State v. Lombardo, 802SC1203

• Decision Date: 02 June 1981
• Docket Number: No. 802SC1203,802SC1203
• Citation: 52 N.C.App. 316,278 S.E.2d 318
• Parties: STATE of North Carolina v. Dennis LOMBARDO.
• Court: North Carolina Court of Appeals

Page 318

278 S.E.2d 318

52 N.C.App. 316

STATE of North Carolina v. Dennis LOMBARDO.

No. 802SC1203.

Court of Appeals of North Carolina.

June 2, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Frank P. Graham, Raleigh, for the State.

Herman E. Gaskins, Jr., Washington, and Joel Hirschhorn, Miami, Fla., for defendant-appellee.

HEDRICK, Judge.

The sole question presented by this appeal is whether the superior court erred in granting defendant's motion to suppress dated 25 February 1980. We note at the outset that our decision makes it unnecessary for us to discuss whether the Fourth Amendment exclusionary rule is applicable in probation revocation hearings in this State.

A motion to suppress evidence in the superior court must be in writing and must state the grounds upon which it is made. G.S. § 15A-977(a). The motion to suppress made by defendant in the present case in the superior court of this State was indeed in writing, and stated the "grounds" therefor as

(t)he detainment and interrogation of the Defendant at the Miami International Airport on August 28, 1979, and the seizure and search of his baggage were in violation of rights guaranteed to him under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and North Carolina General Statutes Section 15A-974.

Inexplicably, both defendant's motion to suppress and Judge Brown's order allowing it ignore the fact the record before Judge Brown clearly established that the search of defendant's luggage in Miami was made pursuant to a search warrant. Rather, the motion to suppress seems to have been treated by defendant and the superior court as one to suppress evidence discovered and seized pursuant to a warrantless search.

Ordinarily, a search warrant will be presumed regular if irregularity does not appear on the face of the record. State v. Spillars, 280 N.C. 341, 185 S.E.2d 881 (1972); State v. Travatello, 24 N.C.App. 511, 211 S.E.2d 467 (1975), and when the search warrant does not appear of record, it is assumed in all respects regular on appeal. State v. Shermer, 216 N.C. 719, 6 S.E.2d 529 (1940). Furthermore, the wording of the Fourth Amendment would indicate that a valid search warrant is prima facie evidence of the reasonableness of the search. State v. Turnbull, 16 N.C.App. 542, 192 S.E.2d 689 (1972).

In the present case, the search warrant does not appear of record, and the record before us demonstrates that defendant offered no evidence of facts with which to overcome the presumption of regularity of the search warrant or to overcome the resulting prima facie evidence of the reasonableness of the search. Assuming arguendo that d...