State v. Rhodes
| Decision Date | 02 July 2002 |
| Docket Number | No. COA01-621.,COA01-621. |
| Citation | 565 S.E.2d 266,151 NC App. 208 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Brian Wendall RHODES |
Attorney General Roy Cooper, by Assistant Attorney General Melissa L. Trippe, for the State.
C. Orville Light, Eden, for defendant-appellant.
On 12 June 2000, defendant was indicted for possession with intent to manufacture, sell, and deliver marijuana and felony possession of marijuana. On 15 August 2000, defendant filed a motion to suppress evidence. After a hearing on 13 September 2000, the Honorable Peter M. McHugh denied defendant's motion. On 14 December 2000, a jury found defendant guilty of possession with intent to manufacture, sell, and deliver marijuana and felony possession of marijuana. The Honorable Henry E. Frye, Jr., sentenced defendant to a term of six to eight months incarceration for possession of marijuana and a consecutive sentence of six to eight months for possession with intent to manufacture, sell, and deliver marijuana. Defendant appeals.
At the suppression hearing, the evidence tended to show that on 13 January 2000, Ricky Lee Shelton was working as a paid informant for the Rockingham County Sheriff's Department. At approximately 4:30 p.m., Shelton called Detective F.K. Woods of the Rockingham County Sheriff's Department. Shelton informed Detective Woods about a possible drug transaction involving defendant. At approximately 6:00 p.m., Shelton met Detective Woods at Woods' office. From the office, Shelton paged defendant numerous times. Defendant called Shelton's cell phone. Detective Woods listened in on the conversation between defendant and Shelton. Defendant told Shelton that the marijuana would be in a detergent box inside the trash can outside defendant's home. Defendant instructed Shelton to take the marijuana from the trash can and in payment leave $1,150 in cash. After hearing this conversation, Detective Woods "got together with some other officers, and [the officers] set up a little plan."
During cross examination of Detective Woods at the suppression hearing, defense counsel established that "the plan" did not include procuring a search warrant:
After formulating the "take down" plan and deciding not to procure the warrant, Detective Woods and other officers followed Shelton to defendant's house. At the suppression hearing, Detective Woods' testified about what occurred once Shelton and the officers arrived at defendant's residence:
After hearing testimony from Detective Woods and argument from both the prosecutor and defense counsel, Judge HcHugh denied defendant's motion to suppress the marijuana.
After being told by defendant that the officers could search the house, the officers did so. A trained drug dog indicated that there was a controlled substance in defendant's bedroom dresser. Despite the dog's indication, no controlled substance was discovered. From the officers' search of the house, no evidence was seized.
On appeal, defendant contends that the trial court erred by: (1) denying defendant's motion to suppress evidence seized without a search warrant at defendant's home; (2) admitting out of court statements made by defendant; (3) admitting evidence of the indication by the drug dog on the dresser in defendant's house; and (4) restricting defense counsel's cross examination of the State's witness, Ricky Lee Shelton.
Defendant first assigns error to the trial court's denial of defendant's pre-trial motion to suppress the marijuana that was seized by Detective Woods. Without a warrant, Detective Woods seized marijuana from the outside trash can located beside the steps that led to the side-entry door to defendant's house.
The Fourth Amendment to the United States Constitution protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." See also N.C. Const. Art. I, § 19. "Searches conducted without warrants have been held unlawful `notwithstanding facts unquestionably showing probable cause,' for the Constitution requires that the deliberate, impartial judgment of a judicial officer ... be interposed between the citizen and the police...." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967) (citations omitted). "[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Id. See also State v. Williams, 299 N.C. 529, 531, 263 S.E.2d 571, 572 (1980)
.
In California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), the United States Supreme Court identified one such exception. The Court held that police were not required to obtain a warrant before searching the contents of garbage bags left for regular curbside collection. The Court's decision in Greenwood turned on whether respondents "manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable." Id. at 39, 108 S.Ct. at 1628, 100 L.Ed.2d at 36. In its analysis, the Court noted that "plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public." Id. at 40, 108 S.Ct. at 1628-29, 100 L.Ed.2d at 36-37. The Court concluded "that society would not accept as reasonable respondents' claim to an expectation of privacy in trash left for collection in an area accessible to the public." Id. at 41, 108 S.Ct. at 1629, 100 L.Ed.2d at 37.
In State v. Hauser, 342 N.C. 382, 464 S.E.2d 443 (1995), the North Carolina Supreme Court considered whether the Fourth Amendment prohibited...
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