State v. Jones

• Decision Date: 01 February 1980
• Docket Number: No. 90,90
• Citation: 261 S.E.2d 860,299 N.C. 298
• Parties: STATE of North Carolina v. James Thomas JONES.
• Court: North Carolina Supreme Court

Page 860

261 S.E.2d 860

299 N.C. 298

STATE of North Carolina v. James Thomas JONES.

No. 90.

Supreme Court of North Carolina.

Feb. 1, 1980.

Rufus L. Edmisten, Atty. Gen. by Joan H. Byers, Asst. Atty. Gen., and Thomas J. Ziko, Associate Atty. Gen., Raleigh, for the State.

H. Gerald Beaver, Fayetteville, for defendant-appellant.

HUSKINS, Justice:

Denial of defendant's motion to suppress all evidence obtained in a search conducted pursuant to a search warrant issued on 23 August 1978 constitutes defendant's first assignment of error.

The record reveals that Ken Snead, an SBI investigator, interrogated David Odom for fifteen hours during which Odom told the investigator that he and defendant James Thomas Jones were involved in the murder of Glenn Gibson. Odom furnished the details concerning the crime, including information that a two- inch piece of water pipe was the murder weapon and that an army hatchet with a cover over its metal part and welder's gloves had been used by defendant during the murder. Relying on information obtained from Odom, Mr. Snead searched a section of the river bank along the Cape Fear River, an area behind the victim's home, and a site in Scotland County. These searches produced various items of evidence consistent with Odom's statements to Mr. Snead. With the reliability of Odom's information thus established, Mr. Snead procured a warrant to search defendant's truck and to search his father's house, barn and garage for various items, including "an army-type hatchet with a green cloth cover" and " 'Case XX' welder's gloves soaked in oil." Armed with the search warrant, Mr. Snead and Officer Connerly proceeded to the home of Mr. and Mrs. M. L. Jones, parents of defendant, located at Route 1, Box 301, Shannon, N. C., to begin the search. During the search of the M. L. Jones garage, they discovered and seized an army O.D.-type hatchet (State's Exhibit 17), with the word "U.S." stamped on it, one pair of men's leather-type welder's gloves (State's Exhibit 39), and a single leather-type welder's glove (State's Exhibit 40). These items were later offered in evidence over objection. Defendant contends his motion to suppress them should have been allowed because (1) the affidavit on which the search warrant was issued failed to allege facts sufficient to establish probable cause; and (2) an unreasonable length of time expired between the alleged homicide on 30 March 1978 and the date of the search and seizure on 23 August 1978. We hold defendant's contentions are unsound and that his first assignment of error has no merit.

Within the meaning of the Fourth Amendment and 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. 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. Riddick, 291 N.C. 399, 230 S.E.2d 506 (1976) (citations omitted). Accord, State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972). "The affidavit may be based on hearsay information if the magistrate is informed of underlying circumstances upon which the informant bases his conclusion as to the whereabouts of the articles and the underlying circumstances upon which the officer concluded that the informant was credible." State v. Spillars, 280 N.C. 341, 185 S.E.2d 881 (1972). Whether probable cause exists for the issuance of a search warrant depends upon a practical assessment of the relevant circumstances. State v. Phifer, 297 N.C. 216, 254 S.E.2d 586 (1979); State v. Louchheim, 296 N.C. 314, 250 S.E.2d 630, cert. denied, 295 N.C. 470, 257 S.E.2d 435 (1979). Each case must be decided on its own facts and "reviewing courts are to pay deference to judicial determinations of probable cause, and 'the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.' " State v. Louchheim, supra, (citations omitted). With these principles in mind, we look at the search warrant and the affidavit upon which it was obtained.

In applying for the search warrant SBI Agent Snead swore, in his affidavit to establish probable cause for issuance, that the body of Glenn Gibson had been found in a ditch near milepost 187 beside I-95 in Dillon County, South Carolina; that defendant James Thomas Jones and David Carl Odom had been arrested for the murder of Mr. Gibson; that David Carl Odom had given oral and written statements detailing participation in the murder by him and defendant; that Odom had accompanied officers to the crime scene on the banks of the Cape Fear River where the murder weapon had been recovered with other items; that Odom had shown officers the area behind the victim's residence where the body was kept for a week before it was taken to South Carolina; that Odom had stated that the hatchet used in the killing along with the pipe, already recovered, was the property of defendant and that defendant kept the hatchet and welder's gloves either in the garage workshop or in the house of his parents located at Route 1, Box 301, Shannon, North Carolina, telephone 875-2510. It further appears that Odom and defendant had jointly participated in the murder of Glenn Gibson and had moved the body twice. Odom knew where defendant's parents lived and knew there was a workshop behind their house which was used by defendant.

All this information was before the magistrate. A practical assessment of it would lead a reasonably prudent magistrate to conclude that the information was credible and that the proposed search would reveal, upon the premises to be searched, the presence of the objects sought and that those objects would aid in the apprehension or conviction of the offender. This constitutes probable cause sufficient to justify the issuance of a warrant.

Defendant contends that the information contained in the affidavit furnished the magistrate suffers from staleness. He argues that five months elapsed between the time Odom last saw defendant's hatchet and welder's gloves and the date Odom told officers of the whereabouts of the hatchet. The passage of such time, it is urged, dissipates probable cause to believe that the materials sought were still located at the place to be searched.

Common sense is the ultimate criterion in determining the degree of evaporation of probable cause. United States v. Brinklow, 560 F.2d 1003 (10th Cir. 1977), Cert. denied, 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798 (1978); State v. Louchheim, supra. "The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock . . . ." Andresen v. State, 24 Md.App. 128, 331 A.2d 78, Cert. denied, 274 Md. 725 (1975), Aff'd, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976). "The significance of the length of time between the point probable cause arose and when the warrant issued depends largely upon the property's nature, and should be contemplated in view of the practical consideration of every day life." United States v. Brinklow, supra, (citations omitted).

The items sought by the search warrant a hatchet and welder's gloves were not particularly incriminating in themselves and were of enduring utility to defendant. Moreover, the affidavit indicates that defendant normally kept such items either in his parents' home, or in a garage workshop behind his parents' home. A practical assessment of this information would lead a reasonably prudent magistrate to conclude that the hatchet and welder's glove were "probably" located in the home or on the premises of defendant's parents. See generally, United States v. Brinklow, supra; State v. Louchheim, supra; State v. Carbone, 172 Conn. 242, 374 A.2d 215 (1977); People v. Wing, 92 Misc.2d 846, 400 N.Y.S.2d 437 (Co.Ct.1977). We hold that the search warrant was properly issued and the hatchet and gloves properly admitted into evidence.

We note that the items in question were seized from the premises owned by defendant's parents. A party seeking shelter under the Fourth Amendment has the burden of establishing that his Personal rights were violated by the search and seizure. State v. Taylor, 298 N.C. 405, 259 S.E.2d 502 (1979); State v. Craddock, 272 N.C. 160, 158 S.E.2d 25 (1967). The burden is on defendant to establish standing. State v. Taylor, supra. The United States Supreme Court, in a recent review of the protection offered by the Fourth Amendment, determined that such protection encompasses only those persons who have a reasonable expectation of privacy in the premises searched. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Accord, State v. Alford, 298...