State v. Kornegay

• Citation: 313 N.C. 1,326 S.E.2d 881
• Decision Date: 27 February 1985
• Docket Number: No. 500PA84,500PA84
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. George R. KORNEGAY, Jr.

Page 881

326 S.E.2d 881

313 N.C. 1

STATE of North Carolina v. George R. KORNEGAY, Jr.

No. 500PA84.

Supreme Court of North Carolina.

Feb. 27, 1985.

Rufus L. Edmisten, Atty. Gen. by Donald W. Stephens, Sp. Deputy Atty. Gen. and Christopher P. Brewer, Asst. Atty. Gen., Raleigh, for the State.

Hulse & Hulse by Herbert B. Hulse and Duke & Brown by John E. Duke, Goldsboro, for defendant-appellant.

BRANCH, Chief Justice.

I.

Defendant assigns as error the court's denial of his motion to suppress the documentary evidence that agents of the State Bureau of Investigation obtained from Elnora Whetsell prior to the issuance of search warrants. Defendant contends that when Mrs. Whetsell, without a warrant, handed over copies of his business and personal records to the State that she was acting as an agent of the State and thereby violated his right to be free from unreasonable searches and seizures under the fourth and fourteenth amendments to the United States Constitution. We hold that Mrs. Whetsell was not acting as an agent of the State and that defendant's constitutional rights were not violated.

When a private party has engaged in a search and has seized property or information, the protections of the fourth amendment apply only if the private party "in light of all the circumstances of the case, must be regarded as having acted as an 'instrument' or agent of the State." Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971). Once a private search has been completed, subsequent involvement of government agents does not transform the original intrusion into a governmental search. United States v. Sherwin, 539 F.2d 1, 6 (9th Cir.1976). Mere acceptance by the government of materials obtained in a private search is not a seizure so long as the materials are voluntarily relinquished to the government. Coolidge, 403 U.S. at 488-89, 91 S.Ct. at 2049; United States v. Ziperstein, 601 F.2d 281, 289 (7th Cir.1979) cert. denied, 444 U.S. 1031, 100 S.Ct. 701, 62 L.Ed.2d 667 (1980); Sherwin, 539 F.2d at 7-8. The fact that private parties are subject to forces which encourage them to aid law enforcement officials does not alone render their actions involuntary. Sherwin, 539 F.2d at 8.

The trial court found as a fact that Mrs. Whetsell acted entirely on her own and for the purpose of protecting herself when she made the copies of defendant's records that were later turned over to the S.B.I. This finding is supported by competent evidence and is binding on appeal. State v. Chamberlain, 307 N.C. 130, 143, 297 S.E.2d 540, 548 (1982). Defendant does not challenge this finding, but argues that Mrs. Whetsell did not act voluntarily when she turned the records over to the State because she had intended to give the records to the State only if that was necessary to protect herself from charges of wrongdoing. Defendant further argues that the records were given in exchange for a grant of immunity from prosecution by the district attorney which made Mrs. Whetsell an instrument of the State. An examination of the facts shows that Mrs. Whetsell was not an agent of the State and that her act of turning the copied records over to the S.B.I. was wholly voluntary.

Mrs. Whetsell had expressed her concerns about defendant's conduct to his law partners, Robert Rice and John Edwards, on a number of occasions. In the summer of 1982 she had twice attempted to bring

Page 891

the matter to Judge Bruce's attention. When Judge Bruce called her on 21 September 1982 she did not hesitate to inform him of the information she had and willingly attended a meeting with him, Robert Rice and John Edwards on 26 September 1982. Mrs. Whetsell testified that Judge Bruce indicated that he had a duty to report what he knew about defendant's conduct and that she as well as the others present at the meeting had agreed. Following their meeting with the district attorney on 27 September 1982, defendant's partners and Judge Bruce stopped at Mrs. Whetsell's house, informed her that a meeting with the district attorney and S.B.I. agents had been scheduled for 28 September 1982 and told her to attend. It was at that time that Mrs. Whetsell told them about the records she had copied. Mrs. Whetsell also expressed to Judge Bruce and defendant's partners her fear that she might be held liable for the discrepancies in the trust account records. At the start of the meeting of 28 September 1982 the district attorney granted Mrs. Whetsell immunity from prosecution. She then turned the copied records over to the district attorney. In the days before the search of the offices of Kornegay and Rice, P.A. Mrs. Whetsell met with the S.B.I. agents a number of times to interpret records for the agents and to inform them of where the originals were kept in defendant's offices. She also prepared a detailed handwritten statement.

These facts fully support the trial court's finding that Mrs. Whetsell was not coerced into giving her copies of defendant's records to the State. She volunteered information to John Edwards and Robert Rice about irregularities and acquiesced in the decision of Rice, Edwards and Judge Bruce to report their suspicions to the authorities. Obviously this act made it probable that her role as bookkeeper would be investigated. She had made the copies to protect herself, and once suspicions had been raised about the disposition of funds in the trust account, showing the records to the district attorney and explaining them was simply a logical extension of her original purpose in making the records. There is no evidence that Mrs. Whetsell was coerced into meeting the district attorney or forced to turn over her records. The mere fact that she was given immunity from prosecution does not indicate coercion where there is no evidence that she was charged or would be charged with a crime. Mrs. Whetsell may have hoped that she would obtain a grant of immunity by cooperating with the district attorney, but this alone does not render her actions involuntary. See United States v. Sherwin, 539 F.2d at 7, 8. The copied records given by Mrs. Whetsell to the State were not obtained through an unreasonable search and seizure conducted by the State or its agents and were properly admitted into evidence.

We note that Mrs. Whetsell continued to make copies of defendant's records after her meeting with the district attorney and the S.B.I. agents and later turned these copies over to the State. As the State did not use these copied records at trial or rely on them in its application for a search warrant, we do not deem it necessary to rule on whether or not Mrs. Whetsell acted as an agent of the State in procuring them.

Lastly, defendant contends that subsequent to her meeting with the district attorney Mrs. Whetsell had the Kenansville branch of the firm mail originals of check stubs to the Mount Olive office so that they would be available for seizure by officers executing the search warrant on 11 October 1982. Defendant relies on the fact that the envelope in which the stubs were found was postmarked 6 October 1982. However, Mrs. Whetsell testified that she requested the check stubs solely for the purpose of balancing her books and that the stubs, which were already in the Mount Olive office, may have been placed in a different envelope than they originally came in while she was balancing her books. In any case, the date on which the stubs were mailed to the Mount Olive office is irrelevant. The Kenansville office was searched at the same time as the Mount

Page 892

Olive office so that discovery of the stubs was inevitable. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 2510-11, 81 L.Ed.2d 377 (1984).

II.

Defendant next assigns as error the trial court's denial of his motion to suppress evidence obtained through the execution of search warrants issued to Wayne County and to Wayne and Duplin Counties jointly on 11 October 1982. He argues that the warrants were not supported by showings of probable cause that any particular crime had been committed. He also contends that the warrants are fatally defective because they do not sufficiently specify the property to be seized or the crimes to which the property relates. After a careful review of the warrants and the documents attached to them, we hold that the warrants are sufficiently specific and that the applications for issuance of the warrants disclose probable cause to believe that the particular crimes listed had been committed by defendant.

A.

An affidavit is sufficient to establish probable cause 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 apprehension or conviction of the offender." State v. Reddick, 291 N.C. 399, 406, 230 S.E.2d 506, 511 (1976) (quoting State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), cert. denied, 414 U.S. 874, 94 S.Ct. 157, 38 L.Ed.2d 114 (1973)). When the facts as set forth in the supporting affidavit would lead a reasonable man of prudence and discretion to believe that the offense charged had been committed, there is probable cause sufficient to support the issuance of a search warrant. State v. Campbell, 282 N.C. 125, 129, 191 S.E.2d 752, 755 (1972).

The search warrants in question direct the seizure of various records tending to show that money was obtained with a fraudulent intent from the trust account of Kornegay, Rice and Edwards, P.A. The records were also pertinent to show that defendant had obtained money from Estelle Sutton by false pretense and had embezzled funds from Estelle Sutton, and, or Kornegay, Rice and Edwards, P.A. While defendant was not named in the portion of the affidavit charging the offenses, other portions of the affidavit make it clear that defendant is the one accused of committing the offenses.

Defendant's position that there was...