State v. Harris

• Decision Date: 30 July 1971
• Docket Number: No. 15,15
• Citation: 279 N.C. 307,182 S.E.2d 364
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Henry Lee HARRIS.

Page 364

182 S.E.2d 364

279 N.C. 307

STATE of North Carolina v. Henry Lee HARRIS.

No. 15.

Supreme Court of North Carolina.

July 30, 1971.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Myron C. Banks, and Staff Atty. Ronald M. Price, Raleigh, for the State.

James J. Caldwell, Charlotte, for defendant appellant.

SHARP, Justice:

Defendant appeals upon the assumption that his warrantless arrest was without probable cause; that the accompanying search of his person was therefore illegal and the fruits of the search inadmissible in evidence against him. He concedes, Ex necessitate, that if State's Exhibits 1 and 2 were admissible the case was properly submitted to the jury. State v. Bell, 270 N.C. 25, 153 S.E.2d 741.

'A police officer may search the person of one whom he has lawfully arrested as an incident of such arreat. * * * In the course of such search, the officer may lawfully take from the person arrested any property which such person has about him and which is connected with the crime charged or which may be required as evidence thereof. If such article is otherwise competent, it may properly be introduced in evidence by the State.' State v. Roberts, 276 N.C. 98, 102, 171 S.E.2d 440, 443. Accord, State v. Tippett, 270 N.C. 588, 155 S.E.2d 269. 'Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime.' Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, 780. Accord, Chimal v. California, 395 U.S. 752, 762--763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685, 694.

Thus, the determinative question here is whether defendant was under lawful arrest at the time Officer Kirkpatrick searched him and found stolen property which had been recently removed from the Gilleland home. An arrest without warrant, except as authorized by statute, is illegal. State v. McCloud, 276 N.C. 518, 173 S.E.2d 753. G.S. § 15--41(2) authorizes a peace officer without warrant to arrest a person 'when the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody.'

Probable cause and 'reasonable ground to believe' are substantially equivalent terms. 'Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. * * * To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilt, but it must be such as would actuate a reasonable man acting in good faith. One does not have probable cause unless he has information of facts which, if submitted to a magistrate, would require the issuance of an arrest warrant.' 5 Am.Jur.2d Arrests § 44 (1962). 'The existence of 'probable cause,' justifying an arrest without a warrant, is determined by factual and practical considerations of everyday 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, Supra, § 48. Accord, Brinegar v. United...