State v. Moore

• Decision Date: 12 March 1969
• Docket Number: No. 8,8
• Parties: STATE of North Carolina v. James Curtis MOORE, Bobby Ray Dawson and Carl Patrick Speight.
• Court: North Carolina Supreme Court

Page 53

166 S.E.2d 53

275 N.C. 141

STATE of North Carolina v. James Curtis MOORE, Bobby Ray Dawson and Carl Patrick Speight.

No. 8.

Supreme Court of North Carolina.

March 12, 1969.

Atty. Gen., Robert Morgan and Asst. Atty. Gen., Bernard Harrell for the State.

Chambers, Stein, Ferguson & Lanning, Charlotte, for defendants.

BRANCH, Justice.

Defendants assign as error the denial of their motions for nonsuit. When the State offers evidence of the corpus delicti in addition to defendant's confession of guilt, defendant's motion to nonsuit is correctly denied. State v. Stinson, 263 N.C. 283, 139 S.E.2d 558. Here, defendants' confessions with the evidence Aliunde as to the corpus delicti were sufficient to overrule their motions for nonsuit.

Defendants also assign as error the admission into evidence, over their objections, of the testimony of police officers concerning alleged inculpatory statements made by each of the defendants after their arrest without a warrant and made while each defendant was in custody.

An arrest without warrant except as authorized by statute is illegal. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100.

N.C.Gen.Stat. § 15--41, entitled 'When officer may arrest without warrant,' in part provides:

'A peace officer may without warrant arrest a person:

(1) When the person to be arrested has committed a felony or misdemeanor in the presence of the officer, or when the officer has reasonable ground to believe that the person to be arrested has committed a felony or misdemeanor in his presence;'

Here, each defendant was charged with a misdemeanor and the record clearly discloses that the alleged misdemeanors did not occur in the presence of the arresting officers, and that the arrests were made without warrants. Thus, the arrest of each defendant must be treated as illegal. We must therefore decide whether, under the circumstances of this case, the alleged inculpatory statements of each defendant must be excluded because of the prior illegal arrest.

In McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), a rule dealing with cases of unlawful delay between arrest and arraignment before a United States Commissioner was formulated. This rule states that a confession made during such unlawful delay is held to be Ipso facto inadmissible. Mallory v. United States, supra; Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100 (1948); McNabb v. United States, supra. However, the McNabb-Mallory rule is based on rule 5(a) of the Federal Rules of Criminal Procedure, and the U.S. Supreme Court has made it clear that it is a rule of evidence formulated through the exercise of the Court's supervisory authority over the administration of criminal justice in the federal courts and not a constitutional limitation binding upon the State courts. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86 (1951).

In Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), the U.S. Supreme Court held that in a federal prosecution the Fourth Amendment barred as 'fruit of a poison tree' evidence secured through an illegal search and seizure. This rule was made applicable to the states by Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1960). Appellants rely heavily on the case of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) as extending the 'poison fruit' doctrine to verbal statements following an illegal arrest.

In Wong Sun v. United States, supra, six or seven federal narcotic officers, acting on information secured from an informer and without procuring a search warrant or arrest warrant, went to the laundry where defendant Toy worked and lived. One of the officers rang the bell and told Toy that he was calling for laundry and dry cleaning. When Toy started to colse the door, the officer identified himself as a federal narcotics agent. Toy slammed the door and ran. The officers broke the door open and followed him into the bedroom where his wife and child were sleeping. He was arrested and handcuffed, and within a very short time he made an inculpatory statement. Toy's confession implicated defendant Wong Sun, who was arrested and later released on his own recognizance. Wong Sun made no inculpatory statement prior to his initial release. Several days later Wong Sun voluntarily returned to the police station and made an inculpatory statement. Excluding the Toy confession as being 'fruit of official illegality' and admitting the Wong Sun confession on the basis that the connection between the prior illegal arrest and later confession had 'become so attenuated as to dissipate the taint,' the United States Supreme Court, Inter alia, stated:

'The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of 'papers and effects.' Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. McGinnis v. United States, (CAL N.H.), 227 F.2d 598. Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion.

See Nueslein v. District of Columbia, 73 App.D.C. 85, 115 F.2d 690. Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence. * * *

'The Government argues that Toy's statements to the officers in his bedroom, although closely consequent upon the invasion which we hold unlawful, were nevertheless admissible because they resulted from 'an intervening independent act of a free will.' This contention, however, takes insufficient account of the circumstances. Six or seven officers had broken the door and followed on Toy's heels into the bedroom where his wife and child were sleeping. He had been almost immediately handcuffed and arrested. Under such circumstances it is unreasonable to infer that Toy's response was sufficiently an act of free will to purge the primary taint of the unlawful invasion.

'* * * We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. * * *'

We find no United States Supreme Court decision on this precise point since the decision in Wong Sun; however, the language used by the Supreme Court in Wong Sun has been interpreted by the state and lower federal appellate courts so as to produce a definite split of authority.

One line of authority holds that any confession made subsequent to an illegal arrest, regardless of its voluntariness, must be excluded.

In State v. Mercurio, 96 R.I. 464, 194 A.2d 574 (1963), the defendants were arrested whithout warrants for violation of the gambling statutes, a misdemeanor. The police had information that defendants' automobile was being used in connection with a gambling operation, but while observing the car had no reason to believe that a misdemeanor was being committed in their presence. The Rhode Island Supreme Court stated: '(T)he arrests of defendants having been made without warrants or probable cause, we hold that the moneys, documents and statements taken and elicited from them at the time of their detention were inadmissible * * *.' The Court interpreted Wong Sun as saying that 'all evidence seized and incriminating statements elicited from one whose arrest had not been made with probable cause were not admissible at his trial.'

The District of Columbia Court of Appeals considered this question in the case of Lyons v. United States, 221 A.2d 711 (1966). There, the defendant Lyons was arrested with no probable cause under the narcotics vagrancy statute. He was arrested while sitting in a car with a known narcotics user and thief, who had narcotics in his possession and who was also arrested. Police found needle marks on Lyons' arms and got his admission that he used narcotics. The Court stated: 'These items of evidence (the needle marks and the admissions) were obtained as a result of an illegal detention of Lyons and were not admissible against him.'

In Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666 (1963), the defendant was arrested for robbery without probable cause and without a warrant while walking down the street a mile and a half from the scene of the crime. After arriving at police headquarters, a few minutes after the illegal arrest, the defendant confessed. The Court in excluding the confession stated:

'Verbal evidence obtained from unlawful police action 'is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion.' Wong Sun v. United States. (Citations omitted) Accord, Fahy v. Connecticut, supra (375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171). The Government's attempt to distinguish Wong Sun on the ground that Miller's confession was only an attenuated fruit of his illegal arrest is not persuasive. In Wong Sun, the illegal arrest alone made the post-arrest admissions while still in custody poisonous fruit.'

In accord with this line of authority are: Commonwealth v. Young, 349 Mass. 175, 206 N.E.2d 694 (1965) (dictum); State v. Thompson, 1 Ohio App.2d 533, 206 N.E.2d 5 (1965); State v. Dufour, 99 R.I. 120, 206 A.2d 82 (1965).

The...