State v. Jackson , 280 N.C. 122 ( 1971 )

185 S.E.2d 202 (1971) 280 N.C. 122

STATE of North Carolina
v.
Helen Delores JACKSON, alias Pattie Jackson.

No. 93.

Supreme Court of North Carolina.

December 15, 1971.

Atty. Gen. Robert Morgan, Staff Attys. William Lewis Sauls and Richard B. Conely, Raleigh, and Associate Attorney Thomas E. Kane, N. C. Dept. of Justice, Raleigh, for the State.

Joe C. Weatherspoon and Jerry B. Clayton, Durham, for defendant appellant.

MOORE, Justice.

Defendant first contends that the search in question took place before she had been arrested. This contention is clearly without merit. While it is not clear whether the arresting officers stated to the defendant that she was under arrest when they took her into custody, it is clear that defendant was deprived of her liberty when she was detained at the Biltmore Grill and later taken to jail. For the purposes of this case, her arrest was then complete. Henry v. United States, 361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959); State v. Tippett, 270 N.C. 588, 155 S.E.2d 269 (1967).

The facts which Judge Bickett found on voir dire were amply supported by competent evidence in the record and are binding on us. State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). These facts fully support the conclusion that the arresting officers had reasonable grounds to believe that defendant had committed a felony and unless defendant was apprehended, she might escape and destroy any narcotic drugs she had on her person. Under these circumstances, the arrest without a warrant was justified, and a search incident to the arrest was proper. Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); Sibron v. New York and Peters v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959).

In State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971) it is stated:

"``A police officer may search the person of one whom he has lawfully arrested as an incident of such arrest.. . . 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. Roberts, 276 N.C. 98, 102, 171 S.E.2d 440, 443. Accord, State v. Tippett, 270 N.C. 588, 155 S.E.2d 269. ``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, 883, 367, 11 L. Ed. 2d 777, 780. Accord, Chimel v. California, 395 U.S. 752, 762-763, 89 S. Ct. 2034, 2040, 23 L. Ed. 2d 685, 694."

Defendant contends, however, that the search of defendant in this case cannot be justified as a search incident to a lawful arrest, since such search was not made until some 30 to 45 minutes after she was taken into custody. For a search and seizure incident to a lawful arrest to be constitutionally permissible, it must be "substantially contemporaneous with the arrest." Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964); Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964). In the instant case, the arresting officers had information that defendant had narcotic drugs concealed inside her brassiere when they took her into custody at the Biltmore Grill. This was probable cause for her arrest and the officers could have searched her immediately. State v. Harris, supra. Instead, the officers took her to jail where she could be searched in privacy by a police matron. In doing so the police officers acted lawfully and commendably. As stated in United States v. Robinson, 354 F.2d 109, 113 (2d Cir. 1965), cert. denied 384 U.S. 1024, 86 S. Ct. 1965, 16 L. Ed. 2d 1028, (1965):

"Narcotics and the implements with which it is sold and used are small items that can be secreted in numerous places on the body; an adequate search obviously required greater privacy than the street corner. More important, Annita Daniels was a woman and the arresting officers were men. It would have violated. . . all concepts of decency. . . if the officers had attempted a thorough search at the place of arrest."

Neither the removal of the defendant to the jail nor the delay of 30 to 45 minutes waiting for the matron to search her made the search too remote in time or place to be invalid as a search incident to a lawful arrest. Other jurisdictions have so held. United States v. Gonzalez-Perez, 426 F.2d 1283 (5th Cir. 1970); United States v. DeLeo, 422 F.2d 487, 491-493 (1st Cir. 1970), cert. denied 397 U.S. 1037, 90 S. Ct. 1355, 25 L. Ed. 2d 648 (1970); United States v. Miles, 413 F.2d 34 (3rd Cir. 1969); United States v. Caruso, 358 F.2d 184 (2d Cir. 1966), cert. denied 385 U.S. 862, 87 S. Ct. 116, 17 L. Ed. 2d 88 (1966); United States v. Powell, 407 F.2d 582 (4th Cir. 1969), cert. denied, 395 U.S. 966, 89 S. Ct. 2113, 23 L. Ed. 2d 753 (1969); Rangel v. State, 444 S.W.2d 924 (Tex.Crim.App.1969); Annot., 19 A.L.R. 3d 727 (1968).

The search in this case was valid as an incident to a lawful arrest, and the heroin found on the defendant's person was properly introduced in evidence. Therefore, it is not necessary to determine whether or not defendant consented to the search.

For the reasons stated above, the trial court's denial of defendant's motion to suppress the evidence obtained in the search of the defendant was without error.

No error.