State v. Harris

182 S.E.2d 364 (1971) 279 N.C. 307

STATE of North Carolina
v.
Henry Lee HARRIS.

No. 15.

Supreme Court of North Carolina.

July 30, 1971.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Myron C. Banks, and Staff Atty. Ronald M. Price, Raleigh, for the State.

James J. Caldwell, Charlotte, for defendant appellant.

SHARP, Justice:

Defendant appeals upon the assumption that his warrantless arrest was without probable cause; that the accompanying search of his person was therefore illegal and the fruits of the search inadmissible in evidence against him. He concedes, ex necessitate, that if State's Exhibits 1 and 2 were admissible the case was properly submitted to the jury. State v. Bell, 270 N.C. 25, 153 S.E.2d 741.

"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, 367, 84 S. Ct. 881, 883, 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.

Thus, the determinative question here is whether defendant was under lawful arrest at the time Officer Kirkpatrick searched him and found stolen property which had been recently removed from the Gilleland home. An arrest without warrant, except as authorized by statute, is illegal. State v. McCloud, 276 N.C. 518, 173 S.E.2d 753. G.S. § 15-41(2) authorizes a peace officer without warrant to arrest a person "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."

Probable cause and "reasonable ground to believe" are substantially equivalent terms. "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. One does not have probable cause unless he has information of facts which, if submitted to a magistrate, would require the issuance of an arrest warrant." 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, supra, § 48. Accord, Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L. Ed. 1879, 1890; State v. Roberts, supra; Carson v. Doggett and Ward v. Doggett, 231 N.C. 629, 58 S.E.2d 609.

The facts, which Judge Beal 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. They disclose that the following factual and practical considerations actuated Officer Kirkpatrick to arrest defendant: (1) Between 3:00 and 3:45 p. m. one or more persons feloniously broke and entered the Gilleland home and feloniously took and carried away therefrom two televisions, one radio, coins, jewelry, and other property of value. (2) Back of the Gilleland home, outside the fence, which appeared to have been "mashed down," Kirkpatrick found footprints which led into a wooded area. (3) He followed the tracks into the woods, searched the area, and found the two stolen TV's and the radio beneath a tree and some bushes. (4) About four hours later, shortly after dark, he saw defendant enter the area by a path which he followed a short distance and then went off the path to the point where Kirkpatrick had found the televisions and radio. (5) After looking around defendant retraced his steps, leaving the area the way he had come.

In our opinion these facts would warrant legal technicians, as well as reasonable and prudent laymen, in believing defendant to be guilty of the crimes of felonious breaking and entering and felonious larceny. We hold that Officer Kirkpatrick had reasonable ground upon which to believe that defendant had committed the two felonies for which he was subsequently indicted; that he would evade arrest if not immediately taken into custody; and that the search of his person (which produced positive evidence of his guilt) was legal. Defendant's contentions that the trial court erred in its findings of fact on voir dire and that the facts found do not support the court's conclusions are without merit. Defendant's other contentions, fully discussed in the opinion of the Court of Appeals, are likewise untenable.

In the decision of the Court of Appeals we find

No error.