State v. McZorn

• Decision Date: 05 November 1975
• Docket Number: No. 44,44
• Citation: 288 N.C. 417,219 S.E.2d 201
• Parties: STATE of North Carolina v. Willie Edward McZORN.
• Court: North Carolina Supreme Court

Page 201

219 S.E.2d 201

288 N.C. 417

STATE of North Carolina v. Willie Edward McZORN.

No. 44.

Supreme Court of North Carolina.

Nov. 5, 1975.

Atty. Gen. Rufus L. Edmisten, Asst. Atty. Gen. Ann Reed, Raleigh, for the State.

William D. Sabiston, Jr., Carthage, for defendant appellant.

SHARP, Chief Justice.

Defendant's assignments of error, as brought forward in his brief, pose three questions. We consider first the contention that the stopping of defendant's vehicle and the frisking of his person were unconstitutional; that his subsequent arrest was in violation of G.S. 15--41; and that, in consequence, the revolver taken from his inside coat pocket was erroneously admitted into evidence. We find no merit in these contentions.

In our view, the facts of this case are illustrative of a proper stop and incident frisk, and are encompassed by the rationale of Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967). See, e.g. Johnson v. Wright, 509 F.2d 828 (5th Cir. 1975) (U.S.App. Pending); United States v. Stevens, 509 F.2d 683 (8th Cir. 1975), Cert. denied, 421 U.S. 989, 95 S.Ct. 1993, 44 L.Ed.2d 479 (1975); United States v. Jefferson, 480 F.2d 1004 (4th Cir. 1973), Cert. denied, 414 U.S. 1001, 94 S.Ct. 354, 38 L.Ed.2d 236 (1973); State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973).

In Terry v. Ohio, supra, the defendant was arrested for carrying a concealed weapon and subsequently convicted of that charge largely on the basis of the introduction into evidence of the weapon seized from him. The United States Supreme Court affirmed the conviction enunciating in the process a rationale which has been labeled the 'stop and frisk' doctrine. In Terry, a police officer with thirty-nine years of experience, while patrolling his assigned area, observed defendant Terry and a companion repeatedly walk by a particular store gazing into its window. At one point Terry and his companion conferred with a third man after which they resumed their 'measured pacing, peering and conferring.' The officer suspected that the two men were 'casing' the store in order to rob it either immediately or later. He therefore approached the men, identified himself, and asked their names. Receiving an inadequate response, the officer grabbed the defendant and patted down the outside of his clothing. When he felt what he believed to be a weapon, the officer reached inside the defendant's coat and removed a revolver. At his trial the defendant contended that the weapon was illegally seized because the officer lacked probable cause for both the stop and the frisk that revealed the weapon.

The United States Supreme Court held that, although the policeman's conduct in Terry was subject to Fourth Amendment limitation of reasonableness, the officer's conduct was permissible and the weapon was properly seized even though there was initially no probable cause for the intrusion. The Court held that since the officer could point to articulable facts that led him reasonably to conclude that criminal activity was afoot, he was justified in approaching the defendant for the purpose of investigating his suspicious activity. Although the Court declined expressly to decide whether facts not amounting to probable cause could justify an 'investigative seizure,' (392 U.S. at 19, n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889), it said that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for the purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' Terry v. Ohio, supra at 22, 88 S.Ct. 1880, 20 L.Ed.2d 906. In addition since the facts and circumstances showed that the officer was reasonably warranted in believing the defendant was armed and presented a threat to his safety, the officer was justified in conducting a limited frisk which produced the weapon. In this regard, Chief Justice Warren, delivering the opinion of the Court, said: 'Our evaluating of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909.

The implication of Terry v. Ohio was that an officer could stop a person if Upon personal observation of that individual's conduct the officer could reasonably suspect that criminal activity was afoot. This holding was expanded four years later by Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), which held that an officer could, upon the basis of information furnished him by a reliable informant, stop a person if the informant's tip was sufficient to justify a reasonable belief that a crime had been or was being committed.

In Adams v. Williams, supra, a person known to Police Sergeant (C) approached his cruiser at 2:15 a.m. and told him that a person seated in a nearby vehicle was carrying narcotics and had a gun at his waist. In consequence C went to the car, tapped on the window and requested the defendant to open the door. When, instead of doing so, the defendant rolled down the window, C reached into the car and removed a fully loaded revolver from his belt. The gun had not been visible to C from outside the car, but it was where the informant had said it would be. C then arrested the defendant for unlawfully possessing a pistol. A search incident to the arrest revealed substantial quantities of heroin on the defendant's person, a machete and a second revolver hidden in the automobile. In rejecting the defendant's contention that the officers 'stop and frisk' and the initial seizure of his pistol, upon which rested the later search and seizure of other weapons and narcotics, was illegal, Mr. Justice Rehnquist, delivering the opinion of the Court, said:

'. . . The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response.

'Applying these principles (Terry v. Ohio) to the present case, we believe that Sgt. Connolly acted justifiably in responding to his informant's tip. The informant was known to him personally and had provided him with information in the past. . . . Thus, while the Court's decisions indicate that this informant's unverified tip may have been insufficient for a narcotics arrest or search warrant, see, e.g., Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the information carried enough indicia of reliability to justify the officer's forcible stop of Williams.

'In reaching this conclusion we reject respondent's argument that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person. . . .

'While properly investigating the activity of a person who was reported to be carrying narcotics and a concealed weapon Sgt. Connolly had ample reason to fear for his safety. . . . Under these circumstances the policeman's action in reaching to the spot where the gun was thought to be hidden constituted a limited intrusion designed to insure his safety, and we conclude that it was reasonable. . . . The loaded gun seized as a result of this intrusion was therefore admissible at Williams' trial. Terry v. Ohio, 392 U.S., at 30, 88 S.Ct., at 1884, (20 L.Ed.2d, at 911).

'Once Sgt. Connolly had found the gun precisely where the informant had predicted, probable cause existed to arrest Williams for unlawful possession of the weapon.' Adams v. Williams, supra, 407 U.S. at 145--48, 92 S.Ct. 1923--24, 32 L.Ed.2d 616--18.

The principles enunciated in Terry v. Ohio and Adams v. Williams have been applied often. For example in United States v. Jefferson, 480 F.2d 1004 (4th Cir. 1973), Cert. denied, 414 U.S. 1001, 94 S.Ct. 354, 38 L.Ed.2d 236 (1973), the Fourth Circuit affirmed the defendant's conviction of illegal possession of a firearm. The evidence showed that sometime before his arrest, the police had received information from a reliable informant that the defendant was carrying a concealed weapon in a shoulder holster. This information was conveyed to other police officers and subsequently two officers effected a stop of the car by use of a warning siren and flashing lights. As they approached the car, the officers observed that the defendant removed a pistol from his waistline. The officers then placed the defendant under arrest. The Fourth Circuit affirming the conviction said:

'At the time the two officers stopped Jefferson their avowed purpose was not to make an arrest but to question him concerning the tip Powell had received. The Supreme Court recognized in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' 392 U.S. at 22, 88 S.Ct. (1868) at 1880. (Cites omitted.)

'The investigatory stop executed in the present case constituted a seizure of Jefferson's person, United States v. Jackson, 448 F.2d 963 (9th Cir. 1971), and to be valid must have satisfied the...