State v. Eubanks , 283 N.C. 556 ( 1973 )

196 S.E.2d 706 (1973) 283 N.C. 556

STATE of North Carolina
v.
Jerry Dean EUBANKS.

No. 67.

Supreme Court of North Carolina.

June 1, 1973.

Harris & Bumgardner by Don H. Bumgardner, Gastonia, for defendant appellant.

Robert Morgan, Atty. Gen., William W. Melvin, and William B. Ray, Asst. Attys. Gen., for the State of North Carolina.

HUSKINS, Justice:

Before pleading to the charge contained in the warrant defendant moved to suppress the results of the breathalyzer test "and the officer's observations of this defendant," contending such evidence was rendered inadmissible by the illegality of defendant's arrest without a warrant. Denial of the motion is assigned as error.

It is provided by G.S. § 15-41 that a peace officer may make an arrest 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; . . ."

Since this defendant did not operate his motor vehicle on a public street or highway "in the presence of the officer," and since the officer had no reasonable ground to believe defendant had done so, defendant's arrest without a warrant was illegal. State v. Hill, 277 N.C. 547, 178 S.E.2d 462 (1971). Even so, the words "illegal" and "unconstitutional" are not synonymous. An arrest is constitutionally valid when the officers have probable cause to make it. Whether probable cause exists depends upon "whether 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, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); 5 Am.Jur.2d Arrest §§ 44, 48; State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971); State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973). Thus an arrest may be constitutionally valid and yet "illegal" under state law. Such is the case here.

There was probable cause to arrest defendant for operating a motor vehicle upon a public highway while under the influence of intoxicants, but G.S. § 15-41 required the officer to obtain a warrant before making the arrest since the offense was not committed in his presence. Given probable cause, the federal constitutional exclusionary rule first enunciated in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), and made applicable to the States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), has no application. The fact that a warrant was not obtained before defendant was arrested is, in a constitutional sense, immaterial. The Constitution does not dictate the circumstances under which arrest warrants are required. United States v. Bazinet, 462 F.2d 982 (8th Cir. 1972). Whether an arrest warrant must be obtained is determined by state law alone. Likewise, state law alone determines the sanction to be applied for failure to obtain an arrest warrant where one is required.

The issue then is this: When an arrest is constitutionally valid but illegal under the law of North Carolina, must the facts discovered or the evidence obtained as a result of the arrest be excluded as evidence in the trial of the action? The answer is no. An unlawful arrest may not be equated, as defendant seeks to do, to an unlawful search and seizure. All evidence obtained by searches and seizures in violation of the Federal Constitution is inadmissible in a state court. Mapp v. Ohio, supra. Such evidence is also inadmissible by statute in North Carolina. G.S. § 15-27(a). But there is no such rule and no such statute in this State with respect to facts discovered or evidence obtained following an illegal arrest. Neither reason nor logic supports the suggestion.

We hold that nothing in our law requires the exclusion of evidence obtained following an arrest which is constitutionally valid but illegal for failure to first obtain an arrest warrant. Defendant may, if so advised, redress his grievance for the warrantless arrest by a civil action for damages. E.g. Perry v. Hurdle, 229 N.C. 216, 49 S.E.2d 400 (1948); Hicks v. Nivens, 210 N.C. 44, 185 S.E. 469 (1936). But the competency of the evidence obtained following his illegal arrest remains unimpaired.

Nothing in G.S. § 20-16.2(a) is to the contrary. That section reads as follows:

"(a) Any person who drives or operates a motor vehicle upon any highway or any public vehicular area shall be deemed to have given consent, subject to the provisions of G.S. 20-139.1, to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or operating a motor vehicle while under the influence of intoxicating liquor. The test or tests shall be administered at the request of a law-enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of intoxicating liquor. The law-enforcement officer shall designate which of the aforesaid tests shall be administered. Before any of the tests shall be administered, the accused person shall be permitted to call an attorney and to select a witness to view for him the testing procedures; providing, however, that the testing procedures shall not be delayed for these purposes for a period of time of over thirty minutes from the time the accused person is notified of these rights." (Emphasis added)

It is apparent from the emphasized portion of the statute that administration of the breathalyzer test is not dependent upon the legality of the arrest but hinges solely upon "the . . . law-enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of intoxicating liquor." It follows that defendant's motion to suppress was properly denied.

Defendant further contends that his consent to take the breathalyzer test was not voluntary but coerced "by being told by the officer that he could lose his driver's license for sixty (60) days if he refused to take the test." From this, defendant argues that the results of the test were inadmissible.

In State v. Mobley, 273 N.C. 471, 160 S. E.2d 334 (1968), the officers erroneously told defendant that if he refused to submit to the breathalyzer test "it will be used as an assumption of guilt in court." It was held that the coerciveness of the misstatement required the exclusion of the test results.

Here, Officer Carter told defendant that his license "could be suspended for sixty days if he refused" to take the test. This statement is correct. G.S. § 20-16.2(c) provides that if a person under arrest willfully refuses to take a breathalyzer test, none shall be given, but the Department of Motor Vehicles upon receipt of a sworn report to that effect "shall revoke his driving privilege for a period of 60 days." Hence no coercive misstatement was made in this case.

Defendant additionally contends that his consent to take the breathalyzer was coerced by the illegality of the arrest. There is no merit in this contention. We hold that an illegal arrest, unaccompanied by violent or oppressive circumstances, is no more coercive than a legal arrest. By analogy, the language of Justice Branch, speaking for the Court in State v. Moore, 275 N.C. 141, 166 S.E.2d 53 (1969), where a voluntary confession following an illegal arrest was held admissible, is appropriate here:

"We condemn any illegal act by police officers. However, when viewed in the narrow field of voluntary confession, we fail to see why an illegal arrest—unaccompanied by violent or oppressive circumstances—would be more coercive than a legal arrest.

"Both reason and weight of authority lead us to hold that every statement made by a person in custody as a result of an illegal arrest is not ipso facto involuntary and inadmissible, but the facts and circumstances surrounding such arrest and the in-custody statement should be considered in determining whether the statement is voluntary and admissible. Voluntariness remains as the test of admissibility."

On this point defendant is saying, in effect, that had he known his arrest was illegal he would not have voluntarily consented to take the breathalyzer test. Even so, the fact remains that he did voluntarily consent to take it, and voluntariness is the test of admissibility. This contention fails for lack of merit.

Finally, defendant contends the results of the breathalyzer were inadmissible because the State failed to prove that the test was performed according to methods approved by the State Board of Health as required by G.S. § 20-139.1(b).

In State v. Powell, 279 N.C. 608, 184 S. E.2d 243 (1971), we said:

"G.S. § 20-139.1(b) requires two things before a chemical analysis of a person's breath or blood can be considered valid under that section. First, that such analysis shall be performed according to methods approved by the State Board of Health, and second, that such analysis be made by a person possessing a valid permit issued by the State Board of Health for this purpose. Officer Pegram had a valid permit issued by the Board to conduct such analysis and testified that he made the analysis in this case according to methods approved by that Board. We hold this sufficient to meet the requirements of G.S. § 20-139.1(b)."

Here, Officer Carter testified that he attended the breathalyzer operators' school conducted by the Department of Community Colleges at Gaston College; that he received a certificate issued by the North Carolina State Board of Health licensing him to perform chemical analysis of the breath to determine the blood alcohol level; that when he received the certification, "they gave me certain rules and regulations to follow. I did follow them on this occasion." We hold this evidence sufficient to establish the admissibility of the breathalyzer test results under the requirements of G.S. § 20-139.1(b). There is no merit in this contention.

Since .10 percent by weight of alcohol in the blood gives rise to the presumption that a person is under the influence of intoxicants, G.S. § 20-139.1(a)(1), defendant's strenuous effort to exclude the .27 percent reading is quite understandable. It loudly corroborates the testimony of the arresting officer and other witnesses and leaves little room for doubt that the jury reached the correct result. Defendant's testimony that he had consumed only two bottles of beer suggests perjury rather than sobriety.

Defendant having failed to show error, the verdict and judgment will be upheld.

No error.

BOBBITT, C. J., dissents.