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Criminal Practice – Search & Seizure – Search Warrant – Defendant’s Person – Traffic Stop

Since a valid search warrant had been issued to search defendant’s person, an officer could conduct a traffic stop without violating the Fourth Amendment; the stop was initiated to effectuate service of the search warrant.

We find no error in defendant’s convictions of one count of statutory sexual offense with a minor, one count of taking indecent liberties with a child, and three counts of first-degree sexual exploitation of a minor.

In contrast to Bailey v. United States, 568 U.S. 186 (2013), in which men were ordered to exit their vehicle, patted down, handcuffed, and arrested, in the present case, defendant was merely asked if he wanted to return to his residence because of the search warrant, and then he voluntarily rode back to his residence with the detective in the front passenger seat of her vehicle. He was not subjected to any search during the stop or the drive back to his residence. Accordingly, the traffic stop did not violate the Fourth Amendment of the U.S. Constitution or Article I, §§ 19 and 23 of the North Carolina Constitution.

Furthermore, the search warrant itself was valid. The search warrant application was supported by an affidavit based on interviews the officers conducted with the victim, “Holly,” and her 17-year-old friend alleging that on the night of Nov. 17, 2013, Holly and her friend had alcoholic drinks with defendant and then fell asleep in Holly’s bedroom. At some point during the night, Holly woke up to find defendant on top of her while he “vaginally penetrat[ed] her with his penis and fingers.” Holly told defendant to get off of her and “after a minute” he complied.

After defendant left the room, Holly went to the living room and found her friend asleep on the couch with her pants on backwards. The girls went back into her bedroom and they stayed there for the rest of the night.

On Nov. 19, 2013, the girls attempted to leave defendant’s residence, but he “stood in front of the door, refusing to let both [girls] leave his residence.” Holly’s friend told the police that later that night defendant “used a silver handgun with a wooden handle to force [the girls] to take the pictures with each other,” and that he also took pictures with his cell phone. The girls described defendant’s cell phone as a “large, open face style phone with a green and white case.”

The extensive investigation and interviews conducted by law enforcement officers produced information establishing more than reasonable grounds to believe a search of defendant’s person would produce the items listed in the warrant. The cell phone was alleged to contain incriminating photos, the cell phone was listed as one of the items to be seized, and common sense dictates that defendant’s cell phone would most likely be located on his person. Accordingly, the search warrant was based on probable cause.

Where the detectives had ample prior opportunities to speak with defendant, their testimony identifying defendant’s voice on a video admitted into evidence was based on their past perceptions and first-hand knowledge of defendant’s voice and would have been helpful to the jury. Accordingly, the trial court did not err when it admitted the detectives’ testimony identifying defendant’s voice on the video.

Finally, the use of the word “victim” in the jury charge is not improper; by using the term “victim,” the trial court is not intimating that the defendant committed the crime. Further, the state presented ample physical evidence of injury to the victim at trial, including the video of Holly performing oral sex on defendant while she was a minor. Accordingly, the trial court did not err in using the word “victim” in the pattern jury instructions to describe the complaining witness.

No error.

State v. Pole (Lawyers Weekly No. 012-171-18, 19 pp.) (Valerie Zachary, J.) Appealed from New Hanover County Superior Court (Phyllis Gorham, J.) John Oates for the state; Mark Montgomery for defendant. N.C. App. Unpub

 

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