By failure to timely file notice of appeal with this Court within the time allowed by the Rules of Appellate Procedure, defendant lost his right of appeal from a decision of a divided panel of the Court of Appeals.
Meyer, Justice. Justice Mitchell concurring. Justice Exum dissenting.
The defendant Peck entered a plea of guilty to the charge of possession of a controlled substance but preserved his appeal from the denial of his motion to suppress the evidence of the seizure of the plastic bag from his person. G.S. § 15A-979(b) provides a right of appeal from a plea of guilty following denial of a motion to suppress. Defendant contends that the Court of Appeals erred in affirming the trial judge's denial of his motion to suppress because, he contends, the evidence reveals that the item sought to be suppressed was the fruit of an unlawful search and seizure. We cannot agree. We have carefully reviewed the opinion of the majority of the panel below and the briefs and authorities relating to defendant's contentions. We conclude that the result reached by the Court of Appeals, its reasoning, and the legal principles enunciated by it are correct, and we adopt that opinion as our own.
We find Sibron v. New York*fn1 cited in the dissent to be clearly distinguishable. Sibron was convicted of the unlawful possession of heroin. He moved before trial to suppress the heroin seized from his person by the arresting officer, Brooklyn Patrolman Anthony Martin. After the trial court denied his motion, Sibron pled guilty to the charge, preserving his right to appeal the evidentiary ruling. At the hearing on the motion to suppress, Officer Martin testified that while he was patrolling his beat in uniform on March 9, 1965, he observed Sibron "continually from the hours of 4:00 p.m. to 12:00, midnight . . . in the vicinity of 742 Broadway." He stated that during this period of time he saw Sibron in conversation with six or eight persons whom he (Patrolman Martin) knew from past experience to be narcotics addicts. The officer testified that he did not overhear any of these conversations, and that he did not see anything pass between Sibron and any of the others. Late in the evening Sibron entered a restaurant. Patrolman Martin saw Sibron speak with three
more known addicts inside the restaurant. Once again, nothing was overheard and nothing was seen to pass between Sibron and the addicts. Sibron sat down and ordered pie and coffee, and, as he was eating, Patrolman Martin approached him and told him to come outside. Once outside, the officer said to Sibron, "You know what I am after." According to the officer, Sibron "mumbled something and reached into his pocket." Simultaneously, Patrolman Martin thrust his hand into the same pocket, discovering several glassine envelopes, which, it turned out, contained heroin.
The prosecutor's theory at the hearing was that Patrolman Martin had probable cause to believe that Sibron was in possession of narcotics because he had seen him conversing with a number of known addicts over an eight-hour period. In the absence of any knowledge on Patrolman Martin's part concerning the nature of the intercourse between Sibron and the addicts, however, the trial court was inclined to grant the motion to suppress. As the judge stated, "All he knows about the unknown men: They are narcotics addicts. They might have been talking about the World Series. They might have been talking about prize fights." The prosecutor, however, reminded the judge that Sibron had admitted on the stand, in Patrolman Martin's absence, that he had been talking to the addicts about narcotics. Thereupon, the trial judge changed his mind and ruled that the officer had probable cause for an arrest.
Patrolman Martin did not urge that when Sibron put his hand in his pocket, he feared that he was going for a weapon and acted in self-defense.
In Sibron the District Attorney confessed error and although the Supreme Court acknowledges that "Confessions of error are, of course, entitled to and given great weight," it found that the confession of error did not relieve the Court of the performance of the judicial function and proceeded to decide the case on the merits. The Court, with regard to the confession of error said:
The prosecution has quite properly abandoned the notion that there was probable cause to arrest Sibron for any crime at the time Patrolman Martin accosted him in the restaurant, took him outside and searched him. The officer was not acquainted with Sibron and had no information concerning him.
He merely saw Sibron talking to a number of known narcotics addicts over a period of eight hours. It must be emphasized that Patrolman Martin was completely ignorant regarding the content of these conversations, and that he saw nothing pass between Sibron and the addicts. So far as he knew, they might indeed 'have been talking about the World Series.' The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual's personal security.
392 U.S. at 62, 20 L. Ed. 2d at 934.
The Court concluded that Patrolman Martin's search of Sibron was unreasonable, that the evidence of the heroin seized was inadmissible, and, since the officer lacked probable cause for Sibron's arrest, the search could not be justified as incident to a lawful arrest.
In the case before us, the facts may be summarized as follows: On 23 March 1980, at approximately 8:00 p.m., Jess Shelton, a security officer at Western Carolina University, stopped a vehicle which he observed with tires squealing and dust flying. He stopped the vehicle to check the reason for the way it was being driven. He called North Carolina Highway Patrol Officer Cruzan for assistance because he (Shelton) was the only officer on duty at the time and he had orders not to leave the campus except in an emergency. By the time Patrolman Cruzan arrived, Officer Shelton had the driver of the vehicle, a Mr. Parker, in his vehicle. Upon arrival, Patrolman Cruzan asked Shelton if he had checked the passenger in the car. Upon being informed that he had not done so but that it looked like the passenger was intoxicated, Patrolman Cruzan approached the Parker vehicle and observed Mr. Peck inside the car on the passenger side. Officer Shelton testified that he went up to the Parker vehicle right behind Patrolman Cruzan, and that Patrolman Cruzan said to him, "Help me get him out of here." Officer Shelton testified that he (Shelton) thought that Peck had a gun although he did not see one. Officer Shelton further testified that he thought Peck had a gun when he (Shelton) got hold of him, and it was at that time that Patrolman Cruzan got a plastic bag from
Peck. Shelton did not hear all of the conversation between Patrolman Cruzan and Peck.
Patrolman Cruzan testified in effect that when he arrived Officer Shelton had the driver, Parker, under arrest for operating the vehicle without a license as his license had been previously revoked. Being informed that the passenger in the vehicle had not been checked, Patrolman Cruzan went to the passenger side of the Parker vehicle, opened the door, and started to talk to Peck who stated, "I'm feeling sick." Patrolman Cruzan told him to step out of the car if he was going to throw up, to which Peck replied, "I'm not going to throw up, I just don't feel good." Patrolman Cruzan then squatted down beside Peck. He observed the faint odor of an alcoholic beverage and saw that Peck's pupils were dilated, that his eyes were red, that his mouth had mucus on the corner of it and that he was "kind of cotton mouthed." Patrolman Cruzan said to Peck, "Son, do you have dope in here or on you?" At that time, Peck leaned back and stuck his left hand down in the front of his pants. When he did that Patrolman Cruzan grabbed his hand and jerked it out of his pants. For the first time, Cruzan could see in plain view the corner of a plastic bag sticking out of the defendant's pants where his hand had been. Patrolman Cruzan and Officer Shelton got Peck out of the vehicle. Cruzan held Peck's hands behind his back and reached around in front of Peck and pulled the plastic bag out of Peck's pants. The bag contained a white powdery substance later identified as the controlled substance methylenedioxyamphetamine (MDA). Officer Cruzan testified that he did not know when he saw Peck reach into his pants what was in his pants. He advised Peck of his constitutional rights and proceeded to search the rest of the vehicle. Cruzan testified on cross-examination, as narrated in the record before us, "that he had no reason to believe that the Defendant was going for a weapon."
There are certain similarities between this case and Sibron : (1) In both cases the defendant entered a plea of guilty but preserved his appeal on the denial of his motion to suppress the evidence of the drugs seized, (2) Highway Patrolman Cruzan's question to Peck as to whether he had any drugs is similar to Patrolman Martin's statement to Sibron that "You know what I am after," (3) drugs were ...