State v. Bates

ARNOLD, Judge.

Before the State offered evidence in this case, defendant made a motion, pursuant to G.S. 15A-975(b), to suppress the introduction into evidence of the pistol and the paper bag containing approximately $70. The trial court heard evidence by both the State and the defendant and found facts as follows:

“1. That on September 4, 1977, Deputy Sheriff Provost of the Jones County Sheriff’s Department went to the residence of Mary Jones in Jones County at approximately three o’clock a.m.
“2. That at the time of arriving at the mobile home of Mary Jones, Deputy Sheriff Provost had three warrants for the arrest of the defendant, Jesse Bates. Said warrants being for assault on a minor, pointing a gun, and assault.
“3. That on said occasion Mary Jones was with Deputy Sheriff Provost.
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“5. That Mary Jones had informed Deputy Sheriff Provost that the defendant was in her trailer.
“6. That Deputy Provost obtained permission from Mary Jones to enter the trailer and arrest the defendant.
“7. That the defendant was sleeping on the couch in the living room area of Mary Jones’ mobile home.
“8. That the defendant was staying with Mary Jones and had been there for some period of time .... Upon the arrest of the defendant, simultaneous with the arrest Deputy Provost saw a .32 caliber pistol lying under the pillow on which the defendant had been resting his head, at which time Deputy Provost took the pistol into custody.
“9. That Mary Jones informed Deputy Provost there was some money in . . . her mobile home and with her con*279sent Deputy Provost found the paper sack of money on Mary Jones’ bed in the bedroom area of the mobile home.”

The trial court thereafter concluded that the seizure of the pistol was incident to a lawful arrest and that the seizure of the bag of money resulted from Mary Jones’s consent to have her home searched.

The findings of fact made by the trial court are clearly supported by competent evidence offered at the hearing. Defendant concedes that Mary Jones gave permission to search and that Deputy Provost had an arrest warrant. Nevertheless, he contends that he was not under arrest when the Deputy lifted him from the couch and discovered the pistol. Hence, he contests the court’s conclusion that the search was incident to a lawful arrest. We disagree.

In State v. Wooten, 34 N.C. App. 85, 237 S.E. 2d 301 (1977), a case involving an arrest without a warrant, this Court held that where the search of a suspect’s person occurs before instead of after formal arrest, such search can be equally justified as “incident to the arrest,” provided probable cause to arrest existed prior to the search and it is clear that the evidence seized was in no way necessary to establish probable cause. Where law enforcement officials rely on an arrest warrant, as in the case sub judice, we believe that the question of whether the search occurred before or after the formal arrest is even less significant.

Defendant next contends that the seizure of the bag of money was illegal since the search was illegal under the Fourth Amendment to the United States Constitution. Basically, defendant argues that his consent to search should have been obtained. Such is not the case. Consent by the owner of a home is sufficient. State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971). In the present case, therefore, the consent of Mary Jones, owner of the home, was sufficient.

Finally, defendant contends that the court erred in permitting hearsay testimony by Deputy Provost concerning remarks by Mary Jones about the bag of money and permission to enter the trailer. While evidence of a statement made by a person other than the witness and offered to establish the truth of the matter contained in such statement is hearsay, where the evidence is *280admitted not to show the truth of the matter contained therein, but to show simply that such statement was made, the evidence is not hearsay. See e.q., Wilson v. Indemnity Corp., 272 N.C. 183, 158 S.E. 2d 1 (1967).

We agree with the State’s position that the officer’s testimony was not hearsay and that it was competent to show authorization to enter the trailer. Moreover, even if we found the evidence to be hearsay, and we do not, any error would be harmless since Mary Jones herself testified under oath concerning the statements she made to the deputy.

Defendant received a fair trial in which we find

No error.

Chief Judge BROCK and Judge BRITT concur.