State v. Thompson

• Decision Date: 16 March 1979
• Docket Number: No. 87,87
• Citation: 252 S.E.2d 776,296 N.C. 703
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Howard Keith THOMPSON, Jimmie Dale Hardee.

Page 776

252 S.E.2d 776

296 N.C. 703

STATE of North Carolina v. Howard Keith THOMPSON, Jimmie Dale Hardee.

No. 87.

Supreme Court of North Carolina.

March 16, 1979.

Burney, Burney, Barefoot & Bain by Roy C. Bain, Wilmington, for defendant-appellant Hardee.

Atty. Gen., Rufus L. Edmisten by Lucien Capone, III, Associate Atty. Gen., Raleigh, for the State.

BROCK, Justice.

We observe first that it is problematic whether the officers' conduct in this instance constituted a "seizure", thus invoking the protection of the Fourth Amendment. " 'No one is protected by the Constitution against the mere approach of police officers in a public place.' United States v. Hill, 340 F.Supp. 344 (E.D.Pa.1972)." State v. Streeter, 283 N.C. 203, 208, 195 S.E.2d 502, 506 (1973). Because we consider the officers' conduct to be constitutionally permissible under the standards governing an actual "seizure", however, our consideration will proceed on the assumption the officers indeed effected a "seizure" of the occupants of the van.

The officers' conduct in this instance is governed by the standards set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry involved the constitutionality under the Fourth Amendment of a " stop and frisk" by a police officer. Because there was no "frisk" in this case, we examine only whether the officers were entitled to approach and detain the occupants of the van for purposes of investigation and the reasonableness of their conduct in doing so. The Supreme Court's analysis in Terry was " a dual one whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905. 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). Thus we must examine both the articulable facts known to the officers at the time they determined to approach and investigate the activities of the occupants of the van and the rational inferences which the officers were entitled to draw from those facts. In doing so, however, we do not believe the circumstances should be analyzed in isolation, but that they should be viewed as a whole "through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training." U. S. v. Hall, 174 U.S.App.D.C. 13, 15, 525 F.2d 857, 859 (1976).

Relying on the findings of fact on Voir dire which are supported by competent evidence and thus conclusive, State v. Crews, 286 N.C. 41, 209 S.E.2d 462 (1974), on what facts and inferences was the officers' conduct predicated? The van and a motorcycle were located in a public parking area in an isolated region of New Hanover County at the end of State Highway 421. The hour was late, approximately 12:30 a. m. The officers were aware that break-ins involving a van had been reported recently in the vicinity. The front passenger door and the side door of the van were observed to be open. A not unreasonable inference to be drawn from these empirical facts was that the occupants of the van might be in some way connected with the reports of recent break-ins in the vicinity. Indeed, even absent the reports of recent break-ins, given the late hour, the isolated location of the van in a public place, and the considerable activity around it observed by the officers, the inference might reasonably be drawn that the situation warranted investigation. These facts and the reasonable inferences to be drawn, when viewed as a whole and through the eyes of experienced police officers, would, we believe, justify a reasonable suspicion that the occupants of the van might be engaged in or connected with criminal activity. On that basis, we find that the officers acted within the limits of the Fourth Amendment in approaching the van and seeking identification from the occupants.

Appellants further contend, however, that Officer Wolak's act of leaning into the van through the open front passenger door after defendant Thompson had stepped from the vehicle constituted an unreasonable intrusion of their expectation of privacy and thus a violation of their Fourth Amendment rights. With this contention we cannot agree. Officer Wolak's purpose in leaning into the van and reaching across to the driver was to obtain the identification the driver had been asked to show him. It was this act which put Officer Wolak in a position to observe, in plain view, the hashish. We cannot say, however, that the officer's conduct was unrelated in scope to the circumstances which justified the initial approach to investigate. Terry v. Ohio, supra. The court found as a fact that Officer Wolak asked defendant Thompson to step out and Thompson voluntarily complied with that request. From the position in which Officer Wolak was standing we cannot say it was unreasonable for him to reach across the seat for the driver's identification. See United States v. Anderson, 552 F.2d 1296 (8th Cir. 1977); United States v. Bradshaw, 490 F.2d 1097 (4th Cir. 1974). Therefor Officer Wolak had a right to be in the position he was in when he discovered, in plain view, the hashish. Evidence of that discovery and other evidence subsequently discovered as a result was properly admitted. The opinion of the Court of Appeals is

Affirmed.

BRITT, J., took no part in the consideration or decision of this case.

EXUM, Justice, dissenting:

I fully agree with the majority's analysis of the legal problem presented. The majority has correctly identified the applicable legal principles by which the conduct of the police officers here must be judged. There was, in my view, a seizure of the occupants of the van, particularly the defendant Thompson, pursuant to which Officer Wolak got himself in a position to observe the hashish "in plain view"...