Criminal Practice – Search & Seizure – Reasonable Expectation of Privacy – Habitual Felon – Prejudice – Clerical Error

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State v. Eaton. (Lawyers Weekly No. 11-07-0221, 20 pp.) (Donna S. Stroud, J.) Appealed from Rowan County Superior Court. (W. Erwin Spainhour, J.) N.C. App. Click here for the full text of the opinion.

Holding: Where the defendant had discarded a plastic bag on public property and had not been seized at the time of discarding, an officer’s recovery of the bag did not violate the defendant’s Fourth Amendment rights.

We affirm the trial court’s denial of defendant’s motion to suppress. The case is remanded for the trial court to correct a clerical error relating to the felony level under which defendant was charged.

Facts

Defendant was indicted on one count of trafficking “4 grams or more but less than 14 grams of opium or opiate or a preparation of opium or opiate, or a salt, compound, derivative of opium,” specifically dihydrocodeinone by possession, pursuant to G.S. § 90-95(h)(4) and attaining the status of habitual felon.

Subsequently, a superseding indictment was issued, indicting defendant for one count of possession with intent to sell and/or deliver “(8.3) grams or twenty (20) dosage units of Dihydrocodeinone, commonly known as Hydrocodone an opiate” pursuant to G.S. § 90-95(a).

Defendant moved to suppress certain evidence obtained in the course of a traffic stop. After a hearing, the court denied the motion and defendant was tried on the charges.

At the close of the state’s evidence, defendant moved to dismiss, and his counsel asked the court to consider his pro se motion to dismiss based on lack of subject-matter jurisdiction. The trial court denied the motions. Defendant raised them again at the close of evidence, and the court denied them.

The jury found defendant guilty of both charges and proceeded to the habitual felon stage. The state presented three of defendant’s prior felony convictions with copies of those conviction records submitted to the jury. The jury then found defendant guilty of attaining the status of habitual felon. The trial court consolidated the convictions and sentenced defendant to a term of 133 to 169 months imprisonment.

Defendant appealed.

Motion to Suppress

Defendant argued that the trial court erred when it denied his motion to suppress. We disagree.

Defendant failed to assign error to the trial court’s findings of fact in the order denying his motion to suppress. Therefore, the trial court’s findings of fact are binding on appeal.

Those findings were that an officer asked defendant to come and stand in front of his police car after noting that defendant and four other people scattered from an intersection as soon as they saw the officer. Defendant dropped a baggy with pills and powder in it, and the officer picked it up.

The trial court concluded that the plastic bag containing the pills and powder was not the fruit of a “seizure” of defendant’s person within the meaning of the Fourth Amendment. The court further concluded, “A seizure of the defendant had not occurred when the defendant discarded the plastic bag containing the pills and the white powder residue, and the defendant had not yielded to a show of authority at that time.”

The facts are similar to those in California v. Hodari D, 499 U.S. 621 (1991). Like the defendant in Hodari D, defendant was not seized when he discarded the plastic bag containing the pills.

The Fourth Amendment protects against governmental intrusion into areas in which a citizen has a reasonable expectation of privacy. The protection of the Fourth Amendment against unreasonable searches and seizures does not extend to abandoned property.

Here, the trial court’s findings show that defendant discarded the plastic bag beside a public road. Therefore, we hold that he abandoned the plastic bag as he no longer retained a reasonable expectation of privacy by discarding it in a public place.

As defendant had not been seized at the time he discarded the plastic bag and the plastic bag was abandoned property, the officer’s recovery of the plastic bag did not violate defendant’s Fourth Amendment rights.

We hold that the trial court’s findings support its conclusion of law and affirm the denial of defendant’s motion to suppress.

Habitual Felon Conviction

Defendant  argued that the trial court erred in sentencing him as a habitual felon on the charge of trafficking in opium by possession on the grounds that the structured-sentencing statute does not apply to drug trafficking offenses.

Defendant argued that the mandatory nature of the language of G.S. § 90-95(h)(4)(a) precluded the trial court from sentencing him as a Class C felon based on his habitual felon status.

The statutes governing the sentencing of convicted criminal defendants almost universally employ mandatory language directing that a person convicted of a particular offense “shall be punished” as a Class “X” felon or providing that specific terms of imprisonment are authorized for particular offenses and prior record levels.

The explicit directive contained in G.S. § 14-7.6 to the effect that a defendant found to have attained habitual felon status “must” be sentenced as a habitual felon is arguably even more mandatory than the language found in G.S. § 90-95(h)(4) upon which defendant relied.

The consistent use of mandatory language throughout the sentencing statutes in effect in North Carolina preclude acceptance of defendant’s argument, which elevates the importance of the mandatory language contained in G.S. § 90-95(h)(4) over the mandatory language found in other sentencing statutes, including G.S. § 14-7.6.

The two statutes complement each other and address different means of enhancing punishment. In essence, under the interpretation of the relevant statutory provisions that we believe to be appropriate, a drug trafficker who is not a habitual felon would be subject to enhanced sentencing pursuant to G.S. § 90-95(h)(4), while a drug trafficker who has also attained habitual felon status would be subject to even more enhanced sentencing pursuant to G.S. § 14-7.6.

We do not believe that defendant’s challenge to the trial court’s decision to sentence him as a habitual felon in the case in which he was convicted of trafficking in opium has merit, and we conclude that the challenged sentencing decision should be left undisturbed.

Admission of Statements to Police

Defendant argued that the trial court erred in allowing the state to offer evidence that he addressed the arresting officers with racial slurs. Defendant contended that these statements were not relevant and should have been excluded.

In the alternative, he argued that even if they were relevant, they should have been excluded because they were prejudicial enough to sway the jury.

Even if a complaining party can show that the trial court erred in an evidentiary ruling, relief ordinarily will not be granted absent a showing of prejudice. In order to establish prejudice, the defendant must show that there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.

Even assuming that admission of the officer’s statements regarding defendant’s racial slurs was in error, we hold that they were not prejudicial given the overwhelming evidence of his guilt.

Clerical Error

Dihydrocodeinone is a Schedule III controlled substance. The judgment entered against defendant states that possession with intent to sell or deliver a Schedule III controlled substance is a Class H felony.

G.S. § 90-95(a)(1) makes it unlawful to possess a controlled substance with the intent to sell or deliver. However, G.S. § 90-95(b)(2) provides that violation of G.S. § 90-95(a)(1) with respect to a controlled substance classified in Schedule III, IV, V, or VI shall be punished as a Class I felony, except that the sale of a controlled substance classified in Schedule III, IV, V, or VI shall be punished as a Class H felony.

The indictment, verdict, and judgment all charge defendant with possession with intent to sell or deliver, which is a Class I felony, not sale only, which is a Class H felony.

As a result, the offense in question was not properly characterized as a Class H felony but should have been characterized as a Class I felony.

That did not affect defendant’s sentencing, since as a habitual felon he was sentenced as a Class C felon.

We remand for correction of the clerical error in the judgment which identifies the offense of possession with intent to sell or deliver as a Class H felony; this should be identified as a Class I felony.

Affirmed as to order and judgment; remanded for correction of clerical error.