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North Carolina v. Rivard

Filed: June 15, 1982.

STATE OF NORTH CAROLINA
v.
ROGER RIVARD AND STATE OF NORTH CAROLINA V. KEVIN POWER



Appeal by defendants from Tillery, Judge. Judgments entered 15 September 1981 in Superior Court, New Hanover County. Heard in the Court of Appeals 27 May 1982.

Hedrick, Judge. Judges Arnold and Wells concur.

Hedrick

Defendants first assign error to the denial of their motions to quash the bills of indictment. G.S. § 15A-1444(e) in pertinent part provides:

Except as provided in subsection (a1) of this section [such subsection dealing with a guilty-pleading defendant's right to appeal the prison term to which he is sentenced] and G.S. 15A-979 [dealing with a guilty-pleading defendant's right to appeal from a denial of a motion to suppress evidence], and except when a motion to withdraw a plea of guilty or no contest has been denied, the defendant is not entitled to appellate review as a matter of right when he had entered a plea of guilty or no contest to a criminal charge in the superior court, but he may petition the appellate division for review by writ of certiorari.

Since defendants pleaded guilty to the bills of indictment, they are not entitled to appellate review as a matter of right of the

denial of their motions to quash, and defendants have not petitioned this Court for a writ of certiorari to review the denial of their motions to quash. This assignment of error therefore presents no question for review.

In their next assignment of error, defendants argue, "The Trial Court Erred in Denying Appellants' Motions to Suppress Evidence Obtained Illegally by the Government." This assignment of error is reviewable pursuant to G.S. § 15A-979(b). Defendants contend that the warrantless searches of their plane and of the duffel bags found therein violated the Fourth Amendment in that such warrantless searches were conducted without the requisite existence of exigent circumstances, and of probable cause to believe the searches would uncover evidence of a crime.

"[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border." United States v. Ramsey, 431 U.S. 606, 616, 52 L. Ed. 2d 617, 626, 97 S. Ct. 1972, 1978 (1977). The single fact that the person or item in question has entered the United States from outside suffices to endow border searches with the reasonableness required by the Fourth Amendment; there is no additional requirement that there be a showing of probable cause or the prior procurement of a search warrant. Id. Further, this "'border search' exception is not based on the doctrine of 'exigent circumstances.'" Id. at 621, 52 L. Ed. 2d at 629-30, 97 S. Ct. at 1981. Rather, "[t]he authority of the United States to search the baggage of arriving international travelers is based on its inherent sovereign authority to protect its territorial integrity. By reason of that authority, it is entitled to require that whoever seeks entry must establish the right to enter and to bring into the country whatever he may carry." Torres v. Puerto Rico, 442 U.S. 465, 472-73, 61 L. Ed. 2d 1, 9, 99 S. Ct. 2425, 2430 (1979).

Border searches "may in certain circumstances take place not only at the border itself, but at its functional equivalents as well." Almeida-Sanchez v. United States, 413 U.S. 266, 272, 37 L. Ed. 2d 596, 602, 93 S. Ct. 2535, 2539 (1973). "For . . . example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be

the functional equivalent of a border search." Id. at 273, 37 L. Ed. 2d at 602-03, 93 S. Ct. at 2539. (Emphasis added.)

Although "border searches may be conducted regardless of whether customs officials have a reasonable or articulable suspicion that criminal activity is afoot," United States v. Sheikh, 654 F.2d 1057, 1068 (5th Cir. 1981), "there cannot be [a] . . . border search without some degree of probability that the vessel has crossed a border, i.e. the officials must possess some articulable facts tending to show that the vessel has recently crossed an international border." United States v. Laughman, 618 F.2d 1067, 1072, n. 2 (4th Cir.), cert. denied, 447 U.S. 925, 65 L. Ed. 2d 1117, 100 S. Ct. 3018 (1980). Were the law otherwise, customs officials could search persons and property without any grounds for believing the border had been crossed, ...


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