State v. MacKey

291 S.E.2d 663 (1982)

STATE of North Carolina v. Billy Ray MACKEY.

No. 8126SC585.

Court of Appeals of North Carolina.

February 16, 1982.

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

James, McElroy & Diehl, P. A. by Gary S. Hemric, Charlotte, for defendant-appellee.

MORRIS, Chief Judge.

State contends that the trial court erred in holding that there was neither probable cause nor exigent circumstances for the search and seizure conducted by Officer Parker. State does not contest the court's holding regarding the insufficiency of the search warrant to justify that search.

A warrantless search of an automobile may be constitutionally reasonable if there is probable cause to make the search. *666 Carroll v. U.S., 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179 (1972); State v. Chambers, 41 N.C.App. 380, 255 S.E.2d 294, disc. rev. denied, 297 N.C. 698, 259 S.E.2d 296 (1979).

Automobiles and other conveyances may be searched without a warrant under circumstances that would not justify the search of a house, and a police officer in the exercise of his duties may search an automobile or other conveyance without a search warrant when the existing facts and circumstances are sufficient to support a reasonable belief that the automobile or other conveyance carries contraband materials.

State v. Simmons, 278 N.C. 468, 471, 180 S.E.2d 97, 99 (1971).

We note that the record contains no exceptions to the findings of fact or conclusions of law in the order appealed from. The court's findings are therefore deemed to be supported by substantial competent evidence and are conclusive on appeal. Rice v. Peters, Comr. of Motor Vehicles, 48 N.C.App. 697, 269 S.E.2d 740 (1980). In addition, the scope of review is limited to whether the trial court's order is supported by the findings of fact and conclusions of law. App.R. 10(a).

The question facing us, therefore, is whether Officer Parker had probable cause, on the facts found by the trial court, to search defendant's van for contraband. Although Officer Parker testified at the voir dire that he had personally seen the blue van at the Valley Road house prior to the search of that house and that Officer Vail had discussed with him the information imparted to him by his informant, the trial court found that Parker had no knowledge, either independently or from Vail, of the van's possible use in the storage or transportation of the marijuana. As previously stated, this finding is conclusive on appeal.

Under the facts as found by the trial court, Parker knew only that a search warrant had been issued for the house on Valley Road based on probable cause to believe that a quantity of marijuana would be found there, that a small amount of marijuana was in fact found in the house along with packaging material for a much larger quantity, that immediately after the search, Officer Vail put out an all-points bulletin for a blue Ford van and that the van which Parker subsequently searched matched that description.

These facts are distinguishable from the facts in State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976) and State v. Frederick, 31 N.C.App. 503, 230 S.E.2d 421 (1976) where probable cause was found. In Phifer, the officer conducting the warrantless search of an automobile had been informed by the radio dispatcher that the car had been seen outside a bank during a robbery and shooting at the bank. In Frederick, the officer conducting the warrantless automobile search had been told by another officer of information received from a confidential informant connecting the car and its occupants with a recent breaking and entering.

From the facts as found by the court in the present case, Officer Parker knew of no connection between defendant's van and the marijuana which had apparently been removed from the house on Valley Road. On these facts the trial court properly concluded that Officer Parker did not have probable cause to search the van.

There being no probable cause for the warrantless search, we need not reach the question of whether there were exigent circumstances to support it. The order is

Affirmed.

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