State v. Jordan , 8 N.C. App. 203 ( 1970 )

MoRRis, J.

Defendant’s court-appointed counsel requested and received an extension of time within which to docket his case on appeal but failed to docket the case within the extension period. This Court has nevertheless decided to review the case on its merits.

Defendant’s first assignment of error is directed to the failure of the trial court to allow his motion to quash the bills of indictment. This assignment of error was not brought forward and argued in defendant’s brief and it is, therefore, .deemed abandoned. Rule 28, Rules of Practice of the Court of Appeals of North Carolina.

By assignments of error Nos. 3, 4 and 5 defendant contends that it was error to admit evidence of his confession and that it was error to allow the introduction of the exhibits dropped by the fleeing passenger and the safe door, because, without the confession, there was no evidence connecting defendant with these exhibits. Defendant urges that the confession was involuntary and under threat and after he had been denied counsel. The evidence is to the contrary. Defendant did not offer evidence on the voir dire examination. There was plenary evidence that defendant was adequately warned by more than one officer of his constitutional rights both at the time of the arrest and later. There is evidence that defendant made a request for a lawyer to one officer while en route to the police station. 'There is also evidence that he requested permission to use the telephone, that this request was granted, and he did use the telephone. There is no evidence that his request for a lawyer was ever repeated. After an extensive voir dire, the trial court found as a fact that defendant was properly warned of his constitutional rights, and the statements made by him were freely and voluntarily made. There is sufficient competent evidence to support the findings of fact and they are conclusive. State v. Bell, 270 N.C. 25, 153 S.E. 2d 741 (1967); State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966), cert. den. 386 U.S. 911, 17 L. Ed. 2d 784, 87 S. Ct. 860 (1967). We hold the statements •of defendants to the officers were properly admitted. It follows, of course, that the exhibits which defendant argues could not otherwise be connected to him were properly admissible.

Assignment of error No. 2 is directed to the admission of evidence obtained by Officer Hightower’s search of the car. Defendant contends that the search was illegal because made without a search warrant, was not about the person of the defendant and not incident to a valid arrest. The conviction of defendant’s passenger was affirmed by this Court [State v. McCloud, 7 N.C. App. 132, 171 S.E. 2d 470 (1970) ] and by the Supreme Court [State v. McCloud, 276 N.C. 518, 173 S.E. 2d 753 (1970)]. The same question was there Taised. The majority opinion was written by Branch, J. The dissenting opinion of Sharp, J., in which Bobbitt, C.J., joined was not directed to this question. We quote from the majority opinion of the Court:

“Defendant assigns as error the admission into evidence of the tools and other exhibits taken from the Jordan automobile.

The admission of defendant’s confession destroys his contention that the evidence does not connect him with the exhibits offered in evidence. Thus the basic question presented by this assignment of error is whether the tools and exhibits were obtained by an unlawful search and seizure. Search of a motor vehicle made in connection with a lawful arrest for a traffic violation is lawful when it is a contemporaneous search for the purpose of finding property, the possession of which is a crime, i.e., burglary tools. Such search must be based on a belief reasonably arising from the circumstances that the motor vehicle contained the contraband or other property lawfully subject to seizure. State v. Bell, 270 N.C. 25, 153 S.E. 2d 741; People v. Lopez, 60 Cal. 2d 223, 384 P. 2d 16; State v. Boykins, 50 N.J. 73, 232 A. 2d 141; Welch v. U. S., 361 F. 2d 214.

Seizure of contraband, such as burglary tools, does not require a warrant when its presence is fully disclosed without necessity of search. State v. Giles, 254 N.C. 499, 119 S.E. 2d 394; State v. Bell, supra; Goodwin v. U. S., 347 F. 2d 793; U. S. v. Owens, 346 F. 2d 329; State v. Durham, 367 S.W. 2d 619. See also 10 A.L.R. 3d 314, for a full note and collection of cases concerning lawfulness of search of a motor vehicle following arrest for traffic violation.

In the instant case the owner of the automobile was lawfully under arrest. The arrest was accompanied by the extraordinary behavior of the passenger fleeing upon approach of the officers. After the driver’s arrest, the contraband articles were observed, without necessity of search, lying on the floorboard of the automobile. Upon observing these articles, defendant was further charged with unlawful possession of burglary tools. Thereupon the officers immediately conducted further search and found other articles in the glove compartment. The further search was clearly based upon a belief reasonably arising from the circumstances that the motor vehicle contained other property subject to lawful seizure.

We note that the Court of Appeals questions the standing of defendant to raise objection to the search of Jordan’s automobile, on the basis that defendant had no property right in the place alleged to have been invaded. We agree with the Court of Appeals that it is not necessary to decide this question since the search without warrant was legal. However, it should be noted that the long-recognized property right concept in relation to search and seizure has been greatly eroded by recent Federal decisions. Jones v. U. S., 362 U.S. 257, 4 L. Ed. 2d 697; Katz v. U. S., 389 U.S. 347, 19 L. Ed. 2d 576; Mancusi v. DeForte, 392 U.S. 364, 20 L. Ed. 2d 1154; Bumper v. State of North Carolina, 391 U.S. 543, 20 L. Ed. 2d 797.”

Upon authority of McCloud, this assignment of error is overruled.

The overruling of assignments of error Nos. 2, 3, 4 and 5 ipso facto overrules assignments of error Nos. 6 and 10 which are based upon the alleged illegality of the search and inadmissibility of the confession.

Defendant’s remaining assignments of error are directed to the court’s charge to the jury. These assignments of error are based on exceptions Nos. 11 —16. Exceptions Nos. 11 —15 are to portions of the charge wherein the court stated the contentions of the parties. No objection thereto was made at the time they were given, objection being made for the first time on appeal, a procedure not approved by our Supreme Court. State v. Baldwin, 226 N.C. 295, 37 S.E. 2d 898 (1946). Additionally, the contentions stated are supported by competent evidence. State v. Burnette, 242 N.C. 164, 87 S.E. 2d 191 (1955). Exception No. 16 is to the entire charge. The assignments of error based on this exception state that the court failed to charge the jury on the law of search and seizure and voluntary confessions. The legality of the search and the voluntariness of the confession were questions of law which had already been determined by the court and were not questions for determination by the jury. The exception is broadside and ineffective. Light Co. v. Smith, 264 N.C. 581, 142 S.E. 2d 140 (1965).

Affirmed.

Vaughn, J., concurs.