State v. Dark
| Decision Date | 07 August 1974 |
| Docket Number | No. 7324SC417,7324SC417 |
| Parties | STATE of North Carolina v. Lawrence Talton DARK, III. |
| Court | North Carolina Court of Appeals |
Atty. Gen. Robert Morgan by Deputy Atty. Gen. R. Bruce White, Jr., and Asst. Attys. Gen. Charles M. Hensey and Guy A. Hamlin, Raleigh, for the State.
Phil S. Edwards, Dark & Edwards, Siler City, and Stacy C. Eggers, Jr., Boone, for defendant appellant.
By his first assignment of error defendant contends that he was deprived of certain basic constitutional rights by the manner of his arrest and by actions of the officers in holding him at the county jail until the following morning. Specifically, he contends, first, that his arrest was illegal in that it was made by a municipal police officer outside the city limits without a warrant and without probable cause, and, second, that following the arrest he was denied the right to contact counsel and friends. The record does not support these contentions.
The arrest was made by an officer of the Blowing Rock Police Department. As such he had 'all the powers invested in law-enforcement officers by statute or common law within one mile of the corporate limits of the city.' G.S. § 160A--286. Although the record here does not show the exact distance beyond the city limits the arrest occurred, defendant's counsel stated in a written motion to dismiss filed in the district court prior to trial in that court that the arrest took place 'just outside of the corporate limits of the town of Blowing Rock,' and the district judge, in the order denying the motion, found as a fact that it occurred 'near, but outside, the city limits.' Defendant has never contended either in the district or superior courts or in this Court on appeal that the arrest was made more than one mile beyond the corporate limits.
Although the arrest was made without a warrant, it was for a misdemeanor which, when the arrest was actually made, the officer had reasonable ground to believe had been committed in his presence. It was, therefore, valid under G.S. § 15--41(1). The record does not support defendant's contention that the officer did not see him driving but saw him only after his truck had come to a complete stop at the intersection of Ahoe Road and the Blue Ridge Parkway. The officer testified that he saw defendant 'operate his vehicle for a distance of about ten feet.' and defendant's testimony that because of the terrain it would have been impossible for the officer to have seen him driving, merely presented a question of fact to be resolved by the jury.
It may be granted that when Officer Collins first stopped and approached the truck he had no probable cause to believe that defendant had committed any offense. Nevertheless, he had authority to stop the truck. G.S. § 20--183(a) expressly provides that law enforcement 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.' (Article 3 of Chapter 20 of the General Statutes, being the Motor Vehicle Act of 1937 as amended.) Once the officer stopped the defendant and observed his condition, he then had reasonable ground to believe that immediately prior thereto defendant had committed in his presence the misdemeanor of driving his vehicle on a public highway while under the influence of intoxicating liquor. The existence of probable cause at the time the truck was stopped was not essential to validity of the subsequent arrest. State v. Allen, 282 N.C. 503, 194 S.E.2d 9; State v. White, 18 N.C.App. 31, 195 S.E.2d 576.
Nor do we agree that the arrest actually occurred earlier when the officer first stopped and approached the truck with drawn gun. Mere approach by an officer with drawn pistol upon persons otherwise properly stopped for questioning is not in all circumstances an arrest. State v. Goudy, 52 Haw. 497, 479 P.2d 800. Here, Officer Collins was alone late at night in a remote section and had no way of knowing who or what he would encounter in the truck. With all too tragic frequency law enforcement officers have been killed or wounded in the line of duty, and it would be unreasonable to require that they take unnecessary risks while performing their duties. We not that Officer Collins returned his pistol to its holster as soon as he ascertained the identity of defendant and his passenger, and there is no suggestion that he exercised any excessive force or acted in an oppressive manner at any time thereafter. We hold that the arrest occurred when Officer Collins told defendant he was under arrest for driving under the influence and that the arrest at that time was valid.
The record also does not support defendant's contention that his rights were violated following his arrest by denial of opportunity to contact family or friends. The officer who administered the breathalyzer test testified that he advised defendant of his right to have a lawyer and a witness present to observe the test, and as a matter of fact defendant did have his college roommate, who had been a passenger in the truck at the time defendant was arrested, present at the time the breathalyzer test and other tests of sobriety were given. The district judge in his order denying defendant's motion to dismiss found as a fact after an evidentiary hearing that both the arresting officer and the magistrate advised defendant of his right to make a telephone call. Although defendant testified at the trial in the superior court that he did not recall the officers asking him if he wanted to make a phone call, he also testified that he did not ask to make one and that his roommate wanted him to call home, but he did not want to wake his father at that time of morning. The record here simply fails to support defendant's attempt to bring his case within the ruling in State v. Hill, 277 N.C. 547, 178 S.E.2d 462, which is clearly distinguishable on its facts.
Defendant contends error was committed and he was denied a fair trial in the superior court because the presiding judge, just prior to the calling of defendant's case, dismissed a felony charge against another defendant and in so doing explained to the jurors that, while the case was close, he felt they would not convict and ...
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