Defendant appeals from judgments of Hobgood (Robert H.), J., 1 December 1980 Criminal Session, Cumberland Superior Court.
Defendant's first three assignments of error are based on the search of his car and the introduction into evidence of a shotgun seized during that search. These assignments will be considered together.
Defendant contends the shotgun was inadmissible on grounds it was seized in violation of the Fourth Amendment to the United States Constitution. The Fourth Amendment, as one of the original eight substantive amendments forming the Bill of Rights, does not limit any power or prohibit any action of the State of North Carolina, or any of its agents. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672 (1833). The assignments of error more properly pose an alleged violation of the due process clause of the Fourteenth Amendment, which does prohibit states from participating in searches and seizures which violate the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961).
The initial question is whether the Fourth Amendment, as incorporated by the due process clause of the Fourteenth Amendment, applies to the actions of Sergeant Welch in instructing defendant to halt and step back from the Toyota with his hands in plain view. Defendant was not free to leave when Sergeant Welch directed him to stop. "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Terry v. Ohio, 392 U.S. 1, 16, 20 L. Ed. 2d 889, 903, 88 S. Ct. 1868, 1877 (1968). We hold the actions of Sergeant Welch constituted a seizure within the ambit of the Fourth Amendment.
The Fourth Amendment requires seizures to be reasonable. United States v. Brignoni-ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 614, 95 S. Ct. 2574, 2578 (1975). The reasonableness of seizures less intrusive than traditional arrests depends on a balance between the public interest and the individual's right to personal security. Pennsylvania v. Mimms, 434 U.S. 106, 109, 54 L. Ed. 2d 331, 336, 98 S. Ct. 330, 332 (1977). Brief detention for questioning need not be based on probable cause to believe an individual is involved in criminal activity -- the standard for a traditional arrest. Instead, the detention may be grounded on "a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity." Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 362, 99 S. Ct. 2637, 2641 (1979).
Sergeant Welch's initial stopping of the defendant satisfied this constitutional requisite. His action was based on several factors. He observed an unoccupied vehicle parked in the travel lane of a public road at 11:45 p.m. with its lights off and motor running. While turning to investigate, he noticed a man running from a closed business toward the car. The man opened the car door and placed something on the back seat. These objective facts support a reasonable suspicion that the individual was involved in criminal activity. Where the totality of circumstances affords an officer reasonable grounds to believe criminal activity is afoot, he may temporarily detain a suspect. State v. Buie, 297 N.C. 159, 162, 254 S.E.2d 26, 28, cert, denied, 444 U.S. 971, 62 L. Ed. 2d 386, 100 S. Ct. 464(1979); State v. Streeter, 283 N.C. 203, 210, 195 S.E.2d 502, 507 (1973). See State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973), for detention of suspects based on grounds similar to those in the case sub judice. Therefore, Sergeant Welch did not violate
defendant's constitutional rights by instructing him to halt and step away from his car.
Since our analysis is based on the initial detention of defendant and whether there was a reasonable suspicion he was involved in criminal activity, we find it unnecessary to determine whether Sergeant Welch had probable cause to arrest him. We therefore have no occasion to consider whether Sergeant Welch searched the interior of defendant's vehicle incident to a lawful arrest within the scope of the recent decision of New York v. Belton, U.S. , 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981).
After Sergeant Welch approached defendant's car, he shined his flashlight into the back seat. He observed the sawed-off butt of a shotgun protruding from a brown paper bag wedged between the seat cushions. Possession of such a weapon is unlawful. G.S. 14-288.8(c)(3). The shotgun thus constituted contraband, which may be seized by an officer who has observed it in plain view form a vantage point he has legally obtained. Harris v. United States, 390 U.S. 234, 236, 19 L. Ed. 2d 1067, 1069, 88 S. Ct. 992, 993 (1968); State v. Smith, 289 N.C. 143, 150, 221 S.E.2d 247, 252 (1976). Since Sergeant Welch had the authority to detain defendant temporarily, he violated no constitutional rights in seizing an illegal weapon he observed upon approaching defendant.
The trial court's conclusions of law were thus supported by the evidence, and the court did not err in denying defendant's ...