Opinion
No. COA02-1428
Filed 2 December 2003 This case not for publication
Appeal by defendant from judgment entered 2 May 2002 by Judge W. Allen Cobb, Jr. in Columbus County Superior Court. Heard in the Court of Appeals 7 October 2003.
Attorney General Roy Cooper, by Assistant Attorney General William McBlief, for the State. William H. Dowdy for defendant-appellant.
Columbus County, Nos. 01 CRS 052441, 01 CRS 052443.
Defendant appeals convictions for robbery with a dangerous weapon and second degree kidnapping on the grounds that the trial court erroneously ruled on two separate motions to suppress evidence. We find no error.
I.
Defendant was indicted for one count of robbery with a dangerous weapon and two counts of second degree kidnapping. Before trial, defendant filed two motions to suppress evidence. The first motion pertained to the following items: a roll of money taken from defendant's pants pocket, a "do-rag" taken from a vehicle driven by defendant, and a .22 caliber revolver seized from the same vehicle which were allegedly obtained in violation of the Fourth Amendment to the United States Constitution. The second motion pertained to identifications of the defendant made by two witnesses in a show-up procedure; defendant alleged that the show-up procedure was impermissibly suggestive in violation of the Due Process Clause of the Fourteenth Amendment to the Federal Constitution.
At the suppression hearing, the State presented evidence tending to show the following: On 7 July 2001 the store manager of Family Dollar Store number seventy-two, in Whiteville, North Carolina, approached off-duty deputy Tom Arnold in the store parking lot and told him that the person who had just left the store had been acting in a suspicious fashion. Deputy Arnold had noticed the same individual, whom he had seen walk around to the back of the store. A few minutes later, Deputy Arnold noticed a suspicious green sports utility vehicle behind the Family Dollar. The deputy was unable to get the license plate number by following the vehicle on the highway, but he eventually obtained the plate number of the vehicle, which he gave to the store manager. Deputy Arnold testified that he had seen the defendant driving the vehicle when he got the license plate number. The store manager had not seen the vehicle.
Between 6:00 and 6:30 p.m. on 22 July 2001, the same Family Dollar was robbed at gunpoint. Just after closing, the manager and another employee were confronted by a slim, light-skinned black male, approximately five feet eleven inches tall and weighing one hundred fifty pounds. The employees later told police that the perpetrator had been wearing a "do-rag" on his head, that he was missing some front teeth, and that he spoke with a stutter. The man stood at approximately an arm's length and brandished a small, silver gun. He forced the employees to go to the store room to get him some money. The store manager reported that the robber took $615.95, most of which was cash but some of which was checks.
Both employees testified that they were able to see the robber's face. Neither employee saw the robber's vehicle before or after the encounter. At some point after the robbery, the store manager recognized the individual who committed the robbery as being the same individual who she had reported as acting suspicious in her store on 7 July 2001.
Sergeant William Nealey and two other officers arrived at the crime scene shortly after 6:17 p.m. pursuant to a call made by the store manager. The employees provided the officers with a description of the perpetrator and the amount of money that was taken. The store manager also indicated her belief that the robber was the same person who had aroused her suspicion on 7 July. She provided the officers with the tag number obtained by Deputy Arnold, and indicated that the tag number was on a "green Jimmy."
Sergeant Nealey ran the tag number. At 6:37 p.m., Sergeant Nealey was informed by radio communication that the tag was registered as a "1996 GMC Dodge," owned by Ardella Bell. The registered owner's address was also provided: 105 Dixon Place. After receiving the information, Sergeant Nealey immediately went to the reported address. Upon arrival, the sergeant saw a "green Jimmy" backed between two mobile homes, one of which bore the address 105 Dixon Place. Because it had recently rained, tire tracts left by the vehicle were noticeably fresh. The hood of the vehicle was warm to touch. A neighbor indicated that a man living at 105 Dixon Place owned the vehicle and that the vehicle's owner had arrived home recently. The neighbor also informed the officers that the man who lived at 105 Dixon Place was missing front teeth and stuttered when he spoke. Sergeant Nealey knocked on the back door of the mobile home, and defendant's mother, Ardella Bell, answered. When asked who had just parked the "Jimmy" in the yard, she responded, "My son." Pursuant to a request by the sergeant, Ms. Bell went inside to retrieve her son. Ms. Bell indicated that her son would be out shortly. Sergeant Nealey and another officer, Officer Smith, waited in the yard behind the house.
Officer Davis, who had been called to watch the front of the house, told Sergeant Nealey that someone was looking out of the front window. The sergeant testified regarding what occurred next:
[A] lady then came outside where we were at. I was — at this point I was starting to fear that the subject inside the house might have a gun. He was looking out windows. We were outside in an open area. So I went inside the mobile home with my gun drew [sic].
Sergeant Nealey entered the mobile home sometime between 6:30 and 7:00 p.m.
Defendant was in the living room, unarmed, and wearing only a pair of boxer shorts. Sergeant Nealey holstered his gun and asked the defendant to step outside. Defendant attempted to forcibly remove Sergeant Nealey from the house, at which point Officers Smith and Davis entered the home. Defendant was handcuffed, taken outside, and placed in a patrol car.
Defendant began shouting that he wanted a pair of pants. Defendant's mother went inside and retrieved a pair of jeans. Before defendant was given the jeans, Sergeant Nealey searched the pockets for weapons and contraband The search revealed a "lump in one pocket" which turned out to be what the officer described as "a roll" of money. Another officer counted the money and determined the amount to be $588 in paper bills and $1.27 in coins.
Detective Bobby Benton asked defendant's mother, the registered owner of the vehicle, for her consent to search the green sports utility vehicle. He testified that Ms. Bell consented and provided the keys to the vehicle. Under the driver's seat Detective Benton found a "do-rag" and a .22 caliber revolver.
Defendant was taken to the Whiteville Police Department and given his Miranda warnings. Defendant was then placed in a room with a two-way mirror. Defendant could not see behind the mirror, but people on the other side of the mirror could see him. Defendant was the only person in the room, and he was not given a shirt to wear. The Family Dollar employees were given an opportunity to view the defendant through the mirror to ascertain whether they could identify him. Without hesitation, both employees identified defendant as the person who robbed the store. These identifications occurred sometime between one and two hours after the robbery.
The trial court denied defendant's motion to suppress the money, gun, and "do-rag." The trial court granted defendant's motion to suppress the show-up identification, but ruled that the witnesses could make in-court identifications of the defendant. The trial court also indicated that defendant would open the door to evidence about the show-up if he attempted to impeach the State's witnesses with questions about whether the show-up procedure aided their in-court identifications.
A jury convicted defendant of armed robbery with a dangerous weapon and one count of second degree kidnapping. The trial court arrested judgment with respect to kidnapping. Defendant appeals, contending (1) the trial court erred in denying defendant's motion to suppress evidence obtained following the arrest of defendant in his home, and (2) the trial court erroneously ruled that the defendant would open the door to evidence about the show-up identifications if he asked questions about the show-up for impeachment purposes.
II.
Defendant's first argument on appeal is that the trial court improperly denied his motion to suppress the money, gun, and do-rag seized from his pants and vehicle. Defendant contends that the detention in his home was unlawful because it was not conducted pursuant to a warrant or an exception therefor, thus rendering the evidence subsequently obtained the fruit of an unlawful seizure of his person. See State v. Pope, 333 N.C. 106, 113-14, 423 S.E.2d 740, 744 (1992). We do not agree.
"`It is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.'" State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997) (quoting Payton v. New York, 445 U.S. 573, 586, 63 L.Ed.2d 639, 651 (1980)) (internal quotation marks omitted). However, warrantless entries into a citizen's home are permissible where both probable cause and exigent circumstances exist to justify the intrusion. See Minnesota v. Olson, 495 U.S. 91, 100, 109 L.Ed.2d 85, 95-96 (1990); State v. Guevara, 349 N.C. 243, 250, 506 S.E.2d 711, 716 (1998).
The probable cause required to justify a search must constitute "a reasonable ground to believe that the proposed search will reveal the presence, upon the premises to be searched, of the objects [or person] sought. . . ." State v. Riddick, 291 N.C. 399, 406, 230 S.E.2d 506, 511 (1976). "Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. . . ." State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971) (quoting 5 Am.Jur.2d Arrests § 44 (1962)).
"[T]he degree of certainty necessary for probable cause is a `fair probability,' an amount of proof greater than `reasonable suspicion' but less than `preponderance of the evidence,' `clear and convincing,' or `beyond a reasonable doubt.'" State v. Crawford, 125 N.C. App. 279, 282, 480 S.E.2d 422, 424 (1997). The North Carolina Supreme Court has indicated that "the circumstances leading to a [search or] seizure should be viewed, not in isolation, but as a whole, "`through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training.'" State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779 (1979) (quoting United States v. Hall, 525 F.2d 857, 859 (D.C. Cir. 1976)).
The existence of exigent circumstances is determined based on the totality of the circumstances. Guevara, 349 N.C. at 250, 506 S.E.2d at 716. This Court has enumerated certain factors which are relevant in determining whether exigent circumstances are present:
(1) the degree of urgency involved and the time necessary to obtain a warrant; (2) the officer's reasonably objective belief that the contraband is about to be removed or destroyed; (3) the possibility of danger to police guarding the site; (4) information indicating the possessors of the contraband are aware that the police are on their trail; and (5) the ready destructibility of the contraband
State v. Wallace, 111 N.C. App. 581, 586, 433 S.E.2d 238, 241-42 (1993).
In the present case, Sergeant Nealey knew that a store had been robbed at gunpoint. The officer had been given a license plate number, which led the officer to defendant's home. At defendant's home, the officer found the vehicle bearing the tag number. That vehicle had been linked to the individual who the store manager believed to be the armed robber. The robbery had recently occurred, and the vehicle's hood was warm. Preliminary investigation revealed that defendant had arrived in the vehicle minutes earlier, and a neighbor's description of defendant matched the witness' description of the culprit. On these facts, there was probable cause to enter the house.
Moreover, a dangerous weapon, recently used to commit a felony, remained unaccounted for. The person inside the mobile home was not complying with the officer's request to exit his home, but was instead looking out a window. Officers and civilians were out in the open. The destruction of evidence was a possibility. Thus, exigent circumstances existed to excuse the requirement for a warrant to enter the house.
Having lawfully entered the home pursuant to exigent circumstances, see Wallace, 111 N.C. App. at 586, 433 S.E.2d at 241-42, Sergeant Nealey observed someone fitting the description of the robber provided by the store employees. A neighbor and defendant's mother had informed the officer that the individual arrived home only moments before in the vehicle which had been linked to the perpetrator of the robbery. On these facts, there was probable cause for Sergeant Nealey to arrest the defendant in his home. See Harris, 279 N.C. at 311, 182 S.E.2d at 367 (defining probable cause). Where probable cause and exigent circumstances exist, the police are not required to obtain a search warrant to effectuate an arrest of an individual in his home. See Guevara, 349 N.C. at 250, 506 S.E.2d at 716; see also N.C.G.S. § 15A-401(b)(2)(a) (2001) (authorizing warrantless arrests where a police officer has probable cause to believe a person has committed a felony).
Accordingly, the arrest cannot serve as the basis for suppressing the evidence subsequently obtained. We conclude that all of the subsequent searches were conducted pursuant to well-recognized exceptions to the warrant requirement.
The roll of money found during the search of defendant's pants was discovered during a permissible search incident to a lawful arrest. Defendant was already in custody, and the pants were being placed within "the area from within which [an arrestee] might gain possession of a weapon or destructible evidence." State v. Thomas, 81 N.C. App. 200, 210, 343 S.E.2d 588, 594 (1986) (quoting Chimel v. California, 395 U.S. 752, 763, 23 L.Ed.2d 685, 694 (1969)). Thus, the trial court did not err in ruling that the money recovered from defendant's pants was admissible.
The "do rag" and the .22 caliber revolver were discovered in the course of a permissible consent search. "Consent . . . has long been recognized as a special situation excepted from the warrant requirement, and a search is not unreasonable within the meaning of the Fourth Amendment when lawful consent to the search is given." State v. Barden, 356 N.C. 316, 340-41, 572 S.E.2d 108, 125 (2002) (quoting Smith, 346 N.C. at 798, 488 S.E.2d at 213 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed.2d 854 (1973))). Ardella Bell, the record owner of the vehicle, consented to the search. Thus, the trial court did not err in concluding that the "do rag" and the .22 caliber revolver were admissible at trial.
III.
We turn next to whether the trial erred in ruling that defendant would open the door to show-up identification evidence from the State if he attempted to use the show-up identification to impeach the State's witnesses' in-court identifications of defendant. Defendant contends that his constitutional rights were violated because he could not demonstrate that the show-up procedure tainted the in-court identifications without having the identifications made at the show-up come into evidence. We disagree.
"Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially." State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981). "[T]he law . . . permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself." Id.
In the present case, the trial court suppressed the identifications made during the show-up procedures. Such evidence could not be used against defendant. However, the trial court properly ruled that if the defendant presented evidence about the show-up, then he would open the door to evidence about the show-up by the prosecution. Defendant contends that, notwithstanding this rule of evidence, the trial court's ruling inappropriately denied him a cornucopia of federal constitutional rights because it prevented him from confronting the witnesses against him. Nothing prevented defendant from questioning the witnesses. The trial court's ruling simply contemplated that the witnesses would be able to fully explain their answers. Defendant's contention on appeal is without merit.
The trial court did not err in ruling that cross-examination about the show-up would open the door to evidence from the State concerning the show-up.
No error.
Judges WYNN and TYSON concur.