State v. Colbert

310 S.E.2d 145, 65 N.C. App. 762, 1984 N.C. App. LEXIS 2779
Court of Appeals of North Carolina·Decided January 3, 1984·No. 8323SC346·Published·Cited by 4 cases

Opinions

[763] WHICHARD, Judge.

Defendant contends the court should have suppressed, on Fourth Amendment grounds, evidence of marijuana seized from his premises. The pertinent facts are as follows:

Officers had obtained arrest warrants for two men, including defendant’s brother, and the complainant had indicated that the men would be at defendant’s trailer. Upon arrival at defendant’s trailer, the officers knocked and heard someone inside say “Come in.” They entered and identified defendant’s brother, whom they immediately arrested. A subsequent search of the brother and two other men present disclosed at least one loaded pistol.

Two officers walked from the kitchen area into a back bedroom. One of the officers testified on voir dire that he was looking for the other man named in the warrants. In the course of this walkthrough he saw in a bedroom closet a bag containing green vegetable matter, which appeared to be, and subsequently proved to be, marijuana.

The officers had seen someone run away when they approached the trailer. They subsequently found defendant outside and arrested him.

Defendant contends, citing Steagald v. United States, 451 U.S. 204, 68 L.Ed. 2d 38, 101 S.Ct. 1642 (1981), that because the officers possessed only arrest warrants, and not a search warrant, they could not lawfully proceed beyond the kitchen area where they found his brother, who was the subject of one of the arrest warrants. Steagald requires that, to enter one person’s residence in search of another for whom an arrest warrant is outstanding, officers must either possess a search warrant or meet one of the familiar exceptions to the warrant requirement, viz, consent or exigent circumstances. Id. at 211, 68 L.Ed. 2d at 45, 101 S.Ct. at 1647. The Court there stated: “[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Id. at 212, 68 L.Ed. 2d at 45, 101 S.Ct. at 1647 (citing Payton v. New York, 445 U.S. 573, 590, 63 L.Ed. 2d 639, 653, 100 S.Ct. 1371, 1382 (1980)).

Here, however, defendant does not contest the validity of the initial entry into his trailer. The trial court found that an officer [764] “went to the door of [defendant’s] trailer and knocked and a voice from the inside said, ‘Come in.’ ” It concluded “that the officers had a right to knock on the trailer; [and] that upon being invited in, they had a right to go in the trailer.” Defendant has not excepted to the foregoing finding and conclusion. The finding thus is binding on appeal. Schloss v. Jamison, 258 N.C. 271, 275, 128 S.E. 2d 590, 593 (1962); Anderson Chevrolet/Olds v. Higgins, 57 N.C. App. 650, 653, 292 S.E. 2d 159, 161 (1982). It supports the conclusion as to the consensual nature of the initial entry, thus bringing it within one of the “special situations” in which a search warrant is not required. Steagald, supra, 451 U.S. at 211, 68 L.Ed. 2d at 45, 101 S.Ct. at 1647.

Defendant does except, however, to the conclusion “that after finding one of the persons that they had an arrest warrant for, the officers were justified in looking through the trailer for the second suspect.” He thus presents an issue which exceeds the scope of Steagald.

Most courts which have faced this issue have approved walkthroughs of the entire premises at which an arrest has occurred. See 1 W. Ringel, Searches & Seizures, Arrests and Confessions § 12.6(a) (1983). “Such a walkthrough is reasonable when its purpose is to locate any other persons who are present on the premises who may pose a threat to the police.” Id. at 12-28 to -28.1. Evidence in plain view during the course of such a walk-through is subject to seizure under the plain view doctrine. Id. “It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” Harris v. United States, 390 U.S. 234, 236, 19 L.Ed. 2d 1067, 1069, 88 S.Ct. 992, 993 (1968); see also State v. Rigsbee, 285 N.C. 708, 712-15, 208 S.E. 2d 656, 659-61 (1974).

Thus, in United States v. Phillips, 593 F. 2d 553 (4th Cir. 1978), cert. denied sub nom. Speech v. United States, 441 U.S. 947, 60 L.Ed. 2d 1050, 99 S.Ct. 2169 (1979), officers with arrest warrants entered an apartment and arrested two occupants who opened the door in response to their knocks. Although told that no one else was present, one officer nevertheless searched the apartment. In the course of this search he saw incriminating evi[765] dence which he seized and which defendants sought to suppress at trial.

The court found no error in admission of the evidence. It stated that the arrests were valid, and that the officers “looked around” only to ascertain whether a third occupant of the premises or other indicted persons were present “in order to assure their own safety and make additional arrests.” 593 F. 2d at 556. It concluded: “The [officers], therefore, had a right to be where they were. The [evidence] was in ‘plain view’ and thus subject to seizure at the time of the arrests.” Id.

In State v. Carey, 285 N.C. 509, 206 S.E. 2d 222 (1974), death sentence vacated, 428 U.S. 904, 49 L.Ed. 2d 1209, 96 S.Ct. 3209 (1976), officers entered a residence with consent and arrested two murder suspects. After the officers searched the rooms in which the suspects were found, one of them examined other parts of the house in search of a third suspect. While doing so, he observed a box of shotgun shells, which he took into his possession. Our Supreme Court held that the box was in plain view and the officer was where he had a right to be. It thus found no error in admission of the box into evidence.

Defendant has not excepted to the finding here that after an officer placed his brother under arrest, “he then walked to the back of the trailer looking for the other person for whom he had an arrest warrant.” The finding is thus binding on appeal, Anderson Chevrolet/Olds, supra; and it establishes, as the purpose of the walkthrough, a search for the other suspect. Pursuant to the foregoing authorities, it thus supports the conclusion to which defendant excepts, viz, “that after finding one of the persons that they had an arrest warrant for, the officers were justified in looking through the trailer for the second suspect.”

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State v. Colbert, 310 S.E.2d 145, 65 N.C. App. 762, 1984 N.C. App. LEXIS 2779 (N.C. Ct. App. 1984).

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