State v. Gray , 55 N.C. App. 568 ( 1982 )

286 S.E.2d 357 (1982)

STATE of North Carolina
v.
Mitchell John GRAY.

No. 8112SC699.

Court of Appeals of North Carolina.

February 2, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David Gordon, Raleigh, for the State.

Asst. Public Defender Orlando F. Hudson, Jr., Fayetteville, for defendant appellant.

HEDRICK, Judge.

Defendant assigns as error the trial court's finding and conclusion that the search of the defendant and the seizure of the pills from defendant were pursuant to a lawful arrest. This assignment of error may be resolved by an inquiry into the propriety of each stage in the chain of events beginning with the original detention of defendant by Deputy Herman and including the subsequent arrest of defendant, the search of defendant after the arrest, and Deputy Herman's seizure of the pills found upon searching defendant.

A police officer's limited investigatory detention of an individual may, consistent with the Fourth Amendment, be made when the officer has a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. State v. Tillett, 50 N.C.App. 520, 274 S.E.2d 361, appeal dismissed, 302 N.C. 633, 280 S.E.2d 448 (1981); State v. Thompson, 296 N.C. 703, 252 S.E.2d 776, cert. denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143 (1979). The standard required of mere investigatory detentions is less exacting than the traditional notion of probable cause, which is the applicable standard for arrests. State v. Thompson, supra. In determining whether a police officer had a reasonable suspicion warranting an investigatory detention, the circumstances should be viewed through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training. State v. Thompson, supra.

In the present case, the State presented evidence that Deputy Herman stopped defendant's vehicle only after having heard a report from a fellow deputy sheriff that defendant was driving with expired temporary license tags in violation of G.S. §§ 20-79.1, -111. Since Deputy Herman had been so informed by a fellow officer, he was cognizant of objective and articulable facts which would support a reasonable suspicion that defendant was involved in criminal activity. Hence, Deputy Herman's detention of defendant was proper.

"An arrest is constitutionally valid whenever there exists probable cause to make it." State v. Wooten, 34 N.C.App. 85, 88, 237 S.E.2d 301, 304 (1977). Probable cause exists when the facts and circumstances known to the arresting officer at the time of arrest were sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense. State v. Mangum, 30 N.C. App. 311, 226 S.E.2d 852 (1976). Furthermore, "[a]n officer may arrest without a warrant any person who the officer has probable cause to believe has committed a criminal offense in the officer's presence." G.S. § 15A-401(b)(1); State v. Wooten, supra. Any incriminating evidence which comes to the officer's attention during a valid investigatory detention may establish a reasonable basis for finding the probable cause necessary for effecting a warrantless arrest. State v. Rudolph, 39 N.C.App. 293, 250 S.E.2d 318, disc. rev. denied, appeal dismissed, 297 N.C. 179, 254 S.E.2d 40 (1979).

In the present case, Deputy Herman had lawfully detained defendant and observed that defendant's temporary license tags had been expired for over a month, in violation of G.S. §§ 20-79.1, -111. Deputy Herman thereupon had reasonable grounds to believe that defendant was committing an offense in his presence. Deputy Herman's arrest of defendant, therefore, was proper. Furthermore, since an arresting officer may, consistent with the Fourth Amendment, conduct a warrantless search of the person lawfully arrested, State v. Nesmith, 40 N.C.App. 748, 253 S.E.2d 594 (1979), Deputy Herman's search of defendant incident to the lawful arrest was proper.

The remaining question to be resolved under this assignment of error is the propriety of the seizure, by Deputy Herman, of the pills found on defendant's person. That an officer is within constitutional bounds in discovering the presence of an item on the person of one whom he searches is not alone sufficient to justify the officer's seizure of that item. State v. Beaver, 37 N.C.App. 513, 246 S.E.2d 535 (1978). "Any inquiry into the lawfulness of the seizure must go further, as the limits of reasonableness which are placed upon searches are equally applicable to seizures." State v. Beaver, supra, at 517, 246 S.E.2d at 538. An item may be seized in a constitutional manner only when the officer seizing it has probable cause to believe that the object constitutes contraband or evidence of a crime. State v. Beaver, supra.

In the present case, Deputy Herman, upon finding the plastic bag of pills on defendant asked defendant what it was, and defendant stated that it was LSD. It was only then that Deputy Herman seized the pills, but at that point he had been apprised of sufficient information to warrant a reasonable belief that the bag of pills was contraband and evidence of a crime.

Defendant contends, however, that "[t]he pills were seized as a controlled substance solely by the exploitation of an illegality, i.e. ... the officer gained knowledge that they were a controlled substance by improperly interrogating the defendant," without first instructing defendant of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We hold, however, that the statement by defendant that the pills were "LSD" was not procured by a custodial interrogation requiring the safeguards of Miranda.

State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179 (1972), involved a defendant's appeal from a conviction for murder. Defendant had been arrested by a police officer for carrying a concealed weapon. At the time of the arrest, the officer had no knowledge that a murder had been committed and did not suspect defendant of murder or any capital felony. He informed defendant of his Miranda rights and noticed that three chambers in defendant's gun were empty. The officer then asked defendant, without securing any waiver of his Miranda rights, where defendant had been and what defendant had been shooting. Defendant replied that he had just shot a woman. The court, on appeal, refused to suppress defendant's inculpatory statement, holding that Miranda was inapplicable, and that the conversation between the officer and the defendant was not an in-custody interrogation of a murder suspect and pointing out that "[i]t was no incommunicado interrogation of an individual in a police dominated atmosphere." State v. Ratliff, supra at 407, 189 S.E.2d at 185.

The atmosphere in the present case was similarly not police dominated, and defendant was not held incommunicado. The focus and arrest of defendant was for driving with expired temporary license tags, not possession of LSD. "[T]he holding in Miranda was designed to protect an accused from coercive police practices." State v. Porter, 303 N.C. 680, 694, 281 S.E.2d 377, 386 (1981). "[T]o constitute an ``interrogation' within the meaning of Miranda, the conduct of the police must involve a measure of compulsion." State v. Porter, supra at 692, 281 S.E.2d at 385-86. In the present case, there were no circumstances of compulsion nor of coercive police practices, and the question asked of defendant pertained to items totally unrelated to anything with which he was charged at the time of questioning. Under these circumstances, there was no custodial interrogation of defendant, and Deputy Herman was not required to advise defendant of his rights under Miranda. Defendant's statement that the pills were "LSD" was therefore not the product of any illegality on the part of Deputy Herman, and Deputy Herman could therefore rely on defendant's statement in determining whether there was probable cause to believe that the bag of pills was contraband. Even if Deputy Herman were not allowed to rely on the defendant's statements, the mere sighting by Deputy Herman of a plastic bag of fifty blueish green pills was sufficient to enable Deputy Herman to form a reasonable belief that the pills were contraband. See State v. Beaver, supra. Hence, Deputy Herman's seizure of the pills was proper and this assignment of error is overruled.

Finally, defendant makes two assignments of error regarding the court's admission at voir dire of testimony by Deputy Herman that he was told by Deputy Sanders that defendant was driving with expired tags. Defendant argues that this testimony was inadmissible hearsay and that it violated his constitutional rights to confront witnesses against him.

The assertion of any person, other than that of the witness himself in his present testimony, is not hearsay when offered into evidence for some purpose other than to prove the truth of the matter asserted. State v. Hood, 294 N.C. 30, 239 S.E.2d 802 (1978). Furthermore, "``[t]he declarations of one person are frequently admitted to evidence a particular state of mind of another person who heard or read them ... to explain his subsequent conduct.' 1 Stansbury's N.C. Evidence § 141 (Brandis rev. 1973) at 467-71." State v. Irick, 291 N.C. 480, 498, 231 S.E.2d 833, 844-45 (1977).

The challenged evidence in the present case was not offered to prove that defendant was driving with expired tags, but to prove that Deputy Herman was told by a fellow officer that defendant was driving with expired tags. The evidence tended to show that Deputy Herman had received information which would justify his forming a reasonable suspicion that defendant was involved in criminal activity. As such, the evidence was not hearsay. Similarly, admission of the testimony in no way deprived defendant of an opportunity to confront the evidence that Deputy Herman had received such information. Defendant had ample opportunity to cross-examine Deputy Herman on the capacity of his statement that he had received information from another officer about defendant's offense. These two assignments of error are without merit.

We hold that the evidence adduced at voir dire supports the court's critical findings of fact, which in turn support the order denying defendant's motion to suppress.

Affirmed.

MORRIS, C. J., and ROBERT M. MARTIN, J., concur.