State v. Harvey

• Decision Date: 12 April 1972
• Docket Number: No. 51,51
• Citation: 187 S.E.2d 706,281 N.C. 1
• Parties: STATE of North Carolina v. Jesse HARVEY, Jr.
• Court: North Carolina Supreme Court

Page 706

187 S.E.2d 706

281 N.C. 1

STATE of North Carolina v. Jesse HARVEY, Jr.

No. 51.

Supreme Court of North Carolina.

April 12, 1972.

Paul & Keenan, by James E. Keenan, Durham, for defendant.

BRANCH, Justice.

Defendant contends that the trial judge erred in denying his motion to suppress the evidence seized from defendant's premises. Defendant first argues that there was no probable cause shown to the magistrate for issuance of the warrant.

The Fourth Amendment requirement that no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the persons or things to be seized, applies to arrest warrants as well as the search warrants. The judicial officer issuing such warrant must be supplied with sufficient information to support an independent judgment that there is probable cause for issuing the arrest warrant. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503. The same probable cause standards under the Fourth and Fourteenth Amendments apply to both federal and state warrants. G.S. § 15--27; State v. Vestal, 278 N.C. 561, 180 S.E.2d 755; Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

This Court dealt with determination of probable cause relating to issuance of search warrants in the case of State v. Vestal, supra, and there stated:

'In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, the Supreme Court of the United States dealt with questions concerning the Fourth Amendment requirements for obtaining a valid state search warrant. It said:

'(W)hen a search is based upon a magistrate's, rather than a police officer's, determination of probable cause, the reviewing court will accept evidence of a less 'judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,' * * * and will sustain the judicial determination so long as 'there was substantial basis for (the magistrate) to conclude that (the articles searched for) were probably present.' * * *

'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, 78 A.L.R.2d 233, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the (articles to be searched for) 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, * * * was 'credible' or his information 'reliable."'

More specifically considering arrest warrants, the courts hold that information received from a reliable informant is sufficient to support a conclusion that probable cause for Arrest exists. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Ker v. California, supra; McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62.

In support of his contention, defendant relies heavily upon the case of Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306. There, the officer's complaint upon which the warrant for arrest was issued stated:

"I, C. W. Ogburn, do solemnly swear that on or about the 23 day of November, A.D. 1964, in the County of Carbon and State of Wyoming, the said Harold Whiteley and Jack Daley, defendants did then and there unlawfully break and enter a locked and sealed building (describing the location and ownership of the building)."

The Court there, in holding that the judicial officer was not supplied with sufficient information to support an independent judgment that probable cause existed, in part said:

'. . . (T)he sole support for the arrest warrant issued at Sheriff Ogburn's request was the complaint reproduced above. That complaint consists of nothing more than the complainant's conclusion that the individuals named therein perpetrated the offense described in the complaint. The actual basis for Sheriff Ogburn's conclusion was an informer's tip, but the fact, as well as every other operative fact, in omitted from the complaint. Under the cases just cited, that document alone could not support the independent judgment of a disinterested magistrate.'

The complaint for arrest upon which the warrant was issued in the case before us for decision avers: '. . . that at and in the County named above and on or about the 23 day of January, 1971, the defendant named above did unlawfully, wilfully and feloniously sell to SBI Agent, E. H. Cross, Jr., a narcotic drug in violation of the Uniform Narcotic Drug Act. The drug in question consisted of sixteen (16) bindles of heroin.'

The present case, unlike Whiteley, shows ample basis for issuance of the arrest warrant upon information from a credible source.

This Court has held that a police officer making the affidavit for issuance of a warrant may do so in reliance upon information reported to him by other officers in the performance of their duties. State v. Vestal, supra; State v. Banks, 250 N.C. 728, 110 S.E.2d 322.

Here, SBI Agent Caddy relied upon information received through SBI Agent Cross while in the performance of his duties. The evidence that Agent Cross purchased heroin from the accused furnished sufficient evidence that probable cause for defendant's arrest existed. The very relation shown to exist between SBI Agent Cross and the affiant (SBI Agent Caddy) was sufficient evidence of circumstances upon which the affiant could conclude that the information furnished to the magistrate was credible and reliable.

We must consider the fact that the warrant executed by Deputy Sheriff Respass was mistakenly issued for defendant.

5 Am.Jur.2d, Arrest, § 4, p. 699, states:

When a warrant, valid in form and issued by a court of competent jurisdiction, is placed in the hands of an officer for execution, it is his duty to carry out its demands without delay, and he incurs no liability for its proper execution, however disastrous may be the effect on the person against whom it is issued. If it is regular on its face, he is bound to serve it, and failure to do so would be disobedience of a lawful court order, punishable as contempt.

In the case of Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484, the police had probable cause to believe that Hill had been implicated in a robbery and that the fruits of the crime were located in his apartment. The proceeded to his apartment, and when they arrived they found the door open and a man answering his description in the apartment. They thereupon arrested the occupant of the apartment despite his protestations that he was not Hill. They then proceeded to search the apartment. Sustaining the arrest as valid and holding the search legal as incident to the arrest, the Court stated:

'. . . '(w)hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest.' . . . The upshot was that the officers in good faith believed Miller was Hill and arrested him. They were quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officers' mistake was understandable and the arrest a reasonable response to the situation facing them at the time.'

We recognize that the facts in Hill differ from those in this case, in that in Hill the person arrested was not the accused against whom the evidence was offered. However, we think that the controlling principles of sufficient probability and reasonableness are applicable and controlling in both cases.

Here, the officer, as he was required to do, executed the warrant, valid on its face. The warrant was issued by a magistrate, in compliance with his duty, upon a complaint which furnished him probable cause to believe that the crime charged had been committed by defendant. The arrest was a valid arrest.

Defendant further supports his motion to suppress with the argument that Deputy Sheriff Respass illegally entered his home to make the arrest.

G.S. § 15--44 provides:

If a felony or other infamous crime has been committed, or a dangerous wound has been given and there is reasonable ground to believe that the guilty person is concealed in a house, it shall be lawful for any sheriff, coroner, constable, or police officer, admittance having been demanded and denied, to break open the door and enter the house and arrest the person against whom there shall be such ground of belief.

Defendant argues that the officer's failure to knock, disclose his identity, his authority, and his mission brings the facts of this case within the holdings of State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897, and State v. Covington, 273 N.C. 690, 161 S.E.2d 140.

In State v. Sparrow, supra, it is stated:

'Ordinarily, a police officer, absent invitation or permission, may not enter a private home to make an arrest or otherwise seize a person unless he first gives notice of his authority and purpose and makes a demand for and is refused entry.'

The Court considered the same question in State v. Covington, supra. There police officers, without a search warrant, forcibly entered a motel room and arrested the defendant. The officers had grounds reasonably to believe that he had committed a felony, but had not first demanded and been denied admittance. The Court, holding the entry to be unlawful and articles seized as a result of the unlawful entry to be inadmissible in evidence, stated:

'. . . Under G.S. 15--44 admittance, in the absence of hostile action from inside the dwelling prior to such demand, must be 'demanded and denied' before a forcible entry is lawful where, as...