State v. Carr

• Decision Date: 05 April 1983
• Docket Number: No. 825SC564,825SC564
• Citation: State v. Carr, 301 S.E.2d 430, 61 N.C.App. 402 (N.C. App. 1983)
• Parties: STATE of North Carolina v. Thomas Earl CARR.
• Court: North Carolina Court of Appeals

Page 430

301 S.E.2d 430

61 N.C.App. 402

STATE of North Carolina v. Thomas Earl CARR.

No. 825SC564.

Court of Appeals of North Carolina.

April 5, 1983.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen., Robert L. Hillman, Raleigh, for the State.

Ernest B. Fullwood, Wilmington, for defendant appellant.

JOHNSON, Judge.

Evidence for the State tended to show the following: Around 5:25 p.m., 3 August 1981, Elmon Hollis was returning to his home in Pender County when he observed defendant pulling away from the Hollis' carport in a 1970 blue Dodge, license number WLC580. At that time, Elmon Hollis' car blocked defendant's departure. Defendant stuck his head out of his car window and asked Elmon Hollis if he knew of any Hollises in the area. When Elmon Hollis said he did because he was a Hollis, defendant replied, "Yes. I know you are one, but I'm looking for another one." Defendant then stated that the Hollis he was looking for lived further south. Because of the way defendant was acting, Hollis pulled his car forward, defendant drove away in a hurry. Hollis observed that defendant's car was sitting low in the rear. Hollis entered his house, discovered that the inside carport door was open and the lock broken off. A total of twenty-one guns consisting of rifles, shotguns, and one pistol were missing. In addition, three jars of silver coins, an old wallet, and some other items were missing. One of the jars was a mustard jar containing coins and a white envelope with the inscription Ogden Baptist Church. The missing items were valued at approximately $6,000. Mr. Hollis had not given permission to anyone to enter the premises or to take the property. Hollis reported the incident to the Pender County Sheriff's Department and gave a description of the defendant and the automobile he was operating.

On 5 August 1981 defendant, while operating the automobile described by Hollis, was stopped in New Hanover County by Officer W.H. Chipps of the Pender County Sheriff's Department. Officer Chipps seized the vehicle, drove it from New Hanover County to the Pender County Sheriff's Department, and after obtaining a search warrant to search for the twenty-one firearms searched the entire automobile. In the trunk of the automobile Officer Chipps found an old brown wallet and what he described as a French's mustard jar containing coins and a white envelope with the inscription Ogden Baptist Church. At the time of the search Officer Chipps was not aware that a wallet and jar containing coins were also taken from the Hollis residence. Officer Chipps released the vehicle and its contents to defendant after failing to discover any weapons during the search. Through cross-examination of defendant's witness, Linda Lamb, it was established that defendant did not attend Ogden Baptist Church.

Defendant did not testify, but through Linda Lamb presented evidence which tended to show that he was at her house in New Hanover County, Wilmington, N.C., on 3 August 1981 until 4:30 p.m.

Defendant contends the trial court erred (1) in its denial of defendant's motion to suppress Officer Chipps' testimony regarding his discovery of the wallet and mustard jar; (2) in admitting evidence of defendant's prior record; (3) in its denial of defendant's motion for a mistrial and; (4) in its denial of defendant's motion to dismiss at the close of all the evidence.

By his first assignment of error defendant contends that the seizure of his automobile was (a) unconstitutional because of the lack of probable cause and was illegal because the officer seizing it was beyond his territorial jurisdiction and; (b) that the search conducted exceeded the scope of the search warrant. Based upon these contentions, defendant argues that trial court erred in admitting into evidence, over defendant's objection and motion to suppress, Officer Chipps' testimony concerning the wallet, the mustard jar and its contents.

Where there is probable cause to search an automobile, the officer may (1) seize and hold the automobile before presenting the probable cause issue to a magistrate or (2) the officer may seize the automobile and conduct an immediate search without a warrant where exigent circumstances make it impracticable to obtain a search warrant. ¹ State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973); State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179 (1972); State v. Johnson, 29 N.C.App. 534, 225 S.E.2d 113 (1976). For constitutional purposes there is no difference between seizing and holding the vehicle before presenting the probable cause issue to a magistrate on the one hand and on the other, carrying out an immediate search without a warrant; given probable cause to search, either course is reasonable under the Fourth Amendment. State v. Ratliff, supra; State v. Johnson, supra.

In State v. Johnson the State's evidence showed that two men entered a store and robbed the proprietor. After the men left the store, the proprietor went to the door in order to obtain aid and saw four males leaving in a white Ford. Thereafter, an officer observed four men in a 1965 white Ford. The automobile was stopped and seized and the four occupants arrested. The automobile was taken to the Sheriff's Department and searched without a warrant. Defendants' motions to suppress evidence obtained from the search were denied. In holding that probable cause existed for the search, this Court stated:

"[T]he totality of the circumstances gave the officer reasonable grounds to believe that defendants had committed a crime and that the automobile in which they were riding contained evidence pertaining to the crime. Probable cause to search existed at the time of the arrest and continued to exist when the automobile was searched at the Sheriff's office."

29 N.C.App. at 539, 225 S.E.2d at 116.

The facts establishing probable cause for the search of the defendant's vehicle in the present case at the time it was observed by Officer Chipps on 5 August 1981 are as follows: Officer Chipps had been advised that on 3 August 1981 the home of Elmon Hollis had been burglarized and that twenty-one firearms were stolen therefrom; that after Hollis arrived home and confronted defendant, defendant hurriedly drove away from the Hollis residence. Officer Chipps was also given a description of the defendant and the automobile he was driving. Two days after the break-in, Officer Chipps observed defendant operating an automobile in New Hanover County that fit the description.

As in State v. Johnson, supra, the totality of the circumstances gave Officer Chipps reasonable grounds to believe that the defendant committed the crimes and that the automobile defendant was operating contained firearms taken from the Hollis residence on 3 August 1981. Given probable cause to search defendant's automobile at the time he observed it in New Hanover County, Officer Chipps was authorized to either seize and hold the automobile before presenting the probable cause issue to a magistrate or to seize the automobile and conduct an immediate search because exigent circumstances presented a "fleeting opportunity" which made it impracticable to secure a search warrant. Here, where the exigent circumstances consisted of the mobility of the vehicle, the defendant having been alerted, and the risk that the vehicle's contents might never be found again if a warrant were to be obtained, Officer Chipps chose the former alternative. The seizure of the vehicle and Officer Chipps' action in removing the vehicle to the Pender County Sheriff's Department were reasonable and authorized under the Fourth Amendment.

Next, defendant argues that the seizure of his automobile was illegal because Officer Chipps was outside his territorial jurisdiction. In support of his argument defendant cites G.S. 15A-402(b) which states:

Territorial Jurisdiction of County and City Officers.--

Law-enforcement officer of cities and counties may arrest persons within their particular cities or counties and on any property and rights-of-way owned by the city or county outside its limits.

The State contends that the territorial jurisdiction of county officers to arrest is extended by G.S. 15A-402(e) which states:

County Officers, Outside Territory, for Felonies.--

Law-enforcement officers of counties may arrest persons at any place in the State of North Carolina when the arrest is based upon a felony committed within the territory described in subsection (b).

We note that the seizure of the vehicle was not incidental to the arrest of the defendant. Defendant was arrested six hours after the seizure of the vehicle. We also note that the cited statutory provisions explicitly pertain to the territorial jurisdiction of an officer to make an arrest. The arguments presented raise the issue of whether the statute extending the officer's territorial jurisdiction to make an arrest applies to the situation where the officer has made a seizure of personal property beyond his jurisdictional authority. However, we do not reach the issue of whether the seizure of personal property is equivalent to the seizure of the person referred to by the term "arrest" in G.S. 15A-402(b) and (e) so as to render the seizure legally valid, in light of our holding that the seizure of the automobile was constitutionally valid.

The next argument defendant presents is that the search conducted by Officer Chipps exceeded the scope of the search warrant. Evidence regarding this issue shows that Officer Chipps searched the entire automobile pursuant to a validly issued warrant which listed twenty-one firearms as the items to be seized (a total of twenty rifles and shotguns and one small handgun). In the trunk of the automobile were several boxes which contained an assortment of neckties, bow ties, and scarves. In searching the boxes, Officer Chipps discovered a wallet and a mustard jar. The glass jar was transparent and without removing the cap of the jar he observed that it contained coins and a white...