Opinion
No. COA10-603
Filed 5 April 2011 This case not for publication
Appeal by defendant from judgment entered 6 January 2010 by Judge Dennis J. Winner in Transylvania County Superior Court. Heard in the Court of Appeals 10 January 2011.
Attorney General Roy Cooper, by Assistant Attorney General Mark X. Sneed, for the State. Daniel F. Read for defendant-appellant.
Transylvania County Nos. 09 CRS 1306, 09 CRS 51147, 09 CRS 51148.
Jason Eric Hemphill ("defendant") appeals from a judgment entered after a jury found him guilty of felony possession of a controlled substance (cocaine). On appeal, defendant argues that the trial court erred in denying his motion to suppress the cocaine. After careful review, we find no prejudicial error.
Background
According to the written report and testimony of Officer Barry Galloway of the Transylvania County Sheriff's Department, an arrest warrant had been issued for defendant for failing to appear at a civil hearing regarding his child support obligations. Officer Galloway had reason to believe that defendant was at the Cedar Crest Apartments in Brevard, North Carolina at the residence of Janet Fifield. Officer Galloway knew that defendant had been banned from the property by the Brevard Housing Authority.
On 18 June 2009, Officer Galloway began surveillance of Ms. Fifield's apartment. Soon thereafter, a woman opened the door of the apartment and Officer Galloway saw defendant sitting in a chair inside the apartment. Officer Galloway approached the threshold of the apartment, and, without entering, informed defendant that he was under arrest for trespassing and for failing to appear at the child support hearing. Officer Galloway saw defendant place a small plastic bag under a pillow to the right of the chair in which he was sitting. Defendant then approached Officer Galloway, turned, and placed his hands behind his back. Officer Galloway noticed that defendant was holding in his hands another plastic bag of what appeared to be marijuana.
Once defendant was in custody and secured, Officer Galloway, without obtaining consent from Ms. Fifield, entered the apartment, went to the area where he had seen defendant sitting, searched under the pillow where he had seen him place the small plastic bag, and retrieved the bag, which contained a "white rock substance" that was later determined to be cocaine. After finding the bag of cocaine, the police obtained consent from Ms. Fifield to search the apartment. Defendant was arrested for trespassing, failure to appear at the child support hearing, simple possession of a controlled substance (marijuana), and felony possession of a controlled substance (cocaine).
Prior to trial, defendant filed a motion to suppress the cocaine, claiming that the contraband had been obtained in violation of his Fourth Amendment rights. The motion was denied. Before trial for the felony possession charge, defendant pled guilty to simple possession of marijuana. Defendant was found guilty by the jury of felony possession of cocaine. After trial, defendant pled guilty to being a habitual felon. Defendant was sentenced to 69 to 92 months imprisonment. Defendant timely appealed to this Court.
There is some discrepancy in the record concerning the trespass charge. Defense counsel stated in his motion in limine that defendant pled guilty to trespass; however, the trial transcript indicates that this charge was dismissed.
Discussion
Defendant's sole argument on appeal is that the trial court erred in denying his motion to suppress. We disagree.
In reviewing the denial of a motion to suppress, the appellate court determines whether the trial court's findings of fact are supported by competent evidence and whether those findings, in turn, support the court's conclusions of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). "[T]he trial court's findings of fact are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001) (citation and quotation marks omitted). The court's conclusions of law are reviewed de novo. State v. Kincaid, 147 N.C. App. 94, 97, 555 S.E.2d 294, 297 (2001).
Defendant in this case argued before the trial court that under State v. Bone, 354 N.C. 1, 9, 550 S.E.2d 483, 487 (2001), Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685 (1969), and Arizona v. Gant, 556 U.S., 173 L. Ed. 2d 485 (2009), once a defendant has been seized, police search powers are limited to searching the area in the immediate control of the defendant from which he could procure a weapon or destroy evidence related to the crime charged. Defendant offered two rationales as to why Officer Galloway's search and seizure was unconstitutional: (1) the search of an area where defendant had been seated did not comport with the spatial limitations of Bone and Chimel, and (2) that the evidence for which Officer Galloway searched was not related to the warrant for failure to appear at a child support hearing.
Defendant makes the same substantive arguments on appeal; however, as a threshold matter, defendant's "standing" to assert a Fourth Amendment claim must be examined. On appeal from a motion to suppress, this Court "examine[s] the record to determine whether the trial court's conclusion that the defendant had 'standing' to challenge the search of the house was supported by competent evidence." State v. Barnes, 158 N.C. App. 606, 615, 582 S.E.2d 313, 320 (2003). On this issue, defendant states in his brief that "[t]here being no evidence that the other occupants of the apartment disavowed his presence or told the police he was uninvited, it would appear that as a social guest in the home he had standing to object."
The Fourth Amendment protects individuals "against unreasonable searches and seizures." U.S. Const. amend. IV. "With few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no." Kyllo v. United States, 533 U.S. 27, 31, 150 L. Ed. 2d. 94, 100 (2001). In fact, "[i]t 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)).
However, "a Fourth Amendment search does not occur — even when the explicitly protected location of a house is concerned — unless 'the individual manifested a subjective expectation of privacy in the object of the challenged search,' and 'society [is] willing to recognize that expectation as reasonable.'" Kyllo, 533 U.S. at 33, 150 L. Ed. 2d. at 101 (2001) (quoting California v. Ciraolo, 476 U.S. 207, 211, 90 L. Ed. 2d 210, 215 (1986)); see Rakas v. Illinois, 439 U.S. 128, 143, 58 L. Ed. 2d 387, 401 (1978) ("[T]he capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.").
Although a defendant's entitlement to Fourth Amendment protections is frequently referred to as his "standing" to object to a search, the United States Supreme Court explained in Minnesota v. Carter . . . that "the rubric of standing doctrine [has been] expressly rejected. . . . [T]o claim Fourth Amendment protection, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable."
Barnes, 158 N.C. App. at 613, 582 S.E.2d at 318 (quoting Minnesota v. Carter, 525 U.S. 84, 88, 142 L. Ed. 2d 373, 376 (1998)).
This Court has held that a determination as to whether a defendant had a legitimate expectation of privacy has "two components: (1) the person must have an actual expectation of privacy, and (2) the person's subjective expectation must be one that society deems to be reasonable." State v. McNeil, 165 N.C. App 777, 783, 600 S.E.2d 31, 35-36 (2004). Moreover,
[b]efore defendant can assert the protection afforded by the Fourth Amendment, . . . he must demonstrate that any rights alleged to have been violated were his rights, not someone else's. A person's right to be free from unreasonable searches and seizures is a personal right, and only those persons whose rights have been infringed may assert the protection of the Fourth Amendment.
State v. Ysut Mlo, 335 N.C. 353, 377, 440 S.E.2d 98, 110, cert. denied, 512 U.S. 1224, 129 L. Ed. 2d 841 (1994). Under N.C. Gen. Stat. § 15A-972 (2009), only "a defendant who is aggrieved may move to suppress evidence[.]" With regard to this statute, our Supreme Court has stated that a " defendant has the burden of establishing that he is an 'aggrieved' party before his motion to suppress will be considered." State v. Taylor, 298 N.C. 405, 415-16, 259 S.E.2d 502, 508 (1979) (emphasis added); see State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 441 (1981) (acknowledging that "defendant ha[s] the burden of demonstrating an infringement of his personal rights by a search"). Accordingly, defendant in the present case bore the burden of establishing that he had a reasonable expectation of privacy in Ms. Fifield's home.
This issue was raised at the suppression hearing. The State argued that as a trespasser, defendant did not have a reasonable expectation of privacy in the apartment sufficient to make the challenge on Fourth Amendment grounds. Defendant argued that, based on Carter, 525 U.S. at 88, 142 L. Ed. 2d at 379, defendant was a social guest and, therefore, he was presumed to "have standing." Defense counsel stated: "You have standing anywhere you do not have standing as a commercial guest . . . the objective evidence all suggest Mr. Hemphill was a social guest. He was sitting in a chair in someone's apartment." With regard to defendant's argument, the trial court judge responded: "It seems reasonable to me."
The trial court did not enter a conclusion of law regarding defendant's ability to raise a Fourth Amendment claim, but did enter a finding of fact regarding defendant's status as a trespasser. The trial court then concluded as a matter of law:
Although a conclusion of law was not entered regarding defendant's "standing" to object to the search, the trial court necessarily decided that defendant had the ability to raise a Fourth Amendment claim because the trial court proceeded to address the merits of defendant's motion.
The search of the defendant's person, and the search adjacent to where he had been sitting are legal searches under the Fourth Amendment to the United States Constitution, and the law of the land provision of the North Carolina Constitution, under all of the circumstances previously found by the Court. And both the marijuana and the item found under the cushion are admissible in the trial of this case.
Upon review of the parties' arguments pertaining to defendant's expectation of privacy in Ms. Fifield's home, we hold that the trial court erred in its apparent determination that defendant had the ability to raise a Fourth Amendment claim. All evidence presented at the hearing indicated that defendant was a trespasser on the premises and nothing more. Consequently, whether the search was in fact "legal" need not have been reached by the trial court.
The United States Supreme Court has made clear that an overnight guest has a reasonable expectation of privacy in the home he or she is visiting. Minnesota v. Olson, 495 U.S. 91, 96-97, 109 L. Ed. 2d 85, 93 (1990). However, one who is present in the home strictly for a business transaction does not have a reasonable expectation of privacy. Carter, 525 U.S. at 90, 142 L. Ed. 2d at 380. The Court in Carter reiterated that its previous statement in Jones v. United States, 362 U.S. 257, 267, 4 L. Ed. 2d 697, 706 (1960) that "anyone legitimately on the premises where a search occurs may challenge its legality[,]" was "expressly repudiated" in Rakas. Carter, 525 U.S. at 89-90, 142 L. Ed. 2d at 386. In other words, even someone who is "legitimately" on the premises may not have a reasonable expectation of privacy in the premises. Id. The Carter Court went on to clarify: "Thus, an overnight guest in a home may claim the protection of the Fourth Amendment, but one who is merely present with the consent of the householder may not." Id. (emphasis added).
Notably, neither Rakas nor Carter repudiated the statement in Jones that those "by virtue of their wrongful presence, cannot invoke the privacy of the premises searched." Jones, 362 U.S. at 267, 4 L. Ed. 2d at 706 (emphasis added). Our State Supreme Court has relied on that statement and concluded that, "[c]learly, Jones v. United States does not extend the protection of the Fourth Amendment to trespassers. Neither the Constitution of the United States nor the law of this State confers upon a mere intruder into the house of another the right of the owner to object to a search of it. . . ." State v. Eppley, 282 N.C. 249, 258, 192 S.E.2d 441, 447 (1972) (internal citation omitted) (holding that trespassers did not have a reasonable expectation of privacy in premises searched where stolen goods were found). We recognize "that arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control" in Fourth Amendment determinations. Rakas, 439 U.S. at 143, 58 L. Ed. 2d at 400-01. However, it is clear from our case law that society does not recognize a trespasser's expectation of privacy to be reasonable.
Other jurisdictions have also held that a trespasser is not afforded Fourth Amendment protection in the place searched. See, e.g., United States v. Jackson, 585 F.2d. 653, 658 (4th Cir. 1978) (acknowledging that the circumstances surrounding the search were "analogous to the situation in which an 'individual places his effects upon premises where he has no legitimate expectation of privacy (for example, in an abandoned shack or as a trespasser upon another's property)'; in such a case 'he has no legitimate reasonable expectation that they will remain undisturbed upon these premises' and consequently has no standing or right to contest a search." (quoting M. Gutterman, "A Person Aggrieved": Standing to Suppress Illegally Seized Evidence in Transition, 23 Emory L.J. 111, 119 (1974))); Laney v. State, 842 A.2d 773, 787 (Md. 2004) (holding that trespassers have no expectation of privacy in unlawfully occupied premises); People v. Francis, 679 N.Y.S.2d 2, 2 (N.Y. App. Div. 1998) (holding that defendant did not meet his burden of establishing a reasonable expectation of privacy where he was deemed a trespasser and there was no evidence to support his claim that he was an overnight guest); Douglas v. State, 695 S.W.2d 817, 820 (Tex. App. 1985) (holding that a trespasser had no legitimate expectation of privacy to object to a search and seizure in which stolen goods were found); Woodson v. Commonwealth, 491 S.E.2d 743, 745 (Va. Ct. App. 1997) ("Trespassers do not have privacy interests sufficient to invoke Fourth Amendment protection.").
In North Carolina, a person who has been banned from the premises by the local housing authority is subject to arrest for trespass. See State v. Boston, 165 N.C. App. 214, 215-16, 598 S.E.2d 163, 164 (2004) (noting that defendant, who was convicted of second degree trespass, was banned from the Deaverview Apartment complex by the Housing Authority of the City of Asheville). N.C. Gen. Stat. § 157-9(a) (2009) grants housing authorities the powers necessary "to manage as agent of any city or municipality located in whole or in part within its boundaries any housing project constructed or owned by such city." Likewise:
To the extent not inconsistent with the Constitution or statutes of this State or the United States, an authority may adopt and enforce rules governing the lawful entry of guests and visitors to its properties, including the visitors and guests of its tenants. . . . Persons who enter or remain on the property of an authority in violation of such rules shall be subject to prosecution as applicable under G.S. 14-159.12 or G.S. 14-159.13.
N.C. Gen. Stat. § 157-9(c) (emphasis added). N.C. Gen. Stat. § 14-159.13 (a)(1) (2009), referenced in the above statute, provides that a person commits second degree trespass when, "without authorization, he enters or remains on premises of another[,]" after being "notified not to enter or remain there by the owner, by a person in charge of the premises, by a lawful occupant, or by another authorized person." Violation of N.C. Gen. Stat. § 14-159.13 is a Class 3 misdemeanor. N.C. Gen. Stat. § 14-159.13(b). Class 3 misdemeanors are arrestable offenses, punishable by up to 30 days imprisonment or, in some cases, only a fine. N.C. Gen. Stat. § 14-3 (a)(3) (2009).
Here, the only evidence presented at the suppression hearing was that defendant was a trespasser pursuant to N.C. Gen. Stat. § 157-9(a). The fact that defendant was sitting in a chair as if he were a social guest and no one disavowed his presence is insufficient to establish an expectation of privacy in this case. Defendant had the burden of proving that he had an actual expectation of privacy in the apartment, and that the subjective expectation is one that society deems to be reasonable. McNeil, 165 N.C. App at 783, 600 S.E.2d at 35-36. Defendant did not meet this burden. Consequently, we hold that the trial court erred in determining that defendant had standing to object to the search of the apartment. However, such error is harmless given the fact that the trial court denied defendant's motion on other grounds. Having held that defendant had no right to assert a Fourth Amendment claim, we need not address defendant's argument that Officer Galloway could not search behind the cushion incident to defendant's arrest.
Conclusion
In sum, prior to arrest, Officer Galloway saw defendant place a bag behind the chair cushion adjacent to where he was sitting. Officer Galloway entered the apartment without permission to search behind the cushion. Defendant did not have a reasonable expectation of privacy in the apartment, and, therefore, could not contest the search of the premises.
No Prejudicial Error.
Chief Judge MARTIN and Judge THIGPEN concur.
Report per Rule 30(e).