41 N.C. App. 380 | N.C. Ct. App. | 1979
Lead Opinion
The issue presented in this case is whether the trial court erred in holding that the warrantless search of defendant Dunn’s
The probable cause with exigent circumstances exception was first enunciated in Carroll v. United States, supra. In Carroll, officers stopped a vehicle on a highway running between Grand Rapids and Detroit, Michigan. Detroit was known as a major source of illegal liquors. Two and one-half months earlier, these officers attempted to purchase illegal liquor from the defendants. They met with the defendants to arrange the purchase but the defendants never delivered the merchandise. The officers did, however, notice the car defendants were driving. A few days later, they saw the defendants driving this same car on the highway between Grand Rapids and Detroit. They followed the car but the defendants got away. Over two months later they again saw the car on this same highway. The officers stopped the car and their search revealed illegal liquor. The Supreme Court upheld the validity of this search stating that
“if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is*384 subject to seizure and destruction, the search and seizure are valid.” Carroll v. United States, supra, at 149.
The Court made a distinction between goods subject to forfeiture stored in a dwelling house and like goods concealed in a movable vehicle where they could quickly be placed out of reach. In the latter situation, vehicles may be searched and goods seized without a warrant in circumstances which would require a warrant if a dwelling were to be searched. See Chambers v. Maroney, supra.
We first consider whether the officers in this case had probable cause to conduct the search of Dunn’s car. In Carroll, the Supreme Court stated that probable cause exists “ ‘[i]f the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed.’ ” (Citations omitted.) Carroll v. United States, supra, at 161. The Court noted that Detroit was a major supply area for illegal liquor, the officers were regularly patrolling that highway, they knew or had convincing evidence to make them believe that defendants were engaged in selling illegal liquor, and they had seen defendants in the same car on the highway over two months before the search in question. They held these facts and circumstances sufficient to find probable cause.
A situation similar to that in Carroll occurred in Brinegar v. United States, 338 U.S. 160 (1949) where defendant’s car was searched and illegally imported liquor was found. The officers knew defendant had a reputation for hauling liquor, they knew he had been arrested five months earlier for hauling liquor and they had seen him load it on two other occasions. At the time of the search, defendant was driving on a highway between a known supply area and a likely market. Again, the Court held that these facts were sufficient to support a finding of probable cause. See also United States v. Pretzinger, 542 F. 2d 517 (9th Cir. 1976).
Our Supreme Court has held that observation of certain types of non-transparent containers, generally used to hold contraband, is one factor affording probable cause that the vehicle carrying such a container is transporting contraband. In State v. Simmons, 278 N.C. 468, 180 S.E. 2d 97 (1971), two deputy sheriffs, pursuant to a phone call, located defendant’s car parked in an alley. While standing on the sidewalk, one of the deputies saw a
In the present case, the facts and circumstances known to the officers at the time of the search provided probable cause for them to believe that Dunn’s car contained marijuana. Weather-ington knew that Chambers was dealing in large quantities of marijuana. Two and one-half months earlier, Weatherington witnessed a sale between Chambers and an informant in which a quarter of a pound of marijuana in a plastic bag was purchased. At that sale, Chambers was driving a gray Ford pickup truck. Just prior to the search in question, the officers observed Chambers engaged in what any reasonably intelligent narcotics officer, under all the circumstances, would recognize as suspicious behavior. They saw Chambers, a known drug dealer, drive to the lot of a gasoline service station in the same truck he had used in earlier drug sales. Chambers conducted no business with the station but was met, as if by design, by Dunn who emerged from a parked vehicle and allowed Chambers to inspect what he had been carrying in his right hip pocket. Hicks waited in the Dunn car. Some agreement having obviously been reached, both vehicles were then moved to the parking lot of an automobile agency. No business was conducted with the automobile agency. The Dunn car was left there, and the trio then departed in the same truck previously used by Chambers in his drug traffic. Weatherington attempted to follow but lost the trail. The Chambers truck was subsequently located, as expected, at the 113 East Ninth Street residence frequented by Chambers. The truck was then observed as it left that address and returned at nearly midnight to the automobile agency where the trio had left the
We now consider whether there were exigent circumstances making it permissible to search the car before obtaining a warrant. Defendants contend that since a magistrate was only a mile and a half away, Weatherington had the car keys, there were several officers present, the defendants did not attempt to flee, and the car was parked in an automobile agency parking lot instead of on the highway, the officers should have held the car and obtained a search warrant. In Chambers v. Maroney, supra, the Supreme Court stated
“For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” Chambers v. Maroney, supra, at 52.
Thus, that the officers could have seized and held the car and then obtained a warrant, does not invalidate this search. The course the officers elected to follow was reasonable under the Fourth Amendment. See also State v. Allen, supra. Furthermore, it is of little consequence that the car was parked in an automobile agency lot instead of on a public street. In Cardwell v. Lewis, 417 U.S. 583 (1974), the seized vehicle was parked in a public parking lot. The defendant had been arrested and the police held the car keys and parking stub. Nevertheless, the Court saw no legal significance in these facts to distinguish the situation from Chambers. See also Texas v. White, 423 U.S. 67 (1975); State v. Jones, 295 N.C. 345, 245 S.E. 2d 711 (1978). Although Dunn’s car was not on the street immediately prior to the search, this does not mean that it would not be driven off if the police had left to obtain a search warrant.
We are not unaware of the decision of the Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443 (1971), but conclude that
Having concluded that the search was proper, we need not consider the standing of Chambers and Hicks to contest the search of the Dunn vehicle. See Rakas v. Illinois, 99 S.Ct. 421 (1978).
The order allowing the motions to suppress is reversed. The cases are remanded for trial.
Reversed and remanded.
Concurrence Opinion
concurring.
I concur in the scholarly opinion of Judge Vaughn, writing for the Court. In addition, I find the trial court erred in sustaining the motions to suppress, for the reason that neither Chambers nor Hicks had any standing to question the validity of the search of the Chevrolet car in the possession of Dunn and belonging to his mother. They had no legitimate expectation of privacy with respect to the Dunn automobile. Katz v. United States, 389 U.S. 347, 19 L.Ed. 2d 576 (1967). Chambers and Hicks have not asserted any property nor possessory interest in the Dunn car, and by their plea of not guilty deny any interest in the contraband seized. Fourth Amendment rights are personal rights which
The authorities on this subject have been recently analyzed in Rakas v. Illinois, --- U.S. ---, 58 L.Ed. 2d 387 (1978). North Carolina has long followed the results reached in Rakas. See State v. Eppley, 282 N.C. 249, 192 S.E. 2d 441 (1972); State v. Ray, 274 N.C. 556, 164 S.E. 2d 457 (1968); State v. Craddock, 272 N.C. 160, 158 S.E. 2d 25 (1967); State v. Hamilton, 264 N.C. 277, 141 S.E. 2d 506, cert, denied, 384 U.S. 1020 (1965); State v. Jennings, 16 N.C. App. 205, 192 S.E. 2d 46 (1972).