State v. HillAnnotate this Case
180 S.E.2d 21 (1971)
278 N.C. 365
STATE of North Carolina v. Phillip Marshall HILL and James A. Galloway.
Supreme Court of North Carolina.
April 14, 1971.
*26 Sol G. Cherry, Public Defender, Twelfth Judicial District, for defendant-appellant Phillip Marshall Hill.
Mitchel E. Gadsden, Fayetteville, for defendant-appellant James A. Galloway.
Robert Morgan, Atty. Gen., William W. Melvin and T. Buie Costen, Asst. Attys. Gen., for the State.
Was the lineup procedure employed in this case so unnecessarily suggestive and so conducive to irreparable mistaken identification as to constitute a denial of due process in violation of the Fourteenth Amendment? This is the only question posed by the appeal of Phillip Marshall Hill.
The issue of waiver of counsel is not raised, although no counsel was present at the lineups in question. The court found on conflicting evidence at the voir dire that prior to any lineup Hill was fully advised of his constitutional rights, including the right to have counsel present, and stated, in the words of Deputy Frye, that "he didn't mind standing in the lineup and that he didn't need an attorney." This defendant thus exercised an "intentional relinquishment or abandonment of a known right." Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357 (1938); Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747, (1970). In such fashion, Hill waived the right to counsel as an incident of due process accorded him by the Fourteenth Amendment, a right fully discussed in United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967), and Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951 (1967).
Notwithstanding the waiver of counsel, Hill contends the lineup procedures used to identify him were "so impermissively suggestive as to give rise to a very substantial likelihood" of irreparable mistaken identificationa denial of due process of law. Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247, (1968); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969); State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969); State v. Gatling, 275 N.C. 625, 170 S.E.2d 593 (1969); State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968). This requires an examination of the totality of circumstances surrounding the questioned lineups.
*27 The evidence on voir dire conflicts as to exactly how many lineups were conducted, and the trial judge refused to find as a fact that any certain number were held. The conflict emerging from the testimony, however, seems more a battle of semantics than the result of faulty memory. It is undisputed that Hill and Galloway stood in a lineup with six or seven other men at approximately 1:00 a. m. in the early morning of May 29. With respect to this lineup, Hill himself testified that the participants would be required to turn around, change numbers, shift positions in the line, and then turn to face the one-way glass window through which the lineup was being observed. Some of the witnesses described each shift and change as an additional lineup, while others treated it as one lineup throughout the proceeding. This accounts in large measure for the conflicting testimony with respect to the number of lineups conducted and, in our view, has no legal significance. After viewing the two defendants in a lineup conducted as described, Mrs. Harmon identified James A. Galloway as one of the men who robbed her approximately three hours earlier that night.
At 10:30 a. m. on May 29, about ten hours later, the second phase of the lineup procedure took place. This phase roughly paralleled the procedure of the first phase. The men were placed in line, viewed by Mrs. Harmon through the one-way window, then asked to change numbers and positions and again face the viewing window. Deputy Frye testified: "We always have three or four lineups and switch the person around in places beside different people and in different locations." Following this phase, defendant Hill was identified by Mrs. Harmon as one of the robbers.
It appears that the number of lineups conducted depends upon the notion of the various witnesses as to what constitutes a lineup. Nevertheless, the number is unimportant. The significant inquiry is whether the procedure used was suggestive and conducive to mistaken identification. We hold that it was not. The circumstances revealed by this record do not even approach in suggestiveness the procedure employed by police in Stovall (bedside identification of a single suspect); or in Foster (defendant, six feet tall, required to stand in two successive lineups with two short men while wearing a jacket similar to that worn by the robber); or in Simmons (suggestive use of photographs). Indeed, the procedure used here seems calculated to make identification more difficult and to insure the correctness of the identification eventually made. The shifting of the men in line accompanied by an exchange of the number held by each certainly did not make the identification any easier. Furthermore, there is no evidence of any suggestions by the police prior to the lineup or of any effort by the officers to direct the attention of Mrs. Harmon to any particular participant. No apparent physical disparities between the participants rendering the defendants especially obvious appear in the record; and the number of participants in the lineup was sufficient to negate any suggestion that defendants were the robbers merely because of their presence. See State v. Rogers, supra, for cases from other jurisdictions which illustrate the suggestive, unfair type of lineup referred to in Wade, Gilbert and Stovall and condemned by the United States Supreme Court in Foster v. California, supra.
The fact that Hill was not identified in the first lineup does not indicate suggestiveness. The purpose of the Wade, Gilbert and Stovall line of cases is to curtail suggestive lineup procedures. If the procedure is fair to the defendant, the fact that the identification itself is not immediate goes to the weight rather than the competency of the testimony and is thus a matter to be considered by the jury. Lewis v. United States, 135 U.S.App.D.C. 187, 417 F.2d 755 (1969), cert. den., 397 U.S. 1058, 90 S. Ct. 1404, 25 L. Ed. 2d 676; Parker v. United States, 404 F.2d 1193 (9 Cir. 1968).
*28 It is worthy of note that Mrs. Harmon viewed the first lineup within three hours and the second lineup within approximately twelve hours of the robbery. Events were fresh in her mind. She never at any time identified any other person as having robbed her. Her store was well lighted and she had observed the robbers closely when the crime was committed. She described their clothing, their facial features and complexion, and testified both on the voir dire and before the jury: "There is no doubt in my mind that the defendants James A. Galloway and Phillip Hill are the ones who came into my store on the evening of May 28, 1970 and robbed me." She further stated that her identification at the trial was based on her recollections at the time of the robbery. The trial judge so found at the conclusion of the voir dire. Thus, had the lineup been illegal, as suggested but not shown, there is ample evidence that the in-court identification was of independent origin and therefore competent. State v. Wright, supra, 274 N.C. 84, 161 S.E.2d 581. This assignment of error is overruled.
Defendant Galloway contends that the weapons found in a warrantless search of the 1964 Fairlane at the police station after his arrest were the fruits of an illegal search and inadmissible under Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). He assigns as error the admission of the shotgun and three pistols taken by the officers from the car he was operating. This constitutes Galloway's only assignment of error.
The assignment ignores recent authority to the contrary. In Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, (1970), the United States Supreme Court dealt with a fact situation on all fours with the facts in this case. There, acting on information concerning the clothing worn and the car driven by the robbers, police stopped a car fitting the description given and arrested its occupants for the robbery. Later, after the car had been taken to the police station, it was searched without a search warrant and the incriminating evidence was seized. The Supreme Court held that the Fourth Amendment rights of the accused were not violated by the warrantless search for that there was probable cause to search the vehicle on the spot at the time of the arrest, and such probable cause still obtained at the station house. The rationale of the decision, which arguably marks a digression from the formerly prevailing view of the Fourth Amendment (see separate opinion of Mr. Justice Harlan), is that there is "a constitutional difference between houses and cars" by reason of the mobility of the latter. The Court explained that even when the car was sitting at the station house, it was highly mobile and its contents in danger of removal "unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured."
We think it clear that Chambers controls the instant case. Here, the police, acting on reliable information, had probable cause to stop the 1964 Fairlane driven by Galloway and arrest him. As in Chambers, a careful search of the car was reasonable but impractical and perhaps dangerous at the time and place of the arrest. The station house search a short time later was fully justified and constituted a lawful search. State v. Jordan, 277 N.C. 341, 177 S.E.2d 289 (1970); State v. McCloud, 276 N.C. 518, 173 S.E.2d 753 (1970).
Furthermore, when the circumstances require no search, the constitutional immunity from unlawful searches and seizures never arises. "Where no search is required, the constitutional guaranty is not applicable. The guaranty applies only in those instances where the seizure is assisted by a necessary search. It does not prohibit a seizure without warrant where there is no need for a search, and where the contraband subject matter is fully disclosed and open to the eye and hand." 47 Am.Jur., Searches and Seizures, § 20; *29 State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968). Here, the shotgun barrel and one pistol barrel protruded from under the car seat, and the presence of those two weapons was fully disclosed. When two additional pistols were discovered while the officers were in the act of removing the visible weapons, their subsequent seizure was a mere continuation of a lawful seizure of the visible weapons and in nowise constituted an unlawful search prohibited by the Fourth Amendment. State v. Dobbins, 277 N.C. 484, 178 S.E.2d 449 (1971); State v. McCloud, supra. This assignment of error is overruled.
In the trial below, we find