STATE of North Carolina
v.
Colonel Dalia BRAXTON, Jr.
No. 875SC1197.
Court of Appeals of North Carolina.
May 17, 1988.*58 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Thomas D. Zweigart, Raleigh, for the State.
Newton, Harris & Shanklin by Allan Brandon Tise, Wilmington, for defendant-appellant.
SMITH, Judge.
We must first decide whether the initial search of defendant's vehicle was lawful. If it was not, the seizure of the first bag of marijuana was unlawful. Fruits of an unlawful search are not made lawful by the discovery of contraband. Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520 (1927).
Defendant contends that the uncontroverted facts fail to establish probable cause for the warrantless searches of his vehicle. We agree.
This Court has previously held that gestures which are not clearly furtive are insufficient to establish probable cause for a warrantless search unless the officer has other specific knowledge relating to evidence of crime. State v. Blackwelder, 34 N.C.App. 352, 238 S.E.2d 190 (1977). In the instant case defendant's movements, though highly suspicious, cannot be said to be clearly furtive. Mere suspicion, however, will not support a finding of probable cause. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Detective Wade testified at the suppression hearing that he had no knowledge or information that defendant had contraband or any specific item in his vehicle. The record is devoid of any evidence which would justify a finding that Detective Wade had any information concerning criminal conduct or evidence of crime relating to defendant. Even a "good faith" belief by the detective that defendant was hiding contraband or evidence of crime would be insufficient to establish probable cause unless that "`faith [was] grounded on facts within [the detective's] knowledge ... which in the judgment of the court would make his faith reasonable.'" Carroll v. United States, 267 U.S. 132, 161-162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925), quoting Director General v. Kastenbaum, 263 U.S. 25, 44 S.Ct. 52, 68 L.Ed. 146 (1923). There is nothing in the record before us which would indicate that Detective Wade formed any belief, reasonable or otherwise, that defendant was hiding contraband or evidence of crime. See State v. Beaver, 37 N.C.App. 513, 246 S.E.2d 535 (1978). Though deliberately furtive actions are strong indicia of mens rea, such actions must be combined with specific knowledge relating the suspect to evidence of crime before they are proper factors to be considered in establishing probable cause. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).
One exception to the rule prohibiting warrantless searches and seizures arises when the search or seizure is incident to a lawful arrest. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). These searches are justified to seize evidence of the crime as well as weapons which might facilitate an escape from custody. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). In the case before us, defendant was not under arrest. He was not in the car and the detective testified defendant could not have reached anything under the *59 seat. We also hold that the initial search cannot be justified as being incident to arrest because an incident search cannot precede an actual arrest and serve as part of its justification. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).
The State contends that this search and seizure was lawful because the officer had the authority to stop defendant's vehicle and arrest him for speeding. We disagree. It is unquestioned that Detective Wade had the authority to stop defendant's vehicle and detain defendant. G.S. 20-183(a) and G.S. 15A-1113(b). The officer's testimony was to the effect that he only intended to warn defendant about his excessive speed. The record does not reveal whether this was to be a verbal warning or whether the officer intended to issue a formal warning ticket authorized by G.S. 20-183(b). We note, however, that defendant was speeding at a maximum speed of 60 miles per hour in a 45-mile per hour speed zone. Under the law in effect at the time, this act of speeding was not a criminal violation but rather it was merely an infraction. G.S. 20-141. As defendant was a resident of North Carolina, the detective had no authority to arrest him for the commission of an infraction. G.S. 15A-1113(c)(2). We also point out that the power to arrest does not necessarily include the authority to search a motor vehicle in the absence of probable cause. Dyke v. Taylor Implement Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968). Because there was no probable cause for the search in question we find it unnecessary to discuss the authority of a law enforcement officer to search a motor vehicle which has been stopped for an infraction.
Another exception to the rule against warrantless searches was approved in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This so called "stop and frisk" rule allows an officer investigating suspicious behavior by an individual at close range to determine whether the suspicious person is armed and to neutralize any threat if the officer has a reasonable belief that the suspect is armed or presently dangerous. This "stop and frisk" exception to unreasonable search and seizure has been extended to automobiles. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In Long, the Court acknowledged that investigative detention of persons in automobiles presents a danger to police officers. The Court then held that those areas of a passenger compartment of a motor vehicle where weapons might be hidden may be searched if the facts, coupled with rational inferences drawn therefrom, reasonably warrant an officer's belief that a suspect is dangerous and may gain control of weapons. The facts now before us do not warrant such a belief. It is uncontroverted that defendant could not obtain any weapon or other item from the car.
As the officer had no probable cause for the initial search of defendant's vehicle, the arrest and subsequent search and seizure were also unauthorized.
[T]he arrest of ... defendant[] and the later search of ... [his] vehicle clearly arose from and were based upon the information obtained by virtue of the unlawful seizure of the [marijuana]. The evidence obtained by virtue of [this arrest] and searches was the product of actions not authorized by law and, thus... should have been excluded from evidence. See Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963), and Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684 (1961).
State v. Beaver, 37 N.C.App. at 519, 246 S.E.2d at 540.
For the foregoing reasons we hold that the contraband seized from defendant's vehicle should have been excluded from evidence in the trial court.
New Trial.
JOHNSON and PHILLIPS, JJ., concur.