35 N.C. App. 374 | N.C. Ct. App. | 1978
Appellate review of the order denying defendant’s motion to suppress evidence is authorized by G.S. 15A-979(b).
Defendant argues that there was no probable cause for the search of his person, that no existing circumstances permitted a warrantless search of defendant, and that the trial court therefore erred in denying his motion to suppress evidence seized in that search. We do not agree.
In State v. Wooten, 34 N.C. App. 85, 237 S.E. 2d 301 (1977), this Court held that where a search of a suspect’s person occurs before, instead of after, formal arrest, such search can be equally justified as “incident to the arrest” provided probable cause to arrest existed prior to the search and provided it is clear that the evidence seized was in no way necessary to establish the probable cause.
Our Supreme Court has defined probable cause as follows:
“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.’ ”
State v. Harris, 279 N.C. 307, 311, 182 S.E. 2d 364, 367 (1971).
Defendant argues that the State failed to show that Officer Frye had enough information to satisfy a magistrate that a warrant should be issued. He relies on Aguilar v. Texas, 378 U.S. 108,
In the present case Officer Frye had sufficient information to meet both tests. First,, a reliable informant, who had himself sold heroin, told Frye in the first conversation that he had seen the heroin on defendant’s person; furthermore, he gave him details about the purchase to be made at Flowe’s house. In their second conversation the informant told Frye that he had overheard Gray and the defendant, and that the two of them were delayed while Gray sought money. Secondly, Officer Frye testified that he had used the same informant on previous occasions and that he had been reliable in the past. Even without considering the evidence of the gun drawn by Flowe, we conclude that there was probable cause to arrest defendant and that the search incident to the arrest was lawful.
Defendant’s second argument is that the search was illegal because the police officers failed to get a search warrant under conditions which required a search warrant. Since we have already concluded that this search was incident to an arrest — an exception to the rule requiring warrants — defendant’s argument has no merit. Moreover, an officer may arrest without a warrant any person who the officer has probable cause to believe (1) has committed a criminal offense in the officer’s presence, or (2) has committed a felony. G.S. 15A-401(b). See, e.g. State v. Hardy, 31 N.C. App. 67, 228 S.E. 2d 487 (1976). Officer Frye, based on the evidence in this case, had probable cause to believe that defendant had committed a criminal offense in his presence and that defendant had committed a felony.
Affirmed.
