Heard in the Court of Appeals August 14, 2014
This Decision is not final until expiration of the twenty-one day rehearing period. [North Carolina Rules of Appellate Procedure 32(b)]
Roy Cooper, Attorney
General, by R. Marcus Lodge, Special Deputy Attorney General, for the State.
Anne Bleyman, for defendant-appellant.
N.C. Appellate Defenders Office, Appellate Defender, Mr. Staples S. Hughes, for Defendant-Appellant.
Robert N. HUNTER, JR., Judge. Judges STEELMAN and GEER concur.
Appeal by defendant from order and judgment entered 8 August 2012 by
Judge W. Douglas Parsons New Hanover County. No. 10 CRS 60866-67 Superior Court.
HUNTER, JR., Robert N., Judge.
Supreme Justice Allah (" Mr. Allah" ) appeals from the denial of his motion to suppress, arguing that a warrant was needed for the search of his private residence though it is attached to an ABC licensed storefront. Mr. Allah also challenges the trial court's conclusions of law and findings of fact. For the following reasons, we affirm the trial court's order.
I. Facts & Procedural History
On 31 January 2011, a New Hanover County Grand Jury indicted Mr. Allah on charges of (i) possession of marijuana; (ii) possession with intent to manufacture, sell, and distribute marijuana; (iii) keeping and maintaining a place for the purpose of keeping and selling controlled substances; and (iv) possession of drug paraphernalia. On 12 July 2012, Mr. Allah made a motion to suppress all evidence resulting from illegal searches. The following month, on 7 August 2012, Mr. Allah's case came on for trial in New Hanover County before Judge W. Douglas Parsons. The trial judge denied the motion to suppress evidence. The transcript of the hearing tended to show the following facts.
Kenneth Simma (" Agent Simma" ) is a special agent with North Carolina Alcohol Law Enforcement (" ALE" ). Agent Simma testified that on 23 October 2010 at approximately 9:00 p.m., he and another ALE agent, Agent Price, went to a convenience store called The Caribbean Lion to conduct an inspection. When Agents Simma and Price arrived, two or three patrons were " hanging around" the main area of The Caribbean Lion, which consisted of a lobby, merchandise area, and a pool table. The patrons left the convenience store shortly after the ALE agents entered. Agent Simma testified that a juvenile male was working at the cash register. Once the agents identified themselves to the juvenile male, he turned around and yelled, " Mom, the police are here."
Shortly thereafter, Dianna Shabazz-Allah (" Mrs. Allah" ), the permittee, introduced herself to Agent Simma and allowed Agents Simma and Price to enter the cash register area. Mrs. Allah was the person primarily responsible for running the store at the time of the inspection. Agent Simma testified that he smelled marijuana upon entering the convenience store, but recalled the smell growing stronger once behind the cash register. Agent Simma explained to Mrs. Allah that he and Agent Price were there to conduct an inspection, and asked Mrs. Allah to turn over any marijuana. Mrs. Allah said the smell came from customers in the store.
At that point, the two agents went with Mrs. Allah into a kitchen area behind the cash register. The room contained large kitchen equipment, shelves on both sides, and a piece of plywood in one corner. According to Agent Simma, the odor of marijuana was stronger near the plywood. Agent Simma testified that the " piece of plywood opened up, and a little, four-year-old girl came out." Mrs. Allah explained she needed to go into the room behind the plywood because she had other children in there, and consented to the ALE agents going into the room with her
In the room behind the sheet of plywood, there were beds, a portable shower and toilet, and a television. In the room, another young male was watching television. The smell of marijuana continued to grow stronger. From there, Agent Simma asked Mrs. Allah for permission to enter another room, her bedroom, to which she consented. Mr. and Mrs. Allah's bedroom contained a couch and liquor bottles sitting on a bar.
The agents discussed the smell of marijuana with Mrs. Allah, asking her to hand over any marijuana on the premises. Mrs. Allah showed Agents Simma and Price an ashtray filled with marijuana ashes. At that point, Agent Simma also noticed a small bag of marijuana sitting in Mrs. Allah's open purse. Mrs. Allah handed the officers the small bag of marijuana.
For safety purposes, Agent Simma went to the front of the convenience store and asked the juvenile male to lock the doors because all the adults were in the back rooms. Agent Simma then asked him about any potential weapons in the building. At first, the boy said there were no weapons, but then remembered that his father always carried a taser, though the boy did not know the location of his father or the taser at that time.
Once Agent Simma returned to the living area behind the store, he leaned up against a bookshelf. As he did so, " the bookshelf opened up and Mr. Allah came out." According to Mrs. Allah, Mr. Allah was returning from his full-time job as a certified nursing assistant. Once Mr. Allah exited the hidden doorway, Agent Simma asked if he had permission to search Mr. Allah for safety purposes, to which Mr. Allah raised his hands. Agent Simma found cash, a set of keys, and a small bag of marijuana.
Mr. Allah described the room hidden behind the bookshelf as his " recording studio." Agent Simma requested permission to search the recording studio, but Mr. Allah expressed concerns about a search " messing up his recording equipment." At that point, Agent Simma contacted the Wilmington Police Department for assistance in securing the location. Once officers from the Wilmington Police Department arrived, Mr. Allah said that " he had a little bit of marijuana, he used it for religious purposes"  and then proceeded to hand Agent Simma two small bags of marijuana. Although Mr. Allah offered this evidence voluntarily, he still did not consent to a search of the recording studio.
Since Mr. Allah again refused to consent to a search of the recording studio, Agent Simma explained to Mr. and Mrs. Allah " that they were not under arrest, but that for safety purposes, because of the partitions or walls or whatever you want to call them opening up and finding more hidden areas, that for safety purposes, that they were going to be detained." After Agent Simma detained Mr. and Mrs. Allah, he obtained a search warrant from the magistrate's office. Agent Simma then read the warrant aloud to Mr. Allah and gave him a copy of the warrant before conducting a search of the recording studio. In the recording studio, Agent Simma found a large bag of marijuana, marijuana seeds, two guns, rolling papers, and a digital scale. Agent Simma arrested Mr. Allah and read him his Miranda rights. After Mr. Allah signed a statement describing his rights, Agent Simma asked Mr. Allah if he was a convicted felon, to which Mr. Allah replied " yes." Agent Price decided not to charge Mrs. Allah because she agreed to surrender her ABC permits and thus surrender her right to sell alcoholic beverages.
Mr. Allah was indicted on 31 January 2011. On 12 July 2012, Mr. Allah filed a motion to suppress evidence obtained as the result of an illegal search, which was denied on 10 August 2012 via written order. In the trial court's written order, the trial court made the following findings of fact:
4. Under N.C.G.S. Section 18B-502, North Carolina Alcohol Law Enforcement (hereinafter ALE) officers or agents have the authority to investigate the operations of each licensed premises and to make inspections of each such premises which ...