State v. Streeter

• Citation: 283 N.C. 203,195 S.E.2d 502
• Decision Date: 11 April 1973
• Docket Number: No. 22,22
• Parties: STATE of North Carolina v. George STREETER.
• Court: United States State Supreme Court of North Carolina

Page 502

195 S.E.2d 502

283 N.C. 203

STATE of North Carolina v. George STREETER.

No. 22.

Supreme Court of North Carolina.

April 11, 1973.

Robert Morgan, Atty. Gen., Christine Y. Denson, Asst. Atty. Gen., for the State of North Carolina.

William E. Grantmyre, Greenville, Attorney for defendant appellant.

HUSKINS, Justice:

This case involves the admissibility of evidence obtained by officers as a result of defendant's on-the-street arrest and the accompanying search of his person. Defendant contends his warrantless arrest was without probable cause, the search of his person illegal, and the fruits of the search inadmissible in evidence against him.

We first determine whether the facts afforded the officers probable cause to arrest defendant and whether the search of his person was incident to that arrest.

'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.' 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 Arrests § 48. Accord, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970).

An arrest is constitutionally valid when the officers have probable cause to make it. Whether probable cause exists depends upon 'whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.' Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

It is provided by statute that a peace officer may make an arrest without a warrant: '(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; . . .' G.S. § 15--41.

When a person is lawfully arrested a search of his person may be made without a search warrant. '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, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). Accord, State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971).

What were the factual and practical grounds in this case which actuated Officers Bullock and Nichols to arrest defendant and search him? They may be enumerated as follows: (1) Defendant cast furtive glances toward the police car as it approached him; (2) the hour was 2:45 a.m., the streets of Greenville were deserted save for defendant alone, and he was walking or standing beside the road a few hundred feet from a doctor's office and other business establishments; (3) the officers did not recognize defendant but observed his shirttail outside his trousers and hanging below his waist; (4) the officers stopped to learn defendant's identity and make inquiry concerning his destination; (5) when Sergeant Bullock approached defendant and engaged him in conversation he 'saw something bulging from under his shirt' on the right side where a holster and revolver would ordinarily be located; (6) thinking the bulging object was a revolver, the officer told defendant 'not to move,' touched the bulge and it felt like metal, and then reached under defendant's shirttail and discovered the burglary tools.

In our opinion these facts would actuate any reasonably prudent man acting in good faith to believe that defendant was carrying a concealed weapon in the presence of the officer, a violation of G.S. § 14--269. Thus there was probable cause for the arrest which ensued.

Such probable cause arose when, in the nocturnal setting depicted by the evidence, Officer Bullock saw the bulge. Defendant was not under arrest prior to that time--no arrest was effected by merely stopping the police car beside defendant and getting out to talk to him. Accord, Knight v. State, 502 P.2d 347 (Okl.Cr.1972). 'No one is protected by the Constitution against the mere approach of police officers in a public place.' United States v. Hill, 340 F.Supp. 344 (E.D.Pa.1972). Nor is there anything in the Constitution which prevents a policeman from addressing questions to anyone on the streets. See concurring opinion of Mr. Justice White in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

It follows that the search of defendant's person was incident to a lawful arrest and the fruits of the search were properly admitted in evidence. Neither his seizure under the circumstances revealed by this record nor the search of his person was unlawful by Fourth Amendment standards.

The Court of Appeals held, and properly so, that even in the absence of probable cause to arrest these officers had a right, upon the facts here, to search defendant for dangerous weapons for their own self-protection.

Crimes of violence are on the increase, and officers are becoming the victims of such crimes in increasing numbers. As a result the necessity for officers to protect themselves and others in situations where probable cause for an arrest may be lacking is now recognized and permitted. Of course, North Carolina has no 'stop and frisk' statute although many states do. See Raphael, 'Stop and Frisk' in a Nutshell: Some Last Editorial Thrusts and Parries Before It All Becomes History, 20 Ala.L.Rev. 294 (1968). The lack of such statute, however, is not fatal to the authority of law enforcement officers in North Carolina to stop suspicious persons for questioning (field interrogation) and to search those persons for dangerous weapons (frisking). These practices have been a time-honored police procedure and have been recognized as valid at common law 'as a reasonable and necessary police authority for the prevention of crime and the preservation of public order.' People v. Rivera, 14 N.Y.2d 441, 252 N.Y.S.2d 458, 201 N.E.2d 32 (1964), and authorities cited. See also, United States v. Vita, 294 F.2d 524 (2d Cir. 1961); Cook, Detention and the Fourth Amendment, 23 Ala.L.Rev. 387 (1970--71); LaFave, 'Street Encounters' and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich.L.Rev. 40 (1968). Since the common law, unless abrogated or repealed by statute, is in full force and effect in this State, G.S. § 4--1, the absence of statutory authority to stop and frisk does not render these common law practices illegal in our State.

Nor does the Federal Constitution prohibit them when they are reasonably employed. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court held, among other things, that 'the central inquiry under the Fourth Amendment (is) the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security. * * * (W)e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.'

The Court then recognized that it is not always unreasonable to seize a person and subject him to a limited search for weapons where there is no probable cause for an arrest, stating: '(W)here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.' Terry v. Ohio, supra.

Thus, if the totality of circumstances affords an officer reasonable grounds to believe that criminal activity may be afoot, he may temporarily detain the suspect. If, after the detention, his personal observations confirm his apprehension that criminal activity may be afoot...