State v. Tillett

274 S.E.2d 361 (1981)

STATE of North Carolina v. Kevin Michael TILLETT. STATE of North Carolina v. Chester Wardell SMITH, Jr.

No. 801SC717.

Court of Appeals of North Carolina.

February 3, 1981.

*363 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William F. Briley, Raleigh, for State.

Kellogg, White & Evans by Thomas N. Barefoot, Manteo, for defendants-appellants.

HEDRICK, Judge.

Defendants first contend, based on their first, second, fourth, fifth, seventh, and ninth assignments of error, that the trial court erred in denying their motions to suppress because the findings of fact made by the trial judge after a hearing on the motions do not support the court's conclusion that "Officer Wagoner had reasonable suspicions based upon definite facts that the defendants were engaged in or had engaged in criminal conduct" when he stopped defendants' vehicle. We disagree. Generally, in deference to the Fourth Amendment prohibition against unreasonable "seizures," before a police officer can conduct an investigatory stop and detention of an individual, the officer must have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979). This protection has been extended to occupants of automobiles. Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979) (at least articulable and reasonable suspicion that occupants or vehicle somehow subject to seizure for violation of law). See, e. g., State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert. denied, 444 U.S. 907, 100 S. Ct. 220, 62 L. Ed. 2d 143 (1979); State v. Greenwood, 47 N.C.App. 731, 268 S.E.2d 835 (1980). Therefore, in examining whether the officer's conduct was proper in this situation, we must examine both the objective and articulable facts known to the officer at the time he determined to approach and investigate the activities of the occupants of the vehicle, and the rational inferences which the officer was entitled to draw therefrom. State v. Thompson, supra.

Relying on the findings made by the trial judge, which are supported by competent *364 evidence and thus conclusive, State v. Prevette, 43 N.C.App. 450, 259 S.E.2d 595 (1979), upon what facts and inferences were the officer's actions based? While in the course of his duties, Officer Wagoner saw defendants in their vehicle on a one lane dirt road in Nags Head Woods, a heavily wooded, seasonably unoccupied area. The hour was late, approximately 9:40 p. m., and the weather was rainy. The officer knew that the dirt road led to a number of seasonal residences, only one of which was occupied at that time of the year. The officer also was aware of reports of "firelighting" deer in that area on several previous occasions. After seeing defendants' vehicle go into the wooded area, the officer left for a short time, and when he returned, defendants' vehicle was coming out of the wooded area. To infer from these facts that the occupants of the vehicle were engaged in some sort of criminal activity, such as "firelighting" deer or burglarizing the unoccupied dwellings, would clearly not be unreasonable. These facts, together with the reasonable inferences to be drawn therefrom, when viewed through the eyes of an experienced police officer, would, we believe, justify the reasonable suspicion that the occupants of the vehicle might be engaged in or connected with criminal activity. The findings of the trial judge do therefore support the conclusion challenged by these assignments of error, and Officer Wagoner acted within the limits of the Fourth Amendment in making the investigatory stop of defendant's vehicle. These assignments of error have no merit.

Defendants next contend, based on their third, sixth, eighth, and ninth assignments of error, that the court erred in denying their motions to suppress since the evidence was seized pursuant to a warrantless and thus unconstitutional search of their vehicle. Defendants argue that the court's findings do not support a conclusion that the warrantless search was justified under any of the exceptions to the Fourth Amendment prohibition against warrantless searches. We disagree.

These assignments of error purport to be based upon an exception to a finding of fact that "at that time [when vehicle searched] each defendant was placed under arrest..." and to the conclusions of law that "the rolled cigarette appeared in plain view ..." and that "the discovery of the items was inadvertent and that the officer did not know the location beforehand and had not intended to seize them." We note at the outset that defendants do not argue that the evidence does not support the findings of fact made by the trial judge on their motions to suppress. Whether the statements by the trial judge that the cigarette was "in plain view" and that "the discovery was inadvertent" are findings of fact rather than conclusions of law, is of no significance. In any event, the findings made are supported by the evidence.

"It is basic that, subject to a few specifically established exceptions, searches conducted without a properly issued search warrant are per se unreasonable under the fourth amendment, Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), ..." State v. Cherry, 298 N.C. 86, 92, 257 S.E.2d 551, 556 (1979). One such exception is the "plain view" doctrine, under which a law enforcement officer may properly seize evidence in plain view without a search warrant if the officer has prior justification for the intrusion onto the premises being searched, other than observing the object which is later contended to have been in plain view, and the incriminating evidence must be inadvertently discovered by the officer while on the premises. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564, rehearing denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971); State v. Williams, 299 N.C. 529, 263 S.E.2d 571 (1980). Another exception was discussed by this Court (Morris, Chief Judge) in State v. Greenwood, supra:

The law is settled in North Carolina that a law enforcement officer may conduct a warrantless search of an automobile if the officer has a reasonable belief that the automobile contains contraband materials. [citations omitted] Such probable cause to search is established where, *365 from the surrounding circumstances, there exists at least a "probability" that contraband substances are contained within the vehicle. [citation omitted]

Id. at 741, 268 S.E.2d at 841.

As pointed out above, Officer Wagoner was justified in stopping defendants' automobile and detaining defendants. The findings made by the trial judge demonstrate that the officer was merely investigating defendants' activity in Nags Head Woods when he shined his light into the vehicle and inadvertently saw what he, an experienced law enforcement officer, perceived to be a marijuana cigarette. Contraband was thus in plain view subject to lawful seizure. Furthermore, given the cigarette in plain view, the gray plastic film container on the ground next to defendant Tillett's foot and the defendants' response of "yes" when asked if anything was in the vehicle, the findings clearly established a "probability" that other contraband was contained in the vehicle, therefore justifying the warrantless search of the vehicle in which the balance of the contraband was discovered and seized. The findings of fact made by the trial judge support the conclusion that defendants' Fourth Amendment rights were not violated by the warrantless search of the vehicle under the circumstances of this case, and these assignments of error are without merit.

The court did not err in denying defendants' motions to suppress. The judgment appealed from is

Affirmed.

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