State v. Weakley
| Citation | 627 S.E.2d 315 |
| Decision Date | 21 March 2006 |
| Docket Number | No. COA05-863.,COA05-863. |
| Parties | STATE of North Carolina v. Tony Lee WEAKLEY. |
| Court | Court of Appeal of North Carolina (US) |
William D. Auman, Asheville, for defendant-appellant.
Tony Lee Weakley ("defendant") appeals from judgement entered after a jury found him to be guilty of possession of stolen property, possession of a stolen firearm, possession of Valium, possession of marijuana, possession of drug paraphernalia, and possession of methamphetamine. We reverse defendant's conviction for possession of a stolen firearm. We find no error in the judgment entered on all other charges, and remand for re-sentencing.
1. Background
Sandra Kay Byrum ("Byrum") and her two sisters owned a house on Broadstone Road in Watauga County. In May 2003, Byrum arrived at the house and discovered it had been broken into and that many items were missing. The telephones had been stolen, so Byrum went to use the neighbor's telephone at the mobile home next door. Byrum knocked on the door of the mobile home and looked inside to see if anyone was home. When Byrum looked inside she saw some of the items missing from her house located on the floor.
Byrum spoke with the Sheriff's Department and prepared a list of the items missing from her house. The Sheriff's Department obtained a search warrant for the mobile home. Sheriff's deputies executed the search warrant and found several items reported stolen from Byrum's house located on the floor of the mobile home and documents identifying Denise Brannigan ("Brannigan") as the resident of the mobile home.
The next day Detective Dee Dee Rominger ("Detective Rominger") obtained a warrant for Brannigan's arrest. Detective Rominger, along with Detective Darren Tolbert ("Detective Tolbert") and Detective Shane Robbins ("Detective Robbins"), went to Brannigan's mobile home to execute the warrant. Brannigan was not home. Detective Rominger remained at the mobile home while Detectives Tolbert and Robbins went to a nearby construction site and spoke with someone who advised them Brannigan might be at defendant's residence on Swamp Box Road.
Detectives Rominger, Tolbert, and Robbins traveled to Swamp Box Road and spoke with defendant's landlord and employer, Mike Perry ("Perry"). Perry testified he knew Brannigan and stated she had worked with a friend and would "help us some." Perry further testified that Brannigan was dating defendant and had been staying at defendant's home "off and on." Perry accompanied the detectives to defendant's residence and knocked on the door. Brannigan opened the door and Detective Rominger advised her of the warrants for her arrest. Brannigan was not fully clothed, and Detective Rominger accompanied her into the residence while Brannigan dressed. Detective Rominger noticed a green and brown leaf-print shower curtain across a window in one of the bedrooms. Detective Rominger recognized the shower curtain from pictures Byrum had provided of items stolen from her bathroom. Detective Rominger obtained a search warrant for defendant's residence. Upon executing the search warrant, the detectives found numerous other items taken from Byrum's home, three stolen firearms, illegal narcotics, and drug paraphernalia.
The next day Detective Rominger obtained an arrest warrant for defendant. Defendant provided Detective Rominger a statement in which he claimed he was unaware any items were stolen, and his belief that the items, other than the firearms, were placed in his home by Brannigan. Defendant stated Brannigan had told him that "a lady was moving out of a house and was giving her all this stuff."
Defendant testified at trial that at the time he was arrested he lived on Swamp Box Road with "another guy named Derrick, I don't recall what his last name was...." Derrick had lived with defendant for approximately a month. Defendant had been dating Brannigan for about two weeks at the time of his arrest. Brannigan spent the night at defendant's residence "a couple of nights a week." Defendant testified Brannigan brought some items to his residence and told defendant she had been cleaning houses and people had given her the items.
Defendant testified that the firearms were brought to his residence by a man named Robert Deluka ("Deluka") as collateral for a loan, and that he was unaware the firearms were stolen. Defendant further testified that the drug items found in his residence did not belong to him and that he did not allow illegal drug use in his home.
Brannigan testified that she brought the stolen items to defendant's residence and defendant "never had any idea that any of it was stolen." Brannigan further testified she told defendant she was cleaning someone's house because they were moving and that person had given her the items. She also testified that she never saw defendant use drugs and that defendant did not like to be around anyone using drugs.
On 6 January 2006, the jury found defendant to be guilty of: possession of stolen property; possession of a stolen firearm; possession of a schedule IV controlled substance (Valium); possession of marijuana; possession of drug paraphernalia; and possession of methamphetamine. Defendant was sentenced as a Prior Record Level II. Defendant received a suspended sentence of a minimum of six months and a maximum of eight months incarceration for the possession of stolen property and possession of a stolen firearm convictions. He received a suspended sentence of a minimum of six months and a maximum of eight months incarceration for the drug convictions to run consecutively with the possession of stolen property offenses. Defendant appeals.
II. Issues
Defendant argues the trial court erred in: (1) denying defendant's motion to suppress items found pursuant to the search of his residence; (2) allowing the State to cross-examine Brannigan regarding her failure to give a statement to Detective Rominger; and (3) failing to dismiss all charges due to insufficient evidence. III. Motion to Suppress
Defendant argues the items seized from his residence should have been suppressed from evidence because (1) Detective Rominger's initial entry into his residence does not satisfy any exception to the search warrant requirement, and (2) no probable cause justified issuance of the search warrant.
In Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, 585 (1967), the United States Supreme Court stated, "... searches 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." (Citations omitted).
[I]n Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh'g denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), the U.S. Supreme Court held that the police may seize without a warrant the instrumentalities, fruits, or evidence of crime which is in "plain view" if three requirements are met. First, the initial intrusion which brings the evidence into plain view must be lawful. Id. at 465, 91 S.Ct. at 2040, 29 L.Ed.2d at 582. Second, the discovery of the incriminating evidence must be inadvertent. Id. at 469, 91 S.Ct. at 2040, 29 L.Ed.2d at 585. Third, it must be immediately apparent to the police that the items observed constitute evidence of a crime, are contraband, or are otherwise subject to seizure. Id. at 466, 91 S.Ct. at 2038, 29 L.Ed.2d at 583.
State v. Williams, 315 N.C. 310, 317, 338 S.E.2d 75, 80 (1986). Here, all three elements of the plain view exception to the search warrant requirement are present.
First, Detective Rominger was lawfully inside defendant's premises when she observed the shower curtain. Id. Detective Rominger and other members of the Watauga County Sheriff's Department, along with Perry, went to defendant's residence to find Brannigan and execute the warrant for her arrest. "[O]fficers are entitled to go to a door to inquire about a matter; they are not trespassers under these circumstances." State v. Prevette, 43 N.C.App. 450, 455, 259 S.E.2d 595, 600 (1979) (citing Ellison v. United States, 206 F.2d 476 (D.C.Cir.1953)). Perry, defendant's employer and owner of the premises, knocked on the door of defendant's residence. Brannigan opened the door, at which time she was advised of the warrants for her arrest.
Brannigan was not fully clothed when law enforcement arrived. Detective Rominger accompanied her into the residence to get dressed before she was transported. Detective Rominger was lawfully entitled to monitor Brannigan's movements while she got dressed. The United States Supreme Court's decision in Washington v. Chrisman, 455 U.S. 1, 102 S.Ct. 812, 70 L.Ed.2d 778 (1982) is instructive on this issue:
Every arrest must be presumed to present a risk of danger to the arresting officer. There is no way for an officer to predict reliably how a particular subject will react to arrest or the degree of the potential danger. Moreover, the possibility that an arrested person will attempt to escape if not properly supervised is obvious.
. . . .
We hold, therefore, that it is not "unreasonable" under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer's need to ensure his own safety — as well as the integrity of the arrest — is compelling. Such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested.
Id. at 7, 102 S.Ct. at 817, 70 L.Ed.2d at 785 (internal...
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