State v. McPeak , 243 N.C. 243 ( 1955 )

90 S.E.2d 501 (1955) 243 N.C. 243

STATE
v.
Cordell Hull McPEAK and Leland Wesley Campbell.

No. 649.

Supreme Court of North Carolina.

December 14, 1955.

William B. Rodman, Jr., Atty. Gen., and Harry W. McGalliard, Asst. Atty. Gen., for the State.

Woltz & Woltz, Mount Airy, J. N. Freeman and T. M. Faw, Frank Freeman, Dobson, for Defendants, Appellants.

PARKER, Justice.

The defendants' assignments of error present one question for decision: Were the implements of housebreaking and the narcotic drugs found in McPeak's automobile admitted in evidence in violation of the provisions of G.S. § 15-27, Article 1, Section 11, of the State Constitution and the 14th Amendment to the U. S. Constitution?

It is well settled law that a person may waive his right to be free from unreasonable searches and seizures. A consent to search will constitute such a waiver, only if it clearly appears that the person voluntarily consented, or permitted, or expressly invited and agreed to the search. Where the person voluntarily consents to the search, he cannot be heard to complain that his constitutional and statutory rights were violated. State v. Moore, 240 N.C. 749, 83 S.E.2d 912 (where many cases are cited); Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477; People v. Preston, 341 Ill. 407, 173 N.E. 383, 77 A.L.R. 631; 47 Am.Jur., Searches and Seizures, Sec. 71; 79 C.J.S., Searches and Seizures, § 62.

"No rule of public policy forbids its waiver." Manchester Press Club v. State Liquor Commission, 89 N.H. 442, 200 A. 407, 408, 116 A.L.R. 1093.

The facts in Sims v. State, 73 Okl. Cr. 321, 121 P.2d 317, are quite similar. The first headnote reads: "Where motorist, on request of highway patrolman who stopped him for driving contrary to rules of the road, opened turtleback of automobile, disclosing whisky, there was a ``waiver' by motorist of immunity from unlawful search."

In the case at bar there was no display of force or firearms, no promises, no threats, no coercion of any kind. Howell told McPeak he would like to search his car, but he told him "he didn't have to let us search his car, if he didn't want to." McPeak said, "Well, there's nothing on the car," got his switch key, unlocked the car's trunk, raised the lid, unzipped a leather bag or case (it is called by both names in the evidence) he had in there, fumbled through some articles of clothing in the bag, and said, "See, I don't have anything." At that time the officer saw a five or six-pound sledge hammer lying in the trunk of the car. In the search the officer found in the bag McPeak unzipped a bottle of nitroglycerine, some dynamite caps with short fuses attached, and a bar of soap wrapped up in a wet washcloth. The State having introduced evidence sufficient, prima facie, to show a waiver, if McPeak wished to dispute the fact of waiver, he should have offered some proof controverting the showing made by the State. Jones v. State, 33 Okl. Cr. 369, 244 P. 456. He failed to do so. We conclude that the acts and language of McPeak constituted a free and voluntary consent on his part to the search of his automobile by the officer, and a waiver on his part of his immunity from an unlawful search.

The lower court found as a fact that McPeak gave permission to the officer to search his car, that it was a legal search, that the evidence was competent, and overruled the motion "to suppress all evidence obtained through the search." The ruling of the trial judge as to the competency of this evidence, which is supported by competent evidence, will not be disturbed on appeal. State v. Moore, supra.

The Oldsmobile was the property of McPeak and in his possession. Campbell was a passenger therein. The person of Campbell was not searched.

The immunity to unreasonable searches and seizures is a privilege personal to those whose rights thereunder have been infringed. They alone may invoke it against illegal searches and seizures. Goldstein v. United States, 316 U.S. 114, 62 S.Ct. 1000, 86 L.Ed. 1312; Kelley v. United States, 8 Cir., 61 F.2d 843, 86 A.L.R. 338; United States v. De Vasto, 2 Cir., 52 F.2d 26, 78 A.L.R. 336; Steeber v. United States, 10 Cir., 198 F.2d 615, 33 A.L.R.2d 1425; 79 C.J.S., Searches and Seizures, § 52, where numerous cases are cited from many jurisdictions; 47 Am.Jur., Searches and Seizures, Sec. 11.

The Oldsmobile belonged to McPeak: Campbell was a passenger or guest therein. Campbell's rights were not invaded by the search of McPeak's car, and he had no legal right to object thereto. Smith v. State, 198 Miss. 788, 24 So.2d 85; Lee v. State, 148 Tex.Cr.R. 220, 185 S.W.2d 978; Anderson v. Commonwealth, 312 Ky. 768, 229 S.W.2d 756.

In Lee v. State, supra, a state highway patrolman arrested Lee on a highway about 12 miles west of Fort Worth; at the time of Lee's arrest he was riding with a man who was going to Fort Worth; the officer searched the car without a search warrant, and found an automatic pistol under the seat where Lee was riding. This pistol was used to commit the murder with which Lee was charged. It was admitted in evidence. Lee objected to any evidence of the search and the result thereof, because the search was made without a search warrant. The Texas Court said we see no merit in the objection for two reasons [148 Tex.Cr.R. 220, 185 S.W.2d 979]: "First, the automobile did not belong to appellant. Consequently his rights were not invaded by the search and he had no legal right to object thereto. [Citing authorities.] Second, the officer who made the arrest had theretofore been advised that appellant had committed a felony and was fleeing. Hence the officer had a legal right, under article 215, C.C.P., to arrest the appellant without a warrant, and the arrest carried with it the right to search him."

The cases cited by the appellants are distinguishable.

The evidence challenged by the appellants was admissible against both defendants. In the trial below we find

No Error.