State v. Degraphenreed

• Decision Date: 04 September 2018
• Docket Number: No. COA17-1377,COA17-1377
• Citation: 261 N.C.App. 235,820 S.E.2d 331
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Demarko Donivan DEGRAPHENREED

261 N.C.App. 235

820 S.E.2d 331

STATE of North Carolina

v.Demarko Donivan DEGRAPHENREED

No. COA17-1377

Court of Appeals of North Carolina.

Filed: September 4, 2018

Attorney General Joshua H. Stein, by Special Deputy Attorney General John A. Payne, for the State.

Allegra Collins, for defendant-appellant.

TYSON, Judge.

Demarko Donivan Degraphenreed ("Defendant") appeals the trial court's denial of his motion to suppress evidence seized from a search of a vehicle. We affirm.

I. Background

Between January and March 2015, Winston-Salem police officers conducted a drug investigation of Defendant, including surveillance of Defendant's residence located at 301 South Spring Street Unit-A, which is situated at the end of a dead-end street. During January 2015, a confidential police informant arranged over the telephone to meet with Defendant for the purpose of purchasing heroin. The confidential informant and Defendant purportedly agreed to meet at Defendant's residence. Law enforcement officers provided the confidential informant with an unspecified amount of money to conduct a controlled purchase and observed the confidential informant enter Defendant's residence. Afterwards, the confidential informant surrendered a quantity of heroin to the law enforcement officers, which the informant indicated he had purchased from Defendant.

A couple of months later, in March 2015, the same confidential informant conducted another controlled purchase of heroin at Defendant's residence on behalf of law enforcement. The informant obtained a quantity of heroin, which he advised the law enforcement officers he had purchased from Defendant. During the course of the three month surveillance of Defendant's residence, law enforcement officers observed the confidential informant purchase narcotics from Defendant at the trunk of a vehicle parked on the other side of the road from Defendant's residence. The vehicle was a black 1985 Mercury Grand Marquis (the "Grand Marquis"). Law enforcement officers had observed the vehicle being regularly parked across from Defendant's residence during the course of the three-month investigation.

Based upon the information obtained from the confidential informant, Winston-Salem Police Investigator Ashley Kimel applied for and was issued a search warrant for Defendant's residence at 301 South Spring Street Unit-A on 13 March 2015. Neither Officer Kimel's search warrant application nor the search warrant referenced the Grand Marquis vehicle.

Later on 13 March 2015, Officer Kimel, Officer Patrick McKaughan, and other law enforcement officers executed the search warrant for Defendant's residence. Upon arriving at Defendant's residence, Officer Kimel observed the Grand Marquis parked "adjacent from the residence, across the street." Officer Kimel observed that two of the tires of the Grand Marquis were partially on the road way and the vehicle was parked parallel to Defendant's residence. There was no other residence on the side of the street the Grand Marquis was parked upon, but a parking lot and a commercial building is located there. Surrounding Defendant's residence was a seven-to-eight-foot-high chain link fence around the sides and back of Defendant's yard and a short wooden fence in the front of the residence.

When the officers executed the search warrant, Officer McKaughan entered Defendant's residence while Officer Kimel crossed the street and approached the Grand Marquis. Officer Kimel requested Officer McKaughan bring his police K-9, named Sassy, outside to sniff the Grand Marquis. Officer McKaughan had Sassy sniff the outside of the Grand Marquis, and the K-9 gave a positive alert for narcotics. Officer Kimel then went inside Defendant's residence to obtain the keys to the Grand Marquis. Another officer inside the residence, Detective Luper, informed Officer Kimel that Defendant had requested a key ring be placed inside his pocket. Officer Kimel retrieved the key ring from Defendant's pocket and found one of the keys located on the key ring unlocked the Grand Marquis.

Upon searching the Grand Marquis, the officers discovered inside the trunk a backpack containing Defendant's wallet, which contained Defendant's social security card and bank cards. Inside the backpack, officers also found a Smith & Wesson .38 caliber revolver, a Raven Arms .25 caliber handgun, a Taurus Millennium PT111 Pro 9mm handgun, two orange prescription pill bottles, one of which contained a plastic bag containing a substance that tested positive for heroin.

The backpack also contained a box of Browning .25 caliber auto ammunition, a digital scale, and a plastic bag containing MDMA and 30 tablets of oxycodone. After searching the VIN number of the Grand Marquis, Officer Kimel discovered the vehicle was registered to Defendant's girlfriend. The officers then arrested Defendant.

On 6 July 2015, Defendant was indicted for trafficking opium or heroin by possession, possession with intent to sell and deliver heroin, possession with intent to sell and deliver oxycodone, possession of a firearm by a felon, possession of marijuana, and possession of drug paraphernalia. On 27 January 2016, Defendant filed a motion to suppress the evidence seized from the search of the Grand Marquis. In his motion to suppress, Defendant asserted the evidence obtained from the Grand Marquis should be suppressed because no probable cause existed to search the vehicle and the search warrant for Defendant's residence did not refer to a vehicle. Following a hearing on Defendant's motion to suppress, the trial court orally denied Defendant's motion on 21 March 2016.

The trial court filed a written order (the "Order") denying Defendant's motion to suppress on 23 March 2017. Based upon its findings of fact, the trial court concluded "there was probable cause to search the trunk of the 1985 Grand Marquis."

On 21 March 2017, Defendant pled guilty to all charges, while expressly reserving the right to appeal the denial of his motion to suppress. Defendant was sentenced for trafficking opium or heroin by possession from 70 to 93 months imprisonment and ordered to pay a $50,000 fine. On the charges for possession with intent to sell and deliver heroin, possession with intent to sell and deliver oxycodone, possession of a firearm by a felon, possession of marijuana, and possession of drug paraphernalia, Defendant was sentenced to 10 to 21 months imprisonment, to run concurrently with his sentence for trafficking opium or heroin by possession. Defendant filed timely notice of appeal.

II. Jurisdiction

Jurisdiction lies with this Court pursuant to N.C Gen. Stat. §§ 15A-1444(e) (2017) and 15A-979(b) (2017).

III. Issues

Defendant asserts the trial court erred by denying his motion to suppress. He argues the police officers searched the Grand Marquis vehicle without a search warrant and without probable cause, in violation of the Fourth Amendment of the United States Constitution, as applied to the states through the Fourteenth Amendment. U.S. Const. amend. XIV, § 1 ; State v. Sanders, 327 N.C. 319, 331, 395 S.E.2d 412, 420 (1990), cert. denied, 498 U.S. 1051, 111 S.Ct. 763, 112 L.Ed.2d 782 (1991) ("The fourth amendment as applied to the states through the fourteenth amendment protects citizens from unlawful searches and seizures committed by the government or its agents." (citation omitted) ).

Defendant argues, "the trial court's finding that the car was parked within the curtilage of Defendant's residence was unsupported by the evidence, and erroneous as a matter of law" and "the findings of fact which were supported by competent evidence did not support its conclusion of law that probable cause supported the search of the vehicle." Defendant also asserts, for the first time on appeal, the State failed to produce sufficient evidence of the K-9's reliability.

IV. Standard of Review

The scope of this Court's review of a trial court's order denying a motion to suppress is "strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Bone , 354 N.C. 1, 7, 550 S.E.2d 482, 486 (2001) (quoting State v. Cooke , 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) ), cert. denied , 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). The trial court's conclusions of law are reviewed de novo . State v. McCollum , 334 N.C. 208, 237, 433 S.E.2d 144, 160 (1993) (citation omitted).

"In reviewing the denial of a motion to suppress, we examine the evidence introduced at trial in the light most favorable to the State ...." State v. Hunter , 208 N.C. App. 506, 509, 703 S.E.2d 776, 779 (2010) (citation omitted).

V. Analysis

A. Curtilage

Regarding curtilage, the trial court concluded, in pertinent part:

16. The street in front of the residence is narrow and a dead end. The vehicle was routinely parked across the street, in effect becoming part of the curtilage of the premises , despite the house being surrounded by a fence. (Emphasis supplied).

17. Officer Kimel had probable cause to search the trunk of the Grand Marquis (curtilage or not ) after the dog alerted. (Emphasis supplied).

Although the trial court labeled this determination as a finding of fact, the issue of whether an area is located within the curtilage of a home is a question of law. See United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 1139–40, 94 L.Ed.2d 326, 334-335 (1987) (establishing a four-factor legal test to determine the boundaries of a home's curtilage). The labels "findings of fact" and "conclusions of law" employed by the lower court in a written order do not determine the nature of our standard of appellate review. See Peters v. Pennington , 210 N.C. App. 1, 15, 707 S.E.2d 724, 735 (2011) (reviewing what was labeled as a "conclusion of law" as a finding of fact). If the lower tribunal labels as a finding of...