State v. Matthews

251 S.E.2d 897 (1979)

STATE of North Carolina v. Thelton Benjamin MATTHEWS.

No. 786SC883.

Court of Appeals of North Carolina.

February 20, 1979.

*899 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. William B. Ray and Deputy Atty. Gen. William W. Melvin, Raleigh, for the State.

Rosbon D. B. Whedbee, Whedbee & Riddick, Murfreesboro, for defendant appellant.

ARNOLD, Judge.

Defendant contends that the charges against him should have been dismissed because his arrest was illegal and unconstitutional. He argues that the Ahoskie policemen arrested him outside their territorial jurisdiction, that Trooper Banks had no probable cause to make an arrest, and that there was no probable cause determination by a judicial officer after his arrest.

G.S. 15A-402(c) sets the territorial jurisdiction for arrests by city policemen at one mile outside the city limit. The evidence here is uncontradicted that defendant was stopped by the Ahoskie policemen more than two miles outside the city limit. The question is whether the arrest took place at that point, or later at the police station. If the former is the case, the arrest was illegal, since where arrests are regulated by statute, an arrest which does not comply with the statute is illegal. Cf. State v. Williams, 31 N.C.App. 237, 229 S.E.2d 63 (1976). But we find it unnecessary to determine whether the arrest was illegal, since an arrest, though illegal, may be constitutionally valid, State v. Eubanks, 283 N.C. 556, 196 S.E.2d 706, reh. den. 285 N.C. 597 (1973), and "[t]he fact that an original arrest may have been unlawful . . . does not preclude trial of the accused for the offense." 5 Am.Jur.2d, Arrest § 116 at 796.

It is also argued by defendant that the arrest was illegal because there was no issuance of a magistrate's order showing a finding of probable cause as required by G.S. 15A-511(c)(3). Such compliance, however, is not mandatory, and a failure to comply will not affect the validity of a trial. State v. Burgess, 33 N.C.App. 76, 234 S.E.2d 40 (1977). Defendant has shown no prejudice by the non-compliance and we believe he could show none, since on the day of his arrest he was in fact taken before a magistrate, who signed an order of commitment and a release order. Defendant secured his release shortly thereafter by giving an appearance bond.

Defendant further contends that Trooper Banks had no probable cause to arrest him at the police station, because the requirements of G.S. 15A-401(b)(2)b were not met. This subsection requires an officer making an arrest without a warrant for a misdemeanor committed out of his presence to have probable cause to believe (1) that the person has committed a misdemeanor and (2) that the person will not be apprehended unless immediately arrested, or that he may injure himself or others unless immediately arrested.

We find no merit in defendant's contention that Banks had no probable cause to believe that defendant had committed a misdemeanor, the first requirement of G.S. 15A-401(b)(2)b. Sergeant Hoggard testified that "[w]hen we got to the police station, I explained the facts to Mr. Banks." Chief Willoughby radioed the police station after he had stopped the car and "asked what Trooper Banks wanted to do and he said for us to ask them if they would come to town." Trooper Banks testified that Hoggard and Willoughby told him where they had stopped defendant, and that he was under the influence in their opinion. "As a result of what they told me, I placed [defendant] under arrest . . . ." Banks observed that defendant was unsteady on his feet and had a strong odor of liquor on his breath. Defendant was unable to perform the balancing tests Banks gave him.

*900 Considering Banks' own observations of defendant, and information given him by the other officers, there was ample evidence to provide Trooper Banks with probable cause to believe that a misdemeanor had been committed. Obviously information given by one officer to another officer is reasonably reliable information to provide probable cause. In re Gardner, 251 S.E.2d 723 (1979). "Probable cause and `reasonable ground to believe' are substantially equivalent terms." State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364, 367 (1971). "[W]hether probable cause exists depends upon whether at that moment the facts and circumstances within [the officer's] knowledge and of which [he has] reasonably trustworthy information are sufficient to warrant a prudent man in believing that the suspect has committed or is committing an offense." 1 Strong's N.C. Index 3d, Arrest and Bail § 3.1 at 415. The same evidence that provides probable cause for a belief that a misdemeanor had been committed is sufficient to provide probable cause to believe that defendant might injure himself or others if allowed to leave the police station at that time. Cf. State v. Eubanks, supra.

Defendant's other assignments of error have been reviewed and do not avail.

No error.

PARKER and WEBB, JJ., concur.