State v. Sheetz

265 S.E.2d 914, 46 N.C. App. 641, 1980 N.C. App. LEXIS 2923

• Court: Court of Appeals of North Carolina
• Decided: May 20, 1980
• Docket: 7921SC966
• Status: Published

Opinion

ERWIN, Judge.

Defendant’s initial assignment of error concerns the trial court’s denial of his motion to suppress the introduction of evidence. We find it necessary to review the propriety of the orders to resolve this contention.

I. Order (10 October 1978)

The order issued on 10 October 1978 was entitled “ORDER For Examination Of Business And bank Account Records.” The language of the order provided for an examination of the business and working records of defendant’s business, as well as those of the banks named therein. The order was different from those issued on 4 December and 13 December. We believe this difference was of constitutional magnitude.

Normally, an order to produce documents, a subpoena, or subpoena duces tecum, is not thought to invoke the strictures of the Fourth Amendment of the United States Constitution, which provides:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

However, a subpoena is subject to the Fourth Amendment stricture aginst indefiniteness. See United States v. Miller, 425 U.S. 435, 48 L.Ed. 2d 71, 96 S.Ct. 1619 (1976); Fisher v. United States, 425 U.S. 391, 48 L.Ed. 2d 39, 96 S.Ct. 1569 (1976); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 90 L.Ed. 614, 66 S.Ct. 494 (1946); Wilson v. United States, 221 U.S. 361, 55 L.Ed. 771, 31 S.Ct. 538 (1911). Thus, the nature of the order being considered is of significance.

The present order is akin to those called for by the United States Supreme Court in Marshall v. Barlow’s, Inc., 436 U.S. 307, 56 L.Ed. 2d 305, 98 S.Ct. 1816 (1978); See v. Seattle, 387 U.S. 541, 18 L.Ed. 2d 943, 87 S.Ct. 1737 (1967); and Camara v. Municipal Court, 387 U.S. 523, 18 L.Ed. 2d 930, 87 S.Ct. 1727 (1967), i.e., administrative search warrants. G.S. 15-27.2 expressly authorizes issuance of administrative and inspection warrants. “But ‘[i]f the authorities are seeking evidence to be used in a criminal prosecution, the usual standard [of probable cause] will apply.’ ” Michigan v. Tyler, 436 U.S. 499, 508, 56 L.Ed. 2d 486, 498, 98 S.Ct. 1942, 1950 (1978), and the warrant must be viewed as a criminal investigative search warrant. 1 Michigan v. Tyler, supra. With this in mind, we look to see if the search warrant and its issuance meet the constitutional requirements embodied in the Fourth Amendment of the United States Constitution.

A. Probable Cause

“Within the meaning of the Fourth Amendment and G.S. 15-25(a), now G.S. 15A-243 to 245, probable cause means a reasonable ground to believe that the proposed search will reveal the presence, upon the premises to be searched, of the objects sought and that those objects will aid in the apprehension or conviction of the offender. State v. Campbell, supra. Thus, the affidavit upon which a search warrant is issued is sufficient if it ‘supplies reasonable cause to believe that the proposed search for evidence of the commission of the designated criminal 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.’ State v. Vestal, 278 N.C. 561, 180 S.E. 2d 755 (1971).”

State v. Riddick, 291 N.C. 399, 406, 230 S.E. 2d 506, 511 (1976), reh. denied, 293 N.C. 261, 247 S.E. 2d 234 (1977). The affidavit upon which the order of 10 October 1978 was issued alleged in pertinent part:

“[T]hat as a result of an investigation being conducted by the Forsyth County Sheriff’s Department into a fire occurring at Clemmons Florist and Gift Shop on August 28, 1978 in For-syth County, Clemmons, North Carolina, the said District Attorney has reason to believe that the examination of certain records in the possession of Charles Steven Sheetz and one Clemmons Florist Gift [sic] Shop and the entire business and working records of the Clemmons Florist and Gift Shop would be in the best interest of the enforcement of the law and the administration of justice in Forsyth County . . .”

“Probable cause cannot be shown ‘by affidavits which are purely conclusory, stating only the affiant’s or an informer’s belief that probable cause exists without detailing any of the “underlying circumstances” upon which that belief is based .... Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.’ United States v. Ventresca, 380 U.S. 102, 13 L.Ed. 2d 684, 85 S.Ct. 741 (1965). The issuing officer ‘must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant’s mere conclusion . . . .’ Giordenello v. United States, 357 U.S. 480, 2 L.Ed. 2d 1503, 78 S.Ct. 1245 (1958).”

State v. Campbell, 282 N.C. 125, 130-31, 191 S.E. 2d 752, 756 (1972).

In State v. Campbell, supra, a special agent for the State Bureau of Investigation had sworn under oath that he had prob able cause to believe that defendant Campbell had certain illegal drugs in the described house. The facts allegedly justifying issuance of a warrant were the agent’s possession of arrest warrants for defendant and his cohorts and the fact that:

“ ‘Peter Michael Boulus, Special Agent; N.C. State Bureau of Investigation; being duly sworn and examined under oath, says under oath that he has probable cause to believe that Kenneth Campbell; M. K. Queensberry and David Bryan has on his premises certain property, to wit: illegally possessed drugs (narcotics, stimulants, depressants), which constitutes evidence of a crime, to wit: possession of illegal drugs

Id. at 130, 191 S.E. 2d at 756. One of the grounds upon which our Supreme Court held the seizure of the drugs unconstitutional was that nowhere in the affidavit was there a sufficient statement of underlying circumstances from which the magistrate could have concluded that probable cause existed. We believe that the affidavit in question contains the same flaw. The allegation that agents have conducted an investigation which has disclosed evidence of irregularities which, if supported by evidence and found to be true, would constitute serious violations of the law on the part of the defendant, without the disclosure of facts from which the magistrate could ascertain the existence of irregularities that would constitute serious violations of the law, does not meet the constitutional standard for issuance of a search warrant. See Spinelli v. United States, 393 U.S. 410, 21 L.Ed. 2d 637, 89 S.Ct. 584 (1969); United States v. Ventresca, 380 U.S. 102, 13 L.Ed. 2d 684, 85 S.Ct. 741 (1965); Aguilar v. Texas, 378 U.S. 108, 12 L.Ed. 2d 723, 84 S.Ct. 1509 (1964); accord, State v. Macri, 39 N.J. 250, 188 A. 2d 389 (1963).

Defendant’s motion to suppress introduction of the records or evidence gleaned from the records seized from him personally and the Clemmons Florist and Gift Shop pursuant to the order dated 10 October 1978 should have been allowed. See Wong Sun v. United States, 371 U.S. 471, 9 L.Ed. 2d 441, 83 S.Ct. 407 (1963); Mapp v. Ohio, 367 U.S. 643, 6 L.Ed. 2d 1081, 81 S.Ct. 1684 (1961); see also G.S. 15A-974.

B. Exclusionary Rule

Evidence seized during an unlawful search cannot constitute proof against the victim of the search, 2 and the exclusionary prohibition extends to the indirect as well as to the direct products of such invasions. Wong Sun v. United States, supra, and Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L.Ed. 319, 40 S.Ct. 182 (1920). As stated by Mr. Justice Holmes in Silverthorne Lumber Co. v. United States, Id. at 392, 64 L.Ed. at 321, 40 S.Ct. at 183:

“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the government’s own wrong cannot be used by it in the way proposed.”

Subsequent case law has restated this requirement thusly:

“[T]he more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”

Wong Sun v. United States, 371 U.S. 471, 488, 9 L.Ed. 2d 441, 455, 83 S.Ct. 407, 417 (1963). Thus, we must look to see if the evidence obtained pursuant to the orders dated 4 December 1978 and 13 December 1978 was obtained by exploitation of the unlawful search and seizure or by means sufficiently distinguishable to be purged of the primary taint.

II. Orders Dated 4 and 13 December 1978

The orders of 4 December 1978 and 13 December 1978 are subpoenas, and evidence procured by subpoenas is normally not subject to the strictures of the Fourth Amendment. Fisher v. United States, 425 U.S. 391, 48 L.Ed. 2d 39, 96 S.Ct. 1569 (1976); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 90 L.Ed. 614, 66 S.Ct. 494 (1946); Wilson v. United States, 221 U.S. 361, 55 L.Ed. 771, 31 S.Ct. 538 (1911). Thus, evidence obtained pursuant to these orders can only be excluded if it has been obtained by exploitation of the illegal search and seizure. 3 For the reasons that follow, we hold the evidence obtained from defendant personally and as sole proprietor should have been excluded and could not be used to sustain the conviction.

The order dated 4 December 1978 was issued upon the application of the district attorney to facilitate the completion of the criminal inquiries of the sheriff and the State Bureau of Investigation.

In Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L.Ed. 319, 40 S.Ct. 182 (1920), the United States Supreme Court, when faced with a similar factual situation, held that evidence lawfully obtained pursuant to subpoenas issued subsequent to a prior unlawful seizure was not admissible to sustain a criminal prosecution against the defendants.

In Silverthorne, an indictment had been filed against defendants. They were both arrested. Meanwhile, the United States Marshal, without lawful process, seized books, papers, and documents of defendants’ company. Defendants filed an application to have the books returned. The District Court ordered the return of the items, but not before copies and photographs had been made. Subpoenas were then served to reproduce the items. While the facts in the instant case differ, in that here an unlawful search warrant preceded the initial unlawful search, we find no difference of constitutional magnitude, because the issuance of the subsequent subpoenas as in Silverthorne was inextricably connected with the prior illegal search. Their very issuance was for the purpose of exploiting the evidence obtained by the prior illegal search, i.e., to show criminal acts. For these reasons, we reverse.

III. Production of Records

Defendant also raises the argument that use of business records of a sole proprietor against him in a criminal proceeding when the records are obtained pursuant to subpoenas is violative of the Fifth Amendment of the United States Constitution privilege against self-incrimination.

Whatever solace defendant may have taken from the language used by Mr. Justice Marshall in Bellis v. United States, 417 U.S. 85, 87-88, 40 L.Ed. 2d 678, 683, 94 S.Ct. 2179, 2182-83 (1974), stating that “[t]he privilege applies to the business records of the sole proprietor or sole practitioner as well as to personal documents containing more intimate information about the individual’s private life” has been eviscerated by the Court’s subsequent decisions which have all but eliminated the privilege for the private individual, the very person for whom the amendment sought to provide.

In the leading case, Fisher v. United States, 425 U.S. 391, 48 L.Ed. 2d 39, 96 S.Ct. 1569 (1976), the United States Supreme Court held that a taxpayer does not have standing to invoke the privilege where the government orders the taxpayer’s accountant to produce work papers prepared from information given him by the taxpayer for the preparation of the taxpayer’s tax return. In reaching its decision, the Court reasoned that “[t]he accountant’s workpapers are not the taxpayer’s. They were not prepared by the taxpayer, and they contain no testimonial declarations by him.” Id. at 409, 48 L.Ed. 2d at 55, 96 S.Ct. at 1580. In the instant case, defendant testified:

“My accountant usually does my taxes for me. I sign the returns, but don’t never [sic] look at them. I just sign whatever he fills out.

... I check quarterly with my bookkeeper when he does my quarterly taxes. I have got to turn over all the materials to the bookkeeper so he can prepare the tax forms, and he checks the books. He usually computes the amount of inventory value from either the invoices or what has been put in the ledger. I don’t know how he arrives at the equipment value.”

Inasmuch as defendant’s appeal is based on turning over his tax returns to the State pursuant to the subpoenas, his constitutional argument is rendered meritless by the decision in Fisher v. United States, supra.

In all candor, we must call attention to our decision in Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E. 2d 624 (1980).

In Lowder, we held that the defendant could not be held in contempt for failure to furnish copies of his federal and state income tax returns or to write out a list of his assets because of the privilege against self-incrimination embodied in the Fifth Amendment of the United States Constitution. Our premise in holding that the defendant could not be forced to furnish copies of his federal and state income tax returns was that the returns were prepared by defendant. The issue as to whether someone else had prepared the returns for the defendant was neither raised nor addressed.

In the instant case, defendant testified: “I have had no really formal education in bookkeeping. I am more or less a small businessman who kept his own books and records and took them to my accountant quarterly.” To the extent that defendant’s constitutional argument rests on the compelled production of business records prepared by him as sole proprietor of the Clem-mons Florist and Gift Shop, it must prevail. See Lowder v. All Star Mills, Inc., 45 N.C. App. 348, 263 S.E. 2d 624 (1980). The motion to suppress should have been allowed as it related to the following records in the possession of defendant — invoices, accounts receivable, outstanding notes payable, and credit charges.

IV. Motion to Dismiss

Defendant’s plea of not guilty in a prosecution under G.S. 14-62 places the burden upon the State to prove (1) the fire, (2) that it was of incendiary origin, and (3) that defendant was connected with the crime. State v. Cuthrell, 233 N.C. 274, 63 S.E. 2d 549 (1951).

A motion for dismissal pursuant to G.S. 15A-1227 tests the sufficiency of the evidence to sustain a conviction. State v. Smith, 40 N.C. App. 72, 252 S.E. 2d 535 (1979).

“In considering a motion for judgment as in the case of non-suit or, as in the present case, a motion for dismissal pursuant to G.S. 15A-1227, the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. State v. Thomas, 296 N.C. 236, 250 S.E. 2d 204 (1978). All evidence admitted during the trial, whether competent or incompetent, which is favorable to the State must be taken as true, and contradictions or discrepancies therein must be resolved in the State’s favor. State v. Agnew, 294 N.C. 382, 241 S.E. 2d 684 (1978). The trial court in considering such motions is concerned only with the sufficiency of the evidence to carry the case to the jury and not with its weight. State v. McNeil, 280 N.C. 159, 185 S.E. 2d 156 (1971).”

Id. at 80, 252 S.E. 2d at 540-41.

Evidence that a fire occurred is not in dispute. However, defendant contends that the evidence of incendiary origin is incompetent and that there is no causal connection between him and the fire.

Defendant’s argument that the evidence of incendiary origin is incompetent is meritless. An expert in arson investigation may properly give his opinion that a fire was of incendiary origin where his opinion is based on the expert’s own examination of the premises and based on a proper hypothetical question supported by the evidence. State v. Smith, 34 N.C. App. 671, 239 S.E. 2d 610 (1977), appeal dismissed, 294 N.C. 186, 241 S.E. 2d 73 (1978). For purposes of a motion to dismiss, incompetent evidence may be considered. Thus, assuming arguendo that the witness was improperly qualified as an expert, his testimony would still support denial of the motion to dismiss. State v. Cuthrell, supra, does not establish a contrary rule.

As to defendant’s argument about the sufficiency of the causal connection, we note that the assistant fire marshal’s report was read to the jury and connected defendant with the crime. We hold that this evidence was sufficient to withstand the motion to dismiss. On the day of the fire, defendant had closed the shop. The fire occurred within five minutes of the closing. The fire was not caused by electrical malfunction. When the firemen arrived, the premises was still secure. When this evidence is viewed in the light most favorable to the State, an inference of guilt clearly arises. When evidence of motive, i.e., heavy indebtedness, and evidence of a recent increase in the amount of insurance on the premises are coupled with the foregoing circumstances, the jury could reasonably find defendant guilty of the crime charged. We find the facts in State v. Blizzard, 280 N.C. 11, 184 S.E. 2d 851 (1971), distinguishable.

Other assignments of error submitted need not be considered, as they may not occur at retrial.

For the errors noted in the foregoing text, defendant is entitled to a

New trial.

Judges MARTIN (Robert M.) and CLARK concur.

1 . G.S. 15-27.2(c)(l) provides that when an authorized person under G.S. 15-27.2(a) seeks a warrant which is not a part of a legally authorized program of inspection, a warrant to conduct an inspection may issue upon a showing of probable cause. The probable cause standard has been interpreted to be the same as in the case of a search warrant in a criminal proceeding. Gooden v. Brooks, Comr. of Labor, 39 N.C. App. 519, 251 S.E. 2d 698, appeal dismissed, 298 N.C. 806, 261 S.E. 2d 919 (1979). Thus, whether the warrant is viewed as an administrative search warrant or a regular search warrant issued pursuant to G.S. 15A-245 is not material to the resolution of this case.

2 . Defendant does not have standing to object to the seizure of or use of the business records of the banks or financial institutions at trial. See United States v. Miller, 425 U.S. 435, 48 L.Ed. 2d 71, 96 S.Ct. 1619 (1976).

Defendant’s reliance on the Right to Financial Privacy Act of 1978, § 1100, 12 U.S.C. 3401 et seq. is misplaced since the act, even if it bars such disclosure, by its terms would not apply to acts occurring prior to November 10, 1978.

3 . Defendant can only object to the records taken from him personally and as the sole proprietor of the Clemmons Florist and Gift Shop. See Footnote 2. Thus, the evidence obtained from the banks and financial institutions was admissible, and the 13 December 1978 order becomes irrelevant to our decision.