State v. Davis

203 S.E.2d 91, 20 N.C. App. 739, 1974 N.C. App. LEXIS 2540

• Court: Court of Appeals of North Carolina
• Decided: February 20, 1974
• Docket: No. 7422SC144
• Status: Published

Opinion

CAMPBELL, Judge.

The defendants assign as error the denial of the trial court of their motion to suppress the evidence for that the search warrant was improper as the affidavit was inadequate.

The affidavit on which the search warrant was issued reads:

“Affidavit to Obtain a Search Warrant (Wilson)

S-l voir dire only

State v. Jerald Wendell Wilson

520 So. Tradd Street, Statesville, NC

H. G. Patterson, Sergeant, Vice Control, Statesville Police Department; being duly sworn and examined under oath, says under oath that he has probable cause to believe that Jerald Wendell Wilson has on his premises on his person certain property, to wit: Marijuana, Hashish and othrer [sic] controlled substances, the possession of which is a crime, to wit: Possession of a Controlled Substance for the Purp. of Distribution.

The property described above is located on the premises on his person described as follows: 520 South Tradd Street, Statesville, North Carolina — the upstairs south apartment of a dwelling color green. Jerald Wendell Wilson, C/M, 23; 6 Ft. 1 In. in height; 180 lbs in weight. The facts which establish probable cause for the issuance of a search warrant are as follows: The affiant has recieved [sic] information from a confidential informer, known to be reliable as that in the past said informer has given information which has lead [sic] to the arrest and conviction of narcotic law violators. [sic] two such occasions being on 4-7-73 and 9-28-72. Information recieved [sic] from said informer is that Jerald Wendell Wilson has in his possession a quantity of marijuana and hashhish [sic] and other controlled substances and that the said Jerald Wendell Wilson has said drugs at his apartment, 520 South Tradd St. Statesville, N.C. and that he is in the business of selling said drugs. The affiant has conducted surveillance at this location, app. 4 hrs. on different occasions and has observed a large crowd in and around the said 520 s. [sic] Tradd St. at all hours of the night and the affiant has observed known narcotic violators entering these premises and these activities are continueing. [sic].

H. G. Patterson

Signature of Affiant

Sworn and subscribed to before me this 25 day of May, 1973.

R. E. Ritchie

Magistrate

Note: The issuing official should swear the affiant twice, once to the affidavit and once before beginning the oral examination of the affiant.”

Having applied the tests of sufficiency as set forth by the United States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 2d 723 (1964), Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed. 2d 637 (1969), and United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed. 2d 723 (1971), in applying the Fourth Amendment to the Federal Constitution and as adopted by our State courts in State v. Shirley, 12 N.C. App. 440, 183 S.E. 2d 880 (1971), cert. den., 279 N.C. 729, 184 S.E. 2d 885 (1971), State v. Flowers, 12 N.C. App. 487, 183 S.E. 2d 820 (1971), cert. den., 279 N.C. 728, 184 S.E. 2d 885 (1971), State v. Foye, 14 N.C. App. 200, 188 S.E. 2d 67 (1972), State v. McKoy, 16 N.C. App. 349, 191 S.E. 2d 897 (1972), cert. den., 282 N.C. 584, 193 S.E. 2d 744 (1973), State v. Shanklin, 16 N.C. App. 712, 193 S.E. 2d 341 (1972), cert. den., 282 N.C. 674, 194 S.E. 2d 154 (1973), State v. McCuien, 17 N.C. App. 109, 193 S.E. 2d 349 (1972), State v. Ellington, 18 N.C. App. 273, 196 S.E. 2d 629 (1973), State v. Spencer, 281 N.C. 121, 187 S.E. 2d 779 (1972), State v. Howell, 18 N.C. App. 610, 197 S.E. 2d 616 (1973), and State v. Elam, 19 N.C. App. 451, 199 S.E. 2d 45 (1973), we conclude the affidavit was sufficient to establish probable cause to issue a search warrant as required by G.S. 15-26 (b).

There was no error in admitting the evidence obtained by the search. The evidence was sufficient to sustain the jury verdict.

The purported assignment of error to the charge of the trial judge was broadside and requires no review.

The defendants received a fair trial free of any prejudicial error.

No error.

Judges Hedkick and Baley concur.