State v. Phifer , 297 N.C. 216 ( 1979 )

254 S.E.2d 586 (1979)

STATE of North Carolina
v.
Nathaniel PHIFER.

No. 35.

Supreme Court of North Carolina.

May 17, 1979.

Rufus L. Edmisten, Atty. Gen., by Marilyn R. Rich, Asst. Atty. Gen., Raleigh, for the State.

Plumides, Plumides & Shuster by John G. Plumides, Charlotte, for defendant-appellant.

HUSKINS, Justice:

The State contends the warrantless search of the glove compartment of defendant's car was part of a valid police inventory of the car's contents. The State relies on South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976), where the United States Supreme Court held that a police inventory search, when conducted pursuant to standard police procedures, was not unreasonable under the Fourth Amendment. In upholding the validity of such searches, the Court carefully delineated the context within which an inventory search constitutes a constitutionally permissible intrusion:

"In the interests of public safety and as part of what the Court has called ``community caretaking functions,' automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities.

Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.

When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents. These procedures developed in response to three distinct needs: the protection of the owner's property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger."

428 U.S. at 368-69, 96 S. Ct. at 3097 (citations omitted). The Court in Opperman reasoned that given the frequency with which police have occasion to impound automobiles in contexts totally divorced from the investigation of criminal activities, it is reasonable to permit them to inventory the contents of such automobiles and secure valuable items of property found within them until the automobiles are reclaimed by their owners. The Court also noted that an inventory tends to insure that explosives, ammunition, weapons, and other hazardous materials are not left unattended in impounded vehicles. In sum, the benefits in safety and protection of private property provided by a standardized police inventory outweigh the intrusion upon the diminished privacy interests of an owner whose automobile has been lawfully impounded.

Since an inventory search may be undertaken without a warrant or probable cause, it is potentially subject to abuse by police officers intent upon ferreting out evidence of criminal activity. Cognizant of this danger, the Court in Opperman made it clear that the validity of an inventory search under the Fourth Amendment is premised upon its being a benign, neutral, administrative procedure designed primarily to safeguard the contents of lawfully impounded automobiles until owners are able to reclaim them. Accordingly, the Court stressed that inventory searches should be "carried out in accordance with standard procedures in the local police department, a factor tending to insure that the intrusion would be limited in scope to the extent necessary to carry out the caretaking function." 428 U.S. at 375, 96 S.Ct. at 3100. (citations omitted). The Court also pointed out that standardized inventory procedures could not be utilized as a "pretext concealing an investigatory motive." Id. at 376, 96 S. Ct. 3092. Finally, while generally approving the reasonableness of standardized inventory searches, the Court noted that the reasonableness of any given inventory search depended upon the circumstances presented by each case. Id. at 372-73, 96 S. Ct. 3092.

Application of the above principles to the circumstances of this case leads us to conclude that the instant search cannot be justified as a valid inventory search. Examination of the record indicates that Officers Christmas and Barnes did not comply with pertinent portions of standard procedures in effect at the time of defendant's arrest for the towing, inventory, storage and release of impounded vehicles. See City of Charlotte Code §§ 20-20 through 24 (superseded 24 July 1978). Hence, at the time Officers Christmas and Barnes commenced their inventory of defendant's car they in fact had no authority to impound, tow or inventory the car.

Defendant was initially stopped for a speeding violation. He was placed under arrest when it was discovered that there was on file a warrant for his arrest for other traffic offenses as to which defendant had failed to appear in court in obedience to citation. Officer Christmas testified that in light of defendant's past failures to appear in court he determined that the better course of action would be to take defendant before a magistrate and have him post bond. Defendant's arrest raised the question of how to dispose of his car. Officer Christmas testified that since there had been quite a few break-ins at the particular spot where defendant's car was stopped he thought it best to inventory its contents and have a wrecker tow it. Accordingly, a tow truck was summoned and an inventory was commenced by Officer Barnes.

Review of pertinent portions of the procedures established by the City of Charlotte with respect to the impoundment of vehicles demonstrates that Officers Christmas and Barnes had no authority to summon a tow truck and commence an inventory on defendant's car. The Charlotte standards effective at the time of defendant's arrest expressly provide that whenever a traffic violator must be brought before a magistrate to post bond, "the violator's vehicle will not be towed for this purpose unless authorized by the officer's supervisor." The proper procedure in such instance is to have the violator drive the car to the magistrate's office, or if that is not advisable, to have an assisting officer drive the car. Only if violator is unable to post bond are the officers authorized to have the car towed. Any towing prior to arrival at the magistrate's office must be authorized by a supervisor. Defendant was arrested for the purpose of having him appear before a magistrate; yet, at no time did Officer Christmas seek authorization from a supervisor to have defendant's vehicle towed to the magistrate's office. Nor did Officer Christmas consider whether his assisting officer, Barnes, should drive the car to the magistrate's office.

The Charlotte standards also give priority to another means of vehicle disposition which does not involve towing and inventory:

"B. Citizens should be allowed to make disposition of their vehicles when:

1. The driver or owner is on the scene.

2. In the officer's judgment the subject is capable of making such disposition.

3. Said disposition does not interfere with the case or create a traffic problem.

C. When an officer decides that conditions permit leaving the owner's or driver's vehicle parked in an area where it does not create a traffic problem he will fill out a Vehicle Disposition Form. The owner or driver will sign this form releasing the Department of all responsibility for the vehicle."

The record indicates that defendant was present at the scene of the arrest and was capable of determining what he wanted done with his vehicle. Yet, at no time did Officer Christmas consult with defendant as to how he wished to dispose of his vehicle. Rather, Officer Christmas, contrary to the standards, unilaterally determined what was to be done with the car. It should be noted that the primary reason given by Officer Christmas for having defendant's car towed was the danger of theft and vandalism. Defendant's car was stopped on a city right-of-way adjacent to a vacant lot. Thus, it is highly unlikely that a traffic problem would have been created had defendant desired to risk exposure to theft by leaving his car temporarily parked on the right-of-way, the vacant lot, or a nearby parking space.

Finally, due consideration of all the circumstances surrounding the disputed search and seizure leads to the inescapable inference that Officers Christmas and Barnes utilized the inventory procedure as a "pretext concealing an investigatory motive." South Dakota v. Opperman, supra, 428 U.S. at 376, 96 S. Ct. 3092. Shortly after Officer Christmas had stopped defendant for speeding, Officer Barnes arrived on the scene and informed Officer Christmas that defendant was known to him as a drug dealer. Radio checks revealed an outstanding warrant on file for other traffic offenses which precipitated defendant's arrest. It is at this juncture that the inescapable inference of pretextual search arises. Officer Christmas unilaterally determined that defendant's car had to be towed and asked Officer Barnes to commence an inventory of the vehicle's contents. The abrupt, unilateral determination to have the vehicle towed and inventoried was inconsistent with the Charlotte standards on the towing and inventory of impounded vehicles. Those standards required Officer Christmas to seek permission from a superior to have the vehicle towed and, in any event, to give defendant an opportunity to make a disposition of his vehicle. When the officers' disregard for Charlotte's towing and inventory standards is juxtaposed against their knowledge that defendant was a drug dealer, the inescapable inference arises that the towing and inventory procedure was used as a pretext to search defendant's car for contraband. The inference of pretextual search is supported by the testimony of Officer Barnes:

"Q. And you knew that this man was a drug dealer, no question about that, is there?

A. No, sir, I knew.

Q. And you knew you all were looking for him and keeping out an eye for him and would stop him any chance you got to check him out, didn't you? Wouldn't you?

A. Yes, sir.

Q. You would have done that?

A. Yes, sir.

Q. And that's exactly why he was stopped on this day in question to be searched to see if he had any drugs on him, wasn't it?

A. I didn't stop him.

Q. Well, you would have stopped him had you seen him, wouldn't you?

A. Yes, sir, I would have.

Q. Yes, sir. And the pretext of the inventory is no more than a cover for the lack of a search warrant, isn't it?

A. Sir, I don't know what the department. . . the department sets forth the guidelines and I just follow them."

In summary, the instant search cannot be justified as a constitutionally valid inventory search under the guidelines enunciated in South Dakota v. Opperman, supra. The Charlotte standards were not followed by the officers and therefore they had no authority to have defendant's car towed and no authority to commence a pre-tow inventory of the vehicle's contents. Additionally, the circumstances indicate that Officers Christmas and Barnes utilized the towing and inventory procedures as a "pretext concealing investigatory motives."

Our determination that the warrantless search of the glove compartment cannot be justified as an inventory search, however, is not dispositive of this appeal, for the contraband found in the glove compartment was not the fruit of the illegal inventory search. Review of the record indicates that by the time the glove compartment was opened the officers, through lawful means, had independently obtained probable cause to suspect that the glove compartment contained contraband. This is so because defendant, after being stopped for speeding, was lawfully arrested on the basis of an outstanding warrant for his arrest on file at the police station. After lawfully arresting defendant, Officer Christmas had the right to make a contemporaneous, warrantless search of the person of the accused. Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964). Accord, State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973); State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971). Thus, while Officer Barnes began to inventory the contents of defendant's car, Officer Christmas commenced a valid search of defendant's person. During the course of that search Officer Christmas found One Thousand Ninety-nine dollars in bills of various denominations rolled up in defendant's left sock. The officer then asked defendant to remove his shoes, which he did. There was a key in the right shoe which defendant attempted, unsuccessfully, to throw away. Officer Christmas handed the key to Officer Barnes who then used the key to open the glove compartment. Prior to his receipt of the glove compartment key, Officer Barnes' inventory had proceeded no further than the unlocked areas of the passenger compartment and had not uncovered anything of significance.

Probable cause to search in the setting of this case may be defined as a reasonable ground of suspicion supported by circumstances sufficiently strong to lead a man of prudence and caution to believe defendant's car contained contraband of some sort. State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973); State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972); State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179 (1972). "``To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilt, but it must be such as would actuate a reasonable man acting in good faith. . . . The existence of "probable cause" . . . is determined by factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved.'" State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971), quoting 5 Am.Jur.2d, Arrest §§ 44, 48. A warrantless search of an automobile is constitutionally permissible if the "automobile is stopped on or near a public street or highway and there is probable cause to search at the scene . . .." State v. Jones, 295 N.C. 345, 245 S.E.2d 711 (1978) (emphasis added). Accord, Texas v. White, 423 U.S. 67, 96 S. Ct. 304, 46 L. Ed. 2d 209 (1975) (per curiam); Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); State v. Mathis, 295 N.C. 623, 247 S.E.2d 919 (1978); State v. Legette, 292 N.C. 44, 231 S.E.2d 896 (1977); State v. Allen, supra; State v. Ratliff, supra; State v. Simmons, 278 N.C. 468, 180 S.E.2d 97 (1971).

Here, the totality of the circumstances would lead a man of prudence and caution to believe that the glove compartment of defendant's car contained contraband of some sort. The officer's knowledge of defendant's reputation as a drug dealer, the substantial sum of money found rolled in defendant's sock, and defendant's attempt to throw away a key hidden in one of his shoes would alert any officer to the fact that defendant had something to hide. Compare, State v. Ratliff, supra. Given this probable cause, the warrantless search of the glove compartment was reasonable by Fourth Amendment standards and the fruits of the search were properly admitted into evidence. Accord, Texas v. White, supra; Chambers v. Maroney, supra.

Since the evidence sought to be suppressed was obtained through lawful means unrelated to the invalid inventory search, it follows that the "fruit of the poisonous tree" doctrine has no application to this case. Accord, Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L. Ed. 307 (1939); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S. Ct. 182, 64 L. Ed. 319 (1920).

We are cognizant of the fact that at the suppression hearing the District Attorney stipulated that the officers had no probable cause to suspect that the glove compartment of defendant's car contained contraband. This Court, however, is not bound by the State's concession. The general rule is that stipulations as to the law are of no validity. Quick v. Insurance Co., 287 N.C. 47, 213 S.E.2d 563 (1975); In re Edmundson, 273 N.C. 92, 159 S.E.2d 509 (1968); Auto Co. v. Insurance Co., 239 N.C. 416, 80 S.E.2d 35 (1954); Moore v. State, 200 N.C. 300, 156 S.E. 806 (1931); Sanders v. Ellington, 77 N.C. 255 (1877). Whether the facts in this case give rise to probable cause is a legal determination reserved for the courts. "[W]here a particular legal conclusion follows from a given state of facts, no stipulation of counsel can prevent the court from so declaring." Annot., 92 A.L.R. 663, 670 (1934). Accord, Sanders v. Ellington, supra.

For the reasons stated in this opinion, the result reached by the Court of Appeals is

AFFIRMED.