State v. Collins

248 S.E.2d 405 (1978)

38 N.C. App. 617

STATE of North Carolina v. Carter Fagg COLLINS.

No. 782SC365.

Court of Appeals of North Carolina.

November 7, 1978.

*406 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. J. Chris Prather, Raleigh, for the State.

Wilkinson & Vosburgh by James R. Vosburgh, Washington, for defendant-appellee.

VAUGHN, Judge.

The statement of facts by the assistant district attorney must be treated as a stipulation of facts. There is no evidence to weigh or credibility to consider. The only question before us, therefore, is the admissibility of the evidence on that statement of facts, even though all of those facts are not set out in the judge's order.

Evidence must be suppressed if its exclusion is required by the Constitution of the United States or the Constitution of the State of North Carolina.

When all of the stipulated facts are considered and, as they must be, taken as true, nothing appears that requires suppression of the evidence in this case. There was clearly no impropriety in stopping the subject *407 vehicle which was being operated by a drunken driver. Defendant, a passenger in the front seat of the vehicle, also appeared to be intoxicated and had, between his feet, a one-half gallon jug of fortified wine and a pint bottle of vodka. The officers were justified in asking defendant to step out of the vehicle to complete their investigation. The officer then saw what appeared to be a knife bulging from defendant's pocket. When he attempted to remove what he thought was a weapon, the marijuana was discovered. None of defendant's constitutional rights were thereby transgressed.

In Pennsylvania v. Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977), Mimms was stopped for a routine traffic violation. The officer asked him to step out of the car and produce his registration card and driver's license. When he did so, the officer observed a bulge under his sport jacket. Fearing the bulge might be a weapon, the officer frisked Mimms and discovered a loaded revolver. He arrested him for carrying a concealed weapon. Another revolver was found on the person of the other occupant of the car. The Supreme Court held that where there is no question about the propriety of the initial restrictions upon the person's movement, the additional intrusion resulting from asking the occupants of a car to step out are well justified as a precautionary measure for the protection of the officer. When there are reasonable grounds to order an occupant out of the car, then he may be subjected to a limited search for weapons when the facts available to the officer justify the belief that such an action is appropriate. See also Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973); State v. Bridges, 35 N.C.App. 81, 239 S.E.2d 856 (1978).

We hold that the court erred in ordering the suppression of the State's evidence in this case. The order is, therefore, reversed.

Reversed.

ROBERT M. MARTIN and MITCHELL, JJ., concur.