State v. Kramer

262 S.E.2d 693, 45 N.C. App. 291, 1980 N.C. App. LEXIS 2630

• Court: Court of Appeals of North Carolina
• Decided: February 19, 1980
• Docket: No. 791SC779
• Status: Published

Opinion

ARNOLD, Judge.

The search warrant in this case was issued for a person, defendant, and for certain described premises. It is now uncon-tradicted that in fact it was not defendant who was described by the informant as participating in the drug transaction at these premises. Defendant argues that because this portion of the affidavit supporting the search warrant has been shown to be factually inaccurate, the entire warrant must fail.

The State contends that we may disregard the information in the affidavit which later proved to be erroneous, and that when we do, we will find that the remaining information is sufficient to establish probable cause for a search of the premises. See State v. Louchheim, 296 N.C. 314, 250 S.E. 2d 630 (1979); State v. Steele, 18 N.C. App. 126, 196 S.E. 2d 379 (1973). We find it more appropriate, however, to consider all the information contained in the affidavit, including that which subsequently proved to be erroneous. The magistrate is required to determine the presence or absence of probable cause upon the basis of the information he has before him. It has never been held that he must inquire into the factual accuracy of that information before reaching a decision.

In determining what is probable cause, we are not called upon to determine whether the offense charged has in fact been committed. We are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit and the issuance of the warrant for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.

Dumbra v. United States, 268 U.S. 435, 441, 69 L.Ed. 1032, 1036, 45 S.Ct. 546, 549 (1925).

Defendant argues that he has established the invalidity of the warrant by showing the untruthfulness of the underlying information as provided for by G.S. 15A-978(a). That statute provides, however, for an attack on the good faith of the affiant in providing the information, not on the factual accuracy of the information relied upon to establish probable cause. Accord, State v. Winfrey, 40 N.C. App. 266, 252 S.E. 2d 248, cert. denied 297 N.C. 304, 254 S.E. 2d 922 (1979). There is no showing here of a lack of good faith on Officer Hoffman’s part, and defendant makes no argument to that effect. Accordingly, no “untruthfulness” under G.S. 15A-978(a) has been established.

We have no difficulty in finding that probable cause existed for the issuance of this warrant. Officer Hoffman’s affidavit indicated that a confidential informant had told him that at the described premises a man, described in detail, had given the informant marijuana and hashish. The affidavit contained further information from which a magistrate could determine that the unnamed informant was reliable. This information is sufficient. See State v. Beddard, 35 N.C. App. 212, 241 S.E. 2d 83 (1978); State v. Singleton, 33 N.C. App. 390, 235 S.E. 2d 77 (1977).

The trial court’s conclusion that there existed no probable cause for the issuance of this search warrant is error. The order appealed from is

Reversed.

Judges Parker and Webb concur.