State v. Summerlin

MORRIS, Judge.

As a preliminary matter, we note that the record does not indicate that defendant’s pretrial motion to suppress was made in writing and served upon the State, as required by G.S. 15A-977. This omission was not raised by the State at the hearing in superior court or before this Court and no question with respect to it is before us. We simply take this opportunity to call to the attention of the practicing bar the procedural requirements of the Criminal Procedure Act. G.S. Chapter 15A.

Defendant brings forth three assignments of error in a single argument, to wit: that the search of defendant’s car was unconstitutional and in contravention of the North Carolina General Statutes in that the verbal authorization to search issued by the base commander was based upon unsworn and hearsay information, thus the search was conducted without a valid search warrant; and that there were no exigent circumstances to justify a warrantless search of defendant’s automobile. We disagree.

For the purposes of this opinion, we will consider the search in question to have been a warrantless search, since no warrant was issued by anyone authorized to issue warrants under G.S. 15A-243. We need not consider whether there was a proper warrant issued by military authorities for a search by military personnel of a vehicle on a military base.

G.S. 15A-231 provides as follows:

“Constitutionally permissible searches and seizures which are not regulated by the General Statutes of North Carolina are not prohibited.”

Warrantless searches of automobiles and seizures of contraband therefrom without consent are not per se regulated by the North Carolina General Statutes. If the warrantless search and seizure in the instant case was constitutionally permissible, it must necessarily pass muster under G.S. 15A-231.

No citation is necessary for the well-recognized principle that, as a general rule, a valid search warrant must accompany every search or seizure. However, there are several exceptions to this general rule. One such exception, applicable to this case, is that a warrantless search of a vehicle capable of movement out of the location or jurisdiction may be conducted by officers when they have probable cause to search and exigent circumstances make it impracticable to secure a search warrant. Carroll v. U.S., 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280, 39 A.L.R. 790 (1925); Chambers v. Maroney, 399 U.S. 42, 26 L.Ed. 2d 419, 90 S.Ct. 1975, reh. den. 400 U.S. 856, 27 L.Ed. 2d 94, 91 S.Ct. 23 (1970); State v. Allen, 282 N.C. 503, 194 S.E. 2d 9 (1973).

Defendant argues that there were no exigent circumstances sufficient to justify a warrantless search of his automobile in that the Security Policemen on the scene had no reason to believe defendant was about to drive the car away, and the opportunity to search was not fleeting. Defendant argues that the instant case is governed by Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564, 91 S.Ct. 2022, reh. den. 404 U.S. 874, 30 L.Ed. 2d 120, 92 S.Ct. 26 (1971). Coolidge, however, is distinguishable. In that case, the defendant, Coolidge, knew that he was a suspect, had been cooperative with police during the investigation, and had had ample opportunity to destroy any incriminating evidence in his car. There was no suggestion that, on the night of the search, the car was being used for any illegal purpose, and it was regularly parked in defendant’s driveway. There was no indication that Coolidge meant to flee. Also, the objects sought by police were neither stolen nor contraband nor dangerous. On these facts, the Court felt that the opportunity to search was hardly “fleeting”.

In the instant case, common sense dictates that defendant, a civilian at what was evidently a public area on a military base, would have attempted to flee the boundaries of the base had he realized that he was being observed by base authorities. Assuming the existence of probable cause, the object of the search was contraband and the car was being used for an illegal purpose at the time of the search. Given the opportunity, defendant most certainly would have attempted to destroy the marijuana. Given all of these circumstances, we hold that, due to the exigent circumstances, the warrantless search and seizure in question was not unreasonable if based on probable cause.

Defendant does not attempt to argue that probable cause to search was lacking in this case. The crime, possession of marijuana, was committed in the presence of a Security Policeman, Metz, who had received training in the recognition of marijuana. Metz relayed in detail his observations to his superiors. This information, which was the basis for the search conducted by them, clearly constituted probable cause for the search and seizure.

The trial judge correctly denied defendant’s motion to suppress.

Affirmed.

Judges Clark and Mitchell concur.