State v. Campbell

• Decision Date: 11 October 1972
• Docket Number: No. 14,14
• Citation: 282 N.C. 125,191 S.E.2d 752
• Parties: STATE of North Carolina v. Kenneth CAMPBELL.
• Court: North Carolina Supreme Court

Page 752

191 S.E.2d 752

282 N.C. 125

STATE of North Carolina v. Kenneth CAMPBELL.

No. 14.

Supreme Court of North Carolina.

Oct. 11, 1972.

Robert Morgan, Atty. Gen., and Henry E. Poole, Associate Atty., Raleigh, for the State, appellant.

Woodall, McCormick & Arnold, by Edward H. McCormick, Lillington, for defendant-appellee.

HUSKINS, Justice.

May the State appeal from a decision of the Court of Appeals in which there is a dissent?

When the General Assembly created the North Carolina Court of Appeals as a part of the appellate division of the General Court of Justice, it enacted a system of appeals to accommodate the existence of two appellate courts in the appellate division. G.S. § 7A--30 is a part of that system and reads as follows:

'Appeals of right from certain decisions of the Court of Appeals.--Except as provided in § 7A--28 (pertaining to post conviction hearings), from any decision of the Court of Appeals rendered in a case.

(1) Which directly involves a substantial question arising under the Constitution of the United States or of this State, or

(2) In which there is a dissent, or

(3) Which involves review of a decision of the North Carolina Utilities Commission in a general rate-making case, an appeal lies of right to the Supreme Court.'

By this enactment 'the General Assembly of North Carolina intended to insure a review by the Supreme Court of questions on which there was a division in the intermediate appellate court. . . .' Hendrix v. Alsop, 278 N.C. 549, 180 S.E.2d 802 (1971). North Carolina is a 'double appeal' state (first to the Court of Appeals and then to the Supreme Court) as a matter of right in cases (1) involving a substantial constitutional question, or (2) in which there is a dissent in the Court of Appeals, or (3) involving review of a decision of the North Carolina Utilities Commission in a general rate-making case. State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968). Thus the aggrieved party, whether the State or the defendant, may appeal to the Supreme Court as of right from any decision of the Court of Appeals in which there is a dissent. G.S. § 7A--30(2). Had the General Assembly intended to limit double appeals in criminal cases to the defendant only, we think it would have said so.

We now turn to the basic question posed: Was the search warrant in this case issued upon a showing of probable cause to search the house in which defendant resided? If so, the search warrant was valid and the fruits of the search were competent evidence; otherwise not. G.S. § 15--27(a); State v. Colson, supra (274 N.C. 295, 163 S.E.2d 376); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

Statutory and constitutional provisions relating to search warrants prohibit their issuance except upon a finding of probable cause for the search. U.S.Const. Amend. IV; G.S. § 15--25(a).

Probable cause, as used in the Fourth Amendment and G.S. § 15--25(a), 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. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971).

Probable cause 'does not mean actual and positive cause, nor does it import absolute certainty. The determination of the existence of probable cause is not concerned with the question of whether the offense charged has been committed in fact, or whether the accused is guilty or innocent, but only with whether the affiant has reasonable grounds for his belief. If the apparent facts set out in an affidavit for a search warrant 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 search warrant.' 47 Am.Jur., Searches and Seizures, § 22.

An affidavit signed under oath or affirmation by the affiant and indicating the basis for the finding of probable cause by the issuing magistrate must be a part of or attached to the warrant. G.S. § 15--26(b).

The affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant; but the affidavit in such case must contain some of the underlying circumstances from which the affiant's informer concluded that the articles sought were where the informer claimed they were, and some of the underlying circumstances from which the affiant concluded that the informer, whose identity need not be disclosed, was credible and his information reliable. State v. Vestal, supra; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Jones v. United States, 362 U.S.

257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960).

Whether the affidavit is sufficient to show probable cause must be determined by the issuing magistrate rather than the affiant. This is constitutionally required by the Fourth Amendment. Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

The affidavit upon which the search warrant in this case was obtained reads in pertinent part as follows:

'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. . . .

The property described above is located on the premises described as follows: a one story white frame dwelling .9 miles from the Coats city limits on Hwy. 55 west toward Angier; on the right side of the hwy. directly across from Ma's Drive In also known as Bill's Drive-in. The facts which establish probable cause for the issuance of a search warrant are as follows: (See attached Affidavit) . . ..

AFFIDAVIT

Affiant is holding arrest warrants charging Kenneth Campbell with sale of Narcotics on April 16, 1971 and possession of narcotics on April 16, 1971 and April 28, 1971.

Affiant is holding arrest warrants on M. D. Queensberry for sale of narcotics on April 16, 1971, April 28, 1971 and April 29, 1971. Also affiant has four arrest warrants charging Queensberry with four counts of possession of Narcotics.

Affiant is holding arrest warrants charging David Bryan with sale and possession of narcotic drugs on April 1, 1971.

All of the above subjects live in the house across from Ma's Drive-in on Hwy. 55. They all have sold narcotics to Special Agent J. M. Burns of the SBI and are all actively involved in drug sales to Campbell College students; this is known from personal knowledge of affiant, interviews with reliable confidential informants and local police officers.

The house is owned by Macia Walker and leased to Kenneth Campbell who also pays the utility bills.'

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, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The issuing officer 'must judge for himself the persuasiveness of the facts relied on by...