{ "id": 11436295, "name": "STATE OF NORTH CAROLINA v. GREGORY LEE NOWELL and MICHAEL LYNN TAYLOR", "name_abbreviation": "State v. Nowell", "decision_date": "2001-07-17", "docket_number": "No. COA00-697", "first_page": "636", "last_page": "648", "citations": [ { "type": "official", "cite": "144 N.C. App. 636" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "417 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "507-08", "parenthetical": "discussing inevitable discovery exception to the exclusionary rule" } ], "opinion_index": 0 }, { "cite": "331 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2502284 ], "year": 1992, "pin_cites": [ { "page": "502", "parenthetical": "discussing inevitable discovery exception to the exclusionary rule" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0491-01" ] }, { "cite": "454 S.E.2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "235", "parenthetical": "trial court's failure to make findings of fact at suppression hearing is not reversible error when there is not a material conflict in the evidence" } ], "opinion_index": 0 }, { "cite": "339 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556863 ], "year": 1995, "pin_cites": [ { "page": "706", "parenthetical": "trial court's failure to make findings of fact at suppression hearing is not reversible error when there is not a material conflict in the evidence" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0695-01" ] }, { "cite": "530 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "312-13", "parenthetical": "handling of drugs \"for inspection purposes does not constitute possession within the meaning of section 90-95(h)(3)\"" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078955 ], "year": 2000, "pin_cites": [ { "page": "165", "parenthetical": "handling of drugs \"for inspection purposes does not constitute possession within the meaning of section 90-95(h)(3)\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0163-01" ] }, { "cite": "187 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "403 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2542019, 2537764, 2544871, 2542283, 2540473 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0575-04", "/nc/328/0575-05", "/nc/328/0575-01", "/nc/328/0575-03", "/nc/328/0575-02" ] }, { "cite": "398 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "901" }, { "page": "901", "parenthetical": "party who placed finger in cocaine and touched the substance to his lip did not have the power and intent to control the substance" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527259 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "65" }, { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0059-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(h)(l)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "505 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469961 ], "year": 1998, "pin_cites": [ { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0675-01" ] }, { "cite": "393 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "327 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496850 ], "year": 1990, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0162-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "year": 1990, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "418 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "229", "parenthetical": "case remanded to trial court for new trial when trial court erred by denying the defendant's motion to suppress evidence" } ], "opinion_index": 0 }, { "cite": "332 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505165 ], "year": 1992, "pin_cites": [ { "page": "129", "parenthetical": "case remanded to trial court for new trial when trial court erred by denying the defendant's motion to suppress evidence" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0123-01" ] }, { "cite": "439 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 242", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531076, 2526959, 2532723, 2531710, 2530751 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0242-02", "/nc/335/0242-05", "/nc/335/0242-04", "/nc/335/0242-03", "/nc/335/0242-01" ] }, { "cite": "433 S.E.2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "243" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 581", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522985 ], "year": 1993, "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0581-01" ] }, { "cite": "309 S.E.2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "563" }, { "page": "564", "parenthetical": "evidence obtained after the defendant signed a consent form permitting police to search his house must be suppressed when the consent form was signed approximately five minutes after police made an illegal entry into the defendant's house" } ], "opinion_index": 0 }, { "cite": "65 N.C. App. 513", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524901 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "517" }, { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc-app/65/0513-01" ] }, { "cite": "143 L. Ed. 2d 779", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1996, "opinion_index": 0 }, { "cite": "517 U.S. 1189", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11816256, 11816772, 11816364, 11817228, 11816942, 11816464, 11817040, 11817298, 11817141, 11817397, 11816695, 11816861 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/us/517/1189-01", "/us/517/1189-05", "/us/517/1189-02", "/us/517/1189-10", "/us/517/1189-07", "/us/517/1189-03", "/us/517/1189-08", "/us/517/1189-11", "/us/517/1189-09", "/us/517/1189-12", "/us/517/1189-04", "/us/517/1189-06" ] }, { "cite": "464 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796061 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0407-01" ] }, { "cite": "454 S.E.2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "685" }, { "page": "683" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916879 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "113" }, { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0106-01" ] }, { "cite": "411 S.E.2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "196" }, { "page": "197" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523891 ], "year": 1991, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0724-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "620" }, { "page": "621", "parenthetical": "appellate court will not address theory of admissibility not raised in trial court" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "135" }, { "page": "136-37" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "248 F.3d 677", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11104611 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "681", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/f3d/248/0677-01" ] }, { "cite": "114 L. Ed. 2d 486", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1991, "pin_cites": [ { "parenthetical": "\"inquiry focuses on what an objective officer could reasonably believe\"" } ], "opinion_index": 1 }, { "cite": "500 U.S. 945", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6365376, 6367169, 6366947, 6364869, 6363975, 6365735, 6364457, 6364202, 6365549, 6365229, 6365968, 6366736, 6364696, 6366300, 6365053, 6366494 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/us/500/0945-08", "/us/500/0945-16", "/us/500/0945-15", "/us/500/0945-05", "/us/500/0945-01", "/us/500/0945-10", "/us/500/0945-03", "/us/500/0945-02", "/us/500/0945-09", "/us/500/0945-07", "/us/500/0945-11", "/us/500/0945-14", "/us/500/0945-04", "/us/500/0945-12", "/us/500/0945-06", "/us/500/0945-13" ] }, { "cite": "925 F.2d 776", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1789370 ], "year": 1991, "pin_cites": [ { "page": "778" } ], "opinion_index": 1, "case_paths": [ "/f2d/925/0776-01" ] }, { "cite": "148 L. Ed. 2d 90", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 1 }, { "cite": "607 N.W. 2d 621", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11225873, 11225931 ], "pin_cites": [ { "page": "628" } ], "opinion_index": 1, "case_paths": [ "/wis-2d/233/0276-01", "/wis-2d/233/0280-01" ] }, { "cite": "233 Wis. 2d 280", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 11225931 ], "pin_cites": [ { "page": "293" } ], "opinion_index": 1, "case_paths": [ "/wis-2d/233/0280-01" ] }, { "cite": "130 L. Ed. 2d 883", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 1 }, { "cite": "513 U.S. 1128", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1334368, 1335937, 1332385, 1330816, 1332899, 1330665, 1331499, 1333969, 1335154, 1335666, 1333106, 1334745, 1331323, 1333214 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/us/513/1128-09", "/us/513/1128-11", "/us/513/1128-07", "/us/513/1128-03", "/us/513/1128-12", "/us/513/1128-05", "/us/513/1128-04", "/us/513/1128-10", "/us/513/1128-02", "/us/513/1128-14", "/us/513/1128-06", "/us/513/1128-01", "/us/513/1128-08", "/us/513/1128-13" ] }, { "cite": "32 F.3d 876", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1844388 ], "year": 1994, "pin_cites": [ { "page": "882", "parenthetical": "citation omitted" } ], "opinion_index": 1, "case_paths": [ "/f3d/32/0876-01" ] }, { "cite": "859 F.2d 1501", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10538841 ], "year": 1988, "pin_cites": [ { "page": "1511", "parenthetical": "\"[t]his court has recognized along with many others that exigent circumstances will be present when there is an urgent need to prevent evidence from being lost or destroyed\"" } ], "opinion_index": 1, "case_paths": [ "/f2d/859/1501-01" ] }, { "cite": "454 S.E.2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "235" } ], "opinion_index": 1 }, { "cite": "339 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556863 ], "year": 1995, "pin_cites": [ { "page": "705-06" } ], "opinion_index": 1, "case_paths": [ "/nc/339/0695-01" ] } ], "analysis": { "cardinality": 1062, "char_count": 30261, "ocr_confidence": 0.755, "pagerank": { "raw": 4.58343952576216e-07, "percentile": 0.9254267333732584 }, "sha256": "4ea53f443c67615efd8b6885c59b249aa9fabf4acc78cf7b3f9c34cf097dff99", "simhash": "1:a1a3107bca031e78", "word_count": 4770 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge TIMMONS-GOODSON concurs.", "Judge JOHN concurs in part and dissents in part with a separate opinion." ], "parties": [ "STATE OF NORTH CAROLINA v. GREGORY LEE NOWELL and MICHAEL LYNN TAYLOR" ], "opinions": [ { "text": "GREENE, Judge.\nGregory Lee Nowell (Nowell) appeals from judgments dated 8 December 1999 entered after a jury rendered verdicts finding him guilty of possesion of marijuana with intent to sell or deliver, knowingly possessing drug paraphernalia with the intent to use it, knowingly keeping and maintaining a dwelling house for the purpose of keeping and selling controlled substances, and trafficking in marijuana by possessing in excess of 10 pounds but less than 50 pounds of marijuana. Nowell also appeals from the trial court\u2019s 7 June 1999 order denying his motion to suppress evidence. Additionally, Michael Lynn Taylor (Taylor) appeals judgments dated 8 December 1999 entered after a jury rendered verdicts finding him guilty of trafficking in marijuana by possessing in excess of 10 pounds but less than 50 pounds of marijuana and possessing marijuana with intent to sell or deliver. Nowell and Taylor were tried in a joint trial.\nSuppression hearing\nThe record shows that prior to trial, Nowell filed a motion to suppress evidence obtained as a result of a 3 March 1999 search of his residence. Specifically, Nowell sought suppression of \u201cany article, thing[,] or testimony obtained as a result of this illegal arrest, illegal search, [and] illegal seizure.\u201d At a hearing on Nowell\u2019s motion, the State presented evidence that on 3 March 1999, Lieutenant Don Stanfield (Stanfield) was employed by the Halifax County Sheriffs Department as \u201cLieutenant in charge of all narcotics operations.\u201d On that day, Stanfield was notified by a law enforcement officer that approximately fifty pounds of marijuana had been seized from a vehicle traveling on Interstate 95 in Cumberland County. The vehicle was driven by Jerry Strickland (Strickland), and Juan Valles (Valles) was a passenger in the vehicle. Additionally, the law enforcement officer provided Stanfield with a map to a residence located in Halifax County where the law enforcement officer believed the marijuana was to be delivered. Stanfield subsequently determined that Nowell lived at the residence.\nLater that day on 3 March 1999, law enforcement officers from Cumberland County arrived at the Halifax County Sheriffs Department, and Strickland was in the officers\u2019 custody. Strickland informed Stanfield that he had had \u201cnumerous dealings\u201d with Nowell in the past. As part of those \u201cdealing,\u201d Strickland and Nowell would schedule a delivery of marijuana, and Strickland would transport the marijuana to Nowell\u2019s residence. After Strickland arrived at Nowell\u2019s residence, Nowell usually \u201cwould have to go get the rest of the money and leave [Strickland] there until . . . Nowell would return with the money and the deal would be done in the selling of marijuana.\u201d Based on this information, Stanfield decided law enforcement officers would participate with Strickland in a \u201ccontrolled delivery\u201d of marijuana to Nowell. Strickland agreed to wear a \u201cbody wire\u201d and to deliver the marijuana to Nowell; however, Sergeant E.M. Buffaloe (Buffaloe) of the Halifax County Sheriff\u2019s Department, rather than Valles, would accompany Strickland during the delivery. Tim Byers (Byers), a narcotics investigator for the Weldon Police Department, was able to listen to the activities taking place during the delivery through the body wire placed on Strickland. Additionally, Stanfield was in radio contact with Buffaloe.\nAfter Strickland and Buffaloe arrived at Nowell\u2019s residence to make the controlled delivery, Strickland carried one of the suitcases into the residence while Buffaloe remained in the vehicle. Strickland subsequently returned to the vehicle and informed Buffaloe that Nowell \u201chad to go get the rest of the money\u201d and \u201cwanted to carry a piece of the marijuana with him.\u201d Buffaloe, however, refused to permit Nowell to leave the premises with any of the marijuana. While Buffaloe and Strickland remained at Nowell\u2019s residence, Nowell left the residence to obtain the \u201crest of the money.\u201d Sometime later, Nowell returned to the residence accompanied by Taylor, and Strickland, Taylor, and Nowell went inside the residence. Stanfield was then contacted via radio by Byers, and Byers informed him that \u201cthe deal had been talked about, how good the sh\u2014 was, and they were in the process of asking for rolling papers and want to roll a doobie and smoke a joint.\u201d Stanfield \u201cfelt like that was the time that [the officers] needed to make an arrest before [Nowell and Taylor] could consume any drugs.\u201d Stanfield directed the other officers to enter the residence and Stanfield entered the residence \u201cseconds\u201d after the other officers. Nowell and Taylor were standing in the kitchen area when Stanfield entered the residence, and Stanfield saw \u201capproximately fifty pounds of marijuana open, some of it cut open, and strewed on the counter along with big wads of money.\u201d The money amounted to \u201c[c]lose to forty thousand dollars.\u201d Nowell and Taylor were arrested, and Buffaloe asked Nowell whether \u201che could have consent to search the rest of the [residence].\u201d Nowell responded that he \u201cdidn\u2019t give a sh\u2014 but [that] he [would not] sign nothing.\u201d The residence was then searched and drug paraphernalia was recovered.\nByers testified at the suppression hearing that he was involved in monitoring the 3 March 1999 controlled delivery of marijuana to Nowell\u2019s residence. Through a listening device placed on Strickland, Byers was able to hear Strickland\u2019s conversation inside Nowell\u2019s residence. Based on what he was able to hear, Byers became aware that Nowell and Taylor were preparing to \u201cconsume\u201d marijuana and he also became aware of \u201cthe actual purchase of the approximate fifty pounds of marijuana.\u201d At that time, Byers communicated to Stanfield through a radio transmission that \u201cthe consumption was about to take place and [they] needed to move in.\u201d Stanfield then \u201cgave the order to . . . Buffaloe and the other members of his team to enter the residence and effect the arrest.\u201d\nAt the conclusion of the suppression hearing, the trial court stated:\nThe [c]ourt finds that this is an arrest supported by probable cause, that the officers in fact had probable cause, that [Nowell] was arrested, that [Nowell] voluntarily gave a consent for the search and the [c]ourt finds specifically that [Nowell] in reference to the question, \u201cCan we search the residence?\u201d replied, [\u201c]He didn\u2019t give a sh \u2014 \u2022 but he wasn\u2019t going to sign nothing. [\u201d] The [c]ourt finds that viewing the totality of circumstances[,] . . . that is a voluntary consent and officers were proper in executing that consent based on voluntariness of response to their question.\nThe trial court therefore denied Nowell\u2019s motion to suppress.\nTrial\nThe State presented evidence at trial that on 3 March 1999, Carey Lewis (Lewis), a law enforcement officer employed by the North Carolina Division of Motor Vehicles Enforcement Section, was patrolling Interstate 95 in Cumberland County. Lewis testified that on that morning he pulled over a vehicle driven by Strickland and in which Valles was a passenger because the vehicle was \u201cweaving over into the emergency lane.\u201d Strickland appeared nervous, and Lewis asked Strickland for permission to search the vehicle. Strickland gave verbal consent for Lewis to search the vehicle, and Lewis found two suitcases in the trunk of the vehicle containing what he believed to be marijuana. Lewis notified the Cumberland County Narcotics Unit and, after other law enforcement officers arrived at the scene, Strickland and Valles were arrested and transported to the Cumberland County Sheriff\u2019s Department. Later that day, Strickland and Valles were transported to Halifax County for the purpose of arranging a controlled delivery of the marijuana to Nowell.\nStrickland testified that on 3 March 1999, he was taken into custody for possession of marijuana and, after being taken into custody, he admitted to law enforcement officers that he \u201chad made arrangements with . . . Nowell to pick up the drugs, bring them back from Texas to North Carolina and bring them to [Nowell\u2019s] house.\u201d Strickland agreed with law enforcement officers to participate in a controlled delivery of the marijuana to Nowell. Strickland also consented to wear a body wire during the controlled delivery. Several hours after Strickland agreed to participate in the controlled delivery, he and Buffaloe, who was acting as Valles, drove to Nowell\u2019s residence. When they arrived, Buffaloe remained in the vehicle while Strickland went into the residence carrying one of the suitcases containing marijuana. Inside the residence, Strickland opened up the suitcase and \u201ctook out a brick [of marijuana] that had already been cut open and showed [Nowell] what it was, what it smelled like, and an approximation of how many pounds that [Strickland] had.\u201d Nowell determined the marijuana \u201cwas a good quality\u201d and informed Strickland that Nowell \u201cwould have to go and get the rest of the money from . . . Taylor.\u201d The total cost of the marijuana was $850.00 per pound and the delivery included approximately fifty pounds. Nowell told Strickland that there was approximately $11,000.00 or $12,000.00 in Nowell\u2019s residence at that time. Nowell then left his residence for approximately one hour and Strickland waited in the vehicle with Buffaloe. When Nowell returned to his residence, Strickland went into the residence carrying the second suitcase. Strickland placed the second suitcase on the couch beside the first suitcase. A few minutes later, Taylor arrived at the residence and went inside. The money that was already in the residence was placed on the kitchen counter and Taylor placed some additional money on the kitchen counter. Either Nowell or Taylor \u201ccut open the brick [of marijuana] further\u201d and Taylor stated that he \u201cwas going to smoke [some of the marijuana].\u201d Law enforcement officers then entered the' residence and handcuffed the defendants.\nByers testified that during the controlled delivery, he remained in a law enforcement vehicle in the area of Nowell\u2019s residence. Byers was able to listen to Strickland\u2019s activities through transmissions from the body wire Strickland was wearing. After Strickland\u2019s initial entry into Nowell\u2019s residence, Strickland returned to his vehicle and spoke to Buffaloe. Buffaloe asked Strickland some general questions regarding who was inside the residence, and Buffaloe instructed Strickland \u201cto proceed on with the deal.\u201d Byers then heard Nowell say that he had to leave the residence to obtain the rest of the money for the marijuana from Taylor. After Nowell returned to the residence, Byers continued to listen to the parties through the wire transmissions. Strickland asked Nowell if he \u201cha[d] the money,\u201d and Nowell responded that \u201c[Taylor was] on his way.\u201d Taylor then arrived at the residence and informed Strickland that he had \u201cthe money.\u201d Next, Byers heard Taylor say \u201clet\u2019s roll one or let\u2019s bum one or something to that extent.\u201d Byers immediately notified the other law enforcement officers \u201cthat they were going to smoke one and that [the law enforcement officers] needed to enter [the residence].\u201d Law enforcement officers, including Byers, then entered the residence. Inside the residence, Byers saw a \u201cbrick\u201d of marijuana on the kitchen \u201cbar,\u201d as well as \u201cmarijuana residue,\u201d a razor, and \u201ca large amount of cash.\u201d\nBuffaloe testified that he accompanied Strickland to Nowell\u2019s residence during the controlled delivery. Buffaloe remained in a vehicle located outside of the residence while Strickland went inside the residence. After Strickland carried one suitcase containing marijuana inside the residence, Nowell left the residence for approximately one hour and forty-five minutes. Nowell then returned to the residence and Taylor arrived thereafter. Approximately two or three minutes after Taylor entered the residence, Buffaloe received a radio transmission instructing him to enter the residence. Upon entering, Buffaloe saw Strickland standing \u201cin the living room area just a foot away from the kitchen counter.\u201d Additionally, Buffaloe saw Taylor and Nowell standing behind the kitchen counter. Taylor was \u201cstanding behind a single brick of marijuana\u201d and Nowell was \u201cstanding behind a brick of marijuana\u201d and was \u201ctrying to peel it open.\u201d Buffaloe could see money on the counter.\nStanfield gave testimony at trial consistent with his testimony during the suppression hearing.\nAt the close of the State\u2019s evidence, Nowell and Taylor made motions to dismiss the charges against them. The trial court denied the motions. Neither Nowell nor Taylor offered any evidence at trial.\nThe issues are whether: (I) exigent circumstances existed to permit the law enforcement officers\u2019 warrantless entry into Nowell\u2019s residence and, if not, whether evidence obtained as a result of the unlawful entry into Nowell\u2019s residence should have been suppressed; and (II) the record contains substantial evidence Taylor possessed marijuana.\nI\nNowell\nNowell argues exigent circumstances justifying a warrantless search of his residence were not present; therefore, Nowell\u2019s motion to suppress all evidence obtained as a result of the search of his residence should have been granted.\nWarrantless search\nWhen a defendant in a criminal prosecution makes a motion to suppress evidence obtained by means of a warrantless search, the State has the burden of showing, at the suppression hearing, \u201chow the [warrantless search] was exempted from the general constitutional demand for a warrant.\u201d State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982). \u201cA warrantless search is lawful if probable cause exists to search and the exigencies of the situation make search without a warrant necessary.\u201d State v. Mills, 104 N.C. App. 724, 730, 411 S.E.2d 193, 196 (1991). Exigent circumstances sufficient to make search without a warrant necessary include, but are not limited to, the probable destruction or disappearance of a controlled substance. Id. at 731, 411 S.E.2d at 197; State v. Smith, 118 N.C. App. 106, 113, 454 S.E.2d 680, 685, reversed on other grounds, 342 N.C. 407, 464 S.E.2d 45 (1995), cert. denied, 517 U.S. 1189, 143 L. Ed. 2d 779 (1996). A determination of whether exigent circumstances are present must be based on the \u201ctotality of the circumstances.\u201d State v. Yananokwiak, 65 N.C. App. 513, 517, 309 S.E.2d 560, 563 (1983).\nIn this case, it is undisputed that law enforcement officers entered Nowell\u2019s residence without a warrant. Evidence presented at the suppression hearing shows law enforcement officers participated in a controlled delivery of approximately fifty pounds of marijuana to Nowell\u2019s residence. After the marijuana had been taken into Nowell\u2019s residence by Strickland, Taylor and Nowell asked for rolling papers so that they could \u201csmoke a joint.\u201d Immediately thereafter, law enforcement officers entered Nowell\u2019s residence. This evidence, which was not controverted, shows that the amount of marijuana required for one \u201cjoint\u201d was going to be destroyed at the time law enforcement officers made a decision to enter Nowell\u2019s residence without a warrant. Based on the totality of the circumstances, evidence the parties were going to destroy the amount of marijuana required for one \u201cjoint\u201d from the approximately fifty pounds of marijuana present in the residence is not an exigent circumstance. Thus, because exigent circumstances did not exist to enter Nowell\u2019s residence without a warrant, the entry into Nowell\u2019s residence violated the Fourth Amendment of the United States Constitution.!\nExclusion of evidence\nUnder the exclusionary rule, evidence seized pursuant to an unlawful search may not be admitted into evidence. State v. Wallace, 111 N.C. App. 581, 589, 433 S.E.2d 238, 243, disc. review denied, 335 N.C. 242, 439 S.E.2d 161 (1993). Thus, in this case, testimony by law enforcement officers regarding the location and condition of marijuana inside Nowell\u2019s residence, as well as the location of money inside the residence, should have been suppressed. Furthermore, although the trial court concluded at the suppression hearing that Nowell consented to the search of his residence, this consent occurred moments after law enforcement officers had made an illegal entry into the residence. Thus, Nowell\u2019s consent is tainted by the illegal entry into the residence and the drug paraphernalia seized as a result of the search should have been suppressed. See Yananokwiak, 65 N.C. App. at 518, 309 S.E.2d at 564 (evidence obtained after the defendant signed a consent form permitting police to search his house must be suppressed when the consent form was signed approximately five minutes after police made an illegal entry into the defendant\u2019s house). Accordingly, the trial court\u2019s order denying Nowell\u2019s motion to suppress testimony and evidence obtained as a result of the unlawful search of his residence is reversed. Additionally, the trial court\u2019s 8 December 1999 judgments as to Nowell are reversed and this case is remanded to the trial court for a new trial. See State v. Allen, 332 N.C. 123, 129, 418 S.E.2d 225, 229 (1992) (case remanded to trial court for new trial when trial court erred by denying the defendant\u2019s motion to suppress evidence).\nBecause we reverse the trial court\u2019s 8 December 1999 judgments as to Nowell, we need not address Nowell\u2019s additional assignments of error.\nII\nTaylor\nTaylor argues the record does not contain substantial evidence he possessed marijuana; therefore, the trial court should have granted his motion to dismiss the charges against him. We agree.\nA motion to dismiss is properly denied if \u201cthere is substantial evidence (1) of each essential element of the offense charged and (2) that defendant is the perpetrator of the offense.\u201d State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). \u201cSubstantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u201d State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990). \u201cWhen ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence.\u201d State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).\nPossession is an element of both trafficking in marijuana, pursuant to N.C. Gen. Stat. \u00a7 90-95(h)(l), and possessing marijuana with the intent to sell or deliver, pursuant to N.C. Gen. Stat. \u00a7 90-95(a). N.C.G.S. \u00a7 90-95(a) (1999); State v. Moose, 101 N.C. App. 59, 65, 398 S.E.2d 898, 901 (1990), disc. review denied, 328 N.C. 575, 403 S.E.2d 519 (1991). A defendant possesses marijuana within the meaning of section 90-95 when he has \u201cboth the power and intent to control its disposition or use.\u201d State v. Harvey, 281 N.C. 1, 12, 187 S.E.2d 706, 714 (1972).\nIn this case, the State presented evidence Strickland brought approximately fifty pounds of marijuana into Nowell\u2019s residence and Taylor subsequently arrived at the residence. Taylor then placed an amount of money on the kitchen counter, and either Taylor or Nowell \u201ccut open\u201d a brick of marijuana. Taylor then stated he \u201cwas going to smoke [some of the marijuana].\u201d Immediately after Taylor made this statement, law enforcement officers entered Nowell\u2019s residence and observed Taylor and Nowell behind the kitchen counter. The kitchen counter contained a \u201cbrick\u201d of marijuana, some \u201cmarijuana residue,\u201d a razor, and a \u201clarge amount of cash\u201d; and Strickland was standing \u201ca foot away from the kitchen counter.\u201d This evidence, viewed in the light most favorable to the State, does not show Taylor had both the power and intent to control the marijuana located in Nowell\u2019s residence at the time law enforcement offers entered the residence. See State v. Wheeler, 138 N.C. App. 163, 165, 530 S.E.2d 311, 312-13 (2000) (handling of drugs \u201cfor inspection purposes does not constitute possession within the meaning of section 90-95(h)(3)\u201d); Moose, 101 N.C. App. at 65, 398 S.E.2d at 901 (party who placed finger in cocaine and touched the substance to his lip did not have the power and intent to control the substance). The record, therefore, does not contain substantial evidence Taylor possessed marijuana and the trial court consequently erred by denying Taylor\u2019s motion to dismiss the charges against him. Accordingly, the trial court\u2019s 8 December 1999 judgments as to Taylor are reversed. Because we reverse these judgments, we need not address Taylor\u2019s additional assignments of error.\nCase Nos. 99CRS001922; 99CRS001923; 99CRS001924; 99CRS001925: Reversed and remanded.\nCase Nos. 99CRS001926; 99CRS001928: Reversed.\nJudge TIMMONS-GOODSON concurs.\nJudge JOHN concurs in part and dissents in part with a separate opinion.\n. In its order denying Nowell\u2019s motion to suppress, the trial court did not make any findings regarding the warrantless entry into Nowell\u2019s residence. Rather, the trial court addressed only the arrest of Nowell, made after law enforcement officers had entered the residence, and Nowell\u2019s subsequent consent to law enforcement officers\u2019 request to search the residence. Generally, review of a trial court\u2019s denial of a motion to suppress is limited to \u201cwhether the trial court\u2019s findings of fact are supported by competent evidence and whether the findings of fact in turn support legally correct conclusions of law.\u201d Smith, 118 N.C. App. at 111, 454 S.E.2d at 683. Nevertheless, because the evidence regarding the entry of law enforcement officers into Nowell\u2019s residence is not controverted, we need not remand this case to the trial court for the entry of an order containing findings of fact. See State v. Lovin, 339 N.C. 695, 706, 454 S.E.2d 229,235 (1995) (trial court\u2019s failure to make findings of fact at suppression hearing is not reversible error when there is not a material conflict in the evidence).\n. The State argues in its brief to this Court, pursuant to the inevitable discovery exception to the exclusionary rule, that evidence Nowell\u2019s residence contained marijuana should not be suppressed because \u201cofficers knew of the existence of the marijuana in the residence even before they entered the residence.\u201d See State v. Gamer, 331 N.C. 491, 502,417 S.E.2d 502, 507-08 (1992) (discussing inevitable discovery exception to the exclusionary rule). The State, however, did not raise this theory of admissibility at the suppression hearing; thus, the State has abandoned this theory of admissibility and we do not address it. See Coolie, 306 N.C. at 136-37, 291 S.E.2d at 621 (appellate court will not address theory of admissibility not raised in trial court). Additionally, we note that Nowell sought to suppress not only the marijuana seized as a result of the unlawful entry into his residence, but also testimony of law enforcement officers based on the unlawful entry. Thus, even assuming the presence of marijuana in the residence was admissible under the inevitable discovery exception, the testimony of law enforcement officers based on the unlawful entry would nevertheless have to be suppressed.\n. We note that evidence admitted at trial that should have been suppressed pursuant to Nowell\u2019s motion to suppress may not have been admissible against Taylor because Taylor and Nowell were tried jointly. Nevertheless, Taylor does not address this issue in his brief to this Court and we, therefore, do not reach this issue.", "type": "majority", "author": "GREENE, Judge." }, { "text": "JOHN, J.,\nconcurring in part and dissenting in part.\nI agree with the majority as to its disposition of the cases against defendant Michael Lynn Taylor and therefore concur in the reversal of cases 99 CRS 001926 and 001928. However, I am unable to join in the reversal of the trial court\u2019s denial of defendant Gregory Lee Nowell\u2019s motion to suppress. Accordingly, I respectfully dissent in cases 99 CRS 001922-25.\nCiting no authority in support thereof, the majority herein announces a new \u201cde minimis\u201d exception to the exigent circumstances exception to the general constitutional requirement that a search warrant be obtained prior to execution of a search by law enforcement officers. However, the majority concedes that courts nationwide have recognized \u201cthe probable destruction or disappearance of a controlled substance\u201d as an exigent circumstance excusing the necessity of obtaining a search warrant. See U.S. v. Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir. 1988) (\u201c[t]his court has recognized along with many others that exigent circumstances will be present when there is an urgent need to prevent evidence from being lost or destroyed\u201d). Indeed, \u201cthe possibility of destruction of evidence\u201d constitutes one of \u201c \u2018the most common and compelling bases that establishes] exigency.\u201d U.S. v. Kennedy, 32 F.3d 876, 882 (4th Cir. 1994) (citation omitted), cert. denied, 513 U.S. 1128, 130 L. Ed. 2d 883 (1995); see also State v. Hughes, 233 Wis. 2d 280, 293, 607 N.W. 2d 621, 628 (\u201c[m]arijuana and other drugs are highly destructible\u201d), cert. denied, -U.S. \u2014, 148 L. Ed. 2d 90 (2000).\nIn the case sub judice, the majority recites uncontroverted testimony that \u201cTaylor and Nowell asked for rolling papers so that they could \u2018smoke a joint.\u2019 \u201d Law enforcement officers thereupon entered Nowell\u2019s residence and the latter was observed \u201cstanding behind a brick of marijuana\u201d and \u201ctrying to peel it open.\u201d Although \u201cconcrete proof\u2019 that evidence was \u201con the verge of [being] destroyed],\u201d U.S. v. Grissett, 925 F.2d 776, 778 (4th Cir. 1991), cert. denied, 500 U.S. 945, 114 L. Ed. 2d 486 (1991), is not required, the destruction of evidence under the instant circumstances was indisputably imminent, see Sangineto-Miranda, 859 R2d at 1512 (warrantless entry to prevent loss or destruction of evidence justified if prosecution demonstrates: \u201c1) a reasonable belief that third parties are inside the dwelling; and (2) a reasonable belief that [] the destruction of evidence is [imminent]\u201d).\nNonetheless, the majority imposes upon law enforcement officers and our already over-burdened trial courts the new requirement of factoring the probability of destruction of all, some, or only a small portion of the evidence, into the decision as to whether exigent circumstances may reasonably be considered to be present. See id. (\u201cinquiry focuses on what an objective officer could reasonably believe\u201d). Under the majority\u2019s novel test, North Carolina courts and police, in attempting to make exigent circumstances determinations, must now climb the slippery slope of hair-splitting assessments of both the quantity and indeed the quality of evidence subject to probable destruction or disappearance.\nIn U.S. v. Rivera, 248 F.3d 677 (7th Cir. 2001), a case involving approximately fourteen hundred pounds of marijuana, the Seventh Circuit rejected a similar approach as follows:\nEssentially, [defendant] asks us to adopt a rule that exigent circumstances do not exist until a substantial portion of the evidence is in danger of being removed or destroyed. We decline that invitation. First, it is a completely unworkable standard. In determining whether exigent circumstances exist, we analyze the situation from the perspective of the officers at the scene [], and it is virtually impossible for officers to make the type of proportionality analysis recommended by [defendant]. Officers should not have to engage in a guessing game as to how much evidence has been removed or how much remains, before they can bring depletion to a halt. Moreover, even the destruction or removal of a relatively small amount of evidence can have significant consequences at sentencing, where the drug quantity impacts the sentence.\nIf we were to define exigent circumstances as requiring that a certain quantum of evidence is in danger of destruction or removal \u2014 a magic number that must be reached before they can end the depletion \u2014 we would be imposing an unworkable standard on law enforcement officers who must make quick decisions at the site.\nId. at 681 (citation omitted).\nI agree with the majority\u2019s statement in footnote 1 that the \u201cevidence regarding the entry of law enforcement officers into Nowell\u2019s residence is uncontroverted,\u201d and its determination that remand for findings of fact is unnecessary. See State v. Lovin, 339 N.C. 695, 705-06, 454 S.E.2d 229, 235 (1995). Rather, based upon the uncontroverted evidence regarding the warrantless entry into Nowell\u2019s residence and for the reasons stated above, I vote no error in cases 99CRS 1922-25.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JOHN, J.," } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General T. Brooks Skinner, Jr., for the State.", "Moseley, Elliott, Sholar and Dickens, L.L.P., by William F. Dickens, Jr., for defendant-appellant Nowell.", "Jesse F. Pittard, Jr. for defendant-appellant Taylor." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GREGORY LEE NOWELL and MICHAEL LYNN TAYLOR\nNo. COA00-697\n(Filed 17 July 2001)\n1. Search and Seizure\u2014 warrantless search of residence\u2014 exigent circumstances \u2014 drugs\nThe trial court erred in a drug possession and trafficking in marijuana case by concluding there were exigent circumstances to permit the law enforcement officers\u2019 warrantless entry into a defendant\u2019s residence and the evidence obtained as a result of this unlawful entry must be suppressed, because: (1) evidence the parties were going to destroy the amount of marijuana required for one \u201cjoint\u201d from the approximately fifty pounds of marijuana present in the residence is not an exigent circumstance; and (2) defendant\u2019s consent to the search was tainted by the illegal entry into the residence.\n2. Drugs\u2014 possession \u2014 trafficking in marijuana \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court erred in a marijuana possession and trafficking in marijuana case by failing to grant defendant\u2019s motion to dismiss the charges against him, because the evidence viewed in the light most favorable to the State does not show defendant had both the power and intent to control the marijuana located in his codefendant\u2019s residence at the time law enforcement officers entered the residence.\nJudge John concurring in part and dissenting in part.\nAppeal by defendants from judgments dated 8 December 1999 by Judge Richard B. Allsbrook and appeal by defendant Nowell from a 7 June 1999 order by Judge Quentin T. Sumner in Halifax County Superior Court. Heard in the Court of Appeals 15 May 2001.\nAttorney General Michael F. Easley, by Assistant Attorney General T. Brooks Skinner, Jr., for the State.\nMoseley, Elliott, Sholar and Dickens, L.L.P., by William F. Dickens, Jr., for defendant-appellant Nowell.\nJesse F. Pittard, Jr. for defendant-appellant Taylor." }, "file_name": "0636-01", "first_page_order": 664, "last_page_order": 676 }