State v. Keys

361 S.E.2d 286, 87 N.C. App. 349
CourtCourt of Appeals of North Carolina
DecidedOctober 20, 1987
Docket872SC349
StatusPublished
Cited by12 cases

This text of 361 S.E.2d 286 (State v. Keys) 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. Keys, 361 S.E.2d 286, 87 N.C. App. 349 (N.C. Ct. App. 1987).

Opinion

361 S.E.2d 286 (1987)
87 N.C. App. 349

STATE of North Carolina
v.
Dorothy Mae KEYS.

No. 872SC349.

Court of Appeals of North Carolina.

October 20, 1987.

*287 Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. James A. Wellons, Morganton, for the State.

Mary K. Nicholson and Mark V.L. Gray, Greensboro, for defendant-appellant.

ORR, Judge.

I.

Defendant first assigns error to the trial court's denial of her motion to suppress the State's evidence obtained by the search warrant. She contends the State, by refusing to disclose (1) the identity of one of its two informants, and (2) whether that informant was present at the time of her arrest, prevented her from formulating a defense with which to challenge the proffered evidence and, thus, deprived her of due process.

"Nondisclosure of an informant's identity is a privilege justified by the need for effective law enforcement...." State v. Grainger, 60 N.C.App. 188, 190, 298 S.E.2d 203, 204 (1982), disc. rev. denied, 307 N.C. 579, 299 S.E.2d 648 (1983).

This Court in State v. Gilchrist, 71 N.C. App. 180, 321 S.E.2d 445 (1984), disc. rev. denied, 313 N.C. 332, 327 S.E.2d 894 (1985), clearly stated the law in North Carolina on this question holding:

*288 The prosecution is privileged to withhold the identity of an informant unless the informant was a participant in the crime or unless the informant's identity is essential to a fair trial or material to defendant's defense. State v. Beam, 45 N.C.App. 82, 262 S.E.2d 350 (1980). A defendant must make a sufficient showing that the particular circumstances of his case mandate disclosure before the identity of a confidential informant must be revealed. State v. Watson, 303 N.C. 533, 279 S.E.2d 580 (1981). When the defendant fails to make a sufficient showing of need to justify disclosure of the informant's identity he acquires no greater rights to compel disclosure of details about the informant than he initially had. State v. Beam, 45 N.C.App. 82, 262 S.E.2d 350 (1980).

71 N.C.App. at 182, 321 S.E.2d at 447-48.

On appeal defendant first asserts that one of the State's two informants may have been a participant in the crime she is charged with, and hence that informant's identity was discoverable.

Defendant was charged and convicted, pursuant to N.C.G.S. § 90-95(h)(4)a, of trafficking in heroin by possession of more than four grams but less than fourteen grams. This crime has two elements: (1) knowing possession (either actual or constructive) of (2) a specified amount of heroin. State v. Weldon, 314 N.C. 401, 403, 333 S.E.2d 701, 702 (1985); State v. Rogers, 32 N.C.App. 274, 278, 231 S.E.2d 919, 922 (1977). The defendant need not interact in any way with another individual to facilitate the commission of this crime.

In the present case, the information justifying the issuance of the search warrant was obtained from two informants prior to the police entry into 120 West 7th Street. Agent McLeod's discovery and examination of the pocketbook occurred in the ordinary course of the search of the premises and was not facilitated at the time of the search by any other person.

Therefore, the information given in advance by either informant in no way indicates that one of the informants was or might have been a participant in the crime charged. No other evidence was introduced that would lead to a conclusion that either informant was a participant. For this reason, we find no grounds to conclude that the activity displayed by either informant in this case was that of a participant. Defendant's argument is rejected.

Next defendant contends disclosure of the informant's identity is material to the preparation of her defense.

"[A] defendant who requests that the identity of a confidential informant be revealed must make a sufficient showing that the particular circumstances of his case mandate such disclosure." State v. Watson, 303 N.C. 533, 537, 279 S.E.2d 580, 582 (1981); State v. Gilchrist, 71 N.C.App. 180, 321 S.E.2d 445.

Defendant argued at the voir dire hearing that the informant, if present at defendant's arrest, may have evidence favorable to defendant. Defendant failed, however, to tell the trial court what this favorable evidence might be. More importantly four persons—defendant's father, defendant's brother, an adult female, and an adult male, all of whom were known and recognized by defendant—were present at the time of her arrest. Through her discovery, defendant knew prior to trial that the State did not intend to call any of these persons as witnesses. Therefore, defendant could have subpoenaed one or all of these persons to testify at trial on her behalf and thereby gain the evidence necessary for her defense.

We find defendant failed to make a sufficient showing that disclosure of the informant's identity was essential to her defense.

Next, defendant argues her motion to suppress was improperly denied because the search warrant, under which the evidence was gathered, lacked probable cause.

Relying on State v. Goforth, 65 N.C.App. 302, 309 S.E.2d 488 (1983), defendant asserts that the affidavit offered in support of the search warrant contained stale information and failed to implicate the premises to be searched.

*289 In Goforth our Court said to test the timeliness of a search warrant,

[t]he general rule is that no more than a `reasonable' time may have elapsed. The test for `staleness' of information on which a search warrant is based is whether the facts indicate that probable cause exists at the time the warrant is issued. Sgro v. United States, 287 U.S. 206, 77 L.Ed. 260, 53 S.Ct. 138 (1932); State v. King, 44 N.C.App. 31, 259 S.E.2d 919 (1979).

Goforth, 65 N.C.App. at 307, 309 S.E.2d at 492, quoting, State v. Lindsey, 58 N.C. App. 564, 565-66, 293 S.E.2d 833, 834, disc. rev. denied, 306 N.C. 747, 295 S.E.2d 761 (1982).

Furthermore in Goforth we held that "to show probable cause, an affidavit must establish reasonable cause to believe that the proposed search for evidence of the designated offense will `reveal the presence upon the described premises of the objects sought and that they will aid in the apprehension or conviction of the offender.'" Goforth, 65 N.C.App. at 307-08, 309 S.E.2d at 493, quoting in part, State v. Campbell, 282 N.C. 125, 129, 191 S.E.2d 752, 755 (1972).

The affidavit offered to justify a finding of probable cause and now challenged by defendant, stated:

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Bluebook (online)
361 S.E.2d 286, 87 N.C. App. 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-keys-ncctapp-1987.