State v. Newsom , 284 N.C. 412 ( 1973 )

200 S.E.2d 617 (1973) 284 N.C. 412

STATE of North Carolina
v.
John Richard NEWSOM.

No. 39.

Supreme Court of North Carolina.

December 12, 1973.

Atty. Gen. Robert Morgan by Deputy Atty. Gen. R. Bruce White, Jr., and Associate Atty. Gen. Jones P. Byrd, Raleigh, for the State.

Asst. Public Defender D. Lamar Dowda, Greensboro, for the defendant appellant.

BRANCH, Justice.

The only assignment of error which defendant seriously argues before this Court is that the trial judge erred by allowing into evidence checks and currency seized pursuant to the execution of a search warrant authorizing a search for marijuana.

Defendant, relying on Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782, argues the checks and currency were improperly admitted into evidence because they were neither contraband nor fruits of a crime within the officers' knowledge at the time of seizure.

The Fourth Amendment of the United States Constitution intends to protect against unreasonable invasion of the "sanctity of a man's home and the privacies of life." Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746.

A statement pertinent to decision of this question is found in Warden, Maryland Penitentiary v. Hayden, supra, viz:

". . . The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for ``mere evidence' or for fruits, instrumentalities or contraband. There must, of course, be a nexus — automatically provided in the case of fruits, instrumentalities or contraband — between the item to be seized and criminal behavior. Thus in the case of ``mere evidence,' probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required. . . ."

Neither the Fourth Amendment protection nor our statutory law applies to situations where there is no search. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726; State v. Craddock, 272 N.C. 160, 158 S.E.2d 25. However, the limits of reasonableness which are placed upon searches apply with equal force to seizures, and whether a search or seizure is unreasonable depends on the circumstances of each case. Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777; State v. Howard, 274 N.C. 186, 162 S.E.2d 495.

In the case of Abel v. United States, 362 U.S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668, officers as an incident to an arrest of Abel, preliminary to his deportation on the ground of illegal residence in this country, seized a coded message which Abel was seeking to hide in his sleeve. Defendant sought to suppress this seized article upon his trial for conspiracy to commit espionage. Rejecting his motion to suppress, the United States Supreme Court, in part, stated:

"The other item seized in the course of the search of petitioner's hotel room was item (1), a piece of graph paper containing a coded message. This was seized by Schoenenberger as petitioner, while packing his suitcase, was seeking to hide it in his sleeve. An arresting officer is free to take hold of articles which he sees the accused deliberately trying to hide. This power derives from the dangers that a weapon will be concealed, or that relevant evidence will be destroyed. Once this piece of graph paper came into Schoenenberger's hands, it was not necessary for him to return it, as it was an instrumentality for the commission of espionage. This is so even though Schoenenberger was not only not looking for items connected with espionage but could not properly have been searching for the purpose of finding such items. When an article subject to lawful seizure properly comes into an officer's possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for."

The case of Crawford v. State, 9 Md. App. 624, 267 A.2d 317, is remarkably similar to the case before us for decision.

In Crawford, defendant appealed from his conviction of receiving stolen goods, contending that the trial judge erred by admitting into evidence a pawn ticket for a stolen radio. Appellant was convicted of receiving the radio described in the pawn ticket. This pawn ticket was seized by police officers while executing a search warrant authorizing a search for narcotics. The police found narcotic paraphernalia in defendant's bedroom and the challenged evidence among other pawn tickets in the bedroom closet.

In holding that the lower court did not err, the Maryland Court noting that "mere evidence" may be seized if there exist a nexus between the item seized and criminal behavior, Warden, Maryland Penitentiary v. Hayden, supra, reasoned:

". . . We think that here the police had reason to believe that there was a nexus between the 29 pawn tickets and criminal behavior. The large number of pawn tickets, come by on a valid search, showed that it was necessary that appellant frequently required cash and it was probable, in the light of the narcotic paraphernalia found in his possession by a legal search, that the cash was used to buy narcotic drugs, the possession and control of which are ordinarily unlawful. We find that the seizure of the pawn tickets was reasonable and hold that the court did not err in admitting them."

See also United States ex rel. Myles v. Twomey, D.C., 352 F. Supp. 180.

In instant case, there was no search involved in the seizure of the cash and checks. The officers who were legally upon the premises plainly saw the currency which was co-mingled with patently contraband materials. They also observed the checks scattered on the ground below an open window. The checks were not on the ground and the window was closed just before their entry into the apartment. At the time of seizure, it was reasonable for the officers to believe that the currency and checks were so related to the act of purchase or distribution of illicit drugs as to aid in the apprehension and prosecution of persons unlawfully dealing in those drugs. Further, the evident attempt to dispose of the checks was a circumstance which must have strengthened the officers' belief that a connection existed between the items seized and criminal behavior.

Under the circumstances of this case, the seizure of these suspicious objects which were in plain sight was reasonable.

We hold that the trial judge properly admitted the checks and currency into evidence.

Examination of the entire record failed to disclose error prejudicial to defendant, and further discussion of the remaining assignments is deemed unnecessary.

No error.