State v. Reid, 7421SC502
| Citation | 23 N.C.App. 194,208 S.E.2d 699 |
| Decision Date | 02 October 1974 |
| Docket Number | No. 7421SC502,7421SC502 |
| Parties | STATE of North Carolina v. Johnny REID. |
| Court | Court of Appeal of North Carolina (US) |
Atty. Gen. James H. Carson, Jr., by Associate Atty. James Wallace, Jr., Raleigh, for the State.
Harrell Powell, Jr., Winston-Salem, for defendant appellant.
Defendant first contends that the trial court erred in allowing the evidence, pills and pints of whiskey, that was seized from the search of a 1970 Pontiac, to be entered in that said search was illegal.
The automobile was parked in the lot of a service station of which defendant was night manager. The search warrant gave the officers authority to search the premises but did not specifically refer to the automobile.
Although we find no North Carolina appellate court decision which has addressed itself to the question of whether the search of a vehicle not mentioned in the warrant is permissible, various other states have held that where the warrant designates the building on the premises to be searched, a search of a motor vehicle parked near the building and on the same premises is not an unreasonable search. 79 C.J.S. Searches and Seizures § 83, p. 903. In Massey v. Commonwealth, 305 S.W.2d 755 (Ky.1957), a search of a vehicle parked at the rear door of the premises being searched was upheld. On the same day, the Court of Appeals of Kentucky held that if a search warrant validly describes the premises, a vehicle found thereon may be searched even though the warrant contains no description of the vehicle. McCissell v. Commonwealth, 305 S.W.2d 756 (Ky.1957). In Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716 (1940), where the vehicle was owned by the person mentioned in the warrant and the vehicle was within the boundaries of the premises being searched, a search of the vehicle was upheld.
A number of cases have upheld the search of a vehicle on the premises where the search warrant authorized a search of a building and 'outbuildings', or 'the yard and outhouses', or the building 'together with all outbuildings, places, and premises used or connected therewith'. Bowdry v. State, 82 Okl.Cr. 119, 166 P.2d 1018 (1946); Alexander v. State, 108 So.2d 308 (Fla.App.1959); Lindley v. State, 294 P.2d 851 (Okl.Cr.1956). Similarly a search of a vehicle on the premises has been upheld where the search warrant directed officers to search 'specific realty and curtilage and appurtenances'. Leslie v. State, 294 P.2d 854 (Okl.Cr.1956).
Although the search warrant in this case does not specifically refer to all outbuildings, appurtenances, etc., it does refer to the affidavit upon which the search warrant was issued and incorporates the description of the premises contained therein. This description refers to 'a small one-room gray metal out building . . . approximately 15-feet . . .' from the service station. Thus it seems clear that the warrant authorized a search not only of the service station building itself, but also the surrounding premises. Consequently, a search of defendant's vehicle, which was on the premises at the time and within the area encompassed by the search warrant, was authorized and not unreasonable.
The fact that the officers observed vials of pills and capsules on the dashboard of defendant's vehicle also provided grounds for a search of the vehicle. Probable cause for a warrantless search of an automobile exists if there is 'a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction . . .' United States v. Moody, 485 F.2d 531 (3d Cir. 1973). Having observed vials of pills and capsules in plain view on the dashboard of the defendant's vehicle, which vials they reasonably suspected contained controlled substances, the officers here could reasonably conclude the vehicle contained other contraband which justified a complete search of the vehicle.
Defendant next contends that the trial court erred in allowing Officer Wilson to testify as to any evidence pertaining to a Rossi firearm found within the defendant's car. Defendant argues that this testimony was irrelevant and prejudicial.
The State apparently concedes this testimony was irrelevant in that it had no logical tendency to prove any fact in issue and that it was error to admit such testimony. The State, however, contends that the defendant was not substantially prejudiced by this testimony.
'Not every erroneous ruling on the admissibility of evidence will result in a new trial being ordered. When the reviewing court is convinced that justice has been done and that evidence which was excluded would not, if admitted, have changed the result of the trial, a new trial will not be granted. So also where evidence has been improperly admitted. 'The burden is on the appellant not only to show error but to enable the Court to see that he was prejudiced or the verdict of the jury probably influenced thereby. " Stansbury, N.C. Evidence 2d, § 9, (Brandis Rev. 1973).
After a careful review of the record we are convinced that justice has been done in this case and that the admission of testimony regarding the Rossi firearm did not affect the outcome of this case. The defendant has failed to show that the admission of such testimony substantially prejudiced him or that the verdict of the jury was influenced thereby.
Defendant's third assignment of error relates to the testimony of Vernon H. Smith, Vice-President of Davis Insurance Company, who testified as to the signature on an assigned risk automobile insurance policy. Defendant contends that in admitting this testimony, the trial court committed error since the witness testified that the signature on the policy was the defendant's signature and there was no showing the witness had seen the defendant sign his name before. From the record, however, we find that the testimony was not that the signature on the policy was defendant's but rather only that the policy was issued to one 'Johnny Reid' and that the signature on the policy read 'Johnny Reid'. The witness specifically stated he did not know whether the signature was that of the defendant, or someone else...
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...on the grounds "may be searched though not specifically described." 134 Ga.App. at 341, 214 S.E.2d at 383-84. In North Carolina v. Reid, 23 N.C.App. 194, 208 S.E.2d 699 (1974), the court upheld the search of a vehicle that was on the premises at the time and within the area encompassed by t......
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