Reply Brief — Passarella v. North Carolina

Appendices

A-1

A-2

A-3

ANSWER TO PETITION .....

INDEX

TABLE OF AUTHORITIES .....+2escces

eee Cee. 6.6 Kk Se ee ee ee ee ee

CONSTITUTIONAL PROVISIONS - ++ +++ +e +

QUESTION PRESENTED FOR REVIEW. ..... -

STATEMENT OF THE CASE+ ++: - eae ae ee

ARGUMENT - - + © © © © © © © © we ew © wo 8

CONCLUSION OF ARGUMENT.-.~-..+...-s oe

CERTIFICATE OF SERVICE ..-+.+ s+ «ss oe

Judgment and Commitment. . .

State's Brief in North Carolina Court of

ROGUE 4 24-60 5 a ee Ree 8 ee 8

Opinion of North Carolina Court of Appeals.

State's Supplemental Brief in the North

Carolina Supreme Court .......-s.

Judgment of North Carolina Supreme Court.

Constitutional and Statutory

Provisions Involved

CASE CITATIONS

Carroll v. United States,

267 U.S. 132, 69 L. Ed. 543,

45 S. Ct. 280 (1925) 7 . Y S62 Ss 2 4.82 2 a 5

Chambers v. Maroney,

399 U.S. 42, 26 L. Ed. 2d 419,

90 S. Ct. 1975 (1970). . . . . . . . . . . . 5

Draper v. United States,

358 U.S. 307, 3 L. Ed. 327,

pS Be i.) ee % 2

Gilliam y. United States,

189 F. 24 321 (6th Cir. 1951). «© «© «© © © o 8

Ker v. State of California,

374 U.S. 23, 10 L. Ed. 2d 726,

83 S. Ct. 1623 (1963)- + + + + + © + © © © #4 6

McCray v. Illinois,

386 U.S. 300, 18 L. Ed. 2d 62,

ie sy Se on |

Mapp v. Ohio,

367 U.S. 643, 6 L. Ed. 2d 1081,

81 S. Ct. 1684 (1961) + + °+ = sit oe i

Miller v. United States,

357 U.S. 301, 2 L. Ed. 2d 1332,

7e &. Oe. FISD (19SE). cw tw we wet tet ecw CG

Petteway v. United States,

261 F. 2d 53 (4th Cir. 1958). . . - «©» » ee 8

Rios v. United States,

364 U.S. 253, 4 L. Ed. 2d 1688,

4 Re eT a

Sgro v. United States,

287 U.S. 206, 77 L. Ed. 260,

oo Ge ee EPPA) © te we wesc ee wee §

—

United States v. Bradshaw,

490 F. 2d 1097 (4th Cir. 1974) - .- - » « - ‘ 5

United States v. Gonori,

437 F. 2d 312 (4th Cir. 1971)*> + + s+ + © © « 8

United States v. Neal,

500 F. 2d 305 (10th Cir. 1974) - + + «+ «© «© 8

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fourteenth Amendment to the Constitution of the United

States 3

Fourth Amendment to the Constitution

of the United States - + +++ s+» 2, 4; 3: & 2

Title 28 of the United States Code,

Section 1257 (B)e se se see ese nees 3

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No. 74-1472

SAM JOHN PASSARELLA,

Petitioner

v.

STATE OF NORTH CAROLINA

Respondent

ANSWER TO PETITION FOR A WRIT

OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

TO: THE HONORABLE WARREN E. BURGER,

CHIEF JUSTICE OF THE UNITED STATES, AND THE

ASSOCIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES:

NOW COMES RUFUS L. EDMISTEN, ATTORNEY

GENERAL FOR THE STATE OF NORTH CARULINA, and

for his Answer to the Petition for Writ of Certiorari to the

United States Supreme Court filed by the petitioner in the

above entitled cause says:

1. That the decision by the North Carolina Court of

Appeals was unanimous and that the decision of the North

Carolina Supreme Court denying the petitioner's appeal and

Petition for Writ of Certiorari to that Court was unanimous.

és That the Petition for Writ of Certiorari to this

Court should be denied in that the decision of the North

Carolina Court of Appeals and of the North Carolina Supreme

x,

Court were not in conflict with any of the decisions of the

North Carolina Supreme Court or of the Supreme Court of

the United States.

I That the decisions of the North Carolina Appellate

Courts did not result in the denial to the Petitioner of any

of his rights guaranteed to him by the laws and Constitution

of the State of North Carolina and by the Constitution of the

United States.

4. In the Answer to the Petitioners substantive

allegations of error, the State of North Carolina says that the

Petitioner has failed to show good or just cause for further

review and that no such cause exists; that the entire record

in this case does not reveal that any of the rights secured to

the Petitioner by North Carolina law, the North Carolina

Constitution or the United States Constitution were violated;

and, there is, therefore, no substantial question arising under

the Constitution of the State of North Carolina or the

Constitution of the United States. There was sufficient evidence

to convict the defendant of the crime with which he stood

indicted.

5. | The State of North Carolina sgecifically includes

as a part of this Answer the corrected Judgment and

Commitment of the Trial Court, the Brief for the State filed

in the North Carolina Court of Appeals, the;decision of the

North Carolina Court of Appeals, the Supplemental Brief for

the State filed in the North Carolina Supreme Court, and the

Judgment of the North Carolina Supreme Court dismissing the

Appeal and Petition for Writ of Certiorari, the said items being

in the Appendix and marked respectively as A-1 through A-S.

6. That accompanying this Answer and containing the

argument of the State of North Carolina on the facts and law

in opposition to the Petition for Writ of Certiorari to the United

States Supreme Court is a Brief which follows hereafter.

This the 1¥ day of June, 1975.

a

Respectfully Submitted,

RUFUS L. EDMISTEN

Attorney General

R. BRUCE WHITE, JR.

Deputy rey General

coe al

t

Guy A. famiin

Assistarit [Attorney General

7G J. Guieé, Ir.

Assistant Attorney General

JURISDICTION

The Petitioner has correctly invoked the jurisdiction of

the Supreme Court of the United States under Title 28 United

States Code Section 1257 (3).

CONSTITUTIONAL PROVISIONS

The Petitioner has properly quoted the applicable

sections of the Fourth and Fourteenth Amendments to the

United States Constitution. The Applicdble sections of these

Amendments will not be repeated here.

QUESTION PRESENTED FOR REVIEW

Did the Trial Court commit error in denying Defendant's

motion to suppress the evidence that was introduced at the

trial because said evidence was obtained by unlawful and

unreasonable search and seizure denying his constitutional

rights under the Fourth and Fourteenth Amendments to the

Constitution of the United States?

STATEMENT OF THE CASE

The statement of the case is set forth in the Petitioner's

Brief and in addition a statement of facts is contained in the

Brief of the State of North Carolina, A-2, filed in the North

4-

Carolina Court of Appeals. It is believed that a further

statement of the facts here would be unnecessary repetition.

In addition other pertinent facts are hereafter included in the

argument of Counsel.

ARGUMENT OF COUNSEL AS TO THE FACTS

AND LAW OF THE QUESTION

BRIEF

The State of North Carolina is well aware of the

elementary and basic principle of law that the right of the

individual against unreasonable search and seizure is a very dear

one and that any infringement is to be examined carefully.

This basic protection for the individual which is a vital part

of our heritage was so fundamental that it was inco-porated

into our national Constitution by the Fourth Amendment.

Cited by the Petitioner as enumerating and establishing this

fundamental protection provided by the Fourth Amendment

are the landmark cases of Mapp v. Ohio, 367 U.S. 643, 6 L.

Ed. 2d 1081, 81 S. Ct. 1684 (1961); Miller v. United States,

357 U.S. 301, 2 L. Ed. 2d 1332, 78 S. Ct. 1190 (1958); and

Ker v. State of California, 374 U.S. 23, 10 L. Ed. 2d 726,

83 S. Ct. 1623 (1963). A reading of these cases as well as

the numerous other cases involving search and seizure leads one

to the conclusion reached by Mr. Justice Clark in Mapp v. Ohio,

supra, and alluded to by the Petitioner in his Brief that there

is no fixed formula applying to every case in determining the

reasonableness or unreasonableness of the search. Therefore, the

Courts must look carefully at the factual setting of each

particular case in determining whefher or not the search was

reasonable.

In the instant case John K. Walker, a North Carolina

State Bureau of Investigation (S.B.1.) Agent, saw the Petitioner

in the company of two other individuals in Fayetteville, North

Carolina. He received information from a confidential and

reliable informer that the Petitioner was coming to the

Wilmington, North Carolina area. This S.B.1. Agent returned

to Wilmington and after meeting another S.B.1. Agent, named

McKinney, saw the Petitioner riding in an automobile along

with two other individuals. They stopped the automobile and

with the assistance of a Wilmington police officer conducted

.

a preliminary search of the automobile and the individuals. The

Petitioner was taken to a service station rest room by Agent

McKinney and the Wilmington police officer where he was

searched by the said officers who found no narcotics on him.

Following this search Agent Walker received additional new

information from the confidential source that the Petitioner

had narcotics on his person and that the confidential source

had seen the contraband. Based upon this new additional

information the Petitioner was taken to the New Hanover

County Sheriff's Department, a search warrant was procured,

and a search made of the Petitioner's person resulting in the

finding of cocaine.

On “page 15 of his Brief the Petitioner states:

"In the above case there is no question that the

S.B.1. officers were proper in the original search of

the Petitioner, the car and other persons. The

Petitioner concedes that is the Federal law and also

the law of the State of North Carolina."

In making this concession, the Petitioner recognizes the

established law since it has long been settled that under certain

circumstances, an officer, having probable cause to believe that

an automobile contains evidence of the commission of a crime

may search the automobile and its passengers for such evidence

without first obtaining a warrant. Carroll v. United States, 267

U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925); Chambers v.

Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975

(1970); and United States v. Bradshaw, 490 F. 2d 1097 (4th

Cir. 1974). In the instant case, as the Petitioner concedes, it

was certainly not practical for the officers to secure a warrant

at the time of the stopping of the vehicle.

Moreover, a review of the Petitioner's argument reveals

that the Petitioner makes no contention that the search

conducted at the New Hanover County Sheriff's Department

pursuant to the search warrant was invalid. What the Petitioner

does contend is that the fact that there was a second search

was unreasonable and that the conducting of a second search

was a violation of his Fourth Amendment rights. His sole

argument is directed to what he calls the officers having two

bites at the apple. The Petitioner cites no case with a factual

&-

situation similiar to the instant case now before this Court.

After a thorough search neither has this writer been able to

find a case similar to the particular factual setting of this case.

In Ker v. State of California, supra, the Court stated that

the reasonableness of a search is a substantive determination

to be made by the Trial Court; however, the findings of

reasonableness are not insulated from examination by the

Supreme Court since they must be consistent with the

protection afforded by the Fourth Amendment to the

Constitution. Prior to the admission of the cocaine found on

the Petitioner's person into evidence at his trial, the trial judge

conducted a voir dire examination to determine the validity

of the search of the Petitioner's person. During the said voir

dire hearing, testimony was received from Agent Walker and

the Wilmington police officer. Agent Walker specifically

testified that after the service station rest room search of the

Petitioner that he received new information from a confidential

source that the Petitioner had drugs on his person. The

confidential informant told Agent Walker that just a few

minutes before they had stopped the automobile that the

confidential source had seen the narcotic drugs in the possession

of the Petitioner. Agent Walker testified that the confidential

informant had furnished him information in the past which

had been reliable. Agent Walker further testified that, based

upon this information, he proceeded to the New Hanover

County Sheriff's Department where he related his information

to a magistrate and obtained a search warrant for the Petitioner.

Upon conclusion of the voir dire examination, the trial judge

found that the search warrant was valid and that the cocaine

found on the Petitioner's person was properly admissible into

evidence. The State of North Carolina argues and contends that

the substantive determination made by the Trial Court was

proper and was supported by the evidence produced during

the voir dire hearing. Furthermore, the Tria Court's finding

of reasonableness was consistent with the Fourth Amendment

to the Constitution and the decisions of this Court.

It is obvious that the search warrant was obtained and

the second search was conducted on the basis of the new

information obtained from the confidential informant. It is

likewise obvious that this new information obtained by Agent

Walker from his confidential informer constituted probable

7 . . we Nd

a 1 hee SHANI PERT eee ED a9 aS e ——~--- ee ae ee ee y ek 2

3

cause upon which to obtain the search warrant to search the

person of the Petitioner. After hearing during the voir dire

examination all of the evidence as to the service station rest

room search and the second search with a warrant at the New

Hanover County Sheriff's Department, the trial judge found

the search valid, and the Petitioner should be bound by this

finding of fact and conclusion of law.

The testimony of Agent Walker informed the Trial Court

of the underlying circumstances from which the informant

furnished the new information and from which the informant

concluded that the narcotics were where he claimed they were.

Agent Walker further furnished the Trial Court with some of

the underlying circumstances from which he concluded that

the informant was credible and his information reliable. Upon

the basis of these circumstances coupled with Agent Walker's

personal observations of the Petitioner, the Trial Court was

completely justified in holding that at the time the search

warrant was obtained the facts and circumstances within the

knowledge of Agent Walker and of which he had reasonable

trustworthy information were sufficient to warrant him as a

reasonable and prudent man in believing that a criminal offense

had been committed and was continuing to be committed.

McCray v. Illinois, 386 U.S. 300,18 L.Ed. 2d 62, 87 S.Ct.

1056 (1967).

This Court said in Draper v. United States, 358 U.S. 307

at page 313, 3 L. Ed. 2d 327, 79 S. Ct. 329 (1959):

"In dealing with probable cause . . . as the very

name implies we deal with probabilities. These are

not technical; they are factual and practical

considerations of everyday life on which reasonable

and prudent men, not legal technicians act. Brenegar

v. United States, supra at 175. Probable cause exists

where the facts and circumstances within (the

arresting officers) knowledge and of which they had

reasonably trustworthy information (are) sufficient

in themselves to warrant a man of reasonable

caution in the belief that an offense has been

committed." Citation omitted.

Taking the evidence in this case Agent Walker was acting

reasonably and prudently and with reasonable caution in

—

-8-

procuring the search warrant and conducting the second search.

Agent Walker was acting on reasonably trustworthy information

which was sufficient to support his belief that a criminal offense

had been and was being committed. Moreover, the probable

cause for issuance of the search warrant existed at the time

the search was sought to be made. United States v. Neal, 500

F. 2d 305 (10th Cir. 1974). See also Sgro v. United States,

287 U.S. 206 at page 210, 77 L. Ed. 260, 53 S. Ct. 138 (1932)

which states:

". . It is manifest that the proof must be of facts

so closely related to the time of the issue of the

warrant as to justify a finding of probable cause

at that time. . ."

Not only was there probable cause to obtain the search

warrant but there was also present at the time it was obtained

a grave risk of loss of the evidence. Had the search warrant

not been obtained there was no basis on which to hold or

charge the Petitioner. At this point the agents would have had

to release the Petitioner to go on his merry way and do with

the narcotic drugs whatever he pleased which may have been

to consume the drugs himself but more likely would have been

the commission of another criminal act by selling the cocaine.

Several federal cases have held that admissions or other events

occurring between the time an automobile is stopped and the

time the actual search begins may be used to show probable

cause for a search. Rios v. United States, 364 U.S. 253, 4 L.

Ed. 2d 1688, 80 S. Ct. 1431 (1960); United States v. Gonori,

437 F. 2d 312 (4th Cir. 1971); Petteway v. United States, 261

F. 2d 53 (4th Cir. 1958); Gilliam v. United States, 189 F.

2d 321 (6th Cir. 1951). It is not unreasonable under the Fourth

Amendment to the Constitution to carry this one more logical

step and say that events occurring after the stopping of the

automobile and the service station rest room search in this case

that being the new information from the conficential informer,

can furnish the basis for probable cause to obtain a search

warrant and conduct a thorough search as was done at the

New Hanover County Sheriff's Department.

At this point a pertinent question to ask would be

whether knowledge of related facts would constitute probable

cause under the Fourth Amendment to the Constitution. Agent

WIRE TCE ERTS at

C2 Vr a SERIE os

4 eR IN LO NPY

MyEttat’ ape ian

PSH ITS

LITTER OES Lenco es

-9-

Walker had seen the Petitioner earlier in Fayetteville, North

Carolina, in a vehicle with two other persons. While in

Fayetteville, Agent Walker had received his first information

from the confidential informer. Acting on this information that

the Petitioner was coming to Wilmington and that he had

narcotics in his possession, Agent Walker returned to

Wilmington. After Walker's return to Wilmington, he saw the

Petitioner and the two other persons who were with him

traveling in the vehicle on a highway north of Wilmington. At

this point the information obtained from the confidential

source was verified. The only information from the confidential

source Agent Walker had not verified was the Petitioner's

possession of narcotics. Although the preliminary service station

rest room search did not yield the narcotics, Agent Walker then

received new information from the confidential informer that

the Petitioner had narcotic drugs on his person and the

informant had seen the drugs shortly before the Petitioner's

automobile was stopped. There then remained the fact of

verifying the Petitioner's possession of the narcotics. This Agent

Walker proceeded to do by obtaining the search warrant and

searching the Petitioner at the New Hanover County Sheriff's

Department. Needless to say, this search pursuant to the search

warrant was fruitful.

A close look at Draper v. United States, supra, which

is somewhat analogous to this case is now most helpful. In

Draper one Marsh, a federal narcotics agent in Denver received

information from one Hereford who had been engaged as a

special employee of the Bureau of Narcotics. Hereford had from

time to time given information to Marsh regarding violation

of narcotic laws. Hereford's information had always proved to

be accurate and reliable. Hereford gave Marsh information that

Draper was in Denver at a certain address and that he was

peddling narcotics. Hereford told Marsh that Draper had left

for Chicago the day before and that he was going to return

to Denver by train on September 8 or 9 and that he would

have three ounces of heroin. Hereford gave a detailed

description of Draper, described the clothes he was wearing,

said that Draper was carrying a tan zipper bag and that Draper

habitually walked real fast. On September 9, Marsh saw Draper

alight from a train in Denver. He was wearing the clothes

described by Hereford, was carrying a tan zipper bag, and was

walking fast. A search of Draper revealed two bags of heroin

y

-10-

in his left raincoat pocket. Draper was arrested without a

warrant and charged with violating the narcotics laws. The

Supreme Court held that there was probable cause to arrest

without a warrant and that the subsequent search of Draper

and the seizure of the heroin was valid. The Court stated that

Marsh had personally verified Hereford's information except for

Draper's possession of heroin and said there were reasonable

grounds to believe that the unverified information was likewise

true.

The Petitioner makes a most interesting statement that

the reason the question now before this Court has never been

decided is that the facts in this particular case are so unusual

that it has never had to be considered. This statement if

followed by the argument that there is nothing to prevent the

police from stopping an individual on reliable information,

conducting a search, and then continuing to search the

individual on ad infinitum with the same information being

reiterated by the same informant over and over again. Obviously

the Petitioner carries his argument to a ridiculous conclusion.

If the case is so unique and has not occurred before, obviously

it is not a problem for law enforcement personel or for

individuals. More importantly, however, the Petitioner has

misconstrued the facts of this case. The evidence produced at

the voir dire hearing before the trial judge conclusively shows,

as the trial judge found, that the information furnished by the

informer the second time to Agent Walker was new information

and was not merely the same information reiterated again to

Agent Walker.

Finally, the Petitioner would have this Court write a new

rule of law for this country. His arguments and coritentions

surely are not the law and cannot be the law. Moreover, were

the law what the Petitioner contends and argues it to be

effective law enforcement would be severely curtailed. Granted

that the facts of this case are unusual and that such a factual

setting may not occur often, but to hold that the search

pursuant to the search warrant which produced the evidence

in this case and that the conduct of Agent Walker was

unreasonable under the Fourth Amendment to the Constitution

would signal the beginning of a new trend in search and seizure

law when carried to its ultimate conclusion would sound the

death knell to effective law enforcement as we know it in this

Si.

country. To require that law enforcement officers make an

election under the facts of this case, as the Petitioner contends

that they should, would be a course of a conduct which should

not be placed upon reasonable and prudent men whom our

governmental agencies have clothed with the duties of law

enforcement and such a requirement in and of itself would

be most unreasonable and unwise.

CONCLUSION

It is difficult to follow the Petitioner's argument that

the search pursuant to the warrant which produced the

contraband is invalid simply because there has: already been

a prior search which he concedes was valid under the

circumstances. This is particularly true when the Petitioner

makes no argument or contention as to the invalidy of the

search warrant itself or to the invalidity of the findings of the

trial judge following the voir dire hearing. He simply makes

the bold assertion that two searches which are reasonable in

and of themselves when added together are unreasonable or

as he put it "there should not be two bites taken at the apple."

Logically it would seem to follow that validity plus validity

equals validity. This writer has never known two plus two to

equal anything but four. The Petitioner would have two plus

two to equal five.

The conduct of Agent Walker and the searches made in

this case were not unreasonable. Agent Walker was simply

acting as a diligent and conscientious law enforcement officer

should under the facts of this case. Had he not so acted as

he did, he would have been most direlect in his duty as a law

enforcement officer. The law does not and should not require

a reasonable and prudent man, as Agent Walker was, to act

in unreasonable and imprudent manner.

It is the position of the State of North Carolina that

the Petitioner has had a fair and impartial trial free from

prejudicial error. The reasonableness of any search must rise

or fall upon the facts of each case. A view of all the

circumstances of this case clearly shows that the test of

reasonableness has been met. For the reasons set forth above,

the State of North Carolina contends that this Petition for Writ

of Certiorari is without merit and should be denied. With the

Pp. PRD BEG REF PLONE OMG EL RL LONG REEE LIA ROAR : ene

Petitioner's conviction thus having been weighed in the scales

of justice by this court, the State of North Carolina contends

that the scales are tilted in favor of the conviction and that

the conviction should, therefore, be sustained.

Respectfully submitted,

RUFUS L. EDMISTEN

Attorney General

R. BRUCE WHITE, JR.

Deputy Attorney General

Guy A. Hamlin

Assistant Attorney General

Department of Justice

State of North Carolina

604 Northwestern Bank Building

Asheville, North Carolina 28801

Telephone (704) 254-0831

Zoro J. Guice, Jr.

Assistant Attorney General

Department of Justice

State of North Carolina

604 Northwestern Bank Building

Asheville, North Carolina 28801

Telephone (704) 254-0831

OPPOSING COUNSEL:

GEORGE H. SPERRY

Attorney at Law

110 North Fifth Avenue

Wilmington, North Carolina 28401

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CERTIFICATE OF SERVICE BY MAIL

THE undersigned, Guy A. Hamlin, Assistant Attorney

General, certifies that he is an attorney at law licensed to

practice in the State of North Carolina, is attorney for the

Department of Justice, and is a person of such age and

discretion as to be competent to serve process.

he served a

d Brief in Opposition to

Petition for a Writ of Certiorari to the United States Supreme

Court by placing said copy in a postpaid envelope addressed

to the persons herein named, at the place and address stated

below, which is the last-known address and by depositing said

a envelopes and contents in the United States mail at Asheville,

y North Carolina.

bh ttibindacs Os

Addressee:

George H. Sperry

110 North Fifth Avenue Post Office

Box 89 Wilmington, North Carolina

28401 Attorney for Petitioner

Assistant cll General

604 Northwestern Bank Building

Asheville, North Carolina 28801

Telephone: (704) 254-0831

A-l

CORRECTED JUDGMENT AND COMMITMENT

STATE OF NORTH CAROLINA In The General Court

of Justice, Superior

County of New Hanover Court Division

The State of North Carolina

vs. Sam John Passarella

In open court, the defendant appeared for trial upon the

charge or charges of Possession with intent to distribute cocaine

and thereupon entered a plea of Not Guilty.

Having been found guilty of the offense of Possession

with intent to distribute cocaine by a Jury which is a violation

of and of the grade of Felony.

It is ADJUDGED that the defendant be imprisoned for

the term of Not less than three (3) nor more than five (5)

years in the Common Jail of New Hanover County assigned

to work under the supervision of the North Carolina

Department of Correction.

It is ORDERED that the Clerk deliver two certified

copies: of this judgment and Commitment to the Sheriff or

other qualified officer and that said officer cause the defendant

to be delivered, with such copies as commitment authority,

to the appropriate official of the State Department of

Correction.

This 24th day of June, 1974.

s/ L. BRADFORD TILLERY

Presiding Judge

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ae. ae

nd

NORTH CAROLINA COURT OF APPEALS

SHEKEKKKKKKKKKKKRKKKKEKRKAKKKEEKES

STATE OF NORTH CAROLINA

NO. 745SC756 FIFTH DISTRICT

SAM JOHN PASSARELLA

RKEKKKKKKKKKEKKKKKKEKKKKKKKKERE

BRIEF FOR THE STATE

(Filed Sep. 16 8:22 AM'74)

KRKEKKKKKKKKKKKKKKKKKKKKKKEKKEKE SE

QUESTION PRESENTED

I. DID THE TRIAL COURT COMMIT ERROR

IN DENYING THE DEFENDANT'S MOTION TO

SUPPRESS THE EVIDENCE THAT WAS

INTRODUCED AT THE TRIAL, VIOLATING HIS

CONSTITUTIONAL RIGHT AGAINST

UNREASONABLE SEARCHES AND SEIZURES?

STATEMENT OF FACTS

The defendant, Sam John Passarella, was charged in a

bill of indictment with the felonious possession of cocaine with

intent to distribute and on a trial before the Honorable L.

Bradford Tillery was found guilty and was given an active prison

sentence of not less than three (3) nor more than five (5) years,

the defendant appeals.

Agent John K. Walker of the North Carolina State Bureau

of Investigation saw the defendant in Fayetteville, North

Carolina, on September 18, 1973, in the presence of two other

white males in a vehicle. While in Fayetteville, North Carolina,

Agent Walker received information from a confidential source

that the defendant had narcotics in his possession and that he

was coming to the Wilmington area. Upon receiving this

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)

)

-v- ) From New Hanover

)

)

- . —— —

OPE ARE GLENS ARE RED OLED PAE he lee

EE rs ee eee

bad

information Agent Walker went to Wilmington where he met

Agent McKinney also of the North Carolina State Bureau of

Investigation and informed Agent McKinney of the information

he had received. Agent Walker knew the confidential source

as he had given him information in the past which had proven

to be correct.

fsa

ed

ba

Agents Walker and McKinney saw the defendant in the

company of two other subjects riding in a vehicle. The agents

stopped the vehicle and conducted a search of the vehicle and

‘passengers. Officer Wolak of the Wilmington Police Department

and Agent McKinney took the defendant to the restroom of

a nearby service station where they searched him finding no

controlled substances.

However, due to the size of the restroom and the number

of occupants a thorough search of the defendant was not

possible. After the defendant had been searched, Agent Walker

received additional new information from a confidential source

who had furnished true and reliable information in the past

that the defendant had methamphetamines on his _ person.

The officers then took the defendant to the New Hanover

County Sheriff's Department where he was held while Agent

obtaining the search warrant, Agent Walker and Agent Hyde

of the U.S. Customs took the defendant into a clinical room

at the New Hanover County Jail, read the warrant to him,

searched him and found cocaine on his person.

Judge Tillery conducted a voir dire examination to

determine the validity of the search warrant and the ensuing

search of the defendant's person. After hearing testimony from

Agent Walker and Officer Wolak, Judge Tillery made findings

of fact and conclusions of law in which he found the search

y warrant and the ensuing search of the defendant valid.

> Following the admission of the evidence and the jury's verdict

yi of guilty the defendant appealed alleging the invalidity of the

search.

-16-

Walker obtained a search warrant from the magistrate. After. ~

ARGUMENT

I. DID THE TRIAL COURT COMMIT ERROR

IN DENYING THE DEFENDANT'S MOTION TO

SUPPRESS THE EVIDENCE THAT WAS

INTRODUCED AT THE TRIAL, VIOLATING HIS

CONSTITUTIONAL RIGHT AGAINST

UNREASONABLE SEARCHES AND SEIZURES?

Assignment of Error No. 1, R p 11

Exception No. 1, R p 11.

Since the defendant does not contest the validity of the

first or original search the only question for determination on

this appeal is the validity of the second search. In support of

his contention of the invalidity of the second search he cites

two cases decided by the North Carolina Supreme Court. State

v. Ratliff, 281 NC 397, 189 SE 2d 179 (1972) and State v.

Robbins, 275 NC 537, 169 SE 2d 858 (1969). Neither of the

cases cited by the defendant supports nor lends credence to

his arguments or contention that the search in the instant case

is invalid. He cites the Robbins case for the general principle

of law that the reasonableness of the search must be determined

by the facts and circumstances of each individual case. Certainly

the State accepts this general principle of law and would

contend that under the facts of this instant case the search

of the defendant's person at the New Hanover County Jail was

completely reasonable. Nowhere in the Ratliff case does the

court intimate by dicta or otherwise that a search such as the

one made of the defendant would be invalid. The Ratliff case

involves the search of a motor vehicle only and at no time

was a search ever made of Ratliff's person.

After an extensive voir dire examination during which

testimony was given by two law enforcement officers one of

whom was Agent Walker who was present when the defendant's

vehicle was stopped and who later obtained the search warrant

and conducted the search at the New Hanover County Jail,

Judge Tillery made extensive findings of fact and upon his

findings of fact concluded as a matter of law that the search

of the defendant was valid. These facts support the conclusion

that the officers had reasonable ground to believe that a felony

had been committed by the defendant and that he might escape

if he were not carried to the New Hanover County Jail and

a>

Pina Wecneeeia ay oe cj raNrrK i

PSSA NEE SE EE

a more extensive search conducted. This is especially true in

view of the new or additional information received by Agent

Walker from a reliable informer. Moreover, the argument could

be made that the second search was merely a continuation

of the original or preliminary search and that it was an incident

to an arrest. State v. Jackson, 280 NC 122, 185 SE 2d 202

(1971). It is obvious that a thorough and proper search could

not be made in a small restroom at a service station with the

defendant and two officers crowded into the room. The

language contained in the Jackson case at page 126 is

appropriate to this situation:

"Narcotics and the implements with which it is sold

and used are small items that can be secreted in

numerous places on the body; an adequate search

obviously required greater privacy than the street

corner. . ."

See also: State v. Streeter, 283 NC 203, 195 SE 2d 502

(1973); State v. Roberts, 276 NC 98, 171 SE 2d 440 (1970).

Agent Walker acting on a tip from a reliable informer

had stationed himself along with other officers 0.\ a street in

Wilmington to wait for the defendant who, according to the

informer, had narcotics in his possession. Following the

preliminary search of the defendant at the service station

restroom, Agent Walker received new and additional

information from the informer that the defendant had the

controlled substance, methamphetamines, on his person and

that the confidential source had seen a controlled substance.

Accepting the defendant's arguments and contentions then at

this point the officers must release the defendant since the

defendant had been searched in the service station restroom.

Such a contention is not the law. Moreover, had the officers

acted as the defendant contends they should have, they would

have breached their duties as law enforcement officers. The

information furnished by the informer and the circumstances

required that the officers act exactly as they did. In conducting

the search at the New Hanover County Jail, they violated no

constitutional right of the defendant. In fact, the defendant

does not attack the validity of the search warrant or of the

second search itself, but makes the broad assertion unsupported

by any applicable authority on point that the second search

-18-

Bese rkee wir ones oma Re SRR RCI Re FT ELT ROR RELAIS Mave et

is invalid because of the service station restroom search. The

validity of the search at the New Hanover County Jail does

not depend on the search at the service station restroom but

stands or falls on its own feet.

Although the statement of the case on the case on appeal

does not indicate that the defendant was placed under arrest,

and the trial judge did not make any such findings in his

findings of fact following the voir dire examination, there is

no doubt that the search at the New Hanover County Jail with

or without a search warrant would be free of any questions

as to validity had the defendant been placed under arrest after

the vehicle in which he was a passenger was stopped. In State

v. Jones, 9 NC App 661, 177 SE 2d 335 (1970) and State

v. Parker, 11 NC App 648, 182 SE 2d 264 (1971) the Court

of Appeals held that subsequent searches at the jail following

~ an arrest was valid. In Jones the defendant was arrested as an

escapee from prison and frisked down upon arrest. A search

at the jail produced evidence which was used against Jones in

a forgery charge. In Jackson the defendant was arrested for

possession of narcotic drugs and a search upon his arrest failed

to reveal any narcotics. A subsequent search was made of

Jackson at the jail and LSD was found in his clothing. Under

State v. Jackson, supra, the defendant could be considered to

be under arrest. He was taken to the New Hanover Sheriff's

Office where he was held while a search warrant was obtained

and then searched. The defendant was deprived of his liberty

as he certainly was not free to leave.

CONCLUSION

It is the State's position that the defendant's assignment

of error is without merit. The defendant's contention not only

is not the law but cannot be the law. To accept the defendant's

argument would require law enforcement officers to make an

election of searching at the scene or taking the suspect to the

police station and searching with a-warrant. Such a requirement

would be a heavy burden on law enforcement personnel in the

detection and investigation of criminal conduct. It is not

reasonable or practical to make such a requirement of police

officers. In the final analysis as the defendant concedes and

as stated in State v. Robbins, supra, the reasonableness of the

search must be determined by the facts and circumstances of

-19-

each case. For the reasons set forth above, the State contends

that there was no prejudicial error in this case and that the

verdict should be sustained.

Respectflly submitted this the 13th day of September,

1974.

JAMES H. CARSON, JR.

Attorney General

R. BRUCE WHITE, JR.

Deputy Attorney General

s/ ZORO J. GUICE, JR.

Assistant Attorney General

A-3

STATE OF NORTH CAROLINA v. SAM JOHN PASSARELLA

No. 745SC756

(Filed 6 November 1974)

APPEAL by defendant from Tillery, Judge, 1 April 1974

Session of Superior Court held in NEW HANOVER County.

Heard in the Court of Appeals 15 October 1974.

Defendant was charged with possession with intent to

distribute a controlled substance, cocaine, in violation of G.S.

90-95(a) (1). Upon the jury's verdict of guilty, the trial judge

imposed a sentence of not less than three years nor more than

five years.

The State presented evidence which tended to show that

law enforcement officers were advised by a previously reliable

confidential informant that defendant had _ controlled

substances in his possession; that on the basis of this

information officers stopped an automobile in which the

defendant was riding in Wilmington, North Carolina; that

officers immediately conducted a strip search of defendant and

all other occupants of the automobile in the rest room of a

nearby service station but found no controlled substances; that

following the search, officers received additional new

information from the same confidential informant that he had

observed a controlled substance on defendant's person a short

time before the automobile was stopped; that on the basis of

this new information officers took the defendant to the New

Hanover Sheriff's Department where they obtained a search

warrant for his person; and that officers conducted a second

and more thorough search of defendant pursuant to the search

warrant and found controlled substances on his person in

violation of the law.

The defendant did not testify in this case nor offer any

evidence. By way of cross-examination of the State's witnesses,

however, defendant brought out evidence tending to show that

of the three men who were in the automobile he was the only

one served with a search warrant and that he was the only

21.

one who was carried to the jail and caused to be stripped of

his clothing and his body searched; that the rest room in which

he initially was searched was not a place of his own choosing;

and, finally, that after he was taken to the Sheriff's

Department, a considerable time period elapsed before the

materials which were offered into evidence were discovered.

Attorney General Carson, by Deputy Attorney General

White and Assistant Attorney General Guice, for the State.

Burney, Burney, Sperry & Barefoot, by George H.

Sperry, for defendant appellant.

MORRIS, Judge.

Defendant's only assignment of error relates to the denial

of his motion to suppress the evidence that was introduced

at trial. He does not contest the validity of the original search,

but argues that the subsequent search of his person violated

his constitutional rights against unreasonable searches and

seizures. Defendant maintains that in these circumstances

officers had the right either to search him immediately or take

him to the courthouse, get a search warrant and then .onduct

a search. He argues that officers cannot be allowed to do both.

We find no merit in this contention.

Defendant's broad assertion is unsupported by applicable

law, nor do we feel such a rule should be the law. In our

opinion, to require the officers to make such an election under

these circumstances would place too heavy a burden on law

enforcement officers in the detection and investigation of

criminal conduct. We conclude it would be neither reasonable

nor practical to bind law enforcement officers to an election.

Additionally, we note that on voir dire the trial judge

in this case made extensive findings of fact and based on these

findings concluded as a matter of law that the search of the

defendant was valid. "These findings of fact by the trial judge

are conclusive when, as here, they are supported by competent

evidence." State v. Bass, 280 N.C. 435, 445, 186 S.E. 2d 384

(1972), and cases cited therein.

The trial judge's findings in this case support the

conclusion that the officers had reasonable ground to believe

2%.

by "7 PR en er a eee

Bt ’ CORIKI LT POOL A ay

that a felony had been committed by the defendant and that

he might escape if he were not carried to the Sheriff's

Department and a more extensive search conducted, the officer

having testified and the court having found as a fact that

because of the restricted area of the room and the size of the

occupants, the body search conducted in the rest room was

not a thorough search. The new or additional information

received from the informer was additional reason for a more

thorough search.

No error.

Judges HEDRICK and BALEY concur.

A4

State's Supplemsntal Brief in

the North Carolina Supreme Court

A4

No. 6 FIFTH DISTRICT

SUPREME COURT OF NORTH CAROLINA

Spring Term 1975

RHREKEKKEAKKKKREKEERKEKEKEKEE

STATE OF NORTH CAROLINA

)

)

~v- ) New Hanover

)

SAM JOHN PASSARELLA )

REEKKKKKKHKERERKEKAKEKKKKEEE

SUPPLEMENTAL BRIEF FOR THE STATE

SREKKKKEKEKKKEKKERARAKEEKREEEE

QUESTION PRESENTED

§ DID THE TRIAL COURT COMMIT ERROR

IN DENYING THE DEFENDANT'S MOTION TO

SUPPRESS THE EVIDENCE THAT WAS

INTRODUCED AT THE TRIAL, VIOLATING HIS

CONSTITUTIONAL RIGHT AGAINST

UNREASONABLE SEARCHES AND SEIZURES?

STATEMENT OF FACTS

The facts in this case have been set forth in considerable

detail in the record prepared for the Court of Appeals, in the

appellant's brief in Court of Appeals, and in the State's brief

in the Court of Appeals. It is believed that setting forth these

facts again would be unnecessary repetition and would add

nothing to the case here. Suffice to say, the defendant was

found guilty of possession with intent to distribute cocaine,

received an active prison sentence and appealed. The Court of

Appeals in a unanimous decision affirmed the judgment and

now the defendant seeks to appeal to the Supreme Court of

North Carolina alleging a substantial question arising under the

Constitution of the United States and of the State of North

-24-

RPE S AAEM I RI ARAL IRE I TT ET AIO OMA TEL I PENNER B Med

Bec aN ae eset

Carolina or in the alternative -requests this court to grant

certiorari.

ARGUMENT

I. DID THE TRIAL COURT COMMIT ERROR

IN DENYING THE DEFENDANT'S MOTION TO

SUPPRESS THE EVIDENCE THAT WAS

INTRODUCED AT THE TRIAL, VIOLATING HIS

CONSTITUTIONAL RIGHT AGAINST

UNREASONABLE SEARCHES AND SEIZURES?

Assignment of Error No. | (R p 11)

Exception No. 1 (R p 11)

Appellant is presenting to this court the identical

question which was involved in the court below. In his

supplemental brief he comments about the cases cited by the

State in its brief in the Court of Appeals and again cites and

relies on State v. Ratliff, 281 NC 397, 189 SE 2d 179 (1972).

In this supplemental brief the State hereby incorporates

its brief filed in the Court of Appeals and respectfully requests

that this court take notice of the statement of facts and the

argument set forth in that brief.

No authority other than Ratliff is cited by the defendant

to support his contentions of what he SHOULD BE the law

(emphasis added). The State submits that Ratliff does not

control the facts of this case as Ratliff involves the search of

a motor vehicle. In this case the search was made of the

defendant's person and not of an automobile. In Ratliff a

Cumberland County Deputy Sheriff, Douglas Hartley, was on

patrol when he saw the defendant sitting in an automobile

parked in the lot of a furniture store. The dome light of the

car was on, and the defendant appeared nude. As the officer

pulled into the lot the defendant started to pull out. The officer

noticed the defendant make a motion like he was knocking

something from his lap onto the floorboard of the car. As the

officer approached the car, he saw the defendant sitting under

the wheel of the vehicle with a knife in his hand. Upon laying

the knife down at the officer's request, the defendant made

a kicking motion as if he were kicking something under the

seat. When the defendant got out, the officer reached under

-25-

Si a RIAL LIS OES OF 0 SAR ao RR: 8 FEE DCA ES

the seat and found a .22 caliber revolver containing six live

shells and three empty chambers.

The defendant made some statements about shooting a

woman, and the officer made an examination of the defendant's

car. He found a hatchet, a lady's necklace-type watch, and some

wet dollar bills stuffed between the seat and console. Later

that morning the officer found two empty .22 long rifle casings

in the parking lot where the defendant's car had been parked,

and he found an army identification card in the back seat of

the patrol car where the defendant had been placed when

arrested. The identification card was issued to the deceased.

At his trial the defendant contended that the warrantless

search of his automobile was illegal. The court held that an

automobile could be searched if there was probable cause and

that probable cause existed. The court stated: "If there is

probable cause to search an automobile, the officer may either

seize and hold the vehicle before presenting the probable cause

issue to a magistrate, or he may carry out an immediate search

without a warrant." This statement is the basis for the

defendant's contentions and arguments in the case now before

the court.

It is obvious that Ratliff does not cover the instant case

before the court. The defendant's contentions are not now the

law of North Carolina and never have been. Nevertheless, the

defendant would have this court rule according to what he

contends the law should be and not on what the law is.

The State feels that if the defendant's contentions were

the law, that iaw enforcement personnel would be hamstrung

in their detection and investigation of criminal conduct. The

following statement by the Court of Appeals in its opinion

in this case is very appropriate:

".. .In our opinion, to require the officers to make

such an election under these circumstances would

place too heavy a burden on law enforcement

officers in detection and investigation of criminal

conduct. We conclude it would be neither

reasonable nor practical to bind law enforcement

officers to an election."

-26-

PRE ETS NT EGS LOS MEE SE PLO EII TG GOO LN TIO RE, OE

Moreover, it is not reasonable to assume that there is

or will be widespread harrassment of citizens, as the defendant

argues, unless law enforcement officers are required to make ~

an election.

Certainly no one would argue that there should not be

protection against unreasonable and unwarranted searches and

seizures. That is fundamental in the United States and North

Carolina Constitutions. As stated in State v. Robbins, 275 NC

537, 169 SE 2d 858 (1969) what is reasonable varies from

case to case and must be determined by the facts and

circumstances’ of each individual case. Viewing all the facts

and circumstances of this case the second search was reasonable

in the protection of the rights of the public and not

unreasonable in the protection of the individual citizen in his

privacy. Justice Pless put it this way in State v. Bumpers, 270

NC 521, at p 530, 155 SE 2d 173 (1967):

"The object of government is to protect the rights

of the public-the people. Otherwise, there is no

reason for it- and the individual would have to

protect his home, his possessions, and his family.

In protecting the public, we must always remember

that innocent persons may be unjustly accused, and

their rights, too, must be safeguarded. But we must

not become too zealous in protecting the accused

that we overlook and ignore those who have been

robbed, raped and murdered.

"The United States and North Carolina

Constitutions wisely and _ properly inhibit

unreasonable and unwarranted searches. These

provisions are not intended to shield the

criminal-they are to protect the innocent citizen in

his privacy, and to make every man's home his

castle. They should not give to a criminal an

impenetrable fortress in which he can barricade

himself against all guilt."

Furthermore, as stated by the Court of Appeals, the trial

judge held a voir dire hearing and made findings of fact and

conclusions of law based on the findings of fact. These findings

27.

of fact were supported by competent evidence and are

conclusive. State v. Bass, 280 NC 435, 186 SE 2d 384 (1972).

It should be noted, as pointed out by the Court of

Appeals in its opinion and also found by the trial judge in

his findings of fact, that the first search was not a thorough

one as it was conducted in a service station restroom with

limited space and with several persons present. Moreover,

additional new information was received after the initial search

causing the officers to take the defendant to the New Hanover

Sheriff's Department, obtain a search warrant, and conduct a

thorough search of the defendant. Had the officers not acted

as they did, they would have been derelect in their duties as

law enforcement officers.

CONCLUSION

It is the appellee's contention before this court, as it

was before the Court of Appeals, that the appellant's

Assignment of Error is without merit. His contention not only

is not the law but cannot be the law. For the reasons set forth

above and in the brief filed in the Court of Appeals, the State,

appellee, contends that there was no prejudicial error

committed in the trial of this case and that the judgment

appealed from should be affirmed.

Respectfully submitted this 13th day of December, 1974.

RUFUS L. EDMISTEN

Attorney General

R. BRUCE WHITE, JR.

Deputy Attorney General

s/ Zoro J. Guice, Jr.

Assistant Attorney General

604 Northwestern Bank Building

Asheville, North Carolina 28801

(704) 254-0831

No. 6 FIFTH DISTRICT

SUPREME COURT OF NORTH CAROLINA

Spring Term 1975

EEKEEKEREKEREREEEEEEEREEEE SE

STATE OF NORTH CAROLINA JUDGMENT

DISMISSING APPEAL

-V-

Nee Nee Nee ee ee”

SAM JOHN PASSARELLA (745SC756)

REREKEKRESAKAAEKEEKEKEKEKE REESE

This matter came on to be considered upon motion of

the Attorney General to dismiss the appeal of the defendant

for lack of substantial constitutional question; upon

consideration whereof, it is adjudged by the Court here, that

the motion to dismiss the appeal be allowed; and that it be

so certified to the said North Carolina Court of Appeals to

the intent its decision be affirmed:

And it is considered and adjudged further that the

defendant do pay the sum of THIRTY-SIX and 15/100

($36.15) DOLLARS and execution issue therefor.

Witness my hand and the seal of the Supreme Court,

this the 30th day of December, 1974.

Adrian J. Newton

Clerk of the Supreme Court

of North Carolina

By:

John R. Morgan

Assistant Clerk

Burney, Burney, Sperry & Barefoot, Attorneys at Law

R. Bruce White, Jr., Deputy Attorney General

Zoro J. Guice, Jr., Assistant Attorney General

W. Allen Cobb, District Attorney

-29-

Rie eB

Sia

A-6

CASE CITATIONS

Carroll v. United States,

267 U.S. 132, 69 L. Ed. 543,

45 S. Ct. 280 (1925)

Chambers v. Maroney,

399 U.S. 42, 26 L. Ed 2d 419,

90 S. Ct. 1975 (1970)

Draper v. United States,

358 U.S. 307, 3 L. Ed. 327,

79 S. Ct. 329 (1959)

Gilliam v. United States,

189 F. 2d 321 (6th Cir. 1951)

Gilliam v. United States,

374 U.S. 23, 10 L. Ed. 2d 726,

83 S. Ct. 1623 (1963)

McCray v. Illinois,

386 U.S. 300, 18 L. Ed. 2d 62,

87 S. Ct. 1056 (1967)

Mapp v. Ohio,

367 U.S. 643, 6 L. Ed. 2d 1081,

81 S. Ct. 1684 (1961)

Miller v. United States,

357 U.S. 301, 2 L. Ed. 2d 1332,

78 S. Ct. 1190 (1958)

Petteway v. United States,

261 F. 2d 53 (4th Cir. 1958)

Rios v. United States,

364 U.S. 253, 4 L. Ed. 2d 1688,

80 S. Ct. 1431 (1960)

Sgro v. United States,

287 U.S. 206, 77 L. Ed. 260,

53 S. Ct. 138 (1932)

United States v. Bradshaw,

490 F. 2d 1097 (4th Cir. 1974)

-30-

United States v. Gonori,

437 F. 2d 312 (4th Cir. 1971)

United States v. Neal,

500 F. 2d 305 (10th Cir. 1974)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fourteenth Amendment to the Constitution of the United

States

Fourth Amendment to the Constitution

of the United States

Title 28 of the United States Code,

Section 1257 (3)