State v. Simmons , 10 N.C. App. 259 ( 1970 )

MORRIS, Judge.

By the defendant’s first assignment of error, he contends that it was error for the court to allow testimony concerning, and the introduction of, non-tax paid whiskey obtained without a search warrant over the defendant appellant’s objection and motion to suppress. In State v. Ferguson, 238 N.C. 656, 78 S.E. 2d 911 (1953), two ABC officers stopped a car on a public highway. The officers walked back to the car and, looking in, saw on the floorboard back of the front seat a cardboard box containing 12 half gallon fruit jars of white whiskey, upon which there were no revenue stamps of the state or federal government. The officers testified that they were stopping cars in order to check driver’s licenses. The Court said, quoting from G.S. 18-6, “that nothing in this section shall be construed to authorize any officer to search any automobile or other vehicle or baggage of any person without a search warrant duly issued, except where the officer sees or has absolute personal knowledge that there is intoxicating liquor in such vehicle or baggage.” The Court further stated that the officer “saw and had absolute personal knowledge that there was intoxicating liquor in the automobile,” and that it necessarily followed that the defendant’s exception based on the court’s refusal to suppress the evidence was overruled. “When the incriminating article is in plain view of the officers ... no search is necessary and the constitutional guaranty does not apply.” State v. Colson, 1 N.C. App. 339, 161 S.E. 2d 637 (1968). “What the officers saw through the windows of the car by the aid of a flashlight without opening the doors of the car to search were competent in evidence.” State v. Craddock, 272 N.C. 160, 158 S.E. 2d 25 (1967). “Where no search is required, the constitutional guaranty is not applicable. The guaranty applies only in those instances where the seizure is assisted by a necessary search. It does not prohibit a seizure without a warrant where there is no need of a search, and where the contraband subject matter is fully disclosed and open to the eye and hand.” State v. Kinley, 270 N.C. 296, 154 S.E. 2d 95 (1967).

The non-tax paid whiskey in this case was in plain view in the back seat of the defendant’s car. The officers’ uncontra-dicted testimony was that they saw the “white plastic jugs” from outside the car “during the commotion.” State v. Ferguson, supra, held that seeing half gallon fruit jars through a car window in a cardboard box gave the officers both sight of and absolute personal knowledge of the presence of intoxicating whiskey in the automobile. The fact that such whiskey is now being transported in white plastic jugs rather than half gallon fruit jars does not lessen the impact of State v. Ferguson, supra.

The contraband material was in plain sight on the back seat and in the rear floorboard of defendant’s car; the fact that it was in plain sight negated any requirement for a search warrant. We find no merit in the defendant’s first assignment of error.

Defendant’s second assignment of error is that the court erred in admitting testimony of the officers that this type of plastic jug was often used to carry non-tax paid whiskey, because the fact that this type of jug was usually used to transport non-tax paid whiskey was not relevant. In our opinion the relevance of this evidence is too apparent to require discussion.

No error.

Judges Brock and Vaughn concur.