State v. Eubanks, 196 S.E.2d 706 (N.C. 1973). · Go Syfert
Search
State v. Eubanks, 196 S.E.2d 706 (N.C. 1973). Cases Citing This Book View Copy Cite
G Cite
cited 2× by 1 distinct case, last quoted 2000 · …defendant's testimony that he had consumed only two bottles of beer suggests perjury rather than sobriety at p. 711 ✓
117 citation events (20 in the last 25 years) across 14 distinct courts.
Strongest positive: State v. Tappe (ncctapp, 2000-07-18)
Treatment trajectory · 1974 → 2026 · click a year to view as-of
1974 2000 2026
Top citers, strongest first. 21 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) State v. Tappe (2×) also: Cited as authority (quoted)
N.C. Ct. App. · 2000 · signal: see also · quote attribution · 2 verbatim quotes · confidence high
defendant's testimony that he had consumed only two bottles of beer suggests perjury rather than sobriety
discussed Cited as authority (rule) United States v. Hudson
W.D. Va. · 2007 · confidence medium
In fact, it stands in opposition to a majority of state supreme courts that have addressed the issue, see People v. McKay, 27 Cal.4th 601 , 117 Cal.Rptr.2d 236 , 41 P.3d 59, 65-72 (2002); State v. Droste, 83 Ohio St.3d 36 , 697 N.E.2d 620, 623 (1998); Commonwealth v. Lyons, 397 Mass. 644 , 492 N.E.2d 1142, 1144-46 (1986); People v. Hamilton, 666 P.2d 152, 156-57 (Colo.1983); State v. Eubanks, 283 N.C. 556 , 196 S.E.2d 706, 709 (1973), and is also contrary to a majority of federal circuits, see United States v. Bell, 54 F.3d 502, 504 (8th Cir.1995); United States v. Wright, 16 F.3d 1429, 1437 (…
discussed Cited as authority (rule) State v. Bricker
N.M. Ct. App. · 2006 · confidence medium
See People v. Lyon, 227 Mich. App. 599 , 577 N.W.2d 124, 129 (1998) (hold that the exclusionary rule is “only applicable ... if the seizure was constitutionally invalid,” based on a lack of probable cause, and “not merely statutorily illegal”); State v. Eubanks, 283 N.C. 556 , 196 S.E.2d 706, 708-09 (1973) (holding evidence obtained following arrest which is constitutionally valid as based on probable cause but unlawful under state law need not be excluded under the federal exclusionary rule); Penn v. Commonwealth, 13 Va.App. 399 , 412 S.E.2d 189, 193-94 (1991) (holding that there is n…
discussed Cited as authority (rule) State v. Gadsden
N.J. Super. Ct. App. Div. · 1997 · confidence medium
See United States v. Shelton, 742 F.Supp. 1491, 1502-04 (D.Wyo.1990); United States v. Vasser, 648 F.2d 507, 510 (9th Cir.1980), cert. denied, 450 U.S. 928 , 101 S.Ct. 1385 , 67 L.Ed.2d 360 (1981); United States v. Searp, 586 F.2d 1117, 1122-24 (6th Cir.1978), cert. denied, 440 U.S. 921 , 99 S.Ct. 1247 , 59 L.Ed.2d 474 (1979); State v. Fixel, 744 P.2d 1366, 1368-69 (Utah 1987); People v. Vigil, 729 P.2d 360, 365-66 (Colo. 1986); State v. Schinzing, 342 N.W.2d 105, 108-09 (Minn.1983); State v. Bonds, 98 Wash.2d 1 , 653 P.2d 1024, 1030-31 (1982), cert. denied, 464 U.S. 831 , 104 S.Ct. 111 , 78 L…
cited Cited as authority (rule) State v. Crawford
N.C. Ct. App. · 1997 · confidence medium
State v. Eubanks, 283 N.C. 556, 559 , 196 S.E.2d 706, 708 (1973).
discussed Cited as authority (rule) State v. Thompson
N.C. · 1985 · confidence medium
We have held that the question of whether an arrest warrant must be obtained in a given case is immaterial “in a constitutional sense” and that “state law alone determines the sanctions to be applied for failure to obtain an arrest warrant where one is required.” State v. Eubanks, 283 N.C. 556, 560 , 196 S.E. 2d 706, 709 (1973).
discussed Cited as authority (rule) Schram v. District of Columbia
D.C. · 1984 · confidence medium
The District of Columbia calls our attention to such cases as People v. Burdo, 56 Mich.App. 48 , 223 N.W.2d 358, 360 (1974); State v. Eubanks, 283 N.C. 556 , 196 S.E.2d 706, 709 (1973), and State v. Allen, 2 Ohio App.3d 441 , 442 N.E.2d 784, 786 (1981), which appear to make this distinction in the context of tests for intoxication. 4 .
cited Cited as authority (rule) State v. Melvin
unknown court · 1981 · confidence medium
(Citations omitted.) “An unlawful arrest may not be equated, as defendant seeks to do, to an unlawful search and seizure.” State v. Eubanks, 283 N.C. 556, 560 , 196 S.E. 2d 706, 709 (1973). 30 N.C.
discussed Cited as authority (rule) In Re the Revocation of the License of Gardner
N.C. Ct. App. · 1979 · confidence medium
This is so because, even had the arrest not been made in compliance with our statute, the petitioner in this case could not willfully refuse to take the breathalyzer test without incurring the six months revocation of his license provided for by G.S. 2046.2(c). “[A]n arrest may be constitutionally valid and yet ‘illegal’ under state law.” State v. Eubanks, 283 N.C. 556, 560 , 196 S.E. 2d 706, 708 (1973).
cited Cited as authority (rule) State v. Saunders
N.C. Ct. App. · 1978 · confidence medium
Id. at 520 , 196 S.E. 2d at 706.
cited Cited as authority (rule) State v. Williams
N.C. Ct. App. · 1977 · confidence medium
“An arrest is constitutionally valid when the officers have probable cause to make it.” State v. Eubanks, 283 N.C. 556, 559 , 196 S.E. 2d 706, 708 (1973).
cited Cited as authority (rule) State v. Mangum
N.C. Ct. App. · 1976 · confidence medium
“An unlawful arrest may not be equated, as defendant seeks to do, to an unlawful search and seizure.” State v. Eubanks, 283 N.C. 556, 560 , 196 S.E. 2d 706, 709 (1973).
discussed Cited "see" State v. Squirewell (2×)
N.C. Ct. App. · 2017 · signal: see · confidence high
See State v. Eubanks , 283 N.C. 556 , 563, 196 S.E.2d 706 , 710-11 (1973) (upholding the admission of chemical analysis results where the officer testified that he attended breathalyzer operator's school, that he had a certificate issued by the North *317 Carolina State Board of Health to *361 perform chemical analysis of the breath, and that he followed rules and regulations he received when he was certified on this particular occasion).
discussed Cited "see" State v. Barber (2×)
N.C. Ct. App. · 1989 · signal: see · confidence high
See State v. Eubanks, 283 N.C. 556, 563 , 196 S.E. 2d 706, 710-11 (1973); State v. Powell, 279 N.C. 608, 610-11 , 184 S.E. 2d 243, 245-46 (1971); State v. Martin, 46 N.C.
discussed Cited "see" State v. Cromartie (2×)
N.C. Ct. App. · 1981 · signal: see · confidence high
See State v. Eubanks, 283 N.C. 556 , 196 S.E. 2d 706 (1973); State v. Sutton, 34 N.C.
cited Cited "see" State v. Mullis
unknown court · 1978 · signal: see · confidence high
See State v. Eubanks, 283 N.C. *42 556, 196 S.E. 2d 706 (1973), rehearing denied, 285 N.C. 597 (1973).
discussed Cited "see" City of Cincinnati v. Alexander (2×)
Ohio · 1978 · signal: see · confidence high
See State v. Eubanks (1973), 283 N. C. 556 , 196 S. E. 2d 706 , and People v. Burdo (1974), 56 Mich. App. 48 , 223 N. W. 2d 358 , wherein it was held that an arrest illegal under state law, if made on probable cause, was constitutionally valid and that the federal constitutional rule of exclusion imposed by Mapp did not require suppression of the evidence derived from the arrest, and, that absent a rule, statute or state policy to the contrary, mere illegality did not require suppression on state grounds.
discussed Cited "see, e.g." State v. Lindsey (2×)
N.C. Ct. App. · 2016 · signal: see also · confidence low
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." State v. Streeter , 283 N.C. 203 , 207, 195 S.E.2d 502 , 505 (1973) (quoting Beck v. Ohio , 379 U.S. 89 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964) ); see also State v. Eubanks , 283 N.C. 556 , 559-60, 196 S.E.2d 706 , 708 (1973).
discussed Cited "see, e.g." Costillo v. Commissioner of Public Safety (2×)
Minn. · 1987 · signal: see also · confidence low
Cf., however, State v. Mitjans, 408 N.W.2d 824 (Minn.1987) (refusing to automatically exclude confession obtained from Spanish-speaking defendant in violation of statute requiring appointment of interpreter); State v. Schinzing, 342 N.W.2d 105 (Minn.1983) (questioning whether exclusionary rule should apply to any violation of state law by officer in acting outside his jurisdiction); State v. Wiberg, 296 N.W.2d 388 (Minn.1980) (refusing to automatically exclude statement obtained as a product of unnecessary delay before arraignment under our state rules of criminal procedure); State v. Lien, 26…
discussed Cited "see, e.g." State v. Hollingsworth (2×)
N.C. Ct. App. · 1985 · signal: see, e.g. · confidence low
See, e.g., State v. Eubanks, 283 N.C. 556 , 196 S.E. 2d 706 (1973).
discussed Cited "see, e.g." State v. Harris (2×)
N.C. Ct. App. · 1979 · signal: see also · confidence low
G.S. 15A-974; see also State v. Eubanks, 283 N.C. 556 , 196 S.E. 2d 706 , reh. den., 285 N.C. 597 (1973); State v. Matthews, 40 N.C.
Retrieving the full opinion text from the archive…
State of North Carolina
v.
Jerry Dean Eubanks
67.
Supreme Court of North Carolina.
Jun 1, 1973.
196 S.E.2d 706
Harris and Bumgardner by Don H. Bumgardner, Attorneys for defendant appellant. , Robert Morgan, Attorney General; William W. Melvin, Assistant Attorney General; and William B. Ray, Assistant Attorney General, for the State of North Carolina.
Huskins, Bobbitt.
Cited by 54 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 74%
Citer courts: Court of Appeals of North Caro… (1)
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, 13 L.Ed. 2d 142,[*560] 85 S.Ct. 223 (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, 58 L.Ed. 652, 34 S.Ct. 341 (1914), and made applicable to the States in Mapp v. Ohio, 367 U.S. 643, 6 L.Ed. 2d 1081, 81 S.Ct. 1684 (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. Eg. Perry v. Hurdle, 229 N.C. 216, 49 S.E. 2d 400 (1948); Hicks v. Nivens, [*561] 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 groimds 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[*562] 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[*563] 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 analyses 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.

Chief Justice Bobbitt dissents.