State v. Teasley

• Decision Date: 05 August 1986
• Docket Number: No. 8629SC154,8629SC154
• Citation: 346 S.E.2d 227,82 N.C.App. 150
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, v. Russell William TEASLEY.

Page 227

346 S.E.2d 227

82 N.C.App. 150

STATE of North Carolina, v. Russell William TEASLEY.

No. 8629SC154.

Court of Appeals of North Carolina.

Aug. 5, 1986.

Atty. Gen. Thornburg by Special Deputy Atty. Gen. David S. Crump, Raleigh, for the State.

Elmore & Powell, P.A. by Stephen P. Lindsay and Bruce A. Elmore, Sr., Asheville, for defendant-appellant.

WHICHARD, Judge.

Defendant contends the court erred by failing to grant his motion to suppress evidence seized pursuant to the search of his house. Specifically, he contends that the magistrate lacked a substantial basis for concluding that probable cause existed justifying issuance of a search warrant. He argues that "[t]he allegations of Officer Lawing [in the search warrant application] were a combination of conclusions, multiple level hearsay, uncorroborated informant information and irrelevancies...."

Officer Lawing's affidavit reads:

ON DECEMBER 3, 1984 THIS APPLICANT RECEIVED INFORMATION FROM [AN S.B.I. AGENT] THAT RUSSELL WILLIAM TEASLEY OF HORSE SHOE HAD BEEN INVOLVED IN A COCAINE TRAFFICKING INCIDENT IN RALEIGH, N.C. AND THAT THIS AGENCY SHOULD BE MADE AWARE OF THIS INFORMATION. THIS APPLICANT RECEIVED INFORMATION ON MARCH 20, 1985 FROM ... THE N.C. ATTORNEY GENERAL'S OFFICE IN RALEIGH, N.C. THAT RUSSELL WILLIAM TEASLEY OF SUNSET CAMPGROUND, HORSE SHOE, N.C. HAD CALLED [THAT OFFICE] AND STATED THAT HE WAS "DEALING" COCAINE AND THAT [THERE] WERE SOME PEOPLE TRYING TO KILL HIM ... [AND] [FURTHER] STATED TO THIS APPLICANT THAT MR. TEASLEY WAS A KNOWN COURIER FOR A SUBJECT IN THE CHAPEL HILL, N.C. AREA.

MARCH 21, 1985 THIS AGENCY'S COMMUNICATIONS SECTION RECEIVED A RADIO BROADCAST ON THE FIRE DEPARTMENT FREQUENCY THAT THERE WAS A BARN ON FIRE AT THE LOCATION DESCRIBED AND UPON ARRIVAL OF MEMBERS OF THE MILLS RIVER [VOLUNTEER] FIRE DEPT. AT 5:33PM THAT A WHITE MALE SUBJECT NAMED TEASLEY HAD PREVENTED [THEIR] RESPONSE AS THIS SUBJECT [ASSAULTED] MEMBERS OF THIS FIRE DEPT. BY POINTING A LONG [SHOULDER] TYPE WEAPON AT THEM. THE FIRE DEPT. CALLED THIS AGENCY FOR ASSISTANCE. UPON [ARRIVAL] AT THE [AFOREMENTIONED] LOCATION THIS APPLICANT OBSERVED A WHITE MALE SUBJECT [CARRYING] A LONG SHOULDER TYPE WEAPON TO THE BEIGE FORD RANCHERO TRUCK AS DESCRIBED AND THEN ENTER THE RESIDENCE DESCRIBED. THIS SUBJECT WAS IDENTIFIED TO THIS APPLICANT AS BEING RUSSELL W. TEASLEY. THIS SUBJECT SHOUTED [OBSENITIES] AT RESPONDING OFFICER OF THIS AGENCY. WARRANTS WERE ISSUED BY MAGISTRATE DERMID [FOR] ASSAULTING A FEMALE, IN WHICH TEASLEY HAD ASSAULTED HIS WIFE PREVIOUS TO THIS INCIDENT. OFFICER[S] APPROACHED THIS RESIDENCE AND TEASLEY CAME OUT ONTO A SECOND STORY BALCONY AND REFUSED TO TALK WITH THE RESPONDING OFFICERS. OFFICERS ENTERED THIS RESIDENCE AND SUBDUED TEASLEY AND OBSERVED IN THIS RESIDENCE WERE VARIOUS ITEMS OF DRUG [PARAPHERNALIA], ROLLING PAPERS, PIPES, ETC. WHICH WOULD BE USED TO INTRODUCE IN

TO YOUR BODY CONTROLLED SUBSTANCES THAT WOULD [BE] ILLEGAL TO POSSESS.

THE STRUCTURE THAT WAS BURNING WAS OF A SUSPICIOUS NATURE AS THE WEATHER AT THE TIME WAS [CONSTANT] RAIN AND THE FACT THAT TEASLEY WOULD NOT LET THE RESPONDING FIREMAN ... APPROACH THE SCENE TO EXTINGUISH THE FIRE.

THIS APPLICANT ALSO OBSERVED SEVERAL FIREARMS AND BOXES OF AMMUNITION INSIDE THE AFOREMENTIONED RESIDENCE ALSO LYING ON THE ROOF OF THE BEIGE FORD TRUCK ALSO DESCRIBED, [SITTING] IN THE DRIVEWAY OF THIS RESIDENCE.

During the supression hearing, Officer Lawing testified that when he submitted his sworn statement with the search warrant application to the magistrate, he "made oral statements [under oath to the magistrate] in her office at the time of application to the fact that [he] had seen some white powder, which [he] believed to be cocaine, which [he] did not put in the original[.]"

The trial court found that:

[T]he application is a sufficient recital together with other information provided to the magistrate to warrant and justify the magistrate in issuing a search warrant for possible controlled substances; for firearms and for flammable liquid. The totality of circumstances which existed at the time the application was made including the conduct of the defendant recited in the application. The fire and other circumstances leading to the entry into the residence of the defendant following the defendant's conduct constituting or appearing to constitute felonious assault upon law enforcement officers and private personnel, appears to me to justify the act of [Officer] Lawing in applying for the warrant purports [sic] substantially each of the assertions made by him in the application and certainly warrants the issuance of the application on the basis of the information supplied to the magistrate; accordingly, it is the judgment of the Court that the search warrant was regularly and properly issued and the motion to suppress is denied.

....

The only supplemental information is that [Officer] Lawing states that he testified under oath to the magistrate to observing a white powder and [the court] considered that the magistrate was privileged to consider that along with all other facts related in the search warrant application. The application itself shows quite a number of articles seen in plain view in the course of lawful arrest. [The court finds] that that information contained in this search warrant justified the issuance of the search warrant on [its] face alone [, even disregarding Officer Lawing's additional statement].

This Court has stated that:

The scope of our review is to determine whether these findings are supported by competent evidence and whether they support the conclusion of law. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). "[T]he duty of a reviewing court [the trial court, initially] is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 548 (1983), citing Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)....

In resolving that issue first we determine whether information presented to the magistrate complies with G.S. 15A-244. See State v. Arrington, 311 N.C. 633, 636, 319 S.E.2d 254, 256 (1984). Only information that so complies may support a magistrate's decision that probable cause exists to issue a search warrant. Second, we examine the information properly available to the magistrate to see whether it provides a sufficient basis for finding probable cause and issuing a search warrant. We examine that information under the "totality of circumstances" test reaffirmed by the Supreme Court of the United States in Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, and adopted by our Supreme Court in Arrington, 311 N.C. at 643, 319 S.E.2d at 261, for resolving questions arising under Article 1, section 20 of the Constitution of North Carolina with regard to the sufficiency of probable cause to support the issuance of a search warrant.

Under our statutes a magistrate issuing a warrant can base a finding of probable cause only on statements of fact confirmed by oath or affirmation of the party making the statement, or on information which the magistrate records or contemporaneously summarizes in the record. G.S. 15A-244; G.S. 15A-245(a). The necessity of a sworn statement is consistent with existing case law. See, e.g., Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548 ("The task of the issuing magistrate is simply to make a practical, common-sense decision ... given all the circumstances set forth in the affidavit before him....") (emphasis supplied).

State v. Heath, 73 N.C.App. 391, 393, 326 S.E.2d 640, 642 (1985).

Unlike in State v. Hicks, 60 N.C.App. 116, 298 S.E.2d 180 (1982), disc. rev. denied, 307 N.C. 579, 300 S.E.2d 553 (1983), the evidence here does not show that the magistrate recorded or contemporaneously summarized in the record Officer Lawing's statement to her that he had observed some white powder which he believed to be cocaine. Hicks, 60 N.C.App. at 118-21, 298 S.E.2d at 182-83. The magistrate's additional information thus was not recorded as required by N.C.Gen.Stat. 15A-245(a). Id. at 121, 298 S.E.2d at 183. Accordingly, under our statutory requirements the issuance of the warrant must rest solely upon Officer Lawing's affidavit. See Heath, supra, 73 N.C.App. at 395, 326 S.E.2d at 643.

Examining this affidavit within the guidelines adopted in Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, and Arrington, 311 N.C. 633, 319 S.E.2d 254, we hold that it provides a substantial basis for concluding that probable cause existed. Defendant contends the affidavit is insufficient upon its face because it is based, in part, on false statements. The incident in Raleigh related by the S.B.I. agent, according to defendant, really involved "a small amount of marijuana ... insufficient to constitute a trafficking violation ..." and did not involve cocaine trafficking as alleged in the affidavit. Further, the information from the Attorney General's office was really to the effect that defendant "had basically admitted that he was dealing in cocaine ..." by failing to deny this fact in his conversation with that office. Defendant argues that Officer Lawing thus misrepresented this communication in his affidavit by stating that the Attorney General's office told him that defendant was "dealing" cocaine.

Assuming, arguendo, that under the standard set forth in Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674, 2676, 57 L.Ed.2d 667, 672 (1978), we must disregard these statements as false, we nevertheless "find that there was probable cause to support the search warrant on the face of the affidavit when this false information is disregarded." State v. Louchheim, 296 N.C. 314, 321, 250 S.E.2d 630, 635, cert. denied, 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47 (1979). The affidavit specifically alleges the following key facts:

(1)Defendant assaulted members...