IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-540
Filed: 2 February 2016
Forsyth County, No. 12 CRS 62435 - 37
STATE OF NORTH CAROLINA, Plaintiff,
v.
SHAMELE COLLINS, Defendant.
Appeal by defendant from judgment entered 8 September 2014 by Judge
William Z. Wood in Forsyth County Superior Court. Heard in the Court of Appeals
20 October 2015.
Attorney General Roy Cooper, by Assistant Attorney General Douglas W.
Corkhill, for the State.
Robinson, Bradshaw & Hinson, P.A., by Andrew A. Kasper, for defendantappellant.
ZACHARY, Judge.
Shamele Collins (defendant) appeals from judgment entered on his pleas of
guilty to trafficking in cocaine, possession of cocaine with intent to sell or deliver,
misdemeanor possession of marijuana, possession of drug paraphernalia, and
resisting, delaying, or obstructing a law enforcement officer. Defendant reserved his
right to appeal the trial court’s denial of his motion to suppress evidence obtained at
the time of his arrest. On appeal defendant argues that the trial court erred by
denying his suppression motion, on the grounds that the evidence was obtained
STATE V. COLLINS
Opinion of the Court
during an unlawful search that violated defendant’s rights under the Fourth
Amendment to the United States Constitution, and that the trial court violated
defendant’s right to be present during his sentencing. We find no error in the trial
court’s denial of defendant’s suppression motion, but vacate the judgment and
remand for resentencing.
I. Factual and Procedural Background
On 13 December 2012, defendant was arrested on charges of trafficking in
cocaine by possession of more than 28 but less than 200 grams of cocaine, possession
of cocaine with intent to sell and deliver, possession of cocaine within 1000 feet of an
elementary school, maintaining a dwelling for the purpose of keeping and selling a
controlled substance, misdemeanor possession of marijuana, possession of drug
paraphernalia, and resisting an officer. On 16 December 2013, the Grand Jury of
Forsyth County indicted defendant for trafficking in cocaine by possession of more
than 28 but less than 200 grams of cocaine, possession of cocaine with intent to sell
and deliver, misdemeanor possession of marijuana, possession of drug paraphernalia,
and resisting an officer. On 29 August 2014, defendant filed a motion to suppress
evidence obtained at the time of defendant’s arrest, on the grounds that the evidence
was acquired as the result of an unlawful search that violated his rights under the
Fourth Amendment to the United States Constitution.
-2-
STATE V. COLLINS
Opinion of the Court
A hearing was conducted on defendant’s suppression motion on 8 September
2014. Evidence elicited at the hearing tended to show the following: Winston-Salem
Police Officer J.G. Gordon testified that on 13 December 2012 he was dispatched to
an apartment on Franciscan Drive in Winston-Salem in order to assist the North
Carolina Alcohol Law Enforcement Division (ALE) in serving a warrant on Jessica
Farthing, who lived at the Franciscan Drive apartment. When Officer Gordon
entered the apartment he smelled burned marijuana. Officer Gordon assisted the
ALE officers by running a computer check of the names of those present in the
apartment. Defendant initially told the officers that his name was “David Collins,”
but Officer Gordon was unable to find a listing in the online database for a person
named “David Collins” with biographical information that matched defendant’s. ALE
officers then found identification in the apartment with the name “Shamele Collins.”
Officer Gordon used an online photograph to confirm that defendant was actually
Shamele Collins, and learned that the State of New York had an outstanding warrant
for defendant’s arrest and extradition on a narcotics charge.
Officer C. Honaker of the Austin, Texas, Police Department testified that on
13 December 2012 he was employed as a Winston-Salem Police Officer and had been
dispatched to the Franciscan Drive apartment to aid in the arrest of Ms. Farthing.
When Officer Honaker entered the apartment he noticed a “moderate to strong odor
of burnt marijuana” inside. Officer Honaker and another law enforcement officer
-3-
STATE V. COLLINS
Opinion of the Court
conducted a protective sweep of the apartment and found defendant and another man
hiding upstairs. Officer Honaker placed defendant in handcuffs and conducted an
external search of defendant’s clothing and pockets, but did not find any contraband.
Officer Honaker then escorted defendant downstairs and directed him to sit on the
couch.
Based on the outstanding warrant for defendant’s arrest, the odor of marijuana
about defendant’s person, and the fact that the defendant gave the officers a false
name, Officer Honaker decided to conduct a “strip search” of defendant. Officer
Honaker, assisted by Officer J.B. Gerald, moved defendant from the living room into
the dining room in order to “secure his privacy” because “there were other people in
the living room.” Officer Honaker, Officer Gerald, and defendant were the only ones
in the dining area. Officer Honaker informed defendant that he was going to conduct
a strip search and removed defendant’s handcuffs in the hopes that defendant would
cooperate with the search. Defendant, however, refused to consent to the search.
Defendant was wearing shoes and pants, but no shirt. When Officer Honaker
attempted to remove the belt from defendant’s pants, defendant struggled,
preventing a search. Officer Honaker then lowered defendant to the ground and
reattached the handcuffs. At that time, Officer Honaker observed a residue on the
ground where defendant had been standing, which Officer Honaker described as a
“small crystalline white, off-white rock substance” that appeared to be cocaine.
-4-
STATE V. COLLINS
Opinion of the Court
Officer Honaker informed the trial court that he saw the white powder on the floor
prior to removing any of defendant’s clothing. After Officer Honaker noticed the
white crystalline material, he “completed a strip search of [defendant’s] person.”
When Officer Honaker lowered defendant’s pants, he “noticed that [defendant’s] butt
cheeks were clenched,” so Officer Honaker lowered defendant’s boxers and “saw a
plastic baggie with white residue in it - the buttocks crack.” Officer Gerald also
observed “what appeared to be cocaine in [defendant’s] buttocks area.” Officer
Honaker ultimately removed “several plastic baggies . . . two of which contained an
off-white substance” and “a third baggie that contained a green vegetable-like
substance consistent with marijuana” from between defendant’s buttocks. After he
conducted the search, Officer Honaker “realized there was also some [white powder]
beneath where [defendant] was sitting on the sofa” as well as a trail of white material
“coming down the stairs to the sofa where [defendant] was sitting.” Defendant was
arrested for offenses arising from his possession of drugs, for resisting an officer, and
for the outstanding New York warrant.
At the close of the hearing, the trial court announced its ruling denying the
defendant’s suppression motion. Later that day, defendant entered pleas of guilty to
the charged offenses, reserving his right to appeal the denial of his motion to suppress
evidence. The trial court consolidated the convictions for purposes of sentencing and
orally rendered a judgment sentencing defendant to thirty-five to forty-two months
-5-
STATE V. COLLINS
Opinion of the Court
imprisonment. Defendant gave notice of appeal in open court. On 8 September 2014,
the trial court entered a written judgment sentencing defendant to thirty-five to fifty-
one months imprisonment. On 10 September 2014, the trial court entered an order
memorializing its denial of defendant’s suppression motion.
II. Standard of Review
Defendant first argues on appeal that the trial court erred by denying his
motion to suppress evidence seized at the time of his arrest. The standard of review
of a trial court’s ruling on a defendant’s suppression motion is well-established:
The scope of appellate review of a trial court’s order
granting or denying a motion to suppress evidence “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.” . . . If the trial
court’s findings of fact are supported by competent
evidence, they are conclusive on appeal.
State v. Fowler, 220 N.C. App. 263, 266,
725 S.E.2d 624, 627 (2012) (quoting State v.
Cooke,
306 N.C. 132, 134,
291 S.E.2d 618, 619 (1982), and citing State v. Barnard,
184 N.C. App. 25, 28,
645 S.E.2d 780, 783 (2007), aff'd,
362 N.C. 244,
658 S.E.2d 643
(2008)). “However, when, as here, the trial court’s findings of fact are not challenged
on appeal, they are deemed to be supported by competent evidence and are binding
on appeal. Conclusions of law are reviewed de novo and are subject to full review.”
State v. Biber,
365 N.C. 162, 168,
712 S.E.2d 874, 878 (2011) (citing State v. Baker,
312 N.C. 34, 37,
320 S.E.2d 670, 673 (1984) (internal citation omitted)). In this case,
-6-
STATE V. COLLINS
Opinion of the Court
defendant does not challenge the sufficiency of the evidence supporting the trial
court’s findings of fact, which are therefore conclusively established on appeal. The
issue presented on appeal is whether the trial court’s unchallenged findings of fact
support its conclusion of law that “the search conducted [of defendant] was a
reasonable lawful search and the defendant’s rights under the 4 th and 5th
Amendments [to the Constitution] were not violated.”
Defendant also argues that the trial court erred as a matter of law by entering
a judgment that imposed a longer prison sentence than the trial court had announced
when it orally rendered judgment in court. Questions of law are reviewed de novo by
this Court. State v. Khan, 366 N.C. 448, 453,
738 S.E.2d 167, 171 (2013) (citing In
re Greens of Pine Glen Ltd. P’ship,
356 N.C. 642, 647,
576 S.E.2d 316, 319 (2003)).
III. Denial of Defendant’s Suppression Motion
At the time of defendant’s arrest, he was in possession of two bags of cocaine
and a bag containing marijuana, all of which were seized by Officer Honaker. These
items were found between defendant’s buttocks when defendant’s pants were
removed and his underwear was removed or pulled down. On appeal, defendant
argues that evidence of the drugs found on his person should have been suppressed
because the drugs were discovered during an unlawful “strip search” in violation of
defendant’s rights under the Fourth Amendment to the United States Constitution.
We disagree.
-7-
STATE V. COLLINS
Opinion of the Court
A. Legal Principles
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.” U.S. Const. Amend. IV. “ ‘[T]he Fourth
Amendment precludes only those intrusions into privacy of the body which are
unreasonable under the circumstances.’ ” State v. Norman, 100 N.C. App. 660, 663,
397 S.E.2d 647, 649 (1990) (quoting State v. Cobb,
295 N.C. 1, 20,
243 S.E.2d 759, 770
(1978) (internal citation omitted)).
Generally, warrantless searches are presumed to be
unreasonable and therefore violative of the Fourth
Amendment of the United States Constitution. However,
a well-recognized exception to the warrant requirement is
a search incident to a lawful arrest. Under this exception,
if the search is incident to a lawful arrest, an officer may
“conduct a warrantless search of the arrestee’s person and
the area within the arrestee’s immediate control.”
State v. Logner, 148 N.C. App. 135, 139,
557 S.E.2d 191, 194 (2001) (quoting State v.
Thomas,
81 N.C. App. 200, 210,
343 S.E.2d 588, 594 (1986) (other citations omitted)).
“ ‘A search is considered incident to arrest even if conducted prior to formal arrest if
probable cause to arrest exists prior to the search and the evidence seized is not
necessary to establish that probable cause.’ ” State v. Robinson,
221 N.C. App. 267,
276,
727 S.E.2d 712, 719 (2012) (quoting State v. Mills,
104 N.C. App. 724, 728,
411
S.E.2d 193, 195 (1991) (internal citations omitted)). Officer Honaker’s search of
defendant is properly classified as a search incident to arrest. There was an
-8-
STATE V. COLLINS
Opinion of the Court
outstanding warrant for defendant’s arrest. In addition, defendant was charged with,
and ultimately pleaded guilty to, the offense of resisting, delaying or obstructing a
law enforcement officer, based on giving a false name to the officers.
“ ‘[T]he central inquiry under the Fourth Amendment [is] the reasonableness
in all the circumstances of the particular governmental invasion of a citizen’s
personal liberty.’ ” State v. Peck, 305 N.C. 734, 740,
291 S.E.2d 637, 641 (1982)
(quoting Terry v. Ohio,
392 U.S. 1,
20 L.Ed. 2d 889,
88 S.Ct. 1868 (1968)). Moreover,
the Court has advised that:
[t]he test for determining the reasonableness of the search
under the Fourth and Fourteenth Amendments to the
United States Constitution “is not capable of precise
definition or mechanical application. In each case it
requires a balancing of the need for the particular search
against the invasion of personal rights that the search
entails. Courts must consider the scope of the particular
intrusion, the manner in which it is conducted, the
justification for initiating it, and the place in which it is
conducted.”
State v. Scott, 343 N.C. 313, 327,
471 S.E.2d 605, 613 (1996) (quoting State v. Primes,
314 N.C. 202, 211,
333 S.E.2d 278, 283 (1985) (quoting Bell v. Wolfish,
441 U.S. 520,
559,
60 L. Ed. 2d 447, 481,
99 S. Ct. 1861 (1979)). On appeal, defendant cites a
number of federal cases. It is axiomatic that:
“North Carolina appellate courts are not bound, as to
matters of federal law, by decisions of federal courts other
than the United States Supreme Court.” Even so, despite
the fact that they are “not binding on North Carolina’s
courts, the holdings and underlying rationale of decisions
-9-
STATE V. COLLINS
Opinion of the Court
rendered by lower federal courts may be considered
persuasive authority in interpreting a federal statute.”
In re Fifth Third Bank, 216 N.C. App. 482, 488-89,
716 S.E.2d 850, 855 (2011)
(quoting Enoch v. Inman,
164 N.C. App. 415, 420,
596 S.E.2d 361, 365 (2004), and
McCracken & Amick, Inc. v. Perdue,
201 N.C. App. 480, 488, n.4,
687 S.E.2d 690, 695
n.4 (2009), disc. review denied,
364 N.C. 241,
698 S.E.2d 400 (2010)), cert. denied,
366
N.C. 231,
731 S.E.2d 687 (2012).
In analyzing federal constitutional questions, we look to
decisions of the United States Supreme Court[,] . . . [and]
decisions of the North Carolina Supreme Court construing
federal constitutional . . . provisions, and we are bound by
those interpretations. We are also bound by prior decisions
of this Court construing those provisions, which are not
inconsistent with the holdings of the United States
Supreme Court and the North Carolina Supreme Court.
Johnston v. State, __ N.C. App. __, __, 735 S.E.2d 859, 865 (2012) (citing State v.
Elliott,
360 N.C. 400, 421,
628 S.E.2d 735, 749 (2006), and In re Civil Penalty,
324
N.C. 373,
379 S.E.2d 30 (1989)), affd,
367 N.C. 164,
749 S.E.2d 278 (2013).
C. Discussion
As discussed above, the issue for our determination is whether the trial court’s
findings of fact support its conclusion that the search of defendant’s person did not
violate defendant’s Fourth Amendment right to be free of unreasonable searches. In
its order, the trial court made the following findings of fact:
1. On December 13, 2012, Winston Salem Police
Department's Street Crimes Unit was asked to assist
- 10 -
STATE V. COLLINS
Opinion of the Court
Alcohol Law Enforcement (ALE) in serving an Outstanding
Warrant for a Jessica Farthing[.]
...
5. [Winston-Salem Police] Officer Honaker had been
advised that Farthing’s boyfriend may also be in the
residence and might have outstanding warrants as well.
6. Officers Honaker, Gerald, and Gordon smelled an odor
of burned marijuana ranging from moderate to strong
inside the residence.
...
8. There were two subjects located upstairs[:] the
defendant and another male named [Steven] Duren.
9. [Officer] Honaker thought the defendant . . . [was]
hiding.
10. Officer Honaker smelled marijuana on the defendant’s
person. He patted down and searched the defendant
upstairs, including going into his pockets.
11. The defendant and the other subject from upstairs
were taken downstairs to the couch.
12. Officers tried to ascertain the defendant’s name, [but]
the defendant gave Officer Honaker . . . a false name. . . .
...
14. Another officer or agent in the residence located a piece
of paper with the name ‘Shamele Collins’ on it[.]
15. . . . [Officer Gordon] determine[d] that Shamele Collins,
the defendant, had an outstanding warrant out of New
York for Dangerous Drugs. Officer Gordon confirmed that
- 11 -
STATE V. COLLINS
Opinion of the Court
the warrant was still active and that New York would
extradite.
16. Officer Gordon advised Officer Honaker of the
outstanding warrant for the defendant’s arrest.
17. After finding out about the warrant, Officer Honaker
took the defendant into the dining room/kitchen area,
which was off the living room.
18. Officer Honaker removed the defendant's handcuffs.
19. The defendant was wearing pants and shoes but no
shirt.
20. Officer Honaker advised the defendant that he was
going to strip search him and the defendant did not
consent.
21. [When Officer] Honaker attempted to remove the
defendant’s belt, the defendant grabbed toward that area.
Officer Honaker believed this was a furtive move by the
defendant and that the defendant may have been trying to
sucker punch him.
22. Officer Honaker took the defendant to the ground using
an “arm bar.”
23. The defendant was placed back into handcuffs.
24. At that point Officer Honaker noticed a white crystal
substance consistent with cocaine on the floor where the
defendant had been standing in the kitchen/dining area.
25. Officer Honaker then searched the defendant without
the defendant’s consent.
26. Officer Honaker removed the defendant’s shoes then
his socks and searched them. Then Officer Honaker either
- 12 -
STATE V. COLLINS
Opinion of the Court
pulled down or removed his pants and then pulled down or
removed the defendant's boxers.
27. Officer Honaker saw that the defendant was clenching
his butt cheeks.
28. Officer Honaker removed plastic baggies from between
the defendant’s butt cheeks, [of which two] contained an off
white rock substance consistent with crack cocaine and one
contained what the officer believed to be marijuana.
29. One of the bags [of] cocaine was torn open and the
cocaine was coming out.
30. After the search Officer Honaker noticed more cocaine
where the defendant had been sitting on the couch and a
trail of cocaine coming down the stairs where the defendant
had been moved.
31. At some point during the incident Officer Honaker
became aware that the defendant was in fact Jessica
Farthing’s boyfriend.
32. The defendant was arrested for the outstanding
warrant from New York and the drug charges from this
incident.
On the basis of its findings of fact the trial court reached the following
conclusions of law:
2. The place the search was conducted was in the dining
area, removed or away from other people and that provided
some privacy.
3. The scope was either pulling or removing down
defendant’s pants and boxers to expose his buttocks which
was intrusive.
4. The manner in which the search was performed was
reasonable under the circumstances. The court finds that
- 13 -
STATE V. COLLINS
Opinion of the Court
there were exigent circumstances including: the fact that
the crystals [were] on the floor where defendant was
standing indicated that they were leaving the defendant’s
person quickly leading to possible loss or destruction of
evidence and that the bag of cocaine was not sealed leading
to a danger to the defendant of absorbing some of the
substance through his large intestine. The search was
conducted by officers of the same sex and the only female
present at the residence, according to the evidence, was
Jessica Farthing the defendant’s girlfriend.
5. The officers had justification to perform the search.
Officer Honaker had a specific basis to believe drugs were
hidden on the defendant because of the cocaine where the
defendant was standing and the odor of marijuana coming
from defendant’s person. Further the defendant’s actions
of giving a false name, attempting to conceal his identity to
avoid arrest further justified the search.
6. The search of the defendant, although intrusive in
manner, was conducted in a reasonable manner and it was
incident to arrest.
7. Based on the foregoing the court finds that the search
conducted was a reasonable lawful search and the
defendant’s rights under the 4th . . . Amendment[ ] were
not violated.
We conclude that the trial court’s unchallenged findings of fact support its
conclusion that the search of defendant’s person, although intrusive, was reasonable
under the factual circumstances presented and did not violate defendant’s rights
under the Fourth Amendment. In reaching this conclusion, we have carefully
considered defendant’s arguments, but do not find them persuasive.
Defendant maintains that a search that is determined to be a “strip search” is
violative of a defendant’s Fourth Amendment rights unless we find that the search
- 14 -
STATE V. COLLINS
Opinion of the Court
was reasonable under the factual circumstances together with the existence of
additional facts that are applicable to “strip searches.” Specifically, defendant
contends that in State v. Battle, 202 N.C. App. 376, 388,
688 S.E.2d 805, 815 (2010),
this Court determined that a “strip search” is unreasonable unless supported by
“probable cause and exigent circumstances.”
However, we “note that neither the United States Supreme
Court nor the appellate courts of this State have clearly
defined the term strip search.” As the United States
Supreme Court recently stated . . . ‘The term is imprecise.”
. . . For that reason, there is no precise definition of what a
‘strip search’ actually is. Moreover, the United States
Supreme Court has specifically stated that [it] “would not
define strip search and its Fourth Amendment
consequences in a way that would guarantee litigation
about who was looking and how much was seen.”
Robinson, 221 N.C. App. at 277,
727 S.E.2d at 719 (quoting Battle,
202 N.C. App. at
381,
688 S.E.2d at 811; Florence v. Bd. of Chosen Freeholders, __ U.S. __, __,
132 S.
Ct. 1510, 1515,
182 L. Ed. 2d 566, 574 (2012); and Safford Unified Sch. Dist. #1 v.
Redding,
557 U.S. 364, 374,
129 S. Ct. 2633, 2641,
174 L. Ed. 2d 354, 364 (2009)). We
also note that in Robinson,
221 N.C. App. at 281,
727 S.E.2d at 722, decided after
Battle, this Court “conclude[d] that the mode of analysis outlined in Battle . . . only
applies in the event that the investigating officers lack a specific basis for believing
that a weapon or contraband is present beneath the defendant's underclothing.”
Id.
Thus, it would appear that where, as in the present case, there exists probable cause
to believe that contraband was secreted beneath the defendant’s clothing, we are not
- 15 -
STATE V. COLLINS
Opinion of the Court
required either to “officially” deem this to be a “strip search”1 or to find the existence
of exigent circumstances before we can declare the search of this defendant to be
reasonable. We are not, however, required to reach a definite conclusion on the
validity of defendant’s proposed approach to the determination of the
constitutionality of the search at issue. Assuming, arguendo, that the trial court was
required to find the existence of exigent circumstances and evidence supporting a
reasonable belief that defendant was secreting a controlled substance from under his
outer clothing, we conclude that both of these factors were present in this case. In
reaching this conclusion, we rely in part upon the following undisputed facts:
1. Law enforcement officers were present in the apartment
to arrest Ms. Farthing, who lived there.
2. When defendant was asked by law enforcement officers
to identify himself, he gave a false name.
3. When a law enforcement officer ran defendant’s true
name on a database, the officers learned that there was an
outstanding warrant for arrest and extradition of
defendant from New York for a narcotics offense.
4. The house and defendant’s person had the odor of
marijuana.
5. Based on defendant’s giving a false name and the fact
that defendant smelled of marijuana, Officer Honaker told
defendant that he intended to conduct a “strip search” of
defendant.
6. Prior to removing defendant’s pants, Officer Honaker
observed particles of white crystalline powder on the floor
where defendant had been standing.
1 In his appellate brief, defendant repeatedly asserts that he was subject to “a strip and body
cavity search.” The evidence is undisputed, however, that the contraband was discovered as soon as
defendant’s underwear was lowered or removed and that Officer Honaker did not search defendant’s
“body cavities.”
- 16 -
STATE V. COLLINS
Opinion of the Court
Defendant argues on appeal that the search was conducted in the absence of
any particularized suspicion that he was concealing drugs on his person or that there
were any exigent circumstances. Defendant’s only support for this position is his
assertion that, in assessing the reasonableness of Officer Honaker’s search, the trial
court was barred from consideration of the cocaine observed on the floor where
defendant had been standing. Defendant contends that, pursuant to this Court’s
holding in Battle, exigent circumstances must be present before the “initiation” of a
strip search and that in this case the search was “initiated” when Officer Honaker
grabbed at defendant’s belt. During the hearing on defendant’s suppression motion,
however, defendant was specifically asked by the trial court to comment on the
relevance of the cocaine on the floor to the issue of the reasonableness of the search.
Defendant’s only argument was that the presence of powder on the floor did not
provide “grounds for arrest” because it had not been “field tested” at that point.
Defendant never argued that the trial court could not consider the presence of the
powder because Officer Honaker observed the powder after he had decided to search
defendant.
N.C.R. App. Proc. 10(a)(1) provides that “[i]n order to preserve an issue for
appellate review, a party must have presented to the trial court a timely request,
objection, or motion, stating the specific grounds for the ruling the party desired the
court to make” and that the party must also “obtain a ruling upon the party’s request,
- 17 -
STATE V. COLLINS
Opinion of the Court
objection, or motion.” “Where a theory argued on appeal was not raised before the
trial court, the appellate court will not consider it because ‘[a] defendant may not
swap horses after trial in order to obtain a thoroughbred upon appeal.’ ” State v.
Henry, __ N.C. App. __, __, 765 S.E.2d 94, 99 (2014) (quoting State v. Benson,
323
N.C. 318, 322,
372 S.E.2d 517, 519 (1988), abrogated in part on other grounds by State
v. Hooper,
358 N.C. 122,
591 S.E.2d 514 (2004)). Accordingly, because defendant
failed to raise the timing of Officer Honaker’s observation of powder on the floor “as
an issue in the trial court at the hearing on his motion to suppress, the issue is not
properly before this Court on appeal, and we therefore will not consider it.”
Id. (citing
State v. Eason,
328 N.C. 409, 420,
402 S.E.2d 809, 814 (1991), and Benson,
323 N.C.
at 321,
372 S.E.2d at 519).
We conclude that in ruling on defendant’s motion to suppress evidence the trial
court could properly consider the fact that Officer Honaker saw a white crystalline
substance on the ground where defendant had been standing. This observation
created the exigent circumstances found by the trial court in that “the fact that the
crystals [were] on the floor where defendant was standing indicated that they were
leaving the defendant’s person quickly leading to possible loss or destruction of
evidence and that the bag of cocaine was not sealed leading to a danger to the
defendant of absorbing some of the substance through his large intestine.” The
- 18 -
STATE V. COLLINS
Opinion of the Court
presence of a white powder where defendant had been standing also gave rise to a
reasonable suspicion that defendant was concealing narcotics under his clothes.
Defendant further contends that the search was unreasonable because there
were others present in the apartment who might have observed the officer’s search of
defendant. In support of this contention, defendant cites cases discussing searches
conducted by the side of a road or in another public location. In this case, however,
defendant was searched in the dining area of a private apartment. In its order the
trial court concluded in relevant part that the “place the search was conducted was
in the dining area, removed or away from other people and that provided some
privacy” and that “[t]he search was conducted by officers of the same sex and the only
female present at the residence, according to the evidence, was Jessica Farthing the
defendant’s girlfriend.” We find that the undisputed findings that the search was
conducted in a private residence and in a separate room from the others who were in
the apartment adequately supported the trial court’s conclusion that the law
enforcement officers exercised reasonable concern for defendant’s privacy. For the
reasons discussed above, we conclude that the trial court did not err by denying
defendant’s suppression motion.
IV. Right to be Present at Sentencing
Defendant also argues that his sentence was imposed in violation of his right
to be present when the judgment against him was entered. This argument has merit.
- 19 -
STATE V. COLLINS
Opinion of the Court
“It is well-settled that a defendant has a right to be present at the time that
his sentence is imposed.” State v. Leaks, __ N.C. App. __, __, 771 S.E.2d 795, 799,
disc. review denied, __ N.C. __,
775 S.E.2d 870 (2015) (citing State v. Crumbley,
135
N.C. App. 59, 66,
519 S.E.2d 94, 99 (1999)). In Leaks the “trial court, in the presence
of defendant, sentenced defendant . . . to a minimum term of 114 months and a
maximum term of 146 months imprisonment. Subsequently, the trial court entered
written judgment reflecting a sentence of 114 to 149 months active prison time.” This
Court held:
Given that there is no indication in the record that
defendant was present at the time the written judgment
was entered, the sentence must be vacated and this matter
remanded for the entry of a new sentencing judgment. . . .
Under the North Carolina structured sentencing chart, if
the trial court intended to sentence defendant to 114
months minimum incarceration, it was required to impose
the 149 month maximum term. However, if the trial court
intended to impose a maximum term of 146 months, it was
required to impose the corresponding minimum term of
111 months imprisonment. Regardless, there is no
evidence that defendant was present when the trial court
entered its written judgments. Because the written
judgments reflect a different sentence than that which was
imposed in defendant's presence during sentencing, we
must vacate defendant's sentence and remand for the entry
of a new sentencing judgment.
Leaks, __ N.C. App. at __, 771 S.E.2d at 799-800 (citing Crumbley and State v.
Hanner, 188 N.C. App. 137, 141,
654 S.E.2d 820, 823 (2008)).
In the instant case, the trial court orally sentenced defendant to a prison term
of thirty-five to forty-two months. The written judgment sentenced defendant to
- 20 -
STATE V. COLLINS
Opinion of the Court
imprisonment for thirty-five to fifty-one months. As in Leaks, the original sentence
was for a minimum sentence that did not correspond to the orally announced
maximum sentence, requiring the trial court to either identify the appropriate
maximum sentence where the minimum sentence is thirty-five months, or to identify
the correct minimum sentence for a maximum sentence of forty-two months.
Defendant was not present when the trial court made its decision and had no
opportunity to argue for the imposition of the shorter sentence. Accordingly, the facts
of this case are indistinguishable from Leaks, and require us to remand for
resentencing.
For the reasons discussed above, we hold that the trial court did not err by
denying defendant’s motion to suppress evidence obtained at the time of his arrest,
and that the judgment in this case must be vacated and the case remanded for a new
sentencing hearing.
NO ERROR IN PART, VACATED AND REMANDED IN PART.
Judge BRYANT concurs in the result.
Judge ELMORE dissents in a separate opinion.
- 21 -
No. COA15-540–State v. Collins
ELMORE, Judge, dissenting.
I respectfully disagree with the majority’s conclusion that the strip search was
reasonable and did not violate defendant’s rights under the Fourth Amendment. I
would conclude that the trial court erred in denying defendant’s motion to suppress
as the officers did not have a justification to perform the strip search. No exigent
circumstances or supporting facts existed prior to initiating the strip search to justify
the heightened intrusion into defendant’s right to privacy. Alternatively, there were
no reasonable grounds to believe that defendant was secreting a controlled substance
under his outer clothing, obviating the need for exigent circumstances and additional
facts. The trial court’s conclusions of law in paragraphs four, five, and seven are not
supported by any competent evidence.
On appeal, defendant argues that at the inception of the strip search, neither
particularized probable cause nor exigent circumstances justified the strip search.
Defendant argues, “[T]he trial court improperly relied on Officer Honaker’s
observation of the white crystal substance on the floor in determining whether the
totality of the circumstances justified the search.” Further, he argues, “The smell of
marijuana did not provide Officer Honaker with the requisite probable cause to
believe [defendant] had contraband concealed in his underwear or buttocks[.]”
Defendant also claims that his arrest, based on a drug offense that “occurred at a
different time and in a different state” did not justify the strip search. Lastly,
“Whether [defendant] gave a false name to avoid arrest does not speak to—let alone
STATE V. COLLINS
ELMORE, J., dissenting
provide probable cause to believe—that [defendant] had secreted contraband beneath
his underwear or in his buttocks, and thus cannot serve as justification for the strip
and cavity search.” I agree.
In State v. Battle, this Court stated, “For a search to comply with the
requirements of Fourth Amendment jurisprudence, there must be sufficient
supporting facts and exigent circumstances prior to initiating a strip search to justify
this heightened intrusion into a suspect’s right to privacy.” 202 N.C. App. 376, 392,
688 S.E.2d 805, 817 (2010). The majority cites to State v. Robinson, decided by this
Court after Battle. In Robinson, we “conclude[d] that the mode of analysis outlined
in Battle and adopted in Fowler only applies in the event that the investigating
officers lack a specific basis for believing that a weapon or contraband is present
beneath the defendant’s underclothing.” State v. Robinson,
221 N.C. App. 266, 281,
727 S.E.2d 712, 722 (2012); State v. Fowler,
220 N.C. App. 263, 268,
725 S.E.2d 624,
629 (2012) (“[T]he requirements of probable cause and exigent circumstances must
be established to justify the strip searches of defendant in the present case, as
enunciated in Battle.”) see also State v. Johnson,
225 N.C. App. 440, 451,
737 S.E.2d
442, 449 (2013); (“Battle does not apply because there was sufficient information to
provide a sufficient basis for believing that contraband was present beneath
defendant’s underwear.”) (citations and quotations omitted). As a result, in Robinson,
we held that the evidence “indicate[d] that various items of drug-related evidence
2
STATE V. COLLINS
ELMORE, J., dissenting
were observed in the vehicle in which Defendant was riding, that Defendant made
furtive movements towards his pants, and that Detective Tisdale felt a hard object
between Defendant’s buttocks.” Robinson, 221 N.C. App. at 281,
727 S.E.2d at 722.
“For that reason, it is clear that Detective Tisdale had ample basis for believing that
contraband would be discovered beneath Defendant’s underclothing.”
Id.
The majority declines to decide whether the trial court was required to find the
existence of exigent circumstances and evidence supporting a reasonable belief that
defendant was secreting a controlled substance from under his outer clothing.
Assuming that it was, the majority concludes that both were present. The majority
finds exigent circumstances in the fact that the crystals found on the floor in the
dining room indicated that they were leaving defendant’s person quickly, leading to
possible destruction of evidence and danger to defendant. Additionally, the majority
finds that the presence of the white powder also gives rise to a reasonable suspicion
that defendant was concealing narcotics under his clothes. For the reasons stated
below, this evidence, found only after initiating the strip search, cannot provide a
justification to conduct the search.
The mode of analysis outlined in Battle applies because the investigating
officers lacked sufficient information providing a specific basis for believing that a
weapon or contraband was present beneath defendant’s underclothing. Robinson,
221 N.C. App. at 281,
727 S.E.2d at 722. Accordingly, I contend that the trial court
3
STATE V. COLLINS
ELMORE, J., dissenting
was required to find exigent circumstances and sufficient supporting facts justifying
the heightened intrusion into defendant’s right to privacy, and that neither
requirement was present here. Although Battle dealt with a roadside strip search
and the strip search conducted here took place inside a home, the place in which the
strip search was conducted is only one factor in the totality of the circumstances
inquiry, and the analysis is still controlling.
In addressing exigent circumstances and the justification for initiating the
strip search, the trial court’s conclusions of law state the following:
The court finds that there were exigent circumstances
including: the fact that the crystals on the floor where
defendant was standing indicated that they were leaving
the defendants person [sic] quickly leading to possible loss
or destruction of evidence and that the bag of cocaine was
not sealed leading to a danger to the defendant of absorbing
some of the substance through his large intestine. . . .
The officers had justification to perform the search. Officer
Honaker had a specific basis to believe drugs were hidden
on the defendant because of the cocaine where the
defendant was standing and the odor of marijuana coming
from defendant’s person. Further the defendant’s actions
of giving a false name, attempting to conceal his identity to
avoid arrest further justified the search.
I respectfully disagree with the majority’s conclusion that based on Rule 10 of
our Rules of Appellate Procedure we cannot consider defendant’s argument that the
trial court erred in considering the presence of the white powder in justifying the strip
search.
4
STATE V. COLLINS
ELMORE, J., dissenting
At the hearing, the trial court stated to defendant’s counsel, “[The State’s]
saying it’s a search incident to the arrest. Do you have any response?” Defendant’s
counsel responded that this was not a search incident to arrest because the police
officers did not have probable cause to arrest defendant. Defendant’s counsel argued
that the police officers only knew that there was an outstanding warrant possibly for
defendant that they needed to look into and that they smelled burnt marijuana in the
residence. The trial court then asked defendant’s counsel, “What about the powder
on the floor?” He responded that, without knowing what the substance was, there
were no grounds for an arrest.
Based on this, the majority concludes that “because defendant failed to raise
the timing of Officer Honaker’s observation of powder on the floor ‘as an issue in the
trial court at the hearing on his motion to suppress, the issue is not properly before
this Court on appeal, and we therefore will not consider it.’ ” I contend, however, that
defendant may properly argue on appeal that the trial court’s conclusions of law were
in error. “Conclusions of law are reviewed de novo and are fully reviewable on
appeal.” State v. Williams, 366 N.C. 110, 114,
726 S.E.2d 161, 165 (2012) (citations
and quotations omitted).
Here, Officer Honaker made the decision to conduct a strip search of defendant
when defendant was in the living room. Accordingly, the trial court was required to
analyze the justification for the strip search based on facts known to the officers up
5
STATE V. COLLINS
ELMORE, J., dissenting
to that point. The State may not justify the strip search based on facts acquired after
initiating the strip search, even if such facts became known just prior to the most
intrusive part of the search—removal and/or lowering of defendant’s pants and
boxers. Thus, the fact that Officer Honaker observed a white powder on the floor in
the dining room after attempting unsuccessfully to disrobe defendant cannot justify
his earlier decision to conduct the strip search. Likewise, it cannot serve as the
exigent circumstance or supporting fact.
In Battle, this Court stated the following:
More relevant to our analysis, Defendant’s reaction to
Detective Curl’s attempts to unzip her pants was not, as
the trial court stated, “immediately prior to [Defendant’s]
being search[ed].” At the time Defendant reached towards
the top of her pants, Detective Curl had already initiated
the strip search, as she was in the process of attempting to
unzip Defendant’s pants. Defendant’s actions during the
strip search cannot retroactively serve as a basis for
justifying that strip search.
202 N.C. App. at 392,
688 S.E.2d at 817 (emphasis added). Here, the trial court
similarly concluded that defendant’s reaction to Officer Honaker’s attempt to
unbuckle his belt was before the strip search began, and that conclusion cannot stand.
As in Battle, I would conclude that the strip search violated defendant’s Fourth
Amendment rights. Without considering the white powder, the only justification for
conducting the strip search was the smell of marijuana, defendant providing a false
first name, and an outstanding warrant in New York for a drug offense. The officers
6
STATE V. COLLINS
ELMORE, J., dissenting
went to Farthing’s home looking for Farthing. They were not looking for defendant,
they were not acting on a confidential informant’s tip that defendant was carrying
drugs, see Fowler, 220 N.C. App. at 273,
725 S.E.2d at 631 (emphasizing that the strip
search “of defendant was based on corroborated information that defendant himself
would be carrying drugs”), and they did not feel a blunt object in defendant’s crotch
area during the patdown, see Johnson,
225 N.C. App. at 452,
737 S.E.2d at 449
(“[M]ost significantly, Trooper Hicks felt a blunt object in defendant’s crotch area
during the pat-down, directly implicating defendant’s undergarments.”). “The record
shows that the strip search was conducted on the mere possibility that drugs would
be found on Defendant’s person. . . . This fails to meet constitutional muster.” Battle,
202 N.C. App. at 392,
688 S.E.2d at 818. There must be more than a mere possibility
that a suspect could be hiding contraband in his undergarments “in order to justify
an intrusion of the magnitude of a strip search.”
Id. at 399,
688 S.E.2d at 822.
7
