State v. Sheetz, 7921SC966

• Decision Date: 20 May 1980
• Docket Number: No. 7921SC966,7921SC966
• Citation: 265 S.E.2d 914,46 N.C.App. 641
• Parties: STATE of North Carolina v. Charles Steven SHEETZ.
• Court: North Carolina Court of Appeals

Page 914

265 S.E.2d 914

46 N.C.App. 641

STATE of North Carolina v. Charles Steven SHEETZ.

No. 7921SC966.

Court of Appeals of North Carolina.

May 20, 1980.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R. B. Matthis and Asst. Atty. Gen. Alan S. Hirsch, Raleigh, for the State.

Morrow, Fraser & Reavis by Bruce C. Fraser, Winston-Salem, for defendant-appellant.

ERWIN, Judge.

Defendant's initial assignment of error concerns the trial court's denial of his motion to suppress the introduction of evidence. We find it necessary to review the propriety of the orders to resolve this contention.

I. Order (10 October 1978)

The order issued on 10 October 1978 was entitled "ORDER FOR EXAMINATION OF BUSINESS AND BANK ACCOUNT RECORDS." The language of the order provided for an examination of the business and working records of defendant's business, as well as those of the banks named therein. The order was different from those issued on 4 December and 13 December. We believe this difference was of constitutional magnitude.

Normally, an order to produce documents, a subpoena, or subpoena duces tecum, is not thought to invoke the strictures of the Fourth Amendment of the United States Constitution, which provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

However, a subpoena is subject to the Fourth Amendment stricture against indefiniteness. See United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976); Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911). Thus, the nature of the order being considered is of significance.

The present order is akin to those called for by the United States Supreme Court in Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); and Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), i. e., administrative search warrants. G.S. 15-27.2 expressly authorizes issuance of administrative and inspection warrants. "But '(i)f the authorities are seeking evidence to be used in a criminal prosecution, the usual standard (of probable cause) will apply.' " Michigan v. Tyler, 436 U.S. 499, 508, 98 S.Ct. 1942, 1950, 56 L.Ed.2d 486, 498 (1978), and the warrant must be viewed as a criminal investigative search warrant. ¹ Michigan v. Tyler, supra. With this in mind, we look to see if the search warrant and its issuance meet the constitutional requirements embodied in the Fourth Amendment of the United States Constitution.

A. Probable Cause

"Within the meaning of the Fourth Amendment and G.S. 15-25(a), now G.S. 15A-243 to 245, 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. State v. Campbell (282 N.C. 125, 191 S.E.2d 752), supra. 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. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971)."

State v. Riddick, 291 N.C. 399, 406, 230 S.E.2d 506, 511 (1976), reh. denied, 293 N.C. 261, 247 S.E.2d 234 (1977). The affidavit upon which the order of 10 October 1978 was issued alleged in pertinent part:

"(T)hat as a result of an investigation being conducted by the Forsyth County Sheriff's Department into a fire occurring at Clemmons Florist and Gift Shop on August 28, 1978 in Forsyth County, Clemmons, North Carolina, the said District Attorney has reason to believe that the examination of certain records in the possession of Charles Steven Sheetz and one Clemmons Florist Gift (sic) Shop and the entire business and working records of the Clemmons Florist and Gift Shop would be in the best interest of the enforcement of the law and the administration of justice in Forsyth County . . ."

"Probable cause cannot be shown 'by affidavits which are purely conclusory, stating only the affiant's or an informer's belief that probable cause exists without detailing any of the "underlying circumstances" upon which that belief is based. . . . Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function and not serve merely as a rubber stamp for the police.' United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). 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, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958)."

State v. Campbell, 282 N.C. 125, 130-31, 191 S.E.2d 752, 756 (1972).

In State v. Campbell, supra, a special agent for the State Bureau of Investigation had sworn under oath that he had probable cause to believe that defendant Campbell had certain illegal drugs in the described house. The facts allegedly justifying issuance of a warrant were the agent's possession of arrest warrants for defendant and his cohorts and the fact that:

" 'Peter Michael Boulus, Special Agent; N. C. State Bureau of Investigation; being duly sworn and examined under oath, says under oath that he has probable cause to believe that Kenneth Campbell; M. K. Queensberry and David Bryan has on his premises certain property, to wit: illegally possessed drugs (narcotics, stimulants, depressants), which constitutes evidence of a crime, to wit: possession of illegal drugs. . . .' "

Id. at 130, 191 S.E.2d at 756. One of the grounds upon which our Supreme Court held the seizure of the drugs unconstitutional was that nowhere in the affidavit was there a sufficient statement of underlying circumstances from which the magistrate could have concluded that probable cause existed. We believe that the affidavit in question contains the same flaw. The allegation that agents have conducted an investigation which has disclosed evidence of irregularities which, if supported by evidence and found to be true, would constitute serious violations of the law on the part of the defendant, without the disclosure of facts from which the magistrate could ascertain the existence of irregularities that would constitute serious violations of the law, does not meet the constitutional standard for issuance of a search warrant. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); accord, State v. Macri, 39 N.J. 250, 188 A.2d 389 (1963).

Defendant's motion to suppress introduction of the records or evidence gleaned from the records seized from him personally and the Clemmons Florist and Gift Shop pursuant to the order dated 10 October 1978 should have been allowed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); see also G.S. 15A-974.

B. Exclusionary Rule

Evidence seized during an unlawful search cannot constitute proof against the victim of the search, ² and the exclusionary prohibition extends as well to the indirect as the direct products of such invasions. Wong Sun v. United States, supra, and Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). As stated by Mr. Justice Holmes in Silverthorne Lumber Co. v. United States, Id. at 392, 40 S.Ct. at 183, 64 L.Ed. at 321:

"The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the government's own wrong cannot be used by it in the way proposed."

Subsequent case law has restated this requirement thusly:

"(T)he more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' "

Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963). Thus, we must look to see if the evidence obtained pursuant to the orders dated 4 December 1978 and 13 December 1978 was obtained by exploitation of the unlawful search and seizure or by means sufficiently distinguishable to be purged of the primary taint.

II. Orders Dated 4 and 13 December 1978

The orders of 4 December 1978 and 13 December 1978 are subpoenas, and evidence procured by subpoenas is normally not subject to the strictures of the Fourth Amendment. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771 (1911). Thus, evidence obtained pursuant to these orders can only be...