*1 COURT OF APPEALS tempt this prove by title to Lot No. back going to the State Cutts, grant, as did plaintiffs in Batson and they prove could lot, it, part some is within the original grant Batson which remained after Jesse W. Batson made conveyance Millie even Bishop, though plaintiffs in the Batson and Cutts cases were unable to prove title to and location of their respec- tive lots.
Because plaintiffs claim ownership of lands which are not the same by lands claimed plaintiffs in the Batson and Cutts cases and because there is a question lappage, there is neither identi- ty subject matter nor of issues. issues,
Since we find identity no of subject matter or we do treat the question mutuality of parties by raised defendants.
The findings by of fact the trial court are supported com- petent evidence and the facts fully found support the conclusions of law.
Affirmed. Judges and Erwin concur. Parker THOMPSON, STATE OF NORTH CAROLINA HOWARD KEITH JIMMIE DALE HARDEE No. 775SC1064 (Filed 1978) August 1. Searches and Seizures 34— hashish in view in van—warrantless proper seizure Tinfoil-wrapped packages of hashish seized without a search warrant tray the recessed beneath the dashboard of the van in which defendants were sitting were prosecution admitted into evidence in a for felonious possession of hashish where the evidence tended to show that on the occasion question vehicle; an officer riding in a law enforcement there had been area; some break-ins in the investigation course of an the law enforce- up ment vehicle was question; driven to the van in got the officer out of his vehicle, officer, identified himself approached as a law and asked the persons themselves; step therein to out and the officer reached across OF COURT
State v. driver to see driver’s identification van towards the the the the front seat of so, and, compartment packets open in under three doing while saw tinfoil view; officer, van; plain in and the packets were these the dashboard of the narcotics, opinion the expert in the of formed that was an identification who parcels, open, which was hashish. the tinfoil one of was the contents of § 8— arrest warrantless seizure 2. warrantless based on Searches Seizures —subsequent proper of hashish a plain hashish view in van was Since the seizure of in initital warrantless properly occupants arrested and subse- proper, all of van could be searched, proper. was pursuant a search quently and seizure of hashish to such § was 75.9— that hashish 3. Criminal Law defendant’s statement his —volunteered statement by just that his arrest all the A statement one defendant made after hashish, “stuff,” get referring in was his and that he did not want to to a van anyone tion, voluntary interroga- response to else was and not made in in trouble court found that whether or not the such statement admissible apprised rights. defendant had been of his opportunity by for § Law 66.1— 4. Criminal identification of defendant officer — observation relating an officer’s iden- The trial court admitted evidence to oppor- finding ample time and of after that the officer had tification tunity defendant defendant, show that the officer to observe since the evidence tended to yards approximately a five from distance of for observed defendant by lights provided streetlight and of the van light a the interior minutes under sat; twenty the van and within feet of in which he then drove to defendant high-beam his light bulbs of automobile defendant from the observed van; up subsequently walked thé open and he to directed into doors of the talking while length for minutes defendant at arm’s several van observed him. to —sufficiency § evidence possession in of 4.3— hashish 5. Narcotics van — van, possession found in a evidence was prosecution a for hashish In jury that one defend- where it tended to show to submitted sufficient be very passenger van close to the in the front seat ant seated voluntarily arresting tray and he told hashish was taken from which the trouble”; anyone in else was his and he didn’t want that stuff officer moreover, “the present and was defendant owned the evidence that second to allow the was found was sufficient substance therein when the controlled power contraband found jury and intent to control the infer he had the there. possession drugs jury proximity to instructions 6. Narcotics 4.6— —no — prejudicial error instruction, person of a hashish in view Though “if court’s the trial it, power and intent control you has both infer from then could may statement be correct possession,” and that would be constructive alone, thereby law, light prejudiced standing was not defendant COURT OF tending sitting to show that defendant was passenger in the front directly seat a van open in front of the recessed area where hashish was shortly found and that he stated thereafter the “stuff” was his. Judge dissenting. Erwin Webb, by defendants Appeal Judge. Judgments Court,
entered 24 August in Superior New HANOVER Coun- ty. Heard the Court of Appeals April 1978.
Upon pleas of not guilty defendants were tried bills of in- dictment charging them with felonious possession of more than one-tenth of an ounce of hashish. Evidence presented by the State tended to show:
At approximately 12:30 a.m. on 17 April Officer William Wolak and W. A. Lee of the Narcotics Bureau of the New County Hanover Sheriff’s Department, were on routine in patrol the Fort Fisher area of said county. At a public boat ramp in the they area observed a parked motorcycle. and a
A voir dire was held during which Wolak testified that the passenger door on the right-hand side of the van was open and on; the interior light was that he and Lee approached the van order to because occupants it was night late at and break-ins had been reported vicinity; in the they that approached the van from its side right and the headlights of their car shined van; into the and that Defendant Thompson sitting in the passenger seat of the vehicle. The trial court found facts in accord with testimony Wolak’s and allowed him identify to defendant Thompson.
Wolak testified before the jury that he got identification van; from Thompson and asked him to step out of the that he then “leaned across the empty passenger seat” in order to get driver; identification from the that there was an open, recessed seat; area in the dash in front of the passenger’s that while he was leaning into the van he noticed packets tinfoil in the recessed area; and that one of the packets was open and a contained brown substance which he identified as hashish. A voir dire was held at the conclusion of which the trial court refused to suppress relating hashish. OF COURT Thompson found, testimony, based on court further Wolak’s The trial after advised of rights that was arrested and his Thompson hashish then volunteered discovery Thompson of the and that want his and he did not that all of the “stuff” was statement Thomp- further testified that get anyone else trouble. Wolak seats; front there son driver were in the sitting and the where the a area behind the seats some ten feet from large, open back; found; that Hardee was in the lying hashish was defendant also back of the that Hardee’s wife two others were in the van; all van were occupants and that arrested. his arrest Lee testified searched Hardee after
Officer that he matter which green vegetable in his pocket packet found gram a chemist testified contained six-tenths of “point that a packet The chemist also testified found hashish.” Motions were grams suppress dash 94.2 of hashish. contained denied. but
Neither of the defendants testified defendant them, mother, his testified that witnesses. One of presented three sister; Thomp- Hardee was Thompson’s defendant married to (N.C.) Fayetteville lived in the son in Florida his sister lived area; his sister plane to visit and that left Florida *4 days question. the incident several before witness, his wife Gentry, testified that he and James Another wife; and his Wilmington area with defendant Hardee went to the had motorcycles; Hardees that of them went on that the the four in a was going Wilmington two vans and defendant Thompson cross- witness had seen the Hardees use. On that attorney, Gentry that he by Hardee’s testified examination Hardee motorcycles; Beach on Hardee reached Carolina and hurt his that thereafter leg; bike the curb against crashed his van; Hardee they they with and that loaded saw eventually arrived where place the van and at the and his bike in tray little they if there was a or were arrested. When asked dashboard, Gentry he was answered that area on recepticle (Hardee’s) further “Jimmy’s van”. The witness with familiar did not a sleeping bag “I that Jimmie Hardee have stated: know bike, That was I don’t if there was else. anything but know his all in van.” COURT OF APPEALS
The jury found each defendant guilty of possession felonious of hashish and from judgments imposing sentences prison months, defendants appealed. Edmisten,
Attorney General by Associate Attorney Luden III, Capone the State. for Parker, Hussmann, Jr., Rice & Myles, by William G. for appellant Thompson, Burney, Burney, & defendant Barefoot
Bain, Bain, by Roy C. Hardee. appellant for defendant
BRITT, Judge. evidence the tinfoil-wrapped [1] Both defendants contend the court erred in admitting into packages hashish seized from the tray recessed beneath the dashboard They of the van. argue that warrant, the seizure was not made pursuant to a search nor was justified it by a probable cause-exigent circumstances exception to the warrant requirement the “plain-view” doctrine. We find no merit in this contention.
When objected defendants to evidence relating to the hashish dash, found beneath the the court conducted a dire voir hearing jury. absence of the Following the hearing, court found as facts that on the occasion in question Officer Wolak was riding vehicle; in a law enforcement that there had been some break-ins area; in that in the course anof law investigation, en- forcement vehicle was driven up van in question; that vehicle, Wolak got out of his identified himself aas law enforce- officer, ment approached the van and asked the therein persons themselves; out and step that he “reached across the front seat of the van towards the driver to see the driver’s iden- tification, so, and while doing saw three packets tinfoil van; open compartment under the dashboard of the these view; three tinfoil were in parcels that Mr. Wolak is an ex- narcotics;” pert in the identifcation of and that he formed the opinion that the contents of the parcels, tinfoil one of which was open, was hashish. *5 fact
Findings
supported by
competent evidence on voir
Crews,
41,
dire are conclusive on
v.
appeal. State
286
209
N.C.
(1974);
Pike,
102,
S.E. 2d 462
v.
State
273 N.C.
We think the plain is in because the item no search requiring circumstances view, immunity from unreasonable no constitutional 44, 2d 896 292 231 S.E. v. N.C. Legette, arises. State seizure (1970). 217, (1977); 28 The 172 S.E. 2d 276 Virgil, v. N.C. the contra- seizing the officer requires view plain doctrine and that the seized where he has a to be right band be in a place searching further into visible to him without item be plainly a seized has the item is from whom party area where 3d, Index 11 Strong’s N.C. expectation privacy. reasonable 5-6, and cases cited therein. and Seizures Searches §§ court, Mallard, from for this writing quoted Judge Chief 564, 443, 91 29 L.Ed. 2d 403 U.S. Hampshire, v. New Coolidge (1971), view which it is said that 2022 S.Ct. “[w]hat them in each of police is that the officer cases have in common which he in the course of a for an intrusion prior justification had incriminating a inadvertently across piece came 256, 39, 45, 260 185 S.E. 2d Fry, 13 App. accused.” State N.C. (1972). 495, (1971), denied, Fry 514 In 280 186 S.E. 2d cert. N.C. and opened a traffic violation police investigating officer this, did therein. When he see the occupants the door of a marijuana. a The bag them was holding he saw that one of evidence. was later admitted into marijuana judice sub is case contend Defendants was not in- in that Officer Wolak Fry distinguishable justifica- had no prior a violation and therefore traffic vestigating is Clearly, this argument the van. inside looking tion for erroneous. in an a van or other vehicle
A who observes officer police have been re that break-ins night, knowing late at isolated place area, determine its own it to justified stopping ported v. Bagnard, identity occupants. and the ership 416, (1974), denied, cert. 210 S.E. 2d investigating Bagnard highway patrolman In S.E. 2d similar to an automobile stopped incident in the area a hit-and-run vehi driver of the When the involved therein. reportedly the one card, opened the officer produce registration was unable to cle *6 634 COURT OF APPEALS
State v.
the car
the registration
door to obtain
number
tag
from the
at-
tached there. When the door was
opened,
officer discovered a
bag marijuana
on the
marijuana
floor. The seizure of the
its
admission
subsequent
into evidence was
as the
upheld
officer
was in a
where he had a
place
legal
to be and had
right
in-
advertently
Similarly,
discovered the contraband.
Officer Wolak
in a
properly
where he had a
place
legal
to be.
right
Defendants,
Blackwelder,
on State v.
relying
352,
(1977),
In Blackwelder the officers rummaged under the seat aof Here, stopped automobile and discovered a controlled substance. Officer Wolak simply observed hashish lying on tinfoil in open tray in a recessed area of the van’s dash. This was an inadvertent “ discovery rather than a search. term implies some ‘[T]he [search] exploratory investigation or an invasion and quest, looking for secret, intrusive, or seeking may out. The be quest accomplish- C.J.S., 1, by ed force.’ 79 Searches and Seizures 775.” p. Reams, 391, 396, S.E. 2d Officer Wolak forceful, conducted no intrusive or secretive investigation. Rather, merely he seized an illegal substance lying openly before him.
We hold that the two-pronged test of
v. New
Coolidge
Hamp-
shire referred
v. Fry,
has
supra,
been met in this case.
police
The
officer making the seizure here was in a place where
he had a right
inadvertently
to be and
discovered the contraband.
[2]
Defendant Hardee asserts error in the
admission of the hash
ish seized from his pocket.
gist
The
of his argument is that the in
itial seizure of narcotics
the van
was illegal, that absent
him,
any
such seizure there was not
probable cause to arrest
that the
post-arrest
of his
in which
person
the additional
by
contraband was discovered was tainted
the prior illegality.
Our
assignment
consideration of this
governed
is
our
resolution of the first
issue in this case. Because the initial
valid,
seizure was
Hardee and the other occupants of the van
Discovery
could
be arrested.
gave
hashish
Officer
Wolak sufficient
cause under
probable
15A-401
justify
N.C.G.S.
COURT OF
arrest,
may be
under
placed
person
this action. Once
*7
White,
31, 195 S.E.
18
2d
App.
State v.
N.C.
thoroughly.
searched
(1973).
587,
576,
denied,
Evidence
283
[5] Both defendants contend the trial court erred denying in their nonsuit. This contention has no merit. motions for support
Where there is more than a scintilla of evidence to
indictment,
is proper-
the motion for nonsuit
allegations
testimony
ly denied.
and contradictions within the
must
Conflicts
113,
v.
215 S.E.
by
jury.
McKinney,
be resolved
(1975).
considered,
2d 578
In a case such
the one
presently
as
may
a motion for nonsuit
presenting
overcome
proximity
drug
the defendant’s close
as well
establishing
jury
as
circumstances
facts from which the
incriminating
might
posses-
infer that the defendant has reduced the narcotic to his
Weems,
In case the Thompson’s offered, testimony The if cient to withstand motion for nonsuit. that was seated in jury, Thompson believed the established very tray in van the seat the front of the close to passenger addition, voluntarily which the hashish was taken. In told from officer that “the stuff was his and he didn’t want arresting anyone in substance was in view. illegal plain else trouble.” The and Defendant’s location near the contraband the additional facts denial justified introduced into evidence of his motion for non- suit. case, and
In Hardee’s evidence that he owned the van was was was therein when the controlled substance found suf- present infer that he had the and intent jury power ficient to allow to Ownership premises the contraband found there. of to control are found is sufficient to submission of the drugs require where jury. Harvey, possession issue of S.E. 2d 706 [6] Defendant Thompson contends the court erred in giving jury: instruction to the following if is in view a then you, person
“As I hashish told he has both the and intent to you power could infer from that it, You are possession. and that would be constructive control infer he had the and intent to con- power to that required not it, with all the along You will consider trol however. COURT OF y. Thompson and power in whether he had the determining evidence other possession.” take constructive intent to control it there instruction, in first the quoted We concede that the sentence However, alone, law. may be statement of correct standing light in context and when the instruction considered sitting tending to show defendant directly in front the open the front seat passenger found, area the hashish was he stated recessed where his, shortly that the “stuff” we no error perceive thereafter to him. prejudicial contention, relies on In of this defendant support (1977), 614, 235 S.E. 2d
State v. Washington, Weems, easy We those cases distinguish find it supra. from the case at hand. trial, a fair free prej-
We hold that defendants received udicial error.
No error. CLARK concurs.
Judge dissents.
Judge Erwin dissenting.
Judge ERWIN a new I feel the motion grant I the defendants trial. vote *9 have been allowed. The record to the evidence should suppress public in was in a area clearly question parked shows: the van 421 in the area the Fisher at the end of Highway near Fort of The an area with landing open Wildlife Boat boat Camp. and on the water. several street borders lights were us show that the defendants The record before does not they any being the at the time were laws of violating officers, any and Lee. is not indica- by the Wolak There observed manner, in acting any suspicious the defendants were tion any crimes. On voir they for the commission of nor were wanted dire, van he and the approached Wolak testified that Lee Officer late at night because it was the occupants, order vicinity eve- earlier that reported and break-ins had been break-ins, the does disclose time of But record ning. break-ins, connected with allegedly of the description 638 COURT OF Moving Storage,
Eobinson v. and Inc. or that the ever asked registra- officers for or received either the tion card the van in question or the driver’s license. 20-183(a).
The van had not been stopped pursuant
to G.S.
In
143,
Smith,
(1976),
such
v.
289
cases as State
I would hold that the conduct of Officer Wolak reaching across the and looking seat in the recessed area the van a search, automobile, search. “A even of an is a substantial invasion Ortiz, 891, 896, privacy.” of 623, 629, United States v. 422 U.S. 45 L.Ed. 2d 95 S.Ct. The motion to should suppress have been allowed. STORAGE, INC., L.
THOMAS ROBINSON WHITLEY AND MOVING COMPANY, WESTERN BELL ELECTRIC SOUTHERN TELEPHONE AND TELEGRAPH COMPANY No. 7710SC693 (Filed 1978) August goods relationship 1. 3— Master and Servant mover of manufacturer’s of in- — *10 dependent employer contractor moving company A contract between defendant and defendant Western relationship employer independent Electric established the contractor