State v. Mitchell
266 S.E.2d 605
N.C.
1980
Check Treatment
HUSKINS, Justice.

Did the trial court err in granting defendant’s motion to suppress the physical evidence on the ground that there was no prob *309 able cause for the warrantless search and seizure of defendant’s old white Pinto and its right rear tire? For reasons which follow, we answer in the affirmative.

It is well settled that evidence of crime falling in the plain view of an officer who has a right to be in a position to have that view is subject to seizure and may be introduced into evidence. State v. Mathis, 295 N.C. 623, 247 S.E. 2d 919 (1978); State v. Jones, 295 N.C. 345, 245 S.E. 2d 711 (1978), and cases cited therein. A car reasonably believed to be the fruit, instrumentality or evidence of a crime can be seized whenever found in plain view. Accord, North v. Superior Court, 8 Cal. 3d 301, 104 Cal. Rptr. 833, 502 P. 2d 1305 (1972); State v. Young, 21 N.C. App. 369, 204 S.E. 2d 556, cert. denied, 285 N.C. 595 (1974). See generally, W. LaFave, Search & Seizure § 7.3(a) (1978).

Neither party disputes the finding of the trial court to the effect that “the initial examination of the vehicle at the residence by law enforcement officers based upon the consent of the owner of the residence, was in all respects proper and did not constitute a constitutionally impermissible search.” This finding is supported by competent evidence and establishes beyond dispute that the white Pinto was in the plain view of officers who had a right to be in the place where the view was taken. The only issue in dispute is whether the officers had probable cause to believe that the white Pinto had been utilized in the commission of the armed robbery or itself constituted evidence of the crime. If probable cause existed, then the warrantless seizure was legal since the vehicle was unquestionably in the plain view of the officers.

Probable cause to seize, in the setting of this case, may be defined as a reasonable ground to believe that the object seized will aid in the apprehension or conviction of the offender. State v. Riddick, 291 N.C. 399, 230 S.E. 2d 506 (1976). “ ‘To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilt, but it must be such as would actuate a reasonable man acting in good faith. . . . The existence of “probable cause” ... is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular cir *310 cumstances and the particular offense involved.’ ” State v. Harris, 279 N.C. 307, 182 S.E. 2d 364 (1971), quoting 5 Am. Jur. 2d, Arrest §§ 44, 48.

Here, the totality of the circumstances would lead a reasonably prudent man to believe that the old white Pinto had been used by defendant in the bank robbery and that said car, particularly its right rear tire, would aid in the apprehension or conviction of defendant Mitchell for armed robbery. Prior to viewing the vehicle in question, the officers were aware that a Quik Stop store had been robbed on 16 January 1979, and a First-Citizens Bank had been robbed on 22 January 1979; that an old model white Pinto car had been used in both robberies; that a man whose description matched that of defendant Mitchell had been involved in both robberies; that defendant Mitchell drove an old model white Pinto. The officers also knew that tire impressions had been made in the area where an older model white Pinto had been seen parked prior to the bank robbery. The impressions of the right rear tire had shown a distinct type tread with hexagons in it. On the day the seizure occurred, the officers received information that Mitchell might be living in Red Springs at Route 4, Box 185L. The officers proceeded to that address. Upon arrival they saw an old model white Pinto parked at the rear of the house. Mr. Mitchell was not at the house. The owner of the house indicated that the Pinto belonged to Mitchell; that if the car was involved in any trouble the officers were free to take it away. Upon examining the Pinto, the officers discovered that the right rear tire was different from the others and had hexagons in its tread pattern.

The above circumstances would lead a reasonably prudent officer to believe that the white Pinto had been used by Mitchell in two robberies and that the vehicle itself constituted criminal evidence which might lead to the apprehension and conviction of Mitchell. Given such probable cause, it follows that the war-rantless seizure was legal, since the vehicle was unquestionably in plain view of the officers.

The plurality opinion in Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564, 91 S.Ct. 2022 (1971), expressed the view that the plain view doctrine was applicable only to the inadvertent discovery of incriminating evidence. Although he concurred in judgment, Justice Harlan declined to join in that portion of the *311 plurality opinion. 403 U.S. at 491. The dissenting justices expressly disagreed with the plurality on this point. 403 U.S. at pp 505-510, 522. Since the justices were equally divided on this point, it follows that the “inadvertent discovery” restriction on the plain view rule does not have the force of precedent and is not binding on the states. Compare Cardwell v. Lewis, 417 U.S. 583, 41 L.Ed. 2d 325, 94 S.Ct. 2464 (1974), where another plurality upheld a plain view seizure of evidence, the discovery of which was not inadvertent. See generally, North v. Superior Court, supra; W. LaFave, supra, § 7.3(a). In this posture we find it unnecessary to reach or decide whether “inadvertent discovery” is required for a warrantless seizure of evidence of crime when the evidence is in plain view of an officer who has a right to be in a position to have that view. Nonetheless, we note parenthetically that in the instant case the discovery of the white Pinto by the officers was truly inadvertent. The officers had no prior knowledge that a white Pinto belonging to defendant Mitchell would be parked at the Norris residence. Only upon inspecting the car and being told that it belonged to Mitchell, did the officers develop a reason to believe that the Pinto before them was the one used by Mitchell in the two robberies under investigation. Thus, Coolidge is distinguishable from the instant case. In Coolidge, the police knew far in advance the location of the evidence and intended to seize it.

Here, the circumstances which gave the officers probable cause to seize the car as criminal evidence also gave them probable cause to search the interior of the car for further evidence of the bank robbery. Moreover, the exigent circumstances gave the officers the right to make a warrantless search of the car at the scene. “[A] warrantless search of a vehicle capable of movement may be made by officers when they have probable cause to search and exigent circumstances make it impracticable to get a search warrant.” State v. Allen, 282 N.C. 503, 194 S.E. 2d 9 (1973). Although there was evidence tending to show the Pinto was in a bad state of repair, there was no indication that it was incapable of movement. See State v. Mathis, supra. Mitchell was still at large and could have driven the car away while a warrant was being obtained. See, e.g., United States v. Farnkoff, 535 F. 2d 661 (1st Cir. 1976); Love v. State, 487 S.W. 2d 677 (Tenn. App. 1972); W. LaFave, supra, § 7.2 at 527. If exigent circumstances justify a *312 warrantless search, it matters not that the vehicle is parked rather than moving at the time it is located by police. See, e.g., Haefeli v. Chernoff, 526 F. 2d 1314 (1st Cir. 1975); Carlton v. Estelle, 480 F. 2d 759 (5th Cir.), cert. denied, 414 U.S. 1043 (1973). Once the right to make a warrantless search obtained, the officers could search the Pinto immediately or could seize it and search it at the station house. Chambers v. Maroney, 399 U.S. 42, 26 L.Ed. 2d 419, 90 S.Ct. 1975 (1970); State v. Allen, supra. In the instant case the officers chose the latter course. Thus, seizure of the Pinto could also be lawfully made for the purpose of conducting a warrantless search of the vehicle at the station house.

Prior to removing the Pinto from the premises, the officers returned briefly to the station house, borrowed a camera, returned to the premises and photographed the car. Suffice it to say that by the time the officers returned to the station house to borrow a camera, it was no longer necessary to obtain a warrant since the right to make a warrantless search and seizure had already arisen. See generally, Chambers v. Maroney, supra; State v. Allen, supra. Moreover, defendant was still at large and could have removed the car from the premises. Thus, it was imperative that the officers quickly return to the premises where the car was parked.

The trial court’s findings that when the officers viewed the Mitchell Pinto in Red Springs they had no probable cause to believe that the vehicle was contraband or had been used in any illegal activity are not supported by the evidence. The trial court’s conclusion that the Mitchell Pinto and its right rear tire were illegally seized is erroneous.

For the reasons stated the order appealed from is reversed. The case is remanded to Cumberland Superior Court for trial on the merits as provided by law and in accord with this opinion.

Reversed and remanded.