State v. Booker

261 S.E.2d 215 (1980)

44 N.C. App. 492

STATE of North Carolina v. Gloria Ann BOOKER.

No. 7921SC656.

Court of Appeals of North Carolina.

January 8, 1980.

Appeal Dismissed February 6, 1980.

*216 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. David S. Crump, Raleigh, for the State.

Tanis & Tally by David R. Tanis, Winston-Salem, for defendant-appellant.

Appeal Dismissed by Supreme Court February 6, 1980.

ARNOLD, Judge.

Defendant argues that the warrantless search of the brown leather purse she wore at her waist was unreasonable. She relies upon Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576, 585 (1967), where the United States Supreme Court indicated that "searches conducted outside the judicial process, without prior approval by Judge or Magistrate, are per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions." However, among the approved exceptions is that made for searches incident to a lawful arrest, see Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971), and we find that this exception applies to justify the search in the instant case.

The sequence of events here is not the usual one which appears in "search incident" cases. Most often, an officer with probable cause to arrest does so, and conducts a contemporaneous search of the arrestee's person and the area within his immediate control. E. g. State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970). Here, however, the officer, with sufficient probable cause to arrest, approached defendant and, without arresting her, explained to her the information he had received and told her that he intended to search her. She resisted, he placed her under arrest for delaying *217 an officer, and he then conducted a search of the pouch she wore at her waist.

In determining whether this search was incident to a lawful arrest, we are aided by the decision in Peters v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968). There the officer, having probable cause to arrest, pursued the defendant, caught him, and patted him down. While the officer never formally announced that defendant was under arrest, the Court referred to the fact that probable cause for the arrest existed before the defendant was seized, and concluded that "the arrest had, for purposes of constitutional justification, already taken place before the search commenced." Id. at 67, 88 S. Ct. 1905, 20 L. Ed. 2d 937. Here, as in Peters, probable cause to arrest existed before the search commenced, and we do not find that the officer's failure to formally place defendant under arrest for possession of cocaine before announcing his intention to search her removed the situation from the "search incident" exception and made the search unreasonable. See C. Whitebread, Constitutional Criminal Procedure 147 (1978) ("When the justification for the stop reaches the threshold level of probable cause to arrest, the . . . jurisprudence of `search incident to a lawful arrest' governs the nature of a permissible search. . .").

Defendant's further argument that the arrest was without probable cause has no merit. On very similar facts probable cause has been found to exist. See State v. Roberts, supra. Here, sufficient evidence was presented to show the reliability of the informant, and the information which he gave was corroborated by the officer's own observation.

We find no error in the search of the brown paper bag, which was in plain view. See Coolidge v. New Hampshire, supra. Nor is there merit in defendant's further assignment of error. We find that defendant received a fair trial, free from prejudicial error.

No error.

CLARK and ERWIN, JJ., concur.