State v. McNeill, COA04-281.

• Decision Date: 07 June 2005
• Docket Number: No. COA04-281.,COA04-281.
• Parties: STATE of North Carolina v. Corey McNEILL.
• Court: North Carolina Supreme Court

Page 43

613 S.E.2d 43

STATE of North Carolina v. Corey McNEILL.

No. COA04-281.

Court of Appeals of North Carolina.

June 7, 2005.

Appeal by defendant from judgment entered 20 May 2003 by Judge Wiley F. Bowen in Harnett County Superior Court. Heard in the Court of Appeals 16 November 2004.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Martin T. McCracken, for the State.

Robert W. Ewing, Winston-Salem, for defendant-appellant.

ELMORE, Judge.

Defendant was convicted of several drug related offenses. He appeals to this Court on the basis that his suppression motion was first granted, then denied, and that his habitual felon indictment was supported by two misdemeanors instead of three felonies. We hold that defendant's trial was free of error.

Defendant resides in a mobile home in Harnett County situated back off of a road, near another mobile home and a beauty parlor. After a confidential informant told the Harnett County Sheriff's Department that defendant had drugs within the last 48 hours, the sheriff's department acquired a search warrant for the property. Before executing the warrant, deputies and other officers conducted surveillance of the home via a car on the road and an open field in the back of the home. During the short interval of surveillance officers observed two cars come to the house and leave. When each car arrived, defendant would come out of the house, go to some shrubbery in the back, pick something up, and then give it to each driver. Each incident was videotaped by an officer in the field.

Upon executing the search warrant the sheriff's department discovered marijuana, cocaine, and digital scales covered in the leaves near the shrubbery defendant had frequented. Defendant was arrested and indicted for possession of more than one and one-half ounces of marijuana, possession with intent to sell or deliver marijuana, and being an habitual felon. Defendant was also indicted for possession with intent to sell and distribute cocaine; however, the jury found him not guilty of the charge.

Defense counsel made a motion to suppress the drugs and scales found outside near the shrubbery due to a defective warrant. After a hearing on the matter, the trial court agreed and granted defendant's motion to suppress. Defendant did not make a motion to dismiss. However, after the court granted defendant's motion to suppress, the State then continued to argue the admissibility of the evidence under the Fourth Amendment.

THE COURT: So then there's still pending a motion to suppress? Motion to suppress is allowed.

DEFENSE: Thank you, Your Honor.

STATE: We ask Your Honor to rule on the admissibility of the evidence in that case prior to trial.

THE COURT: What do you mean?

...

STATE: The admissibility of the evidence, Your Honor. Despite the search warrant being suppressed, I believe that the evidence is otherwise admissible.

... [The court then questioned the State on whether it was arguing constructive possession, an issue which would be for the jury to decide.]

STATE: I don't have any problems showing possession, Your Honor. It's the location of the cocaine and the marijuana some 25 yards from the house, next to a field and whether —

THE COURT: Was it in the curtilage?

STATE: That's going to be the question, Your Honor.

THE COURT: Okay. You may proceed.

The State's position was that since the drugs were found beyond the curtilage of the home, where no privacy rights exist, the evidence should be admissible despite its suppression on the basis of the warrant. However, following its presentation of evidence on the location of the drugs, the court orally denied the State's motion to admit the drugs on the basis that they were not seized in violation of the Fourth Amendment.

THE COURT: I'm not going to rule on the admissibility of the evidence because I don't know-nobody's connected this man based on the hearing that I've heard.

STATE: Well, I would ask Your Honor to find that the evidence seized was not seized in violation of the Fourth Amendment.

THE COURT: Motion is denied.

Immediately after the denial, the case was called and a jury was impaneled.

As part of its case in chief, the State called several of the officers who had conducted the surveillance, executed the warrant, and subsequently arrested defendant. The officers testified as to what they saw, and a portion of the videotape was entered into evidence. One of the more veteran officers testified that upon seizing the bags in the leaves, he knew it was marijuana. The trial court allowed this testimony over defendant's objection. However, when that officer testified that the other recovered substance was cocaine, the trial court sustained defendant's objections. Still, the State elicited testimony as to where the drugs were located, that an officer thought it was marijuana, and the State also showed the bags and containers the drugs were found in. Although allowing the witnesses to testify as to the apparently suppressed evidence, the trial court sustained defendant's objection to having the drugs admitted into evidence.

Next, the State sought to introduce a lab report containing an analysis and weight of the substances recovered. Defendant objected. The court dismissed the jury, and for the first time, defense counsel reminded the court of its earlier ruling to suppress all the evidence seized at the home. The State, again, briefly argued that the drugs were admissible because they were seized beyond the curtilage of the home. The trial court then questioned defendant as to whether he had an objection to the lab report being introduced. Defendant responded that he did not, but that his objection was to the fact that already suppressed evidence was being introduced to the jury. Defendant did not ask for a mistrial.

The trial court did not make any explicit reference to the fact that it had reconsidered its earlier suppression and was now, based on the evidence presented at trial, going to reverse that preliminary decision and allow the evidence to be submitted. The trial court then called the jury back in and defendant presented a continual objection to the identification of what was seized from the house.

Following the introduction of the lab report, the officer connected the results of the tests, that the recovered substances were actually marijuana and cocaine, to the State's exhibits. The State then moved that the drugs, containers, and report be admitted and, over defendant's objection, they were. Eighteen days after the trial concluded, the trial court entered a written order determining that: 1) the affidavit supporting the warrant was insufficient to establish probable cause, but 2) the drugs and scales were recovered from shrubbery that was beyond the curtilage of defendant's home. The trial court concluded that defendant had no right to privacy in the shrubbery where the evidence was recovered, and thus the evidence was admissible.

Defendant contends that it was prejudicial error for the court to grant his suppression motion without written order; allow the evidence subject to the motion to suppress to be introduced at trial; then following the trial enter a written order with findings of fact and conclusions of law supporting admission of the evidence on the basis that it was seized beyond the curtilage of the home. We disagree.

Defendant argues that under the plain language of section 15A-979(a), the trial court erred in allowing evidence into trial that was subject to a ruling granting suppression. N.C. Gen.Stat. § 15A-971 et seq. governs motions to suppress evidence and notes that these statutes are the "exclusive method" of challenging evidence seized in violation of either the United States Constitution or the North Carolina Constitution, or also evidence seized in a substantial violation of the Criminal Procedure Act. N.C. Gen.Stat. §§ 15A-979(d) and 15A-974 (2003); c.f. State v. Tate, 300 N.C. 180, 182-83, 265 S.E.2d 223, 225 (1980) (noting that motions to suppress based on grounds other than violations of the Criminal Procedure Act or the Constitution may not be governed exclusively by Article 53). Section 15A-979(a) states that, "[u]pon granting a motion to suppress evidence the judge must order that the evidence in question be excluded in the criminal action pending against the defendant." N.C. Gen.Stat. § 15A-979(a) (2003) (emphasis added).

The State suggests that the pre-trial oral ruling suppressing the evidence was not "granting" the motion, such that section 15A-979(a) is triggered, but instead foreshadowing the court's inclination. The State's argument rests on the fact that a motion to suppress is a motion in limine, and any ruling on a motion in limine is not final, but instead may be revisited during trial. The State contends that the trial court changed its earlier ruling based on the testimony and other evidence presented at trial and properly admitted the drugs.

Even though the State's heavy reliance on State v. Locklear, 145 N.C.App. 447, 551 S.E.2d 196 (2001), may not control our decision here,¹ we conclude that our case law supporting the State's argument is well established. Our Supreme Court's opinion in Tate, 300 N.C. at 182, 265 S.E.2d at 225, classified motions to suppress as a type of motion in limine."Article 53 of Chapter 15A deals with a specific type of a motion in limine and that is the motion in limine to suppress evidence.... The fact that it is a motion to suppress denotes the type of motion that has been made. The fact that it is also a motion in limine denotes the timing of the motion regardless of its type." Id. And, "[a] ruling on a motion in limine is a preliminary or interlocutory decision which the trial court can change if circumstances develop which make it necessary." State v. Lamb, 321 N.C. 633, 649, 365 S.E.2d 600, 608 (1988) (quoted with approval in State v. Smith, 352 N.C. 531, 553, 532 S.E.2d 773, 787 (2000), cert. denied, 532 U.S....