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North Carolina v. Prevette

Filed: November 6, 1979.


Appeal by defendants from Cowper, Judge. Judgments entered 23 March 1978 in superior Court, Lenoir County. Heard in the Court of Appeals 5 December 1978.

Martin (Harry C.), Judge. Chief Judge Morris and Judge Parker concur.


In State v. Prevette, 39 N.C. App. 470, 250 S.E.2d 682, disc. rev. denied, 297 N.C. 179, 254 S.E.2d 38 (1979), this Court held the stipulation by the state and defendants that all defendants had standing to challenge the validity of the searches and seizures was invalid and not binding upon it. We remanded to superior court for a factual determination of whether defendants

or any of them had a protectible interest in the searched premises under the Fourth Amendment of the United States Constitution. A hearing was held 4 September 1979. That court found facts and concluded that all defendants did have standing to challenge the legality of the search. The state did not except to this ruling of the trial judge; therefore, it is not presented to this Court for review.

We now address the question whether defendants have a meritorious challenge to the trial court's denial of their motions to suppress the evidence obtained by search and seizure.

Defendants initially object to certain findings of fact made by the trial judge at the hearing on their motions to suppress. They argue that these four findings are not supported by the evidence and even conflict with it.

The judge found that after receiving a telephone call from an "unknown tipster" who reported that a house near Wood's Dairy Farm in Lenoir County was full of marijuana, Deputy Sheriff Robert Pelletier discussed the tip with Kinston police officers. Having decided that the information was not sufficient to obtain a search warrant, "they decided to go to LaGrange to attempt to get further information about the situation by conducting a general inquiry and investigation of the area by determining whether or not the houses were occupied and then interviewing the occupants, if any; . . . ." Defendants' objection to the quoted portion of the finding is based on testimony by four of the officers that their sole purpose in going to that section of the county was to locate the marijuana referred to in the phone call.

When the trial judge's findings of fact are supported by competent evidence they will not be disturbed on appeal, even though the evidence is conflicting. State v. Small, 293 N.C. 646, 239 S.E.2d 429 (1977); State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971). We find competent evidence in the record to support this finding. Detective Lt. Smith of the sheriff's department testified: "We just decided to get in the car and go up to Jenny Lind and look for any signs of movement or anything else to give us an indication of where we should be looking primarily. We did not really have a plan." Furthermore, Smith testified: "We saw lights there, we were going to try to find out who was there or whatever. We were going to knock on the door." Other portions

of the record also reflect the fact that the officers intended to conduct a general investigation of the area.

The judge found that the officers proceeded to check out two locations in the Jenny Lind section of Lenoir County, the site of Wood's Dairy Farm. They approached a house at the second location, using a dirt path. They had no search warrant. They encountered a tractor parked across the path. As they walked up to the house they heard a back door slam. One of the defendants ran from the door and attempted to hide in a cornfield. He was apprehended and questioned. He went with the officers to the front of the house. The officers stepped into the light at the front of the house. The front door was open but a screen door barred the entrance. Defendants object to the finding "that the officers standing on the porch could see through this screen door; that they then observed in plain view inside the house green vegetable material scattered on the floor, which, in their opinion appeared to be marijuana; also they smelled an odor from inside which to them smelled like marijuana; . . . ." Here again, although Deputy Sheriff Pelletier testified that he did not detect any particular odor and could not see contraband or anything he considered to be contraband from the screen door, two other officers testified that they smelled marijuana and saw it scattered on the floor inside the house. This was competent evidence to support the challenged finding and it is conclusive on appeal.

The judge next found that the officers detected motion in the front room of the house and heard a noise of something or someone moving through the cornfield. They then entered the house searching for other suspects. Defendants object to the finding "that they searched the house finding three other defendants and additional marijuana in plain view; . . . ." There is evidence that the pasteboard box of marijuana found in a back room of the house did not have a lid on it. One officer said the marijuana was "stacked in a pile protruding above the level of the box." There was evidence that another officer did not recall seeing anything sticking out above the top of the box. Conflicts in the evidence were for the trial judge to resolve.

Defendants finally object to the finding that in order to look for anyone who might have made the noise in the cornfield, two officers "proceeded ...

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