{ "id": 8552711, "name": "STATE OF NORTH CAROLINA v. EDDIE BOYDEN FRANCUM", "name_abbreviation": "State v. Francum", "decision_date": "1979-01-16", "docket_number": "No. 7825SC773", "first_page": "429", "last_page": "437", "citations": [ { "type": "official", "cite": "39 N.C. App. 429" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "208 S.E. 2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569859 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0735-01" ] }, { "cite": "245 S.E. 2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550084 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0022-01" ] }, { "cite": "232 S.E. 2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 471", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551457 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0471-01" ] }, { "cite": "232 S.E. 2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567711 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0160-01" ] }, { "cite": "233 S.E. 2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570182 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0461-01" ] }, { "cite": "49 L.Ed. 2d 1005", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "opinion_index": 0 }, { "cite": "428 U.S. 364", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177992 ], "weight": 9, "year": 1976, "pin_cites": [ { "page": "368-69" }, { "page": "3097" }, { "page": "1005" }, { "page": "369" }, { "page": "3097" }, { "page": "1005" }, { "page": "369" }, { "page": "3097" } ], "opinion_index": 0, "case_paths": [ "/us/428/0364-01" ] }, { "cite": "413 U.S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11341150 ], "weight": 6, "year": 1973, "pin_cites": [ { "page": "441" }, { "page": "2528" }, { "page": "714-15" }, { "page": "443" }, { "page": "2529" }, { "page": "716" } ], "opinion_index": 0, "case_paths": [ "/us/413/0433-01" ] }, { "cite": "433 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176124 ], "weight": 10, "year": 1977, "pin_cites": [ { "page": "11" }, { "page": "2483" }, { "page": "548" }, { "page": "13" }, { "page": "2484" }, { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/us/433/0001-01" ] }, { "cite": "417 U.S. 583", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1519506 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "590" }, { "page": "2469" }, { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/us/417/0583-01" ] }, { "cite": "169 S.E. 2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559179 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0537-01" ] }, { "cite": "386 U.S. 58", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168959 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0058-01" ] }, { "cite": "30 L.Ed. 2d 74", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "92 S.Ct. 133", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "404 U.S. 840", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6254177, 6250786, 6254918, 6251728, 6252082, 6254548, 6251477, 6253013, 6251127, 6253818, 6253341, 6252670, 6252351 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0840-11", "/us/404/0840-01", "/us/404/0840-13", "/us/404/0840-04", "/us/404/0840-05", "/us/404/0840-12", "/us/404/0840-03", "/us/404/0840-08", "/us/404/0840-02", "/us/404/0840-10", "/us/404/0840-09", "/us/404/0840-07", "/us/404/0840-06" ] }, { "cite": "178 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565528 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0391-01" ] }, { "cite": "389 U.S. 347", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11339173 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/389/0347-01" ] } ], "analysis": { "cardinality": 841, "char_count": 17388, "ocr_confidence": 0.813, "pagerank": { "raw": 8.86564192562872e-08, "percentile": 0.4989626808358325 }, "sha256": "c8a37694e1e07a973f989eb0f1491ac7a43efbd8059d696cdd9ff55bd7c07184", "simhash": "1:c2ef90a63477467e", "word_count": 2886 }, "last_updated": "2023-07-14T17:57:00.834910+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges PARKER and ERWIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EDDIE BOYDEN FRANCUM" ], "opinions": [ { "text": "HEDRICK, Judge.\nDefendant first contends that the items contained inside the paper bag were the products of an unconstitutional search and seizure under the Fourth Amendment, and they should have been excluded from evidence. Defendant argues that Trooper Church did not have probable cause to justify a search of defendant\u2019s automobile and that the warrantless search resulting in seizure of the contents of the paper bag cannot be justified under any of the exceptions for automobile searches.\nA \u201csearch\u201d proscribed by the Fourth Amendment contemplates an unreasonable governmental intrusion into an area in which a person has a justifiable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967). See also, State v. Reams, 277 N.C. 391, 178 S.E. 2d 65 (1970), cert. denied, 404 U.S. 840, 92 S.Ct. 133, 30 L.Ed. 2d 74 (1971). The fundamental inquiry in considering Fourth Amendment issues is whether a search or seizure is reasonable under all the circumstances. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed. 2d 730 (1967); State v. Robbins, 275 N.C. 537, 169 S.E. 2d 858 (1969).\nThe State, while frankly conceding that Trooper Church lacked probable cause to believe that defendant had committed a crime, argues that there was no \u201csearch\u201d at all, and that the officer merely seized what was in his \u201cplain view.\u201d\nCourts have noted the diminished expectation of privacy that surrounds the automobile in several cases. \u201cOne has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one\u2019s residence or as the repository of personal effects ... It travels public thoroughfares where both its occupants and its contents are in plain view.\u201d Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed. 2d 325, 335 (1974). Additionally, the manner in which motor vehicles may be operated on public highways and streets and their condition are subjects of extensive state regulation.\nIn United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed. 2d 538 (1977), the Supreme Court dealt with a warrantless search of a footlocker in the trunk of an automobile conducted subsequent to defendant\u2019s arrest. The Supreme Court noted that \u201c[b]y placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination.\u201d 433 U.S. at 11, 97 S.Ct. at 2483, 53 L.Ed. 2d at 548. The Court also distinguished the search of defendant\u2019s footlocker from a search of an automobile:\nThe factors which diminish the privacy aspects of an automobile do not apply to respondents\u2019 footlocker. Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a respository of personal effects. In sum, a person\u2019s expectations of privacy in personal luggage are substantially greater than in an automobile.\n433 U.S. at 13, 97 S.Ct. at 2484, 53 L.Ed. 2d at 549.\nAlthough the defendant in the present case, by placing the items in a paper bag, clearly had a lesser expectation of privacy than one who places them in a locked footlocker, we think the trooper\u2019s actions were a search and the protections of the Fourth Amendment are applicable. While the paper bag itself may well have been within the trooper\u2019s plain view, clearly its contents were not. Trooper Church\u2019s inspection of the items contained in the paper bag was clearly a search, and the plain view exception is not applicable.\nThe State further argues that under G.S. \u00a7\u00a7 20-49(7), 20-166.1 (e) Trooper Church had a duty to investigate traffic accidents and file a written report detailing the results of his investigation. Thus, it argues, Trooper Church was properly at the scene of the accident and merely carrying out his duties when he discovered the contraband; his seizure of the bag\u2019s contents is therefore not unreasonable under the circumstances and does not violate the Fourth Amendment.\nIn Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed. 2d 706, 714-15 (1973), the Court noted:\nLocal police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.\nSimilarly, in South Dakota v. Opperman, 428 U.S. 364, 368-69, 96 S.Ct. 3092, 3097, 49 L.Ed. 2d 1000, 1005 (1976), the Court noted that vehicle accidents were one example of such a \u201ccaretaking function\u201d where a disabled vehicle is taken into police custody: \u201cTo permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities.\u201d\nSouth Dakota v. Opperman, supra, dealt with a warrantless inventory search of a vehicle taken into police custody. Although Trooper Church\u2019s inspection of the bag\u2019s contents in the present case does not fall within the inventory search exception, we think the same considerations justifying an inventorying of a person\u2019s property in an automobile that has properly been taken into police custody are applicable. The primary justification for such a limited intrusion by the police is that of safeguarding the individual\u2019s property from loss or theft. South Dakota v. Opperman, 428 U.S. at 369, 96 S.Ct. at 3097, 49 L.Ed. 2d at 1005. In many instances the automobile taken into police custody may be temporarily stored at a location several miles from the station house. Cady v. Dombrowski, 413 U.S. at 443, 93 S.Ct. at 2529, 37 L.Ed. 2d at 716. Such a limited search in the inventory context has been held a reasonable response to the possibility of theft or vandalism. South Dakota v. Opperman, 428 U.S. at 369, 96 S.Ct. at 3097, 49 L.Ed. 2d 1005. Additional justifications have been found in protecting the police against claims or disputes over lost or stolen property, and protection of the police from potential danger. Id.\nIn the present case, we are unable to say that Trooper Church\u2019s conduct in looking inside the paper bag was unreasonable under the circumstances. Indeed, there has been no contention that the procedure was a pretext for concealing an investigatory police motive or that the search was unreasonable in scope. Trooper Church, having arrived on the scene, was in charge of seeing that the wrecked automobile was safely transported from the scene and stored. It was reasonable for the officer to see that the personal effects in the automobile were not lost and were secured prior to the towing of the automobile. Under the circumstances, it is reasonable for such an officer to look inside a paper bag to determine whether there is anything valuable belonging to the owner that the officer should hold for safekeeping. We note that the fact that items were contained in a paper bag manifests a lesser interest in keeping them hidden from public view than where items are placed in one\u2019s personal luggage, as occurred in United States v. Chadwick, supra. Unlike a suitcase or briefcase, which are designed to hold one\u2019s personal effects, a paper bag may hold any number of items, many of which would not necessarily be personal in nature. Similarly, an officer securing an owner\u2019s property in preparation to having a wrecked automobile towed away would not be justified in examining the contents of a briefcase or suitcase, as such containers are themselves valuable. We hold that Trooper Church\u2019s conduct was not an unreasonable search or seizure in violation of defendant\u2019s Fourth Amendment rights. This assignment of error has no merit.\nDefendant next assigns as error certain comments made by the trial judge to defense counsel in the presence of the jury as being in violation of G.S. \u00a7 1-180 (now G.S. \u00a7\u00a7 15A-1222, 1232, effective 1 July 1978). Defendant relies on the well-established rule that every person charged with a crime has a right to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. State v. Cousin, 292 N.C. 461, 233 S.E. 2d 554 (1977). Numerous cases have held that G.S. \u00a7 1-180, while referring explicitly only to the charge, forbids the trial judge from expressing or implying in the presence of the jury, any opinion as to guilt or innocence of the defendant, or as to any other fact to be determined by the jury, or as to the credibility of a witness at any time during the course of the trial. E.g., State v. Staley, 292 N.C. 160, 232 S.E. 2d 680 (1977); State v. Lewis, 32 N.C. App. 471, 232 S.E. 2d 472 (1977).\nThe first alleged expression of opinion by the trial judge occurred during defense counsel\u2019s cross-examination of a witness for the State as to his prior testimony with regard to one of the State\u2019s exhibits. The trial judge permitted the questioning until it became apparent that defense counsel had confused two of the State\u2019s exhibits. He then corrected defendant\u2019s counsel in the presence of the jury. Defendant argues that the manner of the judge was unduly harsh and resulted in emasculating the effectiveness of defense counsel. The second purported expression of opinion occurred after counsel had repeatedly objected to a question put to a witness by the State. The judge instructed defense counsel not to object to the question again.\nThe trial judge has discretion to keep the cross-examination of a witness within reasonable bounds. Stansbury\u2019s N.C. Evidence \u00a7 38, at 113 (Brandis rev. 1973). We do not think that the judge\u2019s comments in correcting defense counsel\u2019s confusion and limiting the cross-examination were so inordinately critical as to be prejudicial to the defendant. The judge\u2019s comment to defense counsel to not object to the questioning was clearly precipitated by the actions of defense counsel himself. We are unable to say that the judge\u2019s actions in the present case constituted prejudicial error.\nDefendant next contends that the jury should not have been allowed to consider the charge of possession with intent to sell LSD because there was no evidence as to the amount of the controlled substance possessed by the defendant nor any evidence that it was packaged and suitable for distribution. In the present case, the chemist from the State Bureau of Investigation who analyzed the controlled substances did not weigh or otherwise determine the exact amount of the substance he found to be LSD.\nUnder State v. Cloninger, 37 N.C. App. 22, 245 S.E. 2d 192 (1978), the quantity of the drug seized is a relevant factor in determining whether there was an intent to sell, and where the quantity seized is extremely small, the court should not instruct the jury on the intent to sell portion of the charge. Nevertheless, we believe that there was sufficient evidence of quantity in the present case to justify submission of possession with intent to sell LSD. There was testimony that there were \u201cseveral plastic bags with smaller plastic bags contained inside with a pink powder substance.\u201d The LSD that was seized was described later as \u201cthe four smaller plastic bags containing a pink powder substance and also contained in the small corner of a plastic bag was three capsules with pink powder in them also.\u201d We believe the foregoing was sufficient evidence to allow submission to the jury the charge of possession with intent to sell LSD. This assignment of error has no merit.\nFinally, defendant contends that the trial court failed to properly instruct the jury regarding possession with intent to sell and deliver LSD. Defendant first argues that the instructions explaining what constitutes possession were confusing and that the charge could be construed to allow the jury to find the defendant guilty of possession with intent to sell if they found him guilty of mere possession. The defendant next argues that the court failed to adequately distinguish between the charges of possession with intent to sell LSD and possession with intent to sell secobarbital, and that the jury was thereby misled into believing that it could infer intent to sell in the LSD charge if it found that defendant had an intent to sell secobarbital.\nWe have examined the instructions to the jury in light of defendant\u2019s contention and we are unable to find any merit in this assignment of error. The trial judge properly instructed as to the separate elements of each charge that the State was required to prove. State v. Baker, 285 N.C. 735, 208 S.E. 2d 696 (1974). The charge, when considered as a whole, is fair, complete, accurate, and free from prejudicial error.\nThe defendant had a fair trial free from prejudicial error.\nNo error.\nJudges PARKER and ERWIN concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Elisha H. Bunting, Jr., for the State.", "William W. Respess, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDDIE BOYDEN FRANCUM\nNo. 7825SC773\n(Filed 16 January 1979)\n1. Searches and Seizures \u00a7 34\u2014 inspection of contents of paper bag in wrecked car \u2014 plain view doctrine inapplicable\nA highway patrolman\u2019s inspection of items contained in a paper bag which either fell from or was taken by the officer from defendant\u2019s wrecked car constituted a search, and the plain view doctrine was inapplicable to the seizure of the items.\n2. Searches and Seizures \u00a7 11\u2014 inspection of contents of paper bag in wrecked car \u2014no unreasonable search and seizure\nA highway patrolman\u2019s inspection of the contents of a paper bag in a wrecked car for the purpose of securing the owner\u2019s property prior to having the wrecked car towed away did not constitute an unreasonable search and seizure, and narcotics found in the bag were properly admitted in evidence.\n3. Criminal Law \u00a7 99.4\u2014 correction of defense counsel \u2014 instruction to counsel not to object \u2014 no expression of opinion\nThe trial court did not express an opinion on the evidence when defense counsel confused two of the State\u2019s exhibits during cross-examination of a witness and the court corrected counsel in the presence of the jury, or when defense counsel repeatedly objected to a question put to a witness by the State and the court instructed counsel not to object to the question again.\n4. Narcotics \u00a7 4\u2014 possession of LSD with intent to sell \u2014 evidence of quantity\nThere was sufficient evidence of quantity to justify submission to the jury of a charge of possession of LSD with intent to sell where there was testimony that the LSD powder was in \u201cfour smaller plastic bags\u201d found within other plastic bags.\n5. Narcotics \u00a7 4.5\u2014 instructions \u2014 intent to sell LSD\nThe trial court\u2019s instructions were not susceptible to the construction that the jury could find defendant guilty of possession of LSD with intent to sell if it found him guilty of mere possession or that the jury could infer intent to sell in the LSD charge if it found that defendant had an intent to sell secobar-bital.\nOn writ of certiorari to review proceedings before Kirby, Judge. Judgment entered 2 February 1977 in Superior court, CALDWELL County. Heard in the Court of Appeals on 5 December 1978.\nDefendant was charged in proper bills of indictment with felonious possession of more than 100 dosage units of Secobar-bital, felonious possession with intent to sell hashish, and felonious possession with intent to sell Lysergic Acid Diethylamine (LSD). Upon his plea of not guilty, the State introduced evidence tending to show the following:\nOn 20 October 1975, defendant wrecked a red 1965 Volkswagen automobile on the Abingdon Road near Lenoir, North Carolina. At approximately 3:00 p.m., William Brown from the Caldwell County Ambulance Service arrived on the scene, examined the defendant, and then transported him to the hospital in an ambulance. State Trooper L. O. Church arrived at the scene of the accident as the ambulance carrying the defendant was leaving. Trooper Church did not see the defendant at that time. He observed the wrecked Volkswagen automobile lying upside down in a ditch beside the road and noticed a brown paper bag lying on the roof inside the upturned automobile. Trooper Church initially testified that he reached inside the car and seized the bag, but later said that the bag had fallen out of the car as it was being uprighted and he picked it up off the ground. Trooper Church opened the bag and examined its contents, finding in separate plastic containers a green vegetable block substance, a white and pinkish powder, and a number of capsules. An analysis of these items by the State Bureau of Investigation showed them to be 55 grams of hashish, capsules containing secobarbital, and an undetermined quantity of LSD.\nThe defendant offered no evidence.\nThe jury found defendant guilty as charged. A judgment was entered on the verdict sentencing defendant to ten years on the charge of felonious possession with intent to sell LSD, and three to fifteen years on the charges of felonious possession of hashish and secobarbital, to run at the expiration of the ten year sentence on the LSD charge. Defendant appealed.\nAttorney General Edmisten, by Assistant Attorney General Elisha H. Bunting, Jr., for the State.\nWilliam W. Respess, Jr., for defendant appellant." }, "file_name": "0429-01", "first_page_order": 457, "last_page_order": 465 }