State v. Basden

174 S.E.2d 613 (1970)

STATE of North Carolina
v.
Frank Levitt BASDEN.

No. 7018SC344.

Court of Appeals of North Carolina.

June 24, 1970.

Atty. Gen. Robert Morgan and Staff Atty. James L. Blackburn, Raleigh, for the State.

Joseph D. Franks, Jr., Poteat & Franks, Greensboro, for defendant appellant.

PARKER, Justice.

All of appellant's assignments of error are directed to the trial court's rulings overruling his objections to testimony of the police officers concerning who and what they discovered in the Carr residence, including particularly the testimony as to the discovery of the defendant himself therein, the discovery of the money in his pockets, and his incriminating statement concerning the money. All of the assignments of error are based upon appellant's contention that the search of the Carr residence, which was admittedly made without a search warrant, was illegal and that therefore all evidence obtained as a result of the search was inadmissible at the trial. The validity of this contention presents the sole question to be decided on this appeal.

G.S. § 15-44 provides as follows:

"If a felony or other infamous crime has been committed, or a dangerous wound has been given and there is reasonable ground to believe that the guilty person is concealed in a house, it shall be lawful for any sheriff, coroner, constable, or police officer, admittance having been demanded and denied, to break open the door and enter the house and arrest the person against whom there shall be such ground of belief."

G.S. § 15-41(2) provides as follows:

"A peace officer may without warrant arrest a person:"

* * * * * *

"(2) When the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody."

In this case the crime of armed robbery, a felony, had been committed. Because of the alertness of the witness, Betty Jones, in observing and making prompt report to the police concerning the suspicious activities of defendant Basden and his companions, and because of the prompt and effective action of the police themselves, the Chevrolet car, which the police had reasonable grounds to believe had been used by the robbers, was located in the driveway to Carr's residence only a few minutes after the robbery occurred. All curtains on the residence windows were drawn. Under these circumstances the police clearly had reasonable ground to believe that the persons guilty of committing the felony were concealed in the house. Uniformed police officers, some of whom had arrived in front of the house in clearly marked police patrol cars, went to the front door and knocked, thereby seeking admittance. Failure of the occupants to respond to the request for admittance would constitute an effective denial of the request. Only after these events occurred did Sergeant Pegram proceed to the unlocked back door, open it, and enter the house. Thus, uncontradicted evidence in this case establishes the existence of all of the factors required by G.S. § 15-44 for a lawful entry and arrest.

Furthermore, the uncontradicted evidence establishes that the owner of the residence, Robert Carr, opened the front door from the inside, thereby admitting into the residence the officers who had been standing at the front door demanding admittance. It was after these officers had entered the residence through the door opened to them by the householder himself that the defendant Basden was found concealed in the attic. Under the circumstances of this case we hold that Basden's arrest was also lawful under G.S. § 15-41(2).

The search of defendant's person made by the officers as he was being led from the residence and which resulted in discovery of the money in his pockets was incident to a valid arrest and came within the constitutional limitations for a valid warrantless search, set forth in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. The uncontradicted evidence discloses that the statement made by the defendant as to ownership of the money in his pockets was volunteered by him and was not made in response to any interrogation by the police. We find no error in the trial court's admissions of evidence, and all of appellant's assignments of error brought forward on this appeal are overruled.

Appellant has made no assignment of error to the admission of testimony as to his statement made to the police in which he fully confessed to his part in committing the robbery. This testimony was admitted only after the trial court had properly held a voir dire hearing from which the court found as facts that the defendant had been properly forewarned of his constitutional rights as required by Miranda and that defendant's statement had been voluntarily and understandingly made.

When a defendant in a criminal case objects to the admissibility of the State's evidence on the ground that it was obtained by unlawful search, the proper procedure to be followed by the trial court is the same as required for determining the admissibility of evidence as to a confession. State v. Pike, 273 N.C. 102, 159 S. E.2d 334; State v. Wood, 8 N.C.App. 34, 173 S.E.2d 563; State v. Fowler, 3 N.C. App. 17, 164 S.E.2d 14. In the present case, when defendant objected to the testimony of the police officers concerning what they observed in the Carr residence, the trial court properly held a voir dire hearing in the absence of the jury relative to the circumstances under which the officers had entered the building. The court failed, however, to make findings of fact in this regard, but at the conclusion of the voir dire hearing merely overruled defendant's objections. When conflicting evidence is offered at a voir dire hearing held to determine the admissibility of evidence, the trial judge must make findings of fact to show the basis of his rulings on the admissibility of the evidence offered. State v. Moore, 275 N.C. 141, 166 S.E.2d 53. While it is the better practice for the trial judge to make findings of fact and enter them in the record in all such cases, where, as here, there was no conflict in the evidence at the voir dire, the trial judge's failure to make findings of fact is not fatal. State v. Bell, 270 N.C. 25, 153 S.E.2d 741; State v. Keith, 266 N.C. 263, 145 S. E.2d 841; See also State v. Williams, 274 N.C. 328, 163 S.E.2d 353.

In the defendant's trial and the judgment appealed from we find

No error.

CAMPBELL and VAUGHN, JJ., concur.