State v. Greenwood

• Decision Date: 05 August 1980
• Docket Number: No. 7918SC1032,7918SC1032
• Citation: State v. Greenwood, 47 N.C.App. 731, 268 S.E.2d 835 (N.C. App. 1980)
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Michael Barxley GREENWOOD.

Page 835

268 S.E.2d 835

47 N.C.App. 731

STATE of North Carolina v. Michael Barxley GREENWOOD.

No. 7918SC1032.

Court of Appeals of North Carolina.

Aug. 5, 1980.

Atty. Gen. Rufus L. Edmisten by Associate Atty. William R. Shenton, Raleigh, for the State.

Asst. Public Defender, Robert L. McClellan, Greensboro, for defendant-appellant.

MORRIS, Chief Judge.

Defendant's various assignments of error are presented in his brief under the general contention that the trial court erred by failing to grant defendant's pretrial motion to suppress. We consider defendant's appeal by examining his arguments with respect to the various aspects of the police officer's conduct on this occasion, from the initial contact with defendant through the subsequent arrests.

Defendant argues that his initial detention by Officer Simpson in the church parking lot constituted a "forcible stop" or "seizure" of his person, and that under the circumstances the officer had no authority to intrude upon his "reasonable expectation of privacy" as he sat in his automobile with the windows rolled up.

With respect to defendant's claim of an expectation of privacy, our United States Supreme Court recently stated that an individual operating an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Indeed, just as people do not waive their Fourth Amendment protections against unreasonable searches and seizures when they step from their homes onto public sidewalks, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), neither do they lose those protections when they step from the sidewalks into their automobiles. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). See also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Even assuming in the case before us that defendant enjoyed a reasonable expectation of privacy while in his automobile parked in the church parking lot, we are of the opinion that the police officer acted properly when he approached defendant in his vehicle for the purposes of a limited investigation.

In Delaware v. Prouse, supra, the Court stated that "the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against 'an objective standard', whether this be probable cause or a less stringent test." 440 U.S. at 654, 99 S.Ct. at 1396, 59 L.Ed.2d at 667-68. Both the United States Supreme Court and our own North Carolina Supreme Court have recognized the limited right of police officers, in appropriate circumstances, to approach an individual for purposes of investigating "possible criminal behavior", even though there is no probable cause to make an arrest. Terry v. Ohio, supra; State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973). The "stop and frisk" rule, as applied in North Carolina is explained in State v. Streeter, supra, as follows:

"(I)f the totality of circumstances affords an officer reasonable grounds to believe that criminal activity may be afoot, he may temporarily detain the suspect. If, after the detention, his personal observations confirm his apprehension that criminal activity may be afoot and indicate that the person may be armed, he may then frisk him as a matter of self-protection. (Citations omitted.)

283 N.C. at 210, 195 S.E.2d at 507. (In this case, we are only concerned with the "stop" element of this rule, that is, the "forcible stop" or "seizure" of defendant's person while he sat in his automobile.) This rule has been extended to persons travelling in automobiles, Adams v. Williams, supra, where there is "at least articulable and reasonable" suspicion that a motorist or his vehicle is somehow subject to seizure for violation of law. Delaware v. Prouse, supra. This right to conduct an investigatory stop or seizure of an individual has been approved in many decisions since State v. Streeter, supra, on different facts. E. g., State v. Buie, 297 N.C. 159, 254 S.E.2d 26, cert. denied, 444 U.S. 971, 100 S.Ct. 464, 62 L.Ed.2d 386 (1979); State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979); State v. McZorn, 288 N.C. 417, 219 S.E.2d 201 (1975), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210 (1976); State v. Sadler, 40 N.C.App. 22, 251 S.E.2d 902, cert. denied and appeal dismissed, 297 N.C. 303, 254 S.E.2d 924 (1979); State v. Stanfield, 19 N.C.App. 622, 199 S.E.2d 741 (1973), appeal dismissed, 284 N.C. 622, 201 S.E.2d 692 (1974). See also Gaines v. Craven, 448 F.2d 1236 (9th Cir. 1971) and United States v. Unverzagt, 424 F.2d 396 (8th Cir. 1970) (where it was held that police officers acted properly by conducting an investigatory stop of a "suspicious individual" under circumstances in which the officers had a reasonable belief that further investigation was necessary to test information which had been given to them.) This standard was refined in the recent decision of State v. Thompson, supra, where the Court applied both Terry v. Ohio, supra, and Adams v. Williams, supra. The Court stated:

The standard set forth in Terry for testing the conduct of law enforcement officers in effecting a warrantless "seizure" of an individual is that "the police officer must be able to point to specific and articulable facts, which taken together with rational inferences from those facts, reasonably warrant (the) intrusion." Id. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. In Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 617 (1972), the Court reaffirmed the principle of Terry that "(a) brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." The standard set forth in Terry and reaffirmed in Adams clearly falls short of the traditional notion of probable cause, which is required for an arrest. We believe the standard set forth requires only that the officer have a "reasonable" or "founded" suspicion as justification for a limited investigative seizure. United States v. Constantine, 567 F.2d 266 (4th Cir. 1977); United States v. Solomon, 528 F.2d 88 (9th Cir. 1975).

296 N.C. at 706, 252 S.E.2d at 779.

Under the facts before us, it is our view that the "totality of the circumstances" afforded Officer Simpson the basis of authority to approach defendant's automobile parked in the parking lot of a church and direct defendant to roll down his window for the limited purpose of investigating a report that a "suspicious person" was on the premises. The evidence on voir dire shows that the officer received a call between 7:00 p. m. and 8:00 p. m. on 27 November 1977 requesting him to investigate a "suspicious person" on the church premises. As he arrived, he was directed by churchgoers toward defendant, who was alone in an automobile parked in the corner of the lot.

We find these facts controlled by the recent decision of State v. Thompson, supra. There, police officers approached and detained defendants, who occupied a van parked in a public parking area in the early morning. Evidence showed that the officers were aware that criminal activity in the area involving a van had been recently reported. The Court, in upholding convictions based on evidence seized from the van, concluded that the facts and inferences drawn therefrom justified a reasonable suspicion that the occupants of the van might be engaged in or connected with criminal activity. The Court, therefore, found that the officers acted properly in approaching the van and seeking identification from its occupants.

Such conduct is similarly appropriate in the instant case. It appears that, based on the totality of circumstances as they were perceived through the eyes of Officer Simpson, the officer was justified in his belief that further investigation of defendant was necessary to test out the report previously given him. See Gaines v. Craven, supra; United States v. Unverzagt, supra.

In so holding, we reject as inapplicable defendant's argument that any authority given to police officers to detain motorists under G.S. 20-29 has been overruled by our United States Supreme Court in Delaware v. Prouse, supra, wherein the Court stated:

(W)e hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and registration of the automobile are unreasonable under the Fourth Amendment.

440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d at 673. Rather, under the decisions of Terry v. Ohio, supra, Adams v. Williams, supra, State v. Thompson, supra, and State v. Streeter, supra, we find from these facts a sufficient basis upon which Officer Simpson's investigatory stop of defendant's person was appropriate, independently of the officer's authority pursuant to G.S. 20-29 to detain motorists for the purposes of inspection on the public streets. This result is, furthermore, entirely consistent with the standard of "articulable and reasonable suspicion" announced in Delaware v. Prouse, supra.

We next consider whether the search of defendant's automobile was proper. The State argues that the search was proper in that the officer, upon detecting the odor of marijuana in and around defendant's car at...