State v. Cooke , 54 N.C. App. 33 ( 1981 )

Judge MARTIN (Robert M.)

dissenting.

I dissent. The uncontested evidence is that when inquiry was made of defendant about his possible ownership of the bag, he denied ownership and left the scene. This raises an issue as to whether defendant was precluded from claiming a legitimate expectation of privacy in the suitcase sufficient to show a violation of his rights by the search. See, United States v. Kendall, 655 F. 2d 199 (9th Cir., 1981). I would remand for findings of fact and conclusions of law concerning defendant’s abandonment of the suitcase and his standing to complain of the search of the suitcase. This procedure has been upheld by this Court in State v. Prevette, 39 N.C. App. 470, 250 S.E. 2d 682 (1979), discr. rev. denied, 297 N.C. 179, 254 S.E. 2d 38 (1979), and is not inconsistent with Steagald v. United States, --- U.S. ---, 68 L.Ed. 2d 38, 101 S.Ct. 1642 (1981), which applies to the Rules of Procedure in the federal courts.