283 N.C. 203
N.C.
1973

Lead Opinion

HUSKINS, Justice.

This сase involves the admissibility of evidence obtained by officers as a result of defendant’s on-the-street arrest and the *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 reasonablе 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 wоuld 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 рragmatic 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 “whethеr 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 аrrest 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 *208a search warrant, to make a contemporaneous search of the person of the аccused 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 glanсes 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 rеcognize 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 thе 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).

*209It follows that the search of defendant’s pеrson 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 thе 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 suсh 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 рersons 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 thе 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. 1868 (1968), the Court held, among other things, that “the central inquiry under the Fourth Amendment [is] the reasonableness in all the cirсumstances of the particular governmental invasion of a citizen’s personal liberty. * * * *210[W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating ‍‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌‌​‌​‌‌‌‌‌​‌‌​​​‌​‌​​‌​‌​‌​‌​‍at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power tо take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.”

The Court then recognized that it is not always unreasonable to seize a person and subject him to a limited search for weapons wherе there is no probable cause for an arrest, stating: “ [W] here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dаngerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself аnd others in the area to conduct a carefully limited search of the outer clothing of such person in an attempt to discover weapons which might to be used to assault him.” Terry v. Ohio, supra.

Thus, if the totality of circumstances affords an officer reasonable grounds to believe that criminal activity may bе afoot, he may temporarily detain the suspect, If, after the detention, his personal observations confirm his apprehension that criminal activity may be afoot and indicate that the person may be armed, he may then frisk him as a matter of self-protection. Terry v. Ohio, supra. See Adams v. Williams, 407 U.S. 143, 32 L.Ed. 2d 612, 92 S.Ct. 1921 (1972).

When the foregoing principles are applied to the facts in this case, it is apparent that when Officer Bullock saw the bulge protruding beneath defendant’s shirt under suspicious circumstances at 2:45 a.m. on a deserted street, it was entirely reasonable by Fourth Amendment standards to conduct a limited protectivе search for weapons immediately. Contraband evidence of crime necessarily exposed by the limited weapons search is evidence lawfully obtained, and neither the Fourth Amendment nor G.S. 15-27 (a) excludes it.

*211For the reasons herein stated the decision of the Court of Appeals uрholding the verdict and judgment is

Affirmed.

Justice Sharp concurs in result.



Dissenting Opinion

Justice Higgins

dissenting.

Certain parts of the evidence which I deem material are not referred to in the Court’s opinion.

At the time here involved, 2:45 in the morning, Officer Bullock and a companion were on routine patrol, not investigating any particular offense and not in search of any suspect for any offense. Officer Bullock testified: “When I first observed the defendant he was on West Fifth Street. He was approximately five feet from the road pavement. ... I stopped the defendant because he turned around and looked at me and looked back. I didn’t see who it was and at that time of the morning I thought it was my job to see who it was. I did not ask permission to search the defendant before I touched that object. The shirt came down over the object and I could not see anything. The bulge was on the right hand side on his hip. ... I thought the object underneath the defendant’s shirt was a gun. I thought it was a gun by instinct.”

The officer further testified that the first object he removed from the defendant’s pocket was a glove. He testified that the object he touched was a screwdriver. After finding the object in the defendant’s pocket was not a pistol, he continued the search and removed ‍‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌‌​‌​‌‌‌‌‌​‌‌​​​‌​‌​​‌​‌​‌​‌​‍anothеr glove, a pry bar, a flashlight, and a money bag from the defendant’s pocket. These objects were offered in evidence over the defendant’s objection. Their admissibility, of course, depended on the legal validity of the search which produced them.

Every citizen has a constitutional right to be free from unreasonable search and seizure. Neither the lawmaking body, nor the Court can take the right away. A seizure of the person takes place when the law enforcement officer by physical force or show of authority curtails the liberty of the citizen to go and cоme as he pleases. Before the officer places a hand on the person of a citizen in search of anything, he must have constitutionally adequate ground for doing so. Terry v. Ohio, 392 *212U.S. 1. A lawful search, of the person may be made in two instances: (1) Where the officer has a valid warrant; (2) where a protective search is made incident to a lawful arrest without a warrant. In a later case the Supreme Court of the United States in Sibron v. New York, 392 U.S. 40, states the rule: “In the case of the self-protective search for weapons, he [officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.”

In the case now before us, the hour was 2:45 a.m. The defendant was on a public street in Greenville. There was no curfew in effect. The defendant looked at the officers as they approached. This fact the officer сites as one of the reasons why he became suspicious and considered it his duty to investigate further. Obviously, at the time and under the circumstances it would have been more suspicious if the defendant had refused to look in the direction of the officers. When the officers stopped and interrogated the defendant, Officer Bullock saw a bulge in the defendant’s hip pocket. Without permission he placed his hand on the object, found it was metal, and proceeded to search, ascertaining that the metal object was a screwdriver. At this juncture it would seem that the officer should hаve been satisfied that his instinct had misled him. However, instead he proceeded to continue the search, emptying the defendant’s pockets. This sort of search is described by the Supreme Court of the United States in these words: “A general exploratory rummaging.” Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564.

Nowhere have I been able to find where a court has approved a search with so little factual background. The cases where the court has approved a search have been connected with recent violations of the law and the persons searched were in close proximity thereto. In Robinson v. Commonwealth, 207 Ky. 53, the аrresting officer could see the outlines of a pistol and identified it as such on the person of the defendant. In Banks v. Commonwealth, 202 Ky. 762, the officer heard shots, thereafter saw a bulge in the defendant’s ‍‌​‌‌‌‌‌​‌‌‌​​‌​‌‌‌​‌‌​‌​‌‌‌‌‌​‌‌​​​‌​‌​​‌​‌​‌​‌​‍pocket, arrested him, and obtained the pistol. In U. S. v. Lee, 271 A. 2d 566, the defendant was observed outside a store which had been robbed. The police asked for his identification and when he reached for his wallet, they noticed a bulge under his shirt, frisked him, and found the pistol. In Williams v. State, 253 A. 2d 786, officers *213stopped a suspect who was leaving the scene of a homicide. He matched the description given and when the officer noticed a bulge, he sеarched and found a pistol.

Though not raised in the record or discussed in the briefs is the question whether the objects found on the defendant are within the proper definition of burglary tools or implements of housebreaking and whether the defendant possessed them without lawful, excuse. The defendant testified he was on his way to Samuel Dixon’s house. All the tools are suitable to legitimate use. State v. Morgan, 268 N.C. 214, 150 S.E. 2d 377; State v. Garrett, 263 N.C. 773, 140 S.E. 2d 315. A small pry bar is in general use in practically every home as a bottle or can opener. If we concede the implements may be within the contained classification, their discovery cannot be used to authorize a search for a pistol. “Such unlawful search is not made lawful because of resulting discoveries.” State v. McCloud, 276 N.C. 518, 173 S.E. 2d 753. See also Mapp v. Ohio, 367 U.S. 643, 6 L.Ed. 2d 1081.

I vote to reverse the decision of the Court of Appeals.

Chief Justice Bobbitt joins in this dissenting opinion.