State v. Phillips , 132 N.C. App. 765 ( 1999 )

513 S.E.2d 568 (1999)

STATE of North Carolina
v.
Kenneth Ray PHILLIPS.

No. COA98-460.

Court of Appeals of North Carolina.

April 6, 1999.

Attorney General Michael F. Easley by Associate Attorney General Anne M. Middleton, for the State.

Public Defender Isabel Scott Day by Assistant Public Defender Julie Ramseur Lewis, Charlotte, for defendant-appellant.

EAGLES, Chief Judge.

First we consider whether the trial court erred in summarily denying defendant's motion to suppress. Defendant argues that the affidavit implicitly adopted the specific facts "as alleged in this Motion to Suppress" and identified the source of that information as the discovery provided by the State. Defendant contends that when read together, the affidavit and motion to suppress are sufficient to meet the requirements of G.S. 15A-977(a) and the trial court did not have the discretion to summarily deny the motion without conducting a hearing. After careful review, we disagree.

G.S. 15A-977(a) states:

(a) A motion to suppress evidence in superior court made before the trial must be in writing and a copy of the motion must be served upon the State. The motion must state the grounds upon which it is made. The motion must be accompanied by an affidavit containing facts supporting the motion. The affidavit may be based upon personal knowledge, or upon information and belief, if the source of the information and the basis for the belief are stated.

Here, the sworn affidavit defendant filed in conjunction with his motion to suppress stated:

1) My name is Edward A. Fliorella, Jr.. I am an attorney actively engaged in the practice of criminal law for the past ten years.

2) I have reviewed the discovery provided by the State with my client and, based upon those specific facts, and as alleged in this Motion to Suppress, it is the opinion of the undersigned that the relief requested should be granted.

3) That this affidavit is being filed pursuant to N.C.G.S. §§ 15A-977.

The affidavit fails to meet the mandatory requirements of G.S. 15A-977. If the motion fails to allege a legal or factual basis for suppressing the evidence, it may be summarily denied by the trial judge. State v. Satterfield, 300 N.C. 621, 625, 268 S.E.2d 510, 514 (1980).

The affidavit here does not have a single fact in support of the motion to suppress. G.S. 15A-977(a) explicitly and clearly states that "[t]he motion must be accompanied by an affidavit containing facts supporting the motion." [Emphasis added]. Further, the motion does not state how defendant's constitutional rights were violated when the police officer searched his mailbox without a search warrant. The defendant never stated in his motion or affidavit that he had a reasonable expectation of privacy in his mailbox or its contents. Accordingly, the trial court did not err in summarily dismissing defendant's motion to dismiss. This assignment of error is overruled.

Finally, we consider whether the trial court in the second trial erred in denying defendant's renewed motion to suppress. Defendant argues that his rights under the Fourth Amendment and Fourteenth Amendment of the United States Constitution as well as Article I § 19 and § 20 of the North Carolina Constitution were violated when officers searched his mailbox without first obtaining a search warrant because defendant had a reasonable expectation of privacy in his closed but not locked mailbox which was affixed to his front door. We need not address that issue.

The Fourth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. A warrantless search is unconstitutional unless (1) probable cause to search exists and (2) the State satisfies its burden of showing that the exigencies of the situation made search without a warrant imperative. State v. Allison, 298 N.C. 135, 141, 257 S.E.2d 417, 421 (1979) (citing Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)). "Our state constitution, like the Federal Constitution, requires the exclusion of evidence obtained by unreasonable search and seizure." State v. Carter, 322 N.C. 709, 712, 370 S.E.2d 553, 555 (1988).

The United States Supreme Court has held that the touchstone of the Fourth Amendment analysis has been "whether a person has a `constitutionally protected reasonable expectation of privacy.'" Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214, 223 (1984) (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 587 (1967)).

The Amendment does not protect the merely subjective expectation of privacy, but only those "expectation[s] that society is prepared to recognize as `reasonable.'"

No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. In assessing the degree to which a search infringes upon individual privacy, the Court has given great weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion,[.]

Id. at 177-78, 104 S.Ct. at 1741, 80 L.Ed.2d at 223-24. (Citations omitted). However, "[w]hen one voluntarily puts property under the control of another, he must be viewed as having relinquished any prior legitimate expectation of privacy with regard to that property, as it becomes subject to public exposure upon the whim of the other person." State v. Jordan, 40 N.C.App. 412, 415, 252 S.E.2d 857, 859 (1979) (holding that the defendant did not have an expectation in privacy when he put the drugs in the purse of a passenger in the car that defendant was driving).

Here, by throwing the drugs in Long's lap, defendant lost any expectation of privacy he might have had in his property. After giving the drugs to Ms. Long, defendant had no control over what Ms. Long did with the drugs and because defendant had no control over the drugs, he relinquished his prior expectation of privacy in the property. Accordingly, the trial court did not err in denying defendant's motion to suppress because the evidence was not obtained in violation of defendant's Fourth Amendment constitutional right. This assignment of error is overruled.

No error.

Judges MARTIN and McGEE concur.