State v. Roark

350 S.E.2d 153, 83 N.C. App. 425, 1986 N.C. App. LEXIS 2715

• Court: Court of Appeals of North Carolina
• Decided: November 25, 1986
• Docket: No. 8625SC584
• Status: Published

Opinion

WEBB, Judge.

The defendant assigns error to the admission of the evidence seized as a result of the searches pursuant to the two warrants. We believe this assignment of error has merit.

Prior to Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 2d 527, reh’g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed. 2d 1453 (1983) the evidence would clearly have to be excluded. The affidavits in support of the search warrants are inadequate under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.ED. 2d 637 (1969). There is nothing in the affidavit which shows the information given by the informant is reliable. Gates relaxed the two-pronged test that grew from Aguilar and Spinelli, i.e., that the affidavit must show both the basis of the informant’s knowledge and that he is reliable. It adopted a “totality of circumstances” test, i.e., “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.” 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed. 2d at 548. The Supreme Court made it clear that what it called a “bare bones” affidavit, one which says only that the affiant has received reliable information from a credible person and does believe, is not sufficient for a magistrate to find probable cause for a search.

Our Supreme Court adopted the totality of circumstances test in State v. Arrington, 311 N.C. 633, 319 S.E. 2d 254 (1984). In this case we believe that we are bound by the cases cited above from the United States Supreme Court and the Supreme Court of North Carolina to hold that it was error for the magistrate to issue search warrants based on affidavits which only said a “reliable and confidential informant personally contacted the applicant with the information” that stolen property was on the premises of defendant.

In United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed. 2d 677, reh. denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed. 2d 942 (1984), the United States Supreme Court held that not all evidence obtained by the use of an invalid search warrant should be excluded from evidence. It held that when an officer reasonably relies on a search warrant issued by a detached and neutral magistrate, evidence seized during the search is admissible although the warrant is later determined to be invalid. The Supreme Court said that one instance in which the exception does not apply is when the warrant is based on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Id. at 923, 104 S.Ct. at 3421-3422, 82 L.Ed. 2d at 699, quoting Brown v. Illinois, 422 U.S. at 610-611, 95 S.Ct. 2254, 45 L.Ed. 2d 416. We believe a reading of the United States Supreme Court cases shows that they consider a “bare bones” allegation such as we have in this case to be so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. For that reason this case would not be an exception to the exclusionary rule. It was error to admit the evidence seized in the searches.

We do not discuss the defendant’s other assignment of error because the question it poses may not arise at a new trial.

New trial.

Judges Eagles and Parker concur.