218 S.E.2d 184 | N.C. Ct. App. | 1975
STATE of North Carolina
v.
Cleveland N. LITTLE.
Court of Appeals of North Carolina.
*185 Atty. Gen. Rufus L. Edmisten, by Asst. Atty. Gen. Parks H. Icenhour, Raleigh, for the State.
Casey & Daley, P. A., by William G. Jones and Walter H. Bennett, Jr., Charlotte, for defendant appellant.
Certiorari Denied by Supreme Court November 5, 1975.
BRITT, Judge.
Defendant assigns as error the trial court's failure to suppress evidence derived from a search prior to arrest. We find no merit in this assignment.
The search of the Lowry house was lawful and evidence derived therefrom was properly admitted into evidence. The validity of evidence against a criminal defendant obtained from a search consented to by a third person owner or occupant has been approved by the United States Supreme Court. Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969). This rule was reaffirmed in Schneckloth v. *186 Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Clearly, a search consented to by the owner or person in control of a residential dwelling is constitutionally proper. United States v. Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). Furthermore, defendant had no interest in the house other than the stolen business machines, therefore, he lacks standing to contest Lowry's consent to a search producing evidence that implicated him. State v. Fowler, 172 N.C. 905, 90 S.E. 408 (1906); State v. Penley, 284 N.C. 247, 200 S.E.2d 1 (1973).
We turn next to the validity of defendant's arrest. While not squarely presented in the briefs, the question appears to be presented at least by implication.
Except as authorized by statute any arrest without a warrant is unlawful. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954); State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969). Former G.S. § 15-41(2), which was in effect on the day in question, empowered peace officers to arrest without a warrant when they had reasonable ground to believe that a felony had been committed and the suspect would evade arrest if not taken into custody. The basis of this reasonable ground for belief is drawn from the totality of facts and circumstances surrounding the arrest, known to the officers. State v. Jacobs, 277 N.C. 151, 176 S.E.2d 744 (1970). Factors involved in arriving at this determination include ". . . the nature of the felony, the hour of the day or night, the character and reputation of the neighborhood where the arrest was made, the number of suspects, and of the officers available for assistance, and the likely consequence of the officers' failure to act promptly." State v. Roberts, 6 N.C. App. 312, 315-16, 170 S.E.2d 193, 195-96 (1969), aff'd, 276 N.C. 98, 171 S.E.2d 440 (1969); See, e. g., State v. Kennon, 20 N.C. App. 195, 201 S.E.2d 80 (1973).
When confronted with the business machines, which just moments before officers had observed him carry into a house which they believed to be the base of a "fencing" operation, defendant denied knowing anything about the machines or their ownership. At this point, facts and circumstances crystalized to form a reasonable ground for officers to believe defendant had committed a felony and would evade arrest if not taken into custody. Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). By defendant's actions, officers were in possession of sufficient facts "...to awaken a suspicion of his being himself the guilty party..." Neal v. Joyner, 89 N.C. 287, 291 (1883). Under former G.S. § 15-41(2) actual knowledge of an existing felony was not an essential incident of an officer's reasonable grounds of belief. State v. Allen, 15 N.C. App. 670, 190 S.E.2d 714 (1972), rev'd other grounds, 282 N.C. 503, 194 S.E.2d 9 (1972).
While we do not reach the question, we note that it has been held that the fact that an original arrest might have been unlawful does not affect the jurisdiction of the court, is not a ground for quashing the indictment, and does not preclude trial of the accused for the offense. 5 Am.Jur.2d, Arrest, § 116, p. 796.
We have considered the other assignments of error brought forward and argued in defendant's brief but find them to be without merit. We conclude that defendant received a fair trial free from prejudicial error.
No error.
HEDRICK and MARTIN, JJ., concur.
