State v. Hart

308 S.E.2d 474 (1983)

STATE of North Carolina v. Thomas G. HART.

No. 8310SC101.

Court of Appeals of North Carolina.

November 1, 1983.

*475 Atty. Gen. Rufus L. Edmisten by Ann Reed, Sp. Deputy Atty. Gen., and Doris Holton, Associate Atty. Gen., Raleigh, for the State.

Dean & Dean by Joseph W. Dean, Raleigh, for defendant-appellee.

VAUGHN, Chief Judge.

The issue on appeal is whether the trial court erred in concluding that the arrest and subsequent search of defendant were unlawful.

Under G.S. 15A-401(b), an officer may arrest, without a warrant, any person the officer has probable cause to believe has committed a criminal offense in his presence or a felony out of his presence. Under the North Carolina Controlled Substances Act, possession of heroin is a felony. G.S. 90-86, et seq.

In the instant case, police officers received information from a confidential and reliable informant that defendant would be in Raleigh at one of several specific locations in order to purchase heroin. Raleigh Police Officer J.H. Johnson observed defendant engage in two hand-to-hand transactions. First, at one of the locations specified, defendant gave money to a known heroin dealer. Later defendant received a shiny package from another known heroin dealer. We agree with the trial court that based on the informant's tip and the Officer's personal observations, probable cause existed, under G.S. 15A-401(b) to arrest defendant before surveillance was discontinued. See State v. Ketchie, 286 N.C. 387, 211 S.E.2d 207 (1975); State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970); State v. Ellis, 50 N.C.App. 181, 272 S.E.2d 774 (1980).

We disagree with the trial court, however, that probable cause disappeared upon the fifteen-minute hiatus in surveillance. Probable cause justifying an arrest without a warrant is evidence that warrants a reasonably prudent person's belief that a crime was committed and that defendant was the perpetrator. It is not proof of guilt nor prima facie evidence of *476 guilt, but consists of evidence, which, if submitted to a magistrate, would require issuance of an arrest warrant. State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971); State v. Odom, 35 N.C.App. 374, 241 S.E.2d 372 (1978). The evidence of defendant's guilt was the same after the break in surveillance as it was before. Had the evidence been submitted to a magistrate during or after the fifteen-minute interval, an arrest warrant would undoubtedly have followed.

It is elemental that an arresting officer may act on information supplied by others relating that a felony has been committed and describing the suspected felon. See State v. Roberts, supra, citing Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959). Although the arresting officers in the case at bar may not have had personal knowledge of all the facts justifying arrest, probable cause can be imputed from one officer to others acting at his request. State v. Tilley, 44 N.C.App. 313, 260 S.E.2d 794 (1979). Probable cause to arrest defendant in the instant case was imputed from Officer Johnson to the officers making the arrest.

Since the arrest of defendant was lawful, so too was the subsequent search of defendant's person. 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. State v. Harris, supra; State v. Roberts, supra. The contraband seized from defendant's person was connected with and competent evidence of the crime charged. Had there been no arrest, we would still find that exigent circumstances existed to justify a warrantless search of defendant and defendant's vehicle. See State v. Roberts, supra.

For the reasons stated, we find that the arrest of defendant was with probable cause and that the search of defendant's person was incident to a lawful arrest. The order of the trial court granting defendant's motion to suppress must, therefore, be reversed. The case is remanded for trial on the merits.

Reversed and remanded.

WELLS and JOHNSON, JJ., concur.