State v. Turnbull

192 S.E.2d 689 (1972) 16 N.C. App. 542

STATE of North Carolina
v.
James William TURNBULL.

No. 7228SC786.

Court of Appeals of North Carolina.

November 22, 1972.

Atty. Gen. Robert Morgan by Parks H. Icenhour, Asst. Atty. Gen., for the State.

George W. Moore, Asheville, for defendant appellant.

VAUGHN, Judge.

Defendant challenges the court's ruling denying his motion to suppress the evidence obtained as a result of the search of the premises. Defendant contends that the entry made by the officers was illegal as a violation of G.S. § 15-44. Defendant correctly observes that the question of whether there was an actual breaking of the door is not determinative of the issue. The right sought to be protected is the right against unreasonable searches and seizures. U.S.Const. amend. IV; N.C. Const. art. 1, § 20.

Ordinarily, an officer of the law may not enter a citizen's dwelling except under authority of a search warrant issued in accord with pertinent statutory provisions. In re Walters, 229 N.C. 111, 47 S.E.2d 709. North Carolina has defined an unreasonable search to be an examination or inspection without authority of law of one's premises or person with a view to the discovery of some evidence of guilt to be used in the prosecution of a criminal action. State v. Colson, 274 N.C. 295, 163 S.E.2d 376; State v. Robbins, 275 N.C. 537, 169 S.E.2d 858.

"It is well settled, in both federal and state courts, that evidence obtained by unreasonable search and seizure is inadmissible. Fourth and Fifth Amendments to the United States Constitution; Article I, Section 15, [now Section 20], North Carolina Constitution; G.S. 15-27; Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081; State v. Colson, 274 N.C. 295, 163 S.E.2d 376. However, the constitutional protection claimed by defendant does not extend to all searches and seizures, but only to those which are unreasonable." State v. Reams, 277 N.C. 391, 395, 178 S.E.2d 65, cert. den. 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74.

The wording of the Fourth Amendment to the United States Constitution would indicate that a valid search warrant is prima facie evidence of the reasonableness of the search. Gouled v. U. S., 255 U.S. 298, 41 S. Ct. 261, 65 L. Ed. 647; State v. Smith, 251 N.C. 328, 111 S.E.2d 188. In any event, the reasonableness of the search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the criteria laid down by the Fourth Amendment and opinions which apply that amendment. Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726; State v. Howard, 274 N.C. 186, 162 S.E.2d 495; State v. Robbins, supra; State v. Reams, supra.

The findings of fact made by a trial judge at the end of a voir dire examination, if supported by competent evidence, are conclusive and no reviewing court may properly set aside or modify such findings. State v. Barber, 278 N.C. 268, 179 S.E.2d 404. In the instant case, the findings of the trial court, supported as they are by competent evidence, support that court's conclusions of law holding the search valid. We hold that, upon the facts of this case, the court did not err in failing to find that the entry and search by the officers was conducted in an unreasonable manner. The evidence was admissible and defendant's motion to suppress the same was properly denied.

Defendant argues that the trial court erred in admitting evidence of controlled substances found in the bedroom of the house in which defendant was arrested. Defendant contends he was not a lessee of the premises and the introduction of evidence found in an area not clearly under his control was error. Defendant cites nothing in support of his position. In State v. Cook, 273 N.C. 377, 160 S.E.2d 49, defendant Farr was not named in the search warrant nor was she a lessee of the premises, but she was present when a search revealed barbiturate capsules in the same room with the defendant and barbiturates found elsewhere in the house were held admissible against her. The evidence was properly admitted.

Defendant contends that there was insufficient evidence to sustain the charge of possession of controlled substances and the trial court erred in denying defendant's motion to dismiss. If there is substantial evidence—direct, circumstantial or both— to support a finding that (1) the offense charged has been committed and (2) the defendant committed it, it is a case for the jury. State v. Cook, supra; State v. Hart, 12 N.C.App. 14, 182 S.E.2d 254. In State v. Cook, supra, the North Carolina Supreme Court held that evidence that defendant Farr was unsteady on her feet, had glassy, dilated eyes, mumbled unintelligibly, seemed to be in a stupor, had no odor of alcohol about her and was apparently under the influence of drugs was evidence from which a reasonable inference of guilt could be drawn and required submission to the jury. In the present case, defendant was no more than eight feet from an open closet in which heroin was found, his eyes were glassy and sensitive to the light, he was slow in responding to questions, there was evidence of fresh needle marks on his arm, there was no odor of alcohol about him and there was testimony that he was apparently under the influence of a depressant drug. We hold that the evidence was sufficient to require submission of the case to the jury.

Defendant's remaining assignments of error have been considered and found to be without merit.

No error.

HEDRICK and GRAHAM, JJ., concur.