State v. Streeter

195 S.E.2d 502, 283 N.C. 203, 1973 N.C. LEXIS 932
CourtSupreme Court of North Carolina
DecidedApril 11, 1973
Docket22
StatusPublished
Cited by92 cases

This text of 195 S.E.2d 502 (State v. Streeter) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Streeter, 195 S.E.2d 502, 283 N.C. 203, 1973 N.C. LEXIS 932 (N.C. 1973).

Opinions

HUSKINS, Justice.

This case involves the admissibility of evidence obtained by officers as a result of defendant’s on-the-street arrest and the [207]*207accompanying 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, 93 L.Ed. 1879, 69 S.Ct. 1302 (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, 13 L.Ed. 2d 142, 85 S.Ct. 223 (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 [208]*208a 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, 11 L.Ed. 2d 777, 84 S.Ct. 881 (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 (Okla. Crim. App. 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. Jusice White in Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868 (1968).

[209]*209It 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, 20 L.Ed. 2d 889, 88 S.Ct.

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Bluebook (online)
195 S.E.2d 502, 283 N.C. 203, 1973 N.C. LEXIS 932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-streeter-nc-1973.