State v. Downing

Court of Appeals of North Carolina

State v. Downing

230 S.E.2d 581, 31 N.C. App. 743, 1976 N.C. App. LEXIS 2101

CourtCourt of Appeals of North Carolina

DecidedDecember 15, 1976

DocketNo. 7612SC596

StatusPublished

This text of 230 S.E.2d 581 (State v. Downing) 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. Downing, 230 S.E.2d 581, 31 N.C. App. 743, 1976 N.C. App. LEXIS 2101 (N.C. Ct. App. 1976).

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Opinion

PARKER, Judge.

This appeal is authorized by G.S. 15A-979(c). The parties having stipulated that the search warrants were legally issued and executed, no Fourth Amendment problems are presented. The only question presented is whether suppression of the seized evidence is required by the Fifth Amendment to the United States Constitution or by Article I, Sec. 23, of the North Carolina Constitution. We hold that it is not and accordingly reverse the order of the trial court.

The order appealed from was entered 14 June 1976. On 29 June 1976 the United States Supreme Court decided Andresen v. Maryland, _ U.S. _, 49 L.Ed. 2d 627, 96 S.Ct. 2337 (1976), in which, on facts strikingly similar to those here presented, the Court held “that the search of an individual’s office for business records, their seizure, and subsequent introduction into evidence does not offend the Fifth Amendment’s prescription that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.’ ” We find Andresen controlling to dispose of defendant’s Fifth Amendment claims.

We also find nothing in the Constitution or laws of this State which requires exclusion of the seized records. Article I, Section 23 of the North Carolina Constitution provides that “ [i] n all criminal prosecutions, every person charged with crime has the right to . . . not be compelled to give self-incriminating evidence.” Defendant here has not been compelled to do any[745]*745thing. He voluntarily made and kept the records involved, and they were seized by lawful process without his being required to say or do anything. Although the constitutional privilege against self-incrimination applies to the production of papers so that if the accused is compelled to produce them the privilege is violated, State v. Hollingsworth, 191 N.C. 595, 132 S.E. 667 (1926), “[1]awful seizure of such evidence (as, for example, pursuant to a valid search warrant) obviously differs from requiring the accused to produce it and does not violate the privilege.” 1 Stansbury’s N. C. Evidence, Brandis Revision, § 57, p. 177-78; see State v. Shoup, 226 N.C. 69, 86 S.E. 2d 697 (1946); State v. Mallett, 125 N.C. 718, 34 S.E. 651 (1899).

Reversed.

Judges Hedrick and Clark concur.

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PARKER, Judge.

This appeal is authorized by G.S. 15A-979(c). The parties having stipulated that the search warrants were legally issued and executed, no Fourth Amendment problems are presented. The only question presented is whether suppression of the seized evidence is required by the Fifth Amendment to the United States Constitution or by Article I, Sec. 23, of the North Carolina Constitution. We hold that it is not and accordingly reverse the order of the trial court.

The order appealed from was entered 14 June 1976. On 29 June 1976 the United States Supreme Court decided Andresen v. Maryland, _ U.S. _, 49 L.Ed. 2d 627, 96 S.Ct. 2337 (1976), in which, on facts strikingly similar to those here presented, the Court held “that the search of an individual’s office for business records, their seizure, and subsequent introduction into evidence does not offend the Fifth Amendment’s prescription that ‘[n]o person . . . shall be compelled in any criminal case to be a witness against himself.’ ” We find Andresen controlling to dispose of defendant’s Fifth Amendment claims.

We also find nothing in the Constitution or laws of this State which requires exclusion of the seized records. Article I, Section 23 of the North Carolina Constitution provides that “ [i] n all criminal prosecutions, every person charged with crime has the right to . . . not be compelled to give self-incriminating evidence.” Defendant here has not been compelled to do any[745]*745thing. He voluntarily made and kept the records involved, and they were seized by lawful process without his being required to say or do anything. Although the constitutional privilege against self-incrimination applies to the production of papers so that if the accused is compelled to produce them the privilege is violated, State v. Hollingsworth, 191 N.C. 595, 132 S.E. 667 (1926), “[1]awful seizure of such evidence (as, for example, pursuant to a valid search warrant) obviously differs from requiring the accused to produce it and does not violate the privilege.” 1 Stansbury’s N. C. Evidence, Brandis Revision, § 57, p. 177-78; see State v. Shoup, 226 N.C. 69, 86 S.E. 2d 697 (1946); State v. Mallett, 125 N.C. 718, 34 S.E. 651 (1899).

Reversed.

Judges Hedrick and Clark concur.

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230 S.E.2d 581, 31 N.C. App. 743, 1976 N.C. App. LEXIS 2101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-downing-ncctapp-1976.

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