State v. Sheppard , 42 N.C. App. 125 ( 1979 )

HEDRICK, Judge.

Appellate review is permitted by G.S. § 15A-979(c). The State first contends that the trial court erred in granting the motion to suppress as to No. 78CRS17162 since defendant Garner lacked “standing” to contest the validity of the searches. We agree.

G.S. § 15A-972 provides: “When an indictment has been returned or an information has been filed in the Superior Court, or a defendant has been bound over for trial in superior court, a defendant who is aggrieved may move to suppress evidence in accordance with the terms of this Article.” [Emphasis added.] This is the same terminology employed by Rule 41(e) of the Federal Rules of Criminal Procedure. See Official Commentary to G.S. § 15A-972. In construing the language in Rule 41(e), the United States Supreme Court, in Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed. 2d 697, 702 (1960) stated:

In order to qualify as a “person aggrieved by an unlawful search and seizure” one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else . . .

Ordinarily, then, it is entirely proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed that he establish, that he was the victim of an invasion of privacy.

The principle that Fourth Amendment rights are personal rights that may not be asserted vicariously has been reaffirmed by the Supreme Court. Rakas v. Illinois, --- U.S. ---, 99 S.Ct. 421, 58 L.Ed. 2d 387 (1978); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed. 2d 176 (1969).

In the present case, defendant Garner was charged with felonious conspiracy to possess stolen property “on or about the 15th day of March 1978.” Defendant Garner was not present at the residence in Randolph County that was searched on 7 and 11 April 1978, or at the Riverside, California residence that was searched on 9 April 1978. Garner has neither alleged nor shown any possessory or proprietary interest in either residence or any of the items seized and listed in the indictment charging him with felonious conspiracy to possess stolen property. The burden is on the defendant to show that he is “aggrieved” within the meaning of G.S. § 15A-972 and that he has standing to contest a search allegedly violating his Fourth Amendment rights. This Garner has failed to do.

Thus, this case falls squarely under the rule announced in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed. 2d 208 (1973):

[T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.

411 U.S. at 229, 93 S.Ct. at 1569, 36 L.Ed. 2d at 214. Consequently, the trial court erred in granting defendant Garner’s motion to suppress in No. 78CRS17162 since Garner had no standing to contest any of the searches.

Likewise, with regard to defendant Sheppard’s motion to suppress the evidence obtained in the 9 April 1978 search of the Riverside, California residence, the trial court erred in granting the motion. The record discloses that defendant Sheppard was not on the premises at the time of the search, alleged no proprietary or possessory interest in the premises or any of the items seized, and was charged with felonious conspiracy to possess stolen property and felonious possession of stolen property “oh or about the 15th day of March 1978.” Thus, under the above-quoted rule from Brown, Sheppard had no standing to contest the 9 April 1978 search.

We need not consider the question whether Sheppard has “automatic standing” under Jones v. United States, supra, with regard to the possession charge. See Rakas v. Illinois, --- U.S. at --- n. 4, 99 S.Ct. at 426, 58 L.Ed. 2d at 396, since under the indictment charging Sheppard with possession of the stolen goods, the State must prove that he possessed the property in North Carolina on the date charged in the indictment.

Thus, we hold the trial court erred in granting the motions to suppress any evidence obtained as a result of the search of the Riverside, California residence as to both defendants, and in granting the motion to suppress as to the defendant Garner with regard to the searches of the Randolph County residence.

Finally, we consider the trial court’s order as it relates to the searches on 7 and 11 April 1978 of the Randolph County residence with respect to defendant Sheppard. The State contends that the officers were acting pursuant to a valid search warrant when they saw welding equipment in plain view in the defendant Sheppard’s garage, and thus the trial court erred in its ruling that the 7 April 1978 search exceeded the scope of the warrant. We need not consider this argument for the reasons which follow, and thus we express no opinion as to the validity of the warrant or the search on 7 April 1978.

A motion to suppress may be made at any time prior to trial unless the State gives notice within twenty working days before trial of its intention to use as evidence at trial a statement made by a defendant, evidence obtained as a result of a warrantless search, or evidence obtained as a result of a search with a warrant when the defendant was not present for its execution. G.S. § 15A-975(b) and -976. A motion to suppress evidence in superior court must be in writing, must state the grounds upon which it is made, and must be accompanied by an affidavit containing facts supporting the motion. G.S. § 15A-977(a). In the present case, there is no written motion to suppress by defendant Sheppard with regard to the 7 April 1978 search of the Randolph County house. We also note that no items were physically removed from the premises on 7 April 1978, nor is there any notice or other indication in the record that the State intends to introduce any evidence of any nature obtained as a result of the 7 April 1978 search relating to the charges in the present case. While the trial judge’s Order clearly refers to a motion to suppress evidence obtained in the 7 April 1978 search, no such motion appears in the record that would provide a basis for the Order, and thus that portion of the Order purporting to allow such a motion is gratuitous and a nullity.

The only remaining search contested by defendant Sheppard occurred on 11 April 1978 when the law enforcement officers seized various items listed in the indictments. The officers had no warrant authorizing them to be on the premises on that date, and any authority to search the garage could only have been by consent. The defendant Sheppard was not present at the time of the search and gave no consent. The only consent was that purportedly given by the defendant’s wife. The trial judge, however, found as a fact that any consent given by her was not voluntary. There is ample evidence in this record to support this finding and thus it is binding on the appellate courts. State v. Crews, 286 N.C. 41, 209 S.E. 2d 462 (1974); State v. Hunt, 37 N.C. App. 315, 246 S.E. 2d 159 (1978).

The result is: That portion of the Order dated 9 November 1978 suppressing the evidence obtained as a result of the search of the Riverside, California residence on 9 April 1978 relating to the charges against Garner in No. 78CRS17162 and against Sheppard in No. 78CRS17160 and No. 78CRS17161 is reversed; that portion of the Order suppressing the evidence obtained in the 7 and 11 April 1978 searches of the Randolph County residence relating to the charges against Garner in No. 78CRS17162 is reversed; that portion of the Order relating to the suppression of evidence obtained as a result of a search of the Randolph County residence on 7 April 1978 as it relates to the charges against Sheppard in No. 78CRS17160 and No. 78CRS17161 is vacated; and, that portion of the Order suppressing the evidence obtained in the 11 April 1978 search in Randolph County, North Carolina is affirmed.

Reversed in part; vacated in part; affirmed in part; and remanded.

Judges Vaughn and Arnold concur.