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 |
Atty. Gen. Rufus L. Edmisten, Asst. Atty. Gen. Ann Reed, Raleigh, for the State.
William D. Sabiston, Jr., Carthage, for defendant appellant.
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: 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:
'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. . . .
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...
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