52 N.C. App. 125 | N.C. Ct. App. | 1981
At the onset, we note that defendant’s appeal is not properly before us. According to G.S. 15A-979(b), as interpreted by our
Despite defendant’s failure properly to give notice of his intention to appeal, we have decided in our discretion to treat the purported appeal as a petition for certiorari, to allow it and to consider the case on its merits.
Defendant’s four assignments of error, which have been brought forward in his brief, are directed to the trial court’s order denying his motion to suppress drugs seized from the person of defendant and from his automobile. On the voir dire concerning this motion to suppress, the State offered evidence tending to show the following: On 22 August 1979 Agent Stevens interviewed a person who had been arrested for possession of 2,200 dosage units of LSD. The person told Stevens that he was supposed to meet a Garry Piggott in the parking lot of the Sea Captain Restaurant in Southport, North Carolina, at 8:00 a.m. on 23 August 1979. This person further indicated that Piggott would be driving a 1969 black Ford Mustang with chrome-type wheels. He described Piggott as being approximately 5’6” to 5’8” tall, weighing 195 to 205 pounds, having medium length brown hair which hung over his collar and wearing glasses. Stevens’ source further told him that at this 8:00 a.m. meeting, he was to receive 2,000 dosage units of LSD from Piggott. Stevens asked his source to telephone Piggott. During the telephone conversation, Stevens heard his source ask to speak to “Garry.” He was told to wait and a voice then said, “[h]ello.” The source then indicated that he
The defendant offered no evidence at the voir dire.
At the conclusion of the voir dire, the trial judge made findings based upon the evidence presented at the hearing. He then made conclusions as follows:
From these findings the Court concludes that the officer had probable cause to arrest the defendant for possession of LSD with intent to sell.
*129 That the search of the defendant’s person and vehicle were incidental to a lawful arrest, and though without a warrant were lawful.
That the search of the chess set box, an object in plain view, as to the inside of which there was no resonable expectation of privacy, was lawful.
Defendant has assigned error to each of these conclusions as well as to the denial of his motion to suppress. In his sole argument combining all four of these assignments of error, defendant first contends that there was no probable cause for Stevens to arrest defendant. He emphasizes that probable cause was based solely on Stevens’ source of information, and that therefore, this source of information had to reveal underlying circumstances showing him to be a credible person and showing the basis of the conclusion reported by him. Defendant argues that no such underlying circumstances were revealed at the suppression hearing. Defendant further argues that since there was no probable cause to arrest, the search of defendant’s person or his vehicle cannot be considered a search incident to a lawful arrest. The items then seized from his person and his automobile should have been suppressed.
This Court disagrees with defendant’s contentions as to the lack of probable cause to search defendant’s person and to arrest him thereafter. We believe that the information learned from the informant, which was corroborated both by the telephone conversation with a man named “Garry” and the later observations of Agent Stevens at the parking lot of the Sea Captain Restaurant, gave Stevens reasonable grounds to believe that a crime was being committed in his presence and to arrest defendant without a warrant pursuant to G.S. 15A-401(b)(l). State v. Collins, 44 N.C. App. 141, 260 S.E. 2d 650 (1979), aff’d on other grounds, 300 N.C. 142, 265 S.E. 2d 172 (1980). The search of defendant’s person immediately prior to his arrest was justified as incident to the arrest, since probable cause to arrest existed prior to the search. State v. Wooten, 34 N.C. App. 85, 237 S.E. 2d 301 (1977). Our decision in State v. Tickle, 37 N.C. App. 416, 246 S.E. 2d 34 (1978) offers further support for our position. In Tickle the defendant argued that information obtained from a previously unknown informant was not sufficient to constitute probable cause for a war-rantless search of an automobile, unless the informant also
In the case sub judice, the informant also gave a detailed description of defendant’s appearance and vehicle, as well as the location and time the alleged crimes were to occur. The prior arrest of the informant for possession of LSD would tend to show that his information about an alleged drug dealer would be dependable. Finally the reliability of the information received was corroborated by the telephone conversation wherein a man named “Garry” indicated he would meet the informant at a specified time and place. For these reasons we find that the search of defendant was incident to a lawful arrest and that the drugs seized from defendant’s person were admissible.
We find it unnecessary to consider defendant’s assignments of error concerning the search of his vehicle, and in particular, the search of the chess set. From the record it appears that defendant was arrested for felonious possession of both LSD and hashish immediately after the search of his person. The drugs seized from the car and from the chess set inside the car therefore were not a necessary element of the charges against defendant.
We affirm the trial court’s order denying defendant’s motion to suppress.