State v. Edwards

• Decision Date: 26 November 1974
• Docket Number: No. 78,78
• Citation: 286 N.C. 162,209 S.E.2d 758
• Parties: STATE of North Carolina v. Haywood EDWARDS.
• Court: North Carolina Supreme Court

Page 758

209 S.E.2d 758

286 N.C. 162

STATE of North Carolina v. Haywood EDWARDS.

No. 78.

Supreme Court of North Carolina.

Nov. 26, 1974.

Atty. Gen. James H. Carson, Jr. by Associate Atty. William A. Raney, Jr., Raleigh, for the State.

Turner & Harrison by Fred W. Harrison, Kinston, for defendant.

BRANCH, Justice.

The Court of Appeals correctly decided that the trial judge properly considered a photostatic copy of the original search warrant for the purpose of passing upon the validity of the original. The State's evidence disclosed that the original search warrant was lost, and in our opinion the introduction of the photostatic copy of the original provided plenary evidence both of the contents of the original and of regularity on its face. See State v. Cobb, 250 N.C. 234, 108 S.E.2d 237; State v. McMilliam, 243 N.C. 771, 92 S.E.2d 202.

Defendant's argument that the evidence resulting from the search was inadmissible because the affidavit upon which the search warrant was issued was insufficient to establish probable cause to search poses a more serious question.

The affidavit upon which the search warrant was issued averred:

'CART Stanle (sic) Moore Lenoir County Sheriff's DEPT being duly sworn and examined under oath, says under oath that he has probable cause to believe that Haywood Edwards has on his premises and in his vehicle certain property, to wit: Non Tax Paid Whiskey, The Possession of which is a crime, to wit: Violation of Liquor laws Apr, (sic) 7, 1973 RT 2 Grifton.

The property described above is located On the Premises and in a 1965 Chevrolet described as follows: A red frame farm house located 8/10 of a mile west of NC 11 on rural unpaved road 1714 and a 1965 Chevrolet station wagon Lic #EZM771. The facts which establish probable cause for the issuance of a search warrant are as follows: A confidential and reliable informant who has given reliable information says that there is non tax paid whiskey at above location at this time.

s/ STANLEY MOORE, D. S.

Signature of Affiant'

A search warrant will not be issued except upon a finding of probable cause. Both the state and federal decisions require that the issuing magistrate have before him circumstances which raise a reasonable ground to believe that the proposed search will reveal the presence of the objects sought upon the premises to be searched and that such objects will aid in the apprehension or conviction of the offender. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752; State v. Vestal, 278 N.C. 561, 180 S.E.2d 755.

The United States Supreme Court considered the sufficiency of an affidavit to support issuance of a search warrant in the case of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.E.2d 723. The affidavits upon which the search warrants were based in Aguilar and the affidavit in the case Sub judice are strikingly similar. The affidavit in Aguilar, in pertinent part, recited:

'Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.'

In Aguilar the United States Supreme Court held that the affidavit did not provide a sufficient basis for a finding of probable cause to search and, Inter alia, stated:

'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, The magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 was 'credible' or his information 'reliable.' Otherwise, 'the inferences from the facts which lead to the complaint' will be drawn not 'by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer 'engaged in the often competitive enterprise of ferreting out crime,' Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503; Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436, or, as in this case, by an unidentified informant.' (Emphasis ours.)

Aguilar was followed by Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and in that case the Supreme Court approved the standards set forth in Aguilar and further refined the procedures mandated by the Constitution relating to the issuance of search warrants. We quote from that opinion:

'The informer's report must first be measured against Aguilar's standards so that its probative value can be assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate's decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar's test without independent corroboration? Aguilar is relevant at this stage of the inquiry as well because the tests it establishes were designed to implement the long-standing principle that probable cause must be determined by a 'neutral and detached magistrate,' and not by 'the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). A magistrate cannot be said to have properly discharged his constitutional duty if he relies on an informer's tip which--even when partially corroborated--is not as reliable as one which passes Aguilar's requirements when standing alone.'

In State v. Campbell, supra, a search warrant was issued upon an affidavit which in relevant part recited:

'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.'

In Campbell, following the rule set forth in Aguilar, and citing Spinelli and Vestal, Justice Huskins, writing for a unanimous Court, stated:

'Probable cause cannot be shown 'by affidavits which are purely conclusory,...