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North Carolina v. Andrews

Filed: June 2, 1982.

STATE OF NORTH CAROLINA
v.
MERRILL LANE ANDREWS



Appeal by defendant, pursuant to G.S. 7A-30(2), of the decision of the Court of Appeals (Judge Harry C. Martin, with Judge Arnold concurring, and Judge Clark dissenting) reported at Copeland, Justice. Justice Mitchell did not participate in the consideration or decision of this case.

Copeland

Defendant contends that the Court of Appeals erred in failing to reverse his convictions or order a new trial. Our recent decision in State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982), requires us to vacate defendant's conviction for felonious possession of stolen property. In all other respects, however, we affirm the Court of Appeals.

I.

Defendant argues that all of the evidence seized from his car should have been suppressed at trial because neither his arrest nor the subsequent vehicular search was accompanied by probable cause to believe that he had committed a crime. The Court of Appeals held, inter alia : (1) that, considering the circumstances existing at the time, a reasonably prudent person had ample cause to believe that defendant and his companion had committed a burglary and (2) that a reasonable search of the car incident to

defendant's lawful arrest was also lawful. We agree with both of these holdings and cite as additional authority in support thereof the decision of the United States Supreme Court in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).

According to the authority of Belton, supra, a police officer may constitutionally search the passenger compartment of a vehicle, including any containers located therein, as a contemporaneous incident of the lawful arrest of an occupant of that vehicle. We are, of course, aware that the Belton decision was filed on 1 July 1981, approximately six weeks after the Court of Appeals filed its opinion in the instant case, and over a year after defendant's actual trial. However, we have previously held that retroactive application of the Belton rule is warranted in cases raising similar issues about the legality of a warrantless search. State v. Cooper, 304 N.C. 701, 286 S.E.2d 102 (1982). Thus, we hold that the police officers' search of defendant's car and the gym bag found inside the car fell squarely within the constitutional boundaries established by Belton, and defendant's motion to suppress the incriminating evidence thereby discovered was properly denied.

II.

Defendant argues that the State's evidence was insufficient to convict him of any of the crimes submitted to the jury. This contention lacks merit, and we shall not restate the evidence at length here. Simply put, the State's evidence showed that defendant and his companion were caught red-handed with the instrumentalities and fruits of a burglary committed at a nearby residence. Consequently, we agree with the Court of Appeals that the State adduced substantial evidence of defendant's guilt upon the essential elements of the charged crimes. See G.S. 14-51, 14-55, 14-71.1 and 14-72.

III.

Defendant asserts that he "was placed in double jeopardy by being convicted and sentenced on duplicative charges -- the charge of felonious larceny and the charge of felonious possession of the identical property which was the alleged subject matter of that larceny."*fn1 Defendant's Brief at 20-21. The Court of Appeals'

majority rejected this claim and held that defendant could be constitutionally tried and punished for both larceny and possession because the offenses were separate and distinct, with each crime including an element not present in the other. Judge Clark dissented and stated his belief that the issue of former jeopardy was governed by the opinion of another panel of the Court of Appeals filed on the very same day which had reached a contrary conclusion. See State v. Perry, 52 N.C. App. 48, 278 S.E.2d 273 (1981), ...


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