310 S.E.2d 640 | N.C. Ct. App. | 1984
STATE of North Carolina
v.
Scott Andrew BOGIN.
Court of Appeals of North Carolina.
*641 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Walter M. Smith, Raleigh, for the State.
*642 George Daly, Bennett & Lawson by Jean B. Lawson, Charlotte, and Stephen Franks, Hendersonville, for defendant-appellant.
EAGLES, Judge.
Defendant assigns as error the trial judge's denial of defendant's motion to suppress evidence. He contends that the marijuana seized when the officers searched his home pursuant to an arrest warrant for Ms. Ruff should not have been introduced into evidence because it was the product of an illegal search and seizure. We do not agree. We find that there was competent evidence upon which the trial court could find that the officers obtained valid consent to enter defendant's home.
The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, prohibits entry into the home of a person not named in an arrest warrant to search for the person named in the warrant, absent consent or exigent circumstances. Steagald v. United States, 451 U.S. 204,101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Because there were no exigent circumstances in the present case, we focus on whether there was legally effective consent given to justify entry of the officers into defendant's home on the strength of an arrest warrant for a person other than the defendant. The trial judge was required to determine whether, under the totality of the circumstances, the consent to enter defendant's home was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Upon the voir dire to determine whether the consent to search was voluntarily given, the weight to be given the evidence is peculiarly a determination for the trial judge, and his findings are conclusive when supported by competent evidence. State v. Long, 293 N.C. 286, 294, 237 S.E.2d 728, 733 (1977).
Deputy Crowder testified that defendant's father (at defendant's suggestion) invited the officers into the house and told them that he (defendant's father) would show them where Ms. Ruff was; that defendant said, "Maybe she's in my room" and opened the door to his room; and that when defendant opened the door, Deputy Crowder smelled the warm, humid, woody air and saw the marijuana and paraphernalia in plain view. There was competent evidence that the officers were in a place where they had a right to be when they observed marijuana that was in plain view. We hold that this is sufficient to support the trial judge's determination that the consent to enter defendant's home was voluntarily and freely given.
Contrary to defendant's assertions, this case is unlike Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), where the United States Supreme Court found that there was no consent when admittance was preceded by an officer announcing that he had authority to search a home under a search warrant, a situation the court characterized as "instinct with coercion." 391 U.S. at 550, 88 S.Ct. at 1792. According to Bumper, mere "acquiescence to a claim of lawful authority" to search, nothing else appearing, is insufficient to justify a search. Id at 549, 88 S.Ct. at 1792. Here, the officers announced their authority to arrest, not to search, and in a spirit of cooperation the defendant's father voluntarily invited the officers into his home and said he would show them where Ms. Ruff was. Further, the record is undisputed that defendant's room door was opened by him without any request or suggestion from the officers. This is clearly a factual situation beyond the mere "acquiescence to a claim of lawful authority" to search.
For the reasons stated, we find in the trial
No error.
HEDRICK and BRASWELL, JJ., concur.
