{ "id": 8524970, "name": "STATE OF NORTH CAROLINA v. DENNIS LOMBARDO", "name_abbreviation": "State v. Lombardo", "decision_date": "1985-05-07", "docket_number": "No. 842SC553", "first_page": "460", "last_page": "464", "citations": [ { "type": "official", "cite": "74 N.C. App. 460" } ], "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": "295 S.E. 2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": -1 }, { "cite": "306 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573222 ], "year": 1982, "opinion_index": -1, "case_paths": [ "/nc/306/0594-01" ] }, { "cite": "278 S.E. 2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": -1 }, { "cite": "52 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170200 ], "year": 1981, "opinion_index": -1, "case_paths": [ "/nc-app/52/0316-01" ] }, { "cite": "91 S.E. 2d 673", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "243 N.C. 525", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626028 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0525-01" ] }, { "cite": "66 S.E. 2d 312", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "234 N.C. 79", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618025 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/234/0079-01" ] }, { "cite": "92 S.E. 2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "243 N.C. 775", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627300 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0775-01" ] }, { "cite": "295 S.E. 2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1982, "pin_cites": [ { "page": "404", "parenthetical": "original emphasis" }, { "page": "403" }, { "page": "404" }, { "page": "406", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "306 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573222 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0594-01" ] } ], "analysis": { "cardinality": 534, "char_count": 9995, "ocr_confidence": 0.833, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20554480203285982 }, "sha256": "6c8ba12d0be81d899477bf80ca5b6aaa9e383637fa65b4a5be38483449c70e28", "simhash": "1:833dd2e2374e3462", "word_count": 1557 }, "last_updated": "2023-07-14T16:43:43.207286+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Webb and Phillips concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DENNIS LOMBARDO" ], "opinions": [ { "text": "MARTIN, Judge.\nIn State v. Lombardo, 306 N.C. 594, 295 S.E. 2d 399 (1982), our Supreme Court held, without qualification, that the fourth amendment exclusionary rule does not apply in probation revocation hearings. In so doing, the Supreme Court expressly overruled State v. McMilliam, 243 N.C. 775, 92 S.E. 2d 205 (1956), holding that illegally seized evidence cannot be used to revoke probation, and held that \u201cevidence which does not meet the standards of the fourth and fourteenth amendments to the United States Constitution may be admitted in a probation revocation hearing.\u201d Lombardo, supra at 602, 295 S.E. 2d at 404 (original emphasis). Defendant\u2019s sole contention on appeal is that the trial court misapplied the law of the Lombardo decision rendered by the Supreme Court and therefore erred in denying defendant\u2019s renewed motion to suppress any evidence obtained from his arrest. Defendant maintains that based on the Lombardo decision, the issue of whether the law enforcement officers had knowledge of defendant\u2019s probationary status was relevant to the trial court\u2019s determination of his motion to suppress; that defendant was prepared to assert that the law enforcement officers did know that defendant was on probation; and that therefore, the evidence obtained from defendant was subject to the exclusionary rule. A careful analysis of the opinion reveals that while knowledge of the probationer\u2019s status by the law enforcement official who conducted the illegal search would tend to undermine the rationale of holding the exclusionary rule inapplicable to probation revocation hearings, the Court\u2019s decision was not qualified upon the law enforcement official\u2019s unawareness of the probationer\u2019s status. We therefore hold that the trial court did not misapply the law of Lombardo and affirm its order.\nWhen an appellate court decides a question and remands the case for further proceedings, the questions determined by the appellate court become the law of the case, both in subsequent proceedings in the trial court, and on appeal. Bruce v. Flying Service, 234 N.C. 79, 66 S.E. 2d 312 (1951). The law of the case doctrine does not apply to dicta, but only to points actually presented and necessary to a determination of the case. Hayes v. Wilmington, 243 N.C. 525, 91 S.E. 2d 673 (1956).\nIn Lombardo, the Court noted:\nIf the officer knows that the defendant is on probation the officer may not be deterred from conducting an illegal search or seizure of the defendant unless he knows the evidence obtained from such illegal conduct is excluded at a probation revocation hearing.\nLombardo, supra at 600, 295 S.E. 2d at 403. This statement represents one factor the Court considered in analyzing the overall deterrent effectiveness of the exclusionary rule as relating to probation revocation hearings; the Court did not expressly qualify its holding to exclude the rule\u2019s application to such proceedings upon the law enforcement official being unaware of the probationer\u2019s status. The Court gave additional reasoning for its holding: application of the exclusionary rule to revocation hearings would damage the viability of the probation system \u201cby allowing those like Lombardo, who show a total disregard for the system, to exclude evidence of their personal probation violations.\u201d Id. at 600-01, 295 S.E. 2d at 404. \u201cFor all the reasons articulated ... we hold that the exclusionary rule should not be applied in revocation hearings.\u201d Id. at 604, 295 S.E. 2d at 406 (emphasis added).\nWe are bound by the ruling of our Supreme Court: the exclusionary rule is not applicable to revocation hearings. The trial court therefore was not required to determine whether the law enforcement officers had knowledge of defendant\u2019s probationary status; it did not err in denying defendant\u2019s motion to suppress any evidence obtained from the search and seizure. The order of the trial court is\nAffirmed.\nJudges Webb and Phillips concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General James C. Gulick, for the State.", "Purser, Cheshire, Manning & Parker, by Joe Cheshire, Gaskins, McMullan & Gaskins, P.A., by Herman E. Gaskins, and Joel Hirschhom, P.A., by Joel Hirschhorn for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DENNIS LOMBARDO\nNo. 842SC553\n(Filed 7 May 1985)\nCriminal Law \u00a7 143.5\u2014 probation revocation hearing \u2014 exclusionary rule not applicable-inquiry into officers\u2019 knowledge of probationary status not required\nThe trial court did not err in a probation revocation proceeding by denying defendant\u2019s motion to suppress marijuana obtained in an airport search and seizure. The exclusionary rule does not apply to probation revocation hearings, and the court was not required to determine whether the law enforcement officers knew of defendant\u2019s probationary status.\nAppeal by defendant from Bruce, Judge. Order entered 25 January 1984 in Superior Court, Hyde County. Heard in the Court of Appeals 7 February 1985.\nThis is an appeal from an order revoking defendant\u2019s probation and activating a five year sentence for violating a special condition of probation, which was imposed upon defendant\u2019s conviction of felonious sale and delivery of marijuana, a violation of 6.S. 90-95(a)(l). This condition of probation stated that defendant was not to have in his possession or control during the five years of probation any controlled substance as defined in Chapter 90 of the North Carolina General Statutes, unless prescribed by a medical doctor and dispensed by a physician or pharmacist.\nFifteen days after defendant\u2019s conviction and the entry of judgment suspending his five year sentence, defendant was arrested at Miami International Airport for possession of marijuana. The stipulated facts leading up to the arrest are as follows: On the afternoon of 28 August 1979, Officer William Johnson of the Dade County Public Safety Department observed defendant standing on the sidewalk outside the National Airlines terminal at the Miami International Airport. Defendant was holding a suitbag and briefcase in one hand and an airlines ticket in the other; he appeared nervous and impatient. Defendant put his luggage on the sidewalk and began talking with the porter. At this point Officer Johnson observed defendant\u2019s baggage claim check and learned that he had checked a suitcase onto a flight and that defendant himself was en route to New Orleans. Defendant was concerned that one particular suitcase might not get aboard the plane in time. Defendant proceeded into the terminal, carrying his briefcase, suitbag and ticket. Defendant stopped to examine his ticket and Officer Johnson thought he saw defendant put the claim check \u201ceither down the front of his pants or in his watch pocket.\u201d Defendant nervously continued through the airport.\nOfficer Johnson then pointed defendant out to Detective D\u2019Azevedo of the Dade County Public Safety Department, and they followed defendant to the boarding area. D\u2019Azevedo displayed his badge to defendant and requested to speak to him; he asked for defendant\u2019s ticket and identification. Defendant nervously complied, giving D\u2019Azevedo his ticket and his Florida driver\u2019s license. As D\u2019Azevedo turned to write down this information, Officer Johnson, who had remained behind defendant, observed defendant placing his hand first into the front of his pants, and then, with what appeared to be a baggage claim check in his hand, into the back of his pants. Officer Johnson grabbed defendant\u2019s arms and secured the baggage claim check. When D\u2019Azevedo observed that the name on defendant\u2019s ticket did not match the name on defendant\u2019s driver\u2019s license, Officer Johnson left to obtain the suitcase corresponding to the claim check. D\u2019Azevedo at this point told defendant he was not free to leave.\nOfficer Johnson procured the services of the U.S. Customs narcotic detector dog unit, resulting in a detector dog \u201calerting\u201d to the presence of a narcotic odor coming from defendant\u2019s suitcase. Defendant was arrested for possession of an unknown controlled substance of unknown quantity. Defendant along with his luggage was transported to the airport police service office where another dog \u201calerted\u201d to a narcotic odor emanating from defendant\u2019s suitbag and briefcase. Defendant refused D\u2019Azevedo\u2019s request to search his luggage; a search warrant was obtained, and twenty grams of marijuana were found in the suitcase, although none was found in the briefcase and suitbag. The defendant was charged with a misdemeanor in Florida, but the county court of Dade County, Florida, granted defendant\u2019s motion to suppress the evidence \u201con the ground that there was insufficient articulable facts to constitutionally justify defendant\u2019s detention and subsequent seizure of his person.\u201d\nDefendant\u2019s probation officer filed a probation violation report in North Carolina based on defendant\u2019s arrest for drug possession in Miami. At the revocation hearing, defendant\u2019s motion to suppress any evidence obtained from that arrest on constitutional grounds was granted, and the State appealed. This Court, without determining whether the exclusionary rule applied in a probation revocation hearing, reversed and remanded, holding that the trial court erred in treating the matter as a war-rantless search when the record disclosed that the search was made pursuant to a search warrant. State v. Lombardo, 52 N.C. App. 316, 278 S.E. 2d 318 (1981). The Supreme Court, on discretionary review, modified and affirmed the Court of Appeals\u2019 decision, holding that the exclusionary rule does not apply to probation revocation hearings, and remanded the case to the Court of Appeals with instructions to remand to the trial court for further proceedings. State v. Lombardo, 306 N.C. 594, 295 S.E. 2d 399 (1982). Upon further hearing, the trial court denied defendant\u2019s renewed motion to suppress, revoked defendant\u2019s probation and imposed an active five year prison term. Defendant appealed.\nAttorney General Rufus L. Edmisten, by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General James C. Gulick, for the State.\nPurser, Cheshire, Manning & Parker, by Joe Cheshire, Gaskins, McMullan & Gaskins, P.A., by Herman E. Gaskins, and Joel Hirschhom, P.A., by Joel Hirschhorn for defendant appellant." }, "file_name": "0460-01", "first_page_order": 492, "last_page_order": 496 }