State v. Allen, 71

• Citation: 282 N.C. 503,194 S.E.2d 9
• Decision Date: 26 January 1973
• Docket Number: No. 71,71
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Paul Ray ALLEN, Jr., et al.

Page 9

194 S.E.2d 9

282 N.C. 503

STATE of North Carolina v. Paul Ray ALLEN, Jr., et al.

No. 71.

Supreme Court of North Carolina.

Jan. 26, 1973.

Atty. Gen. Robert Morgan, Asst. Attys. Gen. Melvin W. Melvin and Charles A. Lloyd, for the State.

George F. Taylor, Goldsboro, for Paul Ray Allen, Jr. H. Martin Lancaster, Goldsboro, for Leroy Bryant.

David M. Rouse, Goldsboro, for Joe Earl King.

BRANCH, Justice.

Defendants contend that the trial judge erred in denying their motions to suppress all evidence against them. In support of this contention they argue that the police stopped them without reasonable cause, illegally searched their automobile and illegally arrested them.

No citation is necessary for the well recognized rule that evidence obtained by unreasonable search is inadmissible in both federal and state courts. However, it is also well recognized in this jurisdiction that the constitutional guarantee against unreasonable search and seizure does not prohibit the seizure and introduction into evidence of contraband materials when they are in plain view and require no search to discover them. State v. Simmons, 278 N.C. 468, 180 S.E.2d 97; State v. Hill, 278 N.C. 365, 180 S.E.2d 21; State v. McCloud, 276 N.C. 518, 173 S.E.2d 753; State v. Virgil, 276 N.C. 217, 172 S.E.2d 28.

The Court of Appeals correctly held that there was no error in the admission of evidence concerning the bag of money. In this connection there is sufficient, competent evidence showing that Officer Bell was given permission to enter the automobile to obtain the registration card from the glove compartment and at that time, without any search, observed the bag and its contents.

We also agree with the conclusion of the Court of Appeals that the officers had authority to stop the vehicle occupied by defendants to determine the validity and presence of the driver's license and registration card. G.S. § 20--183(a); G.S. § 20--57; State v. Eason, 242 N.C. 59, 86 S.E.2d 774; State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133.

Defendants argue, however, that their arrest occurred at the instant the officers stopped them pursuant to G.S. § 20--183(a), and since no probable cause for arrest then existed, the warrantless arrest precluded introduction of any of the tendered evidence. The key question is whether the 'stopping' of a vehicle necessarily constitutes an 'arrest' of its occupants. Specifically, the legality of the evidence turns 'upon the narrow question of when the arrest occurred.' Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688; Busby v. United States, 296 F.2d 328 (9th Cir. 1961).

Persons detained briefly for routine police investigation under circumstances not justifying actual arrest are not Ipso facto deprived of their constitutional rights. Rios v. United States, supra; Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966); Busby v. United States, supra. As stated by the 8th Circuit Court of Appeals, in the case of United States v. Harflinger, 436 F.2d 928 (8th Cir. 1970):

'The brief detention of a citizen based upon an officer's reasonable suspicion that criminal activity may be afoot is permissible for the purpose of limited inquiry in the course of a routine investigation, and any incriminating evidence which comes to that officer's attention during this period of detention may become a reasonable basis for effecting a valid arrest. As explicated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), there is a difference between a limited detention or seizure of a person and an arrest.'

Defendants rely heavily upon Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134, to support their contention that they were arrested as soon as they were stopped, for their 'liberty of movement' was then restricted. Defendants can take little comfort from that case because there it was conceded by the prosecution that the arrest took place when the car was stopped. See Busby v. United States, supra. 'Arrest connotes restraint and not temporary detention for routine questioning.' Schook v. United States, 337 F.2d 563 (8th Cir. 1964); Jackson v. United States, 408 F.2d 1165 (8th Cir. 1969).

There is no absolute test to ascertain exactly when an arrest occurs. The time and place of an arrest is determined in the context of the circumstances surrounding it. Rios v. United States, supra; Cook v. Sigler, 299 F.Supp. 1338 (D.Neb.1969); State v. Rye, 260 Iowa 146, 148 N.W.2d 632; State v. Williams, 97 N.J.Super. 573, 235 A.2d 684; State v. Bell, 89 N.J.Super. 437, 215 A.2d 369; State v. Romeo, 43 N.J. 188, 203 A.2d 23, cert. den. 379 U.S. 970, 85 S.Ct. 668, 13 L.Ed.2d 563. See also State v. Jackson, 280 N.C. 122, 185 S.E.2d 202. Where a federal offense is not involved, we look to the law of the state to determine when an arrest has occurred and whether or not it is valid. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Wilson v. Porter, supra; Nicholson v. United States, 355 F.2d 80 (5th Cir. 1966); Hart v. United States, 316 F.2d 916 (5th Cir. 1963); People v. Sanchez, 256 Cal.App.2d 700, 64 Cal.Rptr. 331. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

The courts of other jurisdictions have considered various situations involving alleged arrests and have determined that a routine license check and the concomitant delay does not constitute an arrest in the legal sense. Wilson v. Porter, supra; Nicholson v. United States, supra. In the case of Lipton v. United States, 348 F.2d 591 (9th Cir. 1965), the Court, in holding that no arrest took place when defendant was stopped for the purpose of checking his driver's license, stated: 'No other way was available to the officer to determine whether appellant possessed the required license.' See United States v. Lepinski, 460 F.2d 234 (10th Cir. 1972) (approved stopping vehicle to demand proof of registration); Frye v. United States, 315 F.2d 491 (9th Cir. 1963) (no arrest where vehicle stopped because of equipment violations); United States v. Williams, 314 F.2d 795 (6th Cir. 1963) (routine questioning held no arrest); State v. Goudy, 52 Haw. 497, 479 P.2d 800 (officer's approach with drawn pistol upon persons stopped for questioning held not an arrest); State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129, cert. den. 392 U.S. 944, 88 S.Ct. 2288, 20 L.Ed.2d 1406 (stopping car after 3 a.m. to identify car and its occupants held not to be an arrest). See also Jackson v. United States, supra; People v. Superior Court of Los Angeles County, 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205; Mincy v. District of Columbia, 218 A.2d 507 (D.C.App.1966); Gustafson v. State, 243 So.2d 615 (Fla.App.1971); Glover v. State, 14 Md.App. 454, 287 A.2d 333.

The rationale of these cases is aptly stated in United States v. Bonanno, 180 F.Supp. 71, at 78 (D.C.S.D.N.Y.1960):

'While the Fourth Amendment may be construed as encompassing 'seizure' of an individual, it cannot be contended that every detertion of an individual is such a 'seizure'. If that were the case, police investigation would be dealt a crippling blow, by imposing a radical sanction unnecessary for the protection of a free citizenry.'

This Court in the case of Stancill v. Underwood, 188 N.C. 475, 124 S.E. 845, stated that an arrest consisted of 'taking custody of another person under real or assumed authority, for the purpose of detaining him to answer a criminal charge or civil demand. The application of actual force or visible physical restraint is not essential.' See State v. Shirlen, 269 N.C. 695, 153 S.E.2d 364; Hadley v. Tinnin, 170 N.C. 84, 86 S.E. 1017; Lawrence v. Buxton, 102 N.C. 129, 8 S.E. 774.

Here, defendants were stopped for the purpose of making a brief, limited, routine investigation. It was only after Officer Bell commented on the presence of the money, and after the ensuing flight of defendant King that defendants were taken into custody and placed under arrest. Therefore, the existence of probable cause at the time the car was stopped was not essential.

In instant case the facts giving rise to probable cause to search and probable cause to arrest are identical. Whether probable cause existed is hereinafter determined.

Defendants, without citation of authority, proffer a cursory attack upon the constitutionality of G.S. § 20--183(a) on the ground that it is an unreasonable and invalid exercise of the police power. They argue that as applied to their arrest G.S. § 20--183(a) was the only source of authority enabling the officers to stop their vehicle. G.S. § 20--183(a) provides:

'It shall be the duty of the law enforcement officers of the State and of each county, city, or other municipality to see that the provisions of this article are enforced within their respective jurisdictions, and any such officer shall have the power to arrest on sight or upon warrant any person found violating the provisions of this article. Such officers within their respective jurisdictions shall have the power to stop any motor vehicle upon the highways of the State for the purpose of determining whether the same is being operated in violation of any of the provisions of this article. . . .'

Assuming Arguendo that the officers had no power to investigate the suspicious circumstances leading to defendants' arrest, and that the officers acted pursuant to G.S. § 20--183(a), we consider defendants' contention.

New Jersey has a statutory scheme similar to our G.S. § 20--183(a) and G.S. § 20--57 (requiring the registration card to be carried in the vehicle at all times). N.J.S.A. 39:2--9; 3--29, 8--1 et seq. The courts of New Jersey have considered the constitutionality of these statutes and have held the granting of authority to officers to stop persons to ascertain violations a valid and reasonable exercise of the police power. State v. Braxton, 111 N.J.Super. 191, 268 A.2d 40, reversed on other grounds 57 N.J. 286, ...