State v. Ledbetter

• Decision Date: 05 September 1995
• Docket Number: No. 9421SC380,9421SC380
• Parties: STATE of North Carolina v. John P. LEDBETTER.
• Court: North Carolina Court of Appeals

Page 341

461 S.E.2d 341

120 N.C.App. 117

STATE of North Carolina v. John P. LEDBETTER.

No. 9421SC380.

Court of Appeals of North Carolina.

Sept. 5, 1995.

Attorney General Michael F. Easley by Associate Attorney General William B. Crumpler, for the State.

Marilyn E. Massey, Winston-Salem, for defendant-appellant.

JOHN, Judge.

Defendant pled guilty to charges of trafficking in cocaine, possession with intent to sell and deliver heroin, maintaining a dwelling for the purposes of violating the Controlled Substances Act, and possession of drug paraphernalia. He was sentenced to a term of fourteen (14) years imprisonment in addition to a fine of $100,000.00.

Pursuant to N.C.Gen.Stat. § 15A-979(b) (1988), defendant appeals the trial court's denial of his motion to suppress certain evidence. He contends the trial court erred because there existed no probable cause for the issuance of a search warrant. For the reasons set forth herein, we find defendant's argument unpersuasive.

The State's evidence presented at the hearing on defendant's motion to suppress tended to show the following: On 9 July 1993, Detective H.C. Gray of the Forsyth County Sheriff's Department (Gray) received information from a confidential informant concerning illegal drug activity at 25 Monmouth Street in Winston-Salem. Gray had previously received a similar report of suspected narcotics activity at the same address through Crimestoppers. The report to Crimestoppers disclosed the possible sale of cocaine at that location, and further indicated the residence belonged to defendant.

Gray thereafter initiated a controlled purchase of narcotics through the informant at the suspected address. The confidential source was searched prior to entering the premises and given a sum of money which was marked and labelled. This individual had previously negotiated similar purchases under supervision of the Sheriff's Department, and such assistance had "led to several search warrants and several felony arrests."

Officers observed the informant enter defendant's residence, remain inside momentarily, and then return to the officers' location. At that time, the informant handed Gray "one baggie" containing a substance which was field tested at the scene and determined to be cocaine. The informant told Gray the cocaine had been obtained from defendant.

Gray thereafter applied for a search warrant. In an affidavit submitted to the Deputy Clerk of Superior Court, Gray stated inter alia the following:

Within six days prior to the making of this application for this search warrant, the applicant received information from a person known to officers of the Forsyth County Sheriff's Department Vice and Narcotics, who fears for his/her safety should his/her name become known....

To the applicant's knowledge, this confidential and reliable source has never given false information to any law enforcement officer. This confidential and reliable [source] has admitted to the use of and is familiar with, cocaine. The confidential and reliable source has, in the past, purchased marijuana from individuals who are currently under investigation by the Forsyth County Sheriff's Department's Vice and Narcotics Division.

In the six days prior to the making of this application for this search warrant, the applicant met with the confidential and reliable source for the purpose of making a controlled purchase of cocaine in accordance with the procedures used by the Forsyth County Sheriff's Department Vice and Narcotics Division to assure that no controlled substances were on his person....

The confidential and reliable source was clearly observed driving to 25 Monmouth Street and entering same. Visual surveillance was maintained on the confidential and reliable source by the applicant until he went to 25 Monmouth Street, Winston-Salem, North Carolina.

During the time that the confidential and reliable source was in 25 Monmouth Street, Winston-Salem, North Carolina, no other persons entered or left 25 Monmouth, Winston-Salem, NC. Visual surveillance was maintained until the confidential and reliable source exited 25 Monmouth Street, Winston-Salem, NC and returned to a predetermined location where the applicant met him. At that time the confidential and reliable source turned over a quantity of cocaine. This substance was alter field tested by the applicant and the results indicated the presence of cocaine, a Schedule II controlled substance under the North Carolina Controlled Substance Act.

For [the] above stated reasons, the applicant believes that the Schedule II controlled substance marijuana, is being sold and stored from 25 Monmouth Street, Winston-Salem, NC....

A search warrant was subsequently issued for 25 Monmouth Street and executed 9 July 1993. At the residence, officers discovered scales, plastic baggies containing crack cocaine, plastic baggies containing heroin, cash money, pipes customarily used for smoking crack cocaine, hypodermic needles, and numerous weapons. Additionally, they recovered a box of Arm & Hammer Baking Soda tainted with over 200 grams of cocaine. Defendant voluntarily stated to the officers that the controlled substances and contraband found belonged to him. Defendant was arrested and indicted on the charges to which he later pled guilty.

On 17 September 1993, defendant moved to suppress the items seized as a result of the search, alleging the warrant was invalid. See N.C.Gen.Stat. § 15A-974 (1988). The trial court denied defendant's motion in open court 1 February 1994, concluding "that under the totality of the circumstances there was probable cause set forth in the affidavit for the issuance of a search warrant" and "that none of the defendant's constitutional rights under the North Carolina constitution or the United States constitution or any of his statutory rights were violated by the issuance of the search warrant or by the subsequent search and seizure."

Defendant gave notice of appeal to this Court 1 February 1994.

Defendant's sole contention on appeal is "that the evidence as a whole, in the present case, did not provide a substantial basis for concluding that probable cause exist[ed]" for issuance of a search warrant. We disagree.

The standard for a court reviewing the issuance of a search warrant is "whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant." Massachusetts v. Upton, 466 U.S. 727, 728, 104 S.Ct. 2085, 2085, 80 L.Ed.2d 721, 724 (1984).

N.C.Gen.Stat. § 15A-244 (1988) states an application for a search warrant must contain the following (2) A statement that there is probable cause to believe that items subject to seizure under G.S. 15A-242 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;....

Whether an applicant has submitted sufficient evidence to establish probable cause to issue a search warrant is a "nontechnical, common-sense judgment[ ] of laymen applying a standard less demanding than those used in more formal legal proceedings." Illinois v. Gates, 462 U.S. 213, 235-36, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527, 546, reh'g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). "The affidavit [in support of an application for a search warrant] 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." State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256 (1984) (citing State v. Riddick, 291 N.C. 399, 230 S.E.2d 506 (1976)).

In Gates, the United States Supreme Court adopted a "totality of the circumstances" test:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708 (1960)). Moreover, great deference is to be paid the magistrate's determination of probable cause, and reviewing courts "should not conduct a de novo review of the evidence to determine whether probable cause existed at the time the warrant was issued." State v. Greene, 324 N.C. 1, 9, 376 S.E.2d 430, 436 (1989), vacated on other grounds, 494 U.S. 1022, 110 S.Ct. 1465, 108 L.Ed.2d 603 (1990) (citations omitted).

Defendant argues at length in his appellate brief regarding the applicability of cases dealing with search warrants issued upon affidavits in which information was obtained from confidential informants. We conclude the search warrant herein was issued in reliance upon recitation in the affidavit of a controlled purchase of cocaine. Therefore, both defendant's argument and the cases he cites are inapposite, and other decisions from this Court control.

In State v. McLeod, 36 N.C.App. 469, 244 S.E.2d 716, disc. review denied, 295 N.C. 555, 248 S.E.2d 733 (1978), for example, the State appealed the trial court's allowance of defendant's motion to suppress evidence seized during a search pursuant to a search warrant. Id. at 471, 244 S.E.2d at 718; see N.C.Gen.Stat. § 15A-979(c) (1988). The officer's affidavit attached to the search warrant application detailed a controlled purchase of narcotics at the premises in question. Id. at 471-72, 244 S.E.2d at...