Appeal by defendant from Mills, Judge. Judgment entered 14 November 1980 in Superior Court, Wilkes County. Heard in Court of Appeals 15 September 1981.
Whichard, Judge. Judges Hedrick and Hill concur.
Admissibility Of Defendant's Statements
Defendant challenges the admissibility of three inculpatory statements which he made, one in the late evening of 7 December 1979 prior to his formal arrest, and two the following morning subsequent to his arrest and while he was in custody. He contends (1) his statements were the product of a seizure which violated his fourth amendment rights, and (2) he lacked the mental capacity to waive his fifth and sixth amendment rights.
The following facts surrounding the making of the statements: Deputy Sheriff Nick Nixon arrived at decedent's residence at approximately 4:00 p.m. on 7 December 1979. After observing the scene briefly he drove to defendant's residence. Nixon "asked defendant whether he would go have a seat in the patrol car," and defendant agreed to do so. Nixon identified himself as a detective with the sheriff's department, explained that defendant's wife had been found dead in her house, and told defendant he needed to talk to him with reference to his wife. Nixon advised defendant of his Miranda rights, explained them to him, and began to question defendant in the patrol car. After a brief period of questioning Nixon "got [defendant] out of the car" and requested permission to search the house. Defendant consented to the search, which produced a .22 caliber pistol found between the mattress and springs of a bed.
Defendant, still not under arrest, agreed to accompany Deputy Nixon to the jail. When they arrived at the jail at approximately 5:45 p.m., Nixon again advised defendant of his constitutional rights. Beginning at 5:45 p.m. Nixon and two other officers questioned defendant for approximately an hour in the jail area. They then moved defendant to the Sheriff's office and continued questioning him until approximately 10:00 p.m. when defendant made an inculpatory statement. Defendant was formally arrested and served with a warrant shortly after 10:00 p.m.
The following morning at approximately 9:43 a.m. State Bureau of Investigation Agent Steve Cabe and Sheriff Kyle Gentry again questioned defendant who was then in custody. Before beginning their questioning Cabe and Gentry advised defendant of his Miranda rights. After Cabe and Gentry questioned defendant, defendant repeated the statement he had made the previous night. Cabe then left the room, and Gentry continued the questioning. Defendant made a further statement to Gentry.
"The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated . . . ." U.S. Const. amend. IV [applicable to the states through the fourteenth amendment, Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961)]. Statements obtained during an unreasonable seizure of the person are not admissible. Dunaway v. New York, 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979); Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975); Davis v. Mississippi, 394 U.S. 721, 22 L. Ed. 2d 676, 89 S. Ct. 1394 (1969). The fourth amendment reasonableness requirement prohibits formal arrests except upon probable cause. See Gerstein v. Pugh, 420 U.S. 103, 111-112, 43 L. Ed. 2d 54, 64, 95 S. Ct. 854, 862 (1975). The reasonableness requirement applies to investigatory seizures, as well as to the more intrusive technical arrest. The United States Supreme Court has stated that "to argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment." Davis, 394 U.S. at 726, 22 L. Ed. 2d at 680, 89 S. Ct. at 1397. "[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). With the limited exception of a brief "stop and frisk" based upon reasonable suspicion of criminal conduct supported by articulable and objective facts, any "seizure," whether it bears the cloak of a formal arrest or merely amounts to an investigatory detention, must be founded upon probable cause. Dunaway, 442 U.S. at 214, 60 L. Ed. 2d at 837, 99 S. Ct. at 2257.
The Constitution does not, however, prevent law enforcement officers from questioning anyone willing voluntarily to answer. The governmental interest in effective crime control permits officers in appropriate circumstances and in an appropriate manner to direct questions to citizens even though they have no probable cause for an arrest. Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906-907, 88 S. Ct. at 1880. But, "while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes[,] they have no right to compel them to answer." Davis, 394 U.S. at 727 n. 6, 22 L. Ed. 2d at 681, 89 S. Ct. at 1397.
The issue for determination here, pursuant to the foregoing fourth amendment principles, is whether defendant's inculpatory statements were the product of an unreasonable seizure. The case does not fall within the limited exception to the probable cause requirement espoused in Terry v. Ohio, because the investigation was neither brief nor a mere "stop and frisk." In addition, Deputy Nixon admittedly began his investigatory interrogation of defendant without probable cause to arrest. The Davis, Brown, and Dunaway line of cases does not require exclusion of defendant's statements, however, because defendant was never "seized" within the meaning of the fourth amendment.
The trial court found the following facts: Defendant sat in the patrol car at Nixon's request and agreed to go to the jail with Nixon. Prior to seven o'clock defendant voluntarily participated in the investigation of his wife's death when he submitted to interrogation. He would have been permitted to leave at any time had he expressed a desire to do so.
These findings are supported by Deputy Nixon's voir dire testimony and therefore are conclusive on appeal. State v. Thompson, 296 N.C. 703, 252 S.E.2d 776 (1979). On these facts, no seizure of defendant occurred between approximately 4:00 p.m. when Nixon first contacted defendant at his home and 7:00 p.m.
that evening. Terry, 392 U.S. at 22, 20 L. Ed. 2d at 906-907 88 S. Ct. at 1880.
The State presented conflicting evidence concerning the period between 7:00 p.m. and 10:00 p.m. During the initial voir dire on the motion to supprress defendant's first inculpatory statement, Nixon stated that from the time he took defendant to the jail, defendant was not free to leave, and that only when defendant gave his statement did Nixon obtain sufficient evidence to secure an arrest warrant. Following a recess, when counsel for the State and the defendant indicated they had no further questions of Nixon on voir dire, the State requested and received permission to recall Nixon for additional voir dire. During the second portion of the voir dire, Nixon stated that at 7:00 p.m., based on defendant's responses to interrogation and information obtained from an investigator who had questioned decedent's friends, he had obtained evidence which he "felt" gave him probable cause to arrest defendant for the murder. Nixon stated that until 7:00 p.m. had defendant asked to leave he would have been permitted to do so, but that after 7:00 he would not have been allowed to leave.
Although Nixon testified when recalled that he "felt like [he] had probable cause to arrest [defendant] at [7:00 p.m.]," he did not arrest defendant at that time; and there has been no judicial determination that probable cause for defendant's arrest existed at 7:00 p.m. Therefore, the interrogation of defendant between 7:00 and 10:00 cannot be justified as occurring during custody based on probable cause. However, the court's findings of fact, based upon competent evidence, indicated that defendant began the interrogation as a voluntary participant and at no time became a non-voluntary participant. His initial assent to submit to investigatory questioning and to accompany Nixon to the jail remained unchanged throughout the evening. Defendant, therefore, was at no time prior to making his first inculpatory statement "seized" within the meaning of the fourth amendment. Consequently, the statement was not rendered inadmissible by fourth amendment exclusionary. In addition, decase the amendment exclusionary principles. In addition, because the statement was not impermissibly obtained, it was properly considered in determining probable cause for issuance of a warrant for defendant's arrest.
Defendant's subsequent statement to Agent Cabe and Sheriff Gentry, and his further statement to Gentry alone, were made while in custody pursuant to an arrest warrant based on probable cause. Thus they, too, were not made while defendant was illegally seized in violation of the fourth amendment, and were ...