State v. Isleib

• Decision Date: 20 May 1986
• Docket Number: No. 851SC1132,851SC1132
• Citation: State v. Isleib, 343 S.E.2d 234, 80 N.C.App. 599 (N.C. App. 1986)
• Parties: STATE of North Carolina v. Martha Jean ISLEIB.
• Court: North Carolina Court of Appeals

Page 234

343 S.E.2d 234

80 N.C.App. 599

STATE of North Carolina v. Martha Jean ISLEIB.

No. 851SC1132.

Court of Appeals of North Carolina.

May 20, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. John H. Watters, Raleigh, for the State.

Aldridge, Seawell & Khoury by G. Irvin Aldridge, Manteo, for defendant-appellee.

WELLS, Judge.

The State contends in its sole assignment of error that the trial court erred in concluding as a matter of law that the warrantless search of defendant's automobile was illegal and that the evidence seized pursuant to the search be suppressed. The State concedes on the record that this evidence is essential to its case against defendant.

The relevant findings of fact and conclusions of law of the trial court are set forth below:

* * *

4. That the Officer received reliable information from an informant on April 5, 1985 between 2:00 and 4:00 p.m. at the Courthouse in Manteo, North Carolina. The information that the Officer received indicated that the person was the defendant and described the vehicle.

5. That the Deputy Sheriff, C.H. Midgett[e], knew the defendant and was familiar with the automobile and recognized the information as being information about the defendant and the automobile being an automobile owned by the defendant.

6. The reliable informant told Deputy C.H. Midgett[e] that the defendant and her automobile were travelling on N.C. Highway 12 toward Hatteras somewhere North of Oregon Inlet, and said vehicle contained several one-fourth ounce packages of marijuana.

7. That the Deputy Sheriff recognized said vehicle and the defendant going South toward Waves around 12:35 p.m. on April 6, 1985, 20 or more hours after Deputy Midgett[e] had received said information in Manteo.

8. That Deputy Midgett[e] stopped and called Deputy Gray and asked him to intercept the car and same was intercepted by Deputy Gray in Avon.

9. That Deputy Midgett[e] arrived in Avon within a few minutes after Deputy Gray had detained the defendant and her automobile along with another person who was in her automobile.

10. That Deputy Midgett[e] told the defendant he was going to search her vehicle. The defendant asked if he had a search warrant to search her vehicle. She was told that he did not have a search warrant.

11. The defendant did not consent to the search of her automobile or her personal effects within the automobile. Deputy Midgett[e] told the defendant that he could search the automobile because of the emergency situation.

12. That there was no controlled substance or suspected controlled substance which was in plain view from outside of the automobile prior to the search of said automobile.

13. That Deputy Midgett[e] did not secure a search warrant for said vehicle even though he had the information some 20 hours or more prior to the time of the search and was in a position to secure a search warrant for when said automobile was stopped in Avon.

Based upon the foregoing finding of facts, the Court concludes as a matter of law that the search was illegal and the evidence should be suppressed.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the evidence identified as marijuana and all paraphernalia associated therewith be hereby suppressed.

Though there are exceptions in the record to findings of fact numbers 6 and 13, the exception to finding of fact number 6 is not brought forward in the brief and is therefore deemed abandoned. Rule 28(a) of the Rules of Appellate Procedure. The exception to finding of fact number 13 is brought forward in the brief, but is not argued and is also deemed abandoned. Rule 28(b)(5) of the Rules of Appellate Procedure. Insofar as finding of fact number 13 constitutes a conclusion of law, it has been preserved for review.

There are certain exceptions to the general rule that a valid search warrant must accompany every search or seizure.

These exceptions arise when the exigencies of the situation call for unorthodox procedures. Such is the case when it is determined to be impracticable, in light of all the circumstances, to obtain a search warrant. The courts have recognized three situations which justify application of this principle to a course of conduct ordinarily forbidden by the Fourth Amendment....

First, a warrantless search and seizure may be made when it is incident to a valid arrest. [Citations omitted.]

Second, evidence obtained by officers without a search warrant is admissible in evidence where the articles are seized in plain view without necessity of search. [Citations omitted.]

Third, a warrantless search of a vehicle capable of movement may be made by officers when they have probable cause to search and exigent circumstances make it impracticable to secure a search warrant. [Citations omitted.]

State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973). There is nothing in the record to indicate when defendant was arrested and the State does not argue that the evidence was seized pursuant to a search incident to an arrest. The record is clear and the judge found that the evidence was not in plain view of Deputy Midgette before he entered the vehicle. Therefore, the search and seizure were valid, if at all, based on probable cause to search and exigent circumstances that made it impracticable to secure a search warrant.

Probable cause must arise before a search may be deemed reasonable. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Johnson, 29 N.C.App. 534, 225 S.E.2d 113 (1976). In order to determine if and when probable cause arose, we must first discuss the requirements of probable cause as they relate to the circumstances of the case below.

The leading case on determining probable cause from the information of an informant is Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In Gates, an anonymous letter was sent to the police informing them that Lance and Susan Gates were drug dealers. The letter stated that their modus operandi was for Susan Gates to drive their car down to Florida, leave it and then fly back to Illinois. The car trunk would be filled with drugs in Florida, then Lance Gates would fly down and drive the car back to Illinois. The police learned that "L. Gates" made a reservation to fly to West Palm Beach, Florida, stayed in a motel room registered to Susan Gates and then left the next morning in an automobile bearing Illinois license plates, traveling north on an interstate highway frequently used by travelers to the Chicago area. An affidavit setting out these facts was signed by a police officer, who attached the anonymous letter. A warrant to search the Gates' house and automobile was obtained and the police stopped the Gates as they were driving on the interstate, searched their automobile and retrieved 350 pounds of marijuana. The circuit court suppressed this evidence on the basis that the affidavit failed to support the necessary determination of probable cause. The Illinois Appellate and Supreme Courts affirmed, based on the previous United States Supreme Court cases of 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). The Aguilar and Spinelli cases established a two-pronged test to determine the sufficiency of evidence from an informant to establish probable cause: (1) that underlying circumstances exist to independently support the validity of the informant's statement and (2) that some support is shown for the informant's reliability or credibility. Spinelli, supra. Gates concluded that the Aguilar/Spinelli test was too restrictive, though an informant's veracity and reliability are highly relevant in determining the value of his report. Gates, supra. The Court substituted a laxer standard, the "totality of the circumstances," a "common-sense," "fluid" concept in which the strength of one factor could overcome the weakness of another. The Court supported its argument by stating that too restrictive a test to obtain a warrant might lead police to

resort to warrantless searches, with the hope of relying on consent or some other exception to the Warrant Clause that might develop at the time of the search. In addition, the possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct, by assuring "the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." United States v. Chadwick, 433 U.S. 1, 9, 53 L.Ed.2d 538, 97 S.Ct. 2476 [2482] (1977).

Gates, supra. The North Carolina Supreme Court has adopted the "totality of the circumstances" test to determine the sufficiency of probable cause to issue a warrant under Article 1, § 20 of the North Carolina Constitution. State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984). Though the Aguilar/Spinelli test has been abandoned, its prongs are still useful in determining whether an informant's statement gives rise to probable cause. Gates, supra; State v. Walker, 70 N.C.App. 403, 320 S.E.2d 31 (1984); see also 1 LaFave, Criminal Procedure § 3.3, p. 194 (1984). Underlying circumstances supported the validity of the informant's statement: Deputy Midgette knew the "woman named Martha," had known her for seven or eight years, knew that she owned a green station wagon and that she lived at the beach north of Oregon Inlet, the area from which the informant said she would be coming. Thus, there was independent corroboration of some of the non-criminal details of the informant's story.

Ample support was shown for the informant's reliability: three times in the previous year this informant had provided Deputy Midgette with information on marijuana-related charges that subsequently led to arrests and convictions.

Counsel for the State suggested at oral argument that probable cause may not have arisen until...