State v. Thompson

252 S.E.2d 776 (1979)

296 N.C. 703

STATE of North Carolina v. Howard Keith THOMPSON, Jimmie Dale Hardee.

No. 87.

Supreme Court of North Carolina.

March 16, 1979.

*778 Coleman, Bernholz & Dickerson by Steven A. Bernholz and Patricia Stanford Hunt, Chapel Hill, for defendant-appellant Thompson.

Burney, Burney, Barefoot & Bain by Roy C. Bain, Wilmington, for defendant-appellant Hardee.

Atty. Gen., Rufus L. Edmisten by Lucien Capone, III, Associate Atty. Gen., Raleigh, for the State.

BROCK, Justice.

We observe first that it is problematic whether the officers' conduct in this instance constituted a "seizure", thus invoking the protection of the Fourth Amendment. "`No one is protected by the Constitution against the mere approach of police officers in a public place.' United States v. Hill, 340 F. Supp. 344 (E.D.Pa.1972)." State v. Streeter, 283 N.C. 203, 208, 195 S.E.2d 502, 506 (1973). Because we consider the officers' conduct to be constitutionally permissible under the standards governing an actual "seizure", however, our consideration will proceed on the assumption the officers indeed effected a "seizure" of the occupants of the van.

The officers' conduct in this instance is governed by the standards set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Terry involved the constitutionality under the Fourth Amendment of a "stop and frisk" by a police officer. Because there was no "frisk" in this case, we examine only whether the officers were entitled to approach and detain the occupants of the van for purposes of investigation and the reasonableness of their conduct in doing so. The Supreme Court's analysis in Terry was "a *779 dual onewhether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Id. at 20, 88 S. Ct. at 1879, 20 L. Ed. 2d at 905. The standard set forth in Terry for testing the conduct of law enforcement officers in effecting a warrantless "seizure" of an individual is that "the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. In Adams v. Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612, 617 (1972), the Court reaffirmed the principle of Terry that "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." The standard set forth in Terry and reaffirmed in Adams clearly falls short of the traditional notion of probable cause, which is required for an arrest. We believe the standard set forth requires only that the officer have a "reasonable" or "founded" suspicion as justification for a limited investigative seizure. United States v. Constantine, 567 F.2d 266 (4th Cir. 1977); United States v. Solomon, 528 F.2d 88 (9th Cir. 1975). Thus we must examine both the articulable facts known to the officers at the time they determined to approach and investigate the activities of the occupants of the van and the rational inferences which the officers were entitled to draw from those facts. In doing so, however, we do not believe the circumstances should be analyzed in isolation, but that they should be viewed as a whole "through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training." U. S. v. Hall, 174 U.S.App.D.C. 13, 15, 525 F.2d 857, 859 (1976).

Relying on the findings of fact on voir dire which are supported by competent evidence and thus conclusive, State v. Crews, 286 N.C. 41, 209 S.E.2d 462 (1974), on what facts and inferences was the officers' conduct predicated? The van and a motorcycle were located in a public parking area in an isolated region of New Hanover County at the end of State Highway 421. The hour was late, approximately 12:30 a. m. The officers were aware that break-ins involving a van had been reported recently in the vicinity. The front passenger door and the side door of the van were observed to be open. A not unreasonable inference to be drawn from these empirical facts was that the occupants of the van might be in some way connected with the reports of recent break-ins in the vicinity. Indeed, even absent the reports of recent break-ins, given the late hour, the isolated location of the van in a public place, and the considerable activity around it observed by the officers, the inference might reasonably be drawn that the situation warranted investigation. These facts and the reasonable inferences to be drawn, when viewed as a whole and through the eyes of experienced police officers, would, we believe, justify a reasonable suspicion that the occupants of the van might be engaged in or connected with criminal activity. On that basis, we find that the officers acted within the limits of the Fourth Amendment in approaching the van and seeking identification from the occupants.

Appellants further contend, however, that Officer Wolak's act of leaning into the van through the open front passenger door after defendant Thompson had stepped from the vehicle constituted an unreasonable intrusion of their expectation of privacy and thus a violation of their Fourth Amendment rights. With this contention we cannot agree. Officer Wolak's purpose in leaning into the van and reaching across to the driver was to obtain the identification the driver had been asked to show him. It was this act which put Officer Wolak in a position to observe, in plain view, the hashish. We cannot say, however, that the officer's conduct was unrelated in scope to the circumstances which justified the initial approach to investigate. Terry v. Ohio, supra. The court found as a fact that Officer Wolak asked defendant Thompson to step out, *780 and Thompson voluntarily complied with that request. From the position in which Officer Wolak was standing we cannot say it was unreasonable for him to reach across the seat for the driver's identification. See United States v. Anderson, 552 F.2d 1296 (8th Cir. 1977); United States v. Bradshaw, 490 F.2d 1097 (4th Cir. 1974). Therefor Officer Wolak had a right to be in the position he was in when he discovered, in plain view, the hashish. Evidence of that discovery and other evidence subsequently discovered as a result was properly admitted. The opinion of the Court of Appeals is

Affirmed.

BRITT, J., took no part in the consideration or decision of this case.

EXUM, Justice, dissenting:

I fully agree with the majority's analysis of the legal problem presented. The majority has correctly identified the applicable legal principles by which the conduct of the police officers here must be judged. There was, in my view, a seizure of the occupants of the van, particularly the defendant Thompson, pursuant to which Officer Wolak got himself in a position to observe the hashish "in plain view" inside the van. The majority so assumes.

The question, therefore, is whether this seizure was justified under the circumstances present here. The majority concludes that it was. It is with this conclusion that I disagree. The state has shown no "specific and articulable facts," Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), giving rise to inferences which in turn could form the basis of a reasonable or founded suspicion even through the eyes of reasonable and trained officers that the occupants of the van might have been engaged in particular criminal activity so as to justify the officers' intrusion.

It is important first to note that at the time of this incident the Wilmington Azalea Festival, an old and well-known celebration marking the coming of spring and blossoming of azaleas, was in progress. The festival attracts tens of thousands of people to the area. Overnight accommodations are at an expensive premium and thousands of young people opt for traveling and sleeping in van-type motor vehicles as the young people in this case were obviously doing in a parking area open to the public at large. The occupants of the van were equipped with sleeping bags. The parking area was at the very end of U. S. Highway 421 close to a boat rampa natural place under the circumstances to settle in for the night.

I simply cannot conclude, as the majority does, that the mere existence of this van and its occupants at the location described somehow gives rise to a reasonable suspicion that criminal activity was afoot. Neither do general reports of unspecified "break-ins" in the area involving an unspecified van of which the officers had no description give rise to a reasonable suspicion that this van and these persons were engaged in such activity.

The majority relies on Terry v. Ohio, supra, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889, and Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). Both these cases are distinguishable. In Terry a policeman of some 39 years experience observed three men standing on a corner for ten to twelve minutes. Two of them took turns walking down the street to a particular store and looking in the window. They would then return and confer. This pattern was repeated ten to twelve times. This behavior led the officer to believe they were planning a robbery. They were, in his words, "`casing a job, a stick-up.'" Id. 392 U.S. at 6, 88 S. Ct. at 1872. Upon going to them to investigate, the officer frisked defendant Terry, found a gun on him and placed him under arrest. The United States Supreme Court concluded that his actions were reasonable and justified under the Fourth Amendment.

Likewise, in Adams v. Williams, supra, there was a reasonable suspicion that a suspect had committed, or was about to commit, a particular crime. In Adams a police officer was on patrol in a "high-crime neighborhood." He received a tip from an informant that an individual seated in a *781 nearby car was carrying narcotics and had a gun at his waist. On approaching the car, the officer reached in and removed a loaded revolver from the individual's waistband. He then placed him under arrest and upon searching the car found other weapons and narcotics. Again, his actions were found sustainable under the Fourth Amendment.

In both Terry and Adams, police officers were possessed of specific facts which indicated that specific individuals might have committed or were planning to commit particular crimes. While these facts were not considered sufficient to rise to the level of probable cause, they were enough to give rise in each case to a reasonable suspicion in the officers' minds. There are no such facts in this case.

This case is instead quite like United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975), which I believe controls it. There officers of the Border Patrol were on lookout near the Mexican border late at night for illegal aliens. They pursued defendant's car and stopped it, finding two illegal aliens in it. Defendant was arrested and convicted for transporting illegal immigrants. Aside from the facts that it was late at night and near the border (i. e., at a time and place where such illegal activity would normally occur), the only reason the officers could articulate for having pursued and stopped the car was that the occupants appeared to be of Mexican descent. On appeal, the United States Supreme Court reversed defendant's conviction. It held: (1) while Border Patrol officers could make roving-patrol stops they had to have a reasonable suspicion to do so; and (2) while appearance of Mexican descent was a relevant factor it was not under these circumstances justification for a stop.

In the case at bar, the officers were unable to point to any untoward activity on the part of the individuals involved as the officers in both Terry and Adams were able to do. Instead they could articulate only a generalized suspicion based apparently on the time, the place, and the facts that "a van" was involved and they had reports of unspecified "break-ins" involving a van in the area. Lacking more specific information about the break-ins which would tie this particular van or even one fitting its description to the "break-ins," the officers here had no more reason to suspect criminal activity than the Border Patrol in Brignoni-Ponce.

For these reasons I believe there was error in failing to allow defendants' motion to suppress the hashish seized and I vote for a new trial.