82 N.C. App. 372 | N.C. Ct. App. | 1986
By his assignments of error, defendant presents two issues for our review. The first involves the legality of a warrantless search of defendant’s person and automobile at the time of his initial detention and the admissibility of articles seized during the course of that search. The other is whether defendant’s acquittal of the firearm possession charge operates as a bar to his prosecution upon the armed robbery charge. We answer each issue adversely to defendant and find no error in his trial.
At trial, the State offered evidence tending to show that on 10 December 1984 at approximately 12:30 a.m. a black male wearing a white sweater draped over his head entered the Seven-Eleven Food Store located on Avondale Drive in Durham, pointed a .38 caliber pistol at the clerk, Jimmy Eller bee, and demanded money. Mr. Ellerbee opened the cash drawer and placed the money, including a marked $2.00 bill, into a paper bag and gave it to the man who then turned and left the store. A witness observed him run from the store and enter a light blue compact car. The robbery was reported to Durham poLce officers, and a description of the robber and the automobile was broadcast over police radio.
John O’Neal, a night clerk at another Seven-Eleven store on North Duke Street, was informed of the robbery by a deputy
Shortly thereafter, police officers arrived at the store and were provided with a description of defendant, the automobile, and its license number. This information was broadcast over police radio. Within minutes, Officer J. L. Packard observed the light blue Volkswagen on Roxboro Street and stopped the car. Defendant was the driver and only occupant. Other officers arrived on the scene. Officer Packard told defendant why he had been stopped and that he would be detained on suspicion of armed robbery. Defendant consented to a search of his person by the officers, which revealed an amount of currency in his pocket. Officer Packard instructed another officer to search the passenger area of defendant’s automobile for weapons. A .38 caliber pistol was found underneath the driver’s seat. A check of the serial number of the pistol revealed that it had been reported as stolen. Defendant was placed under arrest for possession of a stolen firearm and was again searched. Currency, including the marked $2.00 bill taken during the robbery of the Avondale Drive Seven-Eleven store, was taken from defendant’s pocket.
Defendant did not testify but offered evidence through the testimony of several witnesses that he was at a private club at the time the robbery occurred.
Prior to trial, defendant moved to suppress the evidence seized during the search of his person and his automobile at the time of his initial detention and subsequent arrest. His first
It is now well established that a law enforcement officer may lawfully stop and detain a person where the officer has a reasonable suspicion, based upon personal observation or reliable information, that the person detained has committed a crime, even though the officer may not have probable cause to make a war-rantless arrest. Adams v. Williams, 407 U.S. 143, 32 L.Ed. 2d 612, 92 S.Ct. 1921 (1972); Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968); State v. Jackson, 302 N.C. 101, 273 S.E. 2d 666 (1981); State v. McZorn, 288 N.C. 417, 219 S.E. 2d 201 (1975), death sentence vacated, 428 U.S. 904, 49 L.Ed. 2d 1210, 96 S.Ct. 3210 (1976); State v. Adams, 55 N.C. App. 599, 286 S.E. 2d 371 (1982). The propriety of the stop and detention depends upon whether the officer acted reasonably in light of the facts known to him at the time. Adams v. Williams, supra.
The information known to Officer Packard as a result of receiving police broadcasts on his radio clearly justified his stop of defendant’s automobile and his detention of defendant for investigative purposes. Having lawfully stopped defendant, Officer Packard and the other officers could permissibly conduct a frisk of his person for weapons, Terry v. Ohio, supra, as well as the passenger area of his automobile where a weapon might be hidden if the officers had a reasonable belief, based on specific and articulable facts, that defendant posed a danger if permitted to reenter his automobile. Michigan v. Long, 463 U.S. 1032, 77 L.Ed. 2d 1201, 103 S.Ct. 3469 (1983). “When a search or seizure has as its immediate object a search for a weapon, ... we have struck the balance to allow the weighty interest in the safety of police officers to justify warrantless searches based only on a reasona
We conclude that Officer Packard acted reasonably in directing the other officers to conduct a search of defendant’s automobile. Defendant generally matched the description of the person who had committed an armed robbery some three hours earlier and was operating an automobile similar to that in which the robber had escaped. He and the automobile specifically matched the description provided by the clerk at the second convenience store, where defendant had exhibited suspicious behavior. When Officer Packard stopped defendant, defendant quickly got out of his car and allowed the car to roll back into the police car. Officer Packard described defendant’s conduct as “acting weird.” We hold these facts, taken together, sufficient to warrant “an articulable and objectively reasonable belief’ that defendant was potentially dangerous. See Michigan v. Long, supra at 1051, 77 L.Ed. 2d at 1221.
As soon as the search of the passenger area of the car revealed the .38 caliber pistol and the officers determined that it had been stolen, they had probable cause to arrest defendant, without a warrant, for possession of stolen property in violation of G.S. 14-71.1. See G.S. 15A-401(b)(2). Incidental to his lawful arrest, the officers were entitled to conduct a warrantless search of his person. State v. Hardy, 299 N.C. 445, 263 S.E. 2d 711 (1980). Neither the pistol, the currency, nor the sweater were obtained by the officers in violation of defendant’s Fourth Amendment rights. His first assignment of error is overruled.
By his second argument, defendant contends that his prosecution for robbery with a firearm was barred by his earlier acquittal of the charge of possession of a firearm by a felon. He contends that his acquittal of that offense determined the issue of his possession of a firearm on 10 December 1984 in his favor so as to collaterally estop the State from proving that he committed a robbery with the use of a firearm. We disagree.
The doctrine of collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 25 L.Ed. 2d 469, 475, 90 S.Ct. 1189, 1194 (1970). The prin
In Ashe v. Swenson, supra, defendant was charged with six separate offenses of armed robbery, all arising out of a single incident in which six participants in a poker game were robbed. The prosecution proceeded to trial on one charge, the robbery of one of the victims. Defendant Ashe was acquitted. Several weeks later, Ashe was brought to trial again, this time for the robbery of another of the participants in the poker game. The result of the second trial was a conviction. The Supreme Court reversed his conviction, holding that the “single rationally conceivable issue in dispute before the jury” in the first trial was Ashe’s identity as a perpetrator of the robbery. The jury having resolved that issue in defendant’s favor, the State was precluded from relitigating the issue in the second trial. Id. at 445, 25 L.Ed. 2d at 476, 90 S.Ct. at 1195.
The present case may be distinguished from Ashe. In Ashe, the State was solely responsible for the consecutive trials. In the present case, defendant moved to sever the charges, contending that a joint trial of the two charges would unduly prejudice him since the charge of possession of a firearm by a felon would require proof of a previous conviction of common law robbery. The State procured both indictments before placing defendant on trial for either charge and made no effort to use one of the charges as a “dry run” for the other. See Ashe, supra. In both Jeffers v. United States, 432 U.S. 137, 53 L.Ed. 2d 168, 97 S.Ct. 2207, reh’g denied, 434 U.S. 880, 54 L.Ed. 2d 164, 98 S.Ct. 241 (1977) and Ohio v. Johnson, — U.S. —, 81 L.Ed. 2d 425, 104 S.Ct. —, reh'g denied, -- U.S. ---, 82 L.Ed. 2d 915, --- S.Ct. --- (1984), the Supreme Court rejected claims of double jeopardy where separate, rather than consolidated, proceedings were held solely as a result of the defendant’s efforts. “[Wjhere the State has made no effort to prosecute the charges seriatim, the considerations of
No error.