{
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  "name": "STATE OF NORTH CAROLINA v. PAUL EMANUEL DOUGLAS",
  "name_abbreviation": "State v. Douglas",
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    "judges": [
      "Judge Vaughn concurs.",
      "Judge Becton dissents."
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    "parties": [
      "STATE OF NORTH CAROLINA v. PAUL EMANUEL DOUGLAS"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nDefendant\u2019s first assignment of error is grounded on the contention that Officer Galliher lacked probable cause to stop and detain defendant and therefore violated defendant\u2019s rights under the Fourth Amendment of the United States Constitution. At the voir dire examination held for the purpose of determining the basis for probable cause for the stop, Officer Galliher testified that his attention was attracted to defendant\u2019s car on 5 March, initially because of a twelve inch piece of cloth hanging out of the trunk over the rear bumper. Galliher also observed that the car\u2019s trunk lid was tied down over a washing machine and that another white appliance, a dryer, was in the rear passenger area of the vehicle. These circumstances at the time of night, 12:34 a.m., aroused Galliher\u2019s suspicion. Galliher explained that he was aware of several prior thefts of washers and dryers from Conner Mobile Homes, and that he felt it was necessary \u201cto stop the vehicle and advise him that there was in fact something hanging out of the vehicle and to inquire as to what he was doing with the two appliances and material hanging out of the vehicle.\u201d Defendant contends that Galliher\u2019s suspicions were not sufficiently articulable or reasonable to justify a stop of defendant\u2019s vehicle. We disagree.\nIn appropriate circumstances even absent probable cause to arrest, police officers may temporarily approach and detain an individual for purposes of investigating \u201cpossible criminal behavior.\u201d State v. Greenwood, 47 N.C. App. 731, 735, 268 S.E. 2d 835, 838 (1980), reversed on other grounds, 301 N.C. 866, 273 S.E. 2d 438 (1981); see, State v. Tillett, 50 N.C. App. 520, 274 S.E. 2d 361 (1981). If a police officer can specify an articulable and reasonable suspicion that criminal activity is afoot, State v. Streeter, 283 N.C. 203, 210,195 S.E. 2d 502, 507 (1973), then a brief stop of the suspicious individual in order to maintain the status quo momentarily while obtaining more information does not violate Fourth Amendment rights. State v. Thompson, 296 N.C. 703, 706, 252 S.E. 2d 776, 779, cert. denied, 444 U.S. 907, 62 L. Ed. 2d 143, 100 S. Ct. 220 (1979). Based on the totality of the circumstances as perceived by Officer Galliher, we hold that Galliher possessed such articulable and reasonable suspicion, State v. Thompson, supra, as would justify the investigatory stop of defendant in this case. See, State v. Greenwood, supra, at 736-38, 268 S.E. 2d at 838-39; In re Beddingfield, 42 N.C. App. 712, 715-16, 257 S.E. 2d 643, 645 (1979); G.S. 20-183(a). Noting that defendant did not appeal from the trial court\u2019s finding of fact at the conclusion of the voir dire that Galliher was informed of the break-in at Conner Mobile Home within a \u201cvery short time\u201d of the stop, we uphold the trial court\u2019s conclusion of law that defendant\u2019s detention for this short period of time was reasonable and did not violate defendant\u2019s Fourth Amendment rights. See, State v. Bridges, 35 N.C. App. 81, 239 S.E. 2d 856 (1978).\nDefendant also asserts that the washer and dryer were illegally seized by the police and that it was error not to exclude such evidence. Stating the four requisite elements of the plain view doctrine \u2014 a prior valid intrusion, inadvertent discovery, a nexus between the items and criminal behavior, and plain view \u2014 State v. Wynn, 45 N.C. App. 267, 262 S.E. 2d 689 (1980); see also, Coolidge v. New Hampshire, 403 U.S. 443, 446, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971), but see, State v. Mitchell, 300 N.C. 305, 310-11, 266 S.E. 2d 605, 609 (1980) (questioning the requirement that the discovery be inadvertent), defendant argues that two of the elements were not present in this case. Defendant\u2019s first contention, i.e., that Officer Galliher was not in a place where he had a right to be, is without merit because of our determination that the investigatory stop of defendant\u2019s vehicle was permissible. Defendant\u2019s second contention is that the washer and dryer viewed by Galliher were not incriminating in any manner. This contention is without merit because the seizure of the washer and dryer did not occur until after Galliher was informed by Ingold that a washer and dryer had been removed from a nearby Conner mobile home. At that point, a nexus was established between the items and criminal behavior, State v. Wynn, supra, and the plain view doctrine applied to justify the warrantless seizure. State v. Bridges, supra, at 85, 239 S.E. 2d at 859.\nDefendant next assigns error to the admission of defendant\u2019s confession into evidence. Defendant bases this assignment on the alleged illegality of the stop of defendant\u2019s vehicle, the detention and arrest of defendant, and the seizure of the washer and dryer. As we have already concluded that each of these acts was proper, this assignment is without merit and is therefore overruled.\nDefendant\u2019s fourth assignment of error concerns the charges contained in the indictment of defendant. Defendant was charged with violating G.S. 14-54, which provides:\n\u00a7 14-54. Breaking or entering buildings generally. \u2014\n(a)Any person who breaks or enters any building with intent to commit any felony or larceny therein is guilty of a felony and is punishable under G.S. 14-2.\n(b) Any person who wrongfully breaks or enters any building is guilty of a misdemeanor and is punishable under G.S. 14-3(a).\n(c) As used in this section, \u201cbuilding\u201d shall be construed to include any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.\nDefendant asserts that the State\u2019s evidence showed only a violation of G.S. 14-56 (Supp. 1979), which prohibits breaking and entering \u201cany railroad car, motor vehicle, trailer, aircraft, boat, or other watercraft of any kind containing any goods, wares, freight, or other thing of value. ...\u201d Defendant contends that the trial court erred in denying defendant\u2019s motion to quash the indictment.\nThe question presented is whether an unoccupied mobile home not affixed to the premises and intended for retail sale, is a \u201cbuilding\u201d within the meaning of G.S. 14-54. We hold that it is. A mobile home is clearly a \u201cstructure designed to house or secure within it ... activity or property.\u201d Such a structure that is uninhabited or under construction also is within the statute\u2019s language. The mere fact of a mobile home\u2019s capability of being transported from place to place on wheels attached to its frame, should not remove it from the ambit of G.S. 14-54. See, United States v. Lavender, 602 F. 2d 639 (4th Cir., 1979).\nDefendant\u2019s final assignment of error concerns the admission of Donald Harwood\u2019s testimony identifying the curtains, bedspread and pillows found in defendant\u2019s vehicle as those items missing from the Conner mobile home. On voir dire Harwood testified that the items found in defendant\u2019s vehicle were the identical color and size as those taken from the mobile home but that he could not \u201csay for a fact that they were ours.\u201d After the voir dire, the trial j udge made findings of fact and concluded that the identification testimony was admissible. There was no error in this ruling. Evidence is relevant if it has any logical tendency to prove the fact in issue. See, State v. Collins, 35 N.C. App. 250, 252, 241 S.E. 2d 98, 99 (1978); 1 Stansbury\u2019s N.C. Evidence \u00a7 77, at 234 (Brandis rev. 1973). Harwood\u2019s ability to identify the items was sufficient to provide the basis upon which the jury might reasonably infer that the items found in defendant\u2019s vehicle were those taken from the mobile home. See, State v. Bembery, 33 N.C. App. 31, 37, 234 S.E. 2d 33, 37, disc. rev. denied, 293 N.C. 160, 236 S.E. 2d 704 (1977). This assignment of error is overruled.\nNo error.\nJudge Vaughn concurs.\nJudge Becton dissents.",
        "type": "majority",
        "author": "WELLS, Judge."
      },
      {
        "text": "Judge Becton\ndissenting:\nMy reading of the record in this case and the relevant case law requires that I dissent. The court\u2019s holding that Officer Galliher\u2019s warrantless stop of the defendant was based on a constitutionally sufficient and reasonable suspicion that the defendant was engaged in criminal activity is speculative at best and violative of the defendant\u2019s Fourth and Fourteenth Amendment rights at the very least. In order to conduct an investigatory stop and detention of an individual, the United States Supreme Court has held that a police officer must have a reasonable suspicion, grounded in articulable and objective facts, that the individual is engaged in criminal activity. Brown v. Texas, 443 U.S. 47, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979). See also State v. Thompson, 296 N.C. 703, 252 S.E. 2d 776, cert. denied, 444 U.S. 907, 62 L. Ed. 2d 143, 100 S. Ct. 220 (1979); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Streeter, 283 N.C. 203, 195 S.E. 2d 502 (1973). In Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979), the Court applied the same principle to police stops of motor vehicles citing with approval the Delaware Supreme Court\u2019s opinion that:\na random stop of a motorist in the absence of specific articulable facts which justify the stop by indicating a reasonable suspicion that a violation of the law has occurred is constitutionally impermissible and violative of the Fourth and Fourteenth Amendments to the United States Constitution.\n440 U.S. at 651, 59 L. Ed. 2d at 665-66, 99 S. Ct. at 1394.\nI find no evidence in the record to support the majority\u2019s holding that Officer Galliher had a reasonable suspicion, prior to stopping the defendant\u2019s car, that the defendant was engaged in criminal activity. During direct examination by the State on voir dire, Officer Galliher testified to the contrary, strongly suggesting that he had no suspicions: \u201cI followed the 1970 Oldsmobile and stopped it because I wanted to advise the driver that the cloth was in fact hanging out of the trunk.\u201d Later on cross examination by defense counsel, Galliher added further, \u201cMy purpose in following him, was to inform the operator that he had something hanging out of his trunk and that was my only purpose. I was not stopping the vehicle for any traffic violations. I was just going to perform a public service.\u201d (Emphasis added.)\nThe facts relied on by the majority to support finding a reasonable suspicion were that Officer Galliher observed a car with its trunk lid tied down over what appeared to be a washing machine; that a piece of cloth was hanging out of the car\u2019s trunk over its bumper; that it was 12:34 a.m. at night; and that Officer Galliher had personal knowledge of thefts from nearby Connor Mobile Homes at various, but unspecified, times in the past. Galliher also testified, however, that the defendant was operating his car properly and was not violating any traffic laws. He further stated that it was not unusual for people to be travel-ling in and around Albemarle at that time of night: \u201cit\u2019s quite congested between the hours of 12 and 1 a.m. due to mill traffic. It is not unusual for traffic to be in that area at this time in the morning.\u201d Moreover, nowhere in the record is there any evidence that the thefts from Connor Mobile Homes known about by Officer Galliher were recent thefts, or ones involving a car like the defendant\u2019s car, or even ones involving individuals that fit the defendant\u2019s general description. At best then, the only truly unusual thing about the defendant or his car that night was that a piece of cloth was hanging out of his trunk over his bumper. In light of the officer\u2019s complete testimony on voir dire, the facts relied upon by the majority are so commonplace and innocuous that I cannot see how they support a suspicion on the part of the police that the defendant was engaged in any criminal activity.\nThe facts in this case are distinguishable from the recent North Carolina Supreme Court decision in State v. Thompson, supra. In Thompson, the court found that the police officer\u2019s suspicion that criminal activity was taking place was reasonable and based on specific facts that would give rise to such a suspicion. The facts relied upon were that a van was seen late at night parked in the parking lot of a public boat landing at a time when the lot was not generally in use; that the police had earlier that same evening heard reports of house break-ins in that particular area and that the break-ins were conducted by individuals using a van. Under these circumstances, the police were found to be justified in making an investigatory stop, detention and inquiry of the defendants. But see 296 N.C. at 708-10, 252 S.E. 2d at 780-81 (J. Exum dissenting).\nIn the case at bar, however, the defendant was stopped and detained at a time and place in which it was not unusual for the defendant to be travelling. Officer Galliher had no information at the time of the stop that a break-in at Connor Mobile Homes had occurred, nor was he on alert for a particular car or suspects fitting the description of the defendant. In short, the type and quality of evidence available to the police in Thompson giving rise to a reasonable suspicion that criminal activity might be taking place, was unquestionably absent in the case before us.\nOfficer Galliher\u2019s stop of the defendant, then, was not based on a reasonable suspicion that criminal activity was afoot. Even if the stop was permissible as a safety stop for the purpose of warning the defendant about the cloth hanging from his trunk, the officer, absent probable cause to detain the defendant, should have made his public safety warning to the defendant as he did, and then let the defendant leave. It was wholly improper for Officer Galliher to ask for the defendant\u2019s driver\u2019s license. He testified that, \u201cI asked Mr. Douglas for his North Carolina operator\u2019s license, because I wanted to insure he, in fact, had an operator\u2019s license and to establish his identity.\u201d In Delaware v. Prouse, supra, the United States Supreme Court specifically held that a police officer without probable cause cannot randomly stop a car and detain its driver in order to check his license and registration; such a stop and inquiry is violative of the Fourth Amendment and is an unreasonable seizure. 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391. See also United States v. Martinez-Fuerte, 428 U.S. 543, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975). Under the circumstances then, it makes no difference that Officer Galliher learned of the Connor Mobile Homes break-in while still awaiting the license check on the defendant. At the time, the defendant had already been subjected to an unreasonable stop and detention in violation of his Fourth Amendment rights.\nFor the Fourth Amendment to have any vitality at all, it must be read and enforced to assure private citizens that their rights and expectations of privacy will not be infringed upon by the State based on less than reasonable suspicions of the police officer in the field, however well intending. Freedom to move about in an unrestricted fashion without fear of unreasonable stops and detentions is at the heart of the Fourth Amendment\u2019s prohibition against unreasonable searches and seizures. It is in deference to these higher principles that I dissent and would order the suppression of the illegally obtained evidence in question.",
        "type": "dissent",
        "author": "Judge Becton"
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten, by Assistant Attorney General Ben G. Irons, II, for the State.",
      "Hopkins, Hopkins and Tucker, by Samp C. Hopkins, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. PAUL EMANUEL DOUGLAS\nNo. 8020SC1023\n(Filed 5 May 1981)\n1. Searches and Seizures \u00a7 12- investigatory stop - reasonable suspicion of criminal activity\nAn officer had an articulable and reasonable suspicion that defendant was engaged in criminal activity so as to justify an investigatory stop of a car driven by defendant where the officer observed at 12:34 a.m. that the car\u2019s trunk lid was tied down over a washing machine and that another white appliance, a dryer, was in the rear passenger area of the vehicle, and where the officer was aware of several prior thefts of washers and dryers from a nearby mobile home dealer.\n2. Searches and Seizures \u00a7 34- items in vehicle - seizure under plain view rule\nA washer and dryer were lawfully seized from defendant\u2019s car without a warrant pursuant to the plain view rule where an officer made a proper investigatory stop of defendant\u2019s car, and the seizure of the washer and dryer occurred after the officer had been informed by another officer that a washer and dryer had been removed from a nearby mobile home.\n3. B urglary and Unlawful B reakings \u00a7 2- breaking or entering a building - mobile home on dealer\u2019s lot\nAn unoccupied mobile home not affixed to the premises and intended for retail sale is a \u201cbuilding\u201d within the meaning of the statute prohibiting the breaking or entering of buildings, G.S. 14-54.\n4. Larceny \u00a7 6.1- identity of stolen items\nThe manager of a mobile home dealership was properly permitted to describe pillows, curtains and a bedspread found in defendant\u2019s car as being identical to those taken from a mobile home on the dealer\u2019s lot.\nJudge Becton dissenting.\nAppeal by defendant from Mills, Judge. Judgment entered 5 June 1980 in Superior Court, Stanly County. Heard in the Court of Appeals 5 March 1981.\nDefendant was indicted on charges of breaking or entering, and larceny and receiving. The jury returned verdicts of guilty of felonious breaking or entering, and of felonious larceny.\nThe State\u2019s evidence tended to show that at 12:34 a.m. on 5 March 1980 Officer J.E. Galliher of the Albemarle Police Department stopped an automobile, driven by defendant and registered in the name of a passenger in the car, containing a washing machine and a pair of curtains in the trunk, and a dryer, two pillows, a set of curtains on curtain rods and a bedspread in the rear passenger area. In response to Officer Galliher\u2019s request, defendant was unable to produce his driver\u2019s license. Galliher then radioed the Albemarle Police\u2019s Communication Department to make a driver\u2019s license check on defendant. Galliher also radioed Officer L.C. Ingold to request that Ingold check the Conner Mobile Homes lot, located approximately one-half mile from where defendant\u2019s car was stopped, for a possible breaking, entering and larceny of a washer and dryer. While still awaiting the record check, Ingold informed Galliher that a Conner mobile home had been opened and a washer and dryer apparently removed. At this point Galliher advised defendant and the passenger of their Miranda rights, seized the vehicle, and took them to the Stanly County jail. Defendant later signed a statement admitting the break-in of the mobile home and the larceny of the washer, dryer, curtains and pillows. The manager of Conner Mobile Homes, Donald Harwood, identified the washer and dryer taken from defendant\u2019s car as the property of Conner Mobile Homes by matching serial numbers. Harwood also described the pillows, curtains and bedspread found in the car as being identical to those removed from the mobile home.\nDefendant offered no evidence.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Ben G. Irons, II, for the State.\nHopkins, Hopkins and Tucker, by Samp C. Hopkins, Jr., for defendant appellant."
  },
  "file_name": "0594-01",
  "first_page_order": 622,
  "last_page_order": 630
}
