State v. Lombardo, 130A81

CourtUnited States State Supreme Court of North Carolina
Citation295 S.E.2d 399,306 N.C. 594
Decision Date05 October 1982
Docket NumberNo. 130A81,130A81
PartiesSTATE of North Carolina v. Dennis LOMBARDO.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Frank P. Graham, Raleigh, for the State.

Herman E. Gaskins, Washington, and Joel Hirschhorn, Miami, Fla., admitted pro hac vice, for defendant-appellant.

CARLTON, Justice.

I.

A.

In light of our holding below that the exclusionary rule is not applicable in probation revocation hearings, an extensive recitation of the facts in this case is unnecessary. However, in order to address the erroneous reasoning of the Court of Appeals, we summarize the essential facts.

Defendant was convicted of felonious sale and delivery of marijuana, a violation of G.S. 90-95(a)(1), in the Superior Court, Hyde County, on 13 August 1979. He received a five-year prison sentence which was suspended. Defendant was placed on probation. One of the conditions of probation was that defendant not have in his possession or control during the five years of probation any controlled substance as defined in Chapter 90 of the North Carolina General Statutes, unless prescribed by a medical doctor and dispensed by a physician or pharmacist.

Fifteen days later, defendant was arrested at Miami International Airport for possession of marijuana. 1 The circumstances leading up to that arrest are not contested. The stipulated facts are as follows: Officer William Johnson of the Dade County Public Safety Department saw defendant at about 5:00 p. m. standing on the sidewalk outside the National Airlines Terminal at Miami International Airport. Defendant was holding a suitbag and briefcase in one hand and a ticket in the other. He appeared nervous and impatient. Defendant then set down his luggage, walked over to a porter and began talking with him. Johnson moved closer, saw that defendant had a baggage claim check, and learned that defendant was en route to New Orleans. Johnson noticed that defendant also had a brown American Tourister suitcase on the sidewalk and overheard the defendant tell the porter he was concerned that this suitcase, which had already been checked for the flight, might not get aboard the plane which was to leave in ten minutes. After showing the porter his ticket and requesting that the suitcase be placed aboard the plane, Johnson watched the defendant carry his briefcase, suitbag and ticket into the terminal. Defendant stopped, set down his luggage and examined his ticket. Johnson thought he saw defendant put the claim check "either down the front of his pants or in his watch pocket." Johnson noted that defendant's jeans "were very tight." Defendant looked around nervously and continued through the airport. At this point, Johnson got another officer, Det. D'Azevedo, to join him. The two officers then followed the defendant toward the boarding area. D'Azevedo displayed his badge to defendant and asked to speak to him. Defendant stopped. D'Azevedo asked defendant to show him his ticket and identification. Defendant appeared pale and sweaty. He gave D'Azevedo his ticket and his Florida driver's license. Defendant's hands shook so violently that he nearly dropped the license. D'Azevedo turned around and began writing down the information. Johnson, still standing behind the defendant, then watched the defendant place his hand, which was trembling violently, into the front of his pants and then, with what appeared to be a claim check in his hand, into the back of his tight-fitting blue jeans. Johnson then moved, grabbed both of defendant's arms and seized his check. Meanwhile, D'Azevedo observed that the name on defendant's ticket did not match the name on his driver's license. At this point, Johnson left to procure the suitcase that went with the claim check he had seized from the defendant. The defendant then asked D'Azevedo, "Am I under arrest, because if I'm not, I'm leaving." D'Azevedo told him he was not free to leave.

The officers obtained the services of the U. S. Customs narcotics detector dog unit. After retrieving the defendant's suitcase, they placed it among three other suitcases randomly selected. A narcotics detector dog then "alerted" to the presence of a narcotic odor coming from defendant's suitcase. Defendant was informed of this and placed under arrest for possession of an unknown controlled substance of unknown quantity. About half an hour later defendant and his luggage were transported to another station. During this trip Johnson and another officer questioned defendant about prior arrests and other matters relating to this case, although neither officer had informed defendant of his constitutional rights. D'Azevedo asked for defendant's consent to search his briefcase and suitbag; defendant refused to give his consent. D'Azevedo had another dog at the second station inspect defendant's briefcase and suitbag along with an unrelated briefcase placed with them. This dog indicated narcotics in both defendant's briefcase and his suitbag.

A search warrant was obtained for the three pieces of luggage based on the "alerts" by the two U. S. Customs dogs. The suitcase and briefcase were forced open because defendant would not give the officers the combinations for the locks. About twenty grams of marijuana were found in the suitcase; no narcotics were found in the briefcase or suitbag.

Defendant's probation officer instituted a revocation hearing in North Carolina based on the Miami arrest. Defendant moved to suppress any evidence obtained from that arrest on the ground that it had been unconstitutionally obtained. Defendant's motion was granted by Judge Brown and the State appealed.

The Court of Appeals reversed and remanded, holding that Judge Brown erred in treating the matter as a warrantless search when the record disclosed that the search of defendant's luggage in Miami was made pursuant to a search warrant. Its reasoning was then based on the presumption that the search warrant was valid because it did not appear in the record. The court concluded: "In the present case, the search warrant does not appear of record, and the record before us demonstrates that defendant offered no evidence of facts with which to overcome the presumption of regularity of the search warrant or to overcome the resulting prima facie evidence of the reasonableness of the search." 52 N.C.App. at 321, 278 S.E.2d at 321 (1981).

The Court of Appeals' reasoning is erroneous. First, the court failed to initially determine whether the information used to obtain the warrant was procured through an unconstitutional seizure. If the information was so obtained then the warrant and the search conducted under it were illegal and the evidence obtained from them was "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 416-17, 9 L.Ed.2d 441, 453-55 (1963). As such, the evidence would be inadmissible if the exclusionary rule is applied to probation revocation hearings.

Second, a careful reading of the two opinions of this Court cited by the Court of Appeals in support of its application of the presumption of regularity indicates the Court of Appeals misunderstood the presumption. These opinions demonstrate that the presumption is applicable only in situations where the defendant challenges the validity of a search warrant that was not introduced into evidence on the ground that the warrant itself does not conform to technical statutory requirements. State v. Spillars, 280 N.C. 341, 350-51, 185 S.E.2d 881, 887 (1972) (addressing contention that an affidavit must be attached at all times to the search warrant); State v. Shermer, 216 N.C. 719, 721, 6 S.E.2d 529, 530 (1940) (discussing whether an affidavit used to support a warrant must be signed or the attesting person examined). See also State v. McGowan, 243 N.C. 431, 433, 90 S.E.2d 703, 705 (1956) (deciding whether a warrant is defective if it is not signed by one authorized to issue it).

Moreover, the Court of Appeals failed to recognize two other factors that must be examined before the presumption of regularity will apply: the presumption will operate only when the facts in the record do not indicate the occurrence of any irregularities and no objection to the validity of the warrant has been raised in a timely fashion. In State v. McGowan, this Court explained the operation of the presumption of regularity:

In this case neither the State nor the defendant introduced the warrant in evidence. If nothing else appears and if no objection to the validity of the warrant had been raised in the Superior Court, we would be justified in presuming the officers of the law performed their legal duties and that the warrant was legal and valid. (Citations omitted.) In this case, however, something else does appear and the validity of the warrant was challenged in the Superior Court.

243 N.C. at 433, 90 S.E.2d at 705 (1956) (original emphasis).

In the case at bar the record plainly discloses that defendant made a timely objection to the validity of the warrant when defense counsel filed a motion to suppress the evidence obtained under the warrant on the basis of the seizure of defendant at the airport. Indeed, the thrust of defendant's arguments before this Court and the Court of Appeals has been directed to the constitutionality of that initial seizure--the threshold issue the Court of Appeals failed to address--and the applicability of the "fruit of the poisonous tree" doctrine. Moreover, the uncontroverted facts to which both parties stipulated plainly raise the question of the validity of defendant's initial seizure at the airport. Hence, the Court of Appeals erred in relying on the presumption of regularity of search warrants not introduced into evidence.

II.
A.

As noted above, defendant's primary contention from the outset has been that he was unconstitutionally seized in the Miami airport in violation of the fourth and fourteenth amendments. He relies...

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  • Scott v. Pennsylvania Bd. of Probation and Parole
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  • Off the Mapp: parole revocation hearings and the Fourth Amendment.
    • United States
    • Journal of Criminal Law and Criminology Vol. 89 No. 3, March 1999
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