State Carolina v. Biber, 423A10.

Citation365 N.C. 162,712 S.E.2d 874
Decision Date16 June 2011
Docket NumberNo. 423A10.,423A10.
PartiesSTATE of North Carolinav.Benzion BIBER.
CourtUnited States State Supreme Court of North Carolina


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. Heard in the Supreme Court on 3 May 2011.

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 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 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 saw them through the door that had been opened in response to Harvin's knock.

While Officer Spinda tried to make contact with the female in the bathroom, Officer Presnell monitored defendant and the remaining female. Defendant insisted on continuing to walk around the room, and Officer Presnell told defendant to have a seat on the bed. At one point defendant stood up quickly and the officers drew their weapons. Once the three individuals were seated, Officer Presnell began a preliminary investigation to determine why the female ran, what they were doing there, who rented the room, and other facts. During this investigation defendant stated that the room was his. Officer Presnell observed that the package Officer Spinda retrieved from the bathroom was a clear plastic bag containing a white powder or substance that Officer Presnell believed was consistent with cocaine or methamphetamine. All three of the individuals were arrested for possession of a controlled substance and then taken to the Buncombe County jail. Officer Presnell transported defendant, and Officer Spinda transported the two females.

Upon reaching the jail's sally port, Officer Presnell informed defendant that if he had any controlled substances on his person, he needed to tell Officer Presnell, advising that charges more serious than mere possession would result if defendant were found to have brought contraband into the detention center. As he exited the patrol vehicle, defendant indicated he had something to give Officer Presnell and then handed what appeared to be two rocks of crack cocaine to the officer. When Officer Presnell asked defendant what this substance was, defendant identified it as “crack rocks.”

Authorities tested the white powder found in the Motel 6 bathroom and determined that it did not contain any controlled substances. Analysis revealed that the two suspected crack rocks were cocaine.

Based on these findings, the trial court concluded that the two Asheville police officers had probable cause to enter the motel room and conduct a further investigation and search of the room, that defendant lacked standing to complain of the search at issue, and that none of defendant's constitutional rights were violated. The trial court then denied defendant's motion to suppress.

In his appeal to the Court of Appeals, defendant's sole argument was that the trial court's ruling on his suppression motion was erroneous in that the officers lacked probable cause to arrest him for constructive possession of the powdery substance found in the motel room. Thus, defendant argued, evidence of the “crack rocks,” which defendant surrendered to Officer Presnell and for which defendant was convicted, should be excluded as the fruit of an unlawful seizure pursuant to Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). In support of this assertion, defendant cited six cases in which this Court found the evidence to be sufficient to convict those defendants for constructive possession of controlled substances. The Court of Appeals agreed.

In a divided opinion, the Court of Appeals reversed, holding that the trial court erred in denying defendant's motion to suppress. State v. Biber, –––N.C.App. ––––, ––––, ––––, 698 S.E.2d 476, 480, 484 (2010). Judge Steelman dissented, concluding that because the trial court made no findings of fact or conclusions of law on the issue of probable cause to arrest, raised in defendant's motion to suppress, the Court of Appeals should remand the case to the trial court for entry of an order containing findings of fact and conclusions of law on that issue. Id. at ––––, 698 S.E.2d at 485 (Steelman, J., dissenting).

The State appealed to this Court as of right based on Judge Steelman's dissent and also petitioned this Court for discretionary review on the issues of (i) whether the trial court's findings of fact supported probable cause to arrest defendant for possession of a controlled substance and (ii) whether the majority utilized an incorrect evidentiary standard to determine probable cause. We granted review on 4 November 2010, and now reverse.

On discretionary review before this Court, the State argues that the Court of Appeals applied the wrong legal analysis in...

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