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North Carolina v. Allison

Filed: September 4, 1979.

STATE OF NORTH CAROLINA
v.
ERVIN RUSSELL ALLISON



Appeal by defendant pursuant to G.S. 7A-27(a) from Martin (Harry), J., 20 June 1977 Session of the Superior Court of McDowell County, docketed and argued as Case No. 15 at the Spring Term 1978.

Sharp, Chief Justice.*fn1 Justice Brock did not participate in the consideration or decision of this case.

Sharp

Defendant's first assignment of error is that the trial judge erred in admitting over defendant's objection the .22 caliber rifle (State's Exhibit No. 1) which Deputy Sheriff Autrey took from defendant's trailer on the afternoon of 3 March 1977. When the State offered the rifle in evidence, defendant objected and moved to suppress the rifle as the fruit of an illegal search. The judge immediately conducted a voir dire, overruled defendant's contention that the seizure of the rifle violated his rights under U.S. Const., Fourth Amendment, N.C. Const., Art. 1, § 20, and G.S.

15A-401(e)(1), and admitted the rifle in evidence. We consider first the constitutional questions involved.

The seizure of suspicious items in plain view inside a dwelling is lawful if the officer possesses legal authority to be on the premises. State v. Hoffman, 281 N.C. 727, 736, 190 S.E.2d 842, 849 (1972). Accord, Harris v. United States, 390 U.S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992 (1968); State v. Howard, 274 N.C. 186, 162 S.E.2d 495 (1968).

As pointed out in the dissenting opinion of Mr. Justice Marshall and Mr. Justice Brennan in United States v. Santana, 427 U.S. 38, 45, 49 L. Ed. 2d 300, 307, 96 S. Ct. 2406, 2411 (1976), the Supreme Court continues to reserve the "question of whether and under what circumstances a police officer may enter the home of a suspect in order to make a warrantless arrest." See also People v. Peyton, 45 N.Y. 2d 300, 408 N.Y.S. 2d 395, 380 N.E. 2d 224 (1978), Coolidge v. New Hampshire, 403 U.S. 443, 476-482, 29 L. Ed. 2d 564, 588-92, 91 S. Ct. 2022, 2043-44 (1971). However, the following dicta and other similar expressions in Coolidge v. New Hampshire, supra, suggest that the Supreme Court will eventually hold that the Fourth Amendment imposes upon a warrantless entry for the purpose of making an arrest limitations comparable to the strictures on residential searches and seizures:

"It is clear, then, that the notion that a warrantless entry of a man's house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic Fourth Amendment law that seizures inside a man's house without warrant are per se unreasonable in the absence of some of a number of well defined 'exigent circumstances.'" Id. at 477-78, 29 L. Ed. 2d 589-90, 91 S. Ct. 2044.

The Fourth Amendment to the United States Constitution and Art. 1, § 20 of the North Carolina Constitution prohibit officers of the law, under ordinary circumstances, from invading the home except under authority of a search warrant issued in accord with constitutional and statutory provisions. McDonald v. United States, 335 U.S. 451, 93 L. Ed. 153, 69 S. Ct. 191 (1948); State v. Robbins, 275 N.C. 537, 169 S.E.2d 858 (1969). Further, evidence obtained during an unconstitutional search is inadmissible at trial, not as a rule of evidence, but as a requisite of due process. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961); State Page 141} v. Colson, 274 N.C. 295, 163 S.E.2d 376, cert. denied, 393 U.S. 1087 (1968).

A warrantless search is not unconstitutional, however, when (1) probable cause to search exists and (2) the government satisfies its burden of demonstrating that the exigencies of the situation made search without a warrant imperative. Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969). If the circumstances of a particular case render impracticable a delay to obtain a warrant, a warrantless search on probable cause is permissible, because the constitutional proscriptions run only against unreasonable searches and seizures. See Maryland Penitentiary v. Hayden, 387 U.S. 294, 18 L. Ed. 2d 782, 87 S. Ct. 1642 (1967); State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179 (1972).

In connection with warrantless entries into a dwelling to make an arrest, the federal courts have isolated seven factors, first cataloged in Dorman v. United States, 435 F.2d 385, 392-393 (D.C. Cir. 1970), which are weighed together to assess the reasonableness of a failure to acquire a warrant: (1) the gravity and violent character of the offense; (2) the reasonableness of the belief the suspect is armed; (3) the degree of probable cause to believe the suspect committed the crime involved; (4) whether reason to believe the suspect is in the premises entered existed; (5) the likelihood of escape if not swiftly apprehended; (6) the amount of force used to effect the unconsented entry; and (7) whether the entry was at day or night.

Most of the other federal circuits have explicitly or implicitly approved the Dorman rationale. See, e.g., United States v. Jarvis, 560 F.2d 494 (2d Cir.), cert. denied, 435 U.S. 934 (1977); United States v. Reed, 572 F.2d 412 (2d Cir. 1978), cert. denied, 439 U.S. 913 (1978); United States v. Cravero, 545 F.2d 406 (5th Cir. 1976), cert. denied, 430 U.S. 983 (1977); United States v. Shye, 492 F.2d 886 (6th Cir. 1974) (per curiam); Salvador v. United States, 505 F.2d 1348 (8th Cir. 1974); United States v. Phillips, 497 F.2d 1131 (9th Cir. 1974); United States v. Davis, 461 F.2d 1026 (3d Cir. 1972); Vance v. State of North Carolina, 432 F.2d 984 (4th Cir. 1970). In light of these decisions, we deem it appropriate to judge the constitutionality of Deputy Autrey's entry in accordance with doctrines developed in the context of searches and seizures.

After the voir dire the trial judge found the facts to be in accordance with the testimony of Joseph Whittaker and Deputies Smith and Autrey as set out in the preliminary statement. Defendant took no exceptions to these findings, which are summarized below:

After Joseph Whittaker summoned the officers, Deputy Smith was the first to arrive. He observed the body of Mrs. Rose Allison lying on the ground and, in his opinion, she was dead. Whittaker told Smith that defendant Allison had shot his mother and, when asked where Allison was, he pointed toward his trailer which was located some 150 feet away. About this time Officer Autrey arrived on the scene. Whittaker had not told Smith that he had heard a car door slam, the engine crank, and a car leave. Nor did he tell Smith he had been to the trailer looking for the defendant. "Smith told Whittaker to get under cover as he might be endangered and directed Deputy Sheriff Autrey to go to the defendant's trailer for the purpose of apprehending the defendant." Following instructions, Autrey went to the trailer, knocked on the door and, when no one answered, went in. On a couch "immediately in the trailer," he saw a rifle which he took into custody. He looked through the trailer, found no one, and left.

The information which Joseph Whittaker furnished Deputy Smith when he found Mrs. Rose Allison lying on the ground shot to death in front of her son's trailer clearly gave him probable cause to believe that defendant had committed murder -- a most grave and violent crime. Smith had every reason to believe that defendant was armed, and it was certainly not unreasonable to believe that defendant would likely escape if not apprehended immediately. Whittaker, in answer to a direct question, had told Smith that defendant was at his trailer by pointing to it. When Autrey arrived, Smith communicated this information to him; and he reasonably relied upon it. "Probable cause 'may be based upon information given to the officer by another, the source of such information being reasonably reliable.'" State v. ...


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