State v. King

• Decision Date: 15 November 1988
• Docket Number: No. 8826SC258,8826SC258
• Citation: 92 N.C.App. 75,373 S.E.2d 566
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Idella KING, Izella King, Defendants.

Page 566

373 S.E.2d 566

92 N.C.App. 75

STATE of North Carolina v. Idella KING, Izella King, Defendants.

No. 8826SC258.

Court of Appeals of North Carolina.

Nov. 15, 1988.

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

Goodman, Carr, Nixon & Laughrun by Theo X. Nixon, Charlotte, for defendants-appellees.

SMITH, Judge.

The record on appeal reveals that on 30 June 1987, officers Kearney, Hazelton and Sennett of the Charlotte Police Department obtained a warrant to search defendants' residence at 1509 Luther Street and any occupant at the residence including Bo King, defendants' brother and a suspected drug dealer. The affidavit accompanying the application stated:

We, Officers C.B. Kearney, G.P. Sennett and T.R. Hazelton, have received information from a confidential and reliable informant that B/M, Bo King, is residing at 1509 Luther Street and is possessing cocaine for the purpose of sale at 1509 Luther Street. This informant has been to 1509 Luther Street within the past 48 hours and has observed Bo King possessing cocaine. This informant is familiar with cocaine and how it is packaged for street use. These affiants have known this informant for approximately 1 1/2 years and 6 months, respectively and during this time this informant's information has led to the arrests and convictions of many people for violations of the North Carolina Controlled Substances Act. Based on the information contained in this application we request a search warrant be issued for 1509 Luther Street, Charlotte, North Carolina, Mecklenburg County, USA.; and a black male, Bo King, and any other occupants.

After receiving sworn testimony from the officers that the information in the affidavit was true, the magistrate issued the warrant. The officers executed the warrant on 30 June 1987. Defendants were present at the residence during the search. The officers seized approximately 84 grams of a white powdery substance later identified as cocaine, currency and drug paraphenalia. Defendants were arrested. Bo King was not at the residence during the search although officers found letters addressed to him bearing the Luther Street address.

The State brings forward as its sole assignment of error the trial court's order granting defendants' motion to suppress evidence seized pursuant to the warrant. Specifically, the State contends that the facts set forth in the affidavit support a finding of probable cause and alternatively that the items seized are admissible under the "good faith" exception to the exclusionary rule.

An application for a search warrant must be made in writing under oath or affirmation and contain, in part, the following information:

(2) A statement that there is probable cause to believe that items subject to seizure ... may be found in or upon a designated or described place, vehicle or person; and

(3) Allegations of fact supporting the statement. The statements must be supported by one or more affidavits particularly setting forth the facts and circumstances establishing probable cause to believe that the items are in the places or in the possession of the individuals to be searched.

G.S. 15A-244. To establish probable cause, an affidavit for a search warrant must set forth such facts that "a reasonably discreet and prudent person would rely upon ... before they will be held to provide probable cause justifying the issuance of a search warrant." State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256 (1984). "[An] affidavit is sufficient if it supplies reasonable cause to believe that the proposed search for evidence probably will reveal the presence upon the described premises of the items sought and that those items will aid in the apprehension or conviction of the offender." Id.

To determine whether a warrant is based on probable cause, our Supreme Court, in State v. Arrington, supra, adopted the "totality of the circumstances" test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). In Gates, the Court stated:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affadavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Id. 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548.

Defendants contend and the lower court found that the affidavit lacked sufficient details to support the informant's credibility, general knowledge of drugs or specific knowledge about the drugs involved in this case. We do not agree. An affidavit for a search warrant need only provide the magistrate with a reasonable basis to believe that the proposed search would reveal the presence of the items sought in the place named. See Arrington, supra. The affidavit here contains information that establishes that the informant had been to defendants' residence within 48 hours before the application for the warrant was presented to the magistrate and had personally observed Bo King in possession of cocaine. The affidavit further reveals that the informant was familiar with the appearance of cocaine prepared for sale. Additionally, the informant was known to the affiants for a period of six months to one and one-half years and had provided reliable information which had resulted in numerous drug arrests. "If [an] informant...