UNPUBLISHED OPINION
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
McGEE, Chief Judge.
Keodaoheaung Phongsavanh ("Defendant") appeals his conviction of trafficking by transport of methamphetamine, possession with intent to sell or deliver methamphetamine, possession with intent to sell or deliver marijuana, maintaining a store for controlled substances, and possession of marijuana. We find Defendant has failed to preserve the issues presented for review and his appeal must be dismissed.
I. Background
Officer C.S. Bradshaw ("Officer Bradshaw"), of the Greensboro Police Department ("GPD"), received information from a confidential source on 6 March 2014 that methamphetamine and marijuana were being sold from a back room of Phongsavanh Oriental Market ("Phongsavanh Market") in Greensboro, North Carolina. The same confidential source also revealed that an illegal gambling operation was being operated from a back room in Phongsavanh Market. Officer Bradshaw received information from a second confidential source on 3 March 2014, who told Officer Bradshaw that he had purchased a distributable amount of methamphetamine from Defendant and Defendant's sister, Sengalone Phongsavanh, at Phongsavanh Market between 1 March and 6 March 2014.
In response to this information, Officer Bradshaw, along with a team of other GPD officers, began surveillance of Phongsavanh Market on 5 March 2014.1 On that day, Officer Bradshaw observed a vehicle arriving at Phongsavanh Market. Officer Bradshaw watched as a man ("the passenger") exited the passenger side of the vehicle, entered Phongsavanh Market where he remained for eight minutes, and then returned to the vehicle carrying nothing in his hands. After the vehicle left Phongsavanh Market, Officer Bradshaw performed a traffic stop on the vehicle. A subsequent search of the vehicle revealed methamphetamine and marijuana. The passenger admitted having purchased the illegal substances inside Phongsavanh Market, stating that he purchased them from Defendant's sister, Sengalone Phongsavanh. However, he did not indicate whether he had purchased the narcotics just before the traffic stop, or at some earlier time.
During the course of their investigation, Officer Bradshaw and other GPD officers involved in the surveillance discovered Defendant lived about three blocks from Phongsavanh Market, and began surveillance of Defendant's residence. On 6 March 2014, officers observed Defendant leave his residence and place a bag into the trunk of his vehicle. Officers observed Defendant arrive at Phongsavanh Market, retrieve the bag from the trunk of his vehicle, and enter Phongsavanh Market. From his training and experience as a police officer, Officer Bradshaw believed the bag contained narcotics.
Based upon information obtained from the two confidential sources and the traffic stop outside Phongsavanh Market, a search warrant was obtained by Officer Bradshaw on 11 March 2014, allowing officers to search, inter alia, Defendant's person, several vehicles belonging to Defendant and his family, and Phongsavanh Market. A search of Phongsavanh Market revealed marijuana and drug paraphernalia, but no methamphetamine was found. A search of a Honda Civic located in the parking lot of Phongsavanh Market resulted in seizure of marijuana and a plastic container of methamphetamine. Officers also found drug paraphernalia and methamphetamine at Defendant's residence.
Defendant was indicted on 5 May 2014 for trafficking by transporting methamphetamine, possession with intent to sell or deliver methamphetamine, conspiracy to traffic in methamphetamine, trafficking methamphetamine, possession with intent to sell or deliver marijuana, maintaining a dwelling for keeping and selling a controlled substance, and possession of marijuana. The charge of conspiracy to traffic in methamphetamine was later dismissed.
Defendant filed a motion to suppress on 10 October 2014, seeking exclusion of the evidence seized from Phongsavanh Market and from the Honda Civic. After hearing evidence and considering arguments by counsel for Defendant and the State, the trial court verbally denied Defendant's motion to suppress. The trial court made seventeen verbal findings of fact, and concluded as a matter of law that the "search warrant involved in this case was based on adequate probable cause and was based on the totality of the circumstances," and that "the evidence obtained as a result of that search was properly seized." The trial court denied Defendant's motion to suppress.
Following the trial court's denial of Defendant's motion to suppress, the case proceeded to trial. During the trial, the illegal substances found as a result of the search of Phongsavanh Market and the Honda Civic were offered into evidence by the State, without any objection from Defendant, and admitted by the trial court. A jury found Defendant guilty of trafficking by transport between 28 grams and 199 grams of methamphetamine; possession with intent to sell and distribute methamphetamine; trafficking by possession between 28 grams and 199 grams of methamphetamine; possession with intent to sell and distribute marijuana; maintaining a store for controlled substances; and possession of more than 1.5 ounces of marijuana. Defendant appeals.
II. Preservation of Issues for Appellate Review
Defendant argues the trial court erred by: (1) admitting evidence that was not presented to, or considered by, the magistrate issuing the search warrant to determine the existence of sufficient probable cause; (2) allowing certain testimony regarding Defendant's actions at the suppression hearing, when that evidence was not considered by the magistrate issuing the search warrant; and (3) finding that Officer Bradshaw's affidavit was sufficient to establish probable cause for the search, that the evidence obtained as a result of the search was properly seized, and that Defendant's rights were not violated.
Before considering the merits of Defendant's appeal, we must first determine whether the issues have been preserved for our review. Our Supreme Court has held that a pretrial motion to suppress is a type of motion in limine, State v. Golphin, 352 N.C. 364, 405, 533 S.E.2d 168, 198 (2000), and a "motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial." State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam) (citations omitted). When a defendant has "failed to preserve issues relating to [a] motion to suppress, we review for plain error." State v. Waring, 364 N.C. 443, 468, 701 S.E.2d 615, 631-32 (2010). However, to be entitled to plain error review, a defendant must "specifically and distinctly contend that the alleged error constituted plain error." State v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (citations and internal quotation marks omitted); see also N.C.R. App. P. 10(a)(4).
In the present case, the record shows Defendant filed a pretrial motion to suppress, seeking suppression of the evidence seized from Phongsavanh Market and the Honda Civic. However, the motion to suppress, and the trial court's ruling on the motion, did not preserve for our review the issue of the admissibility of the evidence. Hayes, 350 N.C. at 80, 511 S.E.2d at 303. A "pretrial ruling on a motion to suppress evidence is preliminary. Because the evidence may be different when offered at trial, a party has the responsibility of making a contemporaneous objection" at trial. Waring, 364 N.C. at 468, 701 S.E.2d 615, 631. At trial Defendant failed to make a contemporaneous objection to the evidence that was recovered as a result of the search of Phongsavanh Market and the Honda Civic. Accordingly, Defendant has waived his right to appellate review of the issues raised in this appeal because he failed to object to the evidence when offered at trial. Hayes, 350 N.C. at 80, 511 S.E.2d at 303.
While this Court may review unpreserved issues relating to a motion to suppress for plain error, Defendant, in his brief, did not specifically and distinctly contend that the alleged errors constituted plain error, as required by Lawrence and N.C.R. App. P. 10(a)(4). Because "[D]efendant did not `specifically and distinctly' allege plain error as required by North Carolina Rule of Appellate Procedure [10(a)(4)], [D]efendant is not entitled to plain error review of th[ese] issue[s]." State v. Dennison, 359 N.C. 312, 312-13, 608 S.E.2d 756, 757 (2005) (citing N.C.R. App. P. 10(c)(4)). We must therefore dismiss Defendant's appeal.
DISMISSED.
Judges HUNTER, JR. and DILLON concur.
Report per Rule 30(e).
