State v. White

• Decision Date: 28 July 1988
• Docket Number: No. 599PA87,599PA87
• Citation: 370 S.E.2d 390,322 N.C. 770
• Court: North Carolina Supreme Court
• Parties: , 57 USLW 2146 STATE of North Carolina v. Danny Alexander WHITE.

Page 390

370 S.E.2d 390

322 N.C. 770, 57 USLW 2146

STATE of North Carolina v. Danny Alexander WHITE.

No. 599PA87.

Supreme Court of North Carolina.

July 28, 1988.

Lacy H. Thornburg, Atty. Gen. by John F. Maddrey, Asst. Atty. Gen., Raleigh, for the State, appellant.

Grant Smithson, Charlotte, for defendant-appellee.

MARTIN, Justice.

Defendant was convicted of six counts of felonious possession of stolen property and two counts of misdemeanor possession of stolen property. The state appeals from the decision of the Court of Appeals granting defendant a new trial on seven of the eight counts of possession of stolen property. For the reasons set forth below, we reverse the ruling of the Court of Appeals granting a new trial on four counts but uphold the granting of a new trial on the three remaining counts on which defendant was convicted.

The state's evidence tends to show: Officer Bailey of the Mecklenburg County Police Department testified that he and other officers were investigating a series of break-ins that had occurred in the vicinity of South Mecklenburg High School. On 4 January 1986, police officers discovered a station wagon in the parking lot at the high school containing property stolen from a neighborhood residence. The registered owner of the station wagon testified that he had sold the vehicle to defendant. An informant, Andre Mobley, who confessed to being an accomplice of defendant's in carrying out six to eight of the break-ins, provided the officers with information concerning the crimes. The informant gave the Mecklenburg County police detailed information about several of the break-ins and some of the property stolen. He told police he had seen certain specific items of stolen property at defendant's 512 West Worthington Avenue home in Charlotte. On 15 January 1986, Officer Bailey obtained a warrant to search defendant's home, which he and four other officers executed on 16 January. The warrant application listed the items that Mobley had seen and, on the strength of his information, asserted that there was probable cause to search defendant's home for these items.

When police officers searched defendant's home, they recovered only one item, a JVC stereo, that was listed in the search warrant. When the police officers executed the search warrant, they took with them Mecklenburg County police incident reports listing property stolen in the South Mecklenburg High School neighborhood rash of break-ins in the preceding six-week period. In addition to the JVC stereo, police officers seized items listed on police incident reports as having been stolen in recent break-ins in the same neighborhood. They also seized items that were listed neither on the search warrant nor on county police incident reports. These last-mentioned items were stolen during break-ins that were under investigation by city police rather than county police. Convictions were obtained in the cases of the eight break-in victims who testified at defendant's trial. Each identified one or more items seized during the 16 January search of defendant's house as among the items stolen from their residences. These items included stereo equipment, a raccoon coat, jewelry, and costume jewelry. One victim-witness recovered all of his stolen possessions. They were discovered by police either in defendant's station wagon on the night of 4 January or during the course of the search of defendant's home. The other victim-witnesses each testified that only a fraction of the property stolen from them was recovered.

Defendant first contends that the trial court committed prejudicial error when it denied his pretrial motion to suppress items which had not been specifically identified in the warrant application and were seized during the 16 January 1986 search of his home. Defendant argues that his fourth and fourteenth amendment rights under the Federal Constitution were violated by the seizure of the items not listed on the warrant application because no valid exception to the fourth amendment's warrant requirement, in particular the "plain view" exception, was applicable to his case. The state argues that because the items in question were inadvertently discovered while a lawful search was in progress, their seizure falls within the plain view exception to the warrant requirement of the United States Constitution and also satisfies the strictures of N.C.G.S. § 15A-253. Because defendant has made no allegation of violation of his rights under the North Carolina Constitution, we decide this issue under the Federal Constitution and applicable statutory law.

In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the United States Supreme Court set out three requirements which must be met in a lawful police seizure of evidence in plain view without a warrant. The Coolidge three-part test was applied in State v. Williams, 315 N.C. 310, 338 S.E.2d 75 (1986). There Justice Meyer summarized the Coolidge requirements:

First, the initial intrusion which brings the evidence into plain view must be lawful. Id. [403 U.S.] at 465, 91 S.Ct. at 2037, 29 L.Ed.2d at 582. Second, the discovery of the incriminating evidence must be inadvertent. Id. at 469 , 29 L.Ed.2d at 585. Third, it must be immediately apparent to the police that the items observed constitute evidence of a crime, are contraband, or are otherwise subject to seizure. Id. at 466 , 29 L.Ed.2d at 583.

315 N.C. at 317, 338 S.E.2d at 80.

In the case before us, the Court of Appeals concluded that while the seizure of the items not listed on the search warrant satisfied the first and third Coolidge requirements, the discovery was not inadvertent and the seizure of these items was thus illegal. The Court of Appeals reaches this result because it interprets "inadvertence" to mean "unanticipated" or "unexpected." We reject the analysis of "inadvertent discovery" employed by the Court of Appeals and, accordingly, reach a different result as to the admissibility of the contested evidence seized at defendant's home on 16 January 1986.

The Coolidge decision did not make explicit the meaning to be given to "inadvertence" in the test for the plain view exception to the warrant requirement. The Coolidge Court does, however, provide some general guidance through its discussion of the objectives of the warrant requirement of the fourth amendment:

First, the magistrate's scrutiny is intended to eliminate altogether searches not based on probable cause.... The second, distinct objective is that those searches deemed necessary should be as limited as possible. Here, the specific evil is the "general warrant" abhorred by the colonists, and the problem is not that of intrusion per se, but of a general, exploratory rummaging in a person's belongings.

403 U.S. at 467, 91 S.Ct. at 2038, 29 L.Ed.2d at 583. Justice Stewart, writing for the plurality in Coolidge, argues that the plain view exception does not thwart these objectives. The initial intrusion is justified by a warrant while the second requirement bars police from launching a general exploratory search. Id. at 467, 91 S.Ct. at 2038, 29 L.Ed.2d at 583-84.

In United States v. Hare, 589 F.2d 1291 (6th Cir.1979), the Sixth Circuit Court of Appeals provides an analysis of the concept of inadvertent discovery which we find persuasive. That court concludes that "inadvertence," in the context of the plain view doctrine, "means that the police must be without probable cause to believe evidence would be discovered until they actually observe it in the course of an otherwise justified search." Id. at 1294. The Sixth Circuit in effect proposes a two-step inquiry into the constitutional propriety of supposedly "plain view" seizures: (1) Prior to the search did the police have probable cause to secure a search warrant for the items subsequently seized--but not specifically listed in the warrant--at the location to be searched? If the answer is positive, the seizure is illegal and the fruits of it must be suppressed. If the answer is negative, the inquiry proceeds to the question, (2) did the police have probable cause to believe that the seized items were evidence of criminal conduct when the subsequent warrantless seizure actually took place? As to the second phase of the inquiry, the United States Supreme Court has recently confirmed the approach of the Hare court. In Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), the Court ruled that in order to invoke the plain view doctrine, absent police operational necessities in efforts to detect certain types of crime, police must have probable cause to believe that items seized without a warrant are evidence of criminal conduct at the time of the seizure. Id. at ----, 107 S.Ct. at 1153, 94 L.Ed.2d at 355. The Hare Court explains its support for what we have called step one of an inadvertency analysis as follows:

There are many times when a police officer may "expect" to find evidence in a particular place, and that expectation may range from a weak hunch to a strong suspicion. However, the Fourth Amendment prohibits either a warrant to issue or search based on such an expectation. Yet if in the course of an intrusion wholly authorized by another legitimate purpose, that hunch or suspicion is confirmed by an actual observation, the police are in precisely the same position as if they were taken wholly by surprise by the discovery. The same exigent circumstances exist, and no warrant could have been obtained before the discovery.

589 F.2d at 1294. The Sixth Circuit reasons that when police come upon evidence they have no warrant to seize during a search legitimately targeted at other evidence, the seizure of that evidence is rendered exigent. To leave it is to risk its being spirited away by criminals or their confederates. The court distinguishes between exigencies of police officers' own making--where they have failed to include items they have probable cause to...