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Docket Number

No. 7414SC614

Attorney(S)

Attorney General Carson, by Associate Attorney Sammy R. Kirby, for the State. Michael C. Troy, for defendant appellant.

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STATE OF NORTH CAROLINA v. JOHNNY EDWARD ZIMMERMAN
North Carolina Court of Appeals — Filed 6 November 1974; No. 7414SC614

Factual and Procedural Background

Defendant Johnny Edward Zimmerman was indicted for felonious possession with intent to distribute a controlled substance (more than five grams of marijuana). State evidence included exhibits from the search of an apartment and a stipulated SBI laboratory report identifying the seized green vegetable substance as marijuana. Officer Fuller obtained a search warrant for 604 Barnes Avenue. Fuller observed the house, saw defendant leave, and followed and stopped defendant. Defendant was informed of the warrant and denied living at 604 Barnes Avenue, but drove Officer Ray back to that address. At the address, Officer Ray produced a key taken from defendant's car after observing defendant make a furtive movement and place something in the front seat; the key opened the front door. Upon entry and search, officers discovered two caches of marijuana. Officer Fuller testified defendant made a volunteered remark about "leaving my smoking stuff in the fuse box." Defendant offered no evidence at trial. A jury returned a verdict of guilty of possession with intent to distribute and the defendant received a sentence of not less than three nor more than five years. Defendant appealed from Brewer, Judge, Durham County Superior Court; the appeal was argued before the Court of Appeals on 23 September 1974.

Legal Issues Presented

Whether the trial court erred in admitting Officer Fuller's references to 604 Barnes Avenue as defendant's "house" or "place of residence."
Whether Officer Fuller's testimony that defendant ran a red light prejudiced the defendant's case.
Whether an officer's warrantless search of the front seat of defendant's automobile and seizure of a key taken from the car was lawful.
Whether testimony that seized bags of marijuana are known on the street as "ounce bags" was relevant to intent to distribute.
Whether cigarette wrapping papers, a smoking pipe, and a traffic citation — items not listed in the search warrant authorizing a search for marijuana — were admissible evidence.
Whether statements made by defendant to officers were admissible as volunteered, non-custodial statements.
Whether the trial court erred in instructing the jury on possession with intent to distribute without instructing on the lesser included offense of simple possession.

Arguments of the Parties

Defendant's Arguments

Objected to frequent characterizations of 604 Barnes Avenue as defendant's "house" or "place of residence."
Contended Officer Fuller's reference that defendant ran a red light prejudiced the jury.
Argued the key taken from defendant's car was obtained by an illegal, warrantless search of the automobile.
Sought suppression of cigarette wrapping papers, a smoking pipe, and a traffic citation because the warrant authorized a search only for marijuana and those items were not particularly described in the warrant.
Challenged admission of defendant's statements to officers as not being voluntary or as being the result of custodial interrogation.
Contended the court should have instructed the jury on the lesser included offense of simple possession.

State's Arguments

Maintained that the characterization of the premises as defendant's residence was admissible and that defendant failed to preserve objection on some occasions (waiver).
Argued the passing reference to a traffic violation did not affect the verdict and any error was harmless.
Asserted that Officer Ray had probable cause to search the car's front seat after observing a furtive movement and therefore lawfully seized the key.
Contended testimony that bags were known as "ounce bags" was relevant to intent to distribute.
Argued the traffic citation could be seized under principles articulated in Warden v. Hayden (eliminating strict distinction between "mere evidence" and instrumentalities/fruits) and other authorities.
Maintained the statements by defendant were volunteered and admissible.
Argued there was no evidentiary basis requiring an instruction on simple possession as a lesser included offense.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Owens, 277 N.C. 697, 178 S.E.2d 442 (1971)	Rule that when evidence is admitted over objection but the same evidence is admitted without objection at other times, the benefit of the objection is ordinarily lost.	Applied to hold that defendant's intermittent objections to characterizing 604 Barnes Avenue as his residence were waived where similar testimony was admitted without objection.
State v. Williams, 13 N.C. App. 423, 185 S.E.2d 604 (1972)	Authority that the word "residence" may function as a shorthand statement of fact describing where an officer went to execute a search warrant.	Used to support the admissibility of an officer's reference to the address as defendant's "place of residence."
State v. Barrow, 6 N.C. App. 475, 170 S.E.2d 563, aff'd 276 N.C. 381, 172 S.E.2d 512 (1970)	Burden on defendant not only to show error but that the error affected the result adversely (harmless-error principle).	Applied to overrule defendant's assignment regarding the passing reference to running a red light as not shown to be prejudicial.
Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 20 L.Ed.2d 538, 88 S.Ct. 1472 (1968)	Statement that automobiles may be searched without a warrant when officers have reasonable or probable cause to believe they will find instrumentality or evidence before beginning a warrantless search.	Quoted and relied upon for the principle that probable cause is required for a warrantless automobile search.
State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179 (1972)	North Carolina authority discussing permissible circumstances for warrantless automobile searches.	Referenced in support of the rule requiring probable cause for vehicle searches.
State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973)	Describes circumstances allowing a warrantless search of a vehicle when probable cause exists and exigent circumstances make obtaining a warrant impracticable.	Used to frame the analysis for when a vehicle search is permissible.
45 A.L.R.3d 581 (1972) (Annotation)	Discussion that a furtive movement under certain circumstances can justify a search.	Cited to support that Officer Ray's observation of a furtive movement could justify examining the item placed in the front seat of the car.
State v. Covington, 22 N.C. App. 250, 206 S.E.2d 361 (1974)	Competency of a police officer to testify concerning drug traffic terminology and practices.	Applied to sustain admission of Officer Fuller's testimony that seized bags were known as "ounce bags" relevant to intent to distribute.
Marron v. United States, 275 U.S. 192, 72 L.Ed. 231, 48 S.Ct. 74 (1927)	General rule that items not particularly described in a search warrant generally may not be seized; warrants must particularly describe items to be seized.	Recognized as the general rule but discussed alongside exceptions for instrumentalities, fruits, contraband, and later developments.
United States v. Bridges, 419 F.2d 963 (1969)	Holds narcotics paraphernalia fall within instrumentalities of a crime.	Relied upon to conclude that cigarette papers and a smoking pipe were instrumentalities and therefore admissible despite not being named in the warrant.
Warden v. Hayden, 387 U.S. 294, 18 L.Ed.2d 782, 87 S.Ct. 1642 (1967)	Permitted seizure of "mere evidence" in the context of a lawful but warrantless search incident to hot pursuit/arrest; discussion that blurred the mere-evidence/instrumentalities distinction.	Considered by the court in addressing whether the scope of permissible seizures under a warrant had been enlarged to include "mere evidence."
United States v. Dzialak, 441 F.2d 212, cert. denied, 404 U.S. 883 (1971)	Contrary authority cited concerning the scope of seizure of mere evidence.	Cited as an authority with an opposing view to the broader application of Hayden.
Crawford v. State, 9 Md. App. 624, 267 A.2d 317 (1970)	Applied Hayden to allow seizure of pawn tickets under a warrant for narcotics where police believed pawn tickets were incriminating evidence.	Discussed as an example where courts have allowed seizure of items not described in the warrant when believed to be incriminating.
People v. Baker, 23 N.Y.2d 307, 244 N.E.2d 232 (1968)	Refused to allow seizure of an item not described in a warrant and criticized reliance on Hayden where warrants were involved.	Quoted to illustrate opposing authority that emphasizes the continuing force of Marron in warrant-executions.
State v. Newsom, 284 N.C. 412, 200 S.E.2d 617 (1973)	State precedent indicating some change in the law respecting seizure of items not described in a warrant.	Invoked to justify re-examining the proper test for seizure of items not described in a search warrant.
State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974)	Upheld seizure of items (shotgun shells) observed inadvertently in plain view where officers were lawfully present.	Used to support the plain-view/inadvertent discovery principle allowing seizure of items not described in a warrant.
Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971)	Plurality opinion commented that if police know the location of an item omitted from a warrant and intend to seize it, the particularity requirement is violated.	Quoted to emphasize the negative inference that inadvertent discovery differs from known, intentional seizure of unspecified items.
State v. Hardy, 17 N.C. App. 169, 193 S.E.2d 459 (1972)	Volunteered statements are competent evidence and their admission is not barred by state or federal law.	Applied to uphold admission of defendant's statements found to be volunteered and not the result of custodial interrogation.
State v. Aikens, 22 N.C. App. 310, 206 S.E.2d 348 (1974), cert. granted, 285 N.C. 662, 207 S.E.2d 763 (1974)	Discusses whether possession of marijuana is a lesser included offense of possession with intent to distribute.	Noted by the court but the opinion concluded there was no evidence to require an instruction on simple possession.
State v. Wilson, 14 N.C. App. 256, 188 S.E.2d 45 (1972)	Establishes that a mere contention that a jury might accept part of the State's evidence and reject part will not require charging on lesser degrees without supporting evidence.	Applied to conclude the trial court was not required to instruct on simple possession absent evidence supporting that lesser offense.

Court's Reasoning and Analysis

The opinion addresses each of defendant's assignments of error in turn and applies established legal principles and precedents to the facts shown by the record.

Admission of "residence" characterizations: The court observed that defendant failed to preserve objections to Officer Fuller's references to 604 Barnes Avenue as defendant's "house" or "place of residence" on several occasions. Relying on State v. Owens, the court applied the rule that when the same evidence is admitted without objection at other times, an earlier objection is ordinarily lost. The court further relied on State v. Williams to accept that the officer's use of the word "residence" can function as a shorthand factual description of where the officer went to execute the warrant.

Reference to running a red light: The court treated this as a passing reference that did not show prejudice affecting the result. Applying the harmless-error principle articulated in State v. Barrow, the court overruled the assignment because defendant did not demonstrate that the remark adversely affected the verdict.

Warrantless search of automobile/front-seat key: The court analyzed whether Officer Ray lawfully seized the key taken from defendant's car. It summarized the authorities that automobiles may be searched without a warrant when officers have probable cause to believe they will find evidence or instrumentalities of a crime. The court noted A.L.R. authority that furtive movements can sometimes justify a search. Finding that Officer Ray observed defendant make a furtive movement placing something into the front seat as they arrived at the address (a place defendant had denied living but for which a search warrant existed), the court concluded the officer lawfully examined the front seat, discovered keys, and seized the key because probable cause existed to believe the key could be evidence bearing on defendant's guilt. Accordingly, this assignment was overruled.

Relevance of "ounce bags" testimony: The court applied the basic relevancy standard (that evidence having any logical tendency to prove a fact in issue is relevant). Given the charge of possession with intent to distribute, Officer Fuller's testimony that the seized bags are known on the street as "ounce bags" was held relevant to the issue of intent to distribute; State v. Covington was cited in support of officer testimony about drug traffic terminology.

Seizure of items not described in the warrant (papers, pipe, traffic citation): The court began with Marron’s general rule that warrants must particularly describe items to be seized and acknowledged Marron’s exception for instrumentalities, fruits, or contraband. It held that cigarette wrapping papers and a smoking pipe were narcotics paraphernalia (instrumentalities) and thus admissible (citing United States v. Bridges). Regarding the traffic citation, the court engaged the Warden v. Hayden line of authority and subsequent decisions to consider whether a narrower Marron rule remained applicable or whether the scope had broadened. The court framed and adopted a three-part test for seizing items not described in a search warrant: (1) a nexus between the item and criminal behavior, (2) the item is in plain view, and (3) discovery was inadvertent (officers did not know the item's location beforehand and did not intend beforehand to seize it). The court relied on State v. Carey and quoted Coolidge to support the idea that intentional prior knowledge of an item's location differentiates an improper seizure from a permissible inadvertent discovery. Applying the three-part test, the court concluded the traffic citation was in plain view, likely probative of residence (nexus), and was discovered inadvertently in the course of a lawful execution of the warrant; therefore its seizure and admission were permissible.

Voluntariness of defendant's statements: After voir dire, the trial court found the challenged statements were volunteered and not the product of custodial interrogation. The Court of Appeals applied State v. Hardy to hold that volunteered statements are competent and admissible, overruling the related assignments.

Jury instruction on lesser included offense: The court noted that while possession might be a lesser included offense of possession with intent to distribute (citing State v. Aikens), there was no evidence in the record to support a charge on simple possession. Citing authority that a trial court need not charge a jury on lesser degrees absent supporting evidence (State v. Wilson), the court found no error in the instructions given.

Having addressed the assignments of error, the court concluded the defendant's remaining assignments lacked merit and were overruled.

Holding and Implications

Holding: The Court of Appeals affirmed the conviction — No error (the trial court's rulings were upheld and the defendant's assignments of error were overruled).

Implications:

Direct effect on the parties: The defendant's conviction for possession of marijuana with intent to distribute and the sentence of three to five years stand as affirmed by the Court of Appeals.
Evidentiary consequences: The court approved (1) admissibility of an officer's shorthand references to a premises as a "place of residence" where appropriate and where objections were not preserved, (2) admissibility of officer testimony that drug packaging was known as "ounce bags" as relevant to intent to distribute, (3) admission of volunteered statements after proper voir dire, and (4) seizure under a search warrant of certain items not described therein when they meet the court's three-part test (nexus to criminal behavior, plain view, and inadvertent discovery).
Search-and-seizure guidance: The opinion articulated and applied a three-part test governing the admissibility of items not described in a search warrant — a nexus to criminal behavior, plain view, and inadvertent discovery — and applied that test to uphold seizure of a traffic citation under the facts of this case.
Precedential note: The court treated prior authorities (state and federal) and recent North Carolina decisions to reconcile Marron and Hayden principles and to state a practical framework for warrant execution; the decision thus supplies controlling guidance on these issues as applied to the facts before the court.

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STATE OF NORTH CAROLINA v. JOHNNY EDWARD ZIMMERMAN

1. Criminal Law 162 — admission of evidence — waiver of objection When evidence is admitted over objection but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost.

2. Criminal Law 71 — "place of residence" — shorthand statement of fact An officer's references to defendant's "place of residence" were admissible as shorthand statements of fact.

3. Criminal Law 34 — narcotics case — evidence of traffic violation In a prosecution for possession of marijuana with intent to distribute, defendant was not prejudiced by an officer's testimony that defendant had run a red light.

4. Criminal Law 84; Searches and Seizures 1 — warrantless search of automobile seat — legality Where defendant denied living at the address for which officers had obtained a warrant to search for marijuana, and defendant drove an officer to the premises to be searched, the officer lawfully searched the front seat of defendant's car without a warrant and seized a key fitting the door of the premises to be searched after having observed defendant conceal something in the seat of the car, since the officer had probable cause to believe he would discover evidence of defendant's guilt of a crime.

5. Narcotics 3 — possession with intent to distribute — "ounce bags" In a prosecution for possession of marijuana with intent to distribute, an officer's testimony that seized bags of marijuana are known on the street as "ounce bags" was relevant to the issue of intent to distribute.

6. Searches and Seizures 4 — seizure of items not listed in warrant — instrumentalities of crime Police officers lawfully seized cigarette wrapping papers and a smoking pipe while conducting a search pursuant to a warrant authorizing a search for marijuana only, since such items are instrumentalities of a crime pertaining to marijuana.

7. Searches and Seizures 4 — seizure of items not listed in warrant — mere evidence Officers may lawfully seize an item constituting "mere evidence" while properly executing a search warrant for another item when (1) there exists a nexus between the item to be seized and criminal behavior, (2) the item is in plain view, and (3) the discovery of that item is inadvertent, that is, the officers did not know its location beforehand and intend to seize it.

8. Searches and Seizures 4 — warrant to search for marijuana — seizure of traffic citation Officers lawfully seized a traffic citation issued to defendant while executing a warrant authorizing a search for marijuana where the citation was in plain view, the officers could have reasonably believed the citation would aid in conviction of defendant by showing that defendant resided at that address, and officers discovered the citation inadvertently while lawfully on the premises.

9. Criminal Law 75 — volunteered statements by defendant — admissibility The trial court properly admitted statements made by defendant to officers where the court found upon supporting voir dire evidence that the statements were volunteered and were not the result of custodial interrogation.

10. Narcotics 4.5 — possession with intent to distribute — failure to instruct on simple possession In a prosecution for possession of marijuana with intent to distribute, there was no evidence requiring the court to instruct the jury on the lesser included offense of simple possession of marijuana.

Defendant was indicted for the felonious possession with intent to distribute a controlled substance, to wit: more than 5 grams of marijuana. State's evidence consisted in part of several exhibits purporting to be evidence obtained from the search of an apartment, and one exhibit stipulated by the parties as an SBI lab report which apparently concludes that the green vegetable substance, introduced into evidence, is marijuana. State's evidence also tended to show that Officer Fuller, a Durham policeman, obtained a search warrant for 604 Barnes Avenue. Fuller went to that address and observed the house for a short time until defendant emerged, got into his car with a co-defendant, and drove off. Fuller followed and later stopped defendant, whereupon defendant was informed of the search warrant. Defendant denied living at 604 Barnes Avenue. At this juncture defendant obligingly drove Officer Ray, another Durham policeman, back to 604 Barnes Avenue in defendant's car. At 604 Barnes Avenue, Officer Fuller asked defendant for a key to the door and defendant replied he did not have one. Officer Ray then produced a key which he had procured from defendant's car. Before entering the house there was some concern expressed as to whether a vicious Doberman dog also resided at 604 Barnes Avenue. Once inside, a search was conducted which produced two caches of marijuana. Officer Fuller testified he showed defendant the smaller package of marijuana and defendant said, "How about leaving my smoking stuff in the fuse box, that is what I use myself." Defendant offered no evidence. From a verdict of guilty of possession of marijuana with intent to distribute and a sentence of not less than three nor more than five years, defendant appealed.

MARTIN, Judge.

[1, 2] Defendant has numerous assignments of error. First, defendant contends the trial court erred in allowing Officer Fuller to frequently characterize 604 Barnes Avenue as defendant's "house" or "place of residence." The record discloses a number of occasions in which defendant did not object to such a characterization. It is the well established rule that when evidence is admitted over objection but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost. State v. Owens, 277 N.C. 697, 178 S.E.2d 442 (1971). Furthermore, "Although the word `residence' is in the nature of a conclusion, it is competent as a shorthand statement of fact describing where the officer went to execute the search warrant." State v. Williams, 13 N.C. App. 423, 185 S.E.2d 604 (1972).

Defendant's second assignment of error relates to Officer Fuller's testimony that defendant had run a red light. We fail to see how a passing reference to a traffic violation adversely affected the result of this case. The burden is on defendant not only to show error but also to show that the error complained of affected the result adversely to him. State v. Barrow, 6 N.C. App. 475, 170 S.E.2d 563, aff'd. 276 N.C. 381, 172 S.E.2d 512 (1970). This assignment of error is overruled.

Defendant contends the trial court erred in allowing testimony concerning a key taken from defendant's car which opened the front door at 604 Barnes Avenue in that the key was obtained by an illegal search of the car. In the case at bar, Officer Ray observed a furtive movement by which defendant's clinched fist put something down into the front seat of defendant's car. This occurred as defendant and Officer Ray arrived at 604 Barnes Avenue. A furtive movement under certain circumstances can produce legal justification to search a car. Annot., 45 A.L.R.3d 581 (1972). "`Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office (citations omitted). The cases so holding have, however, always insisted that the officers conducting the search have `reasonable or probable cause' to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.' Dyke v. Taylor Implement Manufacturing Co., 391 U.S. 216, 20 L.Ed.2d 538, 88 S.Ct. 1472 (1968)." State v. Ratliff, 281 N.C. 397, 189 S.E.2d 179 (1972). In State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973), the Court sets out circumstances under which a warrantless search may be conducted, and the Court states, "Third, a warrantless search of a vehicle capable of movement may be made by officers when they have probable cause to search and exigent circumstances make it impracticable to secure a search warrant. (Citations.)"

Applying the foregoing rules to the facts of this case, we hold that Officer Ray seized the key pursuant to a lawful search. Defendant drove Officer Ray back to 604 Barnes Avenue, a residence which defendant had disowned, where defendant knew a search for marijuana was to be conducted. On voir dire examination, Officer Ray stated he saw defendant conceal something in the front seat of defendant's car. Officer Ray said, "I then went around the other side of the car to see what item he had hidden. I found that he had stuck either one or two keys on a chain which appeared to be common lock-type keys, not a car key, like a house key or door lock key." Thus, while lawfully present in the car, Officer Ray discovered a key under circumstances where there was probable cause to believe such a key would be evidence of defendant's guilt inasmuch as defendant had denied living at 604 Barnes Avenue. Defendant's third assignment of error is overruled.

In his fourth assignment of error, defendant argues the trial court erred in allowing Officer Fuller to testify concerning the terminology used in connection with marijuana traffic in that such evidence was irrelevant and prejudicial. This assignment of error is overruled. "Strictly speaking, evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case." 1 Stansbury, N.C. Evidence, Brandis' Revision, 77. In the case at bar, the defendant was charged with the felonious possession of a controlled substance with intent to distribute, and Officer Fuller's testimony that the bags of marijuana seized at 604 Barnes Avenue are known on the street as "ounce bags" is relevant to the issue of intent to distribute. See also State v. Covington, 22 N.C. App. 250, 206 S.E.2d 361 (1974), where this Court discusses the competency of a police officer to testify concerning drug traffic in general.

As the fifth assignment of error, defendant argues the trial court erred in denying defendant's motion to suppress the following evidence: cigarette wrapping papers, a smoking pipe, and a traffic citation issued to defendant. These items were seized at 604 Barnes Avenue under a search warrant which only authorized a search for marijuana. Thus, defendant presents the issue whether the trial court erred in admitting into evidence these items which were not particularly described in the search warrant under which authority they were seized. Defendant cites Marron v. United States, 275 U.S. 192, 72 L.Ed. 231, 48 S.Ct. 74 (1927), for the general rule that items not particularly described in a search warrant cannot be seized while executing that warrant. This general rule developed from the Fourth Amendment's requirement that a warrant particularly describe the things to be seized. (A similar requirement is found in N.C.G.S. 15-26.) To be more precise, Marron prohibits the seizure of one thing under a warrant describing another, subject to the exception that items not described in the warrant can be seized if they are instrumentalities or fruits of crime, or contraband. Narcotics paraphernalia is within the class of instrumentalities and means by which a crime is committed. United States v. Bridges, 419 F.2d 963 (1969). Thus, it appears that the papers and pipe were not inadmissible under Marron. However, the traffic citation is merely evidence that defendant resided at 604 Barnes Avenue, and, therefore, it does not fit within any exceptions to the general rule. The State contends that the traffic citation could be seized under the warrant for marijuana because the Court in Warden v. Hayden, 387 U.S. 294, 18 L.Ed.2d 782, 87 S.Ct. 1642 (1967), eliminated the distinction between "mere evidence" and instrumentalities or fruits of crime.

The Court in Hayden permitted the seizure of "mere evidence" during a search incident to a "hot pursuit" and arrest, that is, a lawful but warrantless search. It seems proper to hold that Hayden also enlarges the scope of permissible seizures to include "mere evidence" when a search is conducted under a warrant. If it were otherwise, a situation would arise in which the police could seize "mere evidence" pursuant to a lawful search without a warrant but not with a warrant. This would be anomalous when one considers the judicial preference for searches pursuant to a warrant. But see United States v. Dzialak 441 F.2d 212, cert. denied, 404 U.S. 883 (1971). In Crawford v. State, 9 Md. App. 624, 267 A.2d 317 (1970), the Court employed Hayden to hold that pawn tickets seized under a search warrant for narcotic drugs and narcotic paraphernalia were admissible as evidence where the police had reason to believe the pawn tickets were incriminating evidence. However, the Court in Crawford did not consider Marron. We do not believe that the police may, while executing a search warrant, seize an item not mentioned in that warrant merely because it appears to be incriminating. Such an interpretation would appear to vitiate the state and federal constitutional requirements that warrants shall particularly describe the items to be seized at least where the police know beforehand that they are going to seize a particular item not mentioned. In fact, the New York Court of Appeals refused to allow the seizure of a sweater in the course of executing a search warrant for a pistol and referred to Hayden as follows:

"If anything, it reinforces the strength and need for the Marron holding. Hayden did not involve a search warrant, and at no point was Marron discussed by the court. Moreover, Marron was cited with approval in Berger v. New York ( 388 U.S. 41, 58), decided after Hayden. . . ." People v. Baker, 23 N.Y.2d 307, 244 N.E.2d 232 (1968).

Nevertheless, we feel that the law respecting the seizure of items not described in a search warrant has undergone some change See, e.g. State v. Newsom, 284 N.C. 412, 200 S.E.2d 617 (1973). Therefore, we address ourselves to the proper test under which items not described in a search warrant may be seized.

[7, 8] In executing a search warrant an officer may seize items not described therein, regardless of whether they constitute instrumentalities or fruits of crime, contraband, or mere evidence at least where there is a nexus between the items to be seized and criminal behavior, and where such items are discovered inadvertently by the officer, in plain view, in the course of a proper execution of the warrant. 68 Am. Jur.2d, Searches and Seizures, 113, p. 768 (1973). See also Stansbury, N.C. Evidence, Brandis' Revision, 121a, p. 372. Also, in State v. Carey, 285 N.C. 509, 206 S.E.2d 222 (1974), the Court upheld the seizure of shotgun shells where the officers were lawfully present under an arrest warrant and the shells were observed inadvertently in plain view. Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971), involved an invalid search warrant but the plurality opinion stated:

"If the initial intrusion is bottomed upon a warrant that fails to mention a particular object, though the police know its location and intend to seize it, then there is a violation of the express constitutional requirement of `Warrants . . . particularly describing . . . [the] things to be seized.'" (Emphasis added.)

We note the negative inference in the above quote which indicates that an inadvertent discovery of items not mentioned in a warrant does not violate the "particularity requirement." Thus, we hold it is permissible to seize an item, constituting "mere evidence" while properly executing a search warrant for another item when (1) there exists a nexus between the item to be seized and criminal behavior, and (2) the item is in plain view, and (3) the discovery of that item is inadvertent, that is the police did not know its location beforehand and intend to seize it. In the case at bar, the officers seized the traffic citation in plain view, which they could have reasonably believed would aid in the conviction of defendant, and obviously they discovered it inadvertently while lawfully on the premises pursuant to a search warrant. Defendant's fifth assignment of error is overruled.

In his sixth, seventh, and ninth assignments of error, defendant argues the trial court erred in admitting into evidence statements made by defendant to Officers Fuller and Ray. The trial court correctly ruled on voir dire examination that the statements were voluntary and not the result of custodial interrogation. "Volunteered statements are competent evidence, and their admission is not barred under any theory of the law, state or federal." State v. Hardy, 17 N.C. App. 169, 193 S.E.2d 459 (1972).

Defendant's argument in his eighth assignment of error is without merit.

Finally, defendant contends the trial court erred in instructing the jury on possession of marijuana with intent to distribute while not instructing on simple possession of a smaller amount of marijuana. It may be that possession of marijuana is a lesser included offense of possession with intent to distribute. State v. Aikens, 22 N.C. App. 310, 206 S.E.2d 348 (1974), cert. granted, 285 N.C. 662, 207 S.E.2d 763 (1974). However, we find no evidence to support a charge on simple possession of marijuana. "The trial court is not required to charge the jury upon the question of the defendant's guilt of lesser degrees of the crime charged in the indictment when there is no evidence to sustain a verdict of defendant's guilt of such lesser degrees." 3 Strong, N.C. Index 2d, Criminal Law, 115, p. 21. The mere contention that the jury might accept the State's evidence in part and might reject it in part will not suffice. State v. Wilson, 14 N.C. App. 256, 188 S.E.2d 45 (1972). Defendants remaining assignments of error have no merit and are overruled.

No error.

Chief Judge BROCK and Judge PARKER concur.

STATE v. ZIMMERMAN