State v. Walden

278 S.E.2d 265, 52 N.C. App. 125, 1981 N.C. App. LEXIS 2319
CourtCourt of Appeals of North Carolina
DecidedMay 19, 1981
DocketNo. 8013SC1037
StatusPublished
Cited by3 cases

This text of 278 S.E.2d 265 (State v. Walden) 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. Walden, 278 S.E.2d 265, 52 N.C. App. 125, 1981 N.C. App. LEXIS 2319 (N.C. Ct. App. 1981).

Opinion

MARTIN, (Robert M.) Judge.

At the onset, we note that defendant’s appeal is not properly before us. According to G.S. 15A-979(b), as interpreted by our [127]*127Supreme Court in State v. Reynolds, 298 N.C. 380, 259 S.E. 2d 843 (1979), U.S. cert. denied, the defendant must notify the district attorney and the trial court of his intention to appeal the denial of the suppression motion at the sentencing hearing. See also State v. Afflerback, 46 N.C. App. 344, 264 S.E. 2d 784 (1980); State v. Trapper, 48 N.C. App. 481, 269 S.E. 2d 680 (1980), (appeal pending in U.S. Supreme Court). In the case sub judice the record reveals that the defendant withdrew his plea of not guilty and entered a plea of guilty as charged in both counts soon after the entry of the order denying his motion to suppress. Thereafter Judge McLelland continued prayer for judgment from the 24 March 1980 Criminal Session of Brunswick Superior Court until the 28 July 1980 Criminal Session. On this latter date a consolidated sentence of not less than five nor more than five years, with a recommendation for work release, was imposed. It appears from the record that defendant then gave notice of appeal.

Despite defendant’s failure properly to give notice of his intention to appeal, we have decided in our discretion to treat the purported appeal as a petition for certiorari, to allow it and to consider the case on its merits.

Defendant’s four assignments of error, which have been brought forward in his brief, are directed to the trial court’s order denying his motion to suppress drugs seized from the person of defendant and from his automobile. On the voir dire concerning this motion to suppress, the State offered evidence tending to show the following: On 22 August 1979 Agent Stevens interviewed a person who had been arrested for possession of 2,200 dosage units of LSD. The person told Stevens that he was supposed to meet a Garry Piggott in the parking lot of the Sea Captain Restaurant in Southport, North Carolina, at 8:00 a.m. on 23 August 1979. This person further indicated that Piggott would be driving a 1969 black Ford Mustang with chrome-type wheels. He described Piggott as being approximately 5’6” to 5’8” tall, weighing 195 to 205 pounds, having medium length brown hair which hung over his collar and wearing glasses. Stevens’ source further told him that at this 8:00 a.m. meeting, he was to receive 2,000 dosage units of LSD from Piggott. Stevens asked his source to telephone Piggott. During the telephone conversation, Stevens heard his source ask to speak to “Garry.” He was told to wait and a voice then said, “[h]ello.” The source then indicated that he [128]*128needed to get “2,000 more” and requested the person on the other end to meet him somewhere. The person responded by agreeing to meet him at the parking lot of the Sea Captain Restaurant at 8:00 a.m. The source then stated: “[t]hat’s good. I’ll be there. I’ve got the money to pay you for the last I got from you.” The person on the other end then ended the conversation by stating: “[f]ine. That’s good because I’ll have my man with me.” Agent Stevens finished interviewing his source around 2:30 or 3:00 a.m. on 23 August 1979. He then drove to Jacksonville and checked the Department of Motor Vehicles files, but he could not find a vehicle registered in Piggott’s name. He finished in Jacksonville around 5:30 a.m. and left for Southport. The drive to Southport took approximately two hours and fifteen minutes. When he arrived at the Sea Captain Restaurant accompanied by a law enforcement officer, he observed a 1969 black Ford Mustang with chrome-type wheels drive into the parking lot. Two men were in the vehicle. Stevens and the officer then approached the vehicle. Stevens identified himself to the driver, told him he wanted to search the car and requested that he get out. Stevens then searched the driver and found 1,000 dosage units of LSD in his left rear pocket and hashish in his left front pocket. Stevens informed the driver that he was under arrest for possession of LSD and hashish for the purpose of sale. During his search of the driver, Stevens found identification on him in both the names of Garry Piggott and Garry Walden. The defendant driver indicated that his name was Garry Walden. Immediately after arresting defendant and his passenger, Stevens searched the vehicle. He discovered a chess set in the back seat. When he opened the set he discovered both LSD and hashish inside. More hashish was found in the glove compartment. A wooden smoking pipe and two packs of rolling paper, which were in plain view of Stevens, were also seized from the automobile.

The defendant offered no evidence at the voir dire.

At the conclusion of the voir dire, the trial judge made findings based upon the evidence presented at the hearing. He then made conclusions as follows:

From these findings the Court concludes that the officer had probable cause to arrest the defendant for possession of LSD with intent to sell.
[129]*129That the search of the defendant’s person and vehicle were incidental to a lawful arrest, and though without a warrant were lawful.
That the search of the chess set box, an object in plain view, as to the inside of which there was no resonable expectation of privacy, was lawful.

Defendant has assigned error to each of these conclusions as well as to the denial of his motion to suppress. In his sole argument combining all four of these assignments of error, defendant first contends that there was no probable cause for Stevens to arrest defendant. He emphasizes that probable cause was based solely on Stevens’ source of information, and that therefore, this source of information had to reveal underlying circumstances showing him to be a credible person and showing the basis of the conclusion reported by him. Defendant argues that no such underlying circumstances were revealed at the suppression hearing. Defendant further argues that since there was no probable cause to arrest, the search of defendant’s person or his vehicle cannot be considered a search incident to a lawful arrest. The items then seized from his person and his automobile should have been suppressed.

This Court disagrees with defendant’s contentions as to the lack of probable cause to search defendant’s person and to arrest him thereafter. We believe that the information learned from the informant, which was corroborated both by the telephone conversation with a man named “Garry” and the later observations of Agent Stevens at the parking lot of the Sea Captain Restaurant, gave Stevens reasonable grounds to believe that a crime was being committed in his presence and to arrest defendant without a warrant pursuant to G.S. 15A-401(b)(l). State v. Collins, 44 N.C. App. 141, 260 S.E. 2d 650 (1979), aff’d on other grounds, 300 N.C. 142, 265 S.E. 2d 172 (1980). The search of defendant’s person immediately prior to his arrest was justified as incident to the arrest, since probable cause to arrest existed prior to the search. State v. Wooten, 34 N.C. App. 85, 237 S.E. 2d 301 (1977). Our decision in State v. Tickle, 37 N.C. App. 416, 246 S.E. 2d 34 (1978) offers further support for our position. In Tickle the defendant argued that information obtained from a previously unknown informant was not sufficient to constitute probable cause for a war-rantless search of an automobile, unless the informant also [130]

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701 S.E.2d 355 (Court of Appeals of North Carolina, 2010)
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Bluebook (online)
278 S.E.2d 265, 52 N.C. App. 125, 1981 N.C. App. LEXIS 2319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-walden-ncctapp-1981.