Summary
In State v. Crews, 286 N.C. 41, 44, 209 S.E.2d 462, we said, "When the defendant objects to the admissibility of the State's evidence on the ground that it was obtained by unlawful search, it is the duty of the trial court, in the absence of the jury, to hear the evidence of the State and of the defendant regarding the lawfulness of the search and seizure and to make findings thereon."
Summary of this case from State v. CurryOpinion
No. 47
Filed 26 November 1974
1. Criminal Law 84 — search and seizure — objection to evidence — duty to hold voir dire When the defendant objects to the admissibility of the State's evidence on the ground that it was obtained by unlawful search, it is the duty of the trial court, in the absence of the jury, to hear the evidence of the State and of the defendant regarding the lawfulness of the search and seizure and to make findings thereon.
2. Criminal Law 84 — voir dire on admissibility of seized evidence — burden of going forward The trial court did not err on voir dire in placing on defendants the burden of going forward on their motions to suppress evidence seized from their apartment where defendants and the State were each afforded equal opportunity to present their case to the trial judge on voir dire and the court correctly placed on the State the burden of proving the admissibility of the evidence, the order of offering testimony not being a factor in determining the fairness of a voir dire hearing.
3. Criminal Law 84; Searches and Seizures 1 — amphetamines in plain view — seizure without warrant Where officers were legally in defendants' apartment to serve a capias on the male defendant, an officer saw on a closet shelf a clear, brown-tinted pint-size bottle with no labels containing several hundred multi-colored pills when the male defendant went to the closet to obtain his clothes, and the officer believed they were amphetamines because of the appearance of the pills and the bottle, the officer had reasonable grounds to believe that the bottle, which was in plain view, contained amphetamines and properly seized the bottle and pills without a warrant.
4. Searches and Seizures 3 — seizure of amphetamines without warrant — statement by one defendant — probable cause for warrant The lawful seizure of a bottle containing amphetamines from defendants' apartment without a warrant, coupled with a question officers heard the female defendant ask the male defendant, "What about the others?", constituted probable cause for issuance of a warrant to search the apartment.
5. Criminal Law 146 — constitutionality of statute — question not presented in trial court Question of the constitutionality of the statute giving the State Board of Health authority to reschedule substances under the Controlled Substances Act, G.S. 90-88, was not before the Supreme Court where that question was not presented in the superior court or in the Court of Appeals.
APPEAL by defendants from the decision of the Court of Appeals, reported 22 N.C. App. 171, 205 S.E.2d 765 (1974), which found no error in the trial before Wood, J., at the 27 August 1973 Session of FORSYTH Superior Court.
Attorney General Robert Morgan by John R. B. Matthis, Assistant Attorney General, for the State.
McElwee, Hall McElwee by John E. Hall for defendant appellants.
Chief Justice BOBBITT not sitting.
Justice SHARP dissenting.
On indictments proper in form, defendants were tried and convicted of possession of amphetamines, a Schedule II substance the possession of which was then a felony under the North Carolina Controlled Substances Act. G.S. 90-86 et seq. (1971 Cumulative Supplement). From sentences imposed, defendants appealed to the Court of Appeals. From the decision of the Court of Appeals, they appeal to this Court, pursuant to G.S. 7A-30 (1).
The State's evidence tends to show that at approximately 4 a.m. on 16 May 1973 Winston-Salem Police Officers Rogers and Spillman went to 1021 Sunset Drive, Apartment G, in Winston-Salem, to serve a capias on defendant Crews for failing to appear in court in a nonsupport case. Beverly Lee Wall, who was spending the night in the apartment's living room, answered the door. The officers asked for Crews, and she answered that he was in the back bedroom. The officers proceeded there and turned on the overhead light. The two defendants were in the bed. Miss Parrish was partially in a lying and sitting position with covers on. Crews had awakened and was lying nude in the same bed. The officers informed him that they had a capias for his arrest and that he was to come with them. He put on a pair of undershorts that was lying beside the bed and proceeded into a walk-in closet to get outer clothing. Officer Spillman followed Crews to the closet and noticed a clear, brown-tinted bottle about five inches high and two to three inches in diameter located on the front of the shelf above the clothes that were hanging in the closet. The bottle had no writing or labels on it. It appeared to Officer Spillman to contain pills of various colors. Officer Spillman took Crews, and the bottle to the police station. The bottle was found to contain several hundred amphetamines. Police officers then procured a search warrant and returned to the apartment. There they found several thousand more amphetamines in a pasteboard box under the bed in which defendants had been sleeping.
Other facts pertinent to decision are set out in the opinion.
Defendants first contend that the trial court erred on voir dire in placing on them the burden of going forward on their motions to suppress evidence obtained by the police officers at defendants' apartment.
Shortly after the jury was impaneled, defense counsel made a motion to suppress the amphetamines as the fruit of an unlawful search. At that time the jury was excused and a voir dire examination of witnesses was conducted. Defendants first introduced evidence covering some 47 pages of the record, and the State introduced evidence covering some 33 pages. After all the testimony, the trial judge made findings and admitted the evidence.
In support of their contention, defendants cite State v. McCloud, 276 N.C. 518, 525, 173 S.E.2d 753, 758 (1970), where it is stated: ". . . And one who seeks to justify a warrantless search has the burden of showing that the exigencies of the situation made search without a warrant imperative. [Citations omitted.]" Defendant confuses the "burden of proof" with the "burden of going forward." The trial court in the present case, in compliance with McCloud, clearly and correctly stated that the State has the burden of proving the admissibility of evidence, and properly differentiated this burden from the burden of going forward, when it said: "[T]he Court is considering that regardless of the way the evidence is put on, . . . the burden of proving is on the State at all times . . . ."
When the defendant objects to the admissibility of the State's evidence on the ground that it was obtained by unlawful search, it is the duty of the trial court, in the absence of the jury, to hear the evidence of the State and of the defendant regarding the lawfulness of the search and seizure and to make findings thereon. State v. Eppley, 282 N.C. 249, 192 S.E.2d 441 (1972); State v. Pike, 273 N.C. 102, 159 S.E.2d 334 (1968); State v. Myers, 266 N.C. 581, 146 S.E.2d 674 (1966).
Here, both the State and defendants were afforded, on voir dire, ample opportunity to establish the facts as they believed them to be. The record shows that examination of each witness was extensive and penetrating. Our research has discovered no case holding that the order of offering testimony is a factor to be considered in determining the fairness of a voir dire hearing. The important requirement was met in that defendants and the State were each afforded equal opportunity to present their case to the trial judge on voir dire. Defendants' first assignment is therefore overruled.
Defendants next assign as error the introduction of the pills seized in the apartment before defendant Crews was taken to the police station and the introduction of the pills seized pursuant to a search warrant obtained on the basis of the first seizure.
On voir dire Officer Spillman testified that he was at defendants' apartment for the purpose of serving a capias on defendant Crews; that he was invited in by Miss Wall and was told by her that Crews was in the back bedroom. The officers went there and found the two defendants in bed. When Crews was told that he was to accompany the officers to police headquarters, he got out of bed and went toward a closet to get his clothes. The light was on and Officer Spillman testified he looked toward the closet and saw on the shelf a clear, brown-tinted, pint-size bottle that contained several hundred multi-colored pills. As the officer picked up this bottle, Crews said, "Hey, wait a minute. Those are not mine." As Crews was walking down the hall, the officer heard defendant Parrish ask Crews, "What about the others ?"
The officers then took Crews and the bottle to police headquarters, and the bottle was found to contain approximately eight hundred amphetamine tablets. A warrant was issued for Crews charging him with possession of amphetamines with intent to distribute, and a search warrant was procured for the apartment. The officers returned to Crews' apartment where they found defendant Parrish lying on the bed, with a .22 automatic rifle "jammed" with a live cartridge lying beside her. After taking the rifle, they looked in the closet for a pasteboard box that they had previously seen on the shelf, but it was not there. They found the box under the bed on which defendant Parrish was sitting. It contained several bottles of pills and some loose pills — several thousand in all — which a later examination showed to be amphetamines. Upon hearing this and other testimony, the trial court, after making findings of fact, overruled defendants' objection to the introduction of the pills into evidence. The trial court found that the officers were on the premises legally, that the bottle was in plain view, and that no search was required for its seizure. Such findings, when supported by competent evidence, are conclusive on appellate courts. State v. Lock, 284 N.C. 182, 200 S.E.2d 49 (1973); State v. Johnson, 280 N.C. 295, 185 S.E.2d 689 (1971); State v. McVay and State v. Simmons, 277 N.C. 410, 177 S.E.2d 874 (1970).
"The constitutional guaranty against unreasonable searches and seizures does not apply where a search is not necessary, and where the contraband subject matter is fully disclosed and open to the eye and the hand." State v. Harvey, 281 N.C. 1, 11, 187 S.E.2d 706, 713 (1972). Accord, State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970).
Officer Spillman was legally in the apartment. He testified that he had had some training in drug detection, that he had seen amphetamine pills before, and that the pills in the bottle looked like amphetamines. He further testified that the size of the bottle, the large number of pills, and the fact that there was no prescription or label on the bottle, all led him to believe that they were amphetamines.
"When an officer's presence at the scene is lawful, . . . he may, without a warrant, seize evidence which is in plain sight and which he reasonably believes to be connected with the commission of a crime . . . ." 1 Stansbury's N.C. Evidence 121a (Brandis Rev. 1973). Accord, Harris v. United States, 390 U.S. 234, 19 L.Ed.2d 1067, 88 S.Ct. 992 (1967); State v. Harvey, supra; State v. DuBoise, 279 N.C. 73, 181 S.E.2d 393 (1971).
We hold that under the facts in this case Officer Spillman had reasonable grounds to believe that the bottle, which was in plain view, contained amphetamines, and that the court properly overruled defendants' objection to the admission of the pills found in the bottle.
Since the bottle contained amphetamines, this fact, coupled with defendant Parrish's statement, "What about the others?", was ample to constitute probable cause for the issuance of the search warrant under which the box of amphetamines was seized.
The assignment of error to the admission of the amphetamines is overruled.
Defendants finally contend that they were deprived of equal protection under the laws by the fact that they were tried and convicted for a felony when the laws of this State made the offense for which they were charged a misdemeanor.
On 16 May 1973, amphetamines were listed as a Schedule III controlled substance in G.S. 90-91 (a) (1971 Cumulative Supplement). On that date, possession of any amount of a Schedule I or Schedule II substance was a felony. G.S. 90-95 (c). Possession of a Schedule III or Schedule IV substance was a misdemeanor. G.S. 90-95 (d). On 17 May 1973, G.S. 90-90 and G.S. 90-91 were amended by the General Assembly so that amphetamines became a Schedule II substance. Chapter 540, Sections 5 and 6, 1973 Session Laws. The offense here occurred on 16 May 1973, on which date, under G.S. 90-91 (a), amphetamines were a Schedule III substance, the possession of which was a misdemeanor. G.S. 90-95 (d). If these were all the pertinent facts, defendants' contention would be correct. However, by order dated 23 March 1972, effective 24 April 1972, the State Board of Health (now Commission for Health Services), acting within its delegated authority pursuant to G.S. 90-88 (1971 Cumulative Supplement), reclassified amphetamines from a Schedule III substance to a Schedule II substance. Under the law at that time (G.S. 90-95 (c)), possession of any amount of a Schedule II substance was a felony.
The State Board of Health, in rescheduling substances under the Controlled Substances Act, was acting under detailed guidelines established by the General Assembly in G.S. 90-88, which in pertinent part provided:
"Authority to control. — (a) . . . In making a determination regarding a substance, the North Carolina State Board of Health shall consider the following:
(1) The actual or relative potential for abuse;
(2) The scientific evidence of its pharmacological effect, if known;
(3) The state of current scientific knowledge regarding the substance;
(4) The history and current pattern of abuse;
(5) The scope, duration, and significance of abuse;
(6) The risk to the public health;
(7) The potential of the substance to produce psychic or physiological dependence liability; and
(8) Whether the substance is an immediate precursor of a substance already controlled under this Article.
"(b) After considering the required factors, the North Carolina State Board of Health shall make findings with respect thereto and shall issue an order adding, deleting or rescheduling the substance within Schedules I through VI of this Article."
G.S. 90-88 also provided that a public hearing must be held prior to the adding, deleting or rescheduling of any controlled substance within Schedules I through VI. Prior notice of such hearing must be placed in three newspapers of State-wide circulation. The statutes then provided for notice to the public of rules amended or promulgated by the Board by filing copies in the office of the Secretary of State and with the clerks of the superior courts. G.S. 143-195; G.S. 143-198.1.
Counsel for defendants in his brief admits that the contention regarding whether the acts of defendants constitute a misdemeanor or a felony was not raised in the Superior Court or in the Court of Appeals. This Court will not decide questions which have not been presented or adjudicated in the courts below, especially questions relating to the constitutionality of a statute. As we said in State v. Jones, 242 N.C. 563, 89 S.E.2d 129 (1955): ". . . [I]n conformity with the well established rule of appellate courts, we will not pass upon a constitutional question unless it affirmatively appears that such question was raised and passed upon in the court below. [Citations omitted.]" Accord, State v. Cumber, 280 N.C. 127, 185 S.E.2d 141 (1971); State v. Dorsett and State v. Yow, 272 N.C. 227, 158 S.E.2d 15 (1967). Since the question of the constitutionality of G.S. 90-88 was not before the Superior Court or the Court of Appeals, it is not properly before us. Therefore, we do not pass upon the constitutionality of this statute.
For the reasons stated, the decision of the Court of Appeals is affirmed.
Affirmed.
Chief Justice BOBBITT not sitting.