State v. Cherry

• Decision Date: 04 September 1979
• Docket Number: No. 47,47
• Citation: 298 N.C. 86,257 S.E.2d 551
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Johnny CHERRY, alias Raeford Cherry.

Page 551

257 S.E.2d 551

298 N.C. 86

STATE of North Carolina v. Johnny CHERRY, alias Raeford Cherry.

No. 47.

Supreme Court of North Carolina.

Sept. 4, 1979.

Mraz & Meacham, P. A., by Mark A. Michael, Charlotte, for defendant-appellant.

Wade M. Smith and Roger W. Smith, Raleigh, of counsel for defendant-appellant.

BRANCH, Justice.

Did the trial judge err by admitting into evidence a pistol seized without a search warrant from a motel room occupied by defendant at the time of his arrest?

Unreasonable searches and seizures are prohibited by the fourth amendment to the United States Constitution, and all evidence seized in violation of the Constitution is inadmissible in a State court as a matter of constitutional law. State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968) Cert. denied, 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed.2d 780. However, it must be borne in mind that only Unreasonable searches and seizures are prohibited by the Constitution. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). An unreasonable search has been defined as " ' "an examination or inspection without authority of law of one's premises or person, with a view to the discovery of * * * some evidence of guilt, to be used in the prosecution of a criminal action. " ' " State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969). The protection against unreasonable searches and seizures is "the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile. There he is protected from unwarranted governmental intrusion." Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966). It is basic that, subject to a few specifically established exceptions, searches conducted without a properly issued search warrant are Per se unreasonable under the fourth amendment, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and the best assurance of reasonableness lies in obtaining a properly issued search warrant. Two of the recognized exceptions, pertinent to decision of this assignment of error, are search incident to a lawful arrest, Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973), and seizure of items falling within the plain view doctrine, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Alford, 289 N.C. 372, 222 S.E.2d 222 (1976), Death sentence vacated, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed.2d 69. The United States Supreme Court has limited the scope of reasonable search when made incident to an arrest to the area from which the arrested person might have obtained a weapon or some item that could have been used as evidence against him. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Shipley v. California, 395 U.S. 818, 89 S.Ct. 2053, 23 L.Ed.2d 732 (1969). Even so this seemingly stringent rule has been subject to interpretation by other courts particularly in connection with the well-established rule that whether a search and seizure is unreasonable must be determined upon the facts and circumstances surrounding each individual case. State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968). We find it helpful to review some of these decisions.

In State v. Quinn, 565 S.W.2d 665 (Mo.Ct.App.1978), the defendant challenged the admission of a gun into evidence on the basis that it was the product of an illegal search and seizure. In Quinn there had been an armed robbery, and the victim had described his assailants to the police. The police officers having these descriptions saw defendant and a Miss Sullivan, who fit the descriptions furnished the police, sitting on the steps of a building. Defendant had a brown bag 18 by 24 inches in size in his hand, and when the police officers called him to their car, he handed the bag to Miss Sullivan. When she was also summoned to the automobile, she placed the bag on the step of the building. Thereupon, one of the officers picked up the bag because he "presumed it was their property." Although he could not see the gun, he "felt" it when he picked up the bag. The Court of Appeals of Missouri, upon viewing the totality of the circumstances, found no violation of defendant's fourth amendment rights and in so holding, in part, reasoned:

. . . (T)here was not an unreasonable "seizure" the ultimate test under the Fourth Amendment in retrieving the bag and "seizing" the gun. The officer saw two people on the porch, not in a home, with a bag. The officer could reasonably anticipate that it belonged to one or the other or both. The appellant does not question that the officer had probable cause to stop and arrest the appellant. When he placed appellant in the cruiser, he was in effect arrested. A robbery had just occurred; the bag was left on the step; the officer was going to take the two into custody. If the officer did not retrieve the bag on the step, he may well have been subject to criticism or at worst legal action. To wait on the street and "stand over" the bag until a search warrant could be obtained would be impractical. The test is not whether it is reasonable to obtain a warrant but whether the seizure of the bag under these circumstances was reasonable. See Mulligan v. United States, 358 F.2d 604, 607 (8th Cir. 1966). The Fourth Amendment does not require that the police blindly ignore evidence which is left under such circumstances. See (State v.) Brewer, 540 S.W.2d (229) at 231 (Mo.App.). The practical and reasonable action was to retrieve the bag, and, upon taking possession of the bag, the officer was justified in taking the gun found in the fold. . . .

. . . (T)he retrieval of the bag came within the "plain view" exception to the warrant requirement although the contents of the bag were not readily perceived. "Plain view" alone is not sufficient to justify a warrantless seizure. It is also necessary that (1) the evidence be observed in plain view while the officer is in a place where he has a right to be, (2) the discovery of the evidence is inadvertent and (3) it is apparent to the police that they have evidence before them. (State v.) Collett, 542 S.W.2d (783) at 786 (Mo.); Coolidge (V. New Hampshire, 403 U.S. 443) 91 S.Ct. (2022) at 2037, (29 L.Ed.2d 564). These requirements are met here. . . .

The Supreme Court of the United States in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), again approved a warrantless search when made incident to a lawful arrest in the following language:

Such searches may be conducted without a warrant, and they may also be made whether or not there is probable cause to believe that the person arrested may have a weapon or is about to destroy evidence. The potential dangers lurking in all custodial arrests make warrantless searches of items within the "immediate control" area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved. . . .

State v. Austin, 584 P.2d 853 (Utah 1978), is a case strikingly similar to the case before us for decision. There defendant was convicted of aggravated robbery, and at trial moved to suppress certain charred papers found in a waste basket in his hotel room and a roll of nickels found on a chair in the hotel room where he was arrested. The trial judge denied defendant's motion to suppress, and in affirming that ruling, the Supreme Court of Utah stated:

Appellant does not challenge the legality of his arrest but maintains that because he was handcuffed, he had no "control" over the area; therefore, the search cannot be justified under the Chimel standard. . . .

The effect of putting handcuffs on the person under arrest has not been held to negate the existing circumstances surrounding a search but is considered to be only one factor in determining the necessity for the search. Several jurisdictions have addressed this specific issue. In State v. Cox (294 Minn. 252, 200 N.W.2d 305 (1972)) a search was made after handcuffing the defendant. The Minnesota Court held as follows:

. . . that the search was valid to the extent that the officers stayed within the bedroom, the area within the defendant's immediate control. The fact that defendant may have been handcuffed at the time the police searched that limited area is not alone a sufficient factor to distinguish this case from other cases in which we have approved the search involved as being limited to the area within the arrestee's immediate control. . . .

In People v. Floyd the New York Court said (26 N.Y.2d 558) at page 563, 312 N.Y.S.2d (193) at page 196, 260 N.E.2d (815) at page 817:

. . . It suffices that it is not at all clear that the 'grabbing distance' authorization in the Chimel case is conditioned upon the arrested person's continued capacity 'to grab.'

It thus appears that the defendant in custody need not be physically able to move about in order to justify a search within a limited area once an arrest has been made. This same position was affirmed in People v. Fitzpatrick (32 N.Y.2d 499, 346 N.Y.S.2d 793, 300 N.E.2d 139 (1973), Cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324):

. . . And the fact that the police had handcuffed the defendant did not render the closet search (where he was found and removed from) unauthorized.

In the instant matter, the police went to the hotel and knocked on the door. They were admitted into the room where they proceeded to arrest the appellant. Any subsequent search of the immediate area, whether to find concealed weapons or to preserve evidence that was in danger of being destroyed, was proper as incident to a valid arrest. No warrant was required as long as the search was properly confined to a limited area within the appellant's control. Here, the search was restricted to a single room where the...