Appeal by defendant from Lewis, Judge. Judgment entered 2 October 1980, in Superior Court, Jackson County. Heard in the Court of Appeals 2 September 1981.
Morris, Chief Judge. Judge Clark concurs. Judge Wells dissents.
G.S. 15A-979(b) gives the right of appeal from a plea of guilty following the denial of a suppression motion. In interpreting the statute, the Supreme Court in State v. Reynolds, 298 N.C. 380, 397, 259 S.E.2d 843, 853 (1979), through Justice Carlton for a unanimous court on this question, held that "when a defendant intends to appeal from a suppression motion denial pursuant to G.S. 15A-979(b), he must give notice of his intention to the prosecutor and the court before plea negotiations are finalized or he will waive the appeal of right provisions of the statute." The dissent
(in part and on other grounds) by Justice Exum referred to the necessity of notice that the defendant was "pleading guilty conditionally under G.S. 15A-979(b)" because the "legislature did not intend for a defendant to have it both ways", noting that "the state is entitled to rely on a negotiated plea, nothing else appearing, as being a full and final settlement of the entire matter." Supra, at 405, 259 S.E.2d at 857. Here, the record states that "the defendant in open court gave notice of appeal to the North Carolina Court of Appeals, pursuant to G.S. 15A-979(b)." This appears after the sentence was imposed and execution thereof suspended for five years and the defendant placed on probation under the usual rules of probation and certain special conditions. Transcript of plea in this case leaves unanswered the question, "Have you agreed to plead as a part of a plea bargain?" We assume that the plea entered was not the result of a plea bargain and answer the issue raised by the appeal.
The evidence for the state on defendant's motion to suppress is summarized as follows:
Officer Cruzan, a North Carolina State Highway Patrolman, went to the campus of Western Carolina University in response to a call from Security Officer Shelton for assistance. Officer Shelton had stopped a vehicle and had the driver of the vehicle under arrest for "no driver's license". He was the only security officer on duty at the time and had orders not to leave campus unless he absolutely had to. He had noticed dust flying and "tires squealing" and stopped the car to check the reason for the way the driver was operating the car. The two officers learned that the driver's license had been revoked. Officer Cruzan asked Officer Shelton whether he had checked the passenger in the vehicle. Upon receiving a response in the negative and a suggestion that the passenger appeared to be intoxicated, Officer Cruzan went to the passenger side of the car, opened the door, and started to talk to the defendant, who was seated in the car. Defendant stated "I'm feeling sick." The officer suggested that he should step outside if he was going to "throw up". Defendant replied, "I'm not going to throw up. I just don't feel good." Whereupon the officers squatted beside defendant and said: "Son, do you have dope in here or on you?" Defendant "leaned back and stuck his left hand down in the front of his pants." When defendant did that, Officer Cruzan grabbed his hand and jerked it out of
his pants. At that time, when he took defendant's hand from his trousers, he could see the corner of a plastic bag. Officer Cruzan got defendant out of the car reached in his pants and pulled out a plastic bag containing a white powdery substance. He then advised defendant of his constitutional rights and proceeded to search the vehicle. When Officer Cruzan first saw defendant, he detected a faint odor of alcohol and observed that defendant's pupils were dilated, his eyes were red, there was mucous on the corner of his mouth, and he was "kind of cotton mouthed". He had no reason to believe that defendant was going for a weapon.
Some 20 to 30 minutes elapsed from the time Officer Shelton called for assistance to the time Officer Cruzan arrived on the scene. During all this time, the driver was seated in Officer Shelton's car.
The defendant offered into evidence the affidavit given in support of the motion to suppress and was tendered for cross examination. The statements in his affidavit are summarized as follows: When Officer Cruzan asked him to step out of the vehicle he said that he "did not feel too well." The officer then told him to get out of the car whereupon he said to the officer. "I don't want to get out, I don't feel like it, I'm sick." The officer then "suddenly and abruptly" opened the door and grabbed the defendant, pushing him against the seat. He then "began to try to force his hand and arm down the pants of" the defendant, at the same time pulling and grabbing him in an attempt to get him out of the car. The officer did pull defendant out of the car and pushed him up against the side of the vehicle, still "trying to force his hand and arm down into" defendant's pants. "Suddenly and abruptly" the officer pulled a bag out of defendant's pants, seized it and its contents, and took it into his possession.
The court made findings of fact and concluded: (1) the officer was in a place where he had a right to be; that he had a duty to secure the car of the person under arrest and to check the passenger therein; (2) the revelation of the white powder material in a plastic bag is not the fruit of an unlawful search and seizure; and (3) the seizure was of materials in plain ...