State v. Trapper
| Citation | 48 N.C.App. 481,269 S.E.2d 680 |
| Decision Date | 02 September 1980 |
| Docket Number | CRS-46,CRS-48,CRS-38,CRS-107,No. 792SC1188,CRS-109,792SC1188 |
| Parties | STATE of North Carolina v. Patrick M. TRAPPER (79-), Nunzio James Lombardo (79-), Dennis Lombardo (79-), Vincent Serge Lorusso (79-), and Clark William Oldenbrook (79-). |
| Court | Court of Appeal of North Carolina (US) |
Herman E. Gaskins, Jr., Washington, Joel Hirschharn, Miami, Fla. and Smith, Patterson, Follin, Curtis, James & Harkavy by Michael K. Curtis, Greensboro, for defendants-appellants.
We note at the outset that our Supreme Court has recently held in State v. Reynolds, 298 N.C. 380, 259 S.E.2d 843 (1979) that if a defendant intends to appeal from a ruling on a suppression motion after a plea of guilty, he must give notice of his intention to the prosecutor and the court before plea negotiations are finalized or he will lose his right of appeal. The record is not clear in this case that any notice of intention to appeal was given the prosecutor or the court. We shall consider the appeal on its merits.
The defendants contend that we should reverse and order the evidence of the marijuana suppressed. They argue that the affidavit submitted to the magistrate to search the truck did not support the issuance of a search warrant for the truck; that if the affidavit did support the issuance of the search warrant for the truck, the testimony at the hearing on the motions to suppress showed the evidence on which the affidavit was made was illegally obtained; the warrant to search the premises of Nunzio Lombardo was based on the invalid warrant to search the truck which makes it an invalid warrant; that even if the warrant to search the premises of Nunzio Lombardo was a good warrant, the officers exceeded the scope of the warrant in their search; and that the officers did not properly serve the warrant to search the premises.
In order for a magistrate to issue a search warrant, he must have evidence before him from which he can find probable cause that a crime has been committed and probable cause that evidence of the crime may be on the premises to be searched. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We hold that the affidavit in the case sub judice which contained the statement "a strong odor or marihuana (sic) was noticed as a license check was being made on driver of said vehicle" was evidence from which a magistrate could conclude that there was probable cause that the driver of the truck was in possession of marijuana and the marijuana might be found by a search of the truck. The word "or" was clearly a typographical error. The maker of the affidavit intended to use the word "of" in the context of the sentence. The defendants, relying on Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) contend that the affidavit showed on its face that the evidence was illegally obtained since it stated the odor of marijuana was detected while a license check was being made. Prouse held that evidence of marijuana was unconstitutionally obtained when a patrolman made a random stop of a car because he "wasn't answering any complaints." There was no reason to think the driver of the vehicle was violating any law at the time he was stopped. The United States Supreme Court held this intrusion violated the driver's Fourth and Fourteenth Amendment rights. The Supreme Court recognized that some driver's license checks are constitutionally permissible giving as one example a checkpoint operation in which all cars proceeding past a certain point are stopped. When the magistrate examined the affidavit in the case sub judice, it did not show what kind of driver's license check had been made. The affidavit did not show on its face that the driver's license check was improper. The magistrate did not err in issuing the warrant for a search of the truck.
The defendants' next contention is that the hearing before Judge Godwin showed that the evidence used to procure the search warrant for the truck was illegally obtained. They contend first that the odor of marijuana was not obtained under a plain view. See State v. Blackwelder, 34 N.C.App. 352, 238 S.E.2d 190 (1977). We do not believe the plain view doctrine is dispositive of this case. The defendants also contend that Mr. Carrowan did not have a valid reason to stop the truck and if he did, the officer could not detain the truck after the driver's license and registration check had revealed nothing irregular.
The United States Supreme Court has in several cases passed on the question of detaining persons for investigation without probable cause to believe the persons have committed crimes. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Delaware v. Prouse, supra; United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). We believe these cases hold that, consistent with the Fourth and Fourteenth Amendments, a person or vehicle may be detained for further investigation by a law enforcement officer without a warrant and without probable cause to believe a crime has been committed if the officer has a reasonable suspicion, that can be articulated, that a crime is being committed. The detention must not be unreasonable in length and the investigation must be reasonable. In the case sub judice, Mr. Carrowan was an experienced law enforcement officer; we take judicial notice of the fact that Hyde County is on the coast of North Carolina in an area which is regularly used by smugglers of marijuana; Mr. Carrowan had seen activity in the area of the Lombardo premises which made him suspicious; he had been fired upon while keeping the property under surveillance from the water; and he had seen a boat aground in the area of the premises without a satisfactory reason to him for its being there; and on 13 January 1979 at approximately 12:00 midnight, he saw a truck leave the premises of Nunzio Lombardo. We hold these are articulate reasons that could give rise to a suspicion on Mr. Carrowan's part that marijuana was being carried on the truck. He had a right to stop the truck for further investigation. We also hold the investigation was reasonable in extent and in time. The defendant Trapper was not interrogated. The officers did not open the truck body. T...
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