State v. Cooke
291 S.E.2d 618
N.C.
1982
Check Treatment
COPELAND, Justice.

We affirm the trial court’s entry of an order against the State suppressing the evidence seized from defendant’s suitcase.

The Court of Appeals corrеctly noted that the scope of appellate review of an order such as this is strictly limited to determining whether the trial judge’s underlying findings of fact are supрorted by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge’s ultimate conclusions of law. 54 N.C. App. at 35, 282 S.E. 2d at 803; see State v. Thompson, 303 N.C. 169, 277 S.E. 2d 431 (1981); State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966), cert. denied, 386 U.S. 911, 87 S.Ct. 860, 17 L.Ed. 2d 784 (1967); 4 Strong’s N.C. Index 3d §175 (1976). Indeed, an appellate court accords great deference to the trial court in this respect becаuse it is entrusted with the duty to hear testimony, weigh and resolve any conflicts in the evidence, find the facts, and, then based upon those findings, render a legal decision, in the first instance, as to whether or not a constitutional violation of some kind has occurred. As Justice Higgins stated, in State v. Smith, 278 N.C. 36, 41, 178 S.E. 2d 597, 601, cert. denied, 403 U.S. 934, 91 S. Ct. 2266, 29 L. Ed. 2d 715 (1971), the trial judge:

*135 sees the witnesses, observes thier demeanor as they testify and by reason of his more favorable position, he is given the responsibility of discovering the truth. The appellate court is much less favоred because it sees only a cold, written record. Hence the findings of the trial judge are, and properly should be, conclusive on appeal if they are supported by the evidence.

Our full and careful review of the record in the instant case convinces us that more than enough evidentiary suрport existed therein for the findings of fact made by Judge Burroughs, and it is equally plain that his legal conclusion was properly based upon, and entirely consistеnt with, those findings. In addition, we find no constitutional error in the judge’s conclusion “that the search of the suitcase of the defendant Cooke was unlawful.”

The governing premise of the Fourth Amendment is that a governmental search and seizure of ‍​‌‌​‌​​‌​‌‌​‌‌‌​​‌‌‌​​‌​​‌‌​​​​​​​​​‌​​​​​‌​​​‌​‍private property unaccompanied by prior judicial apprоval in the form of a warrant is per se unreasonable unless the search falls within a well-delineated exception to the warrant requirement involving exigent circumstаnces. Robbins v. California, 453 U.S. 420, 101 S. Ct. 2841, 69 L. Ed. 2d 744 (1981); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L.Ed. 2d 576 (1967); accord State v. Allison, 298 N.C. 135, 257 S.E. 2d 417 (1979); State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L. Ed. 2d 796 (1980). Hence, when the State seeks to admit evidence discovered by way of a warrantless search in a criminal prosecution, it must first show how the fоrmer intrusion was exempted from the general constitutional demand for a warrant. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L. Ed. 2d 685 (1969); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L. Ed. 59 (1951). In other words, an unlawful search does not become lawful simply because of the incriminating discoveries made thereby. State v. McCloud, 276 N.C. 518, 173 S.E. 2d 753 (1970); see 68 Am. Jur. 2d Searches and Seizures § 35 (1973).

In the case at bar, Judge Burroughs was called upon, as are we, to decide the reasonableness of the warrantless search and seizure in light of its individual attendant facts and circumstances. State v. Boone, 293 N.C. 702, 239 S.E. 2d 459 (1977). We *136 shall not debate the facts which he found and by which we are bound. It suffiсes to say that the State did not fulfill its burden, at the suppression hearing, of demonstrating with particularity a constitutionally sufficient justification for the ‍​‌‌​‌​​‌​‌‌​‌‌‌​​‌‌‌​​‌​​‌‌​​​​​​​​​‌​​​​​‌​​​‌​‍officers’ search of defendant’s suitcasе absent his consent or a duly obtained warrant after it was under their exclusive dominion and control. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L. Ed. 2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L. Ed. 2d 538 (1977); United States v. Presler, 610 F. 2d 1206 (4th Cir. 1979). Moreover, it appears that the Stаte essentially waived any challenge in this regard by failing to enter an appropriate exception and a specific assignment of error in the record to Judge Burroughs’ critical finding of fact that the officers had neither a warrant nor consent to search (number six, supra). Rule 10, N.C. Rules of Appellate Procedure. The natural and necessary implications of that finding were that the circumstances of the case were not “covered” by any exceptiоn to the Fourth Amendment and that only a warrant or defendant’s consent could have authorized the officers’ actions. Thus, as a practical matter, this finding supported Judge Burroughs’ conclusion of law and entry of the suppression order, almost by itself. If the State was indeed then relying upon some other constitutional theory or exception to justify the search, it should have preserved a direct, substantive objection to the all-inclusive nature of finding of fact number six.

Nеvertheless, the State presently attempts to do in this Court what it failed to do at the suppression hearing in the trial court, ie., justify this warrantless search on the ground thаt the protection of the Fourth Amendment does not apply. The State now contends that defendant abandoned the suitcase, by denying its ownership ‍​‌‌​‌​​‌​‌‌​‌‌‌​​‌‌‌​​‌​​‌‌​​​​​​​​​‌​​​​​‌​​​‌​‍and leaving it with the officers without returning to claim it, and that he thereby forfeited any reasonable expectation of privacy regarding its contents. This may well be. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L. Ed. 2d 387 (1978); State v. Jones, 299 N.C. 298, 261 S.E. 2d 860 (1980). However, the State’s argument is advanced much too late to afford it benefit on appeal.

It would clearly be unfair to the defendant for us either to consider this contention on the record as it stands, for we cannot determine the necessary underlying matters of fact, or to allow *137 the State a gratuitous second chance to develop a theory of abandonment, in opposition to the formerly contested motion to suppress, by remanding to the trial court for further hearing, findings of fact and conclusions of law upon the issue. We note that the United States Supreme Court has also reached such a conclusion upon very similar facts. Steagald v. United States, 451 U.S. 204, 208-11, 101 S.Ct. 1642, 1645-47, 68 L.Ed. 2d 38, 43-45 (1981). Moreover, any other holding would certainly seem to be incongruous and conflict with our analogous decision in State v. Hunter, 305 N.C. 106, 112, 286 S.E. 2d 535, 539 (1982), in which we said the following:

The theory upon which a case is tried in the lower court must control in construing the record and determining the validity of the exceptions. Further, a constitutional question which is not raised and passed upon in the trial court will not ordinarily be considered on appeal. State v. Dorsett, 272 N.C. 227, 158 S.E. 2d 15 (1967); State v. Grundler, 251 N.C. 177, 111 S.E. 2d 1 (1959), cert. denied, 362 U.S. 917, 4 L. Ed. 2d 738, 80 S.Ct. 670 (1960).
Our examination of this record discloses that defendant did not attack the admission of his confession into evidence on the ground that he was illegally arrested or “picked up.” The gravаmen of his ‍​‌‌​‌​​‌​‌‌​‌‌‌​​‌‌‌​​‌​​‌‌​​​​​​​​​‌​​​​​‌​​​‌​‍motion was the voluntariness of the confession and his challenge was based upon coercion. The evidence, the findings of the court, and the ruling of the court were obviously based on this theory.
A defendant, represented by counsel, cannot sit silently by at trial and object to the admission of evidence for the first time on appeal., See State v. Richardson, 295 N.C. 309, 326-27, 245 S.E. 2d 745, 765 (1978).
. . . [W]hen a confession is challenged on other grounds which are not clearly brought to the attention of the trial judge, a specific objection or explanation pointing out the reason for the objection or motion to suppress is necessary. State v. Richardson, supra. In order to clarify any misunderstanding about the duty of counsel in these matters, we specifically hold that when there is no objection to the admission of a confession or a motion to suppress a confession, counsel must specifically state to the court before voir dire *138 evidence is received the basis fоr his motion to suppress or for his objection to the admission of the evidence.

The basic rationale of Hunter applies equally well here. [What is sauce for the goose is sauce for the gander.] There is no affirmative indication in the record that the State intended to, or tried to, rely upon defendant’s lack of an expectation of privacy in the suitcase to defeat his Fourth Amendment claim at the suppression hearing in the lower court. In addition, the record does not disclose any type of objection or protest by the State to the trial court’s references in its order to the subject matter of the search as “defendant Cooke’s suitcase” and “the suitcase of the defendant Cooke.” (Emрhases ours). Such characterizations would, of course, be entirely inconsistent with a finding that defendant Cooke had abandoned ‍​‌‌​‌​​‌​‌‌​‌‌‌​​‌‌‌​​‌​​‌‌​​​​​​​​​‌​​​​​‌​​​‌​‍both the suitcase and his corresponding constitutional claim thereto. In sum, the State has “abandoned” the argument.

For the reasons stated, the decision of the Court of Appeals is affirmed. Judge Burroughs’ order to suppress the evidence seized from defendant’s suitcase shall remain in full force and effect.

Affirmed.

Justice CARLTON concurs in result.