State v. Robinson
| Decision Date | 05 February 2002 |
| Docket Number | No. COA00-1247.,COA00-1247. |
| Citation | 560 S.E.2d 154,148 NC App. 422 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina v. Christopher Scott ROBINSON. |
Attorney General Roy Cooper, by Assistant Attorney General Michael C. Warren, for the State.
Kristoff Law Offices, P.A., by Sharon H. Kristoff, Clayton, for defendant-appellant.
Defendant was indicted for maintaining a dwelling for keeping and selling controlled substances, manufacturing marijuana, and possession with the intent to manufacture, sell or deliver marijuana. Defendant filed a motion to suppress evidence seized from his home pursuant to a search conducted on 8 September 1999. Defendant argued that the officers entered his house without a warrant, without probable cause, and in the absence of exigent circumstances, and that the subsequently obtained search warrant was not supported by probable cause. The trial court denied Defendant's motion to suppress and signed an order to that effect on 18 May 2000. This original order was misplaced and the trial court entered an exact copy of the original on 15 September 2000 nunc pro tunc 18 May 2000. Subsequent to the denial of his motion to suppress, Defendant pled guilty to manufacturing marijuana and maintaining a dwelling for keeping and selling controlled substances. Defendant received a suspended prison sentence with supervised probation for three years. From the denial of his motion to suppress, Defendant appeals pursuant to N.C. Gen.Stat. § 15A-979(b).
The facts pertinent to this appeal are as follows: On 31 August 1999, Captain Mardy Benson ("Captain Benson") of the Johnston County Sheriff's Department received an anonymous tip advising that the informant had been present at a store and overheard a conversation concerning Christopher Robinson ("Robinson," or "Defendant") and a marijuana growing operation located in the bedrooms of Robinson's house. Specifically, the anonymous informant overheard that Robinson was on probation, that Robinson's probation officer had come by Robinson's house, and that Robinson could not believe his probation officer had not seen the grow lights or smelled the marijuana. The informant further overheard that someone was coming by Robinson's house to pick up some marijuana that had been harvested from the plants growing in the house, that the marijuana growing operation was a hydroponic system, and that Robinson's wife's name was Terrell. The informant also advised Captain Benson that she did not know Robinson.
Captain Benson informed Agent A.W. Bryan ("Agent Bryan"), a detective on the Johnston County Interagency Drug Task Force, of the details of this anonymous tip. Agent Bryan recognized the name Christopher Robinson and, upon investigation, discovered that she had arrested Christopher Robinson on 15 May 1998 and charged him with maintaining a place to keep controlled substances, possession with intent to manufacture, sell and deliver marijuana, and manufacturing marijuana. This earlier arrest of Robinson was the result of a consensual search of Robinson's residence, which led to the discovery of approximately ten marijuana plants in various stages of growth and cultivation, grow lamps, a bag containing approximately 0.2 grams of marijuana, and other paraphernalia commonly used in the indoor cultivation and manufacture of marijuana. This growing operation was primarily located in the bedroom closet of Robinson's then residence.
After receiving the information from the anonymous tip, Agent Bryan contacted the Johnston County Probation Parole Office and spoke with Officer Stephen Wood ("Officer Wood"), who informed Agent Bryan that Robinson was still on probation from this earlier drug offense, and as a special condition of his probation, Robinson had agreed to submit to warrantless searches of his person and residence. Agent Bryan and Officer Wood discussed setting up a date and time at which to attempt to conduct a warrantless search of Robinson's house pursuant to his probation.
On 7 September 1999, Agent Bryan and Officer Wood decided that they would go to Robinson's house the following night. Officer Wood would attempt to gain consent to search the house, and if Robinson refused to consent, he would be arrested for a probation violation. Agent Bryan and other officers of the Interagency Drug Task Force planned to be at a prearranged location in the general area of Robinson's house in case Officer Wood needed some assistance.
On 8 September 1999, Officer Wood and Probation Officer Jansen Lee ("Officer Lee") went to Robinson's house, located at 3388 U.S. 301 South, to attempt to gain consent to search. When the officers arrived, Robinson stepped off the front porch and met them in front of the house. Officer Wood asked Robinson for consent to search the house. After conferring with Terrell Allen ("Allen"), who the record indicates is Robinson's girlfriend and not his wife, and who had joined Robinson and the officers outside, Robinson refused to grant consent for a search. Officer Wood explained to Robinson that his refusal to consent was a violation of his probation and that he was going to be arrested. Robinson replied, Robinson was arrested and taken to Johnston County Jail. Agent Bryan, stationed at the prearranged location with other agents of the Drug Task Force, was notified of Robinson's arrest.
At that point, Agent Bryan and the other officers decided to go to the house themselves to attempt to obtain consent to search from Allen, who they knew to be there based on Officer Wood's earlier encounter with her. Lieutenant Daughtry and Special Agent Parrish knocked on the front door and identified themselves. Agent Bryan remained stationed near her car, which was parked at the front of the driveway, approximately ten feet from the house. The driveway ran along the right side of the house, placing Agent Bryan and her car in close proximity to an air-conditioning unit which was located on the ground immediately beside the house. Lieutenant Daughtry and Agent Parrish received no response in their repeated attempts to get someone to come to the door. Meanwhile, from her location approximately three to five feet from a window of the house, Agent Bryan observed movement inside the house. Lieutenant Daughtry and Agent Parrish then joined Agent Bryan at her location on the right side of the house. From this location, the officers smelled a strong odor of marijuana emanating from the house, in and around the vicinity of the air-conditioning unit.
The officers then decided to return to their prearranged location to meet with other agents and decide how to proceed. Upon their return to the prearranged location, Lieutenant Daughtry decided to call the house to talk with Allen in another attempt to gain consent to search. Lieutenant Daughtry spoke with Allen over the phone and Allen refused to grant consent. Allen also told Lieutenant Daughtry that she wanted to contact her lawyer.
At this time, the officers called District Attorney Tom Lock to explain the situation and make sure there were sufficient exigent circumstances present to allow the officers to enter the house without a warrant in order to secure the premises and prevent the destruction of any evidence. District Attorney Lock told the officers that they could enter the house without a warrant, and the officers returned to the house to do so.
After another unsuccessful attempt to get a response from knocking on the front door, the officers broke into the house. Once inside, the officers restrained Allen and conducted a protective sweep of the house to search for any other inhabitants and secure the premises and any evidence that could possibly be destroyed. Agent Bryan then went back to her office and prepared the search warrant application that was submitted to the magistrate.
As part of the search warrant application, Agent Bryan swore to the following: (1) Robinson's previous arrest on drug charges and the evidence that was discovered upon searching Robinson's house in connection with this previous arrest; (2) the anonymous tip received by Captain Benson concerning Robinson and a marijuana growing operation; (3) Agent Bryan's confirmation through Officer Wood that Robinson was in fact on probation; (4) Robinson's refusal to consent to a search of the house; (5) Robinson's subsequent arrest for a probation violation for refusing to consent; (6) the subsequent unsuccessful attempt to secure consent to search from Allen; (7) Agent Bryan's observation of movement inside the house; and (8) the officers' detection of the odor of marijuana emanating from the house. Based on these facts and her law enforcement experience, Agent Bryan gave her opinion that probable cause was present to believe that marijuana, drug paraphernalia, and other indicia of drug activity were present in and around Robinson's house. The magistrate issued the search warrant and the officers returned to Robinson's house to conduct the search. The officers' search resulted in the seizure of marijuana, marijuana cultivation paraphernalia, and a .12 gauge shotgun.
Defendant brings forward numerous assignments of error which present three arguments against the trial court's denial of Defendant's motion to suppress. Defendant also assigns error to the trial court's failure to appoint counsel to perfect his appeal. After a careful review of the record, briefs, and transcript, we affirm the trial court's denial of Defendant's motion to suppress.
State v. Wallace, 111 N.C.App. 581, 584, 433 S.E.2d 238, 240 (1993).
Defendant first contends that the trial court erred in not granting his motion to suppress on the ground that the law...
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