                              NO. COA14-126

                   NORTH CAROLINA COURT OF APPEALS

                         Filed: 2 September 2014


STATE OF NORTH CAROLINA,
     Plaintiff,

    v.                                 New Hanover County
                                       No. 10 CRS 60866-67
SUPREME JUSTICE ALLAH,
     Defendant.


    Appeal   by   defendant   from   order    and   judgment   entered   8

August 2012 by Judge W. Douglas Parsons in New Hanover Superior

Court.   Heard in the Court of Appeals 14 August 2014.


    Roy Cooper, Attorney General, by R. Marcus Lodge, Special
    Deputy Attorney General, for the State.

    Anne Bleyman, for defendant-appellant.


    HUNTER, JR., Robert N., Judge.


    Supreme Justice Allah (“Mr. Allah”)1 appeals from the denial

of his motion to suppress, arguing that a warrant was needed for

the search of his private residence though it is attached to an

ABC licensed storefront.      Mr. Allah also challenges the trial



1
  This Court will refer to Defendant, Supreme Justice Allah, as
Mr. Allah for purposes of this opinion because Defendant was
referred to as Mr. Allah throughout the trial transcripts. This
Court notes that Defendant’s full name is now Supreme Justice
Shabazz-Allah.
                                            -2-
court’s      conclusions     of   law       and   findings    of   fact.      For   the

following reasons, we affirm the trial court’s order.

                          I. Facts & Procedural History

       On    31    January   2011,      a    New    Hanover    County      Grand    Jury

indicted Mr. Allah on charges of (i) possession of marijuana;

(ii) possession with intent to manufacture, sell, and distribute

marijuana; (iii) keeping and maintaining a place for the purpose

of     keeping      and    selling      controlled      substances;         and     (iv)

possession of drug paraphernalia.                   On 12 July 2012, Mr. Allah

made a motion to suppress all evidence resulting from illegal

searches.         The following month, on 7 August 2012, Mr. Allah’s

case came on for trial in New Hanover County before Judge W.

Douglas Parsons.          The trial judge denied the motion to suppress

evidence.         The transcript of the hearing tended to show the

following facts.

       Kenneth Simma (“Agent Simma”) is a special agent with North

Carolina Alcohol Law Enforcement (“ALE”).                    Agent Simma testified

that    on   23    October   2010    at     approximately      9:00   p.m.,    he    and

another ALE agent,           Agent Price,          went to    a convenience        store

called The Caribbean Lion to conduct an inspection.                        When Agents

Simma and Price arrived, two or three patrons                         were “hanging

around” the main area of The Caribbean Lion, which consisted of
                                      -3-
a lobby, merchandise area, and a pool table.                    The patrons left

the   convenience    store     shortly    after     the   ALE    agents    entered.

Agent Simma testified that a juvenile male was working at the

cash register.       Once the agents identified themselves to the

juvenile male, he turned around and yelled, “Mom, the police are

here.”

      Shortly     thereafter,    Dianna     Shabazz-Allah        (“Mrs.     Allah”),

the permittee, introduced herself to Agent Simma and allowed

Agents Simma and Price to enter the cash register area.                           Mrs.

Allah was the person primarily responsible for running the store

at the time of the inspection.              Agent Simma testified that he

smelled    marijuana    upon    entering     the     convenience         store,    but

recalled    the    smell   growing       stronger    once       behind    the     cash

register.    Agent Simma explained to Mrs. Allah that he and Agent

Price were there to conduct an inspection, and asked Mrs. Allah

to turn over any marijuana.          Mrs. Allah said the smell came from

customers in the store.

      At that point, the two agents went with Mrs. Allah into a

kitchen area behind the cash register.              The room contained large

kitchen equipment, shelves on both sides, and a piece of plywood

in one corner.      According to Agent Simma, the odor of marijuana

was stronger near the plywood.             Agent Simma testified that the
                                        -4-
“piece of plywood opened up, and a little, four-year-old girl

came out.”      Mrs. Allah explained she needed to go into the room

behind the plywood because she had other children in there, and

consented to the ALE agents going into the room with her

     In the room behind the sheet of plywood, there were beds, a

portable shower and toilet, and a television.                       In the room,

another    young   male       was   watching   television.         The   smell     of

marijuana continued to grow stronger.                 From there, Agent Simma

asked   Mrs.    Allah    for    permission     to   enter     another    room,    her

bedroom, to which she consented.               Mr. and Mrs. Allah’s bedroom

contained a couch and liquor bottles sitting on a bar.

     The      agents    discussed     the   smell   of      marijuana    with    Mrs.

Allah, asking her to hand over any marijuana on the premises.

Mrs. Allah showed Agents Simma and Price an ashtray filled with

marijuana ashes.          At that point, Agent Simma also noticed a

small bag of marijuana sitting in Mrs. Allah’s open purse.                       Mrs.

Allah handed the officers the small bag of marijuana.

     For safety purposes, Agent Simma went to the front of the

convenience store and asked the juvenile male to lock the doors

because all the adults were in the back rooms.                  Agent Simma then

asked   him    about    any    potential    weapons    in    the   building.       At

first, the boy said there were no weapons, but then remembered
                                      -5-
that his father always carried a taser, though the boy did not

know the location of his father or the taser at that time.

      Once Agent Simma returned to the living area behind the

store, he leaned up against a bookshelf.                  As he did so, “the

bookshelf opened up and Mr. Allah came out.”                According to Mrs.

Allah,    Mr.   Allah    was   returning    from   his   full-time    job   as   a

certified nursing assistant.          Once Mr. Allah exited the hidden

doorway, Agent Simma asked if he had permission to search Mr.

Allah for safety purposes, to which Mr. Allah raised his hands.

Agent Simma found cash, a set of keys, and a small bag of

marijuana.

      Mr. Allah described the room hidden behind the bookshelf as

his “recording studio.”           Agent Simma requested permission to

search the recording studio, but Mr. Allah expressed concerns

about a search “messing up his recording equipment.”                   At that

point, Agent Simma contacted the Wilmington Police Department

for assistance in securing the location.             Once officers from the

Wilmington Police Department arrived, Mr. Allah said that “he

had   a   little   bit    of    marijuana,    he   used    it   for   religious

purposes”2 and then proceeded to hand Agent Simma two small bags



2
  Mr. Allah explained that he purchased approximately four ounces
of marijuana every month to use for religious purposes.       Mr.
Allah is a Rastafarian.    As part of his beliefs, he “inhales
                                    -6-
of   marijuana.     Although      Mr.     Allah     offered   this     evidence

voluntarily,   he   still   did   not     consent    to   a   search    of   the

recording studio.




marijuana as part of his spiritual growth, maintenance, and he
also has grown his hair for quite a long time as part of that.”
                                   -7-
    Since Mr. Allah again refused to consent to a search of the

recording studio, Agent Simma explained to Mr. and Mrs. Allah

“that they were not under arrest, but that for safety purposes,

because of the partitions or walls or whatever you want to call

them opening up and finding more hidden areas, that for safety

purposes, that they were going to be detained.”             After Agent

Simma detained Mr. and Mrs. Allah, he obtained a search warrant

from the magistrate’s office.      Agent Simma then read the warrant

aloud to Mr. Allah and gave him a copy of the warrant before

conducting a search of the recording studio.           In the recording

studio, Agent Simma found a large bag of marijuana, marijuana

seeds, two guns, rolling papers, and a digital scale.                 Agent

Simma arrested Mr. Allah and read him his Miranda rights.             After

Mr. Allah signed a statement describing his rights, Agent Simma

asked Mr. Allah if he was a convicted felon, to which Mr. Allah

replied “yes.”     Agent Price decided not to charge Mrs. Allah

because   she   agreed   to   surrender   her   ABC   permits   and    thus

surrender her right to sell alcoholic beverages.

    Mr. Allah was indicted on 31 January 2011.              On 12 July

2012, Mr. Allah filed a motion to suppress evidence obtained as

the result of an illegal search, which was denied on 10 August
                               -8-
2012 via written order.   In the trial court’s written order, the

trial court made the following findings of fact:

         4. Under N.C.G.S. Section 18B-502, North
         Carolina     Alcohol     Law     Enforcement
         (hereinafter ALE) officers or agents have
         the authority to investigate the operations
         of each licensed premises and to make
         inspections of each such premises which hold
         an Alcoholic Beverage Control (hereinafter
         ABC) permit.

         5.   Such   inspections  of  ABC   permitted
         premises include viewing the entire premises
         pursuant to the statute.

         6. That the ALE agents in this case made
         entry to the ABC permitted premises at 801
         Dawson Street in the City of Wilmington,
         North Carolina to conduct such an inspection
         of the entire premises pursuant to statute.

         7. That upon entry into these premises on
         October 23, 2010 at about 9:00 P.M., the ALE
         agents detected the odor of marijuana.

         8. After detecting the odor of marijuana,
         the agents began to conduct their inspection
         of the ABC permitted premises.

         9. As the agents went from place to place,
         such as in the side door, behind the cash
         register area enclosed by plexiglass, etc.,
         the odor of marijuana became stronger.

         10. That the agents asked for consent to go
         into other areas of the premises from the
         permit holder, the defendant’s wife Dianna
         Allah and such consent was granted.

         11. That as the agents went further towards
         the interior of the permitted premises which
         also contained the living quarters of the
                      -9-
defendant,   the   odor   of   marijuana    became
stronger.

12. The agents discovered, in plain view in
the purse of Mrs. Allah, a bag of marijuana.

13. Defendant came out of a hidden sliding
door and Agent Simma asked him if he could
pat him down for officer safety, and
defendant consented to such patdown verbally
and also indicated his consent by raising
his hands.

14. Agent Simma felt in defendant’s pants
pocket an object which appeared to him based
upon his training and experience to be a
controlled substance in a plastic bag.

15. Agent Simma then went into defendant’s
pocket and removed US currency and a plastic
bag containing marijuana.

16. Defendant and his wife, the ABC permit
holder, consented to the entry of the agents
into each part of the permitted premises
until Agent Simma asked him for consent to
search his recording studio located inside
the permitted premises.

17. Defendant then revoked his consent at
which time Agent Simma froze the scene and
detained defendant while he applied for a
search warrant for the entire ABC permitted
premises.

18. Agent Simma applied for and received a
search   warrant   for   said premises  at
approximately 12:35 A.M. on October 24,
2010, and returned to the premises and
executed said search warrant at about 1:12
A.M. on October 24, 2010.

19. Upon executing said search             warrant,
agents found more than one and             one-half
                              -10-
         ounces of marijuana as well as two firearms,
         a Mossberg shotgun and a .22 caliber rifle
         at the premises authorized to be searched
         pursuant to said search warrant.

         20. Upon finding these items of contraband,
         Defendant   was  placed   under  arrest  and
         advised of his rights under Miranda v.
         Arizona by use of a written rights form.

         21. Defendant waived his rights and agreed
         to speak to Agent Simma, and advised Agent
         Simma that he was in fact a convicted felon
         and that the marijuana found was his and
         that it was for personal use only for
         religious purposes.

The trial court then made the following conclusions of law:

         2. That the entry by the ALE agents into the
         ABC permitted premises at 801 Dawson Street
         in the City of Wilmington, North Carolina on
         October 23, 2010 was lawful and proper.

         3. That the entry by the ALE agents into
         each and every separate room or partition at
         the premises was by consent.

         4. That the agents continued to conduct
         their inspection of the above-referenced ABC
         permitted premises pursuant to statutory
         authority and with the consent of the permit
         holder, Dianna Allah.

         5. That the odor of marijuana detected by
         the ALE agents from their entry into the
         permitted premises and detected throughout
         the   inspection   of  such ABC   permitted
         premises gave the agents probable cause to
         conduct a warrantless search based upon
         exigent circumstances.

         6. Based upon the facts as found herein and
         based upon the totality of the circumstances
                                     -11-
            existing at the ABC         permitted premises at
            801 Dawson Street in       the City of Wilmington,
            the ALE Agents had          exigent circumstances
            present   entitling        them   to   conduct   a
            warrantless search of      the entire premises.

            7. That despite such probable cause and
            exigent circumstances, Agent Simma applied
            for and properly received a search warrant
            to conduct a complete search of said
            premises.

            8. That said warrant was issued based upon
            probable cause, and was legally and properly
            issued and was a valid search warrant.

            9. That the ALE agents had authority to
            enter into and inspect the entire ABC
            permitted premises pursuant to statutory and
            regulatory authority of the State of North
            Carolina.

            10. That the arrest of the Defendant                  was
            based   upon    probable   cause and                  was
            appropriate and with just cause.

            11. That the Defendant was properly given
            his rights under Miranda v. Arizona.

            12. That the statement given by Defendant
            thereafter   was  freely,   voluntarily  and
            understandingly given and that Defendant
            understood and voluntarily waived his rights
            and gave such statement of his own free will
            and without duress by anyone.

      The trial court concluded that the ALE officers inspected

the     premises    pursuant   to    statutory    authority,      pursuant      to

probable    cause    and   exigent   circumstances,    and    pursuant     to   a

valid    search    warrant.    Following    the   denial     of    Mr.   Allah’s
                                         -12-
motion, he entered an Alford plea on 8 August 2012 to felony

possession of marijuana, maintaining a place for keeping and

selling controlled substances, possession of drug paraphernalia,

and possession of a firearm by a felon.

       Mr. Allah filed a notice of appeal on 12 November 2012.3

Judge Parsons ruled the notice of appeal null and void on 13

November 2012 and stated that Mr. Allah did not appeal orally in

open   court.        Mr.    Allah   then   petitioned    this    court     to   grant

certiorari, which we granted on 24 June 2013.

                   II. Jurisdiction and Standard of Review

       This appeal lies of right pursuant to N.C. Gen. Stat. § 7A-

27 from a final judgment of the New Hanover Superior Court.                        Mr.

Allah argues on appeal that the ALE agents did not have the

authority to search the private dwelling areas at issue.

       Our   review    of    a   trial     court’s    denial    of   a    motion   to

suppress is “strictly limited to determining whether the trial

judge’s underlying findings of fact are supported by competent

evidence,     in    which     event   they      are   conclusively       binding   on

appeal, and whether those factual findings in turn support the

judge’s ultimate conclusions of law.”                 State v. Cooke, 306 N.C.

132, 134, 291 S.E.2d 618, 619 (1982).

3
  Mr. Allah’s notice of appeal was dated 18 August 2012, but was
not filed with the trial court until 12 November 2012.
                                          -13-
      A trial court’s findings of fact “are conclusive on appeal

if supported by competent evidence, even if the evidence is

conflicting.”       State v. Eason, 336 N.C. 730, 745, 445 S.E.2d

917, 926 (1994).         “At a suppression hearing, conflicts in the

evidence are to be resolved by the trial court.”                            State v.

McArn, 159 N.C. App. 209, 212, 582 S.E.2d 371, 374 (2003).

      “Under de novo review, we examine the case with new eyes.”

State v. Young, ___ N.C. App. ___, ___, 756 S.E.2d 768, 779

(2014).      “[D]e novo means fresh or anew; for a second time, and

an appeal de novo is an appeal in which the appellate court uses

the   trial    court’s     record    but    reviews     the   evidence       and   law

without deference to the trial court’s rulings.”                         Parker v.

Glosson, 182 N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007)

(quotation     marks    and    citations     omitted).        “Under    a    de    novo

review,      the   court      considers     the   matter      anew     and    freely

substitutes its own judgment for that of the lower tribunal.”

Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337, 678

S.E.2d 351, 354 (2009) (quotation marks and citation omitted).

                                   III. Analysis

      Both    parties      agree    the    inspection    of    the     retail      area

constituted a valid search pursuant to N.C. Gen. Stat. § 18B-

502(a) (2013).         Mr. Allah argues that the ALE officers had no
                                     -14-
authority to search the living quarters or recording studio.

For the following reasons, we disagree.

A. The Retail Area

    This Court has recognized that ABC permittees waive their

Fourth Amendment rights “to the limited extent of inspection by

officers    incident    to   enforcement    of   State   ABC   regulations.”

State v. Sapatch, 108 N.C. App. 321, 322–23, 423 S.E.2d 510, 512

(1992).    The relevant ABC statute reads:

            To procure evidence of violations of the ABC
            law,    alcohol    law-enforcement    agents,
            employees of the Commission, local ABC
            officers,   and   officers  of   local   law-
            enforcement agencies that have contracted to
            provide ABC enforcement under G.S. 18B-
            501(f) shall have authority to investigate
            the operation of each licensed premises for
            which an ABC permit has been issued, to make
            inspections that include viewing the entire
            premises, and to examine the books and
            records of the permittee.

N.C. Gen. Stat. § 18B-502(a) (emphasis added).

    Both parties contend the main issue is whether the living

area and recording studio connected to the ABC licensed premises

are considered part of the “entire premises.”                  However, this

Court does not need to reach that issue if the searches of the

living     area   and    recording     studio     were    lawful    searches

notwithstanding the interpretation of N.C. Gen. Stat. § 18B-

502(a).
                                        -15-
B. Living Area

       Generally      searches     of    a     private      residence    are     only

reasonable if supported by a valid warrant.                     Mincey v. Arizona,

437 U.S. 385, 393–94 (1978).            One exception to this general rule

is consent.         “Consent . . . has long been recognized as a

special situation excepted from the warrant requirement, and a

search is not unreasonable within the meaning of the Fourth

Amendment when lawful consent to the search is given.”                    State v.

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

       “[T]he question whether a consent to a search was in fact

‘voluntary’ or was the product of duress or coercion, express or

implied,   is   a     question    of    fact    to     be   determined    from    the

totality of all the circumstances.”                  Schneckloth v. Bustamonte,

412 U.S. 218, 227 (1973).           “As a general rule, the owner of the

property or the person who is apparently entitled to give or

withhold consent to search premises may give consent, and a

person who has common authority over the premises may also give

valid consent to search the premises.”                 State v. Early, 194 N.C.

App. 594, 602, 670 S.E.2d 594, 601 (2009).

       Here,   Mrs.    Allah     plainly      had   valid    authority    over    the

premises as Mr. Allah’s wife and the holder of the ABC permit.

Mrs.   Allah    testified      that     she    “felt     like    [she]   needed    to
                                        -16-
cooperate” with the authorities and Mr. Allah argues on appeal

that   Mrs.     Allah’s     feeling    rendered    the        consent     involuntary.

However,       competent    evidence     exists        via    both      Agent    Simma’s

testimony and Mrs. Allah’s testimony tending to show that Mrs.

Allah provided her consent to enter all portions of the premises

in dispute, with the exception of the recording studio area.

C. Recording Studio

       Defendant cites Terry v. Ohio, 392 U.S. 1 (1968) to argue

that     law    enforcement    officers        “must,        whenever     practicable,

obtain     advance    judicial    approval        of     searches       and     seizures

through the warrant procedure . . . .”                   Id. at 20.        Here, once

Mr. Allah denied consent to search the recording studio behind

the bookcase, Agent Simma took the proper action and obtained a

search warrant.           At the moment the consensual search ended,

officers froze the search and only continued once they obtained

a search warrant.           As Agent Simma obtained a search warrant

immediately after Mr. Allah objected to their search of the

recording studio, Mr. Allah’s argument that the search of the

recording studio was constitutionally invalid is without merit.

       As the ALE agents first obtained consent to search the

living    quarters    not    including    the     recording       studio        and   then

obtained a search warrant to search the recording studio, we
                             -17-
hold the trial court did not err in denying Mr. Allah’s motion

to suppress.

                        IV. Conclusion

    For the foregoing reasons, the trial court’s order is

    AFFIRMED.

    Judges STEELMAN and GEER concur.
