State v. Myers , 266 N.C. 581 ( 1966 )

146 S.E.2d 674 (1966) 266 N.C. 581

STATE
v.
Eugene Marvin MYERS.

No. 4.

Supreme Court of North Carolina.

March 2, 1966.

T. W. Bruton, Atty. Gen., Ralph Moody, Deputy Atty. Gen., Andrew A. Vanore, Jr., Staff Atty., Raleigh, for the State.

Jones, Jones & Jones, Ahoskie, Bailey & Bailey, by Carl L. Bailey, Plymouth, for defendant appellant.

HIGGINS, Justice.

The defendant in this case was tried for the felonies of breaking and entering into, and larceny from East Carolina Supply Company warehouse in Washington County, North Carolina. The decisions of the Virginia trial courts suppressing the evidence and holding the search warrant void, while persuasive, are not binding on the North Carolina courts. To be competent here, the evidence must meet the North Carolina tests of admissibility. However, Virginia decisions and ours do not seem to be out of harmony on the question of the citizen's right to be protected from unwarranted searches and seizures. The decisions of both States are subject to the overriding authority of the Supreme Court of the United States to determine the citizen's rights under the Fourth and Fourteenth Amendments to the United States Constitution. Aguilar v. State of Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723; Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081; Giordenello v. United States, 357 U.S. 480, 78 S. Ct. 1245, 2 L. Ed. 2d 1503; Nathanson v. United States, 290 U.S. 41, 54 S. Ct. 11, 78 L. Ed. 159; Rees v. Commonwealth, 203 Va. 850, 127 S.E.2d 406; State v. Coffey, 255 N.C. 293, 121 S.E.2d 736.

In this case, as a matter of procedure, we see no reason why the trial court, in its discretion and on defendant's motion to suppress the evidence, could not conduct a preliminary inquiry relating to the legality of the search in the same manner as the court does in determining the voluntariness of a confession.

The affidavit made by Officer Lloyd was insufficient in factual averments upon which to base a valid search warrant. North Carolina Constitution, Article I, § 15 provides:

"General warrants, whereby any officer or messenger may be commanded to search suspected places, without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted."

G.S. § 15-27.1 provides:

"No facts discovered or evidence obtained by reason of the issuance of an illegal search warrant or without a legal search warrant in the course of any search, made under conditions requiring a search warrant, shall be competent as evidence in the trial of any action."

The search warrant was illegal and the evidence secured under its authority was inadmissible and should have been excluded. The defendant is awarded a

New trial.

MOORE, J., not sitting.