Opinion
No. 8323SC346
Filed 3 January 1984
1. Searches and Seizures 6 — entering house with arrest warrant for two men — looking for second man — marijuana in plain view — properly seized The trial court properly denied defendant's motion to suppress evidence of marijuana seized from his premises where the officers had obtained arrest warrants for two men, including defendant's brother, and upon arriving at defendant's trailer where the two men were supposed to be found, the officers knocked and heard someone inside say "come in"; the officers entered and identified defendant's brother, whom they immediately arrested; a subsequent search of the brother and two other men present disclosed at least one loaded pistol; two officers walked from the kitchen area into a back bedroom; and one of the officers testified that as he was looking for the other man named in the warrant, he saw in a bedroom closet a bag containing green vegetable matter which appeared to be, and subsequently proved to be, marijuana. The officers were justified in looking through the trailer for the second suspect and the marijuana was admissible under the plain view doctrine.
2. Jury 6 — voir dire of jury panel in absence of counsel — no prejudicial error Even assuming that there is a right to the presence of defense counsel during the State's voir dire of the jury, that the court erred in proceeding in the absence of defense counsel, and that the error was of constitutional dimension, the error, if any, was nevertheless harmless beyond a reasonable doubt. Defense counsel, upon arrival, had full and fair opportunity to examine the panel which had been approved by the State. G.S. 15A-1443 (b).
APPEAL by defendant from Rousseau, Judge. Judgment entered 19 February 1982 in Superior Court, WILKES County. Heard in the Court of Appeals 17 November 1983.
Attorney General Edmisten, by Special Deputy Attorney General Ann Reed, for the State.
Appellate Defender Adam Stein, by Assistant Appellate Defender Malcolm R. Hunter, Jr., for defendant appellant.
Judge BECTON dissenting.
Defendant appeals from a judgment of imprisonment, a portion of which was suspended, entered upon his conviction of felonious possession of marijuana.
Defendant contends the court should have suppressed, on Fourth Amendment grounds, evidence of marijuana seized from his premises. The pertinent facts are as follows:
Officers had obtained arrest warrants for two men, including defendant's brother, and the complainant had indicated that the men would be at defendant's trailer. Upon arrival at defendant's trailer, the officers knocked and heard someone inside say "Come in." They entered and identified defendant's brother, whom they immediately arrested. A subsequent search of the brother and two other men present disclosed at least one loaded pistol.
Two officers walked from the kitchen area into a back bedroom. One of the officers testified on voir dire that he was looking for the other man named in the warrants. In the course of this walkthrough he saw in a bedroom closet a bag containing green vegetable matter, which appeared to be, and subsequently proved to be, marijuana.
The officers had seen someone run away when they approached the trailer. They subsequently found defendant outside and arrested him.
Defendant contends, citing Steagald v. United States, 451 U.S. 204, 68 L.Ed.2d 38, 101 S.Ct. 1642 (1981), that because the officers possessed only arrest warrants, and not a search warrant, they could not lawfully proceed beyond the kitchen area where they found his brother, who was the subject of one of the arrest warrants. Steagald requires that, to enter one person's residence in search of another for whom an arrest warrant is outstanding, officers must either possess a search warrant or meet one of the familiar exceptions to the warrant requirement, viz, consent or exigent circumstances. Id. at 211, 68 L.Ed.2d at 45, 101 S.Ct. at 1647. The Court there stated: "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. at 212, 68 L.Ed.2d at 45, 101 S.Ct. at 1647 (citing Payton v. New York 445 U.S. 573, 590, 63 L.Ed.2d 639, 653, 100 S.Ct. 1371, 1382 (1980)).
Here, however, defendant does not contest the validity of the initial entry into his trailer. The trial court found that an officer "went to the door of [defendant's] trailer and knocked and a voice from the inside said, `Come in.'" It concluded "that the officers had a right to knock on the trailer; [and] that upon being invited in, they had a right to go in the trailer." Defendant has not excepted to the foregoing finding and conclusion. The finding thus is binding on appeal. Schloss v. Jamison, 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962); Anderson Chevrolet/Olds v. Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982). It supports the conclusion as to the consensual nature of the initial entry, thus bringing it within one of the "special situations" in which a search warrant is not required. Steagald, supra, 451 U.S. at 211, 68 L.Ed.2d at 45, 101 S.Ct. at 1647.
Defendant does except, however, to the conclusion "that after finding one of the persons that they had an arrest warrant for, the officers were justified in looking through the trailer for the second suspect." He thus presents an issue which exceeds the scope of Steagald.
Most courts which have faced this issue have approved walkthroughs of the entire premises at which an arrest has occurred. See 1 W. Ringel, Searches Seizures, Arrests and Confessions 12.6 (a) (1983). "Such a walkthrough is reasonable when its purpose is to locate any other persons who are present on the premises who may pose a threat to the police." Id. at 12-28 to -28.1. Evidence in plain view during the course of such a walkthrough is subject to seizure under the plain view doctrine. Id. "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." Harris v. United States, 390 U.S. 234, 236, 19 L.Ed.2d 1067, 1069, 88 S.Ct. 992, 993 (1968); see also State v. Rigsbee, 285 N.C. 708, 712-15, 208 S.E.2d 656, 659-61 (1974).
Thus, in United States v. Phillips, 593 F.2d 553 (4th Cir. 1978), cert. denied sub nom. Speech v. United States, 441 U.S. 947, 60 L.Ed.2d 1050, 99 S.Ct. 2169 (1979), officers with arrest warrants entered an apartment and arrested two occupants who opened the door in response to their knocks. Although told that no one else was present, one officer nevertheless searched the apartment. In the course of this search he saw incriminating evidence which he seized and which defendants sought to suppress at trial.
The court found no error in admission of the evidence. It stated that the arrests were valid, and that the officers "looked around" only to ascertain whether a third occupant of the premises or other indicted persons were present "in order to assure their own safety and make additional arrests." 593 F.2d at 556. It concluded: "The [officers], therefore, had a right to be where they were. The [evidence] was in `plain view' and thus subject to seizure at the time of the arrests." Id.
In State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974), death sentence vacated, 428 U.S. 904, 49 L.Ed.2d 1209, 96 S.Ct. 3209 (1976), officers entered a residence with consent and arrested two murder suspects. After the officers searched the rooms in which the suspects were found, one of them examined other parts of the house in search of a third suspect. While doing so, he observed a box of shotgun shells, which he took into his possession. Our Supreme Court held that the box was in plain view and the officer was where he had a right to be. It thus found no error in admission of the box into evidence.
Defendant has not excepted to the finding here that after an officer placed his brother under arrest, "he then walked to the back of the trailer looking for the other person for whom he had an arrest warrant." The finding is thus binding on appeal, Anderson Chevrolet/Olds, supra, and it establishes, as the purpose of the walkthrough, a search for the other suspect. Pursuant to the foregoing authorities, it thus supports the conclusion to which defendant excepts, viz, "that after finding one of the persons that they had an arrest warrant for, the officers were justified in looking through the trailer for the second suspect."
The reasonableness of the conclusion is further supported by evidence that the officers had information that two persons named in the arrest warrants would be at defendant's trailer. They found and arrested one of the persons there. When they searched the person arrested and the other two men present, they discovered at least one loaded pistol. These circumstances indicate that a walkthrough of the premises was justified, both for the officers' protection and for the purpose of seeking the other person named in the warrants. Since the officers who conducted the walkthrough were thus where they had a right to be when they discovered the marijuana in plain view, the marijuana was admissible under the plain view doctrine.
We thus hold that the court did not err in denying defendant's motion to suppress. This holding renders immaterial the question of the validity of defendant's subsequent consent to a search of his premises.
Defendant further contends the court committed prejudicial error in allowing the State to conduct its voir dire of the jury panel in the absence of his counsel. The record indicates that defendant was present, but that his retained counsel had been in another county and had arrived some fifteen to twenty minutes after jury selection commenced. The State had, by that time, passed on the panel. Defendant argues that he was thereby denied effective assistance of counsel.
A defendant in a criminal trial has the right to be present during selection of the jury. Lewis v. United States, 146 U.S. 370, 375-76, 36 L.Ed. 1011, 1014, 13 S.Ct. 136, 138 (1892); State v. Hayes, 291 N.C. 293, 297, 230 S.E.2d 146, 148-49 (1976); State v. Shackleford, 59 N.C. App. 357, 358, 296 S.E.2d 658, 659 (1982). Defendant was present during jury selection here.
Neither defendant nor the State has cited authority establishing a right to presence of defense counsel during such selection. Assuming, without deciding, that such a right exists, that the court erred in proceeding in the absence of defense counsel, and that the error is of constitutional dimensions, we nevertheless find the error, if any, harmless beyond a reasonable doubt. G.S. 15A-1443 (b). Defense counsel, upon arrival, had full and fair opportunity to examine the panel which had been approved by the State. The record does not reveal any denials of defense challenges to prospective jurors, or that the jury might in any way have been biased against defendant, or that defendant had any basis whatever for dissatisfaction with the jury as constituted. In light of the evidence presented at trial, which we have held properly admitted, we are satisfied beyond a reasonable doubt that the error, if any, did not contribute to defendant's conviction. Chapman v. California, 386 U.S. 18, 23, 17 L.Ed.2d 705, 710, 87 S.Ct. 824, 827, reh'g denied, 386 U.S. 987, 17 L.Ed.2d 705, 87 S.Ct. 824 (1967). While the practice of proceeding in the absence of defense counsel is not approved, we hold that on this record it did not constitute prejudicial error warranting a new trial.
No error.
Judge HEDRICK concurs.
Judge BECTON dissents.