State v. Moore , 37 N.C. App. 729 ( 1978 )

247 S.E.2d 250 (1978) 37 N.C. App. 729

STATE of North Carolina
v.
Bobby Gene MOORE.

No. 7826SC302.

Court of Appeals of North Carolina.

August 29, 1978.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. William Woodward Webb, Raleigh, for the State.

Barry M. Storick, Charlotte, for defendant appellant.

WEBB, Judge.

As to the three crimes of which the defendant was convicted and the revocation of his probation, the defendant has brought forward twelve assignments of error. All of them are based on the admission into evidence of the heroin and cocaine taken from the defendant by the officers. The defendant contends this evidence was the fruit of an illegal search and he was not properly convicted of the two drug charges. He contends that since the search was illegal there was not probable cause for arrest, and he had a right to resist the officer. Finally, he contends that his probation should not have been revoked because the conviction on which the revocation was based was founded on this illegally obtained evidence.

We believe the evidence was properly admitted and we find no error in the trial. At the time the officers searched the defendant, he was on probation. As a part of the probationary sentence, the defendant waived his constitutional right against a search without a warrant by a law enforcement officer. This was a valid condition of the suspension of the sentence and probation. State v. Mitchell, 22 N.C.App. 663, 207 S.E.2d 263 (1974) and State v. Craft, 32 N.C.App. 357, 232 S.E.2d 282 (1977). The defendant contends that G.S. 15A-1343(b)(15) governs. This section is a part of the Criminal Procedure Act and it forbids requiring as a part of a probationary sentence the condition that a defendant consent to a warrantless search by anyone other than a probation officer.

This section was adopted as a part of Chapter 711 of the 1977 Session Laws. Section 39 of this Chapter says:

"This act shall become effective July 1, 1978, and applies to all matters addressed by its provisions without regard to when a defendant's guilt was established or when judgment was entered against him. . . ."

Since the defendant was convicted before the effective date of the statute, it has no application in this case. We hold that the defendant, by agreeing to the terms of suspended sentence and probation, waived his constitutional right not to be searched without a search warrant and the evidence taken in the search was properly admitted into evidence.

No error.

BROCK, C. J., and HEDRICK, J., concur.