{
  "id": 8548230,
  "name": "STATE OF NORTH CAROLINA v. MALLIE ROBINSON",
  "name_abbreviation": "State v. Robinson",
  "decision_date": "1972-06-28",
  "docket_number": "No. 7214SC412",
  "first_page": "155",
  "last_page": "157",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "reporter": "U.S.",
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      "year": 1972,
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    {
      "cite": "392 U.S. 1",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
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      "weight": 3,
      "year": 1972,
      "opinion_index": 0,
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  "last_updated": "2023-07-14T17:26:51.335715+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Britt and Hedrick concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. MALLIE ROBINSON"
    ],
    "opinions": [
      {
        "text": "PARKER, Judge.\nThis appeal questions the validity of the search of defendant\u2019s person which resulted in discovery of heroin in his jacket pocket. On the afternoon of 7 October 1971 two City of Durham police officers in a patrol car observed defendant riding as a passenger in a car being driven on a city street by one Johnson, for whom the officers held arrest warrants. When the car stopped at a filling station, the officers pulled in behind it. About that time two additional police officers arrived and Johnson was placed under arrest. Officer Thompson testified that the officers also had an arrest warrant for the defendant Robinson and that the purpose of the officers in stopping Johnson and Robinson was to serve the warrants on them. The officers placed defendant under arrest, \u201cwarned him of his rights,\u201d searched him, and found the heroin in his jacket pocket. Officer Thompson\u2019s testimony revealed that at the time this occurred defendant was cooperative with the officers and that no weapons were found on defendant\u2019s person or in the car in which he had been riding with Johnson.\nDefendant moved to suppress all evidence obtained by the search, whereupon the trial judge conducted a voir dire examination in which the officers testified to the following: On 17 July 1971 a warrant had been issued on complaint of defendant\u2019s wife charging him with assault on a female. This offense had not been committed in the presence of any officer. When the officers arrested and searched defendant at the filling station, they knew about this warrant but did not have it with them. At that time the warrant was at the police station. It was subsequently served on the defendant at the detective bureau after he was brought there following his arrest and search at the filling station.\nDefendant\u2019s motion to suppress all evidence obtained by the search should have been allowed. Initially, it should be noted that nothing in the record suggests, and the State does not contend, that the police in this case were making \u201ca reasonable investigatory stop\u201d or that they had reason to believe that defendant was armed and dangerous, so as to make a \u201climited protective search for concealed weapons\u201d lawful under the decisions in Terry v. Ohio, 392 U.S. 1, 20 L.Ed. 2d 889, 88 S.Ct. 1868, or Adams v. Williams, 407 U.S. 143 (decided 12 June 1972). Therefore, absent a search warrant, search of defendant\u2019s person in this case was lawful only if made incident to a lawful arrest.\nOn the facts disclosed by this record, defendant\u2019s arrest at the filling station was not lawful. Defendant had been charged with assault on a female, a misdemeanor. G.S. 14-33. Admittedly, this offense had not been committed in the presence of an arresting officer and no arresting officer professed to have reasonable ground to believe that defendant had committed in his presence any felony or misdemeanor. Therefore, the provisions of G.S. 15-41, which authorize a peace officer to arrest without a warrant in certain cases, were not applicable. There was no evidence of any \u201criot, rout, affray or other breach of the peace,\u201d such as to bring G.S. 15-39 into play. Thus, defendant\u2019s arrest can be held lawful only if it was lawfully made under the warrant which charged him with a misdemeanor not committed in the presence of an arresting officer. For an arrest under that warrant to be valid, it was necessary that the warrant be in possession of the arresting officer, or of someone present and assisting Mm, at the time and place the arrest was made. Alexander v. Lindsey, 230 N.C. 663, 55 S.E. 2d 470. Such was not the case.\nAppellant\u2019s remaining assignment of error, directed to the trial court\u2019s ruling that the State\u2019s witness, Evans, was an expert in the field of forensic chemistry, we find without merit. However, for error in overruling defendant\u2019s motion to suppress evidence obtained by the unlawful search and admitting such evidence over defendant\u2019s objection, defendant is entitled to a\nNew trial.\nJudges Britt and Hedrick concur.",
        "type": "majority",
        "author": "PARKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by Staff Attorney Donald A. Davis for the State.",
      "Loflin, Anderson & Loflin by Thomas F. Loflin III for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. MALLIE ROBINSON\nNo. 7214SC412\n(Filed 28 June 1972)\nArrest and Bail \u00a7 3; Criminal Law \u00a7 84; Searches and Seizures \u00a7 1 \u2014 unlawful arrest without warrant \u2014 misdemeanor \u2014 search at arrest scene\nThe arrest of defendant for the misdemeanor of assault on a female not committed in the presence of an arresting officer by officers who knew that a warrant had been issued but who did not have the warrant in their possession was unlawful; consequently, a search of defendant at the arrest scene was unlawful, and defendant\u2019s motion to suppress all evidence obtained by the search should have been allowed. G.S. 15-41.\nAppeal by defendant from Cooper, Judge, 10 January 1972 Session of Superior Court held in Durham County.\nDefendant was indicted for illegal possession of the narcotic drug heroin. He pleaded not guilty, was found guilty by the jury, and from judgment imposing prison sentence, appealed.\nAttorney General Robert Morgan by Staff Attorney Donald A. Davis for the State.\nLoflin, Anderson & Loflin by Thomas F. Loflin III for defendant appellant."
  },
  "file_name": "0155-01",
  "first_page_order": 179,
  "last_page_order": 181
}