State v. Supreme Justice Allah

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.