforcement officers, but must be conducted by a probation officer. However, the presence and participation of police officers in a search conducted by a probation officer, pursuant to a condition of probation, does not, standing alone, render the search invalid.” State v. Church, 110 N.C.App. 569, 576, 430 S.E.2d 462, 466 (1993). A probation officer may obtain the assistance of law enforcement officers in conducting a warrantless probationary search. Id.
In its order denying defendant's motion to suppress, the trial court made the following findings of fact:
5. Prior to the search and during the course of Officer Cox's previous probationary visits to Defendant's home, Cox observed individuals visiting Defendant whom Officer Cox knew were or had been involved in illicit controlled substance activity. Further, Probation Officer Cox had detected a smell from the area around the home that based on his training and experience, was, or could be, associated with the manufacture of methamphetamine. Officer Cox had received eight hours of training in the recognition of methamphetamine labs and the use of methamphetamines to the dangers associated with it. While he did not consider himself an expert in analyzing and understanding methamphetamines, he recognized the dangers associated with its use and production. In light of his observations at the home and in recognition of his safety concerns, Probation Officer Cox consulted with officers of the Ashe County Sheriff's Department about assisting him in a warrantless search of Defendant's house and the buildings within its curtilage for possible illegal drug activity.
[5]. [sic] The search in question (the topic of Defendant's motion to suppress) was initiated and overseen by Officer Cox with significant technical and on the ground assistance of other law enforcement agencies.... Much of the involvement of the law enforcement officers and agents were [sic] elicited to assist with the breadth of the search that Probation Officer Cox intended to oversee and to insure the safety of all concerned.
These findings are supported by the testimony of Officer Cox. At the suppression hearing, Officer Cox testified that, while conducting previous surveillance upon defendant's residence, he had witnessed individuals who he knew had prior associations with methamphetamine and methamphetamine labs acting in a suspicious manner. As a result, Officer Cox approached Captain Chris Miller of the Ashe County Sheriff's Department and requested assistance in searching defendant's residence. Officer Cox testified that officers from the Sheriff's Department and the State Bureau of Investigation assisted him in conducting his warrantless probationary search. When asked by defense counsel why so many officers were necessary, Officer Cox explained:
Because if it is in fact a meth lab when you find it, it is very dangerous if you start breaking down the components. And it takes quite a bit of men to locate one if it is broken down. So it takes a lot of people and a lot of man hours to do this and to do this safely. So rather than go by myself or with another probation officer who is not meth lab certified, I brought along people that I knew were certified and knew how to handle the chemicals and the agents when they come across there, for our safety as well as for the probationer's safety, so nobody gets hurt.
Finally, Officer Cox testified that he personally participated in the search and discovered numerous items which were used in the manufacture of methamphetamine.
Officer Cox's testimony supports the trial court findings of fact that the warrantless search of defendant's residence was initiated and conducted by Officer Cox with the assistance of other law enforcement officers. These findings in turn support the trial court's conclusion that the search of defendant's residence was a valid probationary search. See Church, 110 N.C.App. at 576, 430 S.E.2d at 466 (When a “probation officer conducted the search of defendant's premises with the assistance of [other] officers,” the search did not violate N.C. Gen.Stat. § 15A–1343(b1)(7)). This argument is overruled. B. Probable Cause
Defendant additionally argues that the search of his residence was unreasonable because it was not supported by probable cause. Defendant's argument is premised upon his theory that the search of his residence was an invalid probationary search in that it was not conducted by a probation officer. As we have already determined that the search of defendant's residence was a valid probationary search, defendant's argument is without merit. N.C. Gen.Stat. § 15A1343 (b1)(7) does not require probable cause before a probationer can be searched; instead, the statute specifically requires probationers to “[s]ubmit at reasonable times to warrantless searches.” N.C. Gen.Stat. § 15A–1343 (b1)(7) (emphasis added); see also United States v. Midgette, 478 F.3d 616, 623–24 (4th Cir.2007) (recognizing that N.C. Gen.Stat. § 15A–1343(b1)(7) does not require even reasonable suspicion before the initiation of a probationary search). This argument is overruled.
III. Conclusion
The trial court's findings of fact were supported by competent evidence and supported the trial court's conclusions of law that Officer Cox, with the assistance of additional law enforcement, conducted a lawful probationary search of defendant's residence. As a result, it was unnecessary for the search to have been supported by probable cause. The trial court properly denied defendant's motion to suppress.
Affirmed. Judges STROUD and BEASLEY concur.
Report per Rule 30(e).