State v. Morris

254 S.E.2d 241 (1979) 41 N.C. App. 164

STATE of North Carolina
v.
Walter Andrew MORRIS.

No. 7826SC1174.

Court of Appeals of North Carolina.

May 1, 1979.

Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Sandra M. King, Raleigh, for the State.

John G. Plumides, Charlotte, for defendant appellant.

ERWIN, Judge.

In the preparation of this record on appeal, defense counsel did not make the Notice of Appeal a part of the record. The State failed to raise an issue with reference to the lack of a Notice of Appeal in the record in its brief. Our Clerk of Court was able to have copy of the Notice forwarded to him. Notice of Appeal is required in order to give this Court jurisdiction to hear and decide a case. See Rule 4 of the Rules of Appellate Procedure; G.S. 7A-26; G.S. 15A-1448; Cf. Mason v. Commissioners of Moore, 229 N.C. 626, 51 S.E.2d 6 (1948); Corporation Com. v. R. R., 185 N.C. 435, 117 S.E. 563 (1923). Our Clerk acted at our request to prevent further expenditure of this Court's time and other expenses by the State.

Defendant contends the trial court erred in overruling his motion to suppress certain evidence. We find no error.

Searches by airfreight carriers conducted pursuant to tariff regulations in which governmental agents have not otherwise been involved have been held "nongovernmental" for purposes of the Fourth Amendment. United States v. Gumerlock, 590 F.2d 794 (9th Cir. 1979); United States v. Issod, 508 F.2d 990 (7th Cir. 1974), cert. denied, 421 U.S. 916, 95 S. Ct. 1578, 43 L. Ed. 2d 783 (1975); United States v. Edwards, 443 F. Supp. 192 (D.Mass.1977). Where an agent of a carrier of his own volition opens and inspects a package consigned to his employer's care, he acts as a private citizen unless he was supervised or requested to perform the inspection by an agent of the government. United States v. Crabtree, 545 F.2d 884 (4th Cir. 1976); United States v. Edwards, supra; United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391 (1974), cert. denied, 419 U.S. 1127, 95 S. Ct. 815, 42 L. Ed. 2d 828 (1975). The testimony at trial clearly indicated the absence of a request to open the package on the part of a governmental agent, and the trial court so found. The court's findings of fact are conclusive. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); 4 Strong's N.C. Index 3d, Criminal Law, § 175, p. 895. We find no error.

Defendant further contends that his motion to suppress should have been granted, because the officers failed to obtain a search warrant before inspecting the contraband. This argument is without merit.

If the freight agent could lawfully open the package, he could also, upon discovering the contraband, lawfully notify law enforcement officers of the discovery and show it to them. Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971); United States v. Issod, supra; Cf. United States v. Sellers, 511 F.2d 1199 (4th Cir. 1975). Then it would become the duty of the officers to further investigate the package. United States v. Ford, 525 F.2d 1308 (10th Cir. 1975). The subsequent law enforcement activity did not constitute any "new or different search." United States v. Ford, supra; United States v. Pryba, supra; State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970), cert. denied, 404 U.S. 840, 92 S. Ct. 133, 30 L. Ed. 2d 74 (1971). Although the officers could have seized the contraband since it was in plain view, Coolidge v. New Hampshire, supra; Harris v. United States, 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); United States v. Tripp, 468 F.2d 569 (9th Cir. 1972), cert. denied, 410 U.S. 910, 93 S. Ct. 965, 35 L. Ed. 2d 272 (1973); State v. Smith, 289 N.C. 143, 221 S.E.2d 247 (1976); State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968), they were entitled to allow delivery before arresting defendant. United States v. Issod, supra. We find no error.

Defendant's other assignments of error are not argued in the brief and are deemed abandoned. State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974), vacated on other grounds, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1212 (1976).

The judgment entered by the trial court is

Affirmed.

PARKER and HARRY C. MARTIN, JJ., concur.