State v. Williams , 98 N.C. App. 405 ( 1990 )

390 S.E.2d 729 (1990) 98 N.C. App. 405

STATE of North Carolina
v.
Linwood WILLIAMS.

No. 896SC422.

Court of Appeals of North Carolina.

May 1, 1990.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Harold M. White, Jr., Raleigh, for the State.

Robin E. Hudson, Raleigh, for defendant-appellant.

ARNOLD, Judge.

Defendant contends the trial court erred in denying his motion to suppress based on a failure to timely file that motion. He argues that his motion was filed before trial, as required by N.C.Gen.Stat. § 15A-975 and furthermore, that his motion could have been filed during trial because the requirements of N.C.Gen.Stat. § 15A-975(b) were satisfied.

N.C.Gen.Stat. § 15A-977 provides in pertinent part:

(c) The judge may summarily deny the motion to suppress evidence if:

(1) The motion does not allege a legal basis for the motion; or

(2) The affidavit does not as a matter of law support the ground alleged.

Defendant's motion alleged, as a basis for suppressing the matchbox and its contents, that the law enforcement officers had, without his consent, made a warrantless search of an area outside defendant's house. Defendant's affidavit does not, however, support the alleged ground for suppression. In the affidavit, defendant states that he did not exercise dominion over the area in which the matchbox was found. Defendant did not, therefore, have a reasonable expectation of privacy in the area searched. See State v. Thompson, 73 N.C.App. 60, 63-5, 325 S.E.2d 646, 649-50, disc. rev. denied and appeal dismissed, 313 N.C. 610, 332 S.E.2d 183 (1985). Furthermore, even if defendant did have a reasonable expectation of privacy in the area where the matchbox was found, no search warrant would have been necessary. Evidence at trial showed that the officers were at defendant's house for a lawful purpose, that defendant consented to one officer walking over to the area where the matchbox was found, and that the officer discovered the matchbox in plain view. See State v. Mettrick, 54 N.C.App. 1, 15, 283 S.E.2d 139, 148 (1981), aff'd, 305 N.C. 383, 289 S.E.2d 354 (1982). The trial court did not err in summarily denying defendant's motion to suppress.

Defendant next contends the trial court erred in sentencing him both to five years for felonious possession of cocaine and to ten years for possession with intent to sell or deliver the same cocaine. We agree. Principles of double jeopardy bar defendant's punishment for both offenses based on possession of the same contraband. State v. McGill, 296 N.C. 564, 568, 251 S.E.2d 616, 619 (1979); State v. Oliver, 73 N.C.App. 118, 122, 325 S.E.2d 682, 686, cert. denied, 313 N.C. 513, 329 S.E.2d 401 (1985). We therefore arrest judgment on the lesser charge and sustain the conviction and sentence on the greater.

As to the charges of felonious possession of cocaine with intent to sell or deliver and misdemeanor possession of drug paraphernalia, no error.

As to the charge of felonious possession of cocaine, judgment arrested.

HEDRICK, C.J., and WELLS, J., concur.