Family questions search, suspect pleads
Published 8:45 am Thursday, June 2, 2016
It took hours to select a jury for a case they ended up not getting to decide in Davie Superior Court last week.
Roy Lee Arnold, 30, of 138 Harding St., Mocksville, was charged with felony probation violation, felony possession with intent to manufacture/sell/deliver marijuana, felony possession with intent to manufacture/sell/deliver cocaine, possession with intent to manufacture/sell/deliver a schedule I controlled substance, felony maintaining a vehicle/dwelling/place for a controlled substance, possession of marijuana paraphernalia, felony manufacture/sell/deliver/possess a controlled substance within 1,000 feet of a school, and felony habitual felon following a search of the home he rented with his mother Dec. 17, 2014.
During a hearing to determine if evidence from the search was admissible during trial, the jury was seated outside the courtroom. Mandy Murphy, Arnold’s probation officer, testified warrantless searches of the home, part of Arnold’s probation terms, were performed once a month, but on that day, a quarterly search by the probation unit was being performed. Law enforcement was asked to assist in the search and a K9 officer was used.
Murphy, chief probation officer John Bivins, and law enforcement arrived at the home around 4 p.m., she said. For the protection of those inside, which included Arnold, Arnold’s mother, Alberta, and children belonging to Arnold’s sister, Stephanie Fortune, Murphy had them all go outside, since a K9 was being used, she said.
“At one point,” she testified, “Roy went back in, and I had him step back out, and I went outside, too.”
The handler of the K9 told Murphy the dog had “hit” in two areas in Arnold’s room, and a search of the areas turned up a Sunkist drink can with a false top. Inside the can were pills, a white powdery substance, a green leafy substance, a crystal-formed rock, and a dark brown substance, all individually wrapped, Murphy said.
Also found were men’s and women’s jewelry, a camcorder and other electronics, and a knife and brass knuckles under a pillow on Arnold’s bed.
Arnold was arrested. Murphy testified she was back home that day by 5:45 p.m.
But Alberta Arnold and Stephanie Fortune told different stories about that day.
Alberta said she was in the house when law enforcement “come right up in the house. They just opened the door and came up on in there, so many of them. They told me to get out and they searched the house so long it was pitiful.”
She said they were there for four hours, made her stand out in the cold in the short-sleeved shirt she was wearing when they got there and wouldn’t let her go to the bathroom until she begged and they finally gave in. When she went to the bathroom, she said, they stood outside the door.
Fortune said when she got to the home to pick up her children, her brother was outside in handcuffs. She wanted to know what was going on and said Murphy tried to explain it to her, but a male officer came over and said, “She don’t have to explain nothing to you.”
Both Alberta and Fortune testified they knew Arnold was on probation and that warrantless searches were part of it, but Fortune said her understanding was Murphy was the one who was supposed to conduct the search and she was outside while the inside was being searched. She also said items were taken from the house and neither she nor Arnold’s mother were told what the items were.
When questioned about the search by Arnold’s attorney Chad Freeman, Murphy said Arnold is not usually sent outside during the monthly walk-through searches but since it was a quarterly search with law enforcement, including a K9, for everyone’s safety, Arnold was sent outside.
“The quarterly searches as a unit are required by the department. They aren’t defined by the Department of Corrections; they’re just a department thing,” she testified.
Freeman told Judge Mark Klass the search was not a reasonable search, “because they extracted everyone from the abode. It was unlawful. When they removed everyone, we had a search that turned into an illegal search.”
He said four hours was above a reasonable amount of time, and there is a requirement that a receipt detailing items seized be given to the person on probation or someone at the home and that wasn’t done. (Murphy had testified someone at the sheriff’s department had the list of items seized.)
Freeman also said there is a requirement for a knock at the door or announcement, and neither of those occurred. Further, he said, probationary searches are permissible if they are “pursuant to agency guidelines. A local custom does not arise to agency guidelines.”
He cited case law to support his arguments. Assistant DA Karen Biernacki had her own case law argument ready and cited a 2001 case, Illinois v. McArthur, that addressed a “reasonable amount of time.”
She also said it is “entirely reasonable” for a probation officer to ask for the assistance of law enforcement.
During a brief afternoon recess, Fortune cried and clung to her brother, and when the recess was over, Freeman told Klass that Arnold had decided to change his plea to no contest instead of not guilty.
Arnold had previous drug convictions in 2007 and 2011 and was convicted of felony possession of stolen goods in 2014. He was on probation for felony breaking and entering and possession of stolen goods when the search was conducted.
Klass sentenced Arnold to 58 to 82 months with credit for any time he served awaiting trial. His probation was revoked, so the prior sentence will run concurrently with the remainder of the original 10 to 21 month sentence. Arnold must obtain a substance abuse assessment and treatment and because he can read and write only to an eighth grade level, Klass ordered him to obtain a GED while he is in prison.
Work release was recommended.
Arnold must pay a $600 lab fee and a $1,200 attorney fee.