State v. Lindquist

• Decision Date: 24 May 1972
• Docket Number: No. 721SC314,721SC314
• Citation: 14 N.C.App. 361,188 S.E.2d 686
• Parties: STATE of North Carolina v. Charles John LINDQUIST.
• Court: North Carolina Court of Appeals

Page 686

188 S.E.2d 686

14 N.C.App. 361

STATE of North Carolina v. Charles John LINDQUIST.

No. 721SC314.

Court of Appeals of North Carolina.

May 24, 1972.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Eugene Hafer, for the State.

Christopher L. Seawell, Elizabeth City, for defendant appellant.

HEDRICK, Judge.

The defendant first contends that 'the Court committed error in allowing into evidence the resuls of the search of the defendant's automobile by Officer Pilgreen.'

'The owner of the premises may consent to a search thereof and thus waive the necessity of a valid search warrant so as to render the evidence obtained in the search competent. State v. Colson, Supra (274 N.C. 295, 163 S.E.2d 376, cert. den. 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed.2d 780); State v. Moore, Supra (240 N.C. 749, 83 S.Ed.2d 912). To have such effect, the consent of the owner mjst be freely and intelligently given without coercion, duress or fraud, and the burden is upon the state to prove that it was so, the presumption being against the waiver of fundamental constitutional rights. State v. Little, 270 N.C. 234, 154 S.E.2d 61. However, the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, in order to make competent a confession made in custody, need not be given by officers before obtaining the consent of the owner to a search of his premises. State v. Craddock, 272 N.C. 160, 158 S.E.2d 25.' State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971).

Since the officers in the present case had no search warrant, the defendant's objection to the evidence obtained as a result of the search of the defendant's vehicle raised a question of fact to be resolved by the trial judge as to whether the defendant's consent had been given freely and intelligently without coercion, duress, or fraud. State v. Vestal, Supra.

To resolve the question thus presented, a Voir dire hearing was held in the absence of the jury where the court heard evidence and made the following pertinent findings and conclusions:

'. . . that about 12:50 A.M., o'clock, June 10, 1971, the witness, R. W. Pilgreen . . . stopped a vehicle in the vicinity of Frisco, which was being operated without a front headlight, and which came over into his lane of travel, that in talking with the defendant, who was the driver of the vehicle, at the patrol car, as to who owned the car, the defendant stated that he was the owner of the car, but had not had the registration papers transferred, as the car had been traded.

That the defendant was advised by the patrolman that he was going to cite him for improper equipment violation for his light being out, since he, the officer, had seen this same car previously with a light out; that he observed the pupils of the defendant's eyes were somewhat dilated, and the officer asked the defendant for a right to search the vehicle, at which time the defendant responded 'Yes,' and then stated 'No,'; that the officer then advised the defendant that he did not have to give consent to him to search the car, but when consent was given that he would have charge of the car for purposes of searching it, and to think about his decision while he was writing the ticket.

The officer thereafter asked the defendant, in the presence of Deputy Sheriff Basnett, who had come to the car in the meantime, 'Do you give me your permission to search your vehicle?', and the defendant stated, 'yes, I do'; before asking questions of the defendant he asked the defendant had he thought it over, and he responded 'Yes.'

Thereafter search was made of the car.

. . . the officer had no warrant, and no search warrant.

The Court finds that the defendant was the driver and owner and in control of said vehicle, and freely, voluntarily, understandingly and without compulsion gave consent to the officer to search said vehicle.

The Court concludes . . . that after consent was given a search warrant was not required, and that such evidence, if any, produced as result of the consented search is admitted in evidence for such weight as the jury may see fit to give it.'

We hold there was ample competent evidence introduced at the Voir dire hearing to support the trial judge's findings that the defendant freely and intelligently without coercion, duress or fraud consented to Officer Pilgreen's warrantless search of his automobile. State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E.2d 652 (1971); State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970). This assignment of error is not sustained.

Assigning as error the denial of his motion 'for dismissal or directed verdict of not guilty,' the defendant asserts that there is absolutely no evidence that the defendant had any knowledge that the marijuana was in his automobile and that guilty knowledge is an essential element of the crime herein charged. This contention has no merit under the facts of this case. Where, as here, a specific intent is not an element of the crime, proof of the commission of the unlawful act is sufficient to support a verdict. State v. Elliott, 232 N.C. 377, 61 S.E.2d 93 (1950); State v. Ferguson, 261 N.C. 558, 135 S.E.2d 626 (1964); State v. Jiles, 1 N.C.App. 137, 160 S.E.2d 125 (1968). It follows therefore that the State made out a Prima facie case when it offered evidence tending to show that the defendant's responses were 'real slow,' that the pupils of his eyes were...