{ "id": 8436815, "name": "IN THE MATTER OF: S.W.", "name_abbreviation": "In re S.W.", "decision_date": "2005-07-05", "docket_number": "No. COA04-1138", "first_page": "335", "last_page": "341", "citations": [ { "type": "official", "cite": "171 N.C. App. 335" } ], "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": "612 S.E.2d 321", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632800 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/612/0321-01" ] }, { "cite": "359 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12632800, 12632801, 12632802, 3797732, 3793990, 3803693, 3804429, 3799921, 3793971, 3799381, 3800918, 3798330 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/612/0321-01", "/se2d/612/0322-01", "/se2d/612/0322-02", "/nc/359/0411-06", "/nc/359/0411-08", "/nc/359/0411-01", "/nc/359/0411-02", "/nc/359/0411-05", "/nc/359/0411-09", "/nc/359/0411-07", "/nc/359/0411-04", "/nc/359/0411-03" ] }, { "cite": "612 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632813 ], "year": 2005, "pin_cites": [ { "page": "339", "parenthetical": "holding once the trial court denied the defendant's motion to suppress, he was not required to object again to preserve argument for appeal" } ], "opinion_index": 0, "case_paths": [ "/se2d/612/0336-01" ] }, { "cite": "219 S.E.2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570017, 8570058, 8570092, 8570033, 8570130 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0512-01", "/nc/288/0512-03", "/nc/288/0512-04", "/nc/288/0512-02", "/nc/288/0512-05" ] }, { "cite": "217 S.E.2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1975, "pin_cites": [ { "page": "96" }, { "page": "97" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555059 ], "year": 1975, "pin_cites": [ { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/nc-app/26/0707-01" ] }, { "cite": "589 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "159" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 650", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959782 ], "year": 2003, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0650-01" ] }, { "cite": "185 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "140" } ], "opinion_index": 0 }, { "cite": "280 N.C. 67", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569823 ], "year": 1971, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0067-01" ] }, { "cite": "607 S.E.2d 304", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "pin_cites": [ { "page": "307" }, { "page": "307", "parenthetical": "holding the T.L. O. standard applies to law enforcement officers which are resource officers acting in conjunction with school officials" }, { "page": "307" }, { "page": "307" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 143", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468501 ], "weight": 4, "pin_cites": [ { "page": "147" }, { "page": "147" }, { "page": "148-49" }, { "page": "148-49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0143-01" ] }, { "cite": "558 S.E.2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138562, 138309, 138442, 138542, 138332 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0572-05", "/nc/354/0572-02", "/nc/354/0572-01", "/nc/354/0572-04", "/nc/354/0572-03" ] }, { "cite": "554 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "352" }, { "page": "353-54", "parenthetical": "citations omitted" }, { "page": "352", "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 309", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11357050 ], "weight": 3, "pin_cites": [ { "page": "318" }, { "page": "320" }, { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0309-01" ] }, { "cite": "469 U.S. 325", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11959437 ], "weight": 10, "year": 1985, "pin_cites": [ { "parenthetical": "holding the juvenile's consent is not needed to conduct a search of his person while at school" }, { "parenthetical": "holding the juvenile's consent is not needed to conduct a search of his person while at school" }, { "page": "341-42" }, { "page": "734-35" }, { "page": "341-42" }, { "page": "734-35" }, { "page": "341-42" }, { "page": "734" }, { "page": "341-42" }, { "page": "734-35" } ], "opinion_index": 0, "case_paths": [ "/us/469/0325-01" ] }, { "cite": "212 S.E.2d 92", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "100", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "286 N.C. 442", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568818 ], "year": 1975, "pin_cites": [ { "page": "454", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0442-01" ] }, { "cite": "533 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "264-65" }, { "page": "264-65" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9495731 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "38" }, { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0033-01" ] }, { "cite": "170 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005095 ], "year": 2005, "pin_cites": [ { "page": "288", "parenthetical": "holding once the trial court denied the defendant's motion to suppress, he was not required to object again to preserve argument for appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0284-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-95", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 667, "char_count": 14564, "ocr_confidence": 0.741, "pagerank": { "raw": 2.208781313115465e-07, "percentile": 0.776255102131437 }, "sha256": "e971c84935fffabf64f9be4e72506866083d53d205c616c4e1c4b535d20b40cd", "simhash": "1:099aa062074d0a6b", "word_count": 2356 }, "last_updated": "2023-07-14T21:08:31.744997+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge LEVINSON concur." ], "parties": [ "IN THE MATTER OF: S.W." ], "opinions": [ { "text": "TYSON, Judge.\nS.W. (\u201cjuvenile\u201d) appeals from adjudication and dispositional orders finding him delinquent for possession with intent to sell or deliver a schedule VI substance. We affirm.\nI. Background\nOn 2 December 2003, the juvenile walked by Durham County Deputy Sheriff and School Resource Officer Eric Wade Carpenter (\u201cDeputy Carpenter\u201d) at Riverside High School. Deputy Carpenter noticed a strong odor of marijuana emanating from the juvenile, and requested the juvenile to accompany him in the hallway. Deputy Carpenter located two school administrators, Assistant Principal Travis Taylor (\u201cAssistant Principal Taylor\u201d) and Assistant Principal Dan Davis (\u201cAssistant Principal Davis\u201d). Deputy Carpenter asked Assistant Principals Taylor and Davis and two unidentified students to accompany him and the juvenile into the school\u2019s weight room. There, Deputy Carpenter asked the juvenile if he \u201chad anything on him.\u201d The juvenile responded, \u201cno.\u201d Deputy Carpenter asked the juvenile, \u201cdo you mind if I search?\u201d Again, the juvenile responded, \u201cno.\u201d Deputy Carpenter conducted a search and requested the juvenile to empty his pockets. While emptying his pockets, the juvenile produced a plastic bag that containing ten small plastic bags of marijuana.\nOn 17 December 2003, a juvenile petition was filed alleging the juvenile possessed with intent to sell or deliver a schedule VI substance in violation of N.C. Gen. Stat. \u00a7 90-95(a)(l). During the hearing, Deputy Carpenter testified for the State and the juvenile testified on his own behalf. The trial court found the juvenile to be delinquent and placed him on level I supervised probation for six months. The juvenile appeals.\nII. Issues\nThe juvenile argues the trial court erred by: (1) denying his motion to suppress evidence obtained during an alleged unlawful search; and (2) failing to provide him with a reliable and accurate transcript of his hearing in violation of his United States and North Carolina Constitutional rights.\nIII. Motion to Suppress\nThe juvenile argues the trial court should have granted his motion to suppress evidence obtained during an alleged unlawful search. We disagree.\nWe note initially the juvenile properly preserved his assignment of error by objecting when the trial court denied his motion to suppress in conformity with the amended North Carolina Rules of Evidence 103. N.C. Gen. Stat. \u00a7 8C-1, Rule 103 (2003); 2003 N.C. Sess. Laws ch. 101, \u00a7\u00a7 1-2 (effective 1 October 2003); see also State v. Rose, 170 N.C. App. 284, 288, 612 S.E.2d 336, 339 (2005) (holding once the trial court denied the defendant\u2019s motion to suppress, he was not required to object again to preserve argument for appeal).\nOur review is limited to whether the trial court\u2019s findings of fact are supported by competent evidence. State v. Tappe, 139 N.C. App. 33, 38, 533 S.E.2d 262, 264-65 (2000). If competent evidence exists in the record, the trial court\u2019s findings of fact are binding upon appeal. Id. Our review is focused upon whether those findings of fact support the trial court\u2019s conclusions of law. Id. \u201cNevertheless, the conclusions of law drawn from the facts found are not binding on the appellate court.\u201d State v. Pruitt, 286 N.C. 442, 454, 212 S.E.2d 92, 100 (1975) (citations omitted).\nIV. Warrantless Searches\nThe United States Supreme Court discussed warrantless searches of students at school in New Jersey v. T.L.O., 469 U.S. 325, 83 L. Ed. 2d 720 (1985) (holding the juvenile\u2019s consent is not needed to conduct a search of his person while at school).\nUnder ordinary circumstances, a search of a student by a teacher or other school official will be \u201cjustified at its inception\u201d when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.\nId. at 341-42, 83 L. Ed. 2d at 734-35.\nApplying the T.L. O. standard, this Court found it permissible to conduct a search of a student based upon a school\u2019s investigation or at the direction of a school official, in the furtherance of well established educational and safety goals. In re D.D., 146 N.C. App. 309, 318, 554 S.E.2d 346, 352 (citations omitted), appeal dismissed and disc. rev. denied, 354 N.C. 572, 558 S.E.2d 867 (2001). More recently, we held\n[w]hile the holding in T.L.O. was limited to searches by school administrators and officials, our Court has recently adopted an extension of this reasonableness standard to searches conducted by law enforcement officials. We have since held that the T.L. 0. standard governs searches conducted by resource officers working \u201c \u2018in conjunction with\u2019 school officials,\u201d where these officers are primarily responsible to the school district rather than the local police department.\nIn re J.F.M., 168 N.C. App. 143, 147, 607 S.E.2d 304, 307 (citing In re D.D., 146 N.C. App. at 320, 554 S.E.2d at 353-54 (citations omitted)), disc. rev. denied, 359 N.C. 411, 612 S.E.2d 321 (2005).\nCourts draw a clear distinction between the aforementioned categories of cases and those cases in which outside law enforcement officers search students as part of an independent investigation or in which school officials] search students at the request or behest of the outside law enforcement officers and law enforcement agencies. Courts do not apply T.L. 0. to these cases but instead require the traditional probable cause requirement to justify the search.\nIn re D.D., 146 N.C. App. at 318, 554 S.E.2d at 352 (internal citation omitted).\nDeputy Carpenter was an employee of the Durham County Sheriffs Department. He was assigned to permanent full-time duty as the Riverside High School resource officer. See In re J.F.M., 168 N.C. App. at 147, 607 S.E.2d at 307 (holding the T.L. O. standard applies to law enforcement officers which are resource officers acting in conjunction with school officials). Deputy Carpenter assisted school officials with school discipline matters and taught law enforcement related subjects. Id. Deputy Carpenter was exclusively a school resource officer, who was present in the school hallways during school hours and was furthering the school\u2019s educational related goals when he stopped the juvenile. Id.\nDeputy Carpenter was not an outside officer conducting an investigation. See id.; see also T.L.O., 469 U.S. at 341-42, 83 L. Ed. 2d at 734-35. Deputy Carpenter did not conduct the investigation at the behest of an outside officer who was investigating a non-school related crime. In maintaining a proper educational environment, Deputy Carpenter\u2019s employment as a resource officer mandates that he help maintain a drug free environment at the school. When the juvenile walked by Deputy Carpenter in the hall, Deputy Carpenter smelled a \u201cstrong odor\u201d of marijuana. Deputy Carpenter had a reasonable suspicion the juvenile possessed marijuana in violation of State law and the school\u2019s rules. T.L.O., 469 U.S. at 341-42, 83 L. Ed. 2d at 734. Deputy Carpenter was working in conjunction with school officials and did not need to obtain the juvenile\u2019s consent to search him. In re 168 N.C. App. at 148-49, 607 S.E.2d at 307. The search of the juvenile was limited to a \u201cpat down\u201d and the juvenile emptying his pockets, which produced a plastic bag containing ten small plastic bags of marijuana.\nAfter having smelled marijuana on the juvenile, Deputy Carpenter had reasonable grounds to suspect a search would turn up evidence the juvenile violated or was violating the law and or school rules. The search was reasonably related to the objective and was not excessively intrusive in light of the age and gender of the juvenile and the nature of the suspicion. T.L.O., 469 U.S. at 341-42, 83 L. Ed. 2d at 734-35. Evidence tended to show the juvenile consented to the search and neither his United States nor North Carolina Constitutional rights were violated. The search could have been performed without his consent. The trial court\u2019s denial of the juvenile\u2019s motion to suppress was supported by competent evidence. In re 168 N.C. App. at 148-49, 607 S.E.2d at 307; see also Tappe, 139 N.C. App. at 38, 533 S.E.2d at 264-65. This assignment of error is overruled.\nV. Accurate Transcript\nThe juvenile contends he should be granted a new hearing due to the incomplete transcript of his adjudication. We disagree.\nThere is a presumption of regularity in a trial. State v. Sanders, 280 N.C. 67, 72, 185 S.E.2d 137, 140 (1971). In order to overcome this presumption, it is necessary for the defendant to include or call our attention to matters which constitute material and reversible error in the record on appeal. Id.\nBefore a new trial should be ordered, certainly enough ought to be alleged to show that error was probably committed. If defense counsel even suspect error in the charge, they should set out in the record what the error is. If the solicitor does not object, theirs becomes the case on appeal. If he does object, the court could then settle the dispute. The appellate court would then have something tangible upon which to predicate a judgment. The material parts of a record proper do not include either the testimony of the witnesses or the charge of the court.\nIn re Howell, 161 N.C. App. 650, 654, 589 S.E.2d 157, 159 (2003).\nThis Court has considered cases in which a complete stenographic trial transcript was lacking. State v. Neely, 26 N.C. App. 707, 708, 217 S.E.2d 94, 96, cert. denied, 288 N.C. 512, 219 S.E.2d 347 (1975). In Neely, a partial transcript was prepared. Id. The direct examination of at least two witnesses, in addition to defendant\u2019s testimony, were not transcribed. Id. The defendant appealed and alleged errors which may have been committed in portions of the lost testimony. Id.\nThis Court emphasized the presumption of regularity in a trial and indicated specific error should be set forth by the defendant in the record. Id. We concluded that mere allegations that an error occurred is not sufficient to warrant a reversal. Id. at 709, 217 S.E.2d at 97. We stated, \u201cabsent some specific, affirmative showing by the defendant that error was committed, we will uphold the conviction because of the presumption of regularity in a trial.\u201d Id.\nHere, portions of the transcript read \u201cinaudible.\u201d These facts are unlike Neely where the transcript of entire testimonies were missing. Id. The juvenile argues these portions of the transcript that read \u201cinaudible\u201d are prejudicial and a new hearing should be granted. The juvenile fails to demonstrate and our review does not disclose any \u201cspecific, affirmative showing\u201d that error was committed in the inaudible portions of the transcript to overcome the presumption of regularity at trial. Id. This assignment of error is overruled.\nVI. Conclusion\nThe juvenile\u2019s argument that his consent for the search was not freely given is moot. The search could have been lawfully performed without his consent. Deputy Carpenter had a valid reason to search the juvenile and the search was in furtherance of the school\u2019s objective to maintain a proper and drug free educational environment.\nThe transcript contains the word \u201cinaudible\u201d omitting sections of missing testimony. This case highlights the serious need for reliable and accurate transcription equipment in our district courtrooms. A rising number of direct appeals from the district court contain transcripts where portions of the trial transcript are missing, inaudible, or of such poor quality that an accurate transcript cannot be prepared. We note our concern as the number of appeals and the need will only increase. However, the missing or inaudible sections of the transcript do not: (1) rise to the level of prejudicial error; (2) preclude the juvenile from preparing an adequate defense; or (3) prevent this Court\u2019s review for errors in the juvenile\u2019s hearing. The trial court\u2019s adjudication and dispositional orders finding the juvenile delinquent for possession with intent to sell or deliver a schedule VI substance are affirmed.\nAffirmed.\nChief Judge MARTIN and Judge LEVINSON concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Judith Tillman, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for juvenile-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF: S.W.\nNo. COA04-1138\n(Filed 5 July 2005)\n1. Search and Seizure\u2014 warrantless search of student at school \u2014 school resource officer \u2014 motion to suppress drugs\nThe trial court did not err in a delinquency hearing arising out of possession with intent to sell or deliver a schedule VI substance by denying defendant juvenile\u2019s motion to suppress evidence of drugs obtained during a search by a deputy, because: (1) the deputy was exclusively a school resource officer who was present in the school hallways during school hours and was furthering the school\u2019s educational related goals when he stopped the juvenile; (2) the deputy was not conducting the investigation at the behest of an outside officer who was investigating a non-school related crime; (3) the deputy\u2019s employment mandated that he help maintain a drug-free environment at the school, and the deputy smelled a strong odor of marijuana when defendant walked past him in the hall which gave the deputy reasonable grounds to suspect that a search would turn up evidence the juvenile violated or was violating the law and/or school rules; (4) the search was reasonably related to the objective and was not excessively intrusive in light of the age and gender of the juvenile and the nature of the suspicion; and (5) the juvenile consented to the search even though the search could have been performed without his consent.\n2. Trials\u2014 incomplete transcript \u2014 presumption of regularity\nDefendant juvenile is not entitled to a new delinquency hearing based on an incomplete transcript of his adjudication where portions of the transcript contain the word \u201cinaudible\u201d omitting sections of missing testimony, because the juvenile failed to demonstrate, and a review of the record failed to disclose, any specific affirmative showing that error was committed in the inaudible portions of the transcript to overcome the presumption of regularity at trial.\nAppeal by juvenile from orders entered 25 March 2004 by Judge Marcia H. Morey in Durham County District Court. Heard in the Court of Appeals 9 May 2005.\nAttorney General Roy Cooper, by Assistant Attorney General Judith Tillman, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Matthew D. Wunsche, for juvenile-appellant." }, "file_name": "0335-01", "first_page_order": 365, "last_page_order": 371 }