State v. Boone

• Decision Date: 15 December 1977
• Docket Number: No. 51,51
• Parties: STATE of North Carolina v. Vernon BOONE.
• Court: North Carolina Supreme Court

Page 459

239 S.E.2d 459

293 N.C. 702

STATE of North Carolina v. Vernon BOONE.

No. 51.

Supreme Court of North Carolina.

Dec. 15, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Nonnie F. Midgette, Raleigh, for the State.

Boyan & Slate by Clarence C. Boyan, High Point, for defendant-appellant.

MOORE, Justice.

Prior to the introduction of evidence, defendant moved to suppress all evidence obtained by Officer W. F. Clay's entry onto defendant's property without a valid search warrant, and all evidence obtained thereafter as the result of the allegedly illegal search.

Judge McConnell conducted a voir dire hearing. Both the State and defendant offered evidence. At the conclusion of the hearing, based on the evidence presented, Judge McConnell made the following findings of fact and conclusions of law:

"1. That on October 22, 1975, Detective J. E. Tobin of the High Point Police Department received a phone call from an informer saying that a stolen blue Ford farm tractor was at defendant's farm on Elder Road in Guilford County;

2. That as a result of this information Detectives Tobin and B. W. Rich, also of the High Point Police Department, drove that afternoon to defendant's farm, parking in the drive of a neighbor to the farm; walking on Allen Jay Elementary School grounds adjacent to defendant's wife's farm and along the barbed wire fence 48 inches high strung around defendant's wife's farm, Detective Tobin saw a blue Ford farm tractor parked under a shed annexed to a barn in open view;

3. That the farm consists of nineteen and nine-tenths acres with only the barn located on it; that the field was enclosed by a fence; there was no dwelling upon the property; Defendant's residence is on a city street and approximately one and two-tenths miles from the property and approximately one and one-half miles from the barn; that the only evidence as to ownership of the land is that the deed to the farm property is solely in the name of Dorothy T. Boone, the wife of the defendant;

4. That Detectives Tobin and Rich entered the property from another side of the field because of easier access to the barn and the annexed shed under which the tractor was located;

5. That Detective Tobin copied from the tractor the serial number C471023 and the model number C1013C; that the serial number was cast onto the body and both the serial number and model number were located on a metal plate attached to the inside of the hood of the tractor;

6. That on October 22, 1975, Detective Tobin contacted Inspector William F. Clay of the Enforcement and Theft Division of the North Carolina Department of Motor Vehicles for assistance in gathering information on the tractor through the Police Information Network, a system of information collection;

7. That Inspector Clay went with Detective Tobin and Rich back to the defendant's farm to recheck the serial number and the model number. All three officers entered the property by crossing at the same point of the fence that had been crossed the preceding day;

8. That after rechecking the serial number and the model number Inspector Clay entered the serial number on the Police Information Network by car radio; that he was informed that the tractor was listed as stolen from Neuse Tractor Company in Dudley, North Carolina, between 8:30 PM, June 29, 1975, and 7:00 AM, June 30, 1975, along with a 1971 Ford truck, serial number C76EUF51519, 1975 North Carolina license number CM8561;

9. That having failed to contact defendant on October 22, 1975, Inspector Clay called on the defendant at his home the morning of October 23, 1975, and asked him to come to the North Carolina Highway Patrol office in High Point to discuss the stolen tractor located on the defendant's farm;

10. That the defendant was present the morning of October 23, 1975 at the North Carolina Highway Patrol Office in High Point; that Inspector Clay, with Detective Thompson present, read the defendant his constitutional rights but the defendant refused to sign a paper acknowledging his rights; that the defendant stated to Inspector Clay and Detective Thompson that he knew his constitutional rights; that he did not need or want an attorney present; and that he would answer any questions posed by the officers;

11. That the defendant told Inspector Clay and Detective Thompson in the interview at the North Carolina Highway Patrol Office on October 23, 1975 that the tractor had been at his farm for approximately three months; that the defendant further stated that he had received the tractor from a black male, referred to as "Judge," who had driven the tractor onto the defendant's used car lot, Boone's Auto Plaza, 116 South Main Street, High Point, North Carolina; that "Judge" said he wasn't using the tractor and said the defendant could use the tractor and drove it to the gate of the defendant's farm; that the defendant drove it to the barn and parked it under the shed; that the defendant then stated that he did not have any money in the tractor and that if it was stolen then he did not want it on his property;

12. That the tractor was brought to the North Carolina Highway Patrol Office in High Point by an employee of the defendant and surrendered the tractor to Inspector Clay;

13. That as a result of a telephone call to Inspector Clay at his residence on November 8, 1975 Inspector Clay went to Dealers Wholesale, Incorporated, 347 South Main Street, High Point, North Carolina, on November 10, 1975; that Inspector Clay learned from Robert Foster, President of Dealers Wholesale, Incorporated, that the defendant presented on June 30, 1975 a notarized bill of sale on Boone's Auto Plaza stationery selling to the defendant from W. G. Dawkins a 1974 Ford 3000 tractor, diesel, serial number C471023; that the bill of sale was notarized by Jimmy Malpass, Notary Public, on June 30, 1975; that the bill of sale showed a cash selling price of three thousand, eight hundred and fifty dollars; that the defendant borrowed twenty-four hundred dollars, signing the chattel mortgage agreement with Dealers Wholesale Incorporated with Glenn Berger, Agent, of Dealers Wholesale, Incorporated as witness;

14. That on November 10, 1975, Inspector Clay and Detective Rich went to Boone's Auto Plaza, the business of the defendant; that the defendant was informed that they wanted to discuss the stolen tractor and also informed him again of his constitutional rights; that again the defendant stated that he knew his rights; that he did not need or want an attorney present, and that he would answer any questions; that the defendant stated to the officers that the bill of sale was made out solely to borrow money; that W. G. Dawkins was a white male who happened to be in his office when the bill of sale was manufactured and that he had intended to leave one number out of the serial number purposefully; that Inspector Clay informed the defendant that the serial number on the bill of sale was identical to the serial number of the stolen tractor; that the defendant then stated that he would not answer any more questions and demanded that the officers leave the car lot;

15. That Inspector Clay and Detective Rich obtained a warrant of arrest for the defendant and arrested the defendant in the afternoon of November 10, 1975.

Based on the foregoing findings of fact, the Court makes the following conclusions of law:

1. That there was not a search in the meaning of the Fourth Amendment of the United States Constitution; that the tractor was found under a shed attached to a barn in plain and public view; that the barn was located in an open field and not within the curtilage of the defendant since there was not a dwelling place within the enclosure where the barn was located; that the residence of the defendant was one and one-half miles from the barn and the farm on which the barn was located was not contiguous to defendant's residence; furthermore, the property was not owned by the defendant but was solely in the name of his wife, Dorothy T. Boone. The officers were therefore not required to obtain either a search warrant or permission to inspect the serial number of the tractor since the tractor was in plain view and under an open lean-to.

2. That the statements made by the defendant on October 23, 1975 to Inspector Clay and Detective Thompson and on November 10, 1975 to Inspector Clay and Detective Rich were given freely, voluntarily, and with full knowledge and understanding of his constitutional rights and the defendant indicated that he freely and voluntarily waived such rights and stated he did not need or want an attorney present.

IT IS NOW, THEREFORE, ORDERED that all evidence concerning a Ford tractor with serial number C471023 is competent evidence in the trial of this case, and any statements made by defendant to Inspector Clay pertaining to said Ford tractor, serial number C471023, are also competent evidence."

Following the voir dire hearing, the State introduced testimony before the jury which was substantially in accord with Judge McConnell's findings of fact.

The threshold question is the legality of Officer Clay's entry onto the land of defendant's wife and his obtaining the serial number from the tractor parked under the lean-to shed. The Fourth Amendment to the Constitution of the United States provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

G.S. 15A-974 provides that upon timely motion evidence must be suppressed if its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina.

Before resorting to the rules of search and seizure, it must first be determined whether the conduct complained of was within...