State v. Ellington

200 S.E.2d 177 (1973) 284 N.C. 198

STATE of North Carolina
v.
Jennie Carol ELLINGTON.

No. 42.

Supreme Court of North Carolina.

November 14, 1973.

Robert Morgan, Atty. Gen. by Charles A. Lloyd, Asst. Atty. Gen., Andrew A. Vanore, Jr., Deputy Atty. Gen., Raleigh, for the State.

Booe, Mitchell, Goodson & Shugart by William S. Mitchell, Winston-Salem, for defendant.

HIGGINS, Justice.

Both the Constitution of the United States and the Constitution of North Carolina contain guarantees against unlawful searches and seizures. Both constitutions contain limitations on the right of the courts to issue search warrants. Article IV, Constitution of the United States, provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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."

The Constitution of North Carolina, Article 1, Sec. 20, provides:

"General warrants, whereby any officer or other person 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 shall not be granted."

The guarantees protect against unreasonable searches and seizures. (Emphasis added.) They are designed for the protection of the innocent. The issuing courts, in harmony with the law, presume innocence until probable cause to the contrary is made to appear.

Officer Wade, who made the affidavit, did not have or claim to have, any personal knowledge either of the identity of the two females on Eastern Airline Flight 203 from San Diego to Greensboro, or of the contents of the four bags they carried. Personal knowledge was not required. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62. Wade's information came from Officer Simmons, a deputy sheriff in San Diego, California. Wade, an officer in North Carolina, was justified in relying on the information from an officer in California. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. Deputy Sheriff Simmons called from San Diego to the sheriff's office in Greensboro at 4 a.m. and gave the information contained in the affidavit. "He advised of the transportation of 25 to 30 kilos of Marijuana. . . ." A kilo (metric) is approximately 2.4 pounds (avoirdupois). He advised the transportation was by two females, describing the defendant and Miss Walters. The descriptions gave the approximate age, dress, appearance, and stated that they possessed four large traveling bags, giving the color of the bags, which were secured by combination locks. Simmons gave information that the subjects were passengers on Eastern Airlines Flight 203 from San Diego to Greensboro. Mr. Wade, before making the affidavit, checked further and ascertained that Simmons in San Diego was the officer he claimed to be. Officer Simmons stated that the defendant and Miss Walters, "[H]ave in their possession . . . 25 to 30 kilos of Marijuana . . . ." From the weight and bulk of the contraband a sensible officer would conclude that if they were transporting such quantity of marijuana, of necessity it must be in the bags. The number, size, and locks on the bags indicated they contained something of value.

When Wade's affidavit is critically examined, it furnished Magistrate Shoffner ample information upon which to find that probable cause existed for the search which the officers made. The California officer's information which was relayed to Magistrate Shoffner by Officer Wade, supplemented by the facts that Wade ascertained on his own account, taken together, furnished ample evidence to authorize the search and the seizure of the contraband and the arrest of the two females who were transporting it.

The defendant argues long and loud that Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, is authority against the sufficiency of Wade's affidavit. In Aguilar the following appears to be the full text of the affidavit upon which the warrant was based: "Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of law." The foregoing affidavit is a scatter gun shot in the dark and suggests that what the affiant wants is authority for a fishing expedition. It covers too many different materials to indicate anything less than a hope to catch a fish of some species and of some size.

In State v. Campbell, 282 N.C. 125, 191 S.E.2d 752, the warrant issued on another scatter gun affidavit recites that the officer "[B]eing duly sworn and examined under oath, says under oath that he has probable cause to believe that Kenneth Campbell; [and two others, naming them] has on his premises certain property, to wit: illegally possessed drugs (narcotics, stimulants, depressants), which constitutes evidence of a crime, to wit: possession of illegal drugs . . . ." This affidavit is in the same category as the affidavit in Aguilar. Neither states facts from which probable cause for the search may be inferred.

In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, the Court said: "In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused's criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation."

The latest pronouncement on the question before us comes from the decision of the Supreme Court of the United States in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723:

"In evaluating the showing of probable cause necessary to support a search warrant, against the Fourth Amendment's prohibition of unreasonable searches and seizures, we would do well to heed the sound admonition of United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965):

``[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.' 380 U.S., at 108, 85 S.Ct. at 746."

In this case we are dealing with a big league operation. Its ramifications span the continent. The amount of contraband involved, together with the evidence of Miss Walters, clearly shows that a big supplier in California was furnishing contraband to a big dealer in North Carolina. The defendant, and Miss Walters perhaps to a lesser degree, were serving major operators. But for the vigilance and combined efforts of the law enforcement officers, 138 pounds of illegal dope would have been available to persons of all ages in and around Greensboro. The evidence in this case fails to disclose any valid legal or moral reason why the officers and the courts should look with favor on the defendant's highly technical and microscopic objections to the search warrant.

The defendant's objections not herein discussed are fully treated in the decision of the Court of Appeals which is now

Affirmed.