An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-575
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 April 2014


STATE OF NORTH CAROLINA

       v.                                      Mecklenburg County
                                               No. 11 CRS 243001
BARBARA L. HARLING



       Appeal by defendant from judgment entered 16 November 2012

by Judge Linwood O. Foust in Mecklenburg County Superior Court.

Heard in the Court of Appeals 19 November 2013.


       Attorney General Roy Cooper, by Assistant Attorney General
       Donald W. Laton, for the State.

       Kimberly P. Hoppin for defendant-appellant.


       BRYANT, Judge.


       Where there was no violation of defendant’s rights against

unreasonable searches and seizures, the trial court did not err

in    admitting    into      evidence   cocaine     seized    from    defendant’s

purse.

       On 19 March 2012, a grand jury indicted defendant Barbara

Lee   Harling     on   the    charge    of    possession     of   a   schedule    II

controlled substance, cocaine.               On 3 July 2012, defendant filed
                                       -2-
a motion to suppress all evidence “obtained as a result of the

illegal search and          seizure of [] defendant.”            The Honorable

Linwood O. Foust who presided over defendant’s trial commencing

14 November 2012, addressed defendant’s motion to suppress by

conducting a hearing just before the jury was empaneled.

       At the suppression hearing, the State presented evidence

that shortly after midnight on 21 September 2011, Charlotte-

Mecklenburg     Police      Department       patrol   officer     John    Gorrod

initiated a traffic stop of defendant’s vehicle and arrested

defendant upon confirmation that she had outstanding warrants in

South Carolina.       While watching a video of the stop recorded

from his patrol car, Officer Gorrod testified that following

defendant’s     arrest,      defendant       requested    that   her     personal

belongings from the vehicle be retrieved, specifically her purse

and cell phone.       Defendant then made a second request to have

someone move her car from the roadside to an adjacent parking

lot.     Inside the car, Officer Gorrod found a cell phone, a cloth

pouch,    and   a   black    leather   handbag     with   a   shoulder    strap.

Defendant identified the cloth pouch as hers but the pouch was

empty.     Upon searching the black leather handbag, Officer Gorrod

discovered a silver gum wrapper containing what he believed to
                                         -3-
be crack cocaine.         The trial court denied defendant’s motion to

suppress the cocaine seized.

    Defendant was tried before a jury which returned a guilty

verdict     on    the     charge    of    felony       possession      of    cocaine.

Defendant    was   sentenced       to    an   active     term    of   four    to   five

months.      The trial court suspended this                  sentence and placed

defendant    on    supervised       probation    for     a   period    of    fourteen

months.   Defendant appeals.

                        ____________________________________

    On    appeal,       defendant    contends      the   trial    court      committed

plain error by denying her motion to suppress and admitting the

evidence obtained as a result of the warrantless search of her

purse.      Defendant argues that after defendant identified the

cloth pouch as hers, any subsequent search was a violation of

defendant’s Fourth Amendment rights.               We disagree.

    Defendant acknowledges to this Court that despite making a

pre-trial motion to suppress evidence obtained as a result of a

warrantless search of a purse and obtaining a ruling denying her

motion, she failed to object to the admission of the evidence at

trial.    See State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168,

198 (2000) (“As a pretrial motion to suppress is a type of

motion in limine, [the defendant’s] pretrial motion to suppress
                                      -4-
is not sufficient to preserve for appeal the question of the

admissibility of his statement because he did not object at the

time   the     statement     was   offered     into    evidence.”      (citation

omitted)).      “Rulings on motions in limine are preliminary in

nature and subject to change at trial, depending on the evidence

offered, and thus an objection to an order granting or denying

the motion is insufficient to preserve for appeal the question

of the admissibility of the evidence.”               State v. Tutt, 171 N.C.

App.   518,    520,    615   S.E.2d   688,     690    (2005)    (citation    and

quotations omitted).         Accordingly, defendant requests that we

review the admission of evidence for plain error.                    See N.C. R.

App. P. 10(a)(4) (2013) (“In criminal cases, an issue that was

not preserved by objection noted at trial and that is not deemed

preserved by rule or law without any such action nevertheless

may be made the basis of an issue presented on appeal when the

judicial      action   questioned     is     specifically      and    distinctly

contended to amount to plain error.”).

                  [T]he plain error rule ... is always to
             be applied cautiously and only in the
             exceptional case where, after reviewing the
             entire record, it can be said the claimed
             error is a fundamental error, something so
             basic, so prejudicial, so lacking in its
             elements that justice cannot have been done,
             or where [the error] is grave error which
             amounts to a denial of a fundamental right
             of the accused, or the error has resulted in
                                        -5-
            a miscarriage of justice or in the denial to
            appellant of a fair trial or where the error
            is such as to seriously affect the fairness,
            integrity or public reputation of judicial
            proceedings or where it can be fairly said
            the instructional mistake had a probable
            impact on the jury’s finding that the
            defendant was guilty.

State v. Lawrence, 365 N.C. 506, 516—17, 723 S.E.2d 326, 333

(2012) (citation and quotations omitted).

            For error to constitute plain error, a
            defendant    must    demonstrate    that     a
            fundamental error occurred at trial. To show
            that an error was fundamental, a defendant
            must    establish    prejudice—that,     after
            examination of the entire record, the error
            had a probable impact on the jury's finding
            that the defendant was guilty. Moreover,
            because plain error is to be applied
            cautiously and only in the exceptional case,
            the error will often be one that seriously
            affect[s] the fairness, integrity or public
            reputation of judicial proceedings[.]

Id.   at    518,    723   S.E.2d   at    334    (citations    and     quotations

omitted).      Therefore, we review           for plain error       the court’s

admission    into    evidence    the    cocaine   Officer    Gorrod    found   in

defendant’s purse.

      At the outset we note that defendant does not contest the

grounds for the traffic stop or the authority of the arresting

officer to seize her.           Defendant’s argument is limited to the

search of a black leather handbag taken from her vehicle by a
                                            -6-
law enforcement officer following her request for her personal

belongings.

      The   Fourth     Amendment       of    the   United   States   Constitution

protects the right of the people to be secure in their persons

and effects against unreasonable searches and seizures.                           U.S.

Const. amend. IV.

            Though the language in the North Carolina
            Constitution (Article I, Sec. 20), providing
            in substance that any search or seizure must
            be “supported by evidence,” is markedly
            different   from   that   in   the   federal
            constitution, there is no variance between
            the search and seizure law of North Carolina
            and the requirements of the Fourth Amendment
            as interpreted by the Supreme Court of the
            United States.

State v. Hendricks, 43 N.C. App. 245, 251—52, 258 S.E.2d 872,

877   (1979)    (citing    State   v.       Vestal,   278   N.C.   561,    577,    180

S.E.2d   755,    766    (1971))    (citation       omitted).       “The   governing

premise of the Fourth Amendment is that a governmental search

and seizure of private property unaccompanied by prior judicial

approval in the form of a warrant is per se unreasonable unless

the   search    falls     within   a    well-delineated        exception    to     the

warrant requirement . . . .”                State v. Cooke, 306 N.C. 132, 135,

291 S.E.2d 618, 620 (1982) (citations omitted).

            Consent, however, has long been recognized
            as a special situation excepted from the
            warrant requirement, and a search is not
                                  -7-
           unreasonable within the meaning of the
           Fourth Amendment when lawful consent to the
           search   is  given.   For  the   warrantless,
           consensual search to pass muster under the
           Fourth Amendment, consent must be given and
           the consent must be voluntary. Whether the
           consent is voluntary is to be determined
           from the totality of the circumstances.

State v. Smith, 346 N.C. 794, 798, 488 S.E.2d 210, 213 (1997)

(citations omitted).

       At trial, Officer Gorrod testified before the jury that on

the night of 21 September 2011, he was working as a patrol

officer in the 150 block of Dalton Avenue in Charlotte when he

observed defendant’s vehicle and “ran the tag.”          He then ran the

driver’s license associated with the tag, “and it came back that

she had two felony warrants from South Carolina.”           The driver of

the    vehicle,   “a   middle   aged    white    female,”   matched   the

description provided in the warrants.           Officer Gorrod initiated

a traffic stop and verified that the driver was the vehicle

owner and matched her identification with the person named in

the warrants.     Officer Gorrod asked defendant to step out of her

car, placed her in handcuffs, and escorted her to his patrol

car.

           Q.     At that time did she say anything to
                  you or make any statements?

           A.     She said that she needed her belongings
                  and her cell phone out of the vehicle.
                      -8-
     And she did     not   want   us   to   tow   her
     vehicle.

. . .

Q.   At any point did you retrieve                her
     personal belongings from the car?

A.   Yes. She asked me to grab her cell
     phone and her belongings, including her
     purse.

Q.   When you did that, what did you do with
     those things?

A.   Brought them back and set it on the
     hood of the vehicle, my patrol vehicle.

Q.   Did the defendant tell you at any point
     this was, in fact, her purse and her
     belongings?

A.   Yes, she did.

Q.   And so what     did    you   do   with   those
     belongings?

A.   I searched them and located the crack
     cocaine in them.

Q.   Officer   Gorrod, if we  could just
     briefly back up, why did you search
     these items?

A.   Anything that goes to intake is my
     responsibility   once    they're   in   my
     custody. Anything on her person or
     anything that's going inside the jail
     cell that belongs to her I have to
     search before it goes in there. If we
     allow   contraband    --    drugs,   guns,
     knives, anything of that nature -- to
     go inside, it would compromise the
     facility.
                     -9-


. . .

Q.   Anything found on her person?

A.   No, ma'am.

Q.   Officer Gorrod, when you went through
     her purse, were there any other items
     in there?

A.   There were.

. . .

Q.   And the substance that    you found in her
     purse you referred to    as crack cocaine
     . . . how was that --    how did you find
     that? What did it look   like?

A.   There was a balled-up gum wrapper,
     silver gum wrapper. When I felt it, I
     felt something hard inside. And I know
     that drugs have been packaged and
     concealed   in  gum   wrappers,  dollar
     bills, pieces of paper, things of that
     nature to conceal from officers. So I
     opened the gum wrapper, and a white
     plastic baggie was inside. It was tied
     in a knot. The knot was consistent with
     drug packaging, also.

. . .

Q.   . . . Officer Gorrod, at any time that
     night, did the defendant tell you that
     that was not her purse?

A.   No, ma'am.

Q.   And did she make any other statements
     to you that night?

A.   She did confirm that it was, in fact,
                                          -10-
                    her purse on more than one occasion.
                    She also asked did we need a search
                    warrant to search her purse.

              Q.    And what did you say to that?

              A.    I told her that since she was going to
                    intake, all of her property that was
                    going with her -- I had to search
                    everything before it went into my
                    vehicle   and then   into  the  intake
                    facility.

      As     defendant    was     under    arrest     and      being     held    in    the

officer’s patrol car before she was to be transported away from

her   vehicle,      defendant’s       request       asking        that   the     officer

retrieve her purse and other belongings before they left the

scene was voluntary.            As such, and under the totality of the

circumstances       present       here,     the     officer’s        intrusion         into

defendant’s vehicle was excepted from the warrant requirement by

defendant’s consent, the search of her car being based upon her

request.      See Smith, 346 N.C. at 798, 488 S.E.2d at 213 (“For

the   warrantless,       consensual       search    to   pass      muster   under      the

Fourth Amendment, consent must be given and the consent must be

voluntary.”).       Furthermore, the law enforcement officer’s search

of defendant’s purse prior to transporting her to police booking

was   also    in   accordance      with     parameters       of    Fourth       Amendment

jurisprudence.       See State v. Nesmith, 40 N.C. App. 748, 751, 253

S.E.2d     594,    596   (1979)    (“The     search      and    inspection        of   the
                                           -11-
contents    of    the   wallet   at    the        police   station   was   valid   as

incident to the lawful arrest. Where there is a lawful custodial

arrest, a full search of the person [and his personal effects]

is   not   only    an   exception     to    the     warrant   requirement    of    the

Fourth Amendment, but it is also a reasonable search under that

Amendment.”       (citing   United    States        v.   Robinson,   414   U.S.    218

(1973))).        Accordingly, we find no error in the trial court’s

admission of the cocaine found in defendant’s purse.

      No error.

      Judges McGEE and STROUD concur.

      Report per Rule 30(e).
