{
  "id": 8524333,
  "name": "STATE OF NORTH CAROLINA v. DAVID WAYNE BENNETT",
  "name_abbreviation": "State v. Bennett",
  "decision_date": "1983-12-06",
  "docket_number": "No. 8321SC300",
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    "date_added": "2019-08-29",
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    "judges": [
      "Judges Arnold and Braswell concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. DAVID WAYNE BENNETT"
    ],
    "opinions": [
      {
        "text": "HILL, Judge.\nEvidence for the State tended to show the following: On 13 August 1982 and 20 August 1982, the S & R Motor Company was broken into, and several items of personal property belonging to Melvin Swisher, Vice-President, were taken therefrom. These items included a Wachovia bank deposit bag, a twenty-two caliber rifle, and some credit cards. Around midnight of 20 August 1982 a Kernersville police officer saw the defendant and his girlfriend walking in front of the S & R Motor Company. The next day, after learning of the break-in, the police officer saw defendant late at night and asked him if he knew anything about the break-in. Defendant responded that he might know and agreed to meet the police officer at the Food Town parking lot later that night. The defendant did not meet the officer at the scheduled time.\nTwo days later at approximately midnight another Kerners-ville police officer, who was aware of the foregoing conversation between the defendant and the first police officer, stopped a burgundy colored LeMans driven by the defendant and accompanied by his girlfriend. After giving defendant some performance tests, the officer arrested the defendant for driving under the influence and gave him his Miranda rights. During this activity the police officer noticed a Wachovia bank deposit bag on the floor of the car behind the driver\u2019s seat with papers in it having the name of \u201cSwisher\u201d on them. Knowing of the break-in at S & R Motor Company, the police officer took possession of the bank bag, began searching the car, and discovered more items. Because the light was poor, he had the automobile towed to the police station where a thorough inventory was taken. Several items reported missing from the S & R Motor Company break-ins were found, including Swisher\u2019s credit cards and a twenty-two caliber rifle.\nDefendant\u2019s testimony tended to raise the defense of entrapment.\nBy his first assignment of error defendant argues the warrantless search of his automobile was unconstitutional because of the lack of probable cause and because the search was not incident to arrest. Based upon these contentions, defendant argues the trial judge erred in denying his motions to suppress the evidence obtained and thereafter denying his motions to dismiss. In a \u201cbranch of law [that] is something less than a seamless web,\u201d Cady v. Dombrowski, 413 U.S. 433, 440, 93 S.Ct. 2523, 2527, 37 L.Ed. 2d 706, 714 (1973), we hold the search was valid under the automobile exception to the Fourth Amendment constitutional requirement that a warrant is needed in order to conduct a valid search.\nBecause of an automobile\u2019s mobility and inherent openness presenting much of its contents to plain view, United States Supreme Court cases consistently recognize an exception to the warrant requirement for automobile searches based on probable cause. The Supreme Court has extended the automobile exception by ruling that if a police officer has probable cause to search a lawfully stopped vehicle, the probable cause can justify a search of the entire car and anything found inside that may conceal the object of the search. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed. 2d 572 (1982); see also Note, Search and Seizure-Warrantless Container Searches Under the Automobile and Search Incident to Arrest Exceptions\u2014 United States v. Ross, 18 Wake Forest L. Rev. 1145 (1982).\nIn the case under review, the officer testified he knew of the break-ins at the S & R Motor Company at the time he stopped the car. He looked into the car and saw in plain view on the floorboard behind the driver\u2019s seat the Wachovia bank deposit bag with papers bearing the name Melvin Swisher clearly marked thereon. Presence of the papers seen by the officer is sufficient probable cause to believe other contraband from the robbery may be concealed within the vehicle. Therefore, the officer had probable cause sufficient to conduct a search and seizure of anything in the vehicle, including items within the bag. See United States v. Ross, supra. Because the search in question falls within one of the \u201cjealously and carefully drawn\u201d exceptions to the warrant requirement of the Fourth Amendment, the search is constitutional regardless of whether or not it fails to qualify under another exception. We conclude the trial court committed no error in admitting the evidence and thereafter denying defendant\u2019s motion to dismiss.\nNor do we find error by the trial court in its instructions to the jury regarding the elements of possession of stolen goods. The parties agreed prior to trial that the value of the goods in excess of $400.00 would not be a factor for the jury. In the principal charge the court adequately instructed on the essential elements for felonious possession of stolen goods pursuant to a breaking and entering except to a precise definition for \u201cbreaking and entering.\u201d Approximately ten minutes later the jury came back asking for a clarification on the distinction between felonious and non-felonious possession of stolen goods, and at that time the judge correctly defined breaking and entering for the jury. He then asked the jury and defense counsel if anything further should be said by the court and received a negative reply. A trial court\u2019s instructions must be read contextually as a whole, and isolated erroneous portions will not be considered prejudicial error on appeal when the instruction read as a whole is correct. See State v. Lee, 277 N.C. 205, 176 S.E. 2d 765 (1970); State v. McCall, 31 N.C. App. 543, 230 S.E. 2d 195 (1976). When construed contextually as a whole, the charge is adequate. We conclude this assignment together with defendant\u2019s remaining assignments of error to be without merit.\nNo error.\nJudges Arnold and Braswell concur.",
        "type": "majority",
        "author": "HILL, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten by Assistant Attorney General Elaine J. Guth for the State.",
      "Mallory M. Barber and L. G. Gordon, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. DAVID WAYNE BENNETT\nNo. 8321SC300\n(Filed 6 December 1983)\n1. Searches and Seizures \u00a7 11\u2014 warrantless search of vehicle \u2014 probable cause\nA search of defendant\u2019s automobile and the seizure of stolen property found therein were valid under the automobile exception to the Fourth Amendment where an officer stopped defendant for driving under the influence and noticed a bank deposit bag in plain view on the floor of the car behind the driver\u2019s seat with papers in it bearing the name of a break-in victim, since the officer then had probable cause to believe other contraband from the break-in might be concealed within the vehicle and thus had probable cause to conduct a search and seizure of anything in the vehicle.\n2. Receiving Stolen Goods \u00a7 6\u2014 possession of stolen goods \u2014 sufficiency of instructions\nThe trial court\u2019s instructions on the elements of possession of stolen goods were sufficient where the court adequately instructed on the elements of felonious possession of stolen goods pursuant to a breaking and entering with the exception of failing to give a precise definition of breaking and entering, the jury asked for a clarification on the distinction between felonious and nonfelonious possession of stolen goods, and the trial court at that time correctly defined breaking and entering for the jury.\nAPPEAL by defendant from Rousseau, Judge. Judgment entered 17 November 1982 in the Superior Court of FORSYTH County. Heard in the Court of Appeals 15 November 1983.\nThe defendant was charged with felonious possession of stolen goods in violation of G.S. 14.71.1. From the jury\u2019s verdict of guilty, defendant appeals.\nAttorney General Rufus L. Edmisten by Assistant Attorney General Elaine J. Guth for the State.\nMallory M. Barber and L. G. Gordon, Jr., for defendant appellant."
  },
  "file_name": "0394-01",
  "first_page_order": 426,
  "last_page_order": 429
}