State v. Reid, COA01-985.

• Decision Date: 16 July 2002
• Docket Number: No. COA01-985.,COA01-985.
• Citation: 566 S.E.2d 186,151 NC App. 420
• Parties: STATE of North Carolina v. Thomasina Denise REID.
• Court: North Carolina Court of Appeals

566 S.E.2d 186

151 NC App. 420

STATE of North Carolina v. Thomasina Denise REID.

No. COA01-985.

Court of Appeals of North Carolina.

July 16, 2002.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Joseph Ellis Herrin, for the State.

White and Crumpler, by F. Kevin Mauney, Winston-Salem, for defendant-appellant.

HUNTER, Judge.

Thomasina Denise Reid ("defendant") appeals from a judgment entered against her on the charge of trafficking by possession of cocaine. Defendant argues that the trial court erred in denying her motion to suppress, and that the trial court erred in its jury instructions. We affirm the denial of the motion to suppress and find no error at trial.

The evidence tended to show that on 20 March 2000, at approximately 9:00 or 9:30 p.m., approximately six to eight police officers executed a search warrant and forcibly entered an apartment leased by defendant at 4338 Grove Avenue, Apartment F, in Winston Salem, North Carolina. The police officers used a battering ram to break down the door. Approximately three or four individuals were found on the ground floor, and these individuals were detained. The officers also found a black male on the stairs coming down from the second floor. The officers also discovered defendant on the second floor leaving a bedroom with a wet sleeve. The officers subsequently discovered an unsealed plastic bag in a toilet on the second floor that was recycling after having been recently flushed, as well as drops of water from the bathroom to the bedroom from which defendant had exited. The bag contained a powder substance that had become wet, and which was later determined to be cocaine. The police officers also seized from the bedroom additional items such as digital scales, a pack of rolling paper, and additional plastic bags and a five dollar bill with cocaine residue.

Defendant was charged pursuant to N.C. Gen.Stat. § 90-95 (2001) with one count of trafficking by possession of cocaine, and one count of trafficking by transportation of cocaine. Defendant moved to suppress the evidence obtained during the execution of the search warrant, which motion was denied. At trial, the court granted defendant's motion to dismiss the trafficking by transportation charge at the conclusion of the State's evidence. Upon a jury verdict of guilty for trafficking by possession of more than twenty-eight but less than 200 grams of cocaine, the trial court entered judgment and sentenced defendant to a prison term of thirty-five to forty-two months and fined defendant $50,000.00. Defendant appeals.

On appeal, defendant argues: (1) the trial court erred in denying her motion to suppress the evidence obtained during the execution of the search warrant; (2) the trial court erred in denying her request to instruct the jury on the lesser included offense of trafficking by possession of less than twenty-eight grams of cocaine; and (3) the trial court erred in instructing the jury on the theory of "`acting in concert.'"

I.

Defendant argues that the trial court erred in denying her motion to suppress the evidence. Where a trial court conducts a hearing upon a motion to suppress made prior to trial, the trial court must make findings of fact. See N.C. Gen.Stat. § 15A-977(d) (2001). In reviewing the denial of a motion to suppress, we are limited to determining whether the trial court's findings of fact are supported by competent evidence and whether the findings of fact in turn support legally correct conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982).

Here, defendant presents two arguments in support of her contention that the trial court erred in denying her motion to suppress. We address each in turn.

A.

Defendant first argues that the trial court erred in denying the motion to suppress because there was insufficient evidence to constitute probable cause to justify the issuance of a search warrant. The search warrant for the apartment in question was issued upon an affidavit submitted by Officer Joe Adkins, Jr. of the Forsyth County Sheriff's Office, which affidavit stated, in pertinent part:

Members of the Forsyth County Sheriff's Narcotics Unit received information from a confidential reliable source (herein identified as CI regardless of sex) who stated that a white female named "Thomasina" and an Unknown Black Male are in the business of selling Cocaine from the residence located at 4338, apartment # F, Winston-Salem, North Carolina. The CI stated that he/she has observed "Thomasina" and the Unknown Black Male[ ] in possession of Cocaine within the past six (6) days.

...

[The CI made] a "controlled buy" ... from the residence of 4338-F Grove Avenue, Winston-Salem, North Carolina; within the past six (6) days.... The CI ... went to the location given while under the direct supervision and surveillance of the member of the ... Narcotics Unit, purchased the controlled substance and returned directly to the member with the controlled substances and/or money....

In each "controlled buy" the controlled substance tested positive for ... Cocaine.

Defendant argues that the information provided by Officer Adkins was insufficient because it did not indicate the identity of the specific person from whom "CI" had purchased cocaine, or whether such individual was likely to be present in the premises six days after the purchase.

The standard for a court reviewing the issuance of a search warrant is "whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant."

...

Whether an applicant has submitted sufficient evidence to establish probable cause to issue a search warrant is a "nontechnical, common-sense judgment[ ] of laymen applying a standard less demanding than those used in more formal legal proceedings." "The affidavit [in support of an application for a search warrant] is sufficient if it supplies reasonable cause to believe that the proposed search for evidence probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender."

...

Moreover, great deference is to be paid the magistrate's determination of probable cause, and reviewing courts "should not conduct a de novo review of the evidence to determine whether probable cause existed at the time the warrant was issued."

State v. Ledbetter, 120 N.C.App. 117, 121-22, 461 S.E.2d 341, 343-44 (1995) (citations omitted).

Here, the affidavit states: (1) that "CI" purchased cocaine from someone at the specific apartment in question within the previous six days; (2) that, according to "CI," a white female named "`Thomasina'" and a black male were in the business of selling cocaine from the apartment in question; and (3) that "CI" had witnessed "`Thomasina'" and the black male in possession of cocaine within the previous six days. Although defendant is correct that the affidavit does not specify the person from whom "CI" purchased the cocaine during the "`controlled buy,'" defendant has failed to set forth any authority to support the proposition that such a deficiency is material under these circumstances. We hold that the information in the affidavit was sufficient to establish probable cause and to support the issuance of the search warrant for the apartment in question. See N.C. Gen.Stat. § 15A-244(2) (2001) (the substantive core of an application for a search warrant is "[a] statement that there is probable cause to believe that items subject to seizure ... may be found in or upon a designated or described place, vehicle, or person"); State v. Smith, 124 N.C.App. 565, 570, 478 S.E.2d 237, 241 (1996) ("[t]he judicial official's decision pivots on whether the affidavits submitted to her supply probable cause that the illegal item[s] or evidence sought will be at the premises described when the search warrant is executed" (emphasis omitted)). Thus, the trial court did not err in denying the motion to suppress on this basis.

B.

Defendant also argues that the cocaine was obtained as the result of an illegal and unconstitutional forced entry, and that the trial court therefore should have suppressed the evidence pursuant to N.C. Gen. Stat. § 15A-974 (2001). We disagree.

At the hearing on defendant's motion to suppress, Officer Adkins testified that at approximately 9:00 p.m. on 20 March 2000, after obtaining a search warrant for the apartment in question, police officers including Officer Adkins proceeded to the front door of the apartment, knocked three times and announced "`Sheriff's Office, search warrant,' " then again knocked three times and made the same announcement. After waiting six to eight seconds, the police officers forcibly entered the apartment by breaking down the door with a battering ram. Based on Officer Adkins' testimony, the trial court found that "the officer had reason to believe that entry was being unreasonably denied or that no one was home or that evidence was being destroyed." The trial court did not make any findings as to the duration of time between the officers' announcement of their identity and purpose, and the forced entry into the apartment. The trial court concluded that the police officers had complied with the applicable statutes and that defendant's constitutional rights had not been violated, and, therefore, denied the motion to suppress.

The common law "`knock and announce'" principle has been codified at N.C. Gen.Stat. §§ 15A-251 and 15A-401(e)(1) and (2) (2001). State v. Knight, 340 N.C. 531, 542-43, 459 S.E.2d 481, 488-89 (1995). N.C. Gen.Stat. § 15A-249 (2001) requires an officer executing a search warrant, before entering the premises, to "give appropriate notice of his identity and purpose," and "[i]f it is unclear whether anyone is present at the premises to be searched, he must give the notice in a manner likely to be heard by anyone who is present." N.C. Gen.Stat. § 15A-249. N.C. Gen.Stat. §...