State v. Gwaltney

228 S.E.2d 764, 31 N.C. App. 240, 1976 N.C. App. LEXIS 1962

• Court: Court of Appeals of North Carolina
• Decided: October 20, 1976
• Docket: 7611SC419
• Status: Published

Opinion

BROCK, Chief Judge.

Defendant argues that the failure of the investigating officer to advise defendant of her Miranda rights before question ing her at the hospital renders her admission that she was driving the automobile inadmissible and that since this was the only evidence of who was driving, the arrest of defendant was unconstitutional.

The findings by the trial court on voir dire accurately sum up the situation:

“ . . . that the defendant had not been placed under arrest at the time of the preliminary questioning by Officer Bullock nor was she in custody of the said officer and . . . the questions related primarily to ownership and operation of the automobile involved and the facts leading up to the wreck. ...”

Such questioning is necessary for the purpose of preparing the official accident report which is required to be filed. They are investigatory and not accusatory. The Miranda warnings and waiver of counsel are only required when a defendant is being subjected to custodial interrogation. State v. Blackmon, 284 N.C. 1, 199 S.E. 2d 431 (1973). See also State v. Sykes, 285 N.C. 202, 203 S.E. 2d 849 (1974). This argument is without merit.

Defendant next argues that either her motions for nonsuit or her motion to set aside the verdict should have been allowed because her. arrest was illegal under G.S. 15-41(1), which statute was in effect on the date of her arrest. General Statute 15-41(1) (repealed effective 1 July 1975) provided that a peace officer may arrest without a warrant “[w]hen the person to be arrested has committed a felony or misdemeanor in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.” Defendant argues that the statutory requirements were not met in this case. The reasoning in State v. Eubanks, 283 N.C. 556, 196 S.E. 2d 706 (1973), is applicable to this case. Clearly, Trooper Bullock had probable cause to arrest defendant, and the arrest was therefore constitutionally valid. “When an arrest is constitutionally valid but illegal under the law of North Carolina, must the facts discovered or the evidence obtained as a result of the arrest be excluded as evidence in the trial of the action? -The answer is no. An unlawful arrest may not be equated, as defendant seeks to do, to an unlawful search and seizure. ...” State v. Eubanks, supra, p. 560. A dismissal of charges because of an arrest illegal under state law, but which is constitutionally valid, is likewise unwarranted. This argument is overruled.

Defendant’s argument upon the admission of evidence is wholly without merit and is overruled.

No error.

Judges Vaughn and Martin concur.