STATE of North Carolina
v.
George RAYNOR.
No. 7515SC358.
Court of Appeals of North Carolina.
November 19, 1975.*658 Atty. Gen. Rufus L. Edmisten by William F. Briley, Asst. Atty. Gen., Raleigh, for the State.
Joseph I. Moore, Jr., Chapel Hill, for defendant appellant.
MARTIN, Judge.
The defendant contends that the evidence obtained by the police was inadmissible because the stereo was taken from the defendant *659 in violation of his Fifth Amendment privilege against self-incrimination.
In requesting the defendant to produce the stereo, the police were asking him to produce evidence that might be used to prosecute him for a criminal offense. He complied with their request after being told that they could obtain a search warrant if he would not cooperate with them. Assuming, arguendo, that an issue raised in this case is whether defendant's Fifth Amendment privilege against self-incrimination has been violated, the critical question is whether petitioner was thus compelled to be a witness against himself or otherwise provide the State with evidence of a testimonial or communicative nature. Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908. According to the U.S. Supreme Court in the Schmerber case, "[i]t is clear that the protection of the privilege reaches an accused's communications, whatever form they might take, and the compulsion of responses which are also communications. . .." However, it is not necessary in this case to decide whether defendant's act of producing the stereo was a "communicative act" within the protection of the Fifth Amendment since the defendant produced it without compulsion.
There is no merit in defendant's contention that he did not relinquish the stereo voluntarily because the officers told him that if he did not produce it they could get a search warrant. The officers had ample grounds to obtain a valid search warrant, and there was nothing improper in their informing Raynor that they were prepared to do so. Further, the transaction was found by the court to be a voluntary relinquishment. This finding is not subject to review since it is supported by competent evidence. See State v. Painter, 265 N.C. 277, 144 S.E.2d 6 (1965). For the reasons stated, this assignment of error is overruled.
Defendant next assigns as error the admission into evidence of the stereo which was in defendant's home. This article was delivered to the police at his home after he had been placed under arrest. Defendant contends the taking of the stereo from his home was an unlawful search and seizure violative of the Fourth and Fifth Amendments of the Federal Constitution and of Article I, Section 15 of the Constitution of North Carolina. The State contends no search was involved, that the defendant voluntarily relinquished possession of the stereo.
It is well settled that the constitutional guaranty against unreasonable searches and seizures does not prohibit a seizure of evidence without a warrant when no search is required. State v. Virgil, 276 N.C. 217, 172 S.E.2d 28 (1970). Before the legality of an alleged search may be questioned, it is necessary to first determine whether there has actually been a search. "A search ordinarily implies, a quest by an officer of the law, a prying into hidden places for that which is concealed." State v. Coolidge, 106 N.H. 186, 208 A.2d 322 (1965).
However, there is ". . . an abundance of authority supporting the proposition that when the evidence is delivered to a police officer upon request and without compulsion or coercion, there is no search within the constitutional prohibition against unreasonable searches and seizures." State v. Reams, 277 N.C. 391, 178 S.E.2d 65 (1970).
The record indicates that the officers did not search the defendant's apartment, and that the defendant relinquished the stereo pursuant to the officer's request. Further, the court concluded at the close of voir dire that the defendant voluntarily relinquished the stereo to the officers. Thus, the circumstances required no search, and the constitutional immunity never arose. This assignment of error is also overruled.
Defendant had a fair trial free from prejudicial error.
No error.
BRITT and HEDRICK, JJ., concur.