State v. Ford

323 S.E.2d 358 (1984)

STATE of North Carolina
v.
Christopher Glenn FORD.

No. 8413SC269.

Court of Appeals of North Carolina.

December 18, 1984.

Atty. Gen. Rufus L. Edmisten by T. Buie Costen, Sp. Deputy Atty. Gen., Raleigh, for the State.

Hafer, Hall & Schiller by Marvin Schiller, Raleigh, for defendant-appellant.

VAUGHN, Chief Judge.

Defendant first contends that the minimum mandatory sentence and fine imposed under G.S. 90-95(h)(1)d is significantly disproportionate to the crime and therefore constitutes cruel and unusual punishment prohibited by the 8th and 14th Amendments to the United States Constitution and article 1, section 27 of the North Carolina Constitution. Defendant, however, entered a plea of guilty and is thereby precluded from making an appeal on this ground. G.S. 15A-1444. Moreover, even if we were to grant discretionary review we would find defendant's argument to be without merit.

The remaining issue presented on appeal is whether the trial court erred in denying defendant's motion to suppress the evidence acquired pursuant to the search of the mobile home. It is defendant's position that the supporting affidavit presented to the magistrate by Special Agent McKinney failed to show sufficient probable cause to justify the issuance of a search warrant. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972). Defendant alternatively argues that crucial information contained within the affidavit was in itself the product of an illegal warrantless search and thereby renders inadmissible the evidence ultimately seized. State v. Spencer, 281 N.C. 121, 127, 187 S.E.2d 779, 783 (1972). We disagree with both contentions and hold that defendant's motion to suppress was properly denied.

At the outset, we find that defendant did not have standing to challenge the sufficiency of the warrant. "Fourth Amendment rights are personal rights which ... may not be vicariously asserted." Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). Only an "aggrieved" party may move to suppress evidence under G.S. 15A-972 by demonstrating that his personal rights and not those of some third party have been violated. Accord State v. Greenwood, 301 N.C. 705, 708, 273 S.E.2d 438, 440 (1981); see also State v. Taylor, 298 N.C. 405, 415, 259 S.E.2d 502, 508 (1979) (comparing G.S. 15A-972 and Rule 41(e) of the Federal Rules of Criminal Procedure). In other words, only those persons who hold a reasonable expectation of privacy in the premises searched may invoke the protections of the 4th Amendment, State v. Jones, 299 N.C. 298, 306, 261 S.E.2d 860, 865 (1980), and it is the defendant who bears the burden of establishing that he is such an aggrieved party. State v. Taylor, 298 N.C. at 415-16, 259 S.E.2d at 508. In the present case, defendant has failed to meet his burden of proof. Defendant was not legitimately on the premises at the time of the search. See Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979); Jones v. United States, 362 U.S. 257, 267, 80 S.Ct. 725, 734, 4 L.Ed.2d 697 (1960). Nor did defendant assert either a property or possessory interest in the premises searched. The evidence reveals only an earlier presence and accessibility and neither is sufficient to establish the requisite "privacy interest" in the absence of additional information. State v. Taylor, 298 N.C. at 416, 259 S.E.2d at 508-09 (1979). Defendant therefore has no standing to challenge the legality of the search.

Irrespective of defendant's standing to challenge the warrant, we nevertheless find that the warrant was properly issued. "Probable cause, as used in the Fourth Amendment ... means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the objects sought and that those objects will aid in the apprehension or conviction of the offender." State v. Campbell, 282 N.C. 125, 128-29, 191 S.E.2d 752, 755 (1972); State v. Harris, 43 N.C.App. 184, 185, 258 S.E.2d 415, 416 (1979). Unusual traffic at a residence may not, in itself, constitute probable cause to justify the issuance of a warrant authorizing a search of that residence for drugs. State v. Crisp, 19 N.C.App. 456, 199 S.E.2d 155 (1973). However, evidence of such activity, in conjunction with the discovery of marijuana odor coming from within does constitute sufficient probable cause to authorize a search of the implicated residence. State v. Trapper, 48 N.C. App. 481, 269 S.E.2d 680, appeal dismissed, 301 N.C. 405, 273 S.E.2d 450 (1980), cert. denied, 451 U.S. 997, 101 S.Ct. 2338, 68 L.Ed.2d 856 (1981). In the present case, the detection of marijuana odors by a surveillance officer did constitute adequate evidence from which a magistrate could conclude that there was probable cause to believe that marijuana might be found by a search of the mobile home.

This evidence was not tainted by the fact that Customs Patrol Officer Dupray was located in woods near the mobile home at the time he detected the odor. Defendant did not have a reasonable and constitutionally recognized privacy expectation in nearby woods, irrespective of whether or not the officers' presence constituted a technical trespass at common law. The special protections of the Fourth Amendment to people in their "``persons, houses, papers and effects' does not extend to open fields." Oliver v. United States, ___ U.S. ___, ___, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214, 222 (1984); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). The officers were legitimately present in the woods beyond the cleared area immediately surrounding the mobile home and defendant has not contended that they violated the curtilage area. See Oliver v. United States, supra. "The term ``open fields' may include any unoccupied or undeveloped area outside of the curtilage. An open field need be neither ``open' nor a ``field' as those terms are used in common speech ... [and] a thickly wooded area ... may be an open field as that term is used in construing the Fourth Amendment." Id., ___ U.S. at ___ n. 11, 104 S.Ct. at 1742 n. 11, 80 L.Ed.2d at 225 n. 11 (citing United States v. Pruitt, 464 F.2d 494) (9th Cir. 1972). The officers' detection of marijuana odor while located in these woods was therefore properly considered by the magistrate in determining the existence of probable cause and the fruits of the search were properly admitted as evidence.

Affirmed.

WEBB and HILL, JJ., concur.