State v. Beveridge

436 S.E.2d 912, 112 N.C. App. 688, 1993 N.C. App. LEXIS 1247
CourtCourt of Appeals of North Carolina
DecidedDecember 7, 1993
Docket921SC931
StatusPublished
Cited by19 cases

This text of 436 S.E.2d 912 (State v. Beveridge) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Beveridge, 436 S.E.2d 912, 112 N.C. App. 688, 1993 N.C. App. LEXIS 1247 (N.C. Ct. App. 1993).

Opinions

ORR, Judge.

Even though the defendant in the case at bar has entered a plea of guilty to the charges against him, he has preserved his right of appeal pursuant to N.C. Gen. Stat. § 15A-979(b) from the denial of his motion to suppress the evidence seized as a result of the search by Officer Gregory. Defendant contends on appeal that the cocaine was found as a result of an unlawful search and seizure, thereby violating his rights under the Fourth Amendment of the United States Constitution and the Constitution of the State of North Carolina. We agree with defendant’s argument and reverse the decision of the trial court.

[693]*693We note at the onset that in a review of the denial of defendant’s motion to suppress, we must first determine whether there was competent evidence to support the trial court’s findings of fact. If the evidence presented was competent, the findings are conclusive and binding on appeal. State v. Fleming, 106 N.C. App. 165, 415 S.E.2d 782 (1992). Defendant has not contested the findings or conclusions of the trial court. They are therefore conclusive and binding on this Court. Id. at 168, 415 S.E.2d at 784.

As defendant correctly points out, the Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081 (1961), provides the guarantee of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ....” U.S. Const, amend. IV. Similarly, the Constitution of the State of North Carolina states that “[g]eneral warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.” N.C. Const, art. I, § 20. “[A] governmental search and seizure of private property unaccompanied by prior judicial approval in the form of a warrant is per se unreasonable unless the search falls within a well-delineated exception to the warrant requirement involving exigent circumstances.” State v. Cooke, 306 N.C. 132, 135, 291 S.E.2d 618, 620 (1982).

Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968) created one such exception. In Terry, the Supreme Court held that an officer may conduct a pat-down search to determine whether the person is in fact carrying a weapon. “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” Adams v. Williams, 407 U.S. 143, 145, 32 L. Ed. 2d 612, 617 (1972). If a search goes beyond the bounds justifiable in determining that the suspect is armed, then any evidence found as a result of such a search will be suppressed as “fruit of the poisonous tree.” Sibron v. New York, 392 U.S. 40, 20 L. Ed. 2d 917 (1968). The courts of North Carolina follow these same constitutional principles. State v. Vernon, 45 N.C. App. 486, 263 S.E.2d 340 (1980); State v. Wooten, 18 N.C. App. 269, 196 S.E.2d 603, appeal dismissed, 283 N.C. 670, [694]*694197 S.E.2d 879 (1973); State v. Harris, 95 N.C. App. 691, 384 S.E.2d 50 (1989), aff'd, 326 N.C. 588, 391 S.E.2d 187 (1990).

However, in Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201 (1983), the United States Supreme Court held that “if, while conducting a legitimate Terry search . . . the officer should discover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.” The courts of North Carolina have likewise consistently held that “in the conduct of the limited weapons search, contraband or evidence of a crime is of necessity exposed, the officer is not required by the Fourth Amendment to disregard such contraband or evidence of crime.” State v. Streeter, 17 N.C. App. 48, 50, 193 S.E.2d 347, 348 (1972). Moreover, North Carolina has also extended the limits of the Terry pat-down and have held that “[w]hen an officer makes a lawful arrest of an occupant of an automobile and conducts a contemporaneous search of the automobile incident to that arrest, he may ask passengers to step out of the vehicle so he may complete his investigation.” State v. Adkerson, 90 N.C. App. 333, 338, 368 S.E.2d 434, 437 (1988), quoting State v. Collins, 38 N.C. App. 617, 248 S.E.2d 405 (1978). “ ‘When there are reasonable grounds to order an occupant out of the car, then he may be subjected to a limited search for weapons when the facts available to the officer justify the belief that such an action is appropriate.’ ” Id. “ ‘The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ ” Id. quoting Terry, 392 U.S. at 27, 20 L. Ed. 2d at 909.

The above cases are justified by reference to the “plain view” doctrine, which generally allows an officer to seize evidence when the initial intrusion which brings the evidence into plain view is lawful, and it is immediately apparent to the police that the items observed constitute evidence of a crime, are contraband, or are otherwise subject to seizure. State v. Church, 110 N.C. App. 569, 430 S.E.2d 462 (1993); see also Horton v. California, 496 U.S. 128, 110 L. Ed. 2d 112 (1990).

The constitutional guarantee against unreasonable search and seizure does not apply where a search is not necessary, and where the contraband subject matter is fully disclosed to the eye and hand. State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972).

[695]*695The plain view doctrine has now been expanded by the United States Supreme Court in Minnesota v. Dickerson, — U.S. —, 124 L. Ed. 2d 334 (1993). On facts remarkably similar to the case sub judice, the Court held that the “[plain view] doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search.” Id. at —, 124 L. Ed. 2d at 345.

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State v. Beveridge
436 S.E.2d 912 (Court of Appeals of North Carolina, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
436 S.E.2d 912, 112 N.C. App. 688, 1993 N.C. App. LEXIS 1247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-beveridge-ncctapp-1993.