State v. Beaver
246 S.E.2d 535
N.C. Ct. App.
1978
Check Treatment
MITCHELL, Judge.

We must initially consider whether the seizure of the shot glass by Officer Poovey was lawful. If it was not, the subsequent arrests of the defendants and searches of their persons and of the vehicle, based upon the fruits of the unlawful seizure, were not made lawful by the later determination that the powder contained in the shot glass was a type of amphetamine or by the finding of marijuana on the person of one of the defendants and in the automobile. The fruits of an unlawful search are not made lawful by the resulting discovery of contraband. Mapp v. Ohio, 367 U.S. *517 643, 6 L.Ed. 2d 1081, 81 S.Ct. 1684 (1961). Protection against unlawful searches and seizures extends to the guilty as well as to the innocent, and an unlawful search or seizure may not be made lawful by the resulting discovery or identification of incriminating evidence.

The State has not contended at trial or on appeal that the seizure of the shot glass containing the white powder residue was incident to a lawful arrest or pursuant to a search conducted under the authority of a search warrant. It is the State’s contention, however, that the shot glass containing the white powder residue was in plain view between the legs of the defendant Beaver and was properly seized under the “plain view” exception to the requirement of a search warrant. We do not agree.

We recognize that the constitutional guarantee against unreasonable searches and seizures does not apply where materials identifiable as contraband are fully disclosed and open to the eye and hand and, thus, in plain view. State v. Crews, 286 N.C. 41, 209 S.E. 2d 462 (1974), cert. denied, 421 U.S. 987, 44 L.Ed. 2d 477, 95 S.Ct. 1990 (1975). In the present case, Officer Poovey testified that he could readily see the shot glass containing the film of white powder substance between Beaver’s legs from the outside, of the vehicle at the time he lawfully stopped it due to the defective taillight. The mere fact that an officer does not have to search in order to see an item does not entitle him to seize that item. Any inquiry into the lawfulness of the seizure must go further, as the limits of reasonableness which are placed upon searches are equally applicable to seizures. Whether a seizure is reasonable, and therefore constitutional, is to be determined upon the facts giving rise to the individual case. 11 Strong, N.C. Index 3d, Searches and Seizures, § 1, p. 485. An object in plain view may be seized in a constitutional manner only when the officer seizing it has probable cause to believe that the object constitutes contraband or evidence of a crime. See Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564, 91 S.Ct. 2022, reh. denied, 404 U.S. 874, 30 L.Ed. 2d 120, 92 S.Ct. 26 (1971).

Here, Officer Poovey observed only a shot glass containing a film of a white substance appearing to be some type of white powder. We cannot say that sighting such a glass, nothing else appearing, gave rise to a reasonable belief that the white powder *518 substance was contraband or evidence of a crime. We note that Officer Poovey did not testify that, by virtue of his training as a law enforcement officer or his familiarity with controlled substances and those using them in his community, he had any particular reason to know that shot glasses or other types of glasses were commonly used in connection with the use or sale of narcotics in such manner as to leave a similar white film residue. The State could not contend, therefore, in this case that Officer Poovey was possessed of special training or experience in the area of the sale or use of narcotics which could have caused him to form a reasonable belief, and thereby probable cause to believe, that the white powder residue film in the shot glass indicated that the powder was probably contraband or evidence. A good faith belief is not enough to constitute probable cause, unless the “ ‘faith is grounded on facts within knowledge of the [officer] which, in the judgment of the court, would make his faith reasonable.’ ” Carroll v. United States, 267 U.S. 132, 161-162, 69 L.Ed. 543, 555, 45 S.Ct. 280, 288 (1925).

Additionally, in the present case, Officer Poovey did not testify that he formed a belief, reasonable or otherwise, that the white powder residue in the shot glass was contraband or evidence of a crime, until a field test was performed upon the residue after the glass had been seized. Officer Poovey testified only that, upon seeing the glass, he realized that it could have been a controlled substance. Later in his testimony he stated that, at the time he seized the glass, he thought it might contain a controlled substance. Officer Poovey did not testify, and the trial court did not conclude in its order, that he had reasonable grounds to believe or in fact believed that the white powder film in the shot glass was contraband or evidence, and the evidence would not have supported such finding. As Officer Poovey had neither a good faith belief that the white powder residue was contraband or evidence or reasonable grounds to form such a belief, he did not have probable cause to seize the shot glass, even though it was in plain view. The trial court therefore erred in admitting the shot glass and its contents into evidence. Chambers v. Maroney, 399 U.S. 42, 26 L.Ed. 2d 419, 90 S.Ct. 1975, reh. denied, 400 U.S. 856, 27 L.Ed. 2d 94, 91 S.Ct. 23 (1970); Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280, 39 A.L.R. 790 (1925).

*519 We do not think that our opinion in State v. Wolfe, 26 N.C. App. 464, 216 S.E. 2d 470, cert. denied, 288 N.C. 252, 217 S.E. 2d 677 (1975), may be taken as requiring a different conclusion than that we have reached. In Wolfe we held a “plain view” seizure of a transparent plastic bag containing small tin foil packets to be constitutional. The sight of such packets together and in such a container would, we feel, cause any individual with training in the field of police science or experience in police work to form a reasonable belief that, when found in a motor vehicle, they contained a controlled substance. It is a fact of general knowledge or, in any event, a fact of police science so notoriously true as not to be subject to reasonable dispute that those who sell and use heroin and other controlled substances package them in this manner with great frequency. We, like the trial courts, may take judicial notice of such facts. 6 Strong, N.C. Index 3d, Evidence, § 3, p. 12. In the present case, however, we cannot say that a white powder residue in a glass gives rise to facts of general knowledge or facts of a particular science so notoriously true as to support a reasonable belief on the part of the seizing officer that he was seizing contraband or evidence of a crime. We think that, absent specific testimony indicating particular knowledge on the part of the officer making a belief that the white powder in the glass was contraband and establishing the basis for that knowledge, a white powder residue in a glass must be taken as equally indicative of lawful substances and conduct as of contraband or unlawful conduct. Such would give rise to a mere suspicion, which will not support a finding of probable cause. Wong Sun v. United States, 371 U.S. 471, 9 L.Ed. 2d 441, 83 S.Ct. 407 (1963). We find that Wolfe is, therefore, distinguishable from the present case and neither required nor permitted the admission of the shot glass or its contents into evidence.

The arrest of the defendants and the later search of their persons and vehicle clearly arose from and were based upon the information obtained by virtue of the unlawful seizure of the shot glass and its contents. The evidence obtained by virtue of these arrests and searches was the product of actions not authorized by law and, thus, “fruit of the poisonous tree” which should have been excluded from evidence. See Wong Sun v. United States, 371 U.S. 471, 9 L.Ed. 2d 441, 83 S.Ct. 407 (1963), and Mapp v. Ohio, 367 U.S. 643, 6 L.Ed. 2d 1081, 81 S.Ct. 1684 (1961).

*520 For the reasons previously set forth, we hold that, as to all charges, each defendant is entitled to and must be granted a

New trial.

Judges Parker and Hedrick concur.