State v. Roberts
| Decision Date | 06 January 1970 |
| Docket Number | No. 60,60 |
| Citation | 276 N.C. 98,171 S.E.2d 440 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Robert Allen ROBERTS. |
Robert Morgan, Atty. Gen., William F. Briley, Trial Atty., James E. Magner, Staff Atty., for the State.
Nance, Collier, Singleton, Kirkman & Herndon, by Rudolph G. Singleton, Jr., James R. Nance, Jr., Fayetteville, for defendant.
A police officer may search the person of one whom he has lawfully arrested as an incident of such arrest. State v. Haney, 263 N.C. 816, 140 S.E.2d 544. 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. Tippett, 270 N.C. 588, 155 S.E.2d 269. The defendant having been placed under arrest by Lieutenant Studer upon the charge of unlawful possession of narcotics, specifically lysergic acid diethylamide, commonly known as LSD, the pills containing that substance, found upon his person and taken from him by the arresting officer in the course of a search made at the scene of the arrest and immediately following it, were obviously competent evidence of his having committed the offense charged, if the arrest was lawful.
G.S. § 90--88 provides, 'It shall be unlawful for any person to * * * possess * * * any narcotic drug, except as authorized in this article (Art. 5, c. 90, General Statutes of North Carolina, entitled 'Narcotic Drug Act').' G.S. § 90--87(9), defining terms used in that Act, provides, "Narcotic drugs' means * * * lysergic acid diethylamide * * *.' G.S. § 90--109 provides, 'In any * * * indictment, and in any action or proceeding brought for the enforcement of any provision of this article, it shall not be necessary to negative any exception * * * and the burden of proof of any such exception * * * shall be upon the defendant.' G.S. § 90--111(a) provides, 'Any person violating any provision of this article * * * shall upon conviction be punished, for the first offense, by a fine of not more than one thousand dollars ($1,000.00), or be imprisoned in the penitentiary for not more than five years, or both, in the discretion of the court.' G.S. § 14--1 provides, 'A felony is a crime which * * * (3) is or may be punishable by imprisonment in the State's prison * * *.'
Consequently, it is a felony to possess lysergic acid diethylamide in any quantity for any purpose, in the absence of proof that the possession was lawful under the provisions of the Narcotic Drug Act. This is the offense with which the defendant was charged by the arresting officer at the time of arrest and of which he has been convicted. If, therefore, the arrest of the defendant without a warrant upon this felony charge was lawful under the then existing circumstances, there was no error in the judgment imposing a sentence within the limits prescribed by the statute.
The right of a police officer to arrest a person without a warrant is set forth in G.S. § 15--41, which reads as follows:
'When Officer May Arrest Without Warrant.--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;
'(2) 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.'
It will be observed that this statute has two independent provisions. Subparagraph (1), in turn, applies to two situations, the first being where the person to be arrested has actually committed a felony or misdemeanor in the presence of the arresting officer, and the second being where, whether or not the offense has actually been committed, the officer has reasonable ground to believe that the person arrested has committed a felony or misdemeanor in his presence. Subparagraph (2) relates to the arrest of a person whom the arresting officer has reasonable ground to believe has committed a felony, irrespective of whether it is believed that such felony was committed in the presence of the arresting officer or elsewhere.
It is only in the situation to which subparagraph (2) is applicable that the statute makes it a condition to the right of the officer to arrest without a warrant that the arresting officer has reasonable ground to believe the person to be arrested will evade arrest if not immediately taken into custody. The likelihood of evasion of arrest, frequently referred to as the likelihood of escape, by the person to be arrested is not a factor to be considered in determining the right of a police officer to arrest without a warrant when the offense, felony or misdemeanor, has been committed in the presence of the officer, or when the officer has reasonable ground to believe that the offense has been committed in his presence by the person to be arrested.
The felony, of which the defendant has been convicted, is the possession of lysergic acid diethylamide. This is a continuing offense, committed wherever, whenever, and so long as a person has such substance in his possession, whatever the purpose of such possession may be. Thus, the offense with which the defendant was charged, and of which he has been convicted, was committed in the washerette, in the actual presence of the officers, whether or not it was also committed on the parking lot adjoining the Village Shoppe Restaurant.
For present purposes, we need not determine whether the right of a police officer to arrest without a warrant extends to the arrest of a person who has actually committed a felony or misdemeanor in the presence of the officer, of which actual offense the officer is unaware at the time of the arrest. For the determination of the present appeal, it is sufficient that, at the time of the arrest of this defendant, Lieutenant Studer had reasonable ground to believe the defendant was then in possession of some quantity of lysergic acid diethylamide.
The undisputed evidence in this record is clearly sufficient to support the finding by the trial judge that the arresting officer had reasonable ground to believe that the defendant, at the time of his arrest, was in the possession of some quantity of this substance and, therefore, was presently committing a felony in the presence of these two officers. Agent Windham, some twenty minutes earlier, had been advised by a confidential informer, with whom he had previously worked in making narcotics investigations and who had on many previous occasions given Agent Windham 'good and reliable information pertaining to narcotics,' that the defendant and a male companion were each in possession of a quantity of lysergic acid diethylamide and were then 'dealing in it' in the vicinity of the Village Shoppe Restaurant. Lieutenant Studer was given this information by his fellow officer. Together they observed the defendant's conduct at the place named by the informer. What they saw, considered in the light of their own experience in the investigation of such offenses, confirmed, in their opinion, the information so given by the informer to Agent Windham. The departure of the defendant and his companion from the scene of...
To continue reading
Request your trial
-
State v. Allen, 71
... ... First, a warrantless search and seizure may be made when it is incident to a valid arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856; State v. Jackson, supra; State v. Roberts, 276 N.C. 98, 171 S.E.2d 440; State v. Shedd, 274 N.C. 95, 161 S.E.2d 477 ... Second, evidence obtained by officers without a search warrant is admissible in evidence where the articles are seized in plain view without necessity of search. Harris v. United States, 390 U.S. 234, 88 ... ...
-
State v. Bone, 281A99.
...may be required as evidence thereof." State v. Harris, 279 N.C. 307, 310, 182 S.E.2d 364, 366-67 (1971) (quoting State v. Roberts, 276 N.C. 98, 102, 171 S.E.2d 440, 443 (1970)). "Further, a search may be made before an actual arrest and still be justified as a search incident to arrest, if,......
-
State v. Phifer, 11
...be based upon information given to the officer by another, the source of such information being reasonably reliable.' State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970). State v. Shore, In present case, Officer Phillips had been notified by the State Highway Patrol radio dispatcher that t......
-
State v. Smith
...364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970); State v. Shedd, 274 N.C. 95, 161 S.E.2d 477 (1968). See generally Comment, 'Warrantless Searches and Seizures of Automob......