*1 MORRIS, Chief Judge. 15A-979(b)
G.S. gives the appeal from a plea guilty following the denial of a suppression In motion. interpreting the statute, the Supreme Court in v. Reynolds, (1979), 259 S.E. 2d through Justice Carlton for a unanimous question, court on this held that “when a defendant in- tends to appeal from a supрression motion denial pursuant to G.S. 15A-979(b),he must notice of his intention to the prosecutor and the court before plea negotiations are finalized or he will waive the appeal of right provisions of the statute.” The dissent OF APPEALS
State v. Peck *2 (in and on Exum referred to the grоunds) other Justice part was necessity of notice that the defendant condi- “pleading guilty 15A-979(b)” in- tionally “legislature under G.S. because the did not ways”, noting a have it both “the state tend for defendant to as rely plea, nothing a else negotiated appeаring, is entitled to on a full and settlement of entire matter.” at Supra, final Here, 405, 259 S.E. 2d the record states “the defend- at notice of to the appeal in court North Carolina open gave ant 15A-979(b).”This after of to G.S. Appeals, pursuant appears Court was and for sentence execution thereof imposed suspended usual years and the under the placed probation five defendant on special Transcript and certain conditions. probation rules you question, in case “Have plеa this leaves unanswered plea as a assume that the plead part bargain?” agreed was result of a answer the plea plea bargain entered not the and issue raised the appeal.
The evidence the state on defendant’s motion to suppress for is summarized follows: Patrolman, Cruzan, Highway a North Carolina State
Officer campus University response Western Carolina in went to the Security Officer Shelton for assistance. Officer call a vehicle and had the driver of the vehicle stоpped Shelton had only security was license”. He under arrest “no driver’s campus and not to leave officer on the time had orders He dust and “tires absolutely flying he had to. had noticed unless way and car to the reason for the stopped the chеck squealing” car. officers learned that operating was The two the driver had been Cruzan asked license revoked. Officer the driver’s vehi- had in the he checked the ficer Shelton whether and a response negative suggestion Upon receiving cle. intoxicated, Officer Cruzan be passenger appeared door, opened side of the the passenger went defendant, car. in the who seated to talk to the started he sick.” The officer feeling suggested stated “I’m Defendant to “throw going uр”. if he step should outside just good.” feel don’t up. “I’m not to throw going replied, “Son, and said: squatted the officers beside Whereupon back you?” Defendant “leaned here or on When defend- pants.” his left the front of his hand down stuck that, out of hand and his Officer did Cruzan ant time, At that when he took defendant’s hand from his trousers, he see of a plastic bag. could the corner Officer Cruzan defendant out of the car reached in his got pulled out a white substance. He then ad- plastic bag containing powdery defendant of his rights рroceeded vised constitutional defendant, search the vehicle. When Officer Cruzan first saw detected a faint and observed odor of alcohol that defendant’s there was mucous on the corner of and he was “kind of cotton mouthed”. He had no reason to believe that defendant was for a going weapon. elapsed
Some to minutes from the time Officer Shelton *3 called for assistance to the time Officer arrived Cruzan on the time, scene. all this the driver was seated in During Officer Shelton’s car.
The defendant offered into evidence the affidavit given of the motion to support suppress was tendered for cross ex- The statements in his affidavit are summarized as amination. When him step follows: Officer Cruzan asked to out of the vehicle he said that he “did not feel well.” The too officer then told him to out of the car he said to “I get whereupon the officer. don’t out, it, I’m get want to don’t feel like sick.” The officer then “suddenly and the door and the abruptly” opened defend- ant, try him pushing against “began the seat. He then to to force defendant, his hand and arm down the of” the at the same time him in an to him out pulling grabbing attempt get of the car. The officer pull pushed did defendant out of the car and him vehicle, “trying the side of the still to force his hand up against “Suddenly and arm down into” defendant’s and abruptly” the оfficer a pulled bag pants, out of defendant’s seized it and its contents, and took it into his possession. (1)
The court made of fact and findings concluded: the officer be; was in a where he had a that he had a place secure the car of the under arrest and person to check the (2) therein; the revelation of the white material powder seizure; in a an unlawful bag is not the fruit of search and plastic (3) the seizure was of materials after the officer the arm Mr. Peck his trousers. The court further remоved concluded: OF Peck Mr. conclusion that support evidence the
There is no was or the fact that the using position, Cruzan an otherwise unlawful making stopped, purpose for the con- discovery materials. On the search and of contraband arm, being which was trary, passenger’s grabbing the the on the prudent belt of trousers is a action thrust into the even and is not unreasonable investigating of the officer part seizure; seizure of plastic if was a search and there Mr. fortuitous material from unreasonаble seizure. and is not an unplanned any He ex- of law. except Defendant does conclusion No. 8—“where- only finding of of Fact Finding one cepts fact— time, observed, for the corner of Officer first upon Cruzan was subse- powder and the bag containing рowder, white plastic suppress seized and the defendant moved to quently court argues and seizure.” unlawful search of the as a observed the contents found fact officer only court officer bag. It is clear that the finds plastic bag.” of a The did a whitе bag “observed corner contain by the phrase as was later determined and this used powder, merely Nowhere does the court find that bag. court describes bag. of the plastic the officer time observed contents at that clearly the evidenсe. finding supported the court’s conclusions of Defendant contends further *4 an illegal are and the evidence establishes law erroneous that and We disagree. search seizure. was of in “the seizure materials
The court concluded that
the
of Mr.
frоm his
view
the officer removed
arm
Peck
plain
after
is
and
plain
that the
doctrine
agree
applicable
trousers.” We
are
“The constitutional
present.
guaranty
all the elements
that
and
not
where
seizures does
apply
unreasonable searches
against
necessary,
subject
where
mat
is
and
the contraband
a search
eye
the
v.
fully
is
to
hand.” State
open
ter
disclosed
(1972).
1, 11,
706,
281
S.E. 2d
713
The four
Harvey,
by
were enunciated
the
“plain
elements of the
view doctrine”
in
v. New
Supreme
Coolidge
Hаmpshire,
Court
(1971).First,
2d 564
have had
29 L.Ed.
the officer must
S.Ct.
is
justification
interpreted
element
for an intrusion. This
prior
be at
legal justification
mean
that the officer had
the
simply
v.
State
where he sees evidence in
view.
place
Thompson,
(1979).
703,
State v. Certainly, approached is needed here. when the officer definition anticipate contraband. finding defendant here he did not the evidence requirement The reаson for the third —that ex- immediately prohibit general be apparent must —is something to another until is object search from one ploratory may eventually which incriminate defendant. found “[T]he contraband, object is is not whether but whether issue discovery would wаrrant a man of under the circumstances been that an offense has commit- believing reasonable caution committed, object and that the is process ted is in or Wynn, App. v. to the accused.” State incriminating 270, Truitt, (1980), F. v. 2d 262 S.E. 2d citing (6th 1975).Clearly, the circumstances herе supported Cir. contraband and that possessed officer’s belief that defendant would him. to hide evidence which incriminate attempting is enunciated in Coolidge The fourth element view require “Plain does be in view. plain evidence must only necessary аs much is sight but sight, unobstructed is evidence of criminal ac- belief that there reasonable man the 270, 262 S.E. 2d at tivity Wynn, supra, present.” defendant’s hand from his removed When Officer Cruzan he would have been derelict bag, a plastic and saw the corner of out car and ob- of the gotten had he not was in when he removed which plastic bag tained the from his defendant’s hand correctly sup- defendant’s motion to denied
The trial court judgment and the press
Affirmed. concurs.
Judge CLARK dissents.
Judge Wells dissenting.
Judge WELLS the conclusion that case with my analysis of this I begin . “. . accusatory question: [Do] ficer Cruzan’s defendant’s invoking “seizure” you?” on constituted here or Mendenhall, 446 U.S. United States rights. Amendment Fourth *6 308
State v. Peek
544,
(1980).
497,
64 L.Ed. 2d
100
may
judicial
S.Ct. 1870
take
Cruzan,
Patrolman,
notice
the fact
Highway
State
was in
uniform and armed.
by
The accusation directed
him at defendant
was sufficient to
rise
reasonable apprehension
de-
fendant that he was
least being
investigation.
detained for
ficer Cruzan’s initial
intrusion into defendant’s
privacy
justified only if
reasonably
Cruzan could
suspect
criminal ac-
tivity was
requiring
afoot
investigation
defendant’s conduct.
Ohio,
1,
(1968).
889,
Terry v.
392 U.S.
20
88
L.Ed. 2d
1868
S.Ct.
890,
See
Reid v.
65
аlso
L.Ed.
Georgia,
2d
S.Ct.
(1980);
2752
(1979);
State v.
Thompson,
search for controlled substances. hold the incriminating would evidence seized suppressed
Cruzan should have been and that defendant is there- fore entitled to new trial.