NO. COA12-1351 DISTRICT 26 NORTH CAROLINA COURT OF APPEALS ******************************* STATE OF NORTH CAROLINA ) ) Mecklenburg County: Vs. ) File No. 11CRS218536 ) ) KENNETH FULLER ) **************************** DEFENDANT-APPELLANT’S BRIEF **************************** QUESTIONS PRESENTED I. DOES THE CONSTITUTION FORBID A WARRANTLESS LOCK-PICKING BY POLICE INTO AN OCCUPIED BATHROOM, A MOST PRIVATE OF PLACES, UNDER THE CLAIM THAT A WOMAN WHO WAS “UNOFFICALLY” STAYING AT THE APARTMENT, NODDED HER HEAD FOR THE POLICE WHEN ASKED IF THEY COULD ENTER THE FRONT DOOR, AND SAID, “YEAH”? II. DID THE TRIAL COURT ERR BY ALLOWING NON-EXPERT, HEARSAY TESTIMONY ABOUT THE WORKINGS OF THE TELEPHONE SYSTEM, AND INTRODUCTION OF A PHONE CALL WITH NO IDENTIFICATION OF THE ACCUSED’S VOICE BY SOMEONE WHO KNOWS IT? III. DID THE TRIAL COURT ERR BY DENYING THE ACCUSED’S RIGHT TO PRESENT A DEFENSE AND IMPEACH THE OFFICER TESTIFYING AGAINST HIM BY DISALLOWING CROSS-EXAMINATION ABOUT HIS TRANSCRIPTION OF CERTAIN JAIL PHONE CALLS, AND DISALLOWING QUESTIONS ABOUT WHETHER THE OTHER OCCUPANT OF THE APARTMENT HAD BEEN CHARGED WITH OFFENSES RELATED TO HER COCAINE FOUND IN THE APARTMENT?
Transcript
NO. COA12-1351 DISTRICT 26
NORTH CAROLINA COURT OF APPEALS*******************************
STATE OF NORTH CAROLINA ) ) Mecklenburg County: Vs. ) File No. 11CRS218536
I. DOES THE CONSTITUTION FORBID A WARRANTLESS LOCK-PICKING BY POLICE INTO AN OCCUPIED BATHROOM, A MOST PRIVATE OF PLACES, UNDER THE CLAIM THAT A WOMAN WHO WAS “UNOFFICALLY” STAYING AT THE APARTMENT, NODDED HER HEAD FOR THE POLICE WHEN ASKED IF THEY COULD ENTER THE FRONT DOOR, AND SAID, “YEAH”?
II. DID THE TRIAL COURT ERR BY ALLOWING NON-EXPERT, HEARSAY TESTIMONY ABOUT THE WORKINGS OF THE TELEPHONE SYSTEM, AND INTRODUCTION OF A PHONE CALL WITH NO IDENTIFICATION OF THE ACCUSED’S VOICE BY SOMEONE WHO KNOWS IT?
III. DID THE TRIAL COURT ERR BY DENYING THE ACCUSED’S RIGHT TO PRESENT A DEFENSE AND IMPEACH THE OFFICER TESTIFYING AGAINST HIM BY DISALLOWING CROSS-EXAMINATION ABOUT HIS TRANSCRIPTION OF CERTAIN JAIL PHONE CALLS, AND DISALLOWING QUESTIONS ABOUT WHETHER THE OTHER OCCUPANT OF THE APARTMENT HAD BEEN CHARGED WITH OFFENSES RELATED TO HER COCAINE FOUND IN THE APARTMENT?
STATEMENT OF THE CASE Defendant Kenneth Fuller pleaded not guilty to an indictment
charging him with felony possession with intent to sell or
deliver cocaine. A jury found Mr. Fuller guilty.
Mr. Fuller was found to be prior record Level IV, and he was
sentenced to a minimum term of imprisonment of 11 months in the
Department of Adult Correction, and maximum term of 14 months.
Mr. Fuller’s Superior Court trial took place during the
April 7, 2012, Criminal Session of the Superior Court of
Mecklenburg County, North Carolina, before the Honorable Linwood
O. Foust, Judge Presiding. Sentencing took place on April 9,
2012.
Defendant gave timely notice of appeal in open court. (R p.
47; 3T pp. 227)
The Record was filed in this Court November 7, 2012;
docketed November 14, 2012, and mailed to counsel on November 15,
2012.
STATEMENT OF GROUNDS FOR APPELLATE REVIEW
Appeal lies of right to this Court under N.C.G.S. Sec. 7A-
27, 15A-1444 (a), 15A-1446(d), and N.C.R. App. P. 10.
STATEMENT OF FACTS
Superior Court Judge Robert T. Sumner, during the
suppression hearing asked counsel: “Isn't the question whether or
not he [Kenneth Fuller] has an expectation to privacy when he's
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living there. . . I don't know that he's living there, but he was
there [in the bathroom], but it's not his apartment?” (Motion to
Suppress Transcript (hereinafter “MTS”) pp. 33-34) Does a lawful
occupant of a bathroom have a privacy right against a police
officer, without a warrant, who picked the lock to the door?
Sgt. Christopher P. Eubanks, Charlotte-Mecklenburg Police
Department (CMPD) testified at the suppression hearing. He said
he saw the accused on April 20, 2011 at 2425 Statesville Avenue,
Apartment F-105, two days after he saw an email about a “drug
complaint”. The email was from Kelly Alexander, the manager of
the apartment complex there. (MTS p. 7)
“Ms. Alexander mentioned that she believed there was drug
activity occurring at that apartment. She mentioned that it was
rented by a person named Mark Jameson. She also stated in the e-
mail that there was a white male with a ponytail driving a white
colored Cadillac Escalade with a 30-day tag seen going to the
door of the apartment frequently. . . .” (MTS p. 8) Sgt.
Eubanks arrived at the apartment at 11AM along with Officer Paul
Blackwood and Officer Patrick Diekhaus. (MTS p. 8)
“When I made the left onto Badger Court, I observed a cream
colored Cadillac Escalade parked on the Badger Court side of the
building.” (MTS p. 10) Sgt. Eubank’s purpose of going to the
apartment was to “conduct a knock and talk to speak with someone
there about the drug complaint.” (MTS p. 11) “We knocked on the
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door [of the apartment], waited not very long. A white female
came out of the door, closed the door behind her and came out to
speak with me.” (MTS p. 12)
I asked her if Mr. [Mark] Jameson [the tenant on the lease] was there. She said, no, he's at work. Right after I asked her that, she asked me if this was a voluntary contact. . . .I don't remember if I said yes or no, but I said toher, Ma'am, I'm here to talk to you. It is not, bydefinition, not a voluntary contact as I know it is.Voluntary contact is something we use for pedestrianswalking in open street and things. I said, Ma'am, I'mhere to speak to you about this drug complaint. I didn't really give it a lot of attention her question. . . .
I asked her if she lived there. She said "unofficially" yes. I asked her if she was on the lease. She said no. I asked her if she had keys to the apartment. She said yes, and she pointed to a little small set of keys that were on the belt loop of her jeans that she was wearing. . . .[O]fficer Blackwood mouthed to me that he could smell marijuana. He said, I could smell marijuana. I could not smell any marijuana at that point, so I continued speaking with her. . . . She told me her name, Kimberly Huggins. . . . I asked her if anyone else was home. She said, no. She walked inside the apartment, came back out about a minute later with her North Carolina identification card. . . .
I asked her if there were any illegal drugs in the apartment. She replied there's drug paraphernalia in the apartment. She said it belongs to Mark [Jameson] and that Mark [Jameson] smokes crack. . . .
[T]he manager, Ms. Alexander, showed up, and Ms. Alexander kind of jumped in the middle of our conversation. She started getting kind of loud . . . saying she was the manager of the apartment, she [Huggins] was not supposed to be there. Ms. Alexander
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said she was going to go inside the apartment. I pulled Ms. Alexander away, . . . and I told her, Ms. Alexander, . . . I do not have permission to go in that apartment. . . .
[I] asked Ms. Huggins at that point if she would give me consent to come inside and search for any illegal drugs. Ms. Huggins looked at me. She -- her shoulders slumped, she started nodding her head as in an affirmative matter. She said yeah. She dropped her -- looked at the ground. Her head kind of looked to the ground, turned to go into the apartment. She said, as we were going in, my boyfriend is inside and he's naked. I told her that was okay. She opened the door and we followed her in.
(MTS pp. 12-16)(emphasis added)
When Sgt. Eubanks walked into the apartment he said he saw:
a scale, a drug scale on kind of like a little thing in the kitchen there, a little countertop that you would have to walk around to go into the kitchen area. I could smell a faint smell of marijuana at that point. Ms. Huggins walked to a rear door, I guess bedroom of the apartment, and I followed her. . . .
[I] decided we were just going to lock the apartment down and obtain a search warrant. So for the purposes of securing the residence when she went to the door and said her boyfriend was there, my main goal was to find whoever else was in the apartment for officer safety reasons, secure them and then pursue a warrant. . . .
Ms. Huggins was speaking to a male on the other side of our side of the door of this room, this bedroom area. She told him that -- I think she said they want to search the apartment were her words to him. I began speaking to him and I told him to come out. I could hear his voice.When I told him to come out, he said, I'm going toget a shower. I turned the knob on the door. It waslocked. I then put my thumbnail into the little lockthere to turn it. I opened the door and it was -- it wasa rear bedroom and then a bathroom off to the right.When I opened the door, no one was in the bedroom
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area. I looked to my right. I could hear water running.Went to the bathroom, observed Mr. Fuller with his back to me standing over the toilet. The toilet was flushing.Q. Was the defendant clothed? A: Yes, ma'am. . . .There was a black case on the sink. It looked likeit had cocaine residue just glancing at it very quickly.. . . I told Mr. Fuller to come out of the bathroom. Hedid not move, did not look at me. I moved towardsMr. Fuller to secure him since he was not following mycommands. I grabbed his right wrist. . . . Officers Blackwood and Diekhaus came in at that point and helped me. Looking at his hand, I could see plastic, clear plastic balled up in his right fist. As I got closer, I could see what appeared to be crack cocaine in part of the plastic that was sticking out of this part of his hand (indicating). . . .Q. And he [Mr. Fuller] specifically told you that he was going to take a shower, correct?A. Yes, sir.
(MTS pp. 16-21)(emphasis added)
Office Paul Anthony Blackwood, CMPD, testified at the
suppression hearing that “[a]fter we brought Mr. Fuller out of
the bathroom, we secured him in our vehicles and got a search
warrant.” (MTS p. 29) The search warrant was obtained after the
lock was picked with a fingernail, and after the drugs were
seized. The order denying the motion to suppress does not
mention a search warrant. (R pp. 25-29; App. pp. 1-5)
The accused did not testify at the suppression hearing.
The prosecutor argued that the locked bathroom was not a
private area:
I wouldn't submit to the Court that the bathroom is an area controlled by an individual. It's not a bedroom.
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It's not a closet. It's not something confined to one individual. I would argue that's part of the common area.
(MTS p. 39)
The State dismissed the possession of drug paraphernalia
charge against Mr. Fuller (file 11CRS218538) before trial. (1T p.
7)
Neither the jury selection, opening statements nor closing
arguments were recorded. (1T p. 21)
At the trial, the prosecution called law enforcement
witnesses and Ms. Alexander, the apartment manager, but did not
call Ms. Huggins to testify.
Kelly Alexander testified that she was the manager for the
Alexander McNeel Apartments. She said she had seen the accused,
“[n]umerous times. Probably ten-plus on the property.” (1T p. 30)
She said Mark Jameson was on the lease for apartment F105.
Ms. Alexander said she “had been getting complaints from the
residents primarily in the F building that F105 had a lot of
traffic and that there was drugs being sold. . . . I would see a
cream-colored Escalade with rims come onto the property, and I
would see Mr. Fuller sometimes by himself and sometimes not. He
would go to the unit, short visits most of the time.” She called
the police and asked them to do a “knock and talk.” (1T p. 31)
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Ms. Huggins was “was not on the lease, and I had no
knowledge if she was staying there or not. [S]he told me that she
did not live there.” (1T p. 40)
Ofc. Eubanks testified that he
obtained consent to enter that apartment. When we entered the apartment, I detected an odor of marijuana in the front room there. The person that gave consent walked towards -- when you walk in the front door, there was a doorto the very back straight ahead to the back of theThis person began speaking with a male through a door. She told the male that the police wanted to search the apartment. I was -- I walked to the door with her. Itold the male to come out. His reply is, "I'm going to geta shower.
To secure the residence in preparation for the search warrant, I turned the doorknob. The door was locked.I was able to stick my thumbnail in the locking mechanism of the doorknob. I turned it, and then unlocked the door.Opened the door, and there was a bedroom on my left, acloset thing straight ahead, and to my right I could hearsome water running. I looked to my right, and I could see a sink with water running. They told me this was a bathroom.I walked to the entrance to the bathroom, peered in thebathroom to the left. At the toilet I saw Mr. Fuller withhis back to me. I told Mr. Fuller to exit the bathroom. He did not answer me. He did not look at me. While I'mlooking at him, his right hand was down at his side. Icould see clear plastic sticking out of his clenched fist.I approached Mr. Fuller. For officer safety reasons, tosecure him, since he was not following my directions, Iplaced both hands on his forearms. I began to move him awayfrom the toilet. I'm looking at his right hand with theplastic, and I could see what appeared to be crack cocaine
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within the clear plastic.
(1T pp. 46-47)(emphasis added)
“While I was searching him -- I mean, after the search he
said, "That ain't mine. I picked that up off the floor in here. I
didn't want them to get in trouble." (1T p. 47)
Sgt. Eubanks testified that he placed the bag of what he
thought was cocaine (that he claimed he took from the accused’s
hand) and put it into an eyeglass case along with a razor blade
and took of a photograph of it in that new location and new
position. (2T pp. 82-83) The defense theory at trial was that
Mr. Fuller was set up by staged photographs of the drugs, and
that the drugs were Ms. Huggins or someone else’s. (2T pp. 91-
92, 97) The theory included that the drugs were not photographed
in the exact location where they were found:
Q. As the lead officer in this case, you did not really (2T p. 98) come to see where evidence was found; correct?A. I had a general idea of where evidence that was in --that had been found which resulted in the initial investigation and things that were in plain view.. . . Q. So you're moving evidence from one location --A. Yes, sir.Q. -- to another and taking photographs of them?A. Yes, sir. . . .Q. But you were just moving evidence from one place toanother and taking photographs?A. Yes, sir, I did. (2T p. 102)
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Paul Anthony Blackwood, CMPD officer, testified, that once
inside the back bedroom/bathroom, he saw Mr. Fuller holding what
“appeared to be crack cocaine”; “It's a rock-like substance, kind
of an off-white color, chalky.” (2T p. 109) “Then after we
handcuffed him, dealing with Mr. Fuller in the restroom, or the
bathroom, cleared the apartment, and came back with the search
warrant. Then we actively searched.” (2T p. 115)
Jennifer Leiser, an employee of the “chemistry section of
the crime lab” at CMPD testified as an expert in “forensic
chemistry” that the content of State’s Exhibit 6 was 12.29 grams
of cocaine. (3T p. 149) She did not examine any items for
fingerprints. (3T p. 153)
At the end of the State’s evidence, a defense motion to
dismiss due to the insufficiency of the evidence was denied. (3T
p. 155)
After the State’s evidence, the defense called Officer
Patrick Diekhaus, CMPD, who testified that Ms. Huggins was trying
to hide crack cocaine during the police search of the apartment:
the property manager called me back to the living room, and said, "Officer, Officer, come on back here." I went back there, and she was standing there with Ms. Huggins. She told me that Ms. Huggins was trying to conceal a pocketbook while we were dealing with Mr. Fuller. At that time Ms. Huggins was trying to place the pocketbook behind her back. I didn't know if she was trying to conceal a weapon or what she was trying to do, so I ended up grabbing the pocketbook from her at that point. . . . As soon as I looked at it, I realized it was crack cocaine. I've made crack cocaine
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arrests and know what crack cocaine is. And I saw it placed on the table or on the ground and placed her under arrest at that point.
(3T p. 167) After the apartment had been sealed, “I went straight directly to the bathroom, grabbed the eight prescription bottles out of the cabinet and walked directly out. It took me no more than 20, 30 seconds. . . . The bathroom was the one in the hallway before you get to the master bedroom with the other bathroom.(3T p. 169) [A]fter I grabbed the purse from her, Ieither put it on the floor or on the table, went to detainher and put her in handcuffs and made our way to the backbedroom. I'm not sure if I took the purse with me to theback bedroom or I left it there on the counter or not. Idon't recall.”
(3T p. 172)
The defense called Officer Paul Murphy, CMPD, who testified
that he was dispatched to
a knock and talk, and I went to see Officer Eubanks once I arrived on the scene. . . . I was told to stand by that apartment, which was No. F105, and not to let anybody inside the residence. They were going down to obtain a search warrant. . . . Under normal circumstances, nobody should go back inside the residence [before the search warrant is obtained]. . . . I was instructed to not let anybody go back into the house. [But somebody did return to the house?] Yes, Officer Diekhaus.
(3T pp. 176-179) The accused did not testify at trial. (3T p.
156) The defense motion to dismiss due to the insufficiency of
the evidence at the close of all the evidence was denied. (3T p.
192) The closing arguments were not recorded. (3T p. 195)
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ARGUMENT
I. THE TRIAL COURT ERRED BY NOT RULING THAT THE CONSTITUTION FORBIDS A WARRANTLESS LOCK-PICKING BY POLICE INTO AN OCCUPIED BATHROOM, A MOST PRIVATE OF PLACES, UNDER THE CLAIM THAT A WOMAN WHO WAS “UNOFFICALLY” STAYING AT THE APARTMENT, NODDED HER HEAD FOR THE POLICE WHEN ASKED IF THEY COULD ENTER THE FRONT DOOR, AND SAID, “YEAH”
STANDARD OF REVIEW:
During an appeal from the denial of a motion to suppress,
the trial court's findings of fact are binding if supported by
competent evidence, but the trial court's conclusions of law are
subject to de novo review and they must be legally correct as
well as supported by the findings of fact. State v. Barnhill,
The State has the burden of showing the constitutionality of
the search. State v. Cooke, 306 N.C. 132, 136, 291 S.E.2d 618,
620 (1982). This appeal involves the suppression of evidence
seized in violation of the United States Constitution, Fourth and
Fourteenth Amendments, and Art. I, Sections 19, 20 and 23, N.C.
Constitution. The review should be for "constitutional error",
errors that the State has the burden to demonstrate are "harmless
beyond a reasonable doubt." N.C. Gen. Stat. Sec. 15A-1443(b).
ANALYSIS: WARRANTLESS SEARCHES ARE PRESUMED TO BE UNCONSTITUTIONAL.
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If a man’s home is his castle, his bathroom and bedroom are
the most private parts of that castle, with a heightened
expectation of privacy. The colloquial throne of that
castle/home is especially private.
The police need more than a half-hearted nod of the head and
grunted “yeah” to enter a home or apartment from an “unofficial”
occupant (assuming that the initial entry is valid) to enter a
locked and occupied bathroom. Under the State’s argument below,
an occupant of an airport bathroom could tell officers that they
had permission – consent - to enter a locked and occupied
bathroom stall because the person claiming to give consent had
been in the same stall before the current occupant. Likewise,
the common refrain - “I’m in the bathroom” or “I’m taking a
shower” – doesn’t grant permission to enter.
The Fourth Amendment is all about reasonableness. Could the
King’s men, even during the early days of our country, forcibly
enter an outhouse, commode or privy without a warrant? The trial
judge made no findings of fact that the accused consented to the
entry into the bedroom or bathroom. The trial judge did make a
finding that the accused failed to withdraw consent that he never
gave in the first place. Fourth Amendment jurisprudence isn’t an
opportunity for time travel into Vonnegut’s fictional
chronosynclastic infundibulum (“A point in space where, upon a
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person entering it, that person's existence in space-time ceases
to be linear, becoming discrete.”
http://www.urbandictionary.com) or into an Alice in Wonderland
variation of the Queen’s “Sentence first--verdict afterwards”
justice. Here, it would be search first -- consent (or failure
to withdraw consent that was never given) afterwards. The actual
finding read: “That neither the Defendant nor Ms. Huggins
requested that the Officers leave the apartment or that consent
was revoked or withdrawn.” (Order, para. 27, R p. 27) This
finding of fact was an unreasonable interpretation of the
uncontroverted police testimony that Mr. Fuller never gave
consent to search, he said he was in the shower and he refused to
come out or open the locked door.
The Order contained findings of fact that: Sgt. Eubanks
knocked on a locked door and the accused “responded that he was
in the shower.” (Order, Para. 25, R p. 26) Officer Eubanks
“tried the door knob which was locked but turned the lock to open
with his fingernail.” (Order, para. 26, R p. 26) Ofc. Eubanks
“entered the room and observed the Defendant standing over the
toilet with his back to the Officer.” (Order, para. 28, R p. 26)
To paraphrase these findings of fact: the officer was at a
locked bedroom/bathroom door; the accused said he was in the
shower; the officer picked the lock anyway and entered the
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bedroom/bathroom; and the accused was standing, facing away, over
the toilet.
The trial judge, after asking the question during legal
arguments failed to analyze whether Mr. Fuller had an expectation
of privacy in the locked bedroom/bathroom, and failed to find as
a fact that the police knocked and announced that they were the
police before entering the bedroom/bathroom. Ms. Huggins could
see who the police were; Mr. Fuller was behind a locked door.
The Court Order unreasonably failed to find:
1. The accused’s statement that he was in the shower was
not a consent to enter or search;
2. The locked door and Mr. Fuller’s presence in the bathroom
entitled him to an expectation of privacy as a lawful occupant.
3. Mr. Fuller never consented to any entry or search so he
couldn’t withdraw (para. 27) something he never gave.
4. The Order did not find as a fact or make a conclusion of
law that the officers identified themselves as police officers to
Mr. Fuller who was in the bathroom behind a locked door. Wilson
v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995)
(“We simply hold that although a search or seizure of a dwelling
might be constitutionally defective if police officers enter
without prior announcement, law enforcement interests may also
establish the reasonableness of an unannounced entry.”) The
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findings of fact refer to the officers, but not to whether they
identified themselves as officer’s and if not, why not.
5. The Order failed to analyze the scope of the consent to
search. “The standard for measuring the scope of a suspect's
consent under the Fourth Amendment is that of "objective"
reasonableness -- what would the typical reasonable person have
understood by the exchange between the officer and the suspect?”
Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1804, 114
L.Ed.2d 297 (1991).
6. The Order failed to analyze the affect upon Ms. Huggins
of an angry apartment manager who was trying to get into the
apartment.
The conclusion of law that “consent was not withdrawn by Ms.
Huggins or by the Defendant by the Defendant[‘]s failure to open
the bedroom door” (Order, para. 4, R p. 27) is contrary to the
accused’s Fourth Amendment and N.C. Constitutional rights, as are
the conclusions of law that reference the “reasonable belief”
(para.s 2, 6, R p. 27) imply that a violation of Mr. Fuller’s
state constitutional rights can be excused by the “good faith”
belief of the police officers. There was no conclusion of law
that the lock-picking was warranted by exigent circumstances or
officer safety.
The evidence showed that Mr. Fuller was at least a guest
with a right to use the bathroom of the apartment. “No less than
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a tenant of a house, or the occupant of a room in a boarding
house, McDonald v. United States, 335 U.S. 451[, 69 S.Ct. 191, 93
L. Ed. 153 (1948)], a guest in a hotel room is entitled to
constitutional protection against unreasonable searches and
seizures. Johnson v. United States, 333 U.S. 10. That protection
would disappear if it were left to depend upon the unfettered
discretion of an employee of the hotel. It follows that this
search without a warrant was unlawful.” Stoner v. California,
376 U.S. 483, 490, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964).
A woman with an “unofficial”, not-on-the lease status cannot
give permission for police to enter a locked bedroom/bathroom
occupied by another person just as a search warrant can’t grant
authority for the search for more than one place in a rooming
house. State v. Mills, 246 N.C. 237, 242-247, 98 S.E.2d 329
(1957)( "A rooming house is also protected against unreasonable
searches and seizures, as is a person's room in an apartment
house, hotel, rooming or boarding house, or in a tourist camp."
(internal citation deleted)).
Warrantless searches are presumed to be unconstitutional.
State v. Summey, 150 N.C. App. 662, 667-668, 564 S.E.2d 624
(2002).
"[A]n individual has both a state and federal constitutional right to freedom from unreasonable searches and seizures." State v. Harris, 145 N.C. App. 570, 580, 551 S.E.2d 499, 505-06 (2001) (citing U.S. Const. amend. IV.; N.C. Const. art. I, §§ 19, 20). "A
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'search' occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85, 94 (1984); accord State v. Nance, 149 N.C. App. 734, 738-39, 562 S.E.2d 557, 561 (2002). . . . Search and seizure by the government or its agents is unlawful if it is unreasonable, and: The governing premise of the Fourth Amendment is that a governmental search and seizure of private property unaccompanied by prior judicial approval in the form of a warrant is per se unreasonable unless the search falls within a well-delineated exception to the warrant requirement involving exigent circumstances. Hence, when the State seeks to admit evidence discovered by way of a warrantless search in a criminal prosecution, it must first show how the former intrusion was exempted from the general constitutional demand for a warrant. State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982) (citations omitted).
State v. McBennett, 191 N.C. App. 734, 737-738, 664 S.E.2d 51,
54-55 (2008).
The Fourth Amendment to the United States Constitution
protects the "right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no warrants shall issue but
upon probable cause, supported by oath or affirmation and
particularly describing the place to be searched and the person
or things to be seized." Fourth Amendment, United States
Constitution. The North Carolina Constitution declares that
“General Warrants, whereby any officer or other person may be
commanded to search suspected places without evidence of the act
committed, or to seize any person or persons not named, whose
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offense is not particularly described and supported by the
evidence are dangerous to liberty and shall not be granted." Art.
I, Sec. 20, North Carolina Constitution.
The North Carolina Constitution has been interpreted as
providing more protection against unreasonable searches and
seizures than the Federal Constitution, on the grounds that
judicial integrity requires it. State v. Carter, 322 N.C. 709,
721, 370 S.E.2d 553, 560 (1988)(rejecting the Federal good faith
exception to the exclusionary rule, quoting Justice Brandeis’
famous dissent: “If the government becomes a lawbreaker, it
breeds contempt for law; it invites every man to become a law
unto himself; it invites anarchy. To declare that in the
administration of the criminal law the end justifies the means --
to declare that the government may commit crimes in order to
secure the conviction of a private criminal -- would bring
terrible retribution. Against that pernicious doctrine this court
should resolutely set its face. [Olmstead v. U.S., 277 U.S. at
485, 72 L.Ed. at 959-60.”] 320 N.C. at 720.
The Order contained no conclusions of law that the lock-
picking or warrantless entry into the bedroom/bathroom was
justified based upon the officer safety or allowed by exigent
circumstances.
There was no probable cause to pick the lock, enter and
search the bedroom/bathroom occupied by Mr. Fuller. See Arizona
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v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009);
State v. Mills, 246 N.C. 237, 242-247, 98 S.E.2d 329 (1957).
There was no search warrant obtained before the lock-
picking, before the search, or before the seizure. There was no
court order and no written waiver or written acknowledgement of a
consent search giving the police authority to search the back
bathroom at 2425 #F, 105 Statesville Road. (R pp. 25-28) Here,
there wasn’t even an official tenant, the man on the lease,
telling them they could search his apartment. Rather, it was an
“unofficial” guest who happened to be in the apartment pointing
at keys and nodding her head.
The court order denying the motion to suppress makes no
mention of any subsequent search warrant for the premises (R pp.
25-28; App. pp. 1-5), though the officers talked about it during
the hearing. (MTS p. 29)
N.C. statutory law sets forth the following about consent
searches:
(a) Authority to Search and Seize Pursuant to Consent. -- Subject to the limitations in the other provisions of this Article, a law-enforcement officer may conduct a search and make seizures, without a search warrant or other authorization, if consent to the search is given.
(b) Definition of "Consent". -- As used in this Article, "consent" means a statement to the officer, made voluntarily and in accordance with the requirements of G.S. 15A-222 [e.g. owner of the property], giving the officer permission to make a search.
20
N.C.G.S. Sec. 15A-221 (General authorization; definition of
"consent"). The owner of the property – the lawful tenant –
in this situation, wasn’t home and did not give consent.
“[C]onsent . . . must be freely and intelligently given,
without coercion, duress or fraud, and the burden is upon the
state to prove that it was so, the presumption being against the
waiver of fundamental constitutional rights.” State v. Vestal,
Implicit in the very nature of the term "consent" is the requirement of voluntariness. To be voluntary the consent must be "unequivocal and specific," and "freely and intelligently given." To be voluntary, it must be shown that the waiver was free from coercion, duress or fraud, and not given merely to avoid resistance. By such a waiver and consent a defendant relinquishes the protection of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures, and also relinquishes the protection given by Article I, section [20] of the North Carolina Constitution against an unlawful search and seizure.
The burden of proof is upon the State to establish by clear and positive testimony that consent was so given.
State v. Little, 270 N.C. 234, 239-241, 154 S.E.2d 61 (1967)
(internal case citations deleted).
Did the presence of an angry apartment manager coerce Ms.
Huggins into nodding her head and saying “yeah”? The trial judge
failed to make any findings about the effect of the manager’s
21
presence. In another case, the “threat was explicit, and it
clearly coerced defendant to open the door; therefore, we
conclude defendant did not consent to the search or waive his
rights.” State v. McBennett, 191 N.C. App. 734, 743, 664 S.E.2d
51 (2008).
The accused had actual possession of the bathroom. He
locked the door to the bedroom and did not consent to an entry or
a search. “’[A]ctual possession of land consists in exercising
acts of dominion over it, and in making the ordinary use of it to
which it is adapted . . . ." State v. Baker, 231 N.C. 136, 139,
56 S.E. 2d 424, 426-27 (1949). “ State v. Washington, 86 N.C.App.
235, 243, 357 S.E.2d 419, 425 (1987). One locks the door for
privacy; one refuses to open the door for privacy as well. Being
in the bathroom or the shower – behind a locked door – one
expects privacy.
The officers’ presence in the apartment, even if it were
found to be lawful, doesn’t allow the police to unlock doors and
search every private space. See Arizona v. Gant, 556 U.S. 332,
the power to conduct such a search whenever an individual is
caught committing a traffic offense, when there is no basis for
believing evidence of the offense might be found in the vehicle,
creates a serious and recurring threat to the privacy of
countless individuals. Indeed, the character of that threat
22
implicates the central concern underlying the Fourth Amendment --
the concern about giving police officers unbridled discretion to
rummage at will among a person's private effects.” 556 U.S. at
1720 (footnote deleted)).
The fruits of the warrantless search and seizure must be
suppressed, along with the telephone conversation (Exhibit S7 set
out more fully in Arg. II) from the detention center, a fruit of
the arrest, search and seizure of Mr. Fuller resulting from the
seizure of the controlled substance. State v. Jackson, 199 N.C.
App. 236, 244, 681 S.E.2d 492 (2009)(“[T]he cocaine and weapon
found in the car were discovered as a direct result of the
illegal search and, therefore, should have been suppressed as
fruit of the poisonous tree. Wong Sun, 371 U.S. at 485, 9 L. Ed.
2d at 455.”)
II. THE TRIAL COURT ERRED BY ALLOWING NON-EXPERT, HEARSAY TESTIMONY ABOUT THE WORKINGS OF THE TELEPHONE SYSTEM, AND INTRODUCTION OF A PHONE CALL WITH NO IDENTIFICATION OF THE ACCUSED’S VOICE BY SOMEONE WHO KNOWS IT
STANDARD OF REVIEW: abuse of discretion. State v. Mobley, 206 N.C. App. 285, 289-290, 696 S.E.2d 862, 865-866 (2010).
The trial judge abused his discretion by admitting a jail
telephone recording as substantive evidence when the recording
was not authenticated as the accused’s voice by any witness in
violation of Rules 803 and 901, N.C. Rules of Evidence. In
addition, if the evidence is to be suppressed, any purported
23
statement of the accused on the phone call is a fruit of the
poisonous tree. If the evidence must be suppressed (Arg. I), so
must the phone call. In addition, it doesn’t meet a corpus
delicti requirements to go forward as there would be no evidence
of a drug crime. State v. Smith, 362 N.C. 583, 589-590, 669
S.E.2d 299 (2008).
The defense attorney objected to the jail phone conversation
being admitted into evidence, and argued:
Your Honor, this didn't come from the telephone company. They didn't say this actually came from the telephone company that actually handles these calls. They need to produce something coming from AT&T, to come here to say this come [sic] from our system. The sheriff officer come [sic] in to testify about this telephone call that went through a Global Tel system. You know, the correct person to come to say this went through our system is Global Tel. And if this had been internal, if they had their own system and, you know, they handle this, they can say this is our system; this is what we have control of. But this goes through Global Tel, and a Global Tel rep should come and say this come [sic] through our system.. . .[Prosecutor]: Your Honor, I move to admit the compilation of the jail calls as a business record. I asked Sergeant Fowler -- she testified she's the keeper of the records. I asked her if calls were recorded in the regular course of business. Your Honor, 803(6), which is the business record, says a person with knowledge, if kept in the course of a regularly conducted business activity, was theregular practice of that business, that can be admitted as a business record, Your Honor. And the business goes to include any profession, occupation, calling of any kind, whether or not it is for profit.
Based on her testimony, these calls were compiledin the regular course of business. In her profession as keeper of the records, she compiled that. I would submit we do not need Global -- the Global Tel Link –
24
. . .THE COURT: It is a business record.
MR. NWAUWA: If you take that line, the sheriff's department is not in the business of telephone. They're not in the business of telephone service. They don't -- they are handling inmates. So if -- that's why we have the Global Tel person that testifies, "Yeah, we keep this as a normalcourse of our business process." So if the GlobalTel people come in and say, "This is a record and wekeep it as a normal part of our business," yes, fine. But the sheriff department is in the business of keeping inmates, and this is not a business record for them.
THE COURT: Overruled. . . .(State's Exhibit No. 7, having been marked, was received in evidence.)
(2T pp. 129-131)
Sgt. Terry Fowler testified about an inmate phone monitoring
system that is run through Global Tel Link. Sgt. Fowler was “the
keeper of the records” of the recordings of calls made to and
from the jail. (2T p. 125) That was said to be done in the
regular course of business “through an internet-based system
called Global Tel Link.” The “date and the time, the inmate's
name and his PID, the telephone number dialed, the duration of
the call, and the location that the call is being made from” was
recorded. A compilation of jail calls was created, but Sgt.
Fuller did not testify to being able to identify Mr. Fuller’s
voice on the calls. (2T p. 128)
Mr. Fuller’s voice was not identified on the recording in
order for it to be authenticated under Rule 901, N.C. R. Ev..
25
That point distinguishes the case below from this Court’s
decision in State v. Mobley:
Rule 803(6) states in part that a business record is "[a] memorandum, report, record, or data compilation, in any form" of information provided by or from a person with knowledge and kept in the course of regular business activity as shown by the testimony of the custodian or other qualified witness. N.C. Gen. Stat. § 8C-1, Rule 803(6) (2009).
An audio recording admitted under Rule 803 must nevertheless be authenticated under Rule 901. State v. Stager, 329 N.C. 278, 315-16, 406 S.E.2d 876, 897-98 (1991). Rule 901 permits authentication by evidence sufficient "to support a finding that the matter in question is what its proponent claims." N.C. Gen. Stat. § 8C-1, Rule 901(a) (2009). Thus, the issue is whether there is competent evidence that the booking-area caller was defendant.
A caller's identity may be established by testimony connecting the voice on the recording with defendant or by some circumstantial evidence. State v. Williams, 288 N.C. 680, 698, 220 S.E.2d 558, 571 (1975); N.C. Gen. Stat. § 8C-1, Rule 901(a). A witness' testimony as to the identity of the declarant "based on personal knowledge is all that is required to authenticate a tape recording." Stager, 329 N.C. at 317, 406 S.E.2d at 898. Sergeant Brantley testified that inmates' calls are recorded in the normal course of business and kept at the Mecklenburg County Jail according to the inmates' PID number. The call identified by Sergeant Brantley was made to the same number as defendant's subsequent calls and featured a voice similar to defendant's subsequent calls. Whitesel, the undercover officer who interacted with defendant during the drug buy, also identified defendant as the caller in State's Exhibit 13.
In the booking-area call, the caller identified himself as "Little Renny," which includes defendant Renny Mobley's first name. The caller related that "me, Mark and that other little n--" got arrested and refers again to the "little n--" as the person who handled the substance. This is substantially similar to the circumstances of defendant's arrest. . . .
This circumstantial evidence authenticated the caller's identity in State's Exhibit 13. The trial
26
court did not abuse its discretion in admitting the call into evidence. Stager, 329 N.C. at 318, 406 S.E.2d at 899.
State v. Mobley, 206 N.C. App. 285, 289-290, 696 S.E.2d 862, 865-
866 (2010).
As the voice on the call was not authenticated by
identifying the speaker as the accused by any witness, as
apparently admitted by the prosecutor at a different point in the
trial (see Arg. III, 2T p. 93), the exhibit was not admissible in
evidence. This error was highly prejudicial and warrants a new
trial as the caller makes comments that could be interpreted by
jurors as references to controlled substances in the apartment.
III. THE TRIAL COURT ERRED BY DENYING THE ACCUSED’S RIGHT TO PRESENT A DEFENSE AND IMPEACH THE OFFICER TESTIFYING AGAINST HIM BY DISALLOWING CROSS-EXAMINATION ABOUT HIS TRANSCRIPTION OF CERTAIN JAIL PHONE CALLS, AND DISALLOWING QUESTIONS ABOUT WHETHER THE OTHER OCCUPANT OF THE APARTMENT HAD BEEN CHARGED WITH OFFENSES RELATED TO HER COCAINE FOUND IN THE APARTMENT
STANDARD OF REVIEW: DE NOVO CONSTITUTIONAL ERROR; OR ABUSE OF
DISCRETION. State v. Mobley, 206 N.C. App. 285, 289-290, 696
S.E.2d 862, 865-866 (2010).
27
The defense theory was that the police planted the drugs or
moved the drugs around and photographed them in such a way as to
implicate Mr. Fuller and exonerate Ms. Huggins. For example, the
defense attorney asked:
Q. But when you came back with your search warrant, youdid discover lady's purse on the mattress that containeddrugs; correct?A. Yes, sir.Q. You did not charge Mr. Fuller with those drugs, didyou?A. Mr. Fuller was charged with trafficking cocaine, so hewas charged with the --MS. McABEE: Objection, Your Honor. (2T p. 90)THE COURT: Sustained.BY MR. NWAUWAQ. You did not charge -- you did not -- that particulardrugs you said you found in the lady's purse was not whatyou charged Mr. Fuller with?MS. McABEE: Objection, Your Honor.THE COURT: Sustained.BY MR. NWAUWAQ. But you're sure that that lady's purse with the cocainewas found on the mattress in the second bedroom; correct?A. To the best of my recollection, sir, it was on themattress.Q. Now, you are aware that Mr. Fuller had denied that youever found any drugs on him; correct?A. No, sir.Q. You're not aware of that?Q. Now, you are aware that Mr. Fuller had denied that youever found any drugs on him; correct?A. No, sir.Q. You're not aware of that?A. Mr. Fuller told me that he picked -- he said "I pickedthat up off the floor."
28
Q. You were the one that transcribed certain calls thatMr. Fuller made from the jailhouse. You were the one thattranscribed it; correct?A. Yes, sir.Q. You read it when you were transcribing it; correct?A. Yes, sir. I proofread it. I tried to proofread it,yes, sir. (2T p. 91)Q. You wrote it out in your own handwriting; correct?A. I did, yes, sir.Q. So when you were writing it, did you not read inseveral places where Mr. Fuller said you did not findanything off him, did you not?A. I don't remember the transcription word for word.(Defendant's Exhibit No. 3 was marked for identification.). . .Q. Now, this is going to be Exhibit 3. Do you know whatthis is?A. Yes, sir. This is the transcription I made ofMr. Fuller's phone calls from the intake center.. . . He's talking to -- he's talking to someone on thephone. He was talking about -- he mentioned talking to awhite girl.MS. McABEE: Your Honor, I'm going to object. (2T p. 92)THE COURT: Sustained.BY MR. NWAUWAQ. This -- could you read this, what it says in thisparagraph?MS. McABEE: Objection.THE COURT: Sustained. He may read it to himself.BY MR. NWAUWAQ. Now, correct me if I'm wrong, you wrote in here that"They found no drugs on you"?MS. McABEE: Objection, Your Honor.THE COURT: Sustained.MR. NWAUWA: Your Honor --THE COURT: It's not in evidence. The document is not in evidence.MR. NWAUWA: Your Honor, he transcribed it.THE COURT: I beg your pardon?MR. NWAUWA: He has identified that he transcribed this.THE COURT: Approach.(Bench conference held off the record.) . . .
29
(The jury was escorted from the courtroom by the deputy (2T p. 93) . . .MS. McABEE: Your Honor, I've objected because, first of all, this is not a formal transcript of the jail calls. The officer listened to the jail calls and transcribed them himself for purposes of discovery. The call itself has not been authenticated. We have no way of knowing, absentthis officer's handwriting, that this came from Kenneth Fuller. There is an individual at the jail who is charged with compiling jail calls made by a defendant traced to a PID number, traced to a date of birth, traced to the defendant's name. That is how you know it is an authenticate[d] jail call, Your Honor. I would submit that this officer is not the person to authenticate this document or authenticate the jail call in and of itself. And further, the defendant can't testify to his own statements, and I would submit that this is not the correct witness to get that information.THE COURT: Now I'll hear from the defense. (2T p. 94)MR. NWAUWA: Your Honor, this is -- provided to us as part of discovery in this case whereby given this as the transcript of the phone calls that Mr. Fuller made from the jail, which transcripts of what was said have been admitted of this officer. That was the transcript of the calls he made from the jail and that he transcribed them. And so, Your Honor, we are taking the transcript of the jail calls as it is. Now, if we cannot use the transcript that was given to us from -- as his call from jailhouse -- it used to be that all the time before we have the system of playing the recording. So I don't see -- these are his calls he made from the jail address. He put his name there. He put his number there. That is his document to be used. What I'm -- I'm not saying he said it. I said this is what he got from the record that he transcribed.
THE COURT: Sustained.
(2T pp. 90-94)(emphasis added)
Here, what was good for the goose (the State), was good for
the gander (the defense). The tape was allowed into evidence
against the defense, but the officer’s transcription was not
30
allowed for impeachment purposes for the defense. The defense
theory was that the police either planted the drugs or made the
other occupants’ drugs look like they belonged to the accused by
using staged or misleading photos. The trial judge’s ruling
denied Mr. Fuller the right to effective counsel by denying him
the right to present a defense, and right to impeach and confront
the witnesses against him.
The right to confront one's accusers, guaranteed by the sixth amendment and made applicable to the states by the fourteenth, is central to an effective defense and a fair trial. Pointer v. Texas, 380 U.S. 400, 403-05, 85 S.Ct. 1065, 1067-68, 13 L.Ed. 2d 923, 926-27 (1965). At the heart of the right of confrontation is cross-examination. Id. . .
The right of effective cross-examination, recognized as fundamental by the Supreme Court [citation deleted] is denied when a defendant is prevented from cross-examining a witness at all on a subject matter relevant to the witness's credibility. [citation deleted] Moreover, the denial of that right is a "constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." (citation deleted)
State v. Durham, 74 N.C. App. 159, 162-163, 327 S.E.2d 920
(1985). If the officer wrote down that Mr. Fuller said in the
phone call that the drugs weren’t his, and the officer denied
that, the transcript impeached the officer with his own writing.
If Ms. Huggins had not been charged with drug offenses, that
supported the defense theory of focusing the blame on him. This
was part and parcel of the defense argument that evidence was
moved and then photographed so as to implicate the accused. In
31
addition, if the jail calls were admissible for the State, they
were admissible for the defense.
This is a fundamental error that by itself requires a new
trial.
CONCLUSION
For the foregoing reasons, Defendant Fuller respectfully
requests that the judgment be vacated and conviction be reversed.
This the 17th day of December, 2012.
Counsel for Defendant-Appellant Electronically filedM. ALEXANDER CHARNSN.C. State Bar #10612P.O. Box 59Durham, N.C. 27702Telephone: (919) 956-7564 E-mail: [email protected]
CERTIFICATE OF SERVICE
The undersigned attorney for the Defendant-Appellant hereby certifies that the original of the foregoing was filed with the N.C. Court of Appeals X_ electronically or ___by placing it in the U.S. Mail, and a copy of the foregoing was served upon counsel for the State of North Carolina on the date indicated below, by X email, or by ___depositing said copy in the United States Mail, first-class postage prepaid, properly addressed to the last-known address of said counsel for the State as follows:
[email protected]. Hilda Burnett-BakerSpecial Deputy Attorney General
N.C. Dept. of Justice 1505 Mail Service Center Raleigh, NC 27699-1505
