State v. Peaten

431 S.E.2d 237, 110 N.C. App. 749, 1993 N.C. App. LEXIS 667
CourtCourt of Appeals of North Carolina
DecidedJuly 6, 1993
DocketNo. 914SC880
StatusPublished
Cited by4 cases

This text of 431 S.E.2d 237 (State v. Peaten) 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. Peaten, 431 S.E.2d 237, 110 N.C. App. 749, 1993 N.C. App. LEXIS 667 (N.C. Ct. App. 1993).

Opinion

ORR, Judge.

Evidence for the State tended to show the following: On 14 September 1990, Agent Jessie Pull and Agent Bill Simmons, both working with the Harnett County Interagency Drug Task Force, along with other officers obtained a search warrant authorizing a search of Club 41, located on Highway 41, for taxpaid alcoholic beverages.

After receiving the search warrant, Agent Pull and other officers who entered Club 41 conducted a search of the individuals inside. There were one hundred to two hundred people in Club 41 at the time the search warrant was executed. Individuals who did not have anything on them were released. After processing persons who had been charged, Agent Simmons saw several vehicles that remained on the premises of Club 41. One of the vehicles that remained at the club was a BMW with a North Carolina registration number CXZ-2745, which belonged to the defendant.

According to their testimony, at that time, the officers were of the opinion that if the BMW was left on the lot, it would have been gone by morning or it would have been vandalized. Therefore, they impounded the vehicle and inventoried the vehicle contents at the scene because an independent contractor would be called to tow the vehicle. Agent Simmons gained entry to the passenger area through the sunroof to perform an inventory search. No contraband was found in the passenger area of the car.

Simmons then discovered that the trunk of the vehicle was unlocked and made a decision to open it and to perform an inventory search. Upon searching the trunk of the defendant’s vehicle, Agent Simmons found a semiautomatic Armalight 180 2.23 caliber rifle, a weapons case and a 40 round magazine.

Agent Simmons had the serial number of the gun run through N.C.I.C. and the gun was found to have been stolen from a Mr. Kissinger in Hope Mills, North Carolina, on 16 March 1988. The next day, defendant appeared at the Interagency Drug Enforcement office inquiring as to the whereabouts of his vehicle and was arrested for possession of a stolen firearm.

Prior to trial, defendant moved to suppress the evidence of the items found in his automobile on grounds that the seizure and search of the automobile violated his rights under the Constitutions of the United States and North Carolina. The trial court [751]*751made findings of fact and concluded that neither the seizure of the automobile nor the subsequent search thereof was constitutionally invalid.

Defendant first argues that the trial court erred in denying his motion to suppress evidence obtained from the warrantless seizure of his automobile and thereafter denying his motion to dismiss. We agree.

Absent consent, or some form of exigent circumstances, a warrant based on probable cause is required for a valid search or seizure under the Fourth Amendment. Katz v. United States, 389 U.S. 347 (1967). Thus, whenever the State has engaged in any kind of a warrantless search, it must demonstrate, with particularity, how the intrusion was exempted from the general constitutional demand for a warrant before evidence of the fruits of such a search may be admitted in a criminal prosecution. See Arkansas v. Sanders, 442 U.S. 753 (1979); United States v. Jeffers, 342 U.S. 48 (1951). It necessarily follows then, that when a vehicular search is based upon the inventory search exception, rather than probable cause, the State bears an especially heavy burden to show that the inventory procedure was authorized by a lawful seizure of the car, performed in a reasonable manner and not used as a pretext to bypass the rigorous demands of the Fourth Amendment. See South Dakota v. Opperman, 428 U.S. 364 (1976); State v. Phifer, 297 N.C. 216, 254 S.E.2d 586 (1979); State v. Vernon, 45 N.C. App. 486, 263 S.E.2d 340 (1980).

The State contends that the officers made careful and complete inquiry as to the whereabouts of the owner of the car from all persons present and reasonably concluded that the car should be impounded because leaving the car on the premises of Club 41 would likely result in it being stolen or severely vandalized. Following the police department’s written standard operating procedures for such circumstances, an inventory was made of the contents of the car that were accessible. The trunk of the car was unlocked and opened at the push of a button or a twist of a handle and very obviously was an area of the car that was accessible. According to the testimony, the police were not searching for anything, but rather compiling an inventory of items solely to establish a record of what was in the car and accessible to them at the time of their possession of the car and also to secure any such items from theft or vandalism.

[752]*752The reason for the original search warrant of the nightclub was to determine whether taxpaid liquor was being sold in the club. Officer Simmons knew that the defendant’s automobile was locked, in a private lot and presenting no traffic hazard. There is no evidence in the record as to how long the defendant’s car had been left unattended. There were also other vehicles left unattended in the lot on that evening. The record does not show whether any effort was made to locate the owners of those cars and whether an effort was made to secure those cars.

Officer Simmons testified that he decided to tow the BMW “so it would not be vandalized.” There is no evidence of any other circumstances which would bring the inventory and towing of this vehicle within the police department procedures. We find that the search is invalid as an inventory search, and the necessary probable cause and exigent circumstances to justify the search do not appear.

In Phifer, 297 N.C. 216, 254 S.E.2d 586 (1979), the Court established the applicable procedures for the inventory search and im-poundment of an automobile. In Phifer, the police had stopped defendant for speeding in a 35 m.p.h. zone. An officer recognized defendant as a known drug dealer and ran a driver’s license check on defendant and determined that there was a warrant for his arrest for other traffic offenses. The officer advised defendant that he was under arrest. The police decided that a wrecker should be called to tow defendant’s car and proceeded to start a vehicle inventory on the car since there had been a few break-ins in the area. Id.

The State argued that the warrantless search of the- glove compartment of defendant’s car by the officers was part of a valid police inventory of the car’s contents. The Phifer. Court held, however, that based upon the language in Opperman, 428 U.S. 364 (1976), the search could not be justified as a constitutionally-valid inventory search.

In upholding the validity of such searches, the Phifer Court adopted a standard for impounding automobiles:

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Related

State v. Smathers
753 S.E.2d 380 (Court of Appeals of North Carolina, 2014)
In re D.D.
146 N.C. App. 309 (Court of Appeals of North Carolina, 2001)
Prevette v. Forsyth County
431 S.E.2d 216 (Court of Appeals of North Carolina, 1993)

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Bluebook (online)
431 S.E.2d 237, 110 N.C. App. 749, 1993 N.C. App. LEXIS 667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-peaten-ncctapp-1993.