State v. Jordan

177 S.E.2d 289 (1970)

277 N.C. 341

STATE of North Carolina v. Jack James JORDAN.

No. 25.

Supreme Court of North Carolina.

November 18, 1970.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. William Melvin, and Staff Attorney T. Buie Costen, Raleigh, for the State.

Hubert E. Seymour, Jr., Greensboro, for defendant appellant.

*290 BRANCH, Justice:

We approve the principles and reasoning set forth in the majority opinion of the Court of Appeals. However, in view of the dissenting opinion, we deem it necessary to consider the portion of the opinion upon which the dissent was grounded.

Defendant contends that the trial judge erred in admitting evidence obtained by an illegal search of his automobile. He argues that the search was illegal because it was without search warrant, was not incident to a valid arrest, and was not from or about the person of defendant.

In connection with the search and seizure the State offered evidence which tended to show that on 28 March 1969 at about 3:20 a. m., Officers Hightower and Cooper of the Greensboro Police force started to make a routine check of defendant's automobile, and when they turned the police car around, defendant's car ran a red light at a high speed. After the Officers had pursued the car for about a city block, the car suddenly slowed and a passenger jumped from the car and dropped something as he ran away. Officer Hightower pursued the fleeing passenger but was unable to catch him. Upon returning to the area where the person had dropped something, the officer found a small screwdriver, a pair of metal cutters, an adjustable wrench, a pair of brown cloth work gloves, punches, chisels, and a brace and bit. He then returned to defendant's car where he found defendant standing outside his car with police Officer Cooper. Officer Hightower saw a pistol, two metal flashlights, work gloves, a metal pry bar, a small crowbar, and a large screwdriver on the floorboard of defendant's automobile. Defendant was then placed under arrest for illegal possession of burglary tools, and Officer Hightower proceeded to search the glove compartment of defendant's car and discovered $50.00 in currency and change and a small punch. Some of the change was in a wrapper marked "Florida Street Baptist Church." It was later discovered that the Florida Street Baptist Church had been broken into during the night. During this time defendant had been warned of his constitutional rights.

The majority opinion relies upon the case of State v. McCloud, 276 N.C. 518, 173 S.E.2d 753, as authority for overruling this assignment of error. The defendant in State v. McCloud was the passenger who fled from defendant's automobile. Considering the question of search and seizure in State v. McCloud, this Court stated at p. 530, 173 S.E.2d at p. 762:

"Search of a motor vehicle made in connection with a lawful arrest for a traffic violation is lawful when it is a contemporaneous search for the purpose of finding property, the possession of which is a crime, i. e., burglary tools. Such search must be based on a belief reasonably arising from the circumstances that the motor vehicle contained the contraband or other property lawfully subject to seizure. State v. Bell, 270 N.C. 25, 153 S.E.2d 741; People v. Lopez, 60 Cal. 2d 223, 32 Cal. Rptr. 424, 384 P.2d 16; State v. Boykins, 50 N.J. 73, 232 A.2d 141; Welch v. United States, 10 Cir., 361 F.2d 214. "Seizure of contraband, such as burglary tools, does not require a warrant when its presence is fully disclosed without necessity of search. State v. Giles, 254 N.C. 499, 119 S.E.2d 394; State v. Bell, supra; Goodwin v. United States, 121 U.S.App.D.C. 9, 347 F.2d 793; United States v. Owens, 7 Cir., 346 F.2d 329; State v. Durham, Mo., 367 S.W.2d 619. See also 10 A.L.R.3d 314, for a full note and collection of cases concerning lawfulness of search of a motor vehicle following arrest for traffic violation."

The dissenting opinion upon which defendant now relies was based on the case of Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685, decided June 23, 1969, where officers, without a search warrant, searched defendant's house, garage *291 and workshop, and the Court held that since the search of defendant's home went far beyond his person and the area within which he might have obtained either a weapon or secreted something that could have been used in evidence against him, the scope of the search was unreasonable under the Fourth Amendment, and therefore defendant's conviction could not stand.

The United States Supreme Court, subsequent to decision in Chimel v. California, supra, considered the question of search of automobiles in the case of Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, decided June 22, 1970. In that case police officers had been furnished with a description of an automobile used in a robbery and a description of the clothes worn by two of the four men seen within the automobile. Within an hour the police stopped a car carrying four passengers. The car fitted the description furnished, and two of the men were clothed as described. The police conducted a warrantless search of the automobile after removing the car to the police station. They found revolvers, ammunition and property stolen in the reported robbery. The articles found in the search were admitted into evidence. The Court, holding that the search was legally made, stated:

"* * * (T)he Court has long distinguished between an automobile and a home or office. In Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 39 A.L.R. 790 (1925), the issue was the admissibility of evidence of contraband liquor seized in a warrantless search of a car on the highway. After surveying the law from the time of the adoption of the Fourth Amendment onward, the Court held that automobiles and other conveyances may be searched without a warrant in circumstances that would not justify the search without a warrant of a house or an office, provided that there is probable cause to believe that the car contains articles that the officers are entitled to seize."

The Court held that where probable cause exists to search an automobile, it is reasonable (1) to seize and hold the automobile before presenting probable cause issue to a magistrate or (2) to carry out an immediate search without a warrant. It was noted that there is little choice in practical consequences between immediate search and immobilization of the automobile until a warrant is obtained.

The decision in State v. McCloud, supra, on the question of search was directed solely to search of an automobile as distinquished from search of a dwelling. Relying upon the authorities therein cited and the case of Chambers v. Maroney, supra, and the authorities therein cited, we affirm the principles set forth in State v. McCloud, supra, as to search of automobiles.

The decision of the Court of Appeals is

Affirmed.