{ "id": 8915126, "name": "STATE OF NORTH CAROLINA v. RICKY LYNN YATES", "name_abbreviation": "State v. Yates", "decision_date": "2004-01-06", "docket_number": "No. COA03-151", "first_page": "118", "last_page": "124", "citations": [ { "type": "official", "cite": "162 N.C. App. 118" } ], "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": "706 So.2d 66", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11856201 ], "year": 1998, "pin_cites": [ { "parenthetical": "upholding war-rantless searches of persons based on odor" } ], "opinion_index": 0, "case_paths": [ "/so2d/706/0066-01" ] }, { "cite": "23 Or. App. 536", "category": "reporters:state", "reporter": "Or. App.", "case_ids": [ 2115560 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/or-app/23/0536-01" ] }, { "cite": "513 N.E.2d 1350", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "32 Ohio App. 3d 38", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 6712219 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ohio-app-3d/32/0038-01" ] }, { "cite": "285 N.J. Super. 475", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 748701 ], "weight": 2, "year": 1995, "pin_cites": [ { "parenthetical": "finding probable cause and exigent circumstances to justify search of a person based solely on the odor of marijuana" }, { "parenthetical": "finding probable cause and exigent circumstances to justify search of a person based solely on the odor of marijuana" } ], "opinion_index": 0, "case_paths": [ "/nj-super/285/0475-01" ] }, { "cite": "734 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "808" }, { "page": "809" } ], "opinion_index": 0 }, { "cite": "90 Ohio St. 3d 47", "category": "reporters:state", "reporter": "Ohio St. 3d", "case_ids": [ 1121343 ], "year": 2000, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/ohio-st-3d/90/0047-01" ] }, { "cite": "286 S.E.2d 102", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 701", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570618 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0701-01" ] }, { "cite": "278 S.E.2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "534", "parenthetical": "extending the plain view doctrine \"to include contraband discovered through any of the officer's senses, especially odor\"" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170266 ], "year": 1981, "pin_cites": [ { "page": "352", "parenthetical": "extending the plain view doctrine \"to include contraband discovered through any of the officer's senses, especially odor\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0349-01" ] }, { "cite": "427 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "894-95" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 586", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525992 ], "year": 1993, "pin_cites": [ { "page": "589-90" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0586-01" ] }, { "cite": "182 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "367", "parenthetical": "quoting 5 Am. Jur. 2d Arrests \u00a7 44 (1962)" } ], "opinion_index": 0 }, { "cite": "279 N.C. 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566862 ], "year": 1971, "pin_cites": [ { "page": "311", "parenthetical": "quoting 5 Am. Jur. 2d Arrests \u00a7 44 (1962)" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0307-01" ] }, { "cite": "582 S.E.2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "67", "parenthetical": "\"warrantless searches are not allowed absent probable cause and exigent circumstances, the existence of which are factual determinations that must be made on a case by case basis\"" } ], "opinion_index": 0 }, { "cite": "158 N.C. App. 595", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188642 ], "year": 2003, "pin_cites": [ { "page": "602", "parenthetical": "\"warrantless searches are not allowed absent probable cause and exigent circumstances, the existence of which are factual determinations that must be made on a case by case basis\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/158/0595-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "620" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "481 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "348-49", "parenthetical": "quoting Conaway, 339 N.C. at 521, 453 S.E.2d at 845" } ], "opinion_index": 0 }, { "cite": "125 N.C. App. 600", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11870405 ], "year": 1997, "pin_cites": [ { "page": "602", "parenthetical": "quoting Conaway, 339 N.C. at 521, 453 S.E.2d at 845" } ], "opinion_index": 0, "case_paths": [ "/nc-app/125/0600-01" ] }, { "cite": "453 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "845" }, { "page": "845" } ], "opinion_index": 0 }, { "cite": "339 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557546 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "521" }, { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0487-01" ] }, { "cite": "273 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "301 N.C. 705", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570282 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0705-01" ] } ], "analysis": { "cardinality": 707, "char_count": 13304, "ocr_confidence": 0.762, "pagerank": { "raw": 1.9557136340473605e-07, "percentile": 0.7373489728551742 }, "sha256": "ce32ff799cb614ceef0a1ea351d69ac5ad7f821d808291e55a4309ff40a3d93f", "simhash": "1:6244d56013eaea52", "word_count": 2163 }, "last_updated": "2023-07-14T16:27:54.754463+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MCCULLOUGH and TYSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RICKY LYNN YATES" ], "opinions": [ { "text": "BRYANT, Judge.\nRicky Lynn Yates (defendant) appeals a judgment dated 27 August 2002 (1) entered consistent with a jury verdict finding him guilty of resisting a public officer, possession of heroin (a schedule I controlled substance), possession of methadone (a schedule II controlled substance), possession of cocaine (a schedule II controlled substance), possession of less than 1.5 ounces of marijuana (a schedule VI controlled substance), and possession of drag paraphernalia, and (2) sentencing him as a habitual felon.\nPrior to trial, defendant filed a motion in limine arguing for the suppression of evidence obtained by the police during a search of his person. At the suppression hearing, Deputy Raheem Abdul Aleem with the Durham County Sheriffs Department testified that he and Sergeant Derek O\u2019Mary were at a Waffle House on Highway 55 at 2:30 a.m. on 15 September 2001. They were off-duty but dressed in uniform. The officers were standing in the foyer of the Waffle House between the entrance doors and the doors leading into the seating area when they noticed a vehicle pull into the parking lot. Defendant, with whom Deputy Aleem was familiar from seeing him at a substance abuse clinic, and two women exited the vehicle and entered the Waffle House. The women walked into the Waffle House ahead of defendant, passed the officers, and went to the seating area through the second set of doors. Defendant did not open the front door until the second set of doors had closed behind the women. As he passed through the foyer, the officers detected the odor of marijuana. Deputy Aleem was familiar with the scent of marijuana from his participation in approximately 400 to 500 cases while assigned to the narcotics division.\nA few minutes later, the two women and defendant exited the Waffle House without having ordered any food. Defendant walked through the foyer first this time, and the officers again noticed the smell of marijuana. After asking defendant if he could speak to him for a minute, Deputy Aleem followed defendant into the parking lot while Sergeant O\u2019Mary started a conversation with the two women. Deputy Aleem told defendant he had smelled marijuana on him. In response, defendant accused Deputy Aleem of harassing him because Deputy Aleem knew \u201che had a drag problem\u201d and asked if he could call his mother on his cellular tel\u00e9phone. After defendant had placed the telephone call to his mother, Deputy Aleem explained that, due to the odor the officers had noted, he needed to know if defendant had anything in his pockets. Defendant again replied the officer was \u201charassing him\u201d but then started emptying the contents of his pockets onto the hood of a vehicle, stating: \u201cNo, this is all I have.\u201d By this time, Sergeant O\u2019Mary had obtained the women\u2019s consent to search their vehicle and was in the back seat, pointing to something inside the vehicle. According to Deputy Aleem, defendant \u201c[tjhen . . . went into his side pocket, . . . got in there[,] and pulled his hand out,\u201d saying \u201c[n]o, that\u2019s all I got.\u201d Defendant raised his hands in the air, whereupon Deputy Aleem searched defendant\u2019s waistband and proceeded to defendant\u2019s inside pocket. As Deputy Aleem\u2019s hand moved toward that inside pocket, defendant grabbed the officer\u2019s hand from the outside of his coat, trapping Deputy Aleem\u2019s hand in the pocket. Deputy Aleem struggled with defendant to free his hand. During this struggle, small white pills fell out of defendant\u2019s pocket and onto the ground. When Deputy Aleem and Sergeant O\u2019Mary, who came over to offer assistance, managed to restrain defendant, they found four bindles of heroin and a $10.00 bill, into which marijuana and a white powder substance had been folded, in defendant\u2019s hand. Defendant was subsequently placed under arrest, and the items found in his possession were analyzed and determined to be methadone, heroin, marijuana, and cocaine.\nThe trial court denied defendant\u2019s motion to suppress, finding Deputy Aleem had probable cause to search defendant under State v. Greenwood, 301 N.C. 705, 273 S.E.2d 438 (1981). The case proceeded to trial, at which Deputy Aleem testified in conformance with his voir dire testimony and the controlled substances and drug paraphernalia from defendant\u2019s pocket were introduced into evidence. Defendant made no objection to the admission of this evidence, nor to Deputy Aleem\u2019s testimony.\nThe dispositive issue is whether the trial court erred in allowing evidence to be admitted at trial that resulted from Deputy Aleem\u2019s search of defendant. Defendant contends the evidence obtained from Deputy Aleem\u2019s search of his pocket should have been suppressed because no probable cause and exigent circumstances justified the warrantless search.\nWe first note that \u201c[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.\u201d State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845 (1995). Moreover, \u201c[r]ulings on these motions . . . are merely preliminary and subject to change during the course of trial, depending upon the actual evidence offered at trial[,] and thus an objection to an order granting or denying the motion \u2018is insufficient to preserve for appeal the question of the admissibility of evidence.\u2019 \u201d T&T Dev. Co. v. Southern Nat. Bank of S.C., 125 N.C. App. 600, 602, 481 S.E.2d 347, 348-49 (1997) (quoting Conaway, 339 N.C. at 521, 453 S.E.2d at 845). Because defendant failed to object at trial to the evidence he sought to suppress through the motion in limine, he has not preserved the issue for appeal. Nevertheless, in the interest of justice, we choose to exercise our discretion under Rule 2 of the North Carolina Rules of Appellate Procedure to hear this issue. See N.C.R. App. P. 2.\n\u201cThe 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. . . .\u201d State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982). One such exception exists when there are exigent circumstances justifying a warrantless search. State v. Harper, 158 N.C. App. 595, 602, 582 S.E.2d 62, 67 (2003) (\u201cwarrantless searches are not allowed absent probable cause and exigent circumstances, the existence of which are factual determinations that must be made on a case by case basis\u201d). Probable cause has been defined as \u201c \u2018a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty.\u2019 \u201d State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971) (quoting 5 Am. Jur. 2d Arrests \u00a7 44 (1962)).\nOur Supreme Court has held the odor of marijuana to be sufficient to establish probable cause to search for the contraband drug in an automobile. Greenwood, 301 N.C. at 708, 273 S.E.2d at 441; see State v. Corpening, 109 N.C. App. 586, 589-90, 427 S.E.2d 892, 894-95 (1993); see also State v. Cooper, 52 N.C. App. 349, 352, 278 S.E.2d 532, 534 (1981) (extending the plain view doctrine \u201cto include contraband discovered through any of the officer\u2019s senses, especially odor\u201d), rev\u2019d on other grounds, 304 N.C. 701, 286 S.E.2d 102 (1982). Although no North Carolina court has addressed the issue of a warrantless search of a person based solely on smell, we find the case law that has developed in other states instructive on the issue.\nIn State v. Moore, the Ohio Supreme Court held: \u201c[I]f the smell of marijuana [on the defendant], as detected by a person who is qualified to recognize the odor, is the sole circumstance, this is sufficient to establish probable cause\u201d to obtain a search warrant. State v. Moore, 90 Ohio St. 3d 47, 50, 734 N.E.2d 804, 808 (2000). In further analyzing whether exigent circumstances existed to operate as an exception to the warrant requirement, the Ohio Supreme Court noted that exigent circumstances are present when \u201cthere is imminent danger that evidence will be lost or destroyed if a search is not immediately conducted.\u201d Id. at 52, 734 N.E.2d at 809. The Court then concluded that \u201c[bjecause marijuana and other narcotics are easily and quickly hidden or destroyed, a warrantless search may be justified to preserve evidence.\u201d Id;, see State v. Vanderveer, 285 N.J. Super. 475, 667 A.2d 382 (1995) (finding probable cause and exigent circumstances to justify search of a person based solely on the odor of marijuana); see also State v. Garcia, 32 Ohio App. 3d 38, 513 N.E.2d 1350 (1986); State v. Cross, 23 Or. App. 536, 543 P.2d 48 (1975); State v. Hernandez, 706 So.2d 66 (Fla. Dist. Ct. App. 1998) (upholding war-rantless searches of persons based on odor).\nIn this case, Deputy Aleem testified defendant walked by him twice, once going in, the other time out of the Waffle House, emanating a strong odor of marijuana, and each time defendant was alone. Deputy Aleem\u2019s testimony also established that he was qualified, based on his work experience, to recognize the odor of marijuana. We conclude, as the Ohio Supreme Court did in Moore, that, based on these facts, probable cause existed. The question thus remains whether there were exigent circumstances justifying the warrantless search of defendant. Just prior to Deputy Aleem\u2019s search of defendant, Sergeant O\u2019Mary was occupied with a separate search of the women\u2019s vehicle and had apparently stumbled onto something at that moment. Sergeant O\u2019Mary testified he found \u201cstems and small pieces of leaves, and maybe a seed or so\u201d in the vehicle. Based on the fact that Sergeant O\u2019Mary was otherwise engaged at the time and the fact, recognized in Moore, that narcotics can be easily and quickly hidden or destroyed, especially after defendant received notice of Deputy Aleem\u2019s intent to discover whether defendant was in possession of marijuana, we conclude that there were sufficient exigent circumstances justifying an immediate warrantless search. Because the search was constitutionally valid, we do not address defendant\u2019s second argument, raised in his brief to this Court, that the charge of resisting a public officer should have been dismissed because defendant was merely resisting an unlawful search of his person.\nA review of the record and judgment in this case does reveal an error with the judgment and corresponding sentence. Defendant was indicted, tried, and found guilty of possession of less than 1.5 ounces of marijuana. While the judgment references the correct statute for this offense, N.C.G.S. \u00a7 90-95(d)(4), it incorrectly states the offense \u201cPOSS MARIJ > 1/2 to 1 1/2 OZ,\u201d a Class 1 misdemeanor as opposed to the Class 3 misdemeanor for which defendant should have been sentenced. We thus remand this case for resentencing.\nTrial \u2014 No error.\nJudgment \u2014 Vacated and remanded in part.\nJudges MCCULLOUGH and TYSON concur.\n. These items were subsequently examined and identified as less than 0.1 grams of marijuana.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Douglas A. Johnston, for the State.", "Jarvis John Edgerton, IV for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RICKY LYNN YATES\nNo. COA03-151\n(Filed 6 January 2004)\n1. Appeal and Error\u2014 preservation of issues \u2014 failure to object \u2014 motion to suppress \u2014 motion in limine\nAlthough defendant failed to object at trial to the evidence he sought to suppress through a motion in limine, which meant he did not preserve this issue for appeal, the Court of Appeals exercised its discretion under N.C. App. P. R. 2 to hear this issue.\n2. Search and Seizure\u2014 warrantless \u2014 defendant\u2019s pocket\u2014 exigent circumstances\nThe trial court did not err in a resisting a public officer, possession of heroin, possession of methadone, possession of cocaine, possession of less than 1.5 ounces of marijuana, and possession of drug paraphernalia case by allowing evidence to be admitted at trial that resulted from a deputy\u2019s search of defendant\u2019s pocket after the deputy smelled a strong odor of marijuana emanating from defendant, because: (1) the odor of marijuana, as detected by a person who is qualified to recognize the odor, is sufficient to establish probable cause to search for a contraband drug; and (2) based on the fact that another officer was otherwise engaged at the time and the fact that narcotics can be easily and quickly hidden or destroyed, especially after defendant received notice of an officer\u2019s intent to discover whether defendant was in possession of marijuana, there was sufficient exigent circumstances justifying an immediate warrantless search.\n3. Sentencing\u2014 possession of less than 1.5 ounces of marijuana \u2014 Class 3 misdemeanor\nAlthough the judgment finding defendant guilty of possession of less than 1.5 ounces of marijuana correctly referenced N.C.G.S. \u00a7 90-95(d)(4), the case is remanded for resentencing because the judgment incorrectly states the offense is a Class 1 misdemeanor as opposed to the Class 3 misdemeanor for which defendant should have been sentenced.\nAppeal by defendant from judgment dated 27 August 2002 by Judge David Q. LaBarre in Durham County Superior Court. Heard in the Court of Appeals 12 November 2003.\nAttorney General Roy Cooper, by Special Deputy Attorney General Douglas A. Johnston, for the State.\nJarvis John Edgerton, IV for defendant-appellant." }, "file_name": "0118-01", "first_page_order": 146, "last_page_order": 152 }