State v. May

• Decision Date: 05 June 1979
• Docket Number: No. 7920SC84,7920SC84
• Citation: 41 N.C.App. 370,255 S.E.2d 303
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Arthur Luther MAY.

Page 303

255 S.E.2d 303

41 N.C.App. 370

STATE of North Carolina v. Arthur Luther MAY.

No. 7920SC84.

Court of Appeals of North Carolina.

June 5, 1979.

Robert M. Davis, Salisbury, for defendant-appellant.

MORRIS, Chief Judge.

Defendant presents five arguments in support of his nine assignments of error. We will address each assignment of error in the order in which they are discussed by the parties in their briefs.

The validity of the search warrant, which was the means of retrieving the .410 gauge shotgun and the frozen meat from defendant's store, has been challenged on the grounds that the affidavit and application for the search warrant failed to establish probable cause for the issuance of the warrant. The application provides in part as follows:

"On April 27, 1978 at 3:15 P.M., I, Det. Lt. I. T. Yow received information that Otto May, owner of Lakeview Grocery in Kannapolis, N.C. was receiving stolen merchandise. I have received information for the past 3 years of this same nature."

Defendant correctly cites State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972), as authority that the above information could not properly serve as a basis for a finding of probable cause to issue a search warrant. See also State v. Hayes, 291 N.C. 293, 230 S.E.2d 146 (1976). The basis for rejecting such hearsay information was established in the decisions Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Those cases require that when information contained in an affidavit comes from an unidentified informant, underlying facts and circumstances which support the informant's reliability and credibility must be set forth in the application. However, this Court has held that such information contained in the affidavit does not render the entire application invalid if, in fact, there are other factual matters contained in the application which alone would support a finding of probable cause. State v. McLeod, 36 N.C.App. 469, 244 S.E.2d 716 (1978), Cert. denied, 295 N.C. 555, 248 S.E.2d 733 (1978). This Court's opinion, expressed by Judge Mitchell, noted that under such circumstances the so-called second prong of the Aguilar test was not applicable. He stated:

"Even though the affidavit contained some information which may have come from an unidentified informant, we think the credibility of the informant or the reliability of such information need only be shown when it is necessary that such hearsay be relied upon in finding the requisite probable cause." 36 N.C.App. at 474, 244 S.E.2d at 719.

Therefore, we must determine whether the remaining information provided in the application is sufficient to establish probable cause for the search.

That portion of the application for the search warrant outlining the facts to establish probable cause appears in the record as follows:

"The applicant swears to the following facts to establish probable cause for the issuance of a search warrant: On April 27, 1978 around 8:30 P.M., Sgt. L. G. Heintz and myself, Lt. I. T. Yow of the Kannapolis Police Department was checking the Lakeview Grocery on Center Grove Rd., in Kannapolis, N.C. As we pulled into the parking lot of the grocery I, Lt. Yow, observed a 1972 Chevrolet, 2S, color Grey with a black stripe down the middle of the top of the car, bearing N.C. tag # EDE-32. parked at the rear of the west side of the building. The two white males outside of the car were observed by Heintz and myself, Yow. Sgt. Heintz backed up and we talked with a John Michael Fiddler and a David Lawson who were trying to put two boxes in the car. The boxes were full of frozen meat, the meat was identified by Det. Roger Lowder, Det. Loy Ingold and Det. Mike Lowder of the Stanly County Sheriff Department in Albemarle, N.C. as being stolen from a house breaking and entering and larceny occurring in Stanly County, N.C., the victim being Joe H. Vick of Rt. 3 Albemarle, N.C. in the Millingport area of Stanly County, N.C. between 8 AM and 5 PM on April 27, 1978. The meat identified by the Stanly County Detectives bore the markings of Thompson and Son Processing of Albemarle, N.C. # 763.

On April 27, 1978 at 3:15 P.M., I, Det. Lt. I. T. Yow received information that Otto May, owner of Lakeview Grocery in Kannapolis, N.C. was receiving stolen merchandise. I have received information for the past 3 years of this same nature."

In our opinion, the facts within Detective Yow's knowledge, in the absence of the reference to information he had received suggesting that defendant had been receiving stolen goods for the past three years, are sufficient to establish probable cause for the issuance of the search warrant. It is firmly established "that only the probability, not a prima facie showing, of criminal activity is the standard of probable cause." Spinelli v. United States, 393 U.S. 410 at 419, 89 S.Ct. 584 at 590, 21 L.Ed.2d 637 at 645. Moreover, this Court noted in quoting the United States Supreme Court in Aguilar v. Texas, supra, that:

"(W)hen a search is based upon a magistrate's, rather than a police officer's, determination of probable cause, the reviewing courts will accept evidence of a less 'judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant,' . . . and will sustain the judicial determination so long as 'there was substantial basis for (a magistrate) to conclude that (the items for which the search was authorized) were probably present . . . ." State v. McLeod, 36 N.C.App. at 473, 244 S.E.2d at 719.

Officer Yow personally observed two individuals loading merchandise into their car behind a closed grocery at night. There is no dispute that he was justified in apprehending those individuals under such circumstances. He thereafter determined that the merchandise was recently stolen from a residence in Stanly County. The circumstances strongly suggested that the meat had come from the grocery. The meat was still frozen. A grocery commonly has freezers. There was no mention of any other vehicles in the vicinity from which the meat could have been transferred. Furthermore, Detective Yow also learned from the Stanly County Sheriff's Department that a quantity of such meat with the same distinguishing wrapping had been taken in the Stanly County break-in. These facts taken together amply support the conclusion that it was probable that other stolen frozen meat, and probably some of the other items taken in the same break-in, could be found in the grocery. We emphasize that the application of the probable cause standard must be practical and not abstract. This also constitutes the position of the United States Supreme Court, which has stated:

"If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting." United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965).

Defendant next assigns error to the admission, over objection, of certain testimony. In his brief, defendant argues that the testimony of David Lawson that he had been to defendant's store at least 50 times to sell him merchandise was incompetent and immaterial. We disagree. The rule and its exceptions with respect to the admissibility of evidence of previous crimes which are brought out in the State's case in chief is well established, although sometimes difficult of application. The classic explanation of the rule and its exceptions is found in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954), and need not be further elaborated. The evidence elicited from the witness Lawson falls within the following exception:

"3. Where guilty knowledge is an essential element of the crime charged, evidence may be offered of such acts or declarations of the accused as tend to establish the requisite guilty knowledge, even though the evidence reveals the commission of another offense by the accused." 240 N.C. at 175, 81 S.E.2d at 367.

The fact that Lawson and others had previously sold merchandise to defendant, the intimation clearly being that such goods were stolen, was clearly relevant to prove that defendant knew or had reasonable grounds to believe that the goods he received from Lawson and Fidler had been stolen. Such guilty knowledge is one of the essential elements of the crime of receiving stolen goods, G.S. 14-71, the lack of which defendant tried to prove in the cross-examination of the witness Lawson. The evidence that defendant on numerous occasions purchased merchandise, as Lawson stated, with no questions asked and regardless of from where it came tends to indicate that defendant had established a pattern of purchasing stolen goods and had at least reasonable grounds to believe the goods he received from Lawson were stolen. Similar evidence was held to have been properly admitted under substantially similar circumstances in State v. Newton, 25 N.C.App. 277, 212 S.E.2d 700 (1975). We so hold here.

Defendant produced no evidence in his behalf, moved for...