52 N.C. App. 349 | N.C. Ct. App. | 1981
The order denying defendant’s motion to suppress is bottomed on the conclusions that the search of the truck driven by defendant was incident to a lawful arrest for driving under the influence, that the paper bag containing marijuana was in plain view, or “plain odor,” and that
[t]here is no reasonable expectation of privacy in placing a bag under the seat of a vehicle and then driving the vehicle in such a way that is quite likely that the bag will roll out or slide out and be in plain view on the floor of the vehicle.
We agree with the trial judge that if the officer had a right to search the vehicle incident to the arrest for driving under the influence, he had the right to seize and search the paper bag con
The problem in the present case is that, in our opinion, the evidence and the findings do not support the conclusion that the officer had the right to search the vehicle incident to a lawful arrest. When an arrest is made, it is reasonable for the arresting officer to search without a warrant the suspect and the area within his immediate control for weapons and evidentiary items which may be concealed or destroyed. State v. Hunter, 299 N.C. 29, 261 S.E. 2d 189 (1980), citing Chimel v. California, 395 U.S. 752, 23 L.Ed. 2d 685, 89 S.Ct. 2034 (1969). The evidence here discloses that defendant had been arrested and placed in the officer’s patrol car and the officer returned to the vehicle for the purpose of conducting a search of the vehicle for alcoholic beverages. The evidence clearly does not support the finding that “when he went to the pickup truck incidental to the arrest ... , he smelled an odor of marijuana which appeared to be stronger on the driver’s side.” The officer testified:
I went to secure the vehicle and to examine it for any evidence of driving under the influence, for any alcoholic beverage. I went to the truck and opened the passenger’s door.
As I open [sic] the door there was a strong odor of marijuana coming from the vehicle. As I secured the vehicle I was searching for the alcoholic beverage. There was a stronger odor on the driver’s side of the vehicle.
Q. Where were you when you first detected the odor of marijuana?
A. When I opened the truck door.
*353 I do not recall if the window was open. I did not ask the defendant for consent to go into the truck. . . .
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I do not recall looking through either window when I approached the vehicle. . . . Immediately, after approaching the passenger side of the vehicle, I opened the door.
All during the time I was conducting my search, the defendant was in the rear of my police car.
While we realize that the officer would have the right under some circumstances to get into, secure, and even operate the motor vehicle, such was not the situation depicted by the evidence in the present case. The officer’s testimony discloses that he was engaged in an unlawful search when the odor of marijuana was first detected. The evidence in the record simply does not support the critical findings and conclusion, and thus the order denying defendant’s motion to suppress must be reversed and the cause remanded to the superior court where defendant will be allowed to withdraw his plea of guilty and enter a plea of not guilty. Since this case was consolidated for the purposes of judgment with the driving under the influence case, the judgment entered on the two cases will be vacated, and defendant will be re-sentenced under the driving under the influence case.
Reversed, vacated, and remanded.