712 S.E.2d 874 (N.C. 2011), 423A10, State v. Biber

Docket Nº:423A10.
Citation:712 S.E.2d 874, 365 N.C. 162
Opinion Judge:PARKER, Chief Justice.
Party Name:STATE of North Carolina v. Benzion BIBER.
Attorney:Roy Cooper, Attorney General, by Derrick C. Mertz, Assistant Attorney General, for the State-appellant. Staples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellee.
Judge Panel:Justice JACKSON did not participate
Case Date:June 16, 2011
Court:Supreme Court of North Carolina

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712 S.E.2d 874 (N.C. 2011)

365 N.C. 162

STATE of North Carolina


Benzion BIBER.

No. 423A10.

Supreme Court of North Carolina.

June 16, 2011

Heard in the Supreme Court on 3 May 2011.

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Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, __ N.C.App. __, 698 S.E.2d 476 (2010), reversing a judgment entered on 3 October 2008 by Judge Zoro J. Guice, Jr. in Superior Court, Buncombe County, and ordering a new trial. On 4 November 2010, the Supreme Court allowed the State's petition for discretionary review as to additional issues.

Roy Cooper, Attorney General, by Derrick C. Mertz, Assistant Attorney General, for the State-appellant.

Staples S. Hughes, Appellate Defender, by Barbara S. Blackman, Assistant Appellate Defender, for defendant-appellee.

PARKER, Chief Justice.

Defendant was indicted for felonious possession of cocaine, a Schedule II controlled substance under the North Carolina Controlled Substances Act. Prior to trial defendant filed a motion to suppress evidence, alleging that (i) Asheville Police officers violated his constitutional rights by searching the motel room in which he and others were

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present without consent and without a search warrant and (ii) the officers lacked probable cause to arrest him for possession of an alleged controlled substance. After receiving evidence and arguments of counsel at the hearing on defendant's motion to suppress, the trial court denied the motion, making findings of fact and conclusions of law from the bench, which were reduced to writing in an order entered on 14 November 2008. Before court adjourned, defendant entered a guilty plea to possession of a Schedule II controlled substance, while reserving his right to appeal the trial court's denial of the motion to suppress. Defendant was sentenced to six to eight months' imprisonment, suspended for twenty-four months with supervised probation for the first twelve months and unsupervised probation for the remainder of the suspension, provided all conditions of probation were satisfied. Defendant gave timely notice of appeal to the Court of Appeals.

Based on the uncontroverted evidence presented by the State at the suppression hearing, the trial court made the following findings of fact. On or about 8 September 2007, Sharon Hensley rented Room 312 at a Motel 6 in Asheville, North Carolina. When Hensley checked in, she disclosed that she and one other person would be occupying the room. The motel clerk did not obtain any information regarding the identity of the other person. Cheryl Harvin was a general manager of the motel and lived on the premises.

On the morning of 9 September 2007, Hensley came to Harvin and reported that people were doing drugs in her room and that people were in her room whom she did not want to be there. Hensley asked Harvin to check the room. In response to Hensley's complaint, Harvin contacted the Asheville Police Department and relayed that Hensley had complained about people being in her room who were involved in drug activity. Officers Alan Presnell and Michelle Spinda responded to the dispatcher's call to go to the motel.

After meeting with Harvin at the motel office, the officers followed Harvin to Room 312. Harvin knocked on the door. The door was then opened, and Harvin saw defendant Benzion Biber standing near the doorway or close to the door. Harvin also saw two other people in the room. These two individuals were females who were later identified as Tammy Meadows and Candice Moose. Hensley was not in the room, and Harvin did not recognize any of these people. Harvin had a conversation with defendant. After Harvin's conversation with defendant, the officers appeared behind her at the motel room door. There was then additional activity in the room with the individuals moving around. Neither Officer Presnell nor Officer Spinda heard the conversation between Harvin and defendant. After the door was opened, no one told Harvin or the police that they could not come into the room. Through the open doorway, both officers could see two females inside the room. Officer Spinda noticed that one of the women was seated on a bed, holding a glass pipe in her hand by her side. Both officers observed this female rise quickly from the bed, run into the bathroom, and close the door. Officer Spinda went to the bathroom door and asked the female to come out. Before the female complied, Officer Spinda heard the toilet flush. When the female emerged, Officer Spinda had her sit on the bed. Officer Spinda then went into the bathroom, where she saw a single edge razor blade in the toilet. Upon doing a more thorough search of the bathroom, Officer Spinda found a clear plastic bag in the light fixture. The plastic bag contained a white powder which Officer Spinda believed, based on her years of experience as a police officer and her prior experience with other defendants involved in drug activity, to be cocaine or methamphetamine. Officer Spinda also found a brown box in the bathroom. Other items of drug paraphernalia were found in the room and on the persons of the two females. A bag containing male clothing was also found in the room, and defendant stated the bag was his.

After the female ran into the bathroom, Officer Presnell saw a push rod used for crack cocaine and burn screens on the bed where the female had been seated. These items were lying in plain view when Officer Presnell stepped to the open door. Based on his experience as a police officer and prior

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involvement with drug activity, Officer Presnell recognized these items as being consistent with the use of controlled substances. At the time Officer Presnell observed these items, he had not entered the motel room but...

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