STATE of North Carolina
v.
Roger M. BLACKWELDER.
No. 7712SC394.
Court of Appeals of North Carolina.
November 2, 1977.*191 Atty. Gen. Rufus L. Edmisten, by Associate Atty. Richard L. Griffin, Raleigh, for the State, appellant.
Public Defender Mary Ann Tally, Fayetteville, for defendant-appellee.
CLARK, Judge.
The State assigns as error the court's order to suppress the evidence on the grounds that seizure of the contraband was a violation of the defendant's constitutional Fourth Amendment protection against illegal searches and seizures.
The State contends first that Agent Mills had a right to stop the car and remove the driver pursuant to G.S. § 20-183(a), which reads in pertinent part:
"It shall be the duty of the law-enforcement officers of the State . . . to see that the provisions of this Article are enforced within their respective jurisdictions, and any such officer shall have the power to arrest on sight or upon warrant any person found violating the provisions of this Article. Such officers within their respective jurisdictions shall have the power to stop any motor vehicle upon the highways of the State for the purpose of determining whether the same is being operated in violation of any of the provisions of this Article. . . ." [Emphasis added.]
Mills made no claim that he stopped defendant's vehicle to determine whether the Motor Vehicle Act was being violated. The power to stop is not dependent on probable cause to believe a violation has occurred. State v. Dark so held, stating that at least one of the purposes of the power was to permit officers to run license and registration checks. State v. Dark, 22 N.C.App. 566, 207 S.E.2d 290, cert. den. 285 N.C. 760, 209 S.E.2d 284 (1974). But it is not necessary in the instant case to decide whether the stopping was statutorily permissible, since it is clearly the removal of the defendant and the search that is at issue.
The power to stop a vehicle under G.S. 20-183 does not include the power to *192 search. The power to search incident to a warrantless arrest is clearly limited to situations where the officer, after stopping the vehicle, has found a person "violating the provisions of this Article." There is no evidence that Agent Mills stopped the vehicle operated by defendant for the purpose of determining if he had violated a motor vehicle statute. Rather, the obvious purpose in stopping the vehicle was to determine if defendant possessed contraband drugs. The question before us is not the right to stop, but the right to remove defendant from and search the vehicle.
The State contends that the tic tac box was seized legally under the "plain view" doctrine. We find no support for this contention in either the statutory or case law of this State. G.S. 15A-231 incorporates the U. S. Supreme Court "plain view" exception which permits inclusion of the fruit of a legal, warrantless presence, recognizing "[c]onstitutionally permissible searches and seizures which are not regulated by the General Statutes of North Carolina. . . ." Under G.S. 15A-253, the statutory "plain view" doctrine is limited to the inadvertent discovery of items pursuant to a legal search under a valid warrant though these items are not specified in the search warrant. Constitutionally permissible seizures under the "plain view" exception to the Fourth Amendment protection against warrantless searches and seizures have been restricted to those instances where the officer has legal justification to be at the place where he inadvertently sees a piece of evidence in plain view. The doctrine serves to supplement the prior justification. Plain view alone is not enough to justify warrantless seizure of evidence. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Two North Carolina cases, relied on by the State, also support the "right to be there" principle. State v. Smith, 289 N.C. 143, 221 S.E.2d 247 (1976); State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973). In both cases law officers stopped the vehicles under the authority of G.S. 20-183(a) and observed the item seized in plain view as they were determining whether the operator had violated a motor vehicle law.
The State further contends that Mills had independent grounds for his warrantless search, that the furtive movements Mills testified he observed after stopping the vehicle gave him enough probable cause to believe that he would find "the instrumentality of a crime or evidence pertaining to a crime . . .." to justify the automobile search. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), and cases cited therein. State relies upon State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179 (1972). In Ratliff, a first-degree murder case, the disputed evidence was a shotgun. It was found by the officer under the following circumstances which the court held demanded a finding of probable cause:
"The officer observed defendant, apparently nude, in a parked car on the parking lot of a business establishment at midnight. Any alert officer under such circumstances would stop and investigate. When this officer stopped, defendant tried to drive away. Then he was seen brushing something out of his lap onto the floorboard of the car. Then he appeared to kick something under the seat with his left leg and foot. Such suspicious, furtive conduct would alert any officer to the fact that defendant had something to hide." 281 N.C. at 404, 189 S.E.2d at 183.
In the instant case the State's evidence shows far less suspicious furtiveness, none in fact that is not explicable by innocent fear and confusion at being pulled over by a police car. The dangers of police abuse of what Ringel calls "[f]ictitious `furtive gestures' "to justify search after the fact are clear. Ringel, Searches and Seizures, Arrests and Confessions (1976 Supp.), 152.
The removal of defendant and search of the vehicle might also have been justified had Mills had probable cause to believe that defendant or some other person in the car was committing a crime. The search of an automobile or a person incident to a legal although warrantless arrest proceeds on a *193 theory entirely different from that justifying the search on probable cause to believe the vehicle contains contraband. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Ratliff, supra. The U. S. Supreme Court has discussed the sort of "furtive gesture" which may, if added to other suspicious circumstance, generate sufficient probable cause to believe a crime is being committed and to arrest and search:
"[D]eliberately furtive actions . . . are strong indicia of mens rea [initial emphasis] and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest." [Emphasis added.] Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917, 937 (1968).
The gestures in the instant case were, as discussed earlier, not clearly furtive. Mills testified that, when he turned on his blue light to stop the car he could see that neither the defendant nor the others were the suspects he was looking for. He had no "specific knowledge" relating the defendant to the "evidence of crime," the narcotic trafficking he had been investigating. The situation did not generate sufficient probable cause to justify a legal warrantless arrest or removal and search incident to it.
As the State has failed to show any error in the trial judge's conclusions of law based on his findings of fact we hold that the trial judge was correct in excluding the evidence of contraband because the defendant's Fourth Amendment right had been clearly violated by the State in obtaining the evidence.
Affirmed.
MORRIS and VAUGHN, JJ., concur.