State v. Crisp , 19 N.C. App. 456 ( 1973 )

199 S.E.2d 155 (1973) 19 N.C. App. 456

STATE of North Carolina
v.
Fred Carroll CRISP, III and Carolyn Frances Mottinger.

No. 7320SC552.

Court of Appeals of North Carolina.

September 19, 1973.

Atty. Gen., Robert Morgan, by Associate Atty., E. Thomas Mattox, Jr., Raleigh, for the State.

Casey & Daly, P. A. by George S. Daly, Jr., and W. G. Jones, Charlotte, for defendants.

CAMPBELL, Judge.

The defendants assert that the marijuana found in the home where they resided was illegally obtained by an inadequate search warrant. The search warrant was issued upon an affidavit of Deputy Sheriff Roy Chaney. Deputy Sheriff Chaney testified that he did not acquaint the magistrate who issued the search warrant with any information other than as contained in the affidavit.

The question presented therefore is whether the affidavit to obtain a search warrant was adequate. If it was not adequate, then the search warrant was improperly issued and the evidence obtained thereby would be incompetent. State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The affidavit in question reads as follows:

"Roy Chaney, Deputy Sheriff, Union County, NC; being duly sworn and examined under oath, says under oath that he has probable cause to believe that Chip Chrisp [sic] has on his premises certain property, to wit: Marijuana, Herion, [sic] LSD and any other Controlled sub. the possession of which is a crime, to wit: Possession of Controlled Substances, 12-19-72, Rt 2 Marshville, NC. The property described above is located on his premises described as follows: one story whitee [sic] frame house, first house on right on RPR 1629 headed North, off of RPR 1627 toward NC 218. The facts which establish probable cause for the issuance of a search warrant are as follows: on 12-19-72 Deputy Roy Chaney, Union County Sheriff Dept. stopped Dana Michael Conlon for improper Equopment, [sic] to wit: no lights on vehicle, and after placing Dana Michael Conlon in his, Deputy Chaney's vehicle, he smelled the strong odor of what he believes to be Marijuana. Upon searching Dana M. Conlon, deputy Chaney found over five grams of Marijuana, and upon searching the vehicle that Dana M. Conlon was operating, deputy Chaney found over five more grams of Marijuana. Further investigation by deputy Chaney revealed that Dana M. Conlon has been living at the above location for the passed [sic] three or four months. During the passed [sic] three or four months deputy Chaney has been observing heavy traffic enterning [sic] and leaving the above described location. Deputy Chaney states also, that various vehicles, cars and trucks, are in and out at various times of the day and night. But mostly at night. After stopping Dana M. Conlon and finding Controlled Substances on his person and in his vehicle, and after personally observing the various traffic in and out of the above described location, it is the belief of this affiant that drugs are being contained in the above location.

s/ ROY CHANEY Signature of Affiant Sworn and subscribed to before me this 19 day of December, 1972. s/ BETTY R. BOSHNYAK Magistrate"

We do not think the affidavit was sufficient and adequate to justify the issuance of the search warrant.

A search warrant may be issued only upon a finding of probable cause for the search. This means a reasonable ground to believe that the proposed search will reveal the presence upon the premises to be searched of the object sought and that such object will aid in the apprehension or conviction of the offender. State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971). The affidavit must contain some of the underlying circumstances from which the issuing magistrate can determine the probable cause. The affidavit in this case is fatally defective. It details no underlying facts and circumstances from which the issuing officer could find that probable cause existed to search the premises described. The affidavit implicates those premises solely as a conclusion of the affiant. Nowhere in the affidavit is there any statement that marijuana was ever possessed or sold in or about the dwelling to be searched. Nowhere in the affidavit are any underlying circumstances detailed from which the magistrate could reasonably conclude that the proposed search would reveal the presence of any illegal drug in the dwelling. The inference the State seeks to draw from the contents of this affidavit does not reasonably arise from the facts alleged. Nothing in the affidavit in the instant case affords a reasonable basis upon which the issuing magistrate could conclude that any illegal possession or sale of narcotic drugs had occurred or was occurring on the premises to be searched.

We think this case is controlled by State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972).

The evidence obtained as a result of the search warrant was inadmissible in the trial below.

New trial.

MORRIS and PARKER, JJ., concur.