State v. Fry

185 S.E.2d 256 (1971)

13 N.C. App. 39

STATE of North Carolina v. Charles Jethro FRY.

No. 715SC529.

Court of Appeals of North Carolina.

December 15, 1971.

Certiorari Denied and Appeal Dismissed February 9, 1972.

*259 Atty. Gen. Robert Morgan and Asst. Atty. Gen. James B. Richmond, for the State.

A. A. Canoutas, Wilmington, for defendant appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court February 9, 1972.

MALLARD, Chief Judge.

Defendant contends that the trial judge committed error in failing to suppress the testimony of Officer Howell of the New Hanover County Sheriff's Department and in subsequently allowing the three bags of marihuana to be introduced into evidence.

Officer Howell was testifying and was asked the question: "What did you see when you opened the door?" Defendant objected. No ruling on this objection was made by the judge, and the witness did not at that time answer the question. However, the judge sent the jury out; and after extensive questioning of the witness Howell, the defendant moved, in the absence of the jury, that the evidence and testimony of Howell be suppressed. This motion was denied and the defendants excepted. After the jury returned, the witness Howell did not answer the specific question that had been propounded to him previously but did testify in response to questions, without objection, as to what he did and what he saw after he had opened the door of the van. There was no objection to his testimony that he saw Watson with the bag (later determined to contain marihuana) in his hand and as to what Watson did with it. He also testified, without objection, to finding the two bags, later determined to contain marihuana, on the ground. Watson had testified that Fry had given him the two bags which he (Watson) dropped on the ground, and that McCrary had given him the one bag which was stuck in the motor. The three bags were identified by the witness without objection; however, the defendant did object to the introduction of the three bags into evidence.

We do not think that the question of the admissibility of the testimony of the witness Howell as to what he saw when he opened the door of the van is properly presented on this record. Moreover, his testimony tended to corroborate that of the State's witness Watson and was competent for that purpose. State v. Dixon, 8 N.C.App. 37, 173 S.E.2d 540 (1970); State v. Culbertson, 6 N.C.App. 327, 170 S.E.2d 125 (1969); 7 Strong, N.C.Index 2d, Witnesses, § 5. "Objections to evidence en masse will not ordinarily be sustained if any part is competent." State v. Brooks, 260 N.C. 186, 132 S.E.2d 354 (1963). See also 7 Strong, N.C.Index 2d, Trial, § 15.

Ordinarily, objections to the admission of testimony or other evidence must be made at the time of its introduction. An objection to the admission of evidence is necessary to properly present a defendant's contention on appeal that the evidence was incompetent. 3 Strong, N.C. Index 2d, Criminal Law, § 162. However, in view of the holdings in the cases of State v. McMilliam, 243 N.C. 771, 92 S.E.2d 202 (1956), and State v. McMilliam, 243 N.C. 775, 92 S.E.2d 205 (1956), and due to the fact that defendant's counsel may have been acting under the misapprehension that no further objections were necessary to present for review the question of competency of what Officer Howell saw when he opened the door of the van, we will consider the question.

A search ordinarily involves prying into hidden places, and a seizure *260 contemplates forcible dispossession. However, a police officer may seize and use what he sees in plain sight if he is at a place where he is lawfully entitled to be. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). See also an annotation in 26 L. Ed. 2d 893, entitled "Validity, Under Federal Constitution, or Warrantless Search of AutomobileSupreme Court Cases" and also State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969), and the cases cited therein. In the case before us, we hold that there was no "search"; the officer seized only that which was in plain view, and no search was required. The two bags of marihuana lying on the ground and picked up by the officer were not obtained by a search, nor was the bag he saw in Watson's hand.

From the testimony of Officer Howell, he had probable cause to arrest the operator of the defendant's van for reckless driving or driving across the center line and on the wrong side of the road. It was the duty of the officer to investigate a violation of the law occurring in his presence. It was at night. The driver could not be seen or identified from the rear of the vehicle. Under the circumstances, the officers were not required to run the risk of colliding with the vehicle while passing it in an attempt to identify the operator.

When the defendant Fry stopped the van and ran back to the officers' vehicle before the officers could get out, we think that Officer Howell, in investigating the incident, had probable cause to approach the van to determine if defendant Fry was alone in the van (and therefore the operator) and that when he could not observe whether there were any other occupants of the vehicle due to the cardboard in the right side window, he had a right to open the door. This action did not constitute a search of the vehicle. The officer was not required to go around to the other side or to try to look through the windshield. The officer was on one of the public streets in New Hanover County at a place where it was his duty to be and was investigating a violation of the traffic laws that had been committed in his presence. It is not a "search" when a police officer, investigating a violation of the traffic laws, opens the door of the vehicle involved when necessary to see the occupants thereof. In this case it was not an unlawful intrusion, and the officer was justified in opening the door of the vanit did not constitute an "unreasonable search."

"What the `plain view' cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused." Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). See also State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971), and State v. Jordan, 277 N.C. 341, 177 S.E.2d 289 (1970).

During this investigation, the officer inadvertently found evidence, in plain view, of the commission of a felony. An arrest for the commission of a felony was made. We hold that the failure of the officer to actually arrest the defendant (which he probably should have done) for the traffic violation did not render inadmissible the evidence of possession of marihuana which was in plain view while the officer was investigating, before arrest, a crime that he had probable cause to believe had been committed in his presence.

An arresting officer has the authority to seize and hold articles which he sees the accused trying to hide. Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960), rehearing denied 362 U.S. 984, 80 S. Ct. 1056, 4 L. Ed. 2d 1019, We hold that under the circumstances of the case, Officer Howell was an arresting officer and therefore had the authority to seize and hold the bag of marihuana which *261 he saw the State's witness Watson attempting to hide.

Assuming that the admissibility of the officer's testimony is properly presented, we hold that the trial court did not commit error in failing to suppress the testimony of the witness Howell. In view of the testimony of the witness Watson, as well as the witness Howell, the trial judge did not commit error in admitting into evidence the three bags containing the marihuana.

The defendant also contends that the trial judge committed error in failing to allow his motion for a directed verdict at the close of the evidence. This contention is without merit. There was plenary evidence to support the defendant's conviction of the crime charged.

The defendant also contends that the trial judge committed error when the jury was informed that motions for directed verdicts of not guilty had been entered by all of the defendants and had been granted only as to the defendants Sue Carol Caton and Marvin Pry. The defendants had made their motions in open court in the presence of the jury and after the State had rested. The motions were denied as to the defendants McCrary and Fry. The defendants then proceeded to offer Marvin Dean Pry (who had been a defendant) as a witness, whereupon the court instructed the jury in the following language with respect to the status of the case at that time:

"Ladies and gentlemen, motions have been made on the part of the defendants for directed verdicts of not guilty as to all of the defendants and motions have been granted as to the defendants Sue Carol Caton and the defendant Marvin Pry."

Under these circumstances, we do not think that this was an expression of an opinion by the judge, in violation of G.S. § 1-180, or that the trial judge committed prejudicial error in thus informing the jury.

In the trial we find no error.

No error.

HEDRICK and GRAHAM, JJ., concur.