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State v. Howell

North Carolina Court of Appeals
Apr 1, 1981
51 N.C. App. 507 (N.C. Ct. App. 1981)

Summary

holding warrantless search of probationer by law enforcement valid after probation officer received a tip that the defendant was using drugs

Summary of this case from State v. Patrick

Opinion

No. 8027SC952

Filed 21 April 1981

Criminal Law 142.3; Searches and Seizures 13 — probation condition — consent to searches by probation officer — participation of law officers in search Where a valid condition of defendant's probation required her to submit at reasonable times to warrantless searches by a probation officer of her person, vehicle and premises as authorized by G.S. 15A-1343(b)(15), a probation officer's search of defendant's home was not unlawful because the officer was accompanied by four police officers who also participated in the search, and evidence discovered during the search was admissible in defendant's probation revocation hearing.

APPEAL by defendant from Lewis, Judge. Order signed 12 June 1980 in Superior Court, CLEVELAND County. Heard in the Court of Appeals 11 February 1981.

Attorney General Edmisten, by Assistant Attorney General David Roy Blackwell, for the State.

O. Max Gardner III for defendant appellant.


Judge CLARK dissenting.


Upon defendant's plea of guilty to forgery of a prescription for a controlled substance, she was given a suspended sentence and placed on probation for five years. Conditions of defendant's probation included, along with other terms, that she: "(1) Submit at reasonable times to warrantless searches by a probation officer of his person, and of his vehicle and premises while he is present, for purposes reasonably related to his probation supervision" and "(m)(4) That she not have on or about her possession any form of prescription or written prescription whatsoever for any Controlled Substance."

The State's evidence, through the testimony of Joyce D. Lee, defendant's probation officer, established that defendant's residence was searched by the probation officer and four law enforcement officers. The probation officer testified that a week before the search an informant advised her that defendant was using drugs. The day of the search, Sergeant Boyes of the Shelby Police Department, notified Joyce Lee that according to a reliable informant defendant had prescriptions, drugs and stolen merchandise in her possession.

As a result of the search several prescription forms were found in the basement of defendant's house, and several items of stolen merchandise were found in the back yard. No search warrants were obtained by the police officers.

Defendant appeals from the denial of her motion to suppress the items found in the warrantless search and the subsequent revocation of her probation.


Assignments of error by defendant on this appeal question the legality of the warrantless search of her residence. She concedes the validity of the condition of her probation that she submit to reasonable searches by her probation officer. However, she contends that G.S. 15A-1343(b)(15) only authorizes a warrantless search of a probationer's home by a probation officer, and that police officers may not participate, either directly or indirectly, in the warrantless search. The probation officer, according to defendant's view of G.S. 15A-1343(b)(15), could not request assistance of police officers to conduct the search.

G.S. 15A-1343(b)(15) provides that as a condition of probation the court may require the probationer to:

(15) Submit at reasonable times to warrantless searches by a probation officer of his person, and of his vehicle and premises while he is present, for purposes reasonably related to his probation supervision. The Court may not require as a condition of probation that the probationer submit to any other search that would otherwise be unlawful.

Arguing that the evidence obtained in the search should have been excluded, defendant cites this Court's opinion in State v. Grant, 40 N.C. App. 58, 252 S.E.2d 98 (1979), for the proposition that law enforcement officials may not accompany a probation officer in a warrantless search of a probationer's home. In Grant, no search was ever made, but the probation condition that defendant submit to a warrantless search at the request of any law enforcement officer was struck down as violative of G.S. 15A-1343. The situation in Grant, however, is unlike the case now before us. The probation condition in the case sub judice provided that defendant submit to searches by her probation officer. We do not agree with defendant that the presence of the police officers brings the case within the purview of Grant.

Defendant admits that Joyce Lee and the officers arrived at her home together, and that Lee was present throughout the search of the residence. Joyce Lee testified that she enlisted the aid of the law enforcement officers, and that she actively participated in the search of the basement. The probation officer testified that after defendant failed to respond to her knocking at the door, she and the officers went around to the back of the house seeking entrance, and there discovered in plain view stolen merchandise still in the packing crates. When defendant finally opened the door, she was arrested, and the probation officer, along with the law enforcement officers, searched the house.

We find no merit in defendant's contention that Joyce Lee's actions in bringing the four law enforcement officers to help with the search was unreasonable. Joyce Lee stated that she knew defendant was living with a man, and that she would not have gone to the house without police assistance. As the State points out, it would have been difficult for Ms. Lee to conduct a useful search of the house described in the record, and keep watch of two individuals at the same time. A probation officer's search as authorized by G.S. 15A-1343(b)(15) is not necessarily invalid due to the presence, or even participation of, police officers in the search.

Moreover, we are not persuaded by defendant's argument that the warrantless search was initiated and accomplished by the police and was therefore unreasonable. Through the testimony of Joyce Lee the evidence is sufficient to support the trial court's finding that "under the circumstances disclosed by this evidence" the search was reasonable.

The order of the trial court revoking defendant's probation is

Affirmed.

Judge MARTIN (Harry C.) concurs.

Judge CLARK dissents.


Summaries of

State v. Howell

North Carolina Court of Appeals
Apr 1, 1981
51 N.C. App. 507 (N.C. Ct. App. 1981)

holding warrantless search of probationer by law enforcement valid after probation officer received a tip that the defendant was using drugs

Summary of this case from State v. Patrick

rejecting the defendant's argument that the presence of police officers to help with the warrantless search pursuant to N.C. Gen. Stat. § 1343(b) made the search unreasonable

Summary of this case from State v. Lucas

In State v. Howell, 51 N.C.App. 507, 277 S.E.2d 112 (1981), the defendant's probation officer received a tip from an informant that the defendant was using drugs.

Summary of this case from State v. Powell
Case details for

State v. Howell

Case Details

Full title:STATE OF NORTH CAROLINA v. BARBARA SULLENS HOWELL

Court:North Carolina Court of Appeals

Date published: Apr 1, 1981

Citations

51 N.C. App. 507 (N.C. Ct. App. 1981)
277 S.E.2d 112

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