State v. Fowler

365 S.E.2d 301, 89 N.C. App. 10, 1988 N.C. App. LEXIS 227
CourtCourt of Appeals of North Carolina
DecidedMarch 1, 1988
DocketNo. 8728SC604
StatusPublished

This text of 365 S.E.2d 301 (State v. Fowler) 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. Fowler, 365 S.E.2d 301, 89 N.C. App. 10, 1988 N.C. App. LEXIS 227 (N.C. Ct. App. 1988).

Opinion

ORR, Judge.

I.

On appeal, defendant contends the information provided by the confidential informant in the two affidavits was insufficient to establish probable cause for issuance of a search warrant.

[13]*13When addressing defendant’s contention, our Court is guided by the Supreme Court’s decision in State v. Arrington, 311 N.C. 633, 319 S.E. 2d 254 (1984), which adopted the “totality of the circumstances” analysis, set forth in Illinois v. Gates, 462 U.S. 213, 76 L.Ed. 2d 527, reh’g denied, 463 U.S. 1237, 77 L.Ed. 2d 1453 (1983), for determining if probable cause existed for issuance of a search warrant based on information from an informant. State v. Walker, 70 N.C. App. 403, 320 S.E. 2d 31 (1984).

The standard applied for a totality of the circumstances analysis is stated as follows:

The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding]’ that probable cause existed.

Illinois v. Gates, 462 U.S. at 238-39, 76 L.Ed. 2d at 548; State v. Arrington, 311 N.C. at 638, 319 S.E. 2d at 257-58.

The Supreme Court of North Carolina further emphasized in Arrington “that great deference should be paid a magistrate’s determination of probable cause and that after-the-fact scrutiny should not take the form of a de novo review.” Arrington, 311 N.C. at 638, 319 S.E. 2d at 258.

In the present case, Detective Jenkins presented two affidavits to establish probable cause for the search of defendant’s person and anal cavity. The first affidavit contained the following statements:

Within the past 48 hrs. Det. A. D. Jenkins with the Asheville Police Dept, interviewed a confidential informant. Informant stated that Luther Fowler was to leave on 10/22/86 in the evening, on a flight out of town to buy Dilaudid and would return within the next day or so. Informant has informed Affiant in the recent past of the actions of Luther Fowler, as to leaving town by airplane to buy Dilaudid, and would return in a day or so with a quanity [sic] of Dilaudid.
[14]*14On 10/22/86 Det. J. S. Siske with the Asheville Police Dept, contacted a Piedmont Airlines reservation clerk in Winston-Salem, N.C. The clerk stated that they had a Luther Fowler on their reservation list, to depart the Asheville Airport at aprox. 6:00 p.m. on 10/22/86. The clerk stated that Luther Fowler cancelled the flight and wanted to book a flight for a departure of aprox. 1 hour later. The clerk stated that this flight was full and Fowler did not depart on 10/22/86. But did schedule a flight for 10/23/86 at 6:50 a.m. with a destination of Daytona Florida. The clerk stated that Luther Fowler was scheduled to return on 10/23/86 at aprox. 10:20 p.m.
On 10/23/86 Det. J. S. Siske talked with a clerk with Piedmont Airlines in Winston-Salem, N.C. and was told that Luther Fowler did board the 6:50 a.m. flight to Daytona Fla.
On aprox. 10/11/86 Det. A. D. Jenkins and Det. J. S. Siske while assisting patrol had the occasion to talk with Luther Fowler after being arrested for trespass, and while being intoxicated stated to Siske and Jenkins that he had just recently returned from Daytona, Fla. and offered to show the airline ticket.
In 1976 Luther Fowler was convicted for sale & delivery of Herion [sic], Cocaine, & Dilaudid in the state of N.C. Also convicted for Rape in 1956 and more recently for carrying a concealed weapon 8/27/86. Luther Fowler also has numerous other convictions in other states.
This affiant has received information in the recent past that Luther Fowler is a Dilaudid dealer.

An evaluation of the affidavit discloses for consideration by the magistrate the following factors: (1) defendant’s present street reputation as a dilaudid dealer and his past conviction for dilaudid possession; (2) the informant’s specific description, at an earlier time, as to how and when defendant purchased dilaudid; (3) the informant’s tip describing the time and day of departure, the estimated day of return, and the mode of transportation to be used by defendant when he brought his next shipment of dilaudid to Asheville; (4) the police confirmation of all the details contained in the informant’s tip; and (5) the further confirmation of defendant’s [15]*15departure on a flight from Asheville, North Carolina to Daytona Beach, Florida on 23 October 1986.

The second affidavit to establish probable cause was a continuance of the first affidavit and said:

The applicant swears to the following facts to establish probable cause for the issuance of this continuation of the original affidavit:
In addition to the original information contained in the application for search warrant of Luther E. Fowler, same confidential informant further informed applicant that Luther E. Fowler is known to transport Dilauded [sic] within his anal cavity.
Upon execution of search warrant, Fowler was searched by applicant Det. Dayton, and Special Agent David Barnes. Upon examination of Fowler, Det. Dayton and Special Agent Barnes observed what appeared to be a lubricant in the direct area of the anal opening.
It is therefore requested that the search be expanded to include body cavities.

This affidavit was dated, sworn, and subscribed before a detached and neutral magistrate. It specifically referred to and incorporated the prior information given in the search warrant application and the first affidavit. In addition, the information received from the informant, that defendant transported drugs in his anal cavity, was supported by the police examination disclosing a lubricant at the opening of defendant’s anal cavity.

Applying the practical common sense approach mandated by the “totality of the circumstances” analysis, this Court finds there was a substantial basis for the first magistrate’s conclusion that defendant would possess dilaudid when he returned to the Ashe-ville Airport the evening of 23 October 1986 and for the second magistrate’s conclusion that the dilaudid possessed by defendant was secreted in his anal cavity. Accordingly, we conclude adequate probable cause, based upon the informant’s tip and the police investigation, existed for issuance of the search warrant.

[16]*16II.

Defendant further argues issuance of the search warrant violated N.C.G.S. § 15A. After reviewing this argument, we find it to be without merit and decline to discuss it.

III.

Finally, defendant contends the search warrant, even if properly issued, was improperly executed; therefore, evidence disclosed pursuant to the warrant was improperly admitted at trial.

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Related

Breithaupt v. Abram
352 U.S. 432 (Supreme Court, 1957)
Illinois v. Gates
462 U.S. 213 (Supreme Court, 1983)
Charles E. Blackford v. United States
247 F.2d 745 (Ninth Circuit, 1957)
State v. Walker
320 S.E.2d 31 (Court of Appeals of North Carolina, 1984)
State v. Shanklin
193 S.E.2d 341 (Court of Appeals of North Carolina, 1972)
Brooks v. Taylor Tobacco Enterprises, Inc.
260 S.E.2d 419 (Supreme Court of North Carolina, 1979)
State v. Flowers
183 S.E.2d 820 (Court of Appeals of North Carolina, 1971)
State v. Arrington
319 S.E.2d 254 (Supreme Court of North Carolina, 1984)
Seath v. Regulations & Permits Administration
463 U.S. 1237 (Supreme Court, 1983)

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Bluebook (online)
365 S.E.2d 301, 89 N.C. App. 10, 1988 N.C. App. LEXIS 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fowler-ncctapp-1988.