State Carolina v. Lupek, COA11–63.

712 S.E.2d 915

STATE of North Carolina

v.Seth Anthony LUPEK, Defendant.

No. COA11–63.

Court of Appeals of North Carolina.

Aug. 2, 2011.

OPINION TEXT STARTS HERE

Appeal by defendant from judgment entered 2 September 2010 by Judge Carl R. Fox in Chatham County Superior Court. Heard in the Court of Appeals 25 May 2011.

Attorney General Roy Cooper, by Associate Attorney General Gayle L. Kemp, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defender Kristen L. Todd, for defendant-appellant.

GEER, Judge.

Defendant Seth Anthony Lupek appeals from his convictions of manufacturing marijuana and maintaining a dwelling place for the purpose of storing or selling controlled substances. Defendant contends that the trial court erred in denying his motion to suppress evidence obtained as a result of a search at his home.

The investigating officer in this case was standing on defendant's front porch when he saw, through the open front door, a bong used for smoking marijuana. Defendant primarily argues that his motion to suppress should have been allowed because the officer did not have the right to be on the front porch. However, the trial court's findings, unchallenged on appeal, establish that the officer had a right to be on the porch because he was conducting a general inquiry in a place where defendant had no reasonable expectation of privacy. We also find unpersuasive defendant's remaining arguments regarding application of the plain view doctrine to the officer's observation of the bong and, therefore, hold that the trial court did not err in denying defendant's motion to suppress.

Facts

On 19 January 2010, defendant was indicted for manufacturing marijuana, maintaining a dwelling place for the purpose of storing or selling controlled substances, felony possession of marijuana, and misdemeanor possession of drug paraphernalia. On 10 May 2010, defendant filed a motion to suppress items seized during a 24 September 2009 search of his home. The motion alleged in part that the evidence should be suppressed because the officer who discovered it had no legal right to enter defendant's residence where the evidence was discovered, and the evidence was not in the officer's plain view from a place where he had a right to be.

Following an evidentiary hearing, the trial court entered an order denying defendant's motion on 19 November 2010. In its order, the trial court made the following findings of fact. At approximately 5:00 p.m. on 24 September 2009, Deputy Paul Carroll of the Chatham County Sheriff's Department responded to a report of a dog's having been shot at White's Mobile Home Park. On his way to defendant's residence in the mobile home park, Deputy Carroll was stopped by defendant. Defendant told Deputy Carroll that his dog had just been shot by a neighbor, and he was going to pick up the dog from Animal Control. Defendant then left the mobile home park.

Deputy Carroll continued to defendant's residence and pulled into the driveway. Almost immediately, a woman exited the front door of the residence. She was very nervous, her hands were shaking, and she smelled strongly of burnt marijuana. Based on his training and experience, Deputy Carroll believed that the smell was consistent with someone having just smoked marijuana. The woman told Deputy Carroll that her name was Elizabeth Sweatt and that she did not live at the residence, but was staying there temporarily.

Deputy Carroll had received information that dogs had gotten loose and become aggressive with a neighbor who had then shot one of the dogs. Ms. Sweatt took Deputy Carroll to the rear of the trailer and showed him a hole in the side of defendant's home where the dogs had escaped.

Deputy Carroll completed his investigation concerning the dog shooting, but he noticed that Ms. Sweatt, who still smelled like burnt marijuana, appeared to be extremely nervous. Deputy Carroll asked her why she was so nervous. At this point, his reason for remaining in the yard was Ms. Sweatt's nervous appearance and the smell of burnt marijuana. Ms. Sweatt told Deputy Carroll she had a nervous condition for which she took Xanax. Believing that Ms. Sweatt was nervous as a result of his presence and her use of marijuana, rather than a “ ‘nervous condition,’ ” Deputy Carroll asked Ms. Sweatt to produce a prescription for the Xanax. Ms. Sweatt informed him that her pills were not there, but were inside her car that her husband was driving at the time.

Deputy Carroll then asked Ms. Sweatt for identification. When conducting an investigation, Deputy Carroll always attempts to obtain identification from any witnesses. Ms. Sweatt did not verbally respond to his request, but she instead turned and went back around to the front door and opened the door. Deputy Carroll followed closely behind her, attempting to maintain visual contact and ensure she would not obtain a weapon from inside the home that could be used against him. He was approximately two steps or a foot to a foot and a half behind her when she opened the door.

Because Ms. Sweatt was short, Deputy Carroll could see over her head into the residence. Without entering the home, he saw directly across from the door an 18–inch glass bong used for smoking marijuana. He also smelled the odor of fresh marijuana and saw the back of a man's head in a recliner.

Ms. Sweatt attempted to shut the door, but Deputy Carroll still entered the residence. Deputy Carroll advised both Ms. Sweatt and the man, subsequently identified as Barry Beaver, to stay where they were and show him their hands. Deputy Carroll asked if they had any weapons and patted them down. He also searched the immediate area for any weapons that might be within their reach. Deputy Carroll then obtained identification from both Ms. Sweatt and Mr. Beaver. At this point, the odor of fresh marijuana was even stronger. Without venturing further into the residence, Deputy Carroll saw a salad bowl with fresh marijuana.

Ms. Sweatt denied knowledge of any marijuana in the residence and consented to a search of her bedroom at the rear of the trailer. The odor of fresh marijuana was very strong in that part of the trailer. Next to Ms. Sweatt's room was a closed door that Deputy Carroll opened to make sure no one else was in the trailer. Inside that room he found a “marijuana-growing operation” with marijuana plants.

After discovering the marijuana-growing operation, Deputy Carroll handcuffed Ms. Sweatt and placed her in his patrol car. Since Mr. Beaver was disabled and unable to walk, Deputy Carroll carried him outside in his wheelchair. Deputy Carroll then secured the residence and did not seize any items before contacting the Drug Unit and requesting that it respond and obtain a search warrant. Staff Sergeant Brandon Jones subsequently applied for a search warrant for defendant's residence. Later, defendant returned to the residence and was arrested.

Based on its findings of fact, the trial court concluded that Deputy Carroll was justified in being outside the front door of the trailer at the time he saw the bong and smelled fresh marijuana. The court determined that he had the legitimate and lawful purpose of investigating possible criminal activity after smelling marijuana on Ms. Sweatt's person and noticing that she was very nervous for no apparent reason. The court also concluded that Deputy Carroll had the right to ask for Ms. Sweatt's identification and to approach the door to inquire whether she was willing to answer questions. Furthermore, after seeing the marijuana in the salad bowl, Deputy Carroll had authority to enter the premises to effectuate an arrest, conduct a protective sweep of the area, and secure the residence to prevent the destruction of evidence.

On 2 September 2010, defendant pled guilty to manufacturing marijuana and maintaining a dwelling place for storage of controlled substances. Defendant reserved his right to appeal the denial of his motion to suppress. The trial court sentenced defendant to a mitigated-range term of three to four months imprisonment but suspended the sentence and ordered defendant to be placed on 24 months of supervised probation. Defendant timely appealed to this Court.

Discussion

The sole issue on appeal is whether the trial court erred in denying defendant's motion to suppress. “The scope of review of the denial of a motion to suppress is ‘strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.’ ” State v. Bone, 354 N.C. 1, 7, 550 S.E.2d 482, 486 (2001) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)), cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002).

Findings of fact not challenged on appeal—such as those in this case—are binding on this Court. State v. Brown, 199 N.C.App. 253, 256, 681 S.E.2d 460, 463 (2009). The trial court's conclusions of law, however, “must be legally correct, reflecting a correct application of applicable legal principles to the facts found.” State v. Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997).

Defendant argues that Deputy Carroll's observation of the bong inside the home constituted an unconstitutional search, and, therefore, the bong and all subsequently discovered evidence should have been suppressed. The State contends that the “plain view” doctrine applied to the bong. In order for the plain view doctrine to apply, (1) the officer must have been in a place where he had a right to be when the evidence was discovered; (2) the evidence must have been discovered inadvertently; and (3) it must have been immediately apparent to the police that the items observed were evidence of a crime or contraband. State v. Graves, 135 N.C.App. 216, 219, 519 S.E.2d 770, 772 (1999). The burden is on the State to establish all three prongs of...