State v. Whitted

• Decision Date: 05 June 1974
• Docket Number: No. 7414SC348,7414SC348
• Citation: 21 N.C.App. 649,205 S.E.2d 611
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Levi WHITTED.

Page 611

205 S.E.2d 611

21 N.C.App. 649

STATE of North Carolina v. Levi WHITTED.

No. 7414SC348.

Court of Appeals of North Carolina.

June 5, 1974.

Certiorari Denied by Supreme Court July 1 and Aug. 30, 1974.

Atty. Gen. Robert Morgan, by Asst. Atty. Gen. Walter E. Ricks, III, Raleigh, for the State.

Taylor & Upperman, by Herman L. Taylor, Greensboro, for defendant appellant.

MORRIS, Judge.

The record contains six groups of assignments of error based on 39 exceptions. Defendant brings forward and argues only two. Although he does not refer to any exception or assignment of error in his brief, since there are only two questions raised, we choose not to invoke the provisions of Rule 28, Rules of Practice in the Court of Appeals of North Carolina, and dismiss the appeal. Rather, we shall discuss the two questions on their merits.

Defendant first urges that the evidence in this case should have been suppressed on defendant's motion because of the legal insufficiency of the search warrant and the inadequacy of the affidavit upon which the search was authorized.

In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), Mr. Justice Goldberg wrote the opinion for the majority of the Court (Chief Justice Warren and Justice Douglas dissenting). In discussing the requirements of probable cause with respect to search warrants, he said:

'While a warrant may issue only upon a finding of 'probable cause,' this Court has long held that 'the term 'probable cause' . . . means less than evidence which would justify condemnation,' Locke v. United States, 7 Cranch 339, 348, 3 L.Ed. 364 (367), and that a finding of 'probable cause' may rest upon evidence which is not legally competent in a criminal trial. Draper v United States, 358 U.S. 307, 311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327 (331). As the Court stated in Brinegar v. United States, 338 U.S. 160, 173, 69 S.Ct. 1302, 1309, 93 L.Ed. 1879 (1889). 'There is a large difference between the two things to be proved (guilt and probable cause), as well as between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof required to establish them.' Thus hearsay may be the basis for issuance of the warrant 'so long as there . . . (is) a substantial basis for crediting the hearsay.' Jones v. United States, supra, 362 U.S. (257), at 272, 80 S.Ct. (725), at 736 (4 L.Ed.2d 697 at 708, 78 A.L.R.2d 233). And, in Aguilar we recognized that 'an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant,' so long as the magistrate is 'informed of some of the underlying circumstances' supporting the affiant's conclusions and his belief that any informant involved 'whose identity need not be disclosed . . . was 'credible' or his information 'reliable. " Aguilar v. State of Texas, supra, 378 U.S. (108), at 114, 84 S.Ct. (1509), at 1514 (12 L.Ed.2d 723 at 729).'

With respect to the application of the principles, Mr. Justice Goldberg said:

'These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the treachings 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.' Id., 380 U.S. at 108, 85 S.Ct. at 746, 13 L.Ed.2d at 688--689.

In the case before us, the affiant stated under oath before the issuing magistrate that he had probable cause to believe that Levi Whitted and Larry Lee had on the Premises of Levi Whitted, the person of Larry Lee and his vehicle, heroin. The affidavit gave the address of the Whitted premises, described the home and Larry Lee and his automobile, giving also its license number. The affiant stated that the facts given were given by an informant who had in the past given information which had led to the arrest and conviction of people in the Superior Court, Durham County, giving the dates of conviction. Further the affiant stated that the informant had told him that on the date of issue of the warrant he was in the home of Levi Whitted in the presence of Larry Lee and saw within the premises a quantity of heroin in the possession of Larry Lee. Further the informant had been in the Vice Squad office on several occasions and had correctly identified heroin and knew heroin when he saw it.

Applying the principles of Ventresca, we think the affidavit in this case complies with the requirements of the Constitution of the United States, the decisions of the Supreme Court of the United States, the decisions of the Supreme Court of North Carolina, ...