Gardner, Matter of

• Decision Date: 06 February 1979
• Docket Number: No. 783SC263,No. 4835030,4835030,783SC263
• Citation: 39 N.C.App. 567,251 S.E.2d 723
• Parties: In the Matter of the Revocation of the License of Robert Morgan GARDNER, License
• Court: North Carolina Court of Appeals

Page 723

251 S.E.2d 723

39 N.C.App. 567

In the Matter of the Revocation of the License of Robert Morgan GARDNER, License No. 4835030.

No. 783SC263.

Court of Appeals of North Carolina.

Feb. 6, 1979.

No counsel for petitioner-appellee.

PARKER, Judge.

Appellant first contends that the court erred in ruling that the officer's warrantless arrest of the petitioner under the circumstances disclosed by this record was unlawful. As pertinent to this question, G.S. 15A-401 provides:

G.S. 15A-401. Arrest by law-enforcement officer.

(b) Arrest by Officer Without a Warrant.

(2) Offense Out of Presence of Officer. An officer may arrest without a warrant any person who the officer has probable cause to believe:

a. Has committed a felony; or

b. Has committed a misdemeanor, and:

1. Will not be apprehended unless immediately arrested, or

2. May cause physical injury to himself or others, or damage to property unless immediately arrested.

As pointed out in the opinion in In re Pinyatello, 36 N.C.App. 542, 245 S.E.2d 185 (1978), this statute broadened the authority of a law-enforcement officer to make a warrantless arrest for crimes not committed in his presence. Before the effective date of this statute, a law enforcement officer in this State had only limited authority to make a warrantless arrest for a felony not committed in his presence and had no authority to make a warrantless arrest for a misdemeanor not committed in his presence unless he had reasonable ground to believe that the person arrested had committed the misdemeanor in his presence. See Ch. 58, 1955 Session Laws, rewriting former G.S. 15-41, now repealed. Since the effective date of G.S. 15A-401(b)(2), a law enforcement officer is authorized to arrest for a felony not committed in his presence any person who he has probable cause to believe has committed the felony, and he is authorized to arrest for a misdemeanor not committed in his presence any person who he has probable cause to believe has committed the misdemeanor and who he also has probable cause to believe either (1) will not be apprehended unless immediately arrested, or (2) may cause physical injury to himself or others or damage to property unless immediately arrested.

The offense for which the officer arrested the petitioner without a warrant in this case, driving a vehicle on a highway while under the influence of intoxicating liquor in violation of G.S. 20-138(a), is a misdemeanor. G.S. 20-179. It was not committed in the officer's presence. Based on his own observations at the scene of the accident, the arresting officer knew the petitioner to be highly intoxicated at the time the officer first saw him. Based on information given him at the scene by a disinterested eye-witness to the accident, the officer had grounds to believe that only a short time previously the petitioner had driven his truck on the highway. Probable cause "may be based upon information given to the officer by another, the source of such information being reasonably reliable." State v. Roberts, 276 N.C. 98, 107, 171 S.E.2d 440, 445 (1970). Thus, the arresting officer had information amply sufficient to provide him with probable cause to believe that petitioner had committed the misdemeanor for which the officer arrested him. The inquiry then becomes whether, as required by G.S. 15A-401(b)(2)b, the officer also had probable cause to believe either (1) that petitioner would not be apprehended unless immediately arrested, or (2) that petitioner might cause physical injury to himself or others or damage to property unless immediately arrested. The trial court found that the officer did not have probable cause to believe that either of these conditions existed and on that basis ruled the arrest illegal.

"Probable cause and 'reasonable ground to believe' are substantially equivalent terms." State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971). "The existence of 'probable cause,' justifying an arrest without a warrant, is determined by factual and practical considerations of every day life on which reasonable and prudent men, not legal technicians, act. It is a pragmatic question to be determined in each case in the light of the particular circumstances and the particular offense involved." 5 Am.Jur. 2d, Arrest, § 48, p. 740.

In determining whether probable cause exists in any particular case, it is the function of the trial court, if there be conflicting evidence, to find the relevant facts. Such factual findings, if supported by competent evidence, are binding on appeal. However, whether the facts so found by the trial court or shown by uncontradicted evidence are such as to establish probable cause in a particular case, is a question of law as to which the trial court's ruling may be reviewed on appeal. In the present case there was no conflict in the evidence and the trial court's findings numbers 5, 6, and 7, although contained in the portion of the judgment headed "Findings of Fact," constitute in large measure the trial court's conclusions of law on facts established by uncontradicted evidence. As such, these findings are subject to appellate review.

We agree with the trial court's finding in this case that "(t)here was no evidence offered that the Petitioner would not be apprehended unless immediately arrested." However, we do not agree with the trial court's conclusion that there was in this case "no reason to believe the Petitioner would cause physical injury to himself or others, or damage to property unless immediately arrested." It was a primary duty of the investigating officer, as a member of the State Highway Patrol, to take all reasonable precautions to protect the safety of persons and property lawfully on the highways. He had been called to the scene of an accident where one vehicle had already been damaged. He had information that petitioner had caused that damage. His own observations confirmed that petitioner was highly intoxicated. Although petitioner was "asleep or passed out" when he first saw him, as investigating officer it was proper for Trooper Wright to awaken the petitioner in order to question him. Once the petitioner had been thus aroused, in our opinion the officer did have reasonable cause to believe, in view of the well known propensity of intoxicated persons to engage in irrational and erratic behavior that petitioner, if not immediately arrested, might again get into his truck and drive upon the highway. If the petitioner in his drunken condition had done so and an additional accident had resulted, Trooper Wright would have been justly subject to censure for failing to prevent it. In our view, under all of the facts and circumstances which the uncontradicted evidence shows were known by the officer, he had reasonable cause to believe that the petitioner might cause physical injury to himself or others or damage to property unless immediately arrested. If so, the arrest...