State v. Phifer

• Decision Date: 02 January 1979
• Docket Number: No. 7826SC592,7826SC592
• Citation: 39 N.C.App. 278,250 S.E.2d 309
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Nathaniel PHIFER.

Page 309

250 S.E.2d 309

39 N.C.App. 278

STATE of North Carolina v. Nathaniel PHIFER.

No. 7826SC592.

Court of Appeals of North Carolina.

Jan. 2, 1979.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Marilyn Y. Rich, Raleigh, for the State.

Plumides, Plumides & Shuster by John G. Plumides, Charlotte, for defendant-appellant.

MORRIS, Chief Judge.

Although defendant grouped eight assignments of error in the Record, only one is brought forward and argued in his brief. It is addressed to the court's denying defendant's motion to suppress the evidence which the arresting officers found in the locked glove compartment of defendant's car while conducting an inventory of the contents of the car.

After a hearing on the motion to suppress, the court made findings of fact and concluded that the motion should be denied and the evidence obtained during the inventory procedure would be admissible in evidence. The defendant properly does not contend that the court's findings are not supported by the evidence. They are indeed supported by the evidence, and are as follows:

". . . (T)he Court after hearing evidence of both the State and the Defendant and argument of counsel for both parties makes the following findings of fact: That on the 17th day of November, 1977, Defendant, Nathaniel Phifer, was operating a 1972, black, Lincoln automobile in the City of Charlotte, that on the 17th day of November, 1977, at about the same time Officer W. F. Christmas of the Charlotte Police Department was on duty and working radar in the City of Charlotte; that Officer Christmas, through his radar equipment, clocked the Defendant driving his 1972 Lincoln automobile at 48 miles per hour in a 35 miles per hour speed zone; that Officer Christmas immediately pursued Defendant's automobile and was able to bring Defendant to a stop; that Defendant was advised that he was speeding 48 miles per hour in a 35 mile per hour zone and was advised that he would receive a citation for said violation; that Officer T. G. Barnes of the Charlotte Police Department was on duty on this date and operating a police vehicle in the City of Charlotte; that Officer T. G. Barnes arrived at the scene shortly after the Defendant was stopped by Officer Christmas and Officer Barnes informed Officer Christmas that he knew the Defendant; that Officer Christmas and Officer Barnes were informed through the Charlotte Police Department radio network that a warrant was outstanding for a traffic violation on Defendant; that Defendant was placed under arrest; that Officer Christmas frisked Defendant Phifer and found One Thousand Ninety-Nine Dollars in cash on his person; that Defendant then took a key from his shoe and tried to throw said key away, but was stopped by Officer Christmas who forceably took the key away from the Defendant; that Officer Christmas believe the key to be a glove compartment key for the 1972 Lincoln automobile;

That Officer Barnes pursuant to Charlotte Police Department policy which was effective February 26, 1976, and entitled Vehicle Towing and Inventory Procedure, pursuant to Charlotte Code, Section 20-11 and 20-20, commenced an inventory of the 1972, black Lincoln automobile; that Officer Barnes found five to eight . . . five eight-track tapes, a lady's coat, pair of blue jeans, a rust-colored sweater and a camera, which were in plain view inside the automobile; that Officer Barnes then took the key from Officer Christmas and opened the locked glove compartment of the 1972 Lincoln automobile and found a plastic bag containing a white powdery substance at which time Officer Barnes ceased his inventory and informed Officer Christmas that a search warrant was . . . that a search warrant should be obtained; that Officer Christmas did, in fact, obtain a search warrant on the 17th day of November, 1977, at 9:53 o'clock P.M., and a search pursuant to said warrant of a 1972, Lincoln automobile and, more specifically, the trunk thereof; produced a set of scales and residue of a white, powdery substance; that the 1972, Lincoln automobile was towed to the Charlotte Police Department garage immediately after Officer Barnes ceased his inventory upon finding a white, powdery substance or a powder containing a white, powdery substance in the glove compartment of said automobile, and prior to obtaining the search warrant as mentioned above;

That Officer Barnes knew the defendant prior to this incident and knew Defendant to be a suspected drug dealer. . . ."

Defendant contends that the procedures employed by the police officers in inventorying the contents of his automobile constituted an illegal search and that the evidence obtained was, therefore, inadmissible. We disagree.

In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the Court held that a police inventory which followed standard police procedures, was not unreasonable under the Fourth Amendment. Defendant's car was towed to the city impound lot because of multiple parking violations. The car was locked when towed away and impounded but, at the direction of a police officer, was unlocked after it was impounded. Pursuant to standard police procedures and using a standard inventory form, the officer inventoried the contents of the car, including the contents of the glove compartment, which was not locked. There he found a plastic bag containing marijuana. Defendant was arrested on charges of possession of marijuana, moved to suppress the evidence which the inventory had yielded, the motion was denied, and he was convicted. The Supreme Court of South Dakota reversed the conviction, holding that the evidence had been obtained in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. The Supreme Court of the United States granted certiorari and reversed. In so doing the majority said the standard procedure was not a pretext concealing an investigatory police motive, and the inventory was not unreasonable in scope. The Court noted that, in relation to the Fourth Amendment, it had traditionally drawn a distinction between automobiles and homes and recognized that one's "expectation of privacy with respect to one's automobile is significantly less than that relating to one's home or office." Id., 428 U.S. at 367, 96 S.Ct. at 3096, 49 L.Ed.2d at 1004. This is true because the function of the automobile is transportation. Rarely does it serve as one's residence or as the place where one keeps personal effects. For a variety of reasons, police frequently find it necessary and desirable to impound a vehicle. When this is done, most police departments follow a routine procedure of securing the automobile and inventorying its contents.

"These procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property, United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, supra, 386 U.S. 58, at 61-62, 87 S.Ct. 788, 17 L.Ed.2d 730. The practice has been viewed as essential to respond to incidents of theft or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 92 S.Ct. 1501, 31 L.Ed.2d 807 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971)." Id., 428 U.S. at 369, 96 S.Ct. at 3097, 49 L.Ed.2d at 1005.

The Court noted that the inventory procedure has been upheld by the great majority of State courts as constitutionally permissible, even where the inventory was characterized as a search, and that "the majority of the Federal courts of Appeal have likewise sustained inventory procedure as reasonable police intrusion". The Court further observed that "these cases have recognized that standard inventories often include an examination of the glove compartment, since it is a customary place for documents of ownership and registration . . . as well as a place for the temporary storage of valuables." Id., 428 U.S. at 372, 96 S.Ct. at 3098, 49 L.Ed.2d at 1007. The Court then adopted the same conclusion: that inventories pursuant to standard police procedures are reasonable, and on the record before it, there was no evidence that the inventory was other than standard police procedure prevailing throughout the country and "approved by the overwhelming majority of the courts". Id., 428 U.S. at 376, 96 S.Ct. at 3100, 49 L.Ed.2d at 1009.

While each case must stand on its own facts, a brief review of selected cases results in the conclusion that although the inventory "search" is a unique concept in law and cannot be "analyzed through the use of traditional constitutional tools", 48 Chicago-Kent Law Rev. 48, 52 (1971), certain principles emerge which should be devices for measuring the reasonableness of the procedure in a particular case.

In People v. Andrews, 6 Cal.App.3d 428, 85 Cal.Rptr. 908 (1970), U.S. Cert. denied, 400 U.S. 908, 91 S.Ct. 152, 27 L.Ed.2d 147 (1970), the Court held that where all the occupants of an automobile had been properly arrested, the police had the right to remove and impound the automobile and inventory its contents. Items discovered in the trunk during the inventory were held to be admissible in evidence in defendants' trial for burglary. The Court referred to other California cases as follows:

"People v. Superior Court, 2 Cal.App.3d 304, 309, 82 Cal.Rptr. 766, 770, in an irrelevant context, states, 'Evidence found in an "inventory" preparatory to a "proper impound" is not the result of a "search. " ' The court in People v. Marchese, supra, 275 A.C.A. 1135, 275 Cal.App.2d 1007, 80 Cal.Rptr. 525, found a police impound and inventory, following a 'drunk driving' arrest which disclosed narcotics in the car's locked trunk, to be proper and part of a ' " customary and well...