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35 N.C. App. 239

State v. Paschal

Court of Appeals of North Carolina

Decided February 7, 1978

Court of Appeals of North Carolina · decided 1978-02-07

Cited by 4 later decisions — most recently July 2014

4 state decisions

Relies on Chambers v. Maroney · State v. Vestal · State v. Ratliff

Good law ✅— No negative treatment on recordhow we know

Decided 1978-02-07

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WEBB, Judge.

¶1Defendant by this appeal questions the legality of the search of his automobile and the search of his person. We will not discuss or decide whether the “frisk” search of defendant’s person violated any of his rights since the defendant was not charged with illegal possession of the materials found on his person.

¶2The sole question before this Court is whether the consent to search was voluntary or coerced. Defendant does not dispute that “a law enforcement officer may conduct a search and make seizures, without a search warrant or other authorization, if consent to the search is given.” G.S. 15A-221(a). Defendant contends, *241however, that the consent given was not “freely and intelligently given, without coercion, duress, or fraud . . . State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971).

¶3In support of his contention, defendant argues that the threat by Officer Costner to impound his vehicle constituted duress and negated the free and voluntary requirement of a valid consent. We do not believe that a threat to do what the officer had a legal right to do can constitute duress in the setting of this case. “As a general rule, it is not duress to threaten to do what one has a legal right to do. Nor is it duress to threaten to take any measure authorized by law and the circumstances of the case.” 25 Am. Jur. 2d, Duress and Undue Influence, § 18, p. 375. The United States Supreme Court has held that impoundment of a vehicle while a law enforcement officer obtains a warrant is a legal alternative to a warrantless search. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed. 2d 419 (1970), see also State v. Ratliff, 281 N.C. 397, 189 S.E. 2d 179 (1972). As stated by the Court in Chambers v. Maroney, supra:

“For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.”

¶4399 U.S., at 52

¶5Under the facts of this case, Officer Costner had probable cause to search defendant’s car after he observed a strong odor of marijuana coming from the car and a roach clip, roller papers and a marijuana cigarette in the ashtray. Since Officer Costner had probable cause to search defendant’s car, his threat to impound the car was a threat to take action fully authorized by law. Therefore, we hold that Officer Costner’s threat to impound defendant’s car did not constitute duress and negate the voluntary character of defendant’s consent to search.

¶6Defendant’s second contention that the second consent was given only after the passenger in the vehicle had been arrested and a second police officer had arrived on the scene, and was therefore a product of duress does not merit discussion.

¶7*242We find no error in denying defendant’s motion to suppress the evidence obtained by this search.

¶8Affirmed.

Judges Britt and Hedrick concur.
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