State v. Stover
| Decision Date | 03 November 2009 |
| Docket Number | No. COA09-229.,COA09-229. |
| Citation | 685 S.E.2d 127 |
| Parties | STATE of North Carolina v. Mario Elliott STOVER. |
| Court | North Carolina Court of Appeals |
Leslie C. Rawls, Charlotte, for defendant-appellant.
Mario Elliott Stover ("defendant") appeals his 15 August 2008 convictions for misdemeanor possession of drug paraphernalia; felony maintaining a dwelling for using a controlled substance, marijuana; and possession with intent to sell and deliver marijuana. For the reasons stated below, we affirm.
During a traffic stop on 10 January 2008, Asheville police officers Maltby and Dotson noticed a passenger in the car attempt to put a bag of marijuana into her pocket. The officers asked her about the drugs, and she ("informant") described to them the house at which she had purchased the marijuana. Officer Maltby then radioed other officers from the Drug Suppression Unit to go to the house and conduct a "knock and talk." At this point the officers did not have a search warrant for the house nor did they have sufficient evidence for a search warrant. Officer Brown, accompanied by Officers Crisp and Breneman, used the description that the informant had provided to Officer Maltby to identify 218 Fayetteville Street, defendant's residence.
When they exited their vehicles, Officers Crisp and Brown perceived a "strong odor of marijuana," which grew stronger as they approached the house. Officer Crisp heard a noise at the rear of the house and entered the backyard, where he observed a black male whose entire upper torso was out of a window. Defendant argues that he was looking out of the window because his neighbor had called to him, and defendant's neighbor testified that defendant was at the window but was not "hanging out" of it, as described by the police. Officer Crisp drew his gun and aimed it at defendant, which he stated was a precaution because narcotics cases often involve weapons. Defendant said, Officer Crisp asked defendant his name to which defendant replied, "Mario Stover." The officer then lowered his gun but did not holster it.
Officer Crisp radioed to Officers Brown and Breneman that he had a subject hanging out a back window. Officer Breneman joined Officer Crisp in the backyard. Officer Breneman asked Officer Crisp if everything was okay, and defendant stated, Officer Crisp asked defendant why he was hanging out of the window, to which defendant responded, "Man, I've got some weed." Officer Crisp asked whether that was the only reason that defendant was hanging out of the window, and defendant responded, Officer Crisp told defendant not to go anywhere and that an officer would be entering through the front door.
Officer Brown then kicked in the front door and went to the back of the house where defendant was located. He walked through a bedroom, in which there was a small child, and into the bathroom where defendant was located. He pulled defendant back inside. Officer Brown patted down and frisked defendant and told the other officers that they could come inside. Defendant and an officer went to the living room while the other officers conducted a protective sweep of the house. Defendant was not handcuffed. Officer Brown walked defendant across the street and back in order that he could ask his neighbors to care for the child. During the protective sweep, officers observed sandwich bags, digital scales, and marijuana in several locations. These items were in plain view. The officers also searched areas that were large enough for a person to hide and did not move any furniture.
Officers Maltby, Dotson, and Ward then arrived on the scene. They also smelled a strong odor of marijuana, which increased as they approached the house. When the officers entered the house, defendant was in the living room. According to Officer Maltby, defendant was a known street-level dealer in the area. While in the living room, defendant stated that he had been selling marijuana for years and knew it was about time for him to be caught. He also said that he sells "weed" to feed his children but does not sell crack cocaine or rob people. Officer Maltby placed defendant in handcuffs and read him his Miranda rights. Defendant waived those rights.
Officer Crisp advised defendant that he was going to bring his drug-sniffing dog into the bathroom, based upon defendant's earlier comment that he had "weed" in the bathroom with him. Defendant said, "Okay." Officer Crisp's dog alerted to the bathtub, where two gallon bags containing a green leafy substance were located. The dog also alerted to the front bedroom. Officers Brown and Ward each asked defendant if they could search the rest of the house, and defendant consented. Following this consent, Officer Crisp's dog alerted to the chest-of-drawers in the front bedroom and to the closet door. Officers Brown, Ward, and Dotson searched the house. They collected approximately 384 grams of marijuana in several bags from the bathroom tub, the bedroom closet, a living room chair, and the top of the dresser in the front bedroom; digital scales and sandwich bags from the living room and front bedroom; and $2,072.00 in cash from the front bedroom. Defendant was cooperative throughout this time.
Defendant was charged with (1) resisting a public officer, (2) misdemeanor possession of drug paraphernalia, (3) felony maintaining a dwelling for using a controlled substance, marijuana, and (4) possession with intent to sell and deliver marijuana. The prosecutor dismissed the resisting a public officer charge. Defendant was indicted by a grand jury for the remaining charges. He filed a motion to suppress the items seized in the search of his residence and the statements he made on the arrest day, 10 January 2008. Defendant reserved the right to appeal if he subsequently pled guilty. On 15 August 2008, the trial court denied the motion to suppress. Defendant then pled guilty to all three charges. Pursuant to his plea agreement, defendant's three offenses were consolidated into one judgment. The trial court sentenced him to six to eight months in prison. This sentence was suspended, with an intermediate sanction of a term of special probation of four months in the Department of Corrections. Defendant appeals.
Defendant first argues that his active jail sentence of four months exceeded the statutory limit imposed by North Carolina General Statutes, section 15A-1351(a). Because we regard this issue as moot, we do not address it.
State v. Black, ___ N.C.App. ___, ___, 677 S.E.2d 199, 201 (2009) (quoting In re Hatley, 291 N.C. 693, 694, 231 S.E.2d 633, 634 (1977)).
In the instant case, defendant already has served his four months of special probation. Furthermore, defendant has not argued to the Court any collateral adverse legal consequences that may result from the length of defendant's sentence. Therefore, we hold that the issue of whether defendant's active sentence of four months exceeded the statutory limit is moot.
We note that the trial court most likely erred in its sentencing of defendant with respect to North Carolina General Statutes, section 15A-1351(a). However, counsel for defendant should have petitioned for a writ of supersedeas in order to stay defendant's sentence until the matter could be resolved. See N.C. R.App. P. 23 (2007). Without such a writ and with defendant's sentence already having been executed, the issue presently is moot.
Defendant's second argument centers on the trial court's denial of his motion to suppress the evidence seized and the statements made on the day of arrest. Defendant contends that the trial court erred in denying his motion to suppress because (1) the trial court's finding of fact that the officers "detected a strong odor of marijuana in the air" is inherently incredible, and therefore, cannot constitute competent evidence; (2) the trial court's findings of fact do not support its conclusions of law that officers had both probable cause and exigent circumstances in order initially to enter and search the house; (3) the officers intimidated defendant, rendering his consent to a more thorough search of the house invalid; and (4) defendant was entitled to his Miranda rights before they were given and any statements made before officers advised him of his Miranda rights were, therefore, inadmissible.
Defendant's first contention regarding the denial of his motion to suppress is that the officers' smelling of non-burning marijuana, most of which was in sealed containers, is inherently incredible, and therefore, cannot constitute competent evidence. Second, he argues that the officers had neither probable cause nor exigent circumstances to enter the house as found by the trial court. We disagree on both counts and will address these two points together.
Initially, we note that findings of fact and conclusions of law are reviewed using different standards....
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