State v. McKoy , 16 N.C. App. 349 ( 1972 )

191 S.E.2d 897 (1972) 16 N.C. App. 349

STATE of North Carolina
v.
Frances Person McKOY, alias Frances Smith.

No. 7212SC649.

Court of Appeals of North Carolina.

October 25, 1972.

Atty. Gen. Robert Morgan, by Deputy Atty. Gen. Andrew A. Vanore, Jr., for the State.

Sol G. Cherry, Public Defender, for defendant.

BROCK, Judge.

Defendant's principal assignment of error concerns the refusal of the trial court to suppress the evidence seized in the search of the premises located at 1034 Bernadine Street on 30 July 1971. She contends that the affidavit of Officer Parham, upon which the search warrant was issued, was insufficient to enable the magistrate to make an independent determination of probable cause in accord with the requirements 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). Defendant argues, in particular, that the supporting affidavit does not present the magistrate with the underlying circumstances from which the affiant concluded that the informant is credible or his information trustworthy.

When this issue was raised in the Superior Court, the jury was sent out, and a voir dire hearing was conducted. Defendant concedes that there was sufficient testimony on voir dire examination for the issuance of a search warrant. However, defendant properly notes that the determinative point for finding probable cause is the time of the issuance of the warrant and not at the time of the voir dire examination. The record indicates that the sole basis for the magistrate's finding of probable cause was the supporting affidavit.

The challenged portion of the affidavit attached to the search warrant, as appears in the record on appeal, reads as follows:

"That a confidential informant who has given this agent good and reliable information in the past stated that on this date, July 30, 1971, he has been to the above address and seen a large quantity of heroin. That the above named subject is selling the heroin, one-half spoon and spoon quantity, for twenty dollars and forty dollars. This agent has received other information on the above address and has seen known narcotic dealers going to and from the above address. This confidential informant is knowledgeable of the narcotic traffic in the Fayetteville and Cumberland County area, and has furnished the affiant information in the past that has been checked by the affiant and found to be true."

G.S. § 15-26 provides that an affidavit signed under oath by the affiant indicating the basis for the finding of probable cause must be a part of or attached to the warrant. While an affidavit does not have to reflect the personal observations of the affiant, Aguilar v. Texas, supra, requires a two-pronged test to sustain such a warrant. The first requirement, that the magistrate be informed of some of the underlying circumstances from which the informant concluded that narcotics were present, is clearly met in this case, and that part of the affidavit has not been challenged. We find that the second standard, that the magistrate be informed of the underlying circumstances from which affiant concluded that the informant was credible and reliable, is also met.

This court has already established the "irreducible minimum" circumstances that must be set forth in support of an informant's reliability to sustain a warrant. State v. Altman, 15 N.C.App. 257, 189 S. E.2d 793 (filed 12 July 1972). In Altman, the affiant's statement that the confidential informant "has proven reliable and credible in the past" was held to meet the minimum standards to sustain a warrant. In the present case, the affiant's statement that the confidential informant had given "this agent good and reliable information in the past . . . that had been checked by the affiant and found to be true" also meets this minimum standard.

Since the affidavit in question meets the Aguilar requirements, it clearly meets the less technical requirements of United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). We have considered defendant's exception to the trial judge's finding of facts on voir dire and find no merit in that assignment. We hold that the affidavit was sufficient on its face, and the search warrant, being adequate in all other respects, was valid.

Defendant assigns as error the failure of the trial judge on voir dire to compel the affiant to reveal the identity of the alleged narcotics users whom he had seen entering the defendant's home. We find no authority, and are cited to none, that supports the contention that the identity of these alleged users should be revealed. There is no showing that the identity of these users would be sufficiently relevant or helpful to the defendant's case to warrant exposing the names of these alleged users, some of whom the record indicates aid the police in narcotics investigations. State v. Johnson, 13 N.C.App. 323, 185 S. E.2d 423; Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639.

This information is of no use in challenging the sufficiency of the affidavit. On voir dire, the trial judge determines only whether there was sufficient evidence before the issuing magistrate to justify a finding of probable cause. The magistrate is entitled to rely upon the sworn statement of the affiant, a police officer, in concluding that the affiant was correctly reciting his own observations, and what had been told him by his informer. State v. Foye, 14 N.C.App. 200, 188 S.E.2d 67.

No error.

MALLARD, C. J., and BRITT, J., concur.