State v. Warren

296 S.E.2d 671 (1982)

STATE of North Carolina v. Jimmy Ray WARREN.

No. 8210SC248.

Court of Appeals of North Carolina.

November 2, 1982.

*673 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert L. Hillman, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Marc D. Towler, Raleigh, for defendant.

ARNOLD, Judge.

Defendant first attacks the trial court's refusal to suppress the results of a visual search and chemical tests performed on bloodstains in his car. He argues that the search warrant was deficient because it did not specify items that were seized and was not based on probable cause. It is also averred that the second search of the car a few days later was not justified by the warrant because it had already been returned to the magistrate.

Before examining the sufficiency of the warrant in this case, we first determine that defendant had standing to object to the search of the car. To have such standing defendant must have a legitimate expectation of privacy in the thing to be searched. Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), reh. denied, 439 U.S. 1122, 99 S. Ct. 1035, 59 L. Ed. 2d 83 (1979). The burden of proof of showing this expectation is on the defendant. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980).

The record shows that the car involved in this crime was owned by the defendant's sister. The car was parked in front of the defendant's apartment when he was arrested on 1 December 1980. Because of these facts, we find that defendant did have the requisite expectation of privacy so as to challenge the search of the car.

Rakas is distinguishable on the facts because the defendants there were only passengers in a car driven by the owner. There is evidence here that the defendant was driving the car that was searched. The fact that the car belonged to his sister strengthens his expectation of privacy. It is also important that defendant possessed the car before, during and after the crime, since possession is one factor to be considered in the expectation decision. See State v. Jones, 299 N.C. 298, 306, 261 S.E.2d 860, 865 (1979). The possession was "legitimate" here, unlike that in State v. Crews, 296 N.C. 607, 252 S.E.2d 745 (1979), where the court found no reasonable expectation of privacy because the vehicle was stolen.

We disagree, however, with defendant that the search warrant was illegal here. As the Supreme Court noted in Cardwell v. Lewis, 417 U.S. 583, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974), "Generally, less stringent warrant requirements have been applied to vehicles." 417 U.S. at 589-90, 94 S. Ct. at 2469. Cardwell went on to state that:

One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where its occupants and its contents are in plain view.

417 U.S. at 590, 94 S. Ct. at 2469.

An affidavit upon which a search warrant is based must not be stated in conclusory terms but should state facts to allow the magistrate to make a finding of probable cause independent of the affiant's statements. U.S. v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965). "[W]hen these [underlying] circumstances are detailed, where reasons for crediting the source of the information is given, and when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense manner." 380 U.S. at 109, 85 S. Ct. at 746. Deputy Sheriff Dodd's application for a search warrant here meets the Ventresca test because it gives sufficient facts to allow the magistrate to draw his own conclusions. It also meets the factors stated in G.S. 15A-244 for a valid application for a search warrant.

*674 A second requirement for a valid search warrant is that it must be issued by a neutral and detached magistrate. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971). The magistrate who issued this warrant meets this standard and properly acted within his county of appointment as required by G.S. 7A-273(4).

Finally, the warrant must describe with reasonable certainty the place to be searched and the items to be seized. See Stanford v. Texas, 379 U.S. 476, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965); G.S. 15A-246(4). According to Stanford, the evil sought to be avoided by the Fourth Amendment is the "general warrant." 379 U.S. at 480. General warrants are also prohibited by N.C. Const. art. I, § 20, which describes them as "dangerous to liberty."

We find that the warrant in this case is sufficient in its description of the car to be searched, and the property to be seized, since it refers specifically to the application for search warrant on the reverse side of the search warrant that contains this information. The application was sufficient because it supplied "reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal offense will reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender." Jones, 299 N.C. at 303, 261 S.E.2d at 864, quoting State v. Riddick, 291 N.C. 399, 230 S.E.2d 506 (1976), reh. denied 293 N.C. 261, 247 S.E.2d 234 (1977).

Having found that the first search of the car on 1 December 1980 was proper, we also determine that the chemical tests performed on the car while it was impounded at a local garage after the first search and, after the search warrant had been returned, were admissible. While it is true that the second search occurred after the effectiveness of the warrant had expired, we find no error on this point. Sufficient evidence to prove defendant's guilt beyond a reasonable doubt was obtained in the first valid search. Even though these facts do not fit one of the exceptions to the search warrant requirement, "the error was harmless beyond a reasonable doubt," as the Supreme Court observed in Chambers v. Maroney, 399 U.S. 42, 53, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), the case that the defendant cites as authoritative on this point.

We also find State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979), cert. denied 446 U.S. 929, 100 S. Ct. 1867, 64 L. Ed. 2d 282 (1980), to be persuasive here. Nelson allowed a second look by the authorities at evidence seized from the defendant three days after the original valid search. According to the court, "The cases generally hold that these kinds of `second looks' at items already once seen are not another search subject to Fourth Amendment proscriptions." 298 N.C. at 583, 260 S.E.2d at 638.

Defendant's second major assignment of error is that the trial judge should not have submitted crime against nature as a lesser included offense of second-degree sexual offense to the jury, because the indictment did not support the lesser offense. The indictment stated that the defendant

unlawfully and wilfully did feloniously commit a sexual offense with Byron Montizel Clarke by force and against that victim's will by forcing the victim to perform fellatio, in violation of G.S. 14-27.4.

The defendant relies on State v. Ludlum, 303 N.C. 666, 281 S.E.2d 159 (1981), which concluded that penetration was a necessary element of crime against nature under G.S. 14-177. But Ludlum specifically did not hold that penetration was a necessary element of fellatio or cunnilingus, which are "sexual act[s]" under G.S. 14-27.1(4), and the latter of which the defendant in that case was charged in violation of G.S. 14-27.4.

Since a crime is a lesser included offense of another crime only if the greater crime contains all the elements of the lesser crime, State v. Davis, 302 N.C. 370, 275 S.E.2d 491 (1980), defendant concludes that crime against nature is not a lesser included offense of second degree sexual offense. *675 He argues that since Ludlum did not require penetration for first degree sexual offense, it is not required for second degree sexual offense and thus the greater offense does not contain a necessary element of the lesser offense.

In deciding if penetration is a necessary element of fellatio under G.S. 14-27.1(4), which defines sexual act, we consider legislature intent as in Ludlum. But Ludlum only decided that penetration is not a necessary element of cunnilingus as that term is defined in G.S. 14-27.1(4). Fellatio is the alleged act here.

The reasoning process used in Ludlum to ascertain legislative intent is persuasive. First, we look at the ordinary meaning of the word fellatio. It is proper for a court to look to dictionaries for a definition. Ludlum, 303 N.C. at 671, 281 S.E.2d at 162; State v. Lee, 277 N.C. 242, 176 S.E.2d 772 (1970); State v. Martin, 7 N.C.App. 532, 173 S.E.2d 47 (1970).

Fellatio is defined by Webster's New Collegiate Dictionary (8th ed. 1974) (hereinafter Webster's) as "oral stimulation of the penis." Dorland's Illustrated Medical Dictionary (26th ed. 1981) defines the term as "oral stimulation or manipulation of the penis." Webster's defines oral as "of, given through, or affecting the mouth."

Thus, these definitions could be read as requiring some penetration into the mouth or at least, stimulation orally or by the mouth area. As a result, we find that crime against nature was properly submitted here as a lesser included offense of second degree sexual offense.

In reaching this holding, we are aware that fellatio could occur in remote cases without a technical penetration but we will not speculate on the anatomical variations of the prohibited act. It is inconceivable that the General Assembly meant for us to engage in such a pointless exercise. We will not "saddle the criminal law with hypertechnical distinctions and the prosecution with overly complex and in some cases impossible burdens of proof." Ludlum, 303 N.C. at 672, 281 S.E.2d at 162. As that opinion concluded, "Once the victim of one of these acts has been forced against his or her will to submit, the degradation to his or her person, the real evil against which the statutes speak, has been accomplished." 303 N.C. at 673, 281 S.E.2d at 163.

We have carefully considered defendant's other five assignments of error and find that they were correctly decided by the trial court.

No error.

MARTIN and WHICHARD, JJ., concur.