State v. Flowers , 12 N.C. App. 487 ( 1971 )

183 S.E.2d 820 (1971) 12 N.C. App. 487

STATE of North Carolina
v.
Alexander J. FLOWERS.

No. 7112SC528.

Court of Appeals of North Carolina.

October 20, 1971. Certiorari Denied December 7, 1971.

Atty. Gen. Robert Morgan and Staff Attorneys William L. Sauls and Ernest L. Evans, Raleigh, for the State.

William G. Geimer, Asst. Public Defender, for defendant appellant.

Certiorari Denied by Supreme Court December 7, 1971.

MALLARD, Chief Judge.

Defendant's principal assignment of error concerns the refusal of the trial judge to suppress any evidence seized in the search of the premises located at Lot 13, Averette's Trailer Court, on the third day of November 1970. He contends that the affidavit of Deputy Sheriff O'Brien, upon which the search warrant was issued, was insufficient to enable the magistrate to make an independent determination of probable cause, that the search warrant was issued on the basis of hearsay evidence, and that under the cases of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), the affidavit and evidence were not sufficient to have enabled the magistrate to properly find probable cause. When this issue was raised in the superior court, the jury was sent out and a voir dire hearing was conducted; but in view of our holding herein, it is not necessary to summarize all the testimony given. Suffice it to say, that the testimony on voir dire, taken in the light most favorable to the State, was more persuasive than the affidavit.

The affidavit which appears as a part of the search warrant in the record on appeal is denominated as the "Appellant's Exhibit A" in one place and in another as "Court Exhibit 1." The pertinent part of the affidavit portion of the search warrant reads as follows:

"Blaine OBrien Deputy Sheriff, Cumberland County Sheriffs Dept, Fay N. C. being duly sworn and examined under oath, says under oath that he has probable cause to believe that Alexander Flowers And William Bailey has (sic) on their premises and in their Persons certain property, to wit: Narcotic Drugs To Wit Heroin, The possession which constitutes evidence of a Crime, to wit: Possession of Narcotic Drugs (GS-90-88 11/3/70 Lot #13 Averittes Tr Ct, Yadkin Road, Fayetteville N. C. The property described above is located On the premises and on the persons described as follows: A white Trailer with Green trim, has a broken hitching post in front yard, has two sets of steps at front door, a tan 1965 Dodge car New York Lic Plate—5U5758 parked in yard. The facts which establish probable cause for the issuance of a search warrant are as follows: Received imformation (sic) from a relaible (sic) and confidential imformant (sic) that (sic) has furnished imformation (sic) in the past that has resulted in the arrest and convictions of Dope peddlers in the Fayetteville area, that with-in the past eight hours he has been to the above location and that he has seen a quanity (sic) of Heroin, that he knows the above mentioned subjects seal (this word reads ``deal' in the original record on file) in Narcotics. These above mentioned subjects are known to Narcotic Agents in the Fayetteville area and have a bad reputation for dealing in the Drug traffic in Fayetteville. Due to the reliability of the imformant (sic) and to the reputation of the suspects I pray that a search warrant be issued and that all evidence found be confiscated and held for futher (sic) Court action."

The Fourth Amendment to the United States Constitution provides that "* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." It has been held by the Supreme Court of the United States that the Fourth Amendment also requires that a neutral authority be placed in an intervening position between the police and the public. Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967).

In the case before us, there was an intervening magistrate who was an officer of the district court (G.S. § 7A-170) and was authorized, upon the finding of probable cause, to issue a search warrant. G.S. § 15-25. The warrant to search contains the statement that it was issued by the magistrate after he had examined the affiant under oath and had found probable cause. The place to be searched was described with particularity in the warrant, and the things to be seized were referred to as those things described in the affidavit, such as the narcotic drug, heroin. It is permissible to incorporate the description of the items to be searched for and the place to be searched in the warrant by reference to the affidavit. State v. Mills, 246 N.C. 237, 98 S.E.2d 329 (1957).

It appears from the record that the foregoing affidavit portion of the search warrant was on one side of the sheet of paper and the warrant portion was on the reverse. The affidavit was signed and sworn to by Blaine O'Brien, and the warrant to search portion was signed by Magistrate L. G. Waldrop and bore the date and hour of its issuance above his signature. In the search warrant the magistrate stated, "I have examined under oath the affiant and am satisfied that there is probable cause to believe" that the defendants had the property described in the affidavit. In addition, the magistrate stated that he was issuing it upon information furnished under oath by the affiant, Blaine O'Brien.

The provisions of our statute (G.S. § 15-26) relating to the contents of search warrants read as follows:

"(a) The search warrant must describe with reasonable certainty the person, premises, or other place to be searched and the contraband, instrumentality, or evidence for which the search is to be made.

(b) An affidavit signed under oath or affirmation by the affiant or affiants and indicating the basis for the finding of probable cause must be a part of or attached to the warrant.

(c) The warrant must be signed by the issuing official and bear the date and hour of its issuance above his signature."

The search warrant issued herein complied with each of the foregoing provisions of the statute.

In the case of United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965), the Court held that a finding of probable cause for the issuance of search warrants may rest upon evidence which is not competent in a criminal trial. In United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971), the Court said:

"* * * More important, the issue in warrant proceedings is not guilt beyond reasonable doubt but probable cause for believing the occurrence of a crime and the secreting of evidence in a specific premise. * * *"

Defendant's contention that the search warrant was issued on hearsay evidence is without merit. See Aguilar v. Texas, supra; Jones v. United States, 362 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); Draper v. United States, 358 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959); and State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971).

The Court said in United States v. Ventresca, supra, that affidavits for search warrants "* * * must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area."

"Probable cause under the Fourth Amendment exists where the facts and circumstances within the affiant's knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed." Berger v. New York, supra.

We think that the affidavit in this case complies with the Constitution of the United States, the decisions of the United States Supreme Court, the decisions of the Supreme Court of North Carolina, and the statutory law of North Carolina. We hold that it was sufficient as the basis for the finding by the magistrate of probable cause and that the trial judge did not commit error in denying defendant's motion to suppress the evidence.

The State contends in its brief that Aguilar and Spinelli are limited almost to the point of extinction by the Harris case. Further, the State seems to contend that it is not necessary for the affidavit to contain all information necessary to support the finding of probable cause. While this question is not specifically presented or decided, we think it is proper to briefly discuss it.

Rule 41 of the Federal Rules of Criminal Procedure relates to search and seizure. Under Section (c) of this rule, it is provided that "(a) warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant." In Aguilar v. Texas, supra, the Court held that the issuance of the search warrant by a justice of the peace in Texas was improper because "* * * the affidavit did not provide a sufficient basis for a finding of probable cause * * *." (Emphasis added) The requirement under Section (b) of G.S. § 15-26 that the affidavit indicate the basis for finding probable cause, when interpreted in the light of G.S. § 15-27(b) which states that "(n)o search may be regarded as illegal solely because of technical deviation in a search warrant from requirements not constitutionally required," together with a concurring opinion of Judge Graham in State v. Milton, 7 N.C.App. 425, 430, 173 S.E.2d 60, 63 (1970), and footnotes in Aguilar, may suggest that all of the material and essential facts necessary to support the finding of probable cause need not be set out in the affidavit. The intimation is that there is a difference between information necessary to establish a finding of probable cause and information sufficient to indicate a basis for such finding.

In Aguilar, the Court held that under the United States Constitution, the affidavit in the state court of Texas did not provide a "sufficient basis" for finding probable cause. In our statute it is specifically stated that the affidavit must indicate "the basis" for the issuance of the warrant. There may be a distinction that we have overlooked in the words "sufficient basis" as held to be constitutionally required in Aguilar and "the basis" in our statute. The word "basis" means "the bottom of anything considered as a foundation for the parts above." Webster's Third New International Dictionary (1968). The words "the basis," therefore, seem to imply the entire foundation—not just a part. In any event, the better practice would be for the issuing official to require that the affidavit contain the material and essential facts (but not all the evidentiary details) necessary to support the finding of probable cause before issuing a search warrant.

Defendant also assigns as error the failure of the court to allow his motion for judgment as of nonsuit made at the close of the State's evidence and again at the close of all the evidence. We hold that there was ample evidence to require submission of the case to the jury.

We have carefully examined defendant's other assignments of error and find no prejudicial error therein.

In the trial we find no prejudicial error.

No error.

CAMPBELL and HEDRICK, JJ., concur.