State v. Weavil

WELLS, Judge. By his assignments of error, defendant contends that the trial court erred in finding that he consented to the search of the trunk of his car and in concluding that the evidence seized should not be suppressed since it was the product of a valid consent search.1 Evidence seized during a warrantless search is admissible if the State proves that the defendant freely and voluntarily, without coercion, duress or fraud, consented to the search. State v. Long, 293 N.C. 286, 237 S.E. 2d 728 (1977). In determining whether consent is free and voluntary, we must look to the totality of the circumstances which were present at the time of the search. State v. Powell, 297 N.C. 419, 255 S.E. 2d 154 (1979); State v. Long, supra. If consent is given after a claim of authority, the consent may be invalid. See Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed. 2d 797 (1968) (consent given after officer said he had a search warrant was held invalid). Yet it is clear that a defendant may give valid consent to a search even after he has been placed under arrest. State v. Long, supra. Moreover, there is no requirement that a defendant be given a warning that he has the right to refuse to consent to a search. State v. Frank, 284 N.C. 137, 200 S.E. 2d 169 (1973). Where a defendant has been given his Miranda warnings prior to consenting to a search, that fact has been considered as a factor tending [711] to validate consent. See, e.g., State v. Powell, supra; State v. Long, supra; State v. Frank, supra. The findings of fact in the present case are supported by competent evidence and, therefore, they are binding on this court. State v. Crews, 286 N.C. 41, 209 S.E. 2d 462 (1974), cert. denied, 421 U.S. 987, 95 S.Ct. 1990, 44 L.Ed. 2d 477 (1975); State v. Pike, 273 N.C. 102, 159 S.E. 2d 334 (1968). The facts found support the trial court’s conclusion that “defendant opened the trunk voluntarily and gave his consent to the officer looking inside the trunk.” Defendant had been warned as to his Miranda rights. He opened the trunk to his car upon a single request from the investigating officer. There is no evidence that defendant was coerced by threats, promises or show of force. Although defendant had been warned of his Miranda rights prior to consenting to the search, he does not dispute the State’s evidence which shows that he was not placed under arrest until after the trunk was opened and the officer found the contraband. Defendant’s motion to suppress the evidence seized from the trunk of his car on the grounds that he did not consent was properly denied by the trial court. Affirmed. Judges Vaughn and Whichard concur. Footnotes [1] Defendant does not contend that Burton had no probable cause to stop defendant’s car. That question is therefore not before us.