State v. Reid

• Decision Date: 30 December 1974
• Docket Number: No. 115,115
• Citation: 210 S.E.2d 422,286 N.C. 323
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Johnny REID.

Page 422

210 S.E.2d 422

286 N.C. 323

STATE of North Carolina v. Johnny REID.

No. 115.

Supreme Court of North Carolina.

Dec. 30, 1974.

James H. Carson, Atty. Gen., Robert Morgan, Atty. Gen. by James Wallace, Jr., Associate Atty., Raleigh, for the State.

Harrell Powell, Jr., Winston-Salem, for defendant appellant.

HIGGINS, Justice.

According to the record and the addendum thereto, the defendant Johnny Reid, was tried in the district court upon a warrant charging that he unlawfully possessed nine pints of tax-paid liquor for the purpose of sale. After conviction, the court imposed a prison sentence of one year. The defendant appealed to the Superior Court of Forsyth County where he was convicted by the jury. Judge Armstrong imposed a prison sentence of one year and a day to two years.

The record discloses that D. R. Wilson, a Winston-Salem police officer, made affidavit that Johnny Reid, manager of a service station located at 850 North Liberty Street in Winston-Salem, had been observed dispensing alcoholic beverages, beer and wine, on the premises; that he did not have a permit for such activity. The officer had information from a reliable informant that alcoholic beverages were being dispensed on the premises. He observed from adjoining property persons drinking wine and beer. He knew the defendant was under a probationary sentence. He had signed a consent that his motor vehicle might be searched without a warrant.

On a proper affidavit a search warrant was issued, authorizing a search 'on the premises at 850 North Liberty Street, . . . the same being a Service Distributing Inc. gasoline filling station. . . . The above business establishment is located at 850 North Liberty Street, Winston-Salem, Forsyth County, North Carolina. It is a one-story white cement building painted with a red stripe at the top and a red stripe at the bottom. The service station is located at the corner of Liberty Street and Chestnut Street . . .. There is a small one-room gray metal out building in the rear southwest corner of the service station with one door facing easterly toward Liberty Street. These buildings are separated by approximately 15-feet in distance. The main service station having the words in bold red letters on the front. 'Service Dist Co Inc."

Affiant stated that the defendant had a criminal record in the state and federal courts for liquor violations. The affidavit stated the officer observed alcoholic beverages being consumed on the premises about fifty minutes before the affiant obtained the search warrant. The officer's affidavit was attached to and made a part of the warrant which authorized a search for and the seizure of any alcoholic beverages. The sufficiency of the affidavit and the warrant to authorize a search is not challenged. The defendant's brief sates: 'In this case the Police had a search warrant which empowered them to search the premises on 850 North Liberty Street, Winston-Salem, North Carolina, on August 17, 1973. They did not have a warrant to search the defendant's automobile.'

A search of the buildings resulted in a 'water haul' (an empty seine after all the water had drained through the mesh). However, on the described premises was the defendant's 1970 Pontiac automobile with all the windows closed and the doors and the lid to the trunk were locked. No reference to any automobile was made either in the affidavit or the warrant. However, the vehicle was on the premises described in the affidavit and in the warrant. The officers could see several bottles of what appeared to be pills on the dash of the vehicle. Upon a demand by the officers, the defendant opened the lid to the trunk. Concealed therein were nine pints of tax-paid intoxicating liquor.

The pills seized were the subject of another prosecution which resulted in a verdict of not guilty. It may be conceded the appearance of the bottles of pills on the dash was insufficient to authorize a search of the...