State v. Brooks

275 S.E.2d 202 (1981)

STATE of North Carolina
v.
Glenn A. BROOKS.

No. 8012SC807.

Court of Appeals of North Carolina.

March 3, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert R. Reilly, Raleigh, for the State.

Asst. Public Defender William L. Livesay, Fayetteville, for defendant-appellant.

HEDRICK, Judge.

The sole question presented by this appeal is whether the court erred in denying defendant's motion to suppress.

G.S. § 15A-256 provides:

An officer executing a warrant directing a search of premises not generally open to the public or of a vehicle other than a common carrier may detain any person present for such time as is reasonably necessary to execute the warrant. If the search of such premises or vehicle and of any persons designated as objects of the search in the warrant fails to produce the items named in the warrant, the officer may then search any person present at the time of the officer's entry to the extent reasonably necessary to find property particularly described in the warrant which may be concealed upon the person, but no property of a different type from that particularly described in the warrant may be seized or may be the basis for prosecution of any person so searched. For the purpose of this section, all controlled substances are the same type of property.

Defendant first contends that the trial judge erroneously concluded that the search of defendant complied with the requirements of G.S. § 15A-256. We do not agree. Under the cited statute, if a search of the premises described in a valid search warrant fails to produce the items named in the warrant, officers may then conduct a search of a person, whether named in the warrant or not, who is on the premises at the time of the officer's entry thereon. Such a search is limited, however, to "the extent reasonably necessary" to find the property particularly described in the warrant, or, in the case of a search warrant for a controlled substance, any controlled substance. The search is also limited to items that could be concealed upon the person.

In the present case, the court's findings in its order denying defendant's motion to suppress indicate that after receiving reliable information as to the availability for sale of one hundred grams of hashish at a private residence, Agent Porter and other officers obtained a warrant, the validity of which is not questioned, authorizing a search of that residence for the hashish. The findings also show that upon arriving at the residence, the officers served the warrant and began a search of the premises, which ultimately turned up approximately 98 grams of hashish, but none of the hashish found was in a form which would indicate it was ready for sale. The findings further demonstrate that since the object of the search, ready-to-sell hashish, had not been discovered, and since the object of the search could be concealed upon the person of those who were at the residence when the officers entered, the officers decided that defendant, who was at the residence at the time of entry, should be searched for the hashish. The findings then indicate that a search of defendant turned up 23.5 grams of hashish that had been hidden in the top band of defendant's sock.

The court's findings, not challenged by defendant, are conclusive on appeal if they are supported by competent evidence in the record, State v. Prevette, 43 N.C.App. 450, 259 S.E.2d 595 (1979), disc. rev. denied and appeal dismissed, 299 N.C. 124, 261 S.E.2d 925 (1980), and the record in this case contains ample competent evidence which supports the findings made by the trial judge. The findings are thus conclusive, and, in turn, obviously support the court's conclusion that the search of defendant met the requirements of G.S. § 15A-256. Defendant's contention is therefore without merit.

Defendant next contends that even if the search of defendant complied with G.S. § 15A-256, the search was nevertheless unconstitutional. Citing Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), defendant argues that the Fourth Amendment prohibition against unreasonable searches and seizures requires that probable cause to search be "particularized" to the individual to be searched, and since the search warrant in the present case referred only to the premises at 5700 Comstock Court, and not any person present, probable cause "particularized" to defendant was therefore lacking. We cannot agree.

In Ybarra v. Illinois, supra, the United States Supreme Court (Stewart, J.) stated as follows:

It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed [footnote omitted]. But, a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U.S. 40, 62-63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the "legitimate expectations of privacy" of persons, not places. [citations omitted]

Id. at 91, 100 S.Ct. at 342, 62 L.Ed.2d at 245.

The Ybarra Court emphasized that none of the circumstances present would have suggested to the police that Ybarra was somehow connected with the criminal activity to which the search warrant was addressed, and therefore no probable cause to search Ybarra existed. The circumstances in the instant case, however, were quite different. The record indicates that Agent Porter had received reliable information that two men, a black male and a white male, had one hundred grams of hashish for sale at a particular private residence. The sale was to take place on the evening of 17 December 1979. The officers went to the residence that evening with a search warrant to search the premises, but the search failed to turn up any hashish that was ready for sale. Since the officers knew that ready-to-sell hashish was supposed to be at the residence at that time, and since such hashish could easily be concealed upon the person of those present, the officers had reason to believe that defendant, a white male, might have the ready-to-sell hashish on his person. In our view, therefore, the officers had probable cause, "particularized" with respect to defendant, to search defendant.

Moreover, the limited search of persons on the premises allowed by G.S. § 15A-256 has previously been held constitutional. In State v. Watlington, 30 N.C.App. 101, 226 S.E.2d 186, cert. denied and appeal dismissed, 290 N.C. 666, 228 S.E.2d 457 (1976), this Court, per Judge Arnold, stated:

Only those searches and seizures that are unreasonable are prohibited by the Fourth Amendment. Where police officers have a warrant authorizing the search of a vehicle or premises it is reasonable to permit a search of persons found in the vehicle or on the premises, within the restrictions of G.S. § 15A-256, to prevent those persons from concealing the contraband subject matter described in the search warrant.

Id., at 103, 226 S.E.2d at 188. We do not believe that the decision in State v. Watlington, supra, is in any way adversely affected by the above-cited rule from Ybarra v. Illinois, supra. Probable cause "particularized" to those present on the premises being searched can be clearly inferred from the circumstances under which the limited search pursuant to G.S. § 15A-256 is authorized: Police officers have reason to believe that criminal activity has been or is occurring on the premises, the search pursuant to the warrant fails to uncover any evidence of such activity, and such evidence of the criminal activity could be concealed upon the person of those present at the time of the officer's entry.

We are therefore of the opinion that the search conducted in the present case was constitutional, and defendant's contention is without merit.

The trial court's order denying defendant's motion to suppress is

Affirmed.

ROBERT M. MARTIN and CLARK, JJ., concur.