State v. Russell

352 S.E.2d 922 (1987)

STATE of North Carolina v. Christopher A. RUSSELL.

No. 8623SC288.

Court of Appeals of North Carolina.

February 17, 1987.

*924 Atty. Gen. Lacy H. Thornburg by Asst. Attys. Gen. John H. Watters and Steven F. Bryant, Raleigh, for State.

Richard D. Esper, Esper & Esper, of the State Bar of Texas, admitted pro hac vice, El Paso, Tex., for defendant-appellant.

PARKER, Judge.

Defendant's primary contention on this appeal is that the trial court erred in denying his motion to suppress the cocaine seized from the airplane as the fruit of an illegal search and seizure. The trial court below conducted a hearing on the motion pursuant to G.S. 15A-977(d). At the conclusion of the hearing, the court made extensive findings of fact and conclusions of law. Based on these findings and conclusions, the court ruled that the search of the plane and the luggage on board was valid on two alternative theories. First, the pilot of the plane had freely given his knowing consent to search the plane, and the scope of such consent could, and did, include the *925 luggage on board. Second, the court concluded that an airplane falls within the "automobile exception" to the warrant requirement of the Fourth Amendment, requiring only that the Sheriff have probable cause to believe the plane or its contents contained contraband. The court specifically found that such probable cause existed.

In our view the search of the plane and its contents was justified because probable cause existed to believe that the plane carried contraband. An airplane is a highly mobile vehicle, subject to extensive regulation, in which a defendant has a diminished expectation of privacy and, therefore, comes within the "automobile exception" to the warrant requirement of the Fourth Amendment. See, e.g., United States v. Rollins, 699 F.2d 530 (11th Cir.1983). In such a situation, "a search is not unreasonable if based on facts which would justify the issuance of a warrant, even though a warrant has not been obtained." United States v. Ross, 456 U.S. 798, 809, 102 S. Ct. 2157, 2164-65, 72 L. Ed. 2d 572, 584 (1982).

In this case, the initial "stop" of the airplane and detention of its occupants were justified, as they must be, by the "reasonable suspicion" of the law enforcement officers that the plane was transporting contraband. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The officers had knowledge that the Ashe County airport had been used before to fly in contraband. The plane was approaching the airport on a foggy night, well after the normal operating hours of the airport, had circled the airport several times, making very low passes, and was a plane unusually large to be landing at that airport. An individual with no identification who was driving an empty pickup truck with no registration, only temporary Utah license tags, was waiting for the plane. The driver of this truck stated, without prompting or questioning, that the plane would not land because the pilot had seen the lights of a car which had pulled into the airport. These facts were sufficient to give the officers a reasonable suspicion that the plane contained contraband. Therefore, the "stop" of the plane and the initial detention of the three suspects, defendant, the pilot and the waiting driver, were justified.

Once the plane was on the ground, several things occurred which elevated this reasonable suspicion to probable cause. Upon seeing the plane taxiing toward the officers, the driver who had been waiting for the plane said in response to a question, "My name is Peter Rabbit and I want a lawyer." The defendant here exited the plane and began walking toward the gate. When he spotted the waiting law enforcement officers, he wheeled and began returning to the plane. Despite being requested to stop by the nearest officer, defendant continued toward the plane. An officer followed him and as defendant approached the plane, the officer heard him shout, "Get the hell out of here." Defendant then returned to where the officer was standing and produced a California driver's license in response to a request for identification. The engines of the plane were still running and the officer requested that defendant return to the plane and ask the pilot to cut off the engines. Defendant returned to the plane, followed by the officer. As defendant reentered the plane, he was again heard to exclaim, "Get the hell out of here." The engines began to get louder, but at that point, the officer entered the plane and asked the pilot to cut off the engines. The officer noticed that defendant appeared to be under the influence of a narcotic, which he believed to be either cocaine or methamphetamine. These additional facts, combined with those facts already known to the officers, were sufficient to give the officers probable cause to believe the plane contained contraband.

Having concluded that the officers had probable cause to search the plane, the question then becomes the permissible scope of the search. Under the decision in Ross, supra, when the police engage in a legitimate, warrantless search of an automobile, the scope of that search extends to any containers found inside that may conceal the object of the search. Id., 456 U.S. *926 at 824, 102 S. Ct. at 2172, 72 L. Ed. 2d at 593. Therefore, the permissible scope of the search in this case extended to the suitcases and overnight bag in which the cocaine was found.

In light of our holding on the issue of probable cause to search, we need not address the contentions of defendant related to the pilot's consent to search the plane. That consent was unnecessary to authorize the search; therefore, its validity or invalidity has no relevance to our inquiry.

Defendant also contends that the trial court erred in failing to suppress certain statements made by each of the suspects during their detention leading up to the search. Defendant argues that the initial detention was not supported by the required reasonable suspicion and that, even if it were, their detention exceeded the limited intrusion allowed by Terry, supra, and its progeny. However, as pointed out above, we believe there was reasonable suspicion to justify the initial detention and, as the facts developed to the officers, the reasonable suspicion became probable cause. So, even if there were a de facto arrest, as defendant contends, it was supported by probable cause and was, therefore, legitimate. See Peters v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). Further, each of the suspects had been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), upon their initial encounter with the officers. The police actions in this case were just the sort of "graduated responses" to changing circumstances approved in United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985).

Defendant next assigns as error the denial by the trial court of his motion to sequester the State's witnesses, made at both the suppression hearing and the trial. The North Carolina rule is that the motion to sequester witnesses is addressed to the sound discretion of the trial judge. G.S. 8C-1, Rule 615; State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985). The trial court's ruling on the motion to sequester is reviewable on appeal only upon a showing of abuse of discretion. Young, supra. We note further that defendant presented no argument in support of his motion to the trial court here.

Defendant is also unable to demonstrate any prejudice in this case. At the suppression hearing, Sheriff Goss was the first witness to testify and he related all the key facts necessary to support the trial court's ruling on the motion. Thus, there could be no prejudice resulting from the failure to sequester the witnesses. Although defendant does allege that Sheriff Goss changed his testimony from that given at the suppression hearing, the alleged change related only to a collateral mattercorroboration of another officer's testimonyand defendant was free to impeach the Sheriff's trial testimony with his earlier testimony given at the suppression hearing. This assignment of error is overruled.

Defendant's next assignment of error is that the trial court erred in allowing Officer Baker of the Ashe County Sheriff's Department to testify at the suppression hearing that in his opinion, defendant was under the influence of narcotics the night of his arrest. The defendant objected to this testimony on two grounds: first, that it was improper rebuttal evidence and, second, that the officer was not qualified to give such an opinion.

As to the first objection, rebuttal testimony is permissible to "impeach defendant's witnesses or to explain, modify, or contradict defendant's evidence." State v. Sidden, 315 N.C. 539, 554, 340 S.E.2d 340, 349 (1986). The testimony was proper rebuttal evidence, as it was relevant to impeach the reliability of defendant's testimony concerning the events of the night of his arrest. As to the second objection, the rule is well established in this jurisdiction "that a lay witness may state his opinion as to whether the person is under the influence of drugs when he has observed the person and such testimony is relevant...." State v. Lindley, 286 N.C. 255, 258, 210 *927 S.E.2d 207, 210 (1974). The assignment of error is overruled.

Defendant's final assignment of error is that his convictions and sentencing for the two separate offenses of "trafficking in cocaine by possession" and "trafficking in cocaine by transporting" violate the constitutional guarantee against multiple punishments for the same offense. This issue has been decided adversely to defendant in State v. Perry, 316 N.C. 87, 340 S.E.2d 450 (1986) (trafficking in heroin by possession, trafficking in heroin by manufacturing and trafficking in heroin by transporting are three distinct offenses, and a conviction for each does not violate the prohibition against double jeopardy), and Sanderson v. Rice, 777 F.2d 902 (4th Cir.1985), cert. denied, ___ U.S. ___, 106 S. Ct. 1226, 89 L. Ed. 2d 336 (1986) (convictions for trafficking in marijuana by possession and trafficking in marijuana by manufacturing do not constitute double jeopardy). The assignment of error is overruled.

Having carefully examined the record on appeal and thoroughly considered the contentions of defendant, we conclude defendant received a fair trial free from prejudicial error.

No Error.

ARNOLD and EAGLES, JJ., concur.