88 N.C. App. 582 | N.C. Ct. App. | 1988
In his sole assignment of error, defendant contends the trial court erred in denying his motion to suppress the controlled substance seized in violation of G.S. 15A-256, the North Carolina Constitution and the Fourth Amendment to the United States Constitution. He contends that he was not subject to detention and search pursuant to G.S. 15A-256 since he was not present at the time the officers entered the premises to conduct the search. He contends also that he was subject to an unreasonable search in violation of G.S. 15A-256 and the Fourth Amendment because law enforcement officers searched him prior to completing the search of the premises designated in the warrant. We disagree.
Defendant was properly detained under G.S. 15A-256. It provides in pertinent part:
An officer executing a warrant directing a search of premises not generally open to the public or of a vehicle other than a common carrier may detain any person present for such time as is reasonably necessary to execute the warrant, (emphasis added.) If the search of such premises or vehicle and of any persons designated as objects of the search in the warrant fails to produce the items named in the warrant, the officer may then search any person present at the time of the officer’s entry to the extent reasonably necessary to find property particularly described in the warrant which may be concealed upon the person. . . .
Defendant arrived on the premises while the officers were executing the warrant and was thus subject to detention.
The second sentence of G.S. 15A-256 governing the search of persons present when a search warrant of private premises and vehicles is being executed does not apply in this case. The seizure of the first packet of cocaine was not the result of any search. Evidence presented indicated that the packet of cocaine fell out of defendant’s pocket as he was being assisted by the officers. It was in plain view when the officers discovered it.
Constitutional guarantees against unreasonable searches and seizures do not apply where a search warrant is not necessary and where contraband is fully disclosed to the eye and hand. State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706 (1972). When such
The officers were lawfully on the premises pursuant to a valid search warrant, and they were authorized under G.S. 15A-256 to initially detain defendant in the house. Their discovery of the first packet of cocaine was the result of lawful detention and the seizure of that packet was authorized under the “plain view” doctrine.
Once the first packet had been discovered, the two officers had probable cause to arrest defendant without benefit of a warrant. G.S. 15A-401(b) authorizes a law enforcement officer to arrest a person without a warrant when the officer has probable cause to believe that such person has committed a felony and will evade arrest if not immediately taken into custody.
Probable cause exists if at the time of arrest, “. . . facts and circumstances known to the arresting officer warrant a prudent man in believing that a felony has been committed and the person to be arrested is the felon.” State v. Zuniga, 312 N.C. 251, 259, 322 S.E. 2d 140, 145 (1984), cert. denied, --- U.S. L.Ed. 2d —, 108 S.Ct. 359 (1987). “It [probable cause] is a pragmatic question to be determined in each case in light of the particular circumstances and the particular offense involved.” State v. Harris, 279 N.C. 307, 311, 182 S.E. 2d 364, 367 (1971). Accord Zuniga, supra.
In this case, the facts and circumstances known to Officer James and Agent Barrington clearly warranted a belief that a felony had been committed, that defendant had committed it, and that he would evade arrest if not promptly taken into custody. Evidence set forth at trial and in the record reveals that Barring-ton received reliable information regarding drug activity in Bobby Kolikas’s house and that prior to obtaining a search warrant he personally observed defendant in the Kolikas home using a “bong,” a device often used to smoke controlled substances. These facts coupled with defendant’s flight from the house after learning of the officers’ identities and their purpose for being there and the discovery of the packet of white powder which had fallen
“Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime.” Harris, 279 N.C. 311, 182 S.E. 2d at 367. Thus, the second packet of cocaine found as a result of a search incident to defendant’s arrest was properly seized and admissible at trial. We hold that the trial court properly denied defendant’s motion to suppress.
No error.
