State v. Eller

Court of Appeals of North Carolina

State v. Eller

244 S.E.2d 496, 36 N.C. App. 624, 1978 N.C. App. LEXIS 2564

CourtCourt of Appeals of North Carolina

DecidedJune 6, 1978

DocketNo. 7823SC4

StatusPublished

Cited by2 cases

This text of 244 S.E.2d 496 (State v. Eller) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Eller, 244 S.E.2d 496, 36 N.C. App. 624, 1978 N.C. App. LEXIS 2564 (N.C. Ct. App. 1978).

Pincite

Opinion

VAUGHN, Judge.

Defendant contends that the court erred in allowing the State to introduce as evidence the material seized pursuant to the search of defendant’s home on 22 April 1977. He alleges that the facts presented to the magistrate were not sufficient as a matter of law to support a finding of probable cause for the issuance of the search warrant. To be sufficient, an application must set forth facts and circumstances from which the magistrate can judge the validity of the informant’s conclusion that the evidence sought is at the indicated place and facts and circumstances from which the magistrate may conclude that the information passed on is credible. Spinelli v. United States, 393 U.S. 410, 21 L.Ed. 2d 637, 89 S.Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 12 L.Ed. 2d 723, 84 S.Ct. 1509 (1964).

[626]*626The affidavit attached to this warrant showed first that defendant had a reputation with local law enforcement personnel as a drug user and dealer. Secondly, it showed that within 30 days of the issuing of the warrant an informer had told Officer Combs, the affiant, of drugs at defendant’s home. More helpfully, the affidavit shows that a second informer reported to Combs that he had seen drugs in the house within the preceding 36 hours. These allegations, if credible, are sufficient to support the conclusion that probable cause to search exists. State v. Hayes, 291 N.C. 293, 230 S.E. 2d 146 (1976); State v. Singleton, 33 N.C. App. 390, 235 S.E. 2d 77 (1977).

The defendant asserts, however, that there are no circumstances shown from which the magistrate could conclude that the second informer’s information was credible. In addition to the above circumstances, the affidavit contained a report that this informer had cooperated with Officer Combs in the past by making a supervised drug buy at the defendant’s residence. This history of cooperation was sufficient basis from which the magistrate could conclude that this informer was reliable and that his information was credible. See State v. Hayes and State v. Singleton, supra. The affidavit was sufficient to support the search warrant; therefore, the drugs seized under that warrant were properly admitted into evidence.

Defendant’s second major assignment of error deals with the instruction to the jury explaining the legal term, reasonable doubt. “A trial judge is not required to define the phrase ‘beyond a reasonable doubt’ unless specifically requested to do so. However, when he undertakes to do so the definition should be substantially in accord with definitions approved by this Court.” State v. Mabery, 283 N.C. 254, 256, 195 S.E. 2d 304, 306 (1973). Judge Kivett’s charge on reasonable doubt is substantially in accord with the law of this State. State v. Mabery, supra; State v. Flippin, 280 N.C. 682, 186 S.E. 2d 917 (1972); State v. Brackett, 218 N.C. 369, 11 S.E. 2d 146 (1940). There was no prejudicial error in the instructions.

No error.

Judges PARKER and WEBB concur.

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VAUGHN, Judge.

Defendant contends that the court erred in allowing the State to introduce as evidence the material seized pursuant to the search of defendant’s home on 22 April 1977. He alleges that the facts presented to the magistrate were not sufficient as a matter of law to support a finding of probable cause for the issuance of the search warrant. To be sufficient, an application must set forth facts and circumstances from which the magistrate can judge the validity of the informant’s conclusion that the evidence sought is at the indicated place and facts and circumstances from which the magistrate may conclude that the information passed on is credible. Spinelli v. United States, 393 U.S. 410, 21 L.Ed. 2d 637, 89 S.Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 12 L.Ed. 2d 723, 84 S.Ct. 1509 (1964).

[626]*626The affidavit attached to this warrant showed first that defendant had a reputation with local law enforcement personnel as a drug user and dealer. Secondly, it showed that within 30 days of the issuing of the warrant an informer had told Officer Combs, the affiant, of drugs at defendant’s home. More helpfully, the affidavit shows that a second informer reported to Combs that he had seen drugs in the house within the preceding 36 hours. These allegations, if credible, are sufficient to support the conclusion that probable cause to search exists. State v. Hayes, 291 N.C. 293, 230 S.E. 2d 146 (1976); State v. Singleton, 33 N.C. App. 390, 235 S.E. 2d 77 (1977).

The defendant asserts, however, that there are no circumstances shown from which the magistrate could conclude that the second informer’s information was credible. In addition to the above circumstances, the affidavit contained a report that this informer had cooperated with Officer Combs in the past by making a supervised drug buy at the defendant’s residence. This history of cooperation was sufficient basis from which the magistrate could conclude that this informer was reliable and that his information was credible. See State v. Hayes and State v. Singleton, supra. The affidavit was sufficient to support the search warrant; therefore, the drugs seized under that warrant were properly admitted into evidence.

Defendant’s second major assignment of error deals with the instruction to the jury explaining the legal term, reasonable doubt. “A trial judge is not required to define the phrase ‘beyond a reasonable doubt’ unless specifically requested to do so. However, when he undertakes to do so the definition should be substantially in accord with definitions approved by this Court.” State v. Mabery, 283 N.C. 254, 256, 195 S.E. 2d 304, 306 (1973). Judge Kivett’s charge on reasonable doubt is substantially in accord with the law of this State. State v. Mabery, supra; State v. Flippin, 280 N.C. 682, 186 S.E. 2d 917 (1972); State v. Brackett, 218 N.C. 369, 11 S.E. 2d 146 (1940). There was no prejudicial error in the instructions.

No error.

Judges PARKER and WEBB concur.

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Bluebook (online)

244 S.E.2d 496, 36 N.C. App. 624, 1978 N.C. App. LEXIS 2564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-eller-ncctapp-1978.

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