State v. Thompson , 37 N.C. App. 628 ( 1978 )

Judge ERWIN

dissenting.

I vote to grant the defendants a new trial. I feel the motion to suppress the evidence should have been allowed. The record clearly shows: the van in question was parked in a public area near Fort Fisher at the end of Highway 421 in the area of the Wildlife Boat Camp. The boat landing is an open area with several street lights and borders on the water.

The record before us does not show that the defendants were violating any laws of the State at the time they were being observed by the officers, Wolak and Lee. There is not any indication that the defendants were acting in any suspicious manner, nor were they wanted for the commission of any crimes. On voir dire, Officer Wolak testified that he and Lee approached the van in order to identify the occupants, because it was late at night and break-ins had been reported in the vicinity earlier that evening. But the record does not disclose the time of the break-ins, the description of the van allegedly connected with the break-ins, or that the officers ever asked for or received either the registration card of the van in question or the driver’s license.

The van had not been stopped pursuant to G.S. 20-183(a). In such cases as State v. Smith, 289 N.C. 143, 221 S.E. 2d 247 (1976), the defendant was driving his motor vehicle in a careless and reckless manner; in State v. Allen, 282 N.C. 503, 194 S.E. 2d 9 (1973), defendants were stopped to determine the validity and presence of the driver’s license and registration card; and in State v. Fry, 13 N.C. App. 39, 185 S.E. 2d 256 (1971), cert. denied and appeal dismissed, 280 N.C. 495, 186 S.E. 2d 514 (1972), the police officer was investigating a traffic violation, opened the door of a van, and saw in plain view a person holding a bag of marijuana. In State v. Legette, 292 N.C. 44, 231 S.E. 2d 896 (1977), our Supreme Court held that a pistol found in a Plymouth was properly admitted into evidence on the “plain view” doctrine where the evidence showed that the butt end of the pistol was readily visible to Officer Jarrell as he stood outside the Plymouth.

In State v. Virgil, 276 N.C. 217, 172 S.E. 2d 28 (1970), our Supreme Court held that the “plain view” doctrine applied when an officer removed a piece of chrome strip from the exterior of the car in question. No interior search of the car was necessary.

I would hold that the conduct of Officer Wolak in reaching across the seat and looking in the recessed area of the van a search. “A search, even of an automobile, is a substantial invasion of privacy.” United States v. Ortiz, 422 U.S. 891, 896, 45 L.Ed. 2d 623, 629, 95 S.Ct. 2585, 2588 (1975). The motion to suppress should have been allowed.