State v. Brown , 20 N.C. App. 413 ( 1974 )

201 S.E.2d 527 (1974) 20 N.C. App. 413

STATE of North Carolina
v.
Melvin Earl BROWN.

No. 733SC569.

Court of Appeals of North Carolina.

January 9, 1974. Appeal Dismissed March 12, 1974.

Atty. Gen. Robert Morgan by Associate Atty. William A. Raney, Jr., Raleigh, for the State.

Williamson & Shoffner by Robert L. Shoffner, Jr., Greenville, for defendant appellant.

MORRIS, Judge.

Defendant assigns error to the denial of his motion to dismiss all charges on the ground that he was denied a fair and impartial trial and preliminary hearing because the judge who issued the search warrant also presided at the trial and preliminary hearing. There is no merit to this assignment of error. The three misdemeanor charges were nonsuited upon trial de novo, so defendant has not been prejudiced in that respect. Defendant has likewise failed to show that he has been prejudiced with respect to the heroin charge. There is no statutory or constitutional proscription in North Carolina against a judge's presiding at a hearing to review the validity of a search warrant issued by that judge. While it is the better practice to allow a different judge to rule upon the validity of such a warrant, it does not appear of record that defendant objected to this procedure. Nor can defendant show that a different judge would have ruled in defendant's favor on the issue of probable cause.

Defendant next assigns error to the denial of his motion to suppress the evidence seized pursuant to the search warrant in that it was based on a defective affidavit. Specifically, he contends that the affidavit fails to meet the probable cause test of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), inasmuch as it does not provide a sufficient statement of the underlying circumstances from which the affiant concluded the informant was reliable. The affidavit states:

"The affiant received information from a reliable informant who in the past has provided reliable information concerning the drug traffic in Greenville . . ."

In State v. Ellington, 284 N.C. 198, 200 S.E.2d 177 (filed 14 November 1973), the Supreme Court refused to hold that the following language in an affidavit was insufficient under Aguilar v. Texas, supra, to establish the reliability of a confidential informant:

"Deputy Simmons advises that his informer is 100% reliable, and that information obtained from this same informant recently led to the confiscation of 120,000 Barbituates recently in New York City."

The obvious distinction between the affidavit in Ellington, supra, and the affidavit before us is that the former refers—although generally—to a specific instance of information whereas the latter refers only to a general pattern of information. Nevertheless, we hold that this affidavit is sufficient under Aguilar v. Texas, supra, and State v. Ellington, supra.

"[T]he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teaching of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, 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. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting." State v. Ellington, supra, at 204, 200 S.E.2d at 181 [quoting United States v. Ventresca, 380 U.S. 102, 108, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965)].

Defendant's final assignment of error is to the court's charging the jury that the evidence tended to show that a pistol was found in defendant's pocket. This charge was made after the court granted defendant's motion for nonsuit on the charge of possession of a pistol without a permit. Nevertheless, defendant has failed to sustain his burden of showing prejudice. It is not sufficient that appellant show error; he must show that it was prejudicial to him and that a different result would likely have ensued absent the error. State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); State v. Crump, 280 N.C. 491, 186 S.E.2d 369 (1972). The error—if any— was harmless in light of the other evidence of defendant's possession of the heroin.

Affirmed.

HEDRICK and VAUGHN, JJ., concur.