State v. McKinnon

• Decision Date: 13 July 1982
• Docket Number: No. 138A81,138A81
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Bernard Reid McKINNON.

Page 118

293 S.E.2d 118

306 N.C. 288

STATE of North Carolina v. Bernard Reid McKINNON.

No. 138A81.

Supreme Court of North Carolina.

July 13, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Dennis P. Myers, Raleigh, for the State.

Adam Stein, Appellate Defender, and Marc D. Towler, Asst. Appellate Defender, Raleigh, for defendant.

CARLTON, Justice.

I.

Evidence for the State tended to show that on the evening of 15 December 1980, Jimmy and David Blevins, Roy Allen, Linda Marquette and Angela Graham drove to the Clay Pits, a local swimming hole and gathering place for young people. They arrived in Graham's car at approximately 9:00 p. m. and drank beer and smoked marijuana. A car, with its headlights shining on the Graham car, drove up. It pulled up beside the Graham car and stayed a few minutes. Then the car backed up, its lights were turned out and it left. Shortly thereafter, according to the testimony of the Blevins, Allen, Marquette and Graham, three black males wearing toboggans approached the group, surrounded the car and ordered the occupants to "freeze." Two carried shotguns or rifles while another had a pistol. The three men ordered the group to lie on the ground and keep their heads down. The car was searched and various items were taken. The billfolds were removed from the pants of the men. One of the men remarked that they were getting revenge for the way whites had treated blacks in the past. Graham was ordered to raise the hood of her car.

The group was then ordered to strip. They did so and their clothes were thrown into the water. They were again forced to lie down and one of the assailants, who was carrying a shotgun, stood over them. The girls were ordered to move away from the boys and to lie on the ground. One of the men put a shotgun against Graham's face. He forced her to get on her knees and perform oral sex. He then forced her to lie down and raped her. Another of the assailants forced Linda Marquette to perform oral sex and intercourse with him. The girls were then allowed to rejoin the group and were instructed to count backwards from one hundred. They heard the men run away. Numerous items had been taken, including a K-Mart battery, an FM converter, pocketbooks, wallets, money, watches and two six-packs of Budweiser beer. The victims made their way to a nearby house and called the police.

None of the five victims were able to identify defendant as one of the participants in the crimes. Angela Graham testified that defendant was not the person who raped her. She also testified that the man who raped Linda Marquette had a handgun in his pocket.

Additional testimony for the State came from Ivey McCoy (McCoy), who testified pursuant to a plea bargain. He stated that he, Andrew Rich, Angelo McCoy (Angelo) and defendant left McCoy's house in defendant's automobile around 8:00 to 8:30 p. m. on 15 December 1980. They stopped at the Clay Pits at around 9:00 p. m., saw Graham's car there and decided to rob the occupants. They returned to McCoy's house and picked up a .25 automatic pistol, a .22 rifle and a .16 gauge shotgun. They returned to the Clay Pits some ten or fifteen minutes later. They parked the car on the highway and McCoy, Rich and defendant walked down to the Clay Pits. Angelo remained in the car. They announced a hold-up and ordered the group out of the car. Rich told them to lie on the ground. McCoy searched them and took the men's wallets from their pockets and the women's purses from the car. McCoy took the wallets back to defendant's car and returned with a knife to cut the battery wires. Defendant then took the battery to his car.

Defendant and Rich then told everyone to remove their clothes. Rich and defendant gave the guns to McCoy and Rich forced Angela Graham to perform oral sex with him while defendant forced Linda Marquette to perform oral sex also. Marquette was then forced to have intercourse. McCoy testified that he then returned to the car.

McCoy and Angelo then left and returned the guns to McCoy's house and burned the wallets and purses. They left defendant's car at a ball park and returned to the McCoy house around 11:00 p. m. Around midnight, defendant and Rich returned to the house and defendant was boasting of his sexual conquest. Defendant told McCoy that McCoy had left him with a fake gun. McCoy testified that he had never seen the fake gun.

Other facts pertinent to this opinion are noted below.

II.

These crimes were committed on 15 December 1980. Two weeks later, on 29 December 1980, law enforcement officers obtained a warrant to search defendant's vehicle. The warrant was served on defendant's grandmother and a search of the car revealed several items, including a K-Mart battery. Prior to trial, defendant moved to suppress evidence obtained pursuant to the search warrant on the ground that insufficient probable cause existed for its issuance. Conceding that the underlying affidavit may have shown probable cause to believe that the items were located in defendant's car on 15 December 1980, defendant contends that there is nothing in the underlying affidavit to establish probable cause that the items would be located in the car some two weeks after the robbery. In other words, defendant contends that the information provided in the affidavit before the magistrate suffers from staleness.

It is a basic proposition of constitutional law that in order for a search warrant to be valid it must be based on probable cause. U.S.Const.amend. IV; accord, G.S. §§ 15A-243 to -245 (1978). As stated by our case law:

probable cause means a reasonable ground to believe that the proposed search will reveal the presence, upon the premises to be searched, of the objects sought and that those objects will aid in the apprehension or conviction of the offender. (Citation omitted.) Thus, the affidavit upon which a search warrant is issued is sufficient 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 the apprehension or conviction of the offender."

State v. Riddick, 291 N.C. 399, 406, 230 S.E.2d 506, 511 (1976) (quoting State v. Vestal, 278 N.C. 561, 576, 180 S.E.2d 755, 765 (1971), cert. denied, 414 U.S. 874, 94 S.Ct. 157, 38 L.Ed.2d 114 (1973)); accord, State v. Jones, 299 N.C. 298, 261 S.E.2d 860 (1980).

The application for a search warrant must contain, inter alia, a statement that there is probable cause to believe that the items subject to seizure may be found in a designated place. G.S. § 15A-244(2). The statement must be supported by one or more affidavits setting forth with particularity the facts and circumstances establishing probable cause to believe that the items are in that place or in the possession of the individuals to be searched. G.S. § 15A-244(3). Information other than that contained in the affidavit may not be considered by the issuing official in determining probable cause. G.S. § 15A-245.

The affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant; but the affidavit in such case must contain some of the underlying circumstances from which the affiant's informer concluded that the articles sought were where the informer claimed they were, and some of the underlying circumstances from which the affiant concluded that the informer, whose identity need not be disclosed, was credible and his information reliable. (Citations omitted.)

Whether the affidavit is sufficient to show probable cause must be determined by the issuing magistrate rather than the affiant. This is constitutionally required by the Fourth Amendment. (Citation omitted.)

State v. Campbell, 282 N.C. 125, 129, 191 S.E.2d 752, 755-56 (1972).

Whether probable cause exists for the issuance of a search warrant depends upon a practical assessment of the relevant circumstances. State v. Phifer, 297 N.C. 216, 254 S.E.2d 586 (1979); State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971). Each case is to be decided on its own facts. "[R]eviewing courts are to pay deference to judicial determinations of probable cause (citation omitted), and 'the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.' " State v. Louchheim, 296 N.C. 314, 324, 250 S.E.2d 630, 636 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 [1965] ), cert. denied, 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47 (1979).

As defendant correctly notes, probable cause cannot be shown by affidavits which are purely conclusory. An affidavit which merely states the affiant's belief that probable cause exists without detailing any of the underlying circumstances is insufficient. A recital of some of the underlying circumstances in the affidavit is necessary if the magistrate is to perform his proper function. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752. The issuing officer "must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion ...." Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, 1509 (1958).

In the application for the search warrant here, the officer swore to the following facts:

The applicant swears to the following facts to establish probable cause for the issuance of a search warrant: That on 15 December 1980, Angela Graham, Linda Marquette, Jimmy Blevins, David Blevins and Roy Allen stated to this officer that they were at the Clay Pits off 301s and that an old model car, light in color, with one headlight out came to the Clay Pits and turned around, that the vehicle left and about ten to fifteen minutes later, after the described vehicle left, they were approached by three black...