In re S.W.
| Decision Date | 05 July 2005 |
| Docket Number | No. COA04-1138.,COA04-1138. |
| Citation | 614 S.E.2d 424 |
| Parties | In the Matter of S.W. |
| Court | North Carolina Supreme Court |
S.W. ("juvenile") appeals from adjudication and dispositional orders finding him delinquent for possession with intent to sell or deliver a schedule VI substance. We affirm.
On 2 December 2003, the juvenile walked by Durham County Deputy Sheriff and School Resource Officer Eric Wade Carpenter ("Deputy Carpenter") at Riverside High School. Deputy Carpenter noticed a strong odor of marijuana emanating from the juvenile, and requested the juvenile to accompany him in the hallway. Deputy Carpenter located two school administrators, Assistant Principal Travis Taylor ("Assistant Principal Taylor") and Assistant Principal Dan Davis ("Assistant Principal Davis"). Deputy Carpenter asked Assistant Principals Taylor and Davis and two unidentified students to accompany him and the juvenile into the school's weight room. There, Deputy Carpenter asked the juvenile if he "had anything on him." The juvenile responded, "no." Deputy Carpenter asked the juvenile, "do you mind if I search?" Again, the juvenile responded, "no." Deputy Carpenter conducted a search and requested the juvenile to empty his pockets. While emptying his pockets, the juvenile produced a plastic bag that containing ten small plastic bags of marijuana.
On 17 December 2003, a juvenile petition was filed alleging the juvenile possessed with intent to sell or deliver a schedule VI substance in violation of N.C. Gen.Stat. § 90-95(a)(1). During the hearing, Deputy Carpenter testified for the State and the juvenile testified on his own behalf. The trial court found the juvenile to be delinquent and placed him on level I supervised probation for six months. The juvenile appeals.
The juvenile argues the trial court erred by: (1) denying his motion to suppress evidence obtained during an alleged unlawful search; and (2) failing to provide him with a reliable and accurate transcript of his hearing in violation of his United States and North Carolina Constitutional rights.
The juvenile argues the trial court should have granted his motion to suppress evidence obtained during an alleged unlawful search. We disagree.
We note initially the juvenile properly preserved his assignment of error by objecting when the trial court denied his motion to suppress in conformity with the amended North Carolina Rules of Evidence 103. N.C. Gen.Stat. § 8C-1, Rule 103 (2003); 2003 N.C. Sess. Laws ch. 101, §§ 1-2 (effective 1 October 2003); see also State v. Rose, ___ N.C.App. ___, ___, 612 S.E.2d 336, 339 (2005) (No. COA04-353) ().
Our review is limited to whether the trial court's findings of fact are supported by competent evidence. State v. Tappe, 139 N.C.App. 33, 38, 533 S.E.2d 262, 264-65 (2000). If competent evidence exists in the record, the trial court's findings of fact are binding upon appeal. Id. Our review is focused upon whether those findings of fact support the trial court's conclusions of law. Id."Nevertheless, the conclusions of law drawn from the facts found are not binding on the appellate court." State v. Pruitt, 286 N.C. 442, 454, 212 S.E.2d 92, 100 (1975) (citations omitted).
The United States Supreme Court discussed warrantless searches of students at school in New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) ().
Under ordinary circumstances, a search of a student by a teacher or other school official will be "justified at its inception" when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.
Id. at 341-42, 105 S.Ct. at 743, 83 L.Ed.2d at 734-35.
Applying the T.L.O. standard, this Court found it permissible to conduct a search of a student based upon a school's investigation or at the direction of a school official, in the furtherance of well established educational and safety goals. In re D.D., 146 N.C.App. 309, 318, 554 S.E.2d 346, 352 (citations omitted), appeal dismissed and disc. rev. denied, 354 N.C. 572, 558 S.E.2d 867 (2001). More recently, we held
[w]hile the holding in T.L.O. was limited to searches by school administrators and officials, our Court has recently adopted an extension of this reasonableness standard to searches conducted by law enforcement officials. We have since held that the T.L.O. standard governs searches conducted by resource officers working "`in conjunction with' school officials," where these officers are primarily responsible to the school district rather than the local police department.
In re J.F.M., ___ N.C.App. ___, ___, 607 S.E.2d 304, 307 (citing In re D.D., 146 N.C.App. at 320, 554 S.E.2d at 353-54 (citations
omitted)), disc. rev. denied, 359 N.C. 411, 612 S.E.2d 320 (2005).
Courts draw a clear distinction between the aforementioned categories of cases and those cases in which outside law enforcement officers search students as part of an independent investigation or in which school official[s] search students at the request or behest of the outside law enforcement officers and law enforcement agencies. Courts do not apply T.L.O. to these cases but instead require the traditional probable cause requirement to justify the search.
In re D.D., 146 N.C.App. at 318, 554 S.E.2d at 352 (internal citation omitted).
Deputy Carpenter was an employee of the Durham County Sheriff's Department. He was assigned to permanent full-time duty as the Riverside High School resource officer. See In re J.F.M., ___ N.C.App. at ___, 607 S.E.2d at 307 (). Deputy Carpenter assisted school officials with school discipline matters and taught law enforcement related subjects. Id. Deputy Carpenter was exclusively a school resource officer, who was present in the school hallways during school hours and was furthering the school's educational related goals when he stopped the juvenile. Id.
Deputy Carpenter was not an outside officer conducting an investigation. See id.; see also T.L.O., 469 U.S. at 341-42, 105 S.Ct. at 742-43, 83 L.Ed.2d at 734-35. Deputy Carpenter did not conduct the investigation at the behest of an outside officer who was investigating a non-school related crime. In maintaining a proper educational environment, Deputy Carpenter's employment as a resource officer mandates that he help maintain a drug free environment at the school. When the juvenile walked by Deputy Carpenter in the hall, Deputy Carpenter smelled a "strong odor" of marijuana. Deputy Carpenter had a reasonable suspicion the juvenile possessed marijuana in violation of State law and the school's rules. T.L.O., 469 U.S. at 341-42, 105 S.Ct. at 742-43, 83 L.Ed.2d at 734. Deputy Carpenter was working in conjunction with school officials and did not need to obtain the juvenile's consent to search him. In re J.F.M., ___ N.C.App. at ___, 607 S.E.2d at 307. The search of the juvenile was limited to a "pat down" and the juvenile emptying his pockets, which produced a plastic bag containing ten small plastic bags of marijuana.
After having smelled marijuana on the juvenile, Deputy Carpenter had reasonable grounds to suspect a search would turn up evidence the juvenile violated or was violating the law and or school rules. The search was reasonably related to the objective and was not excessively intrusive in light of the age and gender of the juvenile and the nature of the suspicion. T.L.O., 469 U.S. at 341-42, 105 S.Ct. at 742-43, 83 L.Ed.2d at 734-35. Evidence tended to show the juvenile consented to the search and neither his United States nor North Carolina Constitutional rights were violated. The search could have been performed without his consent. The trial court's denial of the juvenile's motion to suppress was supported by competent evidence. In re J.F.M., ___ N.C.App. at ___, 607 S.E.2d at 307; see also Tappe, 139 N.C.App. at 38, 533 S.E.2d at 264-65. This assignment of error is overruled.
The juvenile contends he should be granted a new hearing due to the incomplete transcript of his adjudication. We disagree.
There is a presumption of regularity in a trial. State v. Sanders, 280 N.C. 67, 72, 185 S.E.2d 137, 140 (1971). In order to overcome this presumption, it is necessary for the defendant to include or call our attention to matters which constitute material and reversible error in the record on appeal. Id.
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