State v. Trapper

Annotate this Case

269 S.E.2d 680 (1980)

48 N.C. App. 481

STATE of North Carolina v. Patrick M. TRAPPER (79-CRS-38), Nunzio James Lombardo (79-CRS-107), Dennis Lombardo (79-CRS-109), Vincent Serge Lorusso (79-CRS-46), and Clark William Oldenbrook (79-CRS-48).

No. 792SC1188.

Court of Appeals of North Carolina.

September 2, 1980.

*682 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Daniel F. McLawhorn, Raleigh, for the State.

Herman E. Gaskins, Jr., Washington, Joel Hirschhorn, Miami, Fla. and Smith, Patterson, Follin, Curtis, James & Harkavy by Michael K. Curtis, Greensboro, for defendants-appellants.

WEBB, Judge.

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 *683 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. They inspected it carefully from the outside until they detected the odor of marijuana. This took approximately ten minutes. Mr. Trapper's Fourth and Fourteenth Amendment rights were not violated. We hold that the evidence on which the warrant was issued to search the truck was not illegally gained.

The defendants' argument as to the validity of the warrant to search the Lombardo *684 property is based on the invalidity of the warrant to search the truck. Since we have held that the warrant to search the truck was valid, we hold the search warrant for the Nunzio Lombardo premises was also valid.

The defendants also contend the officers exceeded the scope of the warrant in searching the premises of Nunzio Lombardo. The affidavit described the premises to be searched as follows:

"A housetrailer, double wide, white, owned by Nunzio J. Lumbards [sic], Rt. 1, Scranton, N.C. located on North East side Fortescue [sic] Creek. That the house is approx. .2 mile off of RPR 1145 and is approx. .5 mile west of intersection of RPR 1145 & RUPR 1144. Said house is surrounded by several acres of land owned by Lumbards [sic]."

The warrant directed the officers to conduct a search of the place "described in [the] application." A search of the housetrailer did not reveal any marijuana. The officers also searched a tin shed approximately 30 feet from the housetrailer where they found several bales of marijuana. It is well settled that when a search is made pursuant to a warrant, the scope of the search is limited to the area described in the warrant. See United States v. Davis, 557 F.2d 1239 (8th Cir. 1977); Keiningham v. United States, 287 F.2d 126 (D.C.Cir.1960); Rising Sun Brewing Co. v. United States, 55 F.2d 827 (3d Cir. 1932). The question posed by this appeal is whether they were authorized to search a tin shed which was 30 feet away and used for storage by the occupants of the housetrailer when the warrant directed the officers to search the housetrailer. The closest case to this one which we have been able to find is State v. Travatello, 24 N.C.App. 511, 211 S.E.2d 467 (1975). In that case this Court held a search of the defendant's premises did not exceed the scope of the warrant by including a search of a tool shed as well as the house itself. The case does not make it clear whether the warrant only directed a search of the house. We hold that under the warrant in the case sub judice, the officers properly searched the tin storage shed. The evidence was that it was a shed used for storage approximately 30 feet from the housetrailer. There was a concrete walkway connecting the housetrailer to the shed. Judge Godwin found the shed was a part of the curtilage and the officers did not exceed the scope of the warrant by searching the shed. We believe he was correct in this finding.

The defendants next contend that the officers in serving the search warrant for the Nunzio Lombardo residence did not give adequate notice of their identity and purpose before entering the premises and therefore violated the Fourth and Fourteenth Amendments to the United States Constitution and they also violated G.S. 15A-249 and G.S. 15A-251. State Bureau of Investigation Agent Lewis Young testified that in serving the warrant, the officers went to the front door of the housetrailer, knocked on the door and identified themselves as officers. The door was opened and Mr. Carrowan read the warrant to Nunzio Lombardo. Judge Godwin found that the warrant was executed by reading it to Nunzio Lombardo. We hold that the serving of the warrant for the search of Nunzio Lombardo's premises did not violate his constitutional rights, or his rights under Chapter 15A of the General Statutes.

The defendants' last assignment of error deals with the exclusion of the defendants from the courtroom for a part of the hearing on the motions to suppress the evidence. At the start of the hearing, the defendants moved that the State's witnesses be sequestered. The court allowed this motion and then on its own motion sequestered all the defendants who intended to testify. The first witness for the State was Charlie Carrowan. While he was testifying on direct examination, the court rescinded its order of sequestration and allowed all witnesses, including the defendants, to return to the courtroom. The defendants cite textbook authority for the proposition that a party to an action who is also a witness cannot be sequestered. See 88 C.J.S. Trial ยง 68 (1955). We do not pass on this question in the case sub judice. The parties *685 were allowed to return to the courtroom before the first witness had completed his testimony in chief. We hold the defendants have not shown they were prejudiced by being excluded from the courtroom for a short period of time.

No error.

ROBERT M. MARTIN and HILL, JJ., concur.