State v. Duers

271 S.E.2d 81 (1980)

STATE of North Carolina v. Craig Richard DUERS.

No. 8010SC405.

Court of Appeals of North Carolina.

October 21, 1980.

*82 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. James E. Magner, Jr., Raleigh, for the State.

William Eugene Anderson, Raleigh, for defendant-appellant.

WEBB, Judge.

The defendant's first assignment of error is to the admission into evidence of the money which was found in the white bag in plain view in the automobile. The defendant relies on Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977); State v. Gauldin, 44 N.C.App. 19, 259 S.E.2d 779 (1979), cert. denied, 299 N.C. 333, 265 S.E.2d 399 (1980). Defendant argues that there is no greater exigency in the case sub judice than in those cases, and it violated his fourth amendment rights for the officer to search the bag within the automobile without obtaining a search warrant. In each of the cases relied on by the defendant, the officers, acting on a tip from an informant that a suitcase or footlocker carried by the defendant contained marijuana, arrested the defendant, took the suitcase or footlocker in custody, and searched it without a warrant. The rationale of these cases is that there is an expectation of privacy in a suitcase or footlocker *83 so that once it has been seized, no exigency exists such that it may be searched without a warrant. The factual situation in the case sub judice is distinguishable from Chadwick, Sanders, and Gauldin. The officer was not acting on a tip from an informant but had intervened during a flight from a robbery. We hold there was not a reasonable expectation of privacy in a white plastic bag used to carry the fruits of the crime. Under these circumstances, we hold the officer was justified in searching the plastic bag found in the automobile.

The defendant's second assignment of error is to the admission in evidence of the other items seized after a search of the automobile. The defendant contends the arrest was not lawful which made a search of the vehicle unlawful. G.S. 15A-401 provides in part:

(b) Arrest by Officer Without a Warrant. * * * * * * (2) Offense Out of Presence of Officer. An officer may arrest without a warrant any person who the officer has probable cause to believe: a. Has committed a felony ....

Without reviewing the evidence in detail, we hold it is sufficient to show the officer had probable cause to believe defendant had committed a felony. The search of the vehicle was lawful. See State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973).

In his third assignment of error, defendant argues a statement he made at the time of his arrest should have been excluded. Mr. Gunter testified that as he was putting the handcuffs on defendant, he "said she knew nothing about this, something to that effect." The court overruled the defendant's objection to this inculpatory statement without conducting any hearing. It was error for the court not to determine the voluntariness of the admission by a preliminary inquiry in the absence of the jury. State v. Vickers, 274 N.C. 311, 163 S.E.2d 481 (1968). We do not believe, however, this error requires a new trial. According to the evidence, the statement was not coerced. The evidence of the defendant's guilt is overwhelming. After reviewing the record, we hold that the impact of all the evidence on the minds of the average jury would be such that the exclusion of the challenged testimony would not affect the outcome. We hold this error was harmless beyond a reasonable doubt. See State v. Cox, 281 N.C. 275, 188 S.E.2d 356 (1972) and State v. Hudson, 281 N.C. 100, 187 S.E.2d 756 (1972).

Defendant also assigns as error the admission into evidence of a statement he made to Mr. Gunter as he was being carried to police headquarters. Mr. Gunter testified that as defendant was being carried from the Crabtree Valley Mall to police headquarters, he said, "I don't know why I did it. I hate I ever came to Raleigh." Prior to the trial, a voir dire hearing was held as to the admissibility of this statement. Mr. Gunter testified that, as he was carrying the defendant to police headquarters, they were engaged in a general conversation. The statement about which he testified was made by the defendant in the course of the conversation and was not in response to a question. Defendant offered no evidence. The court found the statement was spontaneously and voluntarily made by the defendant and overruled the motion to suppress. These findings were supported by the evidence and we are bound by them. The admission of this statement was not error. State v. Williams, 13 N.C.App. 423, 185 S.E.2d 604 (1972) and State v. Basden, 8 N.C.App. 401, 174 S.E.2d 613 (1970).

The defendant's last assignment of error is to the court's failure to grant his motion to dismiss. He says this should have been done because the evidence is not sufficient to identify the defendant as the perpetrator of the robbery. This assignment of error is overruled.

No error.

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